Gaynor and Barnsley
[2016] FamCAFC 268
•21 December 2016
FAMILY COURT OF AUSTRALIA
| GAYNOR & BARNSLEY | [2016] FamCAFC 268 |
| FAMILY LAW – APPEAL – CHILDREN – Interim parenting orders for a baby – Where the parties proposed consent orders in relation to the disposition of the appeal – Denial of procedural fairness – Where trial reasons were inadequate – Appeal allowed – Orders set aside – Where proposed interim parenting orders were in the best interest of the child. |
| APPELLANT: | Ms Gaynor |
| RESPONDENT: | Mr Barnsley |
| FILE NUMBER: | PAC | 2546 | of | 2016 |
| APPEAL NUMBER: | EA | 164 | of | 2016 |
| DATE DELIVERED: | 21 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Kent & Cronin JJ |
| HEARING DATE: | 6 December 2016 and receipt of signed consent orders on 14 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 August 2016 |
| LOWER COURT MNC: | [2016] FCCA 2217 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Knox SC |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | Blackman Legal Pty Ltd |
Orders
BY CONSENT IT IS ORDERED:
That the Appeal against Orders 4 and 5 of the Orders made on 24 August 2016 be allowed.
The orders referred to in Order 1 be set aside.
THAT PENDING FURTHER ORDER:
That until 12 June 2017, the child [A] born … 2015 (“the child”) shall spend time with the Respondent Father:
3.1Each Monday, Tuesday and Thursday from 8:30am to 4:00pm;
3.2Commencing Saturday 17 December 2016, each alternate Saturday from 11:00am to 4:00pm;
3.3From 8.30am to 4:00pm on 25 and 26 December 2016;
3.4From 8:30am on 15 April 2017 to 4:00pm on 16 April 2017; and
3.5At all other times as agreed between the parents in writing.
From 12 June 2017 to 12 September 2017, the child shall spend time with the Father:
4.1From 8:30am each Monday to 5:00pm on the following Tuesday;
4.2Each Thursday from 1:00pm to 5:00pm;
4.3Each alternate Saturday from 8:30am to 5:00pm;
4.4On Father's Day from 8:30am to 5:00pm; and
4.5At all other times as agreed between the parents in writing.
From 12 September 2017 to 12 December 2017, the child shall spend time with the Father:
5.1From 8:30am each Monday to 5:00pm on the following Tuesday;
5.2Each alternate Saturday from 8:30am to 5:00pm on Sunday;
5.3At all other times as agreed between the parents in writing.
From 12 December 2017, the child shall spend time with the Father:
6.1From 8:30am Monday to 5:00pm Tuesday;
6.2Each alternate Saturday from 8:30am to 5:00pm on Sunday;
6.3From 11:00am on 24 December 2017 to 5:00pm on 25 December 2017;
6.4From 8:30am on 16 April 2018 to 5:00pm on 17 April 2018; and
6.5At all other times as agreed between the parents in writing.
Notwithstanding any other order the child shall spend overnight time with the Mother on her birthday from 8:30am on 30 May 2017 to 5:00pm on 31 May 2017.
Notwithstanding any other order the child shall spend Chinese New Year on 28 January 2017 with the Mother.
Notwithstanding any other order the child shall spend Chinese Moon Festival on 4 October 2017 with the Mother.
Each party shall pay their own costs of the appeal.
IT IS FURTHER ORDERED
That the Application in an Appeal filed by the appellant on 15 November 2016 be dismissed.
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 Gaynor & Barnsley 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 164 of 2016
File Number: PAC 2546 of 2016
| Ms Gaynor |
Appellant
And
| Mr Barnsley |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed on 26 October 2016 Ms Gaynor (“the mother”) appeals various interim parenting orders made on 24 August 2016 by Judge Obradovic.
The orders relate to the parties’ 18 month old son, A. A lives with the mother and at issue was the amount of time he should spend with Mr Barnsley who is his father (“the father”).
Although the proceedings were listed for a directions hearing, over strong opposition by the solicitor who then appeared for the mother, the primary judge agreed with counsel for the father that a pending application by him for interim parenting orders should be dealt with that day. As well as orders which re-established time for the child with the father, her Honour went on to make orders intended to operate for at least twelve months and probably a couple of years, including for the introduction of overnight time from when the child was 18 months of age.
Numerous grounds of appeal were presented by the mother which, in essence, assert a denial of procedural fairness, prejudgment and deficiencies in the reasoning process.
Following oral addresses in the appeal by senior counsel for the mother and counsel for the father, the parties availed themselves of the opportunity to see if they could agree on a set of interim parenting orders going forward. In accordance with their request, we reserved our decision and indicated we would not publish our reasons until the negotiations were completed. Given the young age of the child, we thought it would be to his obvious benefit if his parents could become used to the idea that if they kept his interests at the forefront of their thinking, they could indeed agree about what is best for him. And do so without burdening themselves with expensive legal costs.
Happily, this time was well spent and an agreement was reached. This included as to disposition of the appeal and orders which, on a re-exercise, we are asked to make by consent.
Turning then to the proposed orders. We need to be satisfied there is a relevant error of law before we would allow the appeal. In our view, the appellant made out a compelling case for intervention by this Court. It is sufficient to establish at that point to focus on two areas of the challenges raised in the appeal.
The first concerns the denial of procedural fairness. There was no dispute that in a situation of urgency the Court may, in the interests of a child and justice, proceed in an abridged, summary or indeed ex parte fashion where necessary. However, in this case, the primary judge was aware that the mother proposed contact by the child with the father each Monday, Wednesday and alternate Saturday and the apparent urgency was thereby addressed. We can see no principled basis upon which the primary judge would then force the mother to engage in a hearing as to orders of a long-term duration (albeit interim) when proceedings of that type were not listed for hearing and the solicitor for the mother sought to adduce evidence which went to the longer term question of when overnight time should commence. As the solicitor for the mother explained:
[Solicitor for the mother]: I have no objection to relisting the matter for an interim hearing in the near future. However, at this stage, there is no response on behalf of the mother. The child is 14 months old. You will note in the orders that the father is pressing – there’s extended time including overnight time, and it’s not only just the overnights, there’s three full days with two overnights in week 1.
(Transcript, 24 August 2016, page 3, lines 34-38)
We could go on but, for present purposes, it is sufficient to observe that what unfolded was so unfair to the mother that the case for appellate intervention is made out.
The challenge to the adequacy of her Honour’s reasons is also made good. First, it should be pointed out that at [68] the primary judge said “… significant and substantial time is not in the child’s best interest” yet the orders provide for the commencement of substantial and significant time in only a few months. Having ruled out substantial and significant time, her Honour needed to explain why substantial and significant time a few months hence was in the best interests of the child. The primary judge also needed to engage with the central tenets of the mother’s case, that the child continued to be breastfed and as a baby required a degree of routine. In fairness, the primary judge referred to these matters but only to observe that the mother failed to adduce evidence on the point. In circumstances where the proceedings were not listed for hearing, this criticism of the paucity of evidence in the mother’s case was unreasonable and the associated reasoning is defective.
We agree with the parties that the appeal should be allowed and orders set aside.
We are also satisfied that the proposed interim parenting orders, in lieu of her Honour’s orders, should be made in the best interests of the child.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Kent & Cronin JJ) delivered on 21 December 2016.
Associate:
Date: 21 December 2016
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