Hart & McGhie
[2009] FamCAFC 17
•10 February 2009
FAMILY COURT OF AUSTRALIA
| HART & MCGHIE | [2009] FamCAFC 17 |
| FAMILY LAW – APPEAL – Appeal from Federal Magistrate – Appeal from Parenting orders – Whether the Federal Magistrate erred in not providing adequate reasons for the orders made – Where there were no submissions at trial in relation to the orders made FAMILY LAW - APPEAL – Error – No reasons provided – Appeal allowed – Matter remitted to the Federal Magistrates Court for rehearing FAMILY LAW - COSTS – Orders made granting cost certificate to both parties pursuant to s 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981, s 6, 8 and 9 |
| Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 |
| APPELLANT: | MS HART |
| RESPONDENT: | MR MCGHIE |
| FILE NUMBER: | NA | 84 | of | 2008 |
| APPEAL NUMBER: | LEC | 75 | of | 2007 |
| DATE DELIVERED: | 10 February 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 9 February 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 July 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 776 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Jensens Solicitors & Attorneys |
Orders
The appeal is allowed.
That paragraphs 6, 8, 9, 10 and 11 of the orders as amended on 26 August 2008 be set aside.
That the matter be remitted for rehearing in relation to the issues raised in those paragraphs, before a Federal Magistrate other than Federal Magistrate Coates.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 the appellant in relation to the appeal against the parenting orders.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent in relation to the appeal against the parenting orders.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.
IT IS NOTED that publication of this judgment under the pseudonym Hart & McGhie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 84 of 2008
File Number: LEC 75 of 2007
| MS HART |
Appellant
And
| MR MCGHIE |
Respondent
REASONS FOR JUDGMENT
I mention at this introductory stage that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
The matter was heard in January, 2008 and the parties provided substantial written submissions. In this appeal from Federal Magistrate Coates the judgment was delivered on 25 July 2008. Orders were first made on 13 August 2008, after a further hearing on 30 July 2008 and 13 August 2008. The orders were amended on 26 August 2008.
The mother appeals from only part of the orders which included provision for both parenting and property orders. To appreciate the issue raised in the appeal it is necessary to set out the relevant orders:
6.The children live with the father for four weeks of the school holidays each year as agreed between the parties and in the absence of an agreement then as follows:
(a)For the first week of the Christmas school holidays commencing on a Saturday that includes Christmas day in odd numbered years;
(b)For the second week of the Christmas school holidays commencing on the Saturday including New Year’s Day in even numbered years and provided the mother gives notice to travel overseas for a four week period during the Christmas school holidays, the child will spend the first week of the Christmas school holiday period with the father concluding at 1pmon [sic] Christmas Day;
(c) For the last week of the Christmas school holidays;
(d)For half of the Autumn, Winter or Spring school holidays being the first half in odd numbered years and the second half in even numbered years with the father to provide six weeks notice to the mother confirming that he has holiday leave available to him and can spend time with the children in the said forthcoming holidays. In the event the father does not spend time with the children pursuant to this Order then Orders 4 and 5 shall continue to apply during one week of the said school holiday period. In the event the father does spend time with the children pursuant to this Order then Orders 4 and 5 are suspended for the said school holiday period only and shall recommence during the school term on the first Tuesday and on the first weekend.
…
(8)The children spend one half of Christmas Day with the parent they are not living with from 1.00pm to 7.00pm.
(9)Either parent shall be entitled to make one overseas trip with the children in each calendar year for a period of up to three weeks extending to four weeks in the Christmas school holidays or until the children attend school and the travelling parent shall give to the other parent at least two months notice of the intended dates for departure and return including details for communicating with the children during the time the children are with the travelling parent, certified copies of the tickets of the children and travelling parent and a full itemised travel itinerary. The travelling parent shall meet all costs associated with such travel. Once the children attend school then two weeks of travel to be during school holiday times.
(10)The children not to be overseas within three days of the father’s birthday, the mother’s birthday, the children’s birthdays and Christmas so that the children can spend time with the other parent on those days.
(11)In the event the children travel to the United Kingdom pursuant to Order 9 the travelling parent shall arrange for the children to spend seven days with the children’s grandparents being the parents of the parent not travelling such time to be consecutive and include overnight stays.
In essence, the basis of the mother’s appeal is the failure of the Federal Magistrate to give reasons for those orders.
Judgment
In a lengthy judgment which is described on the first page as being “Corrected” the Federal Magistrate explained the issues before the court being primarily parenting orders where the mother wanted to relocate to the United Kingdom with the children J, born May 2002 and G, born November 2004 and a property division between the parties. As his Honour said:
15.The decision on parenting orders revolved around the application to relocate the children from Australia to the United Kingdom. An unusual aspect of this case was that neither parent had an issue as to the other parent’s ability and capability to provide proper parenting for the children.
The only part of the judgment which albeit remotely refers to the orders ultimately made from which there is an appeal are paragraphs 57 and 58:
57.He said the mother had been to the UK four or five times since 2002 with the children for extended periods and on their return the children did “not readily know who I am”. He was putting forward a case that the benefit of the children having a meaningful relationship [(s60CC(2)(a)] with him would be severely compromised. He does not object to them travelling to the UK to meet and stay with extended family members on both sides of the family (which the mother has fostered), but he objects to them going for a great length of time.
58.The mother gave evidence of her proposed UK visit after separation. The father objected to the children going for eight weeks but would approve of four. This shows that the father wants his relationship with the children to flourish [s60CC(3)(b)] and that he is prepared to allow but define the time they be away from him. It was also an issue as to the willingness and ability of the mother to ensure the relationship flourishes [s60CC(3)(c)] and of her capacity to ensure the children’s needs are met [s60CC(3)(f)]. While short periods away were not being objected to by the father, he does not want a permanent separation from the children. The fact that the father then wanted a bond of $20,000.00 before agreeing to the last travel indicated that he worries about the mother’s capacity to make a decision to return the children, although that was not put to her.
It is correct as Mr Pellandine, the solicitor for the respondent explained, that the orders made by the Federal Magistrate in relation to the time the children may spend out of the country were in very similar terms to that as sought by the father. There was no reference in the judgment to the order sought by the mother in her Amended Application for Final Orders in paragraph 8 as follows:
8)Should the MOTHER continue to live in Australia then the MOTHER shall be permitted to make one trip to the United Kingdom with the children in each calendar year for a period of up to six (6) weeks to coincide with the children’s school holidays. The MOTHER shall give to the FATHER at least two (2) months notice in writing of her intended dates of departure and return, including contact details during the time the children are with the MOTHER in the United Kingdom and a fully itemised travel itinerary. The FATHER shall meet all the costs of such travel.
Nor was there any mention that the mother asked to take the children to the United Kingdom, should there be a family emergency.
There was no discussion in the judgment of the parties’ respective cases and why the father’s application should be preferred over the mother’s. As there is a complete absence of reasons in the judgment it was thought appropriate to examine the transcripts of the two other occasions the matter was before his Honour to see if there was any illumination there as to why his Honour made these orders.
The submissions made to the Federal Magistrate on 30 July, 2008 were in relation to a shared parenting order and there were no submissions in relation to the orders now under appeal. In the submissions made by the parties on 13 August 2008 there were various discussions about the orders made by the Federal Magistrate. It can be seen at page 9 of that transcript there was reference to a previous interim hearing in April 2007. The Federal Magistrate said, commencing at the bottom of page 9 over to page 10:
FEDERAL MAGISTRATE: … At trial, which is what I’ve done, I’ve actually looked at what both parties’ evidence-in-chief is and listened to answers and I have made decisions on the answers and if you recall, I have referred to, in those reasons, the father’s attitude towards time with the children, all right?
Unfortunately, as I have mentioned there are no reasons provided in relation to any of the orders under appeal. The mother then complained to the Federal Magistrate that he had not taken into account her case but instead had:
MS [HART]: … actually copied and pasted the final orders from the husband’s ---
FEDERAL MAGISTRATE: Well my reasons stand in relation to that.
(see T/script p.28 l.2-5)
Again unfortunately, it can only be said that there were no reasons.
Principles
There is no doubt that a ground of appeal may be absence of reasons. Numerous cases both in this and other courts have described the importance of the provision of reasons. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279, McHugh JA said:
... without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as "a necessary incident of the judicial process" because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court consisting of Fullagar, Gray and Tadgell JJ, followed the principles to which I have just referred. Gray J, who delivered a principal judgment, said, at p.18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
While it is true that there is no need for there to be a microscopic analysis of the evidence, it must be apparent what the basis of the decision of the trial Judge was in leading to the orders made.
Having appropriately conceded that there were no reasons, Mr Pellandine referred me to the decision in Towns & Towns (1991) FLC 92-199. He submitted that in this case the Federal Magistrate had hinted at reasons and that it was possible to discern the path upon which he must have come in making the orders. It is of course correct that it is not necessary to deal with every piece of evidence and make explicit findings however, as I have already said, it is necessary that there be some reasons given so that at the least the parties know and understand why the decision was made.
conclusions
Unfortunately, in this case, the trial Judge having gone to considerable effort to make a decision in relation to whether the mother could relocate to the United Kingdom and various property orders, failed to provide any reasons at all in relation to the orders appealed. For example, there are no reasons given as to why a period of four weeks rather than six weeks was to be preferred, there are no reasons as to why the children could not be overseas at the same time as their father’s birthday or that Christmas Day must be shared by the parents. These provisions placed considerable limitations on the ability of both parents to have uninterrupted time with the children. It is not possible to otherwise understand why these orders were made. The appeal must be allowed.
In the absence of any reasons for these orders and the small body of evidence to support each of these orders, regrettably the matter must be reheard. The mother does not appeal against all of the parenting orders made by the Federal Magistrate so it is necessary only to order a rehearing in relation to those issues contained in the orders and their respective applications.
costs
At the conclusion of the appeal, Mr Pellandine asked for an order providing for a certificate pursuant to the Federal Proceedings (Costs) Act 1981 for the costs of the appeal and the retrial. Ms Hart indicated that she had some expenses in relation to the preparation of the appeal and she ought also have such certificates.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 10.02.09
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