Fairbairn & Fairbairn
[2023] FedCFamC1A 75
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fairbairn & Fairbairn [2023] FedCFamC1A 75
Appeal from: Fairbairn & Fairbairn [2023] FedCFamC2F 44 Appeal number(s): NAA 21 of 2023 File number(s): NCC 612 of 2022 Judgment of: TREE J Date of judgment: 22 May 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from interim parenting orders – Appealed orders extremely narrow in compass – Where child is 17 years and three months of age – No question of general importance – Reasons provided in short form – Where the mother conceded two orders made by the primary judge could not be maintained – Where the remaining grounds of appeal fail – Where two orders are set aside but otherwise the appeal is dismissed – Costs ordered in a fixed sum. Legislation: Fair Work Act 2009 (Cth) s 344
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 53 Date of hearing: 16 May 2023 Place: Cairns (via video link) The Appellant: Self-represented litigant Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Jacqueline Kyle Family Law ORDERS
NAA 21 of 2023
NCC 612 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FAIRBAIRN
Appellant
AND: MS FAIRBAIRN
Respondent
order made by:
TREE J
DATE OF ORDER:
22 may 2023
THE COURT ORDERS THAT:
1.Save that Orders 1(b) and 1(c) of the orders made by the primary judge on 24 January 2023 are set aside, the appeal is otherwise dismissed.
2.The appellant is to pay the respondent’s costs in the sum of $7,118.90 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fairbairn & Fairbairn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Mr Fairbairn (“the father”) appeals interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 January 2023 in respect of the parties’ youngest child who is still, albeit not by much, under 18 years of age.
The appealed orders provide:
1.[The child] is permitted to engage in paid employment by [Business D] in [City B] subject to the following:
(a)Not more than 8 hours employment in not more than 2 shifts is to be undertaken with one of the shifts on a Sunday and the other shift on a weekday afternoon after school hours that does not clash with [the child’s] [allied health] appointments nor with his [art] workshop activity.
(b) [The child] is to be joined as a member to a union with coverage of his workplace with [the child’s] annual union dues paid by his employer.
(c)[The child] is to be paid fortnightly at a rate consistent with or above an award that covers the industry with wages paid into a bank account nominated by [the child].
2.The father is permitted at his sole expense to have an education assessment of [the child] conducted by [Mr C] on a date suitable to [the child] and the mother, if she wishes to attend the appointment, and the mother is to provide to [Mr C] any reports relevant to [the child] including but not limited to the ASPECT report, a report from [the child’s] [allied health professional] and a copy of his school learning program/s.
3.The father shall not permit [Mr C] to provide any opinion as to [the child’s] autism.
Following those orders was a notation in the following terms:
A.The remainder of the orders sought by the father have already been adjourned for hearing at 10am on 10 February 2023 in [City B], in which hearing the mother intends to rely upon the dicta in Rice & Asplund (1979) FLC 90-725 to seek a dismissal, and the father will argue a change of circumstance.
Although Ms Fairbairn (“the mother”) generally opposed the appeal, she conceded that Orders 1(b) and 1(c) could not be maintained and consented to them being set aside.
For the reasons which follow, Orders 1(b) and 1(c) will be set aside but otherwise the appeal will be dismissed.
BACKGROUND
The parties were married in 1996, separated in January 2017 and were divorced in 2018. They had three children together, although these proceedings only concern their youngest child, who was born in 2006 and therefore currently 17 years of age.
The parties have a history of family law litigation which commenced in 2018. On 24 June 2020, final consent orders were made by Justice Foster which in summary provided that:
·The mother have sole parental responsibility for the child;
·The child live with the mother;
·The mother keep the father informed of all serious medical and educational issues relating to the child;
·The mother advise the father of all specialist medical and psychologist appointments for the child;
·The child spend time with the father during school term each alternate weekend from after school Friday to before school Monday, half of the short school holidays, for two weeks in the Christmas school holidays, and other special days.
On 8 March 2022, the father filed an Initiating Application in which he sought effectively a reversal of the final consent orders made on 24 June 2020, such that he have sole parental responsibility for the child, who would live with him and spend alternate weekends with the mother. He also sought a raft of interim orders in the following terms:
1.Until further orders the father has sole parental responsibility for all medical, specialist and developmental requirements for [the child] and has leave to attend him to any appointment regarding the afore-mentioned at any time.
2.Except for emergency medicine the mother is not to administer prescription medication to [the child] without the father's consent.
3.Except for emergency medicine the mother is not to attend [the child] to any medical or health care professional without the father's consent.
4.The mother is to attend [the child] to weekly [art] lessons during her time as programmed by the father for a period of three months from these orders.
5.The mother complete a Parents Not Partners course, or the equivalent as deemed appropriate by the ICL, within six months from these orders.
6.The mother complete a Parental Course, as deemed appropriate by the ICL, within six months from these orders.
7.The mother complete six Carbohydrate Deficient Transferrin tests on a monthly basis as directed by the ICL. All test results are to be tendered to the ICL and the father within 48 hours of being received.
8.The mother attend to a therapist as deemed appropriate by the ICL for the purpose of encouraging her to facilitate a relationship between the children and the father attending six sessions as a minimum within nine months from these orders. The father is to attend to the therapist in the first instance and then as required by the therapist.
9.The ICL be given leave to engage with the mother's therapist and relist this matter should the mother be resistant to promoting a relationship between the father and the children.
10.Except for the purposes of transport, the mother is not at attend to any public extracurricular or school activity where [the child] is in attendance for the six-month period from these orders.
11.[The child] spend time with the mother or father, as he wishes, during weekdays in the school term from 3 p.m. to 6 p.m.
12.[The child] spend time with the mother or father during weekends, as he wishes, for the purpose of employment, sport or a programmed extra-curricular activity.
The mother filed a Response seeking that the father’s Initiating Application be dismissed.
By his Case Outline, the father foreshadowed that the orders he would seek at the interim hearing on 16 November 2022 were:
1.The father has sole parental responsibility.
2.The father has leave to attend [the child] to any developmental, educational, therapeutic or assessment appointment, at any time, including travel to and from said appointment.
3.The father has leave to attend [the child] to after school employment during the school week at his business [Business D].
4.The mother meet all costs of an Educational Assessment in the first instance and of an Autism reassessment in the second instance, both at practitioners and dates chosen by the father.
5.The Rice and Asplund hearing be deferred until after the educational assessment and Autism reassessment reports are released.
It will be appreciated that the interim relief sought by the father fell into two types; the first related to how the mother was exercising her parental responsibility as regards the child’s education, autism assessment and part time employment, and the second sought to give the father sole parental responsibility for the child instead of the mother.
The primary judge heard the first aspect of the relief on 16 November 2022 and his Honour’s orders and reasons for judgment delivered on 24 January 2023, from which the father appeals, are confined to those issues. As the notation to the 24 January 2023 orders records, the remainder of the interim relief which the father claimed were listed for a “Rice & Asplund” threshold hearing on 10 February 2023, although that is now listed for 9 October 2023, being some three and a half months before the child turns 18, after which he will no longer be amenable to the Court’s jurisdiction.
THE APPEAL
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
As the mother’s counsel complained, unfortunately the father’s Summary of Argument largely failed to elaborate upon the issues raised by his grounds of appeal, and to the extent it did so, also sought to introduce new grounds not contained in the Notice of Appeal. Particularly, paragraphs 16, 19 and 20 of the Summary of Argument sought to do this, however as they do no relate to any ground of appeal contained in the Notice of Appeal, which the father made no application to amend, I will not address them further save to say they appear unmeritorious.
It should also be said that the appealed interim orders are extremely narrow in compass, dealing only with the child’s part-time employment and educational assessment. Given the age of the child, an appeal against such orders borders on being a waste of the Court’s resources. Thus, as it raises no question of general principle, the following reasons for dismissing the appeal are in short form (Federal Circuit and Family Court of Australia Act 2021 (Cth), s 36(2)).
Ground 11
This ground provides:
11.[The primary judge] erred by concluding ‘ASPECT has a reputation as one of the preeminent autism organisations in Australia’ when no evidence was provided to substantiate this conclusion and it is also presumptive and does not take into account the child’s individual assessment nor the child’s individual circumstances and this comment suggests a bias toward the mother’s unsubstantiated position.
In part, this ground contends apprehended bias, and hence ought be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611). That said, no elaboration of the alleged bias was ventured in the father’s Summary of Argument or orally.
The relevant part of the primary judge’s reasons is [39]–[40] as follows:
39.I hold no qualms about ASPECT’s diagnosis and how that diagnosis was informed. ASPECT has a reputation as one of the preeminent autism organisations in Australia.
40.[The child] will benefit from having an expert like [Mr C] conduct an educational assessment to see if [the child’s] learning programs are suitable to his capacities. However there is no benefit for [the child] in [Mr C] providing a second opinion as to the autism diagnosis. [Mr C] does not have the expertise of ASPECT nor does the father have sufficient continuous involvement with [the child] on a daily basis to provide additional information to [Mr C] relevant to autism symptomology.
No fair minded lay observer would conclude from those passages that the primary judge approached the hearing somehow favouring the mother, or might decide the case other than on its legal and factual merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]). Nor does any basis for such suspicion arise from the transcript. The bias claim fails.
The balance of the ground contends errors of fact, seemingly directed to undermining the primary judge’s refusal to order an autism reassessment of the child, however I am satisfied that there was a sufficient evidentiary and principled basis for restricting the new assessment of the child to educational issues only, rather than revisiting the autism diagnosis, at least prior to the determination of the Rice & Asplund issue, particularly given that the ASPECT report predated the 24 June 2020 consent orders.
Ground 11 fails.
Grounds 1 and 7
These grounds provide:
1.[The primary judge] erred in not giving proper consideration to the needs of [the child], pursuant to section 60CC by not ordering sole parental responsibility to the father and not making the father’s proposed orders.
7.[The primary judge] erred in concluding that a hearing for sole parental responsibility can only occur after a Rice and Asplund hearing.
These grounds challenge the primary judge’s refusal to revisit the allocation of parental responsibility prior to the Rice & Asplund hearing, together with a somewhat opaque “failure to give proper consideration” complaint. The latter, which was not expanded upon in the father’s Summary of Argument or orally, is in reality a weight challenge, and hence arises from a matter exquisitely for the primary judge (CDJ v VAJ (1998) 197 CLR 172 at 230-231 per Kirby J). No error in that regard is established.
As to the failure to address the father’s proposal for an interim allocation of sole parental responsibility to him, at [11], [15] and [43] the primary judge said:
11.This judgment is confined to determining the father’s challenge to how the mother is exercising sole parental responsibility.
…
15.His application for sole parental responsibility is not being decided herein. That would only happen after the outcome of the Rice v Asplund threshold hearing. There will be no delay of that threshold hearing because [the child] turns 17 in [early] 2023 and any delayed hearing would be so close to [the child’s] 18th birthday as to make a new hearing of parenting orders a waste of judicial resources given the many other cases relevant to much younger children on the judicial calendar for the circuit.
…
43.The rest of the interlocutory orders sought by the father are either not in [the child’s] best interest or an application that properly falls to be determined at the “threshold” hearing in February 2023.
Of course, the removal of sole parental responsibility from the mother and its allocation – even on an interim basis – to the father, would be a dramatic reversal of the 24 June 2020 consent orders. It was quite permissible – indeed sensible – for the primary judge to defer consideration of that until at or after the February 2023 hearing, and no error in that regard is established. To do otherwise would commence upon the very mischief which Rice & Asplund is designed to guard against.
Grounds 1 and 7 fail.
Grounds 2, 3 and 6
These grounds provide:
2.His Honour erred in making an order that the employment of [the child] be conditional on him joining a union, which is illegal and contravenes the Fair Work Act Sect 342 and denies [the child] freedom of association.
3.[The primary judge] erred by ordering the child’s union fees be paid by the child’s employer when union membership is voluntary and a personal obligation and something to which no employer is lawfully obligated.
6.[The primary judge] erred by making the child’s employment conditional on the father violating the law, being the Fair Work Act, and also in error as if the father denies the child prospective employment on the basis of union membership, then the father is also violating the law.
These grounds were properly conceded by the mother, and contain clear legal error by the primary judge as they contend. Perhaps that error did not affect Order 1(c), but I am content to assume that if there was an applicable award, then Order 1(c) was otiose, and to the extent a particular mode and frequency of payment stipulated, not sufficiently supported on the evidence. In this respect the father’s reference to international labour conventions is misguided; his reliance on s 344(a) of the Fair Work Act 2009 (Cth) is perhaps less so, but I need not consider it further.
Ground 4
This ground provides:
4.His Honour erred in making an order making the father financially responsible for an educational assessment of the child when a substantial NDIS fund, managed by the mother, exists for that purpose and His Honour made no order allowing me to apply to that fund.
The father sought the relevant assessment, albeit also extending to a revisiting of the earlier autism diagnosis. No cogent reason for the mother being compelled to pay for that – even if NDIS funding might have been available – is evident. It was perfectly permissible for the primary judge to require the father to pay for what he sought, and no error is thus established.
This ground fails.
Ground 5
This ground provides:
5.His Honour erred in making an order for an educational assessment for the child dependent on a date suitable to the mother, when the mother does not want the assessment for the child.
This ground is based upon twin assumptions that firstly, the mother would avail herself of the opportunity under Order 2 to attend the assessment, but secondly, ensure that she is unavailable for any such assessment so as to thwart it. The evidence did not require the primary judge to so conclude, even accepting that the mother opposed any order for the assessment.
Ground 5 fails.
Grounds 8, 9, 10 and 12
These grounds provide:
8.His Honour erred in fact by concluding the child was diagnosed with ADHD and a Specific Learning Disability at ASPECT, when no such diagnosis was made at ASPECT.
9.[The primary judge] erred by concluding he has ‘no qualms about ASPECT’s’ autism diagnosis of the child when evidence from a child psychiatrist and paediatrician, both diagnosing the child as NOT having autism, were not provided to ASPECT.
10.[The primary judge] erred by concluding he has ‘no qualms about ASPECT’s’ autism diagnosis of the child when the mother’s report of the child’s behaviour to the assessing clinician was in repeated conflict and polarised with evidence provided by way of Affidavit by both the mother and father and polarised with assessments by a child psychiatrist and paediatrician.
12.[The primary judge] erred in giving no weight to the impact of [a prescribed] medication on the child’s presentation during the Autism diagnostic interview, nor any weight to this interview being conducted on-line.
No error of the kind contended for by Ground 8 occurred. As to Grounds 9 and 10, it was open to the primary judge to accept ASPECT’s report. As to Ground 12, it is plain ASPECT was aware of the child’s use of a prescribed medication, and how the fact that the assessment was conducted on-line somehow impacted it adversely is unclear.
In any event, any error of the kind contended for by these grounds does not appear material to the primary judge’s provisional acceptance of the ASPECT report as to the child’s autism, which pre-dated the 24 June 2020 final consent orders, as did the contrary material relied upon by the father before the primary judge.
These grounds all fail.
Ground 13
This ground provides:
13.[The primary judge] erred in concluding the father does not ‘have sufficient continuous involvement with [the child] on a daily basis to provide additional information to [Mr C] relevant to autism symptomology’.
The conclusion challenged by this ground was well open on the evidence, and no error in that regard is established. Even if there was such error, in any event it did not compel, or really even speak to, an order for a reassessment of whether the child has autism.
Ground 14
This ground provides:
14.His Honour erred in only allowing the child to conduct a maximum of eight hours of employment per week not taking into account times such as school holiday periods.
To give context to this ground, before the primary judge, the father contended that the child should work part-time in his business for two hours on 2 or 3 days per week, whereas the mother proposed four hours per Sunday. Thus it is immediately apparent that the child is, under the orders, permitted to work in the business for more time than the father sought.
In any event, the father’s argument under this ground – that a person cannot legally be restricted in the amount of work they do – not only flies in the face of his own proposal, but also fails to grapple with the incidents of sole parental responsibility of a minor.
As to school holidays, it remains within the mother’s power under her sole parental responsibility to agree to the child then working further hours, and I do not read Order 2 of the primary judge’s orders as precluding that. If she refuses, then the father could further litigate this issue.
This ground fails.
Ground 15
This ground of appeal is as follows:
15.[The primary judge] erred in only allowing the mother, and not the father, to provide documentation for an educational assessment.
It is not at all clear that Order 2 precluded the father from providing material for the child’s educational assessment. Certainly the order does not say so, but rather it seems to assume that the mother is likely better placed to be able to provide the assessor with the required and specified material, and so it was an obligation which the order imposed on her, rather than some kind of exclusive privilege.
No error is established.
Ground 16
This ground provides:
16.[The primary judge] erred when concluding ‘[Mr C] does not have the expertise of ASPECT’ when ASPECT is an organisation not an individual and organisations cannot have expertise.
This challenge is a semantic one and fails.
CONCLUSION
Orders 1(b) and 1(c) shall be set aside. Given that no occasion for re-exercise or remitter thereupon arises in consequence, the appeal will be otherwise dismissed.
COSTS
Save for the conceded errors, the appeal failed. In that event the mother sought an order for her costs in the sum of $7,118.90. The father opposed such an order, although the basis of his doing so was somewhat opaque, seemingly based upon the continued operation of Orders 1(b) and (c) notwithstanding the mother’s concession.
Some small part of the mother’s costs probably arise from the primary judge’s error of law, which the father did not induce, but I accept she quickly conceded those errors, and yet the father persisted with the entirety of his appeal. The father ought pay the costs in the claimed sum within 28 days.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 22 May 2023
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