Franklyn & Franklyn
[2019] FamCAFC 256
•23 December 2019
FAMILY COURT OF AUSTRALIA
| FRANKLYN & FRANKLYN | [2019] FamCAFC 256 |
| FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the subject child is the biological child of the parties – Where the mother appeals from interim orders relating to the subject child, following her unilateral relocation interstate with the subject child and her older child from a previous relationship – Where the primary judge ordered the mother and children to return and live in the region from which they moved to enable the subject child to spend unsupervised time with the father for five hours each Saturday – Where the primary judge made incidental orders stipulating the changeover location and requiring the mother to inform the Court and the Independent Children’s Lawyer of the children’s new residence once established in the original region – Where the appeal was resisted by the father, but not ultimately by the Independent Children’s Lawyer – Where there are identifiable legal errors which were not the subject of any discrete ground of appeal but affect consideration of the grounds more generally – Where the primary judge failed to consider two filed affidavits expressly relied on by the mother – Where the primary judge gave no consideration, or alternatively insufficient weight, to aspects of the evidence – Where the principles in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 are considered – Where there was no reason for the primary judge to deny the mother her freedom of choice about her place of residence – Where inadequate reasons were given by the primary judge for ordering the mother to relocate her residence with the children back to the original region – Where the mother’s assertion that insufficient reasons were given by the primary judge for the finding made about “unacceptable risk” is rejected – Where the primary judge failed to properly consider, by wrongly discounting the weight of, the mother’s evidence adduced in support of the contention of “unacceptable risk” of harm to the subject child – Where it was open for the primary judge to accept opinion evidence from the Family Consultant at the interim hearing even though it remained untested by cross-examination – Where the appeal succeeds due to material errors of law – Appeal allowed – Appealed orders set aside and remitted to the Federal Circuit Court of Australia for re-hearing. FAMILY LAW – APPEAL – COSTS – Where the appeal succeeded on errors of law – Where no order for costs was sought – Where the parties sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) – Where costs certificates were granted to the parties – Where the Independent Children’s Lawyer is ineligible to receive costs certificates. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65AA, 94AA Family Law Regulations 1984 (Cth) reg 15A |
| AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 DeLuca & Farnham [2019] FamCAFC 100 Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 Sampson and Hartnett (No.10) (2007) FLC 93-350; [2007] FamCA 1365 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 U v U (2002) 211 CLR 238; [2002] HCA 36 Yates & Yates (Independent Children’s Lawyer – Costs) [2012] FamCAFC 219 |
| APPELLANT: | Ms Franklyn |
| RESPONDENT: | Mr Franklyn |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | DUC | 63 | of | 2018 |
| APPEAL NUMBER: | EA | 85 | of | 2019 |
| DATE DELIVERED: | 23 December 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts, Austin & Rees JJ |
| HEARING DATE: | 13 December 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 2365 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr M. Drysdale |
| SOLICITOR FOR THE APPELLANT: | KLM Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr S. Rugendyke |
| SOLICITOR FOR THE RESPONDENT: | Lee Dalton & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr C. Lawrence |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The appeal is allowed.
Orders 1, 4, 5, 6 and 7 made on 5 September 2019 are set aside.
Subject to the continuing operation of Orders 2, 3 and 9 made on 5 September 2019, the parties’ applications for interim orders under Part VII of the Family Law Act 1975 (Cth) are remitted to the Federal Circuit Court of Australia at Parramatta for re-hearing.
The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 in respect of the costs incurred by her in relation to the appeal.
The respondent is granted a costs certificate pursuant to the provisions of
s 6 of the Federal Proceedings (Costs) Act 1981 (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 in respect of the costs incurred by him in relation to the appeal.
The appellant and the respondent are granted costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant and the respondent in respect of the costs incurred by them in relation to the re-hearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Franklyn & Franklyn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 85 of 2019
File Number: DUC 63 of 2018
| Ms Franklyn |
Appellant
And
| Mr Franklyn |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
By an Amended Notice of Appeal filed on 20 November 2019 the appellant mother appeals from interim parenting orders made by a judge of the Federal Circuit Court of Australia (“Federal Circuit Court”) on 5 September 2019 in respect of her youngest child.
The mother has two children, the eldest being from a former relationship, the biological father of whom is deceased. There was no controversy over the orders made for the eldest child to only spend time with the respondent father when the eldest child wishes and for both children to live with the mother. Such orders were not the subject of the appeal.
Relevantly, the primary judge ordered the youngest child to spend unsupervised time with the father for five hours each Saturday (Order 4) and, to facilitate the implementation of that arrangement, ordered the mother to relocate the children’s residence back to an area in central west New South Wales (“NSW”) from south eastern Queensland, to where she had moved with the children some months before without the father’s knowledge or consent (Order 5). Incidental orders required the mother to confidentially inform the Court and the Independent Children’s Lawyer of her new residence, once re-established in NSW (Order 6), and specified the changeover venues (Order 7). Those orders were all the subject of the appeal.
The appeal was resisted by the father and, initially but not ultimately, by the Independent Children’s Lawyer. For the reasons which follow, the appeal must succeed due to material errors of law.
Background
The youngest child was born in 2015 and was four years of age when the appealed orders were made.
The parties married in 2014 and separated in October 2017.
Upon separation, the mother and both children vacated the family farm in central west NSW. The mother did not disclose to the father the places where she and the children thereafter lived, but it was in and around Town G and Town H, within reasonable driving distance of the family farm (at [29], [78]).
At the mother’s request, the police applied to a State court for an interim family violence order against the father, which order issued in November 2017. Even if the father knew how to contact the mother to arrange some form of contact with the children, the interim family violence order prevented him from so doing. The mother was apparently intent on keeping the children from him, ostensibly for their protection.
Dissatisfied with that state of affairs, the father contested the family violence proceedings in the State court and separately commenced proceedings for parenting orders in the Federal Circuit Court in February 2018. The parties’ competing applications for interim parenting orders were entertained on 8 May 2018, when the parties consented to orders which provided for the children to live with the mother and for both children to spend time with the father for two hours each fortnight under supervision at a contact centre in Town H. Several weeks later, on 25 May 2018, the State court at Town F dismissed the police application to convert the State interim family violence order into a final order and the interim order was discharged.
The children had spent little, if any, time with the father following the parties’ separation in October 2017 until the interim parenting orders were made in May 2018. Although the youngest child then began spending time with the father in accordance with those orders, the eldest child did not.
In September 2018 the father sought revised interim parenting orders, as did the mother in October 2018. Their respective applications were listed before the Federal Circuit Court at Dubbo in March 2019, but the hearing was later vacated and instead re-listed in June 2019. At the hearing in June 2019, in response to an enquiry whether she would submit to an injunction restraining her relocation with the children away from central west NSW, as the father sought, the mother revealed she and the children had already moved to south eastern Queensland and were no longer living in central west NSW (at [29], [43]).
In consequence of that revelation, the interim parenting hearing was adjourned and re-listed at Parramatta in August 2019, with further procedural orders made. At the interim hearing in August 2019, the primary judge was confronted with three very different proposals.
The father sought orders for both children to live with him, for him to have sole parental responsibility for them, and for them to spend supervised time with the mother at a contact centre in Town I for two hours each fortnight. His case was the mother deliberately thwarted the children’s relationships with him and, without the reversal of their residence, their relationships with him would be entirely lost and they would thereby be emotionally harmed. Whilst the primary judge mistook the nature of the orders sought by the father (at [14]), the misunderstanding does not affect the appeal. In submissions, the father’s counsel said he supported the Independent Children’s Lawyer’s proposal for an order compelling the mother to relocate with the children back to NSW if the primary judge was unprepared to reverse the children’s residence.
The mother sought that the children live with her and that only the youngest child spend supervised time with the father at the same contact centre in Town I for two hours each fortnight. In effect, those orders reflected the interim orders she proposed in her Amended Application in Case filed in October 2018 and represented her wish to adhere to the interim consent orders made in May 2018, but excluding the eldest child. The mother wanted to remain living with the children in south eastern Queensland and she intended to fly the youngest child to spend supervised time with the father each fortnight (at [16]). Her case was that the father posed an unacceptable risk of harm to the youngest child and it was important to keep supervision in place until the controversial evidence was tested at final trial.
The Independent Children’s Lawyer proposed orders compelling the mother to return with the children to live within 200 kilometres of the township near which the father lived and, in the event she complied, orders requiring both children to spend unsupervised time with the father. In the event of the mother’s failure to relocate back to central west NSW, the Independent Children’s Lawyer instead sought orders for both children to live with the father and to spend only supervised time with the mother at the same contact centre in Town I once a week for the first month and thereafter for two hours each fortnight. The Independent Children’s Lawyer was satisfied the mother was alienating the children from the father and the Independent Children’s Lawyer’s proposed orders were intended as a bulwark against that process.
The appealed orders are a variation on the Independent Children’s Lawyer’s primary proposal, enabling the children to remain living with the mother, but back in central west NSW, and requiring only the youngest child to spend time with the father, but without any need for supervision. His Honour was not satisfied the evidence established that the father posed an unacceptable risk of harm to the youngest child when they spend unsupervised time together (at [74], [75]) and, conscious that coercive orders requiring the mother and the children to relocate are not usually made (at [76]), nevertheless ordered the mother to relocate back to central west NSW to guard against the risk of the youngest child being alienated from the father like his older brother (at [6], [13], [20], [36]-[38], [40], [65]-[68]) or fatigued by long and frequent inter-state journeys (at [73], [82]).
Leave to appeal
The mother formally sought leave to appeal from the orders, but it is not needed because the appealed orders are decrees made in a “child welfare matter” (s 94AA of the Family Law Act 1975 (Cth) (“the Act”); reg 15A of the Family Law Regulations 1984 (Cth)).
The appeal
Grounds 4 and 5 address the coercive order requiring the mother to relocate her residence with the children back to central west NSW (Order 5), which residential address she is then obliged to disclose both to the Court and the Independent Children’s Lawyer (Order 6).
Grounds 1, 2 and 3 address the order for the child to spend unsupervised time with the father (Order 4) and, incidentally, the changeover venues (Order 7).
Before dealing with the pleaded grounds of appeal, it is first necessary to identify legal errors which were not the subject of any discrete ground of appeal because the errors affect consideration of the grounds more generally.
The primary judge wrongly identified in the reasons for judgment the affidavit material read by the parties (at [13]). Regrettably, his Honour failed to heed two affidavits expressly relied upon by the mother, as were nominated in her written submissions. His Honour omitted from consideration the mother’s two affidavits filed on 21 March 2018 and 10 July 2019 (AB 235).
The parties’ intention to rely upon multiple affidavits in an interim hearing is a practice firmly discouraged in both the Federal Circuit Court (Practice Direction No. 2 of 2017 Interim Family Law Proceedings (from 1 January 2018) (“the Practice Direction”)) and the Family Court of Australia (r 5.09 of the Family Law Rules 2004 (Cth)). Nonetheless, in this instance, the parties nominated their reliance upon multiple affidavits and the primary judge neither applied the Practice Direction nor exercised discretion to prevent them from doing so. The parties thereafter made submissions based on the totality of the evidence upon which they each relied, after which the primary judge reserved judgment for several weeks. Given the dispute was then determined upon only a portion of the evidence, it must follow that ignorance of the additional evidence amounted to a failure by the primary judge to take into account material considerations (House v The King (1936) 55 CLR 499 at 504-505). The father asserted in the appeal that the March 2018 affidavit was not material but, regardless, the evidence in the July 2019 affidavit was plainly material.
The primary judge fell into further error by overlooking the mother’s July 2019 affidavit because his Honour then proceeded to wrongly presume she failed to comply with his procedural orders, made in June 2019, requiring her to file an affidavit by 10 July 2019 confirming her current residential circumstances and details about the children’s school and day-care enrolments. The July 2019 affidavit was filed in compliance with that direction. As a consequence of that mistake, his Honour found the mother “engaged in obfuscation” (at [51]-[53], [65]), which finding was not open. The erroneous finding was then relied upon to draw an adverse inference about the mother’s credit, which in turn caused less weight to be reposed in her untested evidence.
It cannot be reasonably contended those errors of law can be disregarded due to there being no miscarriage of justice or that they did not influence the result (see Conway v The Queen (2002) 209 CLR 203 at 207-208, 217, 219-220, 232, 244; Lane & Nichols (2016) FLC 93-750 at [72]-[81]). For those reasons alone the appeal should succeed, but other material errors were revealed by some of the pleaded grounds of appeal.
Grounds 4 and 5
These grounds contend as follows:
4.That the primary judge erred in his exercise of discretion in ordering the children and the Mother to relocate interstate insofar as he failed to place weight on:
a) The Mother’s filed evidence in relation to the relocation;
b) The reasonable practicality of the Mother relocating from [south eastern Queensland] to [central west NSW], including the Mother’s financial capacity; and
c) The limited and supervised nature of the time that had occurred between the children and the Father at Interrelate Contact Centre prior to the primary judge’s interim decision.
5.That the primary judge failed to give adequate reasons as to the application of the coercive powers in Sampson [and] Harnett (No. 10) [(2007) FLC 93-350].
Before dealing with these grounds of appeal individually, it is worthwhile recalling the statements of principle proscribing the power to make orders which are, in effect, mandatory injunctions, forcing parents to live in places against their will so as to fulfil the statutory mandate to accord paramount importance to the children’s best interests.
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
When the mother relocated with the children from central west NSW to south eastern Queensland, she did so in the knowledge she would still need to adhere to the interim parenting orders made in May 2018 requiring her to present the children to the father at a contact centre in Town H, NSW once every fortnight. Her counsel acknowledged to the primary judge that the fortnightly commitment involved a return road journey of at least 20 hours or, alternatively, return air travel. While the mother mostly complied with the interim orders after her relocation, by usually making the youngest child available to the father at the contact centre in NSW for two hours each fortnight, the primary judge found that travel regime for a visit of only two hours duration was too punishing for a child then only four years of age (at [73], [82]), and there is no challenge to that finding in the appeal. Of course, the mother did not comply with those orders at all in respect of the eldest child, despite the orders being made with her consent.
Against that background, the mother’s complaint under Ground 4 is that the primary judge reposed too little weight in three aspects of the evidence, being: the reasons the mother gave for her relocation with the children to south eastern Queensland; the practicability of her being forced to relocate back to central west NSW; and the “limited and supervised nature” of the youngest child’s interaction with the father at the contact centre.
Reasons for relocation to Queensland
The mother’s reasons for moving to Queensland were set out in her evidence and were the subject of written and oral submissions by her counsel, who emphasised such reasons were her genuine fear of the father, attaining stability for the children, gaining employment, and being closer to her brother.
The trial judge acknowledged the mother’s allegation that she was “terrified” of the father (at [13]) due to her alleged subjection by him to family violence “on a daily basis” prior to separation (at [11], [32], [57], [62]). The mother asserted her fear of the father was genuine, but the primary judge found her evidence lacked credibility when uncorroborated (at [53], [65]) and, for reasons already explained, that finding was not open upon the basis it was made.
Conversely, the primary judge was not obliged to blindly accept the mother’s evidence. There was other evidence which tended to undermine the strength of the evidence adduced by the mother about family violence, of which the primary judge had to be cognisant. It included the father’s denial of committing any family violence (at [11]), the lack of corroboration by the eldest child of the mother’s allegation of family violence on a “daily basis” (at [62]), the absence of any clear allegation of any family violence occurring in the two years since the parties’ separation, and the rejection of the mother’s allegations of family violence by another court. The mother made the same allegations of family violence against the father to obtain the interim family violence order, but her allegations were rejected by the State court at final hearing and the interim family violence order was discharged (at [58]). The mother told the Family Consultant she did not know why her allegations were rejected, but the answer is evident from the transcript of the State court proceedings in evidence before the primary judge. The State magistrate said:
I am troubled by the evidence given by [the mother] in these proceedings. I find there is a degree of exaggeration. I am not satisfied on the balance of probabilities that there are reasonable grounds to fear…
That the countervailing evidence might have led the primary judge to the same conclusion about the lack of weight attributable to the evidence of family violence does not cure the error made by the primary judge. By wrongly forming an adverse impression about the mother’s reliability, his Honour wrongly depreciated the weight reposed in her allegations of family violence.
Once in Queensland, the mother enrolled the youngest child at a day-care centre and the eldest child at a new school. That arguably afforded them some degree of stability, but no evidence was adduced and no submission was made by the mother about why those circumstances offered the children any greater stability than they had enjoyed while living in central west NSW closer to the father. In NSW, the eldest child also attended school and the mother, who was not employed outside the home, was available as the youngest child’s full-time carer.
It was uncontroversial that the mother was not employed while living in central west NSW. She told the Family Consultant she only wanted to work during school hours and the work available in Town F and Town H did not suit her. She asserted she obtained employment following her relocation to Queensland and deposed to it being permanent part-time employment generating some $41,000 gross per annum in her affidavit filed on 10 July 2019, which affidavit the primary judge did not read. While her counsel confirmed such facts in submissions, as was acknowledged by the primary judge (at [49]), his Honour was unconvinced without corroborative evidence (at [50]-[53]). Very little, if any, weight was given to the comparison of the mother’s employment in Queensland and her unemployment and lack of income if forced back to NSW. It was an important feature of the evidence and deserved more weight than it was obviously given.
As for family support which was available to the mother, the primary judge found she had family in Town G and she had lived in and around Town H in NSW without difficulty (at [78]-[80]). The Family Consultant reported her puzzlement reconciling the mother’s animated discussion of closeness to her family in Town G with her desire to move nearer to her brother in Queensland. The Family Consultant considered the mother wanted to move to Queensland so she was far enough away from the father to ensure the children could not have meaningful relationships with him (at [40]), which opinion evidence the primary judge accepted. That finding coincided with the acceptance of other evidence which tended to show the mother was intent on aligning the youngest child against the father and on depriving him of any meaningful relationship with the father (at [36], [37]). The Family Consultant’s opinion evidence to that effect was admissible and the primary judge was entitled to accept it. More is said of this under Ground 3.
However, some evidence about family support adduced by the mother in her affidavit filed on 10 July 2019 was overlooked entirely. The mother was living near to her brother in Queensland and she deposed to tangible help from him and his wife by their collection of the children from school and day-care while she was working, though the evidence was mute about the frequency of such help. She certainly had no help of that sort when formerly living in Town H, NSW. The availability of family support, including the provision of reliable child-care, to a residential parent who lives a long distance from the non-residential parent is usually an important consideration (see McCall & Clark (2009) FLC 93-405 at [134]-[135]). It was not treated importantly in this instance and there is no explanation for why.
Arguments about the weight accorded to the evidence must overcome a high hurdle to achieve appellate success (see Gronow v Gronow (1979) 144 CLR 513 at 519-520). However, in this instance, the failure to attribute any weight at all to the important practical child-care support the mother received in Queensland from her brother and his wife, the failure to give adequate weight to the mother’s acquisition of employment in Queensland, and the failure to give more weight to the mother’s motivation to relocate due to her asserted fear of the father because of an incorrectly made finding about her lack of credit collectively resulted in the miscarriage of the primary judge’s discretion. Ground 4(a) succeeds.
Practicability of relocating back to NSW
The mother submitted to the primary judge that it was impracticable for her and the children to relocate back to central west NSW. She gave evidence as to why in her affidavit filed on 10 July 2019, which the primary judge failed to consider, and such evidence was the subject of submissions by her counsel, both at the hearing before the primary judge and in the appeal.
The mother’s evidence on that issue encompassed the unpredictable short-term rental accommodation afforded to her in central west NSW by a public housing organisation called Housing Plus, the instability created by the frequency of her directed residential moves in that area, and the relative unavailability of in-town accommodation. None of that evidence was considered by the primary judge.
During the hearing before the primary judge, the prospect of the mother being forced by mandatory injunction to relocate back to central west NSW was mooted. The mother conceded she would move back to NSW with the children, but only if left with no option, as the following excerpt of transcript reveals:
[HIS HONOUR]: And if I make an injunction that says [the mother] has got to live within 200 kilometres of [a town in central west NSW], is she going to come back? Is that how she conducts her case, or is it, “No, I ain’t coming”.
[COUNSEL FOR THE MOTHER]: Yes, she will.
[HIS HONOUR]: She will?
[COUNSEL FOR THE MOTHER]: Yes.
[HIS HONOUR]: All right. So that’s her alternate position.
[COUNSEL FOR THE MOTHER]: Yes. But, your Honour, issues in relation to her stability within 200 kilometres to the town [in central west NSW] are issues that are mooted in my written submission, in her material ---
…
[COUNSEL FOR THE MOTHER]: But her indication via instruction to me – I just asked then – was if you order the children back, she will come.
(Transcript 13 August 2019, p.24 line 15 to p.25 line 10)
That concession alone was an insufficiently secure basis upon which to make the order compelling the mother to re-establish her residence with the children in central west NSW. There was no evidence, and hence no consideration, of where in central west NSW she could secure alternate rental accommodation for herself and the children, nor how quickly it could be arranged. Framing the order to allow her some five weeks to arrange the move was not a satisfactory salve for that lack of evidence. Nor was there any evidence that the mother’s permanent residence with the maternal grandmother in Town G was a viable alternative. The mother’s counsel told the primary judge in submissions that the maternal grandmother was “quite ill with cancer”, based on evidence given by the mother in her affidavit filed on 10 July 2019, which was unread by his Honour, thereby implying the maternal grandmother’s home was unlikely to be an available sanctuary for the mother and the children.
Another obstacle to the mother’s return with the children to live in central west NSW was the unavailability of any mode of transport. The mother had been using a vehicle leased by the parties’ farming partnership but, at the hearing before the primary judge in August 2019, the father successfully sought an interim property order compelling the mother to return the vehicle to him so he could sell it and use the proceeds of sale towards payment of the debt due on the vehicle. The mother conceded she could not meet the lease payment to justify her retention of the vehicle. Although the appealed orders enabled the mother to return and live within a wide area of central west NSW, such liberty was of little utility when she would have no private transport and no income to replace the car she was compelled to relinquish. There was no evidence of the mother’s ready access to another person’s car. Without a car, how she could transport the youngest child between townships in central west NSW to spend time with the father – quite an important consideration – could only be the subject of speculation.
As already mentioned, the mother’s enforced move back to central west NSW would impel her to forego her employment in Queensland and look for alternate employment once re-settled in NSW. But without her brother’s help collecting the youngest child from day-care, the mother’s employment options would then effectively be limited to school hours. Her income would, in any event, necessarily be curtailed unless and until she was able to secure alternate employment. She told the Family Consultant, before her move to Queensland, the father was only paying her “a small amount of child support” and she was receiving Centrelink benefits. The appealed orders were liable to condemn her to the same financial fate.
In her affidavit filed on 10 July 2019, which was overlooked by the primary judge, the mother deposed to the occasions on which she commuted with the youngest child from Queensland to NSW to enable the youngest child to spend time with the father. Her case was that she could and would maintain such travel commitments with the youngest child until the final trial. Even though the primary judge found the existing travel regime was too punishing for the youngest child each fortnight for a visit of only two hours duration, it might not be so if the youngest child’s visits with the father were longer and the return inter-state journeys were more leisurely.
The primary judge gave no consideration, or alternatively insufficient weight, to those aspects of the evidence. Had those aspects of the evidence been given proper weight, the coercive order forcing the mother to return with the children to live in central west NSW might well have then been foreclosed. The mother’s express willingness to continue conveying the youngest child to NSW from Queensland on a fortnightly basis to spend time with the father, as she had done over preceding months, opened up the prospect of a quite different regime.
The primary judge found the youngest child was not at unacceptable risk in the father’s care, so supervision could be dispensed with and there was then no impediment to him spending much more time than only two hours with the father each visit. The vast travel could be ameliorated by longer, but less frequent, visits. In the appeal, the mother frankly conceded it would have been open for the primary judge to order the youngest child to spend five hours of unsupervised time with the father each Saturday and Sunday of every second weekend. It might even have opened up, for example, the prospect of the youngest child spending the whole of each alternate weekend with the father. In any event, the mother acknowledged it would be unnecessary to confine the child’s visits with the father to five hours each Saturday, as was ordered. She could then still live in Queensland where she wanted.
Having regard to the principles, already recited, about the parents’ interests still being an important discretionary consideration, the youngest child’s best interests could be satisfactorily served by him spending more, but less frequent, time with the father. In that way, his best interests and the mother’s freedom to choose where she lives could both be compatibly accommodated. There was no need to deny the mother her freedom of choice about her place of residence, contrary to the primary judge’s conclusion that it was necessary (at [76]-[77]), so Ground 4(b) succeeds.
The regime prior to the appealed orders
Despite the terms of Ground 4(c), the mother made no submission to elaborate how the primary judge failed to place weight on the “limited and supervised nature” of the time spent by the youngest child with the father between the time of the parties’ separation in October 2017 and the appealed orders being made in September 2019.
On the contrary, such evidence was the subject of both consideration by the primary judge and the attribution of appropriate weight. The primary judge remarked how the youngest child had only ever spent short stints of supervised time with the father at a contact centre after the interim orders were made in May 2018 and, in the absence of any material risk of harm to the youngest child in the father’s care, that was probably an insufficient level of contact to counteract the mother’s apparent tendency to align the child against the father (at [4], [13], [36], [37], [38], [40], [67], [68]). Ground 4(c) fails.
Adequacy of reasons for Order 5
Ground 5 asserted inadequate reasons were given by the primary judge for ordering the mother to relocate her residence with the children back to central west NSW. This challenge is made good.
Although the reasons for judgment reveal the primary judge was anxious to make interim orders ensuring the youngest child would spend sufficient time with the father to dilute the effect of his apparent alignment by the mother, the reasons fail to deal with important aspects of the evidence which bore upon the probity of the order subordinating the mother’s will to live with the children in a place of her choosing. There is no need to repeat the matters addressed under Ground 4.
The father submitted in the appeal that the mother made no submission to the primary judge in reliance upon Sampson and Hartnett (No.10) and so she is now precluded from calling that authority to her aid in the appeal (see Metwally v University of Wollongong (1985) 60 ALR 68 at 71), but the submission is rejected. While neither the mother’s written nor oral submissions to the primary judge referred expressly to that authority, her submissions were replete with references to the factual features of the evidence which would engage the principles discussed in that case.
Grounds 1 and 2
These grounds were in the following terms:
1.That the primary judge erred in failing to properly apply the principles relevant to interim parenting determinations including sections 60CC and 60CG of the Family Law Act 1975 (Cth) and in failing to properly consider matters arising for consideration pursuant to those provisions, in particular, where the Mother asserted unacceptable risk of harm to a child and family violence.
2.That the primary judge erred in law at paragraph 74 of the Reasons for Judgment in:
a)Failing to provide sufficient reasons to support a finding that the Father did not pose an unacceptable risk of harm to [the eldest child];
b)Failing to consider the Mother’s evidence as to why she asserted an unacceptable risk nor provide any reasons why he determined that there was no unacceptable risk; and
c)Determining that there was no unacceptable risk of harm to [the youngest child] where there had been no testing of the evidence nor any acknowledgment of the Mother’s assertions as to risk in the primary judge’s Reasons for Judgment.
(As per the original)
As can be seen, while Ground 1 refers amorphously to the primary judge’s failure to consider the factors prescribed by ss 60CC and 60CG of the Act, the finding of insufficient evidence to support the allegation the father poses an unacceptable risk of harm to the child was the solitary example cited of the mother’s complaint in that regard and the limbs of Ground 2 effectively amount to variations on that theme.
Dealing with the mother’s widest proposition first, it was unnecessary for the primary judge to set out separate consideration of each and every s 60CC factor in the reasons for judgment. Neither the parties nor the Independent Children’s Lawyer addressed the primary judge in that way, either in their evidence or submissions. They each approached the dispute by reference only to contested issues. Broadly speaking, there were only two: the mother’s contention the father posed an unacceptable risk of harm to the youngest child and the father’s contention the mother was deliberately alienating the children from him. It was permissible for the primary judge to decide the dispute by only addressing the issues posited by the parties (see SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637 at [47]-[50]). The mother was unable to identify any specific error in the application of the paramountcy principle (ss 60CA, 65AA) or the prescribed considerations influencing that principle (s 60CC).
While the mother’s grievance about the alleged failure by the primary judge to apply s 60CG of the Act was not elaborated in either the Summary of Argument or oral submissions, it may be answered shortly. That provision of the Act requires the court to ensure, to the extent it is consistent with the child’s best interests, that the parenting orders are consistent with the terms of any existing family violence order and do not expose a person to an unacceptable risk of family violence. Significantly, there was no family violence order in existence at the time of hearing before the primary judge. The State interim family violence order was discharged over a year before in May 2018 and, even if the mother’s allegations of past family violence were assumed to be true, it did not necessarily mean that she was exposed to an unacceptable risk of harm through family violence to thereby engage s 60CG(1)(b) of the Act.
Importantly, there was no evidence of any family violence committed by the father against the mother for a period of about two years prior to the hearing before the primary judge. The prospect of the mother’s subjection to family violence by the father continued to wane with the passage of time and, since the appealed orders required the parties to exchange the youngest child within the safe confines of either a contact centre or police station (Order 7), there was little chance the mother was thereby exposed to an unacceptable risk of family violence. No legal error by the primary judge is evident in the application of the statutory provisions.
Turning then to deal with the mother’s more specific complaint, she submitted to the primary judge that the father posed an unacceptable risk of harm to the youngest child, but, on the available evidence, the primary judge did not find the alleged risk of harm established. The trial judge expressed the finding thus:
74.I am not satisfied that there is an unacceptable risk arising for [the youngest child] in spending unsupervised day time periods with his father.
There is an obvious inconsistency between the two grounds of appeal in relation to the primary judge’s finding. While Ground 1 contends the primary judge “fail[ed] to properly consider” the issue of unacceptable risk, Ground 2(b) contends the primary judge “fail[ed] to consider” the mother’s evidence of the risk at all.
The evidence pertinent to the issue was certainly considered by the primary judge, so Ground 2(b) must fail. The submission in the appeal that the mother’s evidence was “wholly overlooked” is rejected as baseless.
The real issue is whether, in making the finding which was incompatible with the mother’s submission, the primary judge properly considered the evidence underpinning the alleged risk. The answer to that question entails advertence to the evidence adduced by the mother.
In her affidavit filed in March 2019, the mother contended the father posed an unacceptable risk of harm to the children for a variety of reasons. Such evidence, in essence, repeated the evidence to which she deposed in her first affidavit filed on 21 March 2018, which was overlooked by the primary judge. Without reciting slabs of the mother’s evidence, the bases upon which she contended the children were at unacceptable risk of harm posed by the father were his:
(a)Inclination to elevate his own needs above the youngest child’s needs (whatever that may actually mean), which allegation the primary judge acknowledged in the reasons for judgment (at [33]);
(b)Less diligent attention than her to the youngest child’s eczema condition , which allegation the primary judge acknowledged in the reasons for judgment (at [34]) and which the father denied;
(c)Venting of aggression on farm animals, which the father denied and which allegation and denial the primary judge acknowledged in the reasons for judgment (at [24], [25]);
(d)Excessive consumption of alcohol, which the father denied and which allegation the Family Consultant reported was debunked by a CDT test undertaken by the father;
(e)Provision of alcohol to the eldest child, which the father denied ;
(f)Rough handling of the children, which the father denied ;
(g)Lack of diligent supervision of the children; and
(h)Access to firearms, which the father said are registered and needed to properly run his farm, which was again acknowledged by the primary judge in the reasons for judgment (at [23]).
When the mother filed her last affidavit in August 2019, she refined the focus of her apprehension of such risk to be as follows:
15. The risk issues include but are not limited to:
a.The family violence that [the youngest child] was exposed to and subjected to;
b.The [father]’s inability to care for [the youngest child]’s specific health needs.
In relation to those more specific allegations, some simple propositions may be distilled from the evidence.
There was no evidence at all that the youngest child was ever exposed to family violence between the parties during their cohabitation and, since there was no evidence of any family violence after separation, nor could he have been exposed to family violence thereafter. In any event, the terms of the appealed orders, requiring changeovers at either a contact centre or police station, minimised the chance of any family violence occurring between the parties in the youngest child’s presence.
The mother alleged the father smacked the eldest child on the “backside” once in 2014 and physically disciplined him a second time in 2017, but the father admitted he physically disciplined the eldest child only once. One, or perhaps two, past episodes of the father administering physical discipline to the eldest child was unlikely to engender any risk the father will physically abuse the youngest child. Physical discipline and physical abuse are different concepts.
The mother alleged the father “threw” the youngest child onto a lounge several times during their cohabitation. This specific allegation was not directly answered by the father, but he generically gave evidence of his tender care of both children. It must be remembered the youngest child was merely two years of age when the parties separated so, if the allegation was literally true, it entailed the father’s gross and disproportionate infliction of violence on an infant. Although the primary judge doubted the mother’s reliability on spurious grounds, it would still have been open to regard this allegation of the father’s physical abuse of the youngest child as an exaggeration and give it little weight, just as the State magistrate did in respect of the mother’s allegations of violence against her and the children.
There was no evidence at all to corroborate the mother’s bare assertion that the father did not care for the youngest child’s “specific health needs” as competently as her. It was no more than her subjective opinion.
As can be seen, close analysis of the mother’s allegations against the father reveals a fairly fragile basis upon which to contend the father posed an unacceptable risk of harm to the youngest child which could only be safely attenuated by him spending two hours a fortnight with the father under professional supervision at a contact centre.
True enough, the primary judge had to remain alert to any potential risk of harm to the youngest child, since the evidence was not tested at the interim hearing. Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue (see Salah & Salah (2016) FLC 93-713 at [33]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]), but remaining astute to potential risk is not the same thing as assuming the truth of and reacting impulsively to everything the mother alleged without regard for other evidence and the wider context.
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (see Goode and Goode (2006) FLC 93-286 at [68]), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so. Contrary to the inherent premise of the mother’s submissions in support of Ground 2(c), judges are not required to treat all untested evidence as bearing the same weight.
It cannot escape mention that, in the Amended Response filed by the mother in August 2019, just prior to the interim hearing, she proposed final parenting orders for the youngest child to spend unsupervised time with the father if the court eventually determined the father did not pose an unacceptable risk of harm to the child. She must therefore have contemplated the prospect she might ultimately fail to establish the existence of such risk of that magnitude. If she accepts the unacceptable risk of harm for which she contends may not be established even once the evidence is tested, it logically undermines the validity of her contention that the primary judge must have accepted the unacceptable risk of harm existed whilst the evidence remained untested.
Nonetheless, in this instance, the primary judge found the mother was an unreliable witness on grounds which were not available and so vitiated the finding her evidence should bear little weight. The error is not expunged by an assertion or conclusion in the appeal that the finding expressed at [74] might have been reached in any event. Ground 1 should succeed because the primary judge failed to properly consider, by wrongly discounting the weight of, the mother’s evidence in support of the contention that the father posed an unacceptable risk of harm to the youngest child. While the primary judge’s finding at [74] might still have been open even if the mother’s evidence had been given appropriate weight, it cannot be said it was assured, so the legal error was material.
Ground 2(a) asserted insufficient reasons were given for the finding made by the primary judge about the absence of “unacceptable risk”, but the ground is rejected. The primary judge acknowledged the parties’ conflicting evidence about past family violence (at [11]), the rejection of the mother’s same allegations of family violence by the State court for unreliability (at [58], [59]), and the lack of corroboration from the eldest child of the mother’s allegations (at [61], [62]). While the mother contended she wanted to keep the youngest child from the father to protect him from harm, it was no less feasible that her allegations of the unacceptable risk of harm were motivated by her desire to keep the youngest child from the father. That was the finding reached by the primary judge in reliance upon the opinion evidence given by the Family Consultant (at [13], [36], [37], [40]). The primary judge accepted the Family Consultant’s evidence that there was no reason the youngest child could not spend unsupervised time with the father (at [40]). In addition, the primary judge remained alive to the mother’s concerns about the youngest child’s eczema (at [34], [56]), but found short periods of unsupervised time with the father would not exacerbate his condition (at [75]), particularly if the mother provided him with packed food (at [86]).
Ground 3
This ground was in the following terms:
3.That the primary judge erred in law at paragraph 66 (Reasons for Judgment) in concluding that: ‘although a Family Report is yet to be tested, there will be at final hearing little testing of [the eldest child]’s discussions with the consultant other than whether the written report accords with the consultant’s contemporaneous notes” in circumstances where:
a)The Mother challenged the Family Report; and
b)The conclusions drawn in this paragraph failed to take into account the nature of either:
ii)A Family Report but as one piece of evidence and in this hearing an untested piece of evidence;
iii)The nature of challenge of evidence and in this hearing an untested piece of evidence;
iv)The nature of challenge of evidence at a Trial including cross examination of the Report Writer.
(As per the original)
The allegedly erroneous finding to which this ground of appeal is directed was expressed in the following terms:
66.Although the Family Report is yet to be tested, there will be at final hearing little testing of [the eldest child]’s discussion with the consultant other than whether the written report accords with the consultant’s contemporaneous notes. I give therefore significant weight to that part of the report relevant to [the eldest child]’s interview.
The finding (in the last sentence of [66]) that significant weight should be attributed to one particular part of the Family Report is meaningless in isolation. It must be understood in its surrounding context, which was the discussion of the eldest child’s statements to the Family Consultant in so far as they were relevant to the wider question of the mother’s alleged alignment of him against the father. The proper context is gleaned from the following reasons:
60.[The eldest child] told the consultant that [the father] was by and large good to him.
61.[The eldest child] also told the consultant he had heard [the father] and [the mother] arguing but not seen any family violence.
62.Given [the mother]’s allegations that [the eldest child] was exposed to family violence on a daily basis, [the eldest child]’s statements serve to contradict hers.
…
64.[The eldest child] makes no reports of [the father] being an incapable parent. To the contrary what he says about [the father], with a few exceptions is largely complimentary.
…
66.Although the Family Report is yet to be tested, there will be at final hearing little testing of [the eldest child]’s discussion with the consultant other than whether the written report accords with the consultant’s contemporaneous notes. I give therefore significant weight to that part of the report relevant to [the eldest child]’s interview.
67.[The eldest child] has long been resistant to spending time with [the father], acutely aware his mother does not support him doing so.
68.He has become parentified.
As can be seen, the primary judge was contrasting the eldest child’s formerly convivial relationship with the father, as he expressed to the Family Consultant, with his current resistance to spending any time at all with the father.
Conscious of the parties’ dispute over whether the mother was deliberately aligning the eldest child against the father, the primary judge’s observation at [66] about the “testing” of the evidence was merely acknowledgment the mother might well cross-examine the Family Consultant at trial about any inconsistency between what her contemporaneous notes reveal the eldest child told her in consultation and what she subsequently wrote in her report. The primary judge’s observation was confined to that issue. It was plainly not intended to imply that no other challenges would or could be made to the evidence of the Family Consultant. So much was obvious, because the mother filed an affidavit in August 2019, just prior to the hearing, expressly setting out her various challenges to particular paragraphs of the Family Report. One of her foreshadowed challenges related to the Family Consultant’s opinion that she was alienating the children from the father but, significantly, none of them related to the accuracy of the Family Consultant’s report about what she was told in conference by the eldest child.
While the mother denied she was aligning the children against the father, her denial was rejected by the Family Consultant. Although the Family Consultant’s opinion evidence was untested in cross-examination at the interim hearing, the primary judge was not precluded from accepting and relying upon it. The opinion evidence was admissible and the primary judge could repose in it the weight his Honour considered was justified in light of its untested state. It was not an error of law to do so, which is the false premise of Ground 3 and the submissions made in support of it. The mother seemed not to appreciate the paradox of her contention in the appeal that the primary judge should have ignored the evidence of her alignment of the children against the father, because she disputed it, but the maintenance of her contention under Grounds 1 and 2 that the primary judge should have accepted her allegation the father posed an unacceptable risk of harm to the youngest child, despite his denial of it. His Honour was not entitled to ignore any of the evidence, but was obliged to consider its weight.
In deciding interim disputes, it is open to judges to rely upon expert opinions expressed by Family Consultants and experts in written reports which form part of the body of evidence. If the opinion evidence is untested in cross-examination, it is only the weight attributed to the evidence which is open to question. The primary judge was alive to that distinction (at [54], [66]).
The Family Consultant’s opinion that the mother was aligning the children against the father was based (in part) upon her contrast of the positive way the eldest child spoke about the father with his contrary conduct in resisting any contact with the father due to him being “acutely aware” the mother did not support him seeing the father. His Honour realised, correctly, that the only way the Family Consultant could be challenged about that part of the factual foundation for her opinion was for the mother to search in cross-examination for any inconsistency between the Family Consultant’s notes and the text of her report regarding what the eldest child told her. Not unreasonably, the primary judge imputed that would most probably be an arid exercise and so, as was open, determined to give significant weight to the part of the Family Report which related to the eldest child’s interview with the Family Consultant (at [66]).
Of course, the untested opinion evidence of the Family Consultant was merely one piece of evidence before the primary judge, just as the mother submitted in the appeal. But it was liable to be, and was treated as, a persuasive piece of evidence by the primary judge. The allegation the mother was aligning the children against the father was pre-eminent. Neither the father’s bare assertion she was, nor the mother’s bare denial of it, helped decide the issue. The primary judge had to look for either uncontroversial or some independent evidence to help resolve the issue, at least on a provisional basis.
Significantly, it was uncontroversial that: the mother kept the children from the father after separation in October 2017 until interim parenting orders were made in May 2018; even after the interim orders were made in May 2018, the eldest child spent no time at all with the father and the mother was unable to successfully encourage him to do so despite their formerly warm relationship; and, until shortly before the interim hearing in August 2019, the mother conducted the case on the basis that final orders should be made for neither child to spend any time at all with the father, which was consistent with the sentiments she expressed to the Family Consultant during their consultation in April 2019.
In addition, the Family Consultant offered independent opinion evidence on the issue, which evidence was based on her background knowledge of the litigation, her observations of the parties, her conversations with the parties, and her conversation with the eldest child. The Family Consultant reported:
28.[The mother] appears to be alienating [the eldest child], and trying to alienate [the youngest child], from [the father].
…
34.[The eldest child] was hyper-vigilant and appeared to want to say what his mother had told him to say. He relaxed when he was not with his mother, and he wanted to tell the family consultant what she wanted to him say. [The eldest child] responded to several questions with comments such as “I am not allowed to say”. This is consistent with his previous presentation.
…
55.[The mother] come to her interview with [the children] and a friend to provide care for the boys whilst she was having her interview. She was well presented and aware of the purpose of the interview. She declined to permit [the father] to care for the boys while she was being interviewed…
…
59.It was apparent that [the mother] had not considered that the Court could order that [the youngest child] and perhaps [the eldest child] spend time with [the father] and had not considered how this might happen. It was apparent that [the mother] does not want [either of the children] to have any relationship with [the father]…
72.[The mother] does not want the boys to spend any time with [the father]. She said that [the youngest child] only goes to Interrelate, and she has supported [the eldest child] not to go…
…
78.When asked to consider future directions [the mother] reiterated that she could not compromise and wants to relocate. She reiterated that she wants a no contact order and does not accept that it is in [the youngest child]’s best interest to maintain a relationship with the father…
…
102.It is apparent that [the mother] wants to move far enough [a]way to ensure that it is too difficult for [the father] to have a meaningful relationship with [either of the children]. She was not going to inform [the father] that she is relocating the children’s residence to Queensland.
…
107.[The youngest child] relocating to the Gold Coast cannot be supported as it would mean the end of his relationship with his father. [The mother] is not supportive of [the youngest child] having any relationship with his father, and if this was further constrained by distance it is unlikely that [the youngest child] would see his father again…
As was open, the primary judge accepted such opinion evidence (at [13], [36], [37], [40]), even though it remained untested in cross-examination. Acceptance of such opinion evidence at the interim hearing does not mean the mother is estopped from challenging the Family Consultant in cross-examination at the final trial. Nor does it mean the judge who hears the final trial will be precluded from finding differently once the opinion evidence is tested. Ground 3 is rejected.
The mother’s submissions in the appeal about her intended challenges to the reliability of the Family Consultant’s opinion evidence on other topics, like family violence, the practicability of her living in central west NSW rather than in south eastern Queensland, and her willingness and capacity to facilitate the children’s interaction with the father, all remain available to her. Those challenges have no pertinence to Ground 3 of the appeal, the ambit of which is confined to the validity of the finding expressed at [66] of the reasons for judgment about the weight attributed to comments made by the eldest child to the Family Consultant during their interview.
Conclusion and costs
The appeal is allowed on some grounds and so the appealed orders are set aside.
In that event, the parties and the Independent Children’s Lawyer all sought remitter of the interim parenting applications for re-hearing.
The appeal was only from some of the orders made by the primary judge. There was no appeal against the interim orders for both children to live with the mother (Order 2), for the eldest child to spend time with the father as he wishes (Order 3), and for the mother to prepare food for the youngest child when he spends time with the father (Order 9). Another order has since expired and is no longer relevant (Order 8). Absent changed circumstances which would warrant revision of all aspects of the children’s care, the re-hearing will only address issues not already covered by Orders 2, 3 and 9.
No costs orders were sought and, since the appeal succeeded for errors of law, we accede to the applications made by the parties for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth). The Independent Children’s Lawyer is ineligible for certificates as she is employed by Legal Aid NSW (Yates & Yates (Independent Children’s Lawyer – Costs) [2012] FamCAFC 219; DeLuca & Farnham [2019] FamCAFC 100 at [86]).
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Watts, Austin & Rees JJ) delivered on 23 December 2019.
Associate:
Date: 23 December 2019
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