FITZPATRICK & POWER - [2010] FamCAFC 22

FAMILY COURT OF AUSTRALIA

FITZPATRICK & POWER

[2010] FamCAFC 22

FAMILY LAW – APPEAL – CHILDREN – RELOCATION – appeal from a Federal Magistrate decision - interim orders - where the Federal Magistrate made orders allowing the mother to relocate with the child from country New South Wales to a town in Queensland so that the mother could undertake an employment opportunity for a period of eighteen months – whether the Federal Magistrate erred in allowing the mother to relocate with the child due to insufficient uncontested evidence to support the conclusion that the relocation was in the best interest of the child – decision held to be within the Federal Magistrate’s discretion – appeal dismissed

FAMILY LAW – APPEAL – CHILDREN – with whom a child spends time - where the Federal Magistrate made orders for the father to spend time with the child on six occasions during the year – where the orders for the arrangement for the father to spend tine with the child differ from the reasons in the Federal Magistrate’s judgment – appeal allowed – re-exercise of discretion – orders amended

FAMILY LAW – APPEAL – CHILDREN – PARENTAL RESPONSIBILITY – where the Federal Magistrate ordered on an interim basis that the mother have sole parental responsibility for the child – whether the Federal Magistrate erred in making the order as no interim order for sole parental responsibility was sought by either party - where the father challenged the order on the grounds of procedural fairness – appeal allowed – re-exercise of discretion – order amended

FAMILY LAW – APPEAL – COSTS – costs certificates granted to the parties

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981

Chappell & Chappell (2008) FLC 93-382
Goode and Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513
Newlands and Newlands (2007) 37 Fam LR 103

APPELLANT:

Mr Fitzpatrick

RESPONDENT:

Ms Power

FILE NUMBER:

CAC

302

2009

APPEAL NUMBER:

103

2009

DATE DELIVERED:

22 February 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Bryant CJ, Finn & Ryan JJ

HEARING DATE:

1 February 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 September 2009

LOWER COURT MNC:

[2009] FMCA Fam 1007

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Godtschalk

SOLICITOR FOR THE APPELLANT:

Ms Orman

COUNSEL FOR THE RESPONDENT:

Mr Howard

SOLICITOR FOR THE RESPONDENT:

Farrar, Gesini & Dunn

Orders

The appeal be allowed.
Order 2 of the Orders dated 2 September 2009 be varied to read as follows:
(a)In exercising her parental responsibility, the mother is to keep the father informed of any significant medical or other issue involving the child.
Paragraphs (a), (b) and (c) of Order 5 of the Orders dated 2 September 2009 be varied to read as follows:
(a)The mother will travel to the [Y] district for all periods referred to in paragraphs (a) and (b) of Order 4 unless the father advises no less than 5 days prior to the relevant period that he will be unable to spend time with the child during that period.
(b)Save as provided in paragraph (c) of this Order, the mother and the child will travel to the [Y] district for the periods of time pursuant to Order 4 (a) and (b) at the mother’s cost.
(c)The father will pay (or if necessary in the circumstances, reimburse) the costs of the mother and child for their travel to the [Y] district pursuant to Order 4(a) for the first and third Queensland school holiday periods.
That there be no order in relation to the costs of the appeal.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Fitzpatrick & Power is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 103 of 2009
File Number: CAC 302 of 2009

MR FITZPATRICK

Appellant

And

MS POWER

Respondent

REASONS FOR JUDGMENT

introduction and background

This is an appeal by Mr Fitzpatrick (“the father”) against interim parenting orders made by Neville FM in relation to the child of his relationship with Ms Power (“the mother”). (We will refer to the child as “X”.)
We will explain the orders which are the subject of the appeal and also the issues raised by the appeal after making some reference to the history of the case.
The father and the mother had lived together for approximately five months between September 2007 and February 2008 in a small country town in New South Wales. (We will refer where necessary to that town as “Y”). Following their separation, the child X was born in October 2008.
A little over three months later on 23 February 2009 the father filed an application in the Federal Magistrates Court seeking final orders which included orders that X should “live with the parties on a weekly shared care basis” and that the parties “share joint parental responsibility”.
On 24 April 2009 the mother filed a response seeking both interim and final orders, which would provide that the child live with her, and that twice weekly he spend thirty minutes, increasing to one hour after six months, with the father (and with such arrangements to be reviewed after a further six months). In addition the mother sought as a final order that she have “sole parental responsibility” for the child.
On 13 May 2009 Neville FM made interim orders by consent which provided for the child to live with the mother and spend time with the father essentially according to the arrangement sought by the mother in her response filed on 24 April 2009. But no order was made in relation to parental responsibility.
On 19 August 2009 the mother filed an application in a case again seeking an order that the child live with her, but also seeking an interim order that she “be at liberty to relocate with the child to Queensland.” She also sought orders that the child spend five days with the father (being 9am to 6pm on each day) in each of the four Queensland school holiday periods, with the mother travelling to the father’s residence at her own expense for two of those four periods, and with the father travelling to the mother’s residence at his own cost on two of those four periods. No interim order was sought in relation to parental responsibility.
On 25 August 2009 the father filed a response to the mother’s application in a case in which he sought an order that the mother be restrained from relocating to Queensland with the child. He also sought orders that the parties “share joint parental responsibility”, that the child live with the mother but spend time with him on a gradually increasing basis (until an alternate weekend – half school holiday arrangement was reached.) Virtually identical orders were sought by the father in a minute of orders sought filed on his behalf on 31 August 2009.
The mother’s application to relocate to Queensland was heard by Neville FM very late in the afternoon of 1 September 2009. Both parties were represented with the application being dealt with “on the papers” (that is, on the basis of affidavit material and oral submissions, but no oral evidence). At the end of the hearing his Honour indicated that he would give judgment at 4pm the following afternoon.
It appears from the reasons for judgment which Neville FM published on 24 September 2009, that on the day following the hearing (that is, on 2 September 2009) his Honour delivered ex tempore reasons for judgment in which he reserved the right to provide revised reasons in the event that they were required.
Having delivered his ex tempore reasons his Honour did not immediately make orders to give effect to those reasons. Rather he asked the legal representatives of the parties to prepare orders to give effect to what he had said and that he would then make orders in chambers. (We do not have available to us a transcript of the ex tempore judgment delivered, or of any of the proceedings on 2 September 2009.)
Material provided to us by consent at the hearing of the appeal reveals that on 3 September 2009 (being the day following his Honour’s ex tempore judgment) and apparently following a request from the father’s solicitor to his Honour’s associate, an email was sent by the associate to the father’s solicitor, which was copied to the mother’s solicitor, and which relevantly for present purposes, read:
I have clarified with his Honour the orders [sic] arising from yesterday’s judgment, in relation to the father’s time with the children. These orders are:
(i)The mother is to provide the child to spend time with the father on 6 occasions prior to the of [sic] family conference in March 2010;
(ii)The mother is to undertake the travel involved on 4 of those occasions and the father is to undertake the travel on the other 2 occasions;
(iii)The father’s time is to be supervised, alternating on each occasion between Aunt [D] and the parental grandmother or as otherwise agreed between the parties;
(iv)The father’s time is to be for daytime periods only (noting that these arrangements will be reviewed at the family conference, with a view to gradually increasing the father’s time to include overnight periods);
(v)The supervisor is to check the father’s sobriety prior to him spending time with the child in a general sense, but the requirement for breath testing is dispensed with;
(vi)The time the father spends with the child in accordance with the orders is to be arranged on dates and times agreed between the parties. The periods the child spends with the father should attempt to coincide with the time the child’s half siblings are spending time with the father.
The orders also provide for [the mother] to return to the [the area in New South Wales in which the parties had been living] at the conclusion of her contract of employment.
I look forward to receiving engrossed orders from the parties. In the event that dispute remains [sic], or further clarification is required from the Court, it is requested that each party forward a written proposal Chambers [sic] setting out their client’s orders sought in respect of disputed matters. Orders will then be made in Chambers by [his Honour] following the receipt of those proposals.
On 8 September 2009 the mother’s solicitor sent an email to his Honour’s associate in which he advised that the solicitors for the parties had been unable to reach agreement “as to the content of the orders made by his Honour on 2 September 2009”. (We observe here that counsel who appeared before us agreed that no orders had in fact been made on 2 September 2009). Attached to that email were drafts of the orders as proposed by each side. The solicitor concluded his email by saying that if his Honour needed “any submissions in relation to any of the items we are happy to provide them.”
At some time apparently prior to 15 September 2009, a further draft of the father’s proposed form of orders was sent to his Honour’s chambers by the father’s solicitor.
It is unnecessary for us to set out the content of any of the various draft forms of orders which were submitted to his Honour.
It appears common ground that on 15 September 2009 an engrossment of the Orders, which was dated 2 September 2009, was issued from his Honour’s chambers. The Orders in that engrossment were as follows:
(1)The child [X] born […] October 2008 (“the child”) live with the Mother.
(2)The Mother have sole parental responsibility for the child. In exercising her parental responsibility, the Mother is to keep the Father informed of any significant medical or other issue involving the child.
(3)Subject to Order 7 below, the mother be at liberty to relocate the residence of the child to Queensland forthwith.
(4)The child spend time with the Father as follows:
(a)On 4 occasions each year for 6 days in the first week of each Queensland school holiday period for 3 or more periods of 2 hours between 9:00am and 6:00pm each day for the first two occasions and then for 3 or more periods of 3 hours between 9:00am and 6:00pm for the second two occasions;
(b)On a further 2 occasions before the family conference in March 2010 for 5 days on each occasion and for 3 or more periods of 4 hours between 9:00am and 6:00pm each day. The dates and time for these periods shall be as agreed between the parties; and
(c)Such further or alternative times as the parties may agree from time to time.
(5)That for the purposes of Order 4:
(a)The Mother will travel to the [relevant New South Wales] district for the first week of the Term 2 holidays and for one week during the Term 4 Queensland school holidays, at her own cost, unless the Father advises no less than 5 days prior to the relevant period that he will be unable to spend time with the child during that period;
(b)The Mother will travel to the [relevant New South Wales] district for the periods of time pursuant to Order 4(a) at her own cost.
(c)The Father will travel to the district where the Mother is then living for the first week of the Term 1 and Term 3 Queensland school holidays, at his own cost;
(d)The Father’s time spent with the child is to include his other children, being [A] born […] 1997, [B] born […] 2000 and [C] born […] 2001.
(e)Unless otherwise agreed between the parties, the time that the child is to spend with the Father shall be supervised by either or both of [Ms C] or [Ms D] (“the supervisors”).
(f)The time that the Father is to spend with the child shall, unless the parties otherwise agree, alternate between the homes of [Ms D] and [Ms C].
(g)The Mother, if she chooses, may be present in the house or locality where the child is spending time with the Father but must remain in another room or apart from the Father and child unless she is required to calm the child if he is distressed;
(h)Prior to the commencement of each period of time the child is to spend with the Father, the supervisor must check the sobriety of the Father. If the Father is intoxicated then that period of time shall not occur. If the Father disputes that he is intoxicated then he may choose to submit to a breath test, and if the reading is less than 0.02%, then the period of time shall occur. The mother may be present at the commencement of each period of time and during any sobriety test.
(6)The Father be and is hereby restrained from consuming any alcohol within 6 hours of the time he is to commence spending time with the child, or during the time he spends with the child.
(7)Orders 2, 3, 4, 5, 6, 7 and 11 of the Orders made on 13 May 2009 are discharged.
(8)Upon the completion of her contract with [W Organisation] the Mother return the residence of the child to within 60 kilometres of [the New South Wales town, where the parties had been living]. It is noted that the Mother’s contract of employment is for 18 months.
(9)The Mother notify the Father forthwith of any serious illness or injury affecting the child and be at liberty to contact any Doctor or hospital treating the child to obtain information.
(10)Pursuant to s. 62G of the Family Law Act 1975 the parties together with the child attend a family conference with a Family Consultant of the Federal Magistrates Court and Family Court of Australia to endeavour to resolve the issues in this case. This will involve the parties together with the child attending at the Federal Magistrates Court at Canberra on 1 March 2010 at 10:00am. This conference will be reportable and if the matter does not resolve the Family Consultant is requested to prepare a family conference report.
(11)The matter be adjourned to 29 March 2010 at 10:30am.
Revised and apparently expanded reasons for judgment were then published by his Honour on 24 September 2009 (according to the date of the associate’s certificate on those reasons.) The cover page of those revised reasons contained orders in the same terms as the Orders contained in the engrossment dated 2 September 2009 although there is some variation in the numbering of the orders in the two documents.
A final footnote in the revised reasons reveals that his Honour had by the time of their publication refused an application for a stay of his Orders.

scope of the appeal

This appeal is, at least formally, against all the Orders contained in the engrossment dated 2 September 2009. However, having regard to the content of the three substantive grounds of the appeal (contained in the amended notice of appeal, dated 2 December 2009) and to the submissions of counsel for the father in support of those grounds, the appeal can be seen as being directed to:
·the order permitting the mother to move the residence of the child to Queensland for a period of eighteen months;
·the practical arrangements for the child to spend time with the father; and
·the order conferring sole parental responsibility on the mother.

the order permitting the temporary move to queensland

The essential basis of the father’s challenge to his Honour’s Order which permitted the mother to move X to Queensland for a period of eighteen months, was that there was not sufficient uncontested evidence to support a conclusion that the move would be in X’s best interest having regard to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), particularly those provisions which emphasise the benefit to the child of having a meaningful relationship with both parents.
The paragraphs in his reasons for judgment in which his Honour can be seen as weighing up the advantages and disadvantages of the mother’s proposal to move the child to Queensland for eighteen months are as follows:
10.Urgency of Application: There is some urgency in dealing with the application because [the mother] has received a job offer from [W Organisation]. That job is located at [a central Queensland] branch of [W Organisation]. The letter of offer from [W Organisation] and the employment agreement were tendered at the interim hearing yesterday afternoon. The letter is dated 20 August 2009. It is clear that some of the details in it vary some of the information provided by [the mother] in her affidavit material provided to the Court. Somewhat curiously the Court was advised by Mr Howard, for the mother, that his client (as did he) saw this letter for the first time only in Court yesterday. Presumably, indeed doubtless, the details of the job offer were conveyed to her orally before that.
11.Also somewhat curiously, as was noted by Ms Godtschalk, Counsel for [the father], was the contention by [the mother] in her affidavit material that the application was urgent because, although on maternity leave, she would need to give adequate notice to her employer who is [W Organisation]. It was not explained why she should need to give notice to her current employer when it is that same employer who was the one offering her the new job. Perhaps I missed the explanation.
12.In any event, it is clear that she is required to commence this new employment in Queensland on 11 September. The contract is stated to be for 18 months. Currently she works part-time or rather more casually in [Y] and for quite limited income. Although her new position will not necessarily put her into a very high income bracket, nonetheless, it will offer a range of opportunities that she does not otherwise currently have, especially in such a small country town.
13.Two of the few things about which there is agreement is that first, because of his young age, being 10 months, [X] is dependent on his Mother who has been, since his birth, his primary carer. Secondly, for reasons that are otherwise contested, it is also agreed that there is little, if any, relationship between [the father] and his baby son at the moment. This is also to say that the relationship between Father and son needs to be established.
…
20.Formally I incorporate ss.60B, 60CA, 60CC (2) and (3) into these reasons.
21.I will deal firstly with s.60CC(3) before dealing with s.61DA(3) and s.65DAA. Two things should be noted, although I have already referred to them. First, we are concerned here with a very young child who, understandably, remains totally dependent on his Mother. Secondly, it is agreed or conceded that the Father has spent very little time with [X] since his birth. It is seriously contested why this was or is so. From the Father's perspective, it is because he is prevented from doing so by [the mother]. From her perspective, it is because [the father] either does not turn up or turns up having [obviously] consumed significant amounts of alcohol.
…
23.First, obviously, there are no views to consider that have been expressed by the child in terms of the nature of the relationship of the child with each of the child's parents. [X] is a young baby and, as I have already remarked a number of times, he is dependent on his Mother. There is limited, if any, relationship with [the father]. The relationship between [X] and [the father] needs to be established. The central issue to determine is how this can best occur.
24.In terms of [X’s] relationship with other persons, including grandparents, there is limited evidence. [The father’s] Mother confirms that she has a strained relationship with [X’s] Mother but says that she wishes to see him otherwise. Similarly there is the assertion that [the father’s] three other children, who are in the age range of approximately 7 to 10, love [X] and wish to spend time with him. Given that they will move to Canberra either later this year or early next, and that they spend time with their Father every alternate week, the opportunities they will have to spend time with [X] will necessarily, in any event, be limited.
25.As to the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent, even on the limited and untested evidence before the Court, it is clear that there are significant strains between the parents. At this stage, this does not auger well for much in the way of cooperation and promotion of a relationship with the other parent. Moreover, because of [X’s] young age, it will be difficult for either parent to promote the other parent's relationship with their son other than by facilitating or not impeding some basic practical matters that would make time between [X] and his Father, for example, less confrontational and more nurturing.
26.In terms of the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents, together with the matters that are addressed in sub-para.(e) to which I will come to shortly, this is patently the biggest issue before the Court. On one view, if [the mother] is permitted to relocate, on the current evidence, it would likely make little difference to [X’s] relationship with his Father.
27.I accept Ms Godtschalk's submissions on behalf of [the father] that it is generally understood that very small children require frequent, albeit short periods of time, in order to bond with a parent or other significant person. In my view, the orders that I propose will facilitate, at least the beginning of a relationship between [the father] and his son. It will require careful monitoring, and, therefore, appropriate orders in this regard are essential.
28.In terms of the practical difficulty and expense of [X] spending time with and communicating with his Father, and the other matters canvassed in sub-para.(e), the logistics here involved in [the mother’s] application to relocate pose significant issues for [the father’s] time with his son, but so too does [the father’s] drinking about which there is significant evidence. Some of his drinking is social. Some of it clearly is not. Likewise, [the father’s] work responsibilities pose limitations on his time with [X] as do, to a limited extent, his responsibilities to his other children.
…
37.In any event, by way of summary, the limited and untested facts before the Court confirm that [the mother] has been and remains [X’s] primary carer. [The father] currently has little or no relationship with his 10 month old son, [X]. [The father] has some considered and regular use of alcohol which, in the not too distant past, has caused him and others a range of difficulties.
38.[The mother] has the opportunity to undertake secure work in a very different environment which is a very significant distance removed from a very small community in country New South Wales. In my view she should have that opportunity. That opportunity brings with it two significant responsibilities. First, [the mother] must ensure that she returns to the [Y] area, rather more regularly than I am sure she would otherwise wish, to facilitate time between [X] and his Father. She must bear the cost of three-quarters of those trips: that is, four out of the six trips proposed. Secondly, in the absence of written agreement with [the father], pursuant to the principles established by the Full Court in Sampson v Hartnett (No.10) [footnote omitted], [the mother] must return to that same region, or within 60 kilometres of [Y], immediately upon the conclusion of her contract with [W Organisation]. The parties are to attend upon a Family Consultant of the Court in early March 2010 with [X]. The matter will be listed before me later that month. The dates and times for the family conference and the mention before me are to be advised.

Despite considerable debate between counsel for each party before us as to what evidence was contested and what uncontested, it was not established to our satisfaction that any of the findings of fact contained in the above paragraphs were not open to his Honour. Accordingly, the challenge to the decision that the mother should be permitted to take the child to Queensland becomes one of weight only, with the essential matters to be weighed being the benefits to the mother of the move to Queensland against the need for the child to develop a meaningful relationship with his father. As will have been seen above his Honour comprehensively weighed those matters.
Having regard to the principles which limit appellate interference with discretionary judgments on matters of weight only (Gronow v Gronow (1979) 144 CLR 513), our interference with his Honour’s decision to permit the child to be moved to Queensland for eighteen months would not be justified.

the orders for the periods the child is to spend with the father

It will be recalled that the engrossment of the Orders dated 2 September 2009, provided in Order 4 for the father to spend time with the child for periods of two (or three) hours on six days in each of the four Queensland school holiday periods, and on two further occasions for periods of four hours on five days, those two occasions being at the time of the Family Conference to be held on 1 March 2010 (see Order 10 of the engrossment dated 2 September 2009)
The engrossment dated the 2 September 2009 then provided in Order 5, that for two of the Queensland school holiday periods the mother would bring the child to the area of New South Wales where the father lives at her own cost and that for the other two of the Queensland holiday periods, the father would travel at his own cost to the Queensland area where the mother and child would be living.
Order 5 then went on to provide in paragraph (d) that the father’s time with the child is to include his other three children, and in paragraphs (e) and (f) that unless otherwise agreed, the father’s time with the child is to be supervised by either or both the child’s paternal grandmother (Ms C) or his maternal aunt (Ms D) and that such time is to alternate between the homes of Ms C and Ms D.
Therefore, on their face his Honour’s Orders would seem to provide that even though the father must travel to Queensland for two of the six periods which he is to spend with the child, he is to be accompanied at such periods with his three children (all of whom live in New South Wales), and further, that such times are to be supervised by Ms C and Ms D (who also live in New South Wales), and at their homes.
In challenging the practicability of such arrangements, counsel for the father placed particular reliance on the father’s uncontested evidence that he could not afford to travel to Queensland in paragraphs 100 – 104 of his affidavit filed on 25 August 2009.
In his revised reasons for judgment his Honour explained the arrangements which he proposed for the father to spend time with the child in the following way:
28.In terms of the practical difficulty and expense of [X] spending time with and communicating with his Father, and the other matters canvassed in sub-para.(e), the logistics here involved in [the mother’s] application to relocate pose significant issues for [the father’s] time with his son, but so too does [the father’s] drinking about which there is significant evidence. Some of his drinking is social. Some of it clearly is not. Likewise, [the father’s] work responsibilities pose limitations on his time with [X] as do, to a limited extent, his responsibilities to his other children.
29.Because it is her application, if she is permitted to move, in my view, most of the burden of travel in bringing [X] to spend time with his Father should be borne by [the mother]. As proposed, as I understand it, [the mother] proposes that [the father] spend time with [X] four times per year in the school holidays, the cost of that time essentially to be shared between them. In my view, she should travel to the area of [the father’s] residence four times per year to coincide with the school holidays, as well as two other times within the first six months of her time in Queensland, on dates and times to be agreed.
…
38.[The mother] has the opportunity to undertake secure work in a very different environment which is a very significant distance removed from a very small community in country New South Wales. In my view she should have that opportunity. That opportunity brings with it two significant responsibilities. First, [the mother] must ensure that she returns to the [Y] area, rather more regularly than I am sure she would otherwise wish, to facilitate time between [X] and his Father. She must bear the cost of three-quarters of those trips: that is, four out of the six trips proposed. Secondly, in the absence of written agreement with [the father], pursuant to the principles established by the Full Court in Sampson v Hartnett (No.10) [footnote omitted], [the mother] must return to that same region, or within 60 kilometres of [Y], immediately upon the conclusion of her contract with [W Organisation]. The parties are to attend upon a Family Consultant of the Court in early March 2010 with [X]. The matter will be listed before me later that month. The dates and times for the family conference and the mention before me are to be advised.
39.In relation to the time that [X] spends with his Father, until after we all have the benefit of a family report, it should remain supervised. That is to be by either, and alternating between, the paternal Grandmother and a nominated maternal aunt, Mrs [D], as nominated by [the mother] or as otherwise agreed between the parties. The supervisors are to check [the father’s] sobriety, and his well-being more generally, to ensure his capacity to spend time with [X]. Formally, given the order in relation to supervision, until further order, I dispense with the requirement for him to be breathalysed before spending time with [X]. As well, the time that [X] spends with his Father should also, as far as humanly possible, be calibrated to include some time that involves [the father’s] other children being [X’s] half siblings.
It appears from paragraph 28 of his Honour’s reasons that he intended that all the travel for the child to spend time with the father, which was to be on six occasions, should be undertaken by the mother, but with the costs to be shared. It then appears from paragraph 38 that for the purpose of sharing the costs, the mother was to pay for four of the six proposed trips and the father two of those trips.
Thus the arrangement proposed in his Honour’s reasons was that all time between the father and the child was to occur in New South Wales. This proposed arrangement makes sense of his Honour’s requirement in paragraph 39 of his reasons that such time be supervised by relatives resident in the father’s home town, and by his Honour’s suggestion (but not absolute requirement) that the father’s other three children be with him when he spends time with X.
It appears to us that the confusion regarding the practical arrangements relating to the time which the father and child are to spend together, may well have arisen because of the content of the email sent by his Honour’s associate on 3 September 2009. Namely, having said that there was to be contact on six occasions, the email went on to state that the mother was “to undertake the travel involved on four of those occasions” and the father “to undertake travel involved on two occasions.”
It is possible that it was intended to say in the email that the father was “to undertake the costs of the travel on the other two occasions.” But it is of course impossible to know for certain. Further confusion was no doubt caused by the varying forms of the draft orders sent to his Honour by the parties.
Given the uncertain status of the email of 3 September 2009 (which is an issue we do not propose to explore), we propose to proceed on the basis that his Honour’s real intentions are to be found in his revised reasons.
As the engrossed Orders dated 2 September 2009 do not accord with his Honour’s revised reasons, we propose to allow the appeal in relation to Order 5 of those Orders and to amend paragraph (a), (b) and (c) of Order 5 to read:
(a)The mother will travel to the [Y] district for all periods referred to in paragraph (a) and (b) of Order 4 unless the father advises no less than 5 days prior to the relevant period that he will be unable to spend time with the child during that period.
(b)Save as provided in paragraph (c) of this Order, the mother and the child will travel to the [Y] district for the periods of time pursuant to Order 4 (a) and (b) at the mother’s cost.
(c)The father will pay (or if necessary in the circumstances, re-reimburse) the costs of the mother and child for their travel to the [Y] district pursuant to Order 4(a) for the first and third Queensland school holiday period.
We understood the solicitor for the mother to concede this second aspect of the appeal just discussed.

the order in favour of the mother for sole parental responsibility

Again it will be recalled that Order 2 of the engrossed Orders dated 2 September 2009 provided for the mother to have “sole parental responsibility for the child” (although the order also provided that in exercising that responsibility, the mother was to keep the father informed of any significant medical or other issues involving the child.)
The father challenges this Order on procedural fairness grounds, being that it was not an order sought by either party at the hearing before his Honour, nor was it an order in relation to which the father was given an opportunity to be heard. It is further asserted on behalf of the father that it was only the father who had sought any order regarding parental responsibility and that was that the parties “share joint parental responsibility.” We assume that by that order the father intended that the “parental responsibility” which each parent has for a child pursuant to s 61C should be continued. The mother did not formally seek any interim order, although in written submissions provided to his Honour on her behalf for purposes of the hearing on 1 September 2009, the following appears:
7. The father seeks an Order for equal shared parental responsibility on an interim basis (also noting that the proposed Order is not drafted in accordance with the legislation). In our submission the Court would not make an Order for equal shared parental responsibility on an interim basis because of the number of significant disputed facts there are in the case. We note however the mother makes allegations of violence against the father (paragraph 52 in her Affidavit sworn 24 April 2009) and alleges excessive alcohol consumption and poor behaviour of the father whilst he is intoxicated.
The issue of parental responsibility appears not to have been raised at the hearing on 1 September 2009. Also there was no reference to it in the email from his Honour’s chambers on 3 September 2009 (although that email can be read as being limited to issues relating to the time which the child was to spend with the father), nor in any of the draft orders submitted to his Honour after that email was sent.
In his revised reasons for judgment (issued on 24 September 2009) his Honour said:
40.In relation to the operation of s.61DA and the presumption of equal shared parental responsibility, the circumstances militate against such an order at this stage. I do not see that it would be in [X’s] best interests, particularly given his age. That said, [the mother] is to keep [the father] informed about any significant health or other issues involving their son.
41.In the light of the matters I have canvassed and the orders I have made, s.65DAA has no operation at this time.
It may assist the reader if we here set out s 61DA given his Honour’s reference to it. We will also set out the first and second sub-sections of s 65DAA.
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(2)If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
It is unclear exactly what his Honour meant in paragraph 40 of his revised reasons having regard to the application which was before him, the provisions of s 61C, s 61DA, and s 65DAA, and the endeavours of the Full Court in cases such as (Goode and Goode (2006) FLC 93-286; Newlands and Newlands (2007) 37 Fam LR 103; and Chappell & Chappell (2008) FLC 93-382) to explain the somewhat complex concepts contained in the provisions.
We do not propose to repeat or expand on what has been said in the authorities just mentioned. We would only say that we consider that procedural fairness considerations would have permitted his Honour to do no more in the circumstances of this case than leave intact, so to speak, the joint parental responsibility which each parent had by virtue of s 61C, but with a requirement for the mother to keep the father informed of significant issues relating to the child given the distance that the child would be living from the father for the next eighteen months.
We understood from the submissions of counsel for the father that this was indeed what the father sought, and that he did so for the purpose of maintaining a role in the child’s life, he did not wish to avail of the presumption in s 61DA and “the legislative pathway” that would then follow in s 65DAA.
So far as the mother was concerned, we understood her counsel to concede that at no time had the mother sought an interim order for sole parental responsibility, and that it would be open to us to allow the appeal against his Honour’s Order 2 of 2 September 2009 and to delete the first sentence of that Order which refers to “sole parental responsibility.” This we propose to do.

Conclusion

In summary, therefore, the appeal will succeed in so far as it is directed to the provision in Order 2 of the Orders of 2 September 2009 for the mother to have sole parental responsibility and also to the provision in Order 5 of those Orders, for the father to travel to Queensland in order to spend time with the child. We will amend both those Orders as explained above.
The appeal will not succeed in so far as it is directed to Order 3 which permits the mother to remove the child to Queensland for an eighteen month period.
Finally, we observe in concluding that there is great value in orders being pronounced at the time a decision is given. However, if it be necessary for the parties, or indeed the Court, to prepare orders in draft form and a dispute then arises regarding such draft orders, a re-opening of the hearing, if only briefly, is likely to produce a more satisfactory outcome for all concerned. Written communication between litigants (or their legal representatives) and judicial chambers can often lead to misunderstandings of the type which occurred in this case. Save in cases where there are a signed minute of consent orders, orders are best pronounced on the record in court with the parties or their representatives having an opportunity to listen (if necessary by telephone).

costs

Given the success in significant parts of the appeal and having regard to the submissions made on behalf of the parties in relation to the costs of the appeal, we propose that there should be no order for costs in relation to the appeal and that the parties should receive certificates under the Federal Proceedings (Costs) Act 1981 in respect of those costs.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 22 February 2010