GRAFT & MCCORMICK - [2014] FamCAFC 28

FAMILY COURT OF AUSTRALIA

GRAFT & MCCORMICK

[2014] FamCAFC 28

FAMILY LAW – APPEAL – Where the appellant has misconceived the nature and scope of an appeal – where no error is demonstrated in making the order the subject of the appeal – where it is apparent that the complaint relates to an earlier order and to a notation to the order the subject of the appeal – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the further evidence sought to be adduced does not demonstrate any error by the judge – Application dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Graft

RESPONDENT:

Mr McCormick

FILE NUMBER:

CSC

301

2009

APPEAL NUMBER:

2013

DATE DELIVERED:

28 February 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland and Ainslie-Wallace JJ

HEARING DATE:

19 February 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

6 August 2013

LOWER COURT MNC:

REPRESENTATION

APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Oliver Solicitor for Preston Law

Orders

The appeal be dismissed
The application in an appeal filed 5 February 2014 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Graft & McCormick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 46 of 2013
File Number: CSC 301 of 2009

Ms Graft

Appellant

And

Mr McCormick

Respondent

REASONS FOR JUDGMENT

Introduction

By an Amended Notice of Appeal filed 18 November 2013, Ms Graft (“the mother”) appeals against an order made by Judge Willis of the Federal Circuit Court on 6 August 2013. The appeal was opposed by Mr McCormick (“the father”).
The order appealed against provided as follows:
1. This matter be listed for mention on 13 November 2013 at 11:30am in the Federal Circuit Court of Australia at Cairns NOTING that the mother has failed to comply with Order 12 of the Orders made

10 May 2013 to attend mediation, despite being requested to do so by the Respondent’s solicitor and accordingly, the Court will not be making any further Orders today.
On 5 February 2014 the mother filed an Application in an Appeal seeking to adduce further evidence. On 14 February 2014 the father filed a response to that application seeking that it be dismissed.

Background

It is important that we set out some matters of background to give a context to this appeal.
The parties started to live together in 2000 and separated in 2008. There are two children of the parties who are now eight and nine years old respectively.
There has been ongoing litigation between the parties in relation to the children. In May 2009 the father commenced proceedings for parenting orders and that application was listed for hearing before the judge in September 2011. The hearing was not completed and was adjourned to February 2012. On

27 February 2012, during the resumed hearing, the parties agreed on orders to be made in relation to parenting matters.
The orders provided that the mother and father have equal shared parental responsibility for the children and the children live with the mother and father on a “week about” basis.
Relevant to the appeal, order 26 was as follows:
Dispute Resolution
26. That should a dispute arise about the implementation of these Orders or a further matter with respect to the children (“the Dispute”) than (sic) the following procedures are to apply:
(a) The mother is to email the father with a list of three registered family dispute resolution practitioners (“the FDRP”);
(b)The father is to select one FDRP within seven days and in default, the mother may select one;
(c)The parties are to then attend upon the FDRP and bear the costs of the FDRP equally and use their best endeavours to resolve the dispute.
It seems not to be controversial that the parties had been to mediation before the date of the consent orders. Indeed, in the appeal papers was a

s 60I Certificate dated 9 June 2009, certifying that:
[The husband] did not attend family dispute resolution with me and the other party or parties to the proceedings because I consider, having regard to the matters mentioned in sub regulation 25(2), that it would not be appropriate to conduct the proposed family dispute resolution.
The mother submitted that there was a similar s 60I certificate given about her attendance at Family Dispute Resolution but she could not find it to include in the appeal book.
There have been significant changes in the parenting arrangements since the orders of 27 February 2012 were made.
In or about October 2012 the mother moved to a small rural community rendering the parenting arrangements untenable.
In November 2012 the parties attended mediation but no agreement was able to be reached.
On 14 April 2013 the mother failed to return the children to the father after spending a period of time with them. On 6 May 2013 the father filed an application seeking a recovery order in relation to the children and on

9 May 2013 the mother filed an application seeking an order that would permit her to relocate the children’s place of residence.
The matter came before the Federal Circuit Court on 10 May 2013 and an interim hearing conducted. The mother appeared by telephone as did senior counsel for the father.
The judge made orders requiring the mother to return the children to the father and that they be re-enrolled in their school. She made orders for them to spend time with the mother and she further ordered:
12. In the event that the mother wishes to pursue her relocation application, she is to attend Relationships Australia as organised by the father and the parties are to engage in a genuine attempt to resolve their dispute and obtain a S60I Certificate.
The matter returned to the judge’s list on 6 August 2013. The father’s solicitor informed her Honour that despite requests the mother had not indicated whether she was pursuing her relocation application, and thus there had been no mediation. The mother was assisted by a duty solicitor, Mr Thomas, who indicated to the judge that the mother did intend to pursue her application to relocate the residence of the children. The following discussion then took place:
HER HONOUR: Well, not at the moment she doesn’t. I have made an order that hasn’t been complied with. So we’re not going anywhere. Why hasn’t she – have you seen the affidavit, Ms Oliver?
MR THOMAS: No.
HER HONOUR: Probably haven’t. Would you like to show poor

Mr Thomas what the client he is trying to help has been ignoring. What is so hard about an order that says if you want to relocate, go to mediation. It’s what the legislation says. There is an order – I went through this with them last time, in fact I have the transcript. I explained to your client why she has to go to mediation. The next thing you do, I said, Ms [Graft], is go to mediation and try to resolve this. If you don’t resolve it, the matter will be next mentioned. And I brought he [sic] mention date forward. I said I want the parties to go to mediation, obtain their certificate, and do what ought to have happened in the first place. And that is that they go to a proper dispute resolution and see if you can resolve this matter. If it’s not resolved, then I will have the matter mentioned, and I will see then who is bringing what application. So you have a word with your client. I’m not -I’m certainly not progressing any application of hers.
(Transcript 6.8.13 page 3 lines 1 to 19)
Thus, her Honour made the order appealed from.
Her Honour referred to s 60I of the Family Law Act1975 (Cth), the relevant subsections of which are as follows:
(7) Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order. …
(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
(a) the applicant is applying for the order:
(i) to be made with the consent of all the parties to the proceedings; or
(ii) in response to an application that another party to the proceedings has made for a Part VII order; or
(b) the court is satisfied that there are reasonable grounds to believe that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; or
(c) all the following conditions are satisfied:
(i)the application is made in relation to a particular issue;
(ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
(iii) the application is made in relation to a contravention of the order by a person;
(iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
(d) the application is made in circumstances of urgency; or
(e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or
(f) other circumstances specified in the regulations are satisfied.
It is plain that the terms of s 60I(7) are mandatory. Her Honour was quite correct to say that the issue of the mother’s application to relocate the children could not progress until she had attended mediation.

Conclusion

It became clear during submissions that the mother misapprehended the nature and the scope of the appeal hearing. It was necessary for the mother to demonstrate error by the judge in making the order of 6 August 2013, but she was unable to do this and the appeal must be dismissed.
After discussion, it further became apparent that the real issue was that the mother regarded the order for mediation to be standing in the way of the resolution of the parenting issues.
The mother said that she and the father had mediated issues on a number of occasions in the past and had been unable to reach an agreement. Thus, she said that there was little point in being ordered to attend mediation again.
The father’s solicitor submitted that the father had been willing to attend mediation in an effort to conserve costs and because, in the past, he and the mother had managed to reach some resolution through mediation. The consent orders were made during the trial, about which the mother was very critical. Ultimately, it was submitted that the father agreed that, if possible, the matter should proceed without the need for further mediation. The solicitor said:
The position of my client is such that we would not oppose the matter proceeding without the parties attending mediation.
(Transcript p 10, line 12-13)
Thus the father agreed to support the mother’s application that compliance with s 60I be dispensed with when the matter returns to the judge’s list.
However, as we said to the mother in the course of the appeal, this court cannot order the judge to dispense with compliance with s 60I(7) and nor is agreement between the parties that there need not be mediation one of the grounds to exempt compliance with that section. Ultimately it will be a matter for the judge to determine when the matter returns to her list on 3 March 2014.
Turning to the application in an appeal filed by the mother. By that application the mother sought to adduce further evidence, but that further evidence did not indicate that the trial judge had erred in making the order the subject of the appeal, and thus that application must also be dismissed.
We sought submissions on the question of costs of the appeal and the father sought no orders for costs against the mother.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland and

Ainslie-Wallace JJ) delivered on 27 February 2014.

Associate:

Date: 28 February 2014