Hart & Sellwood
[2016] FamCAFC 254
•2 December 2016
FAMILY COURT OF AUSTRALIA
| HART & SELLWOOD | [2016] FamCAFC 254 |
| FAMILY LAW – APPEAL – JURSIDICTION – Where order pursuant to s 11F of the Family Law Act 1975 (Cth) that the parents and child attend upon a family consultant for assessment – Whether s 11F order is a “decree” capable of appeal – Whether leave to appeal is required – Whether s 11F order a “child welfare matter” as defined in reg 15A(2) of the Family Law Regulations 1984 (Cth) – Consideration of reg 15A(2)(c) of the Regulations and s 61B of the Act – Where s 11F order is an order in relation to an aspect of parental responsibility – Leave to appeal not required. FAMILY LAW – APPEAL – CHILDREN – Where final parenting orders made six months before respondent commenced fresh proceedings – Where threshold Rice and Asplund (1979) FLC 90-725 issue to be determined as a discrete hearing - Whether the primary judge erred in making the s 11F order without considering best interests of the child – Where the primary judge erred in failing have regard to evidence relevant to the exercise of that discretion – Appeal allowed – Order set aside – Proceedings remitted for rehearing. FAMILY LAW – COSTS – Respondent to pay appellant’s costs. |
| Family Law Act 1975 (Cth): ss 4(1), 11F, 60CE, 61B, 64B, 69ZX(3), 94AAA, 94AA, 117 Family Law Regulations 1984 (Cth): reg 15A |
| Commonwealth v Mullane (1961) 106 CLR 166 Marsden v Winch (2009) 42 Fam LR 1 Medlow & Medlow (2016) FLC 93-692 Morton & Berry (2014) FLC 93-613 Penfold v Penfold (1980) 144 CLR 311 Rice and Asplund (1979) FLC 90-725 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 SPS and PLS (2008) FLC 93-363 Tallant & Kelsey (2016) FLC 93-742 Walter & Walter [2016] FamCAFC 56 |
| APPELLANT: | Ms Hart |
| RESPONDENT: | Mr Sellwood |
| FILE NUMBER: | NCC | 2817 | of | 2013 |
| APPEAL NUMBER: | EA | 117 | of | 2016 |
| DATE DELIVERED: | 2 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Murphy JJ |
| HEARING DATE: | 16 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 2061 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Fowler |
| SOLICITOR FOR THE APPELLANT: | Byrnes Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Carty (by direct brief) |
Orders
The appeal be allowed.
That order (1) made by Judge Myers on 8 July 2016 be set aside.
That the matter be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Myers.
That the father pay the mother’s costs of and incidental to the appeal within twenty eight (28) days of agreement or assessment.
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 Hart & Sellwood 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 NEWCASTLE |
Appeal Number: EA 117 of 2016
File Number: NCC 2817 of 2013
| Ms Hart |
Appellant
And
| Mr Sellwood |
Respondent
REASONS FOR JUDGMENT
Ms Hart (“the mother”) and Mr Sellwood (“the father”) are unable to agree about the amount of time their 12 year old son should spend with the father. This and a multitude of other parenting matters are the subject of final parenting orders made by Judge Coakes on 23 June 2015. The orders followed a defended hearing which lasted four days and at which both parties had the benefit of legal representation.
One of the few matters upon which the parties agree is that it is in their son’s best interests to live with the mother. Thus the pivotal issue for the trial was the amount of time the child should spend with the father, particularly during school term. In essence, the father sought to continue the existing five nights each fortnight arrangement with him, but rather than have those periods broken up, for the child to be with him for a continuous period. On the other hand, the mother sought to reduce the child’s time with the father to three nights each alternate weekend. As to time during school term, orders were made as sought by the mother.
Although the father did not appeal against these orders, some six months later he commenced proceedings in the Federal Circuit Court of Australia, relevantly, concerning the child’s time with him. Although it was understood that the father sought an increase in that time, he did not initially say how the 2015 orders should be varied. He simply indicated that those details would be provided after the parties attended a family dispute resolution practitioner. The father’s application was duly amended and by way of final and interim orders he sought to increase the child’s time with him during school term to five nights per fortnight.
The mother sought that the father’s application be dismissed. She invoked the principle in Rice and Asplund (1979) FLC 90-725 and argued that it would not be in the best interests of the child for him to be the subject of further litigation. The parties agreed that this issue would be dealt with as a preliminary matter and the proceedings were listed for a determination of that threshold issue by Judge Myers on 8 July 2016. Directions were made for the parties to file affidavit evidence which they did.
However, at the commencement of the hearing, the primary judge permitted counsel for the father to make an oral application for an order pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) for the parties and child to attend an appointment with a family consultant, in relation to which a Children’s and Parents Issues Assessment would issue. The application was opposed by the mother on the basis that it would not be in the best interests of the child for him to be further embroiled in the litigation, and in particular to attend a family consultant interview for the purpose of discussing the ongoing parental dispute.
On any view the question of whether or not an order should be made was a discrete issue of small compass, albeit potentially of real significance to the child.
The trial transcript and reasons for judgment establish that the primary judge viewed the application as “a procedural application” and, perhaps as a consequence:
(a)said he would not consider any of the evidence adduced in the mother’s case;
(b)did not consider any of the evidence adduced in the mother’s case;
(c)failed to consider the reasons for judgment delivered by Judge Coakes (see s 69ZX(3) of the Act); and
(d)failed to consider whether the child’s attendance for a s 11F assessment was in the best interests of the child.
It would seem that based on Morton & Berry (2014) FLC 93-613 the primary judge considered he was bound by that authority to obtain a report as to the child’s views concerning time. It is on this basis that the s 11F order was made. The primary judge did not identify the basis upon which he formed this understanding of Morton & Berry and, with respect to his Honour, the decision does not establish the principle he attempted to draw from it. None of those who appeared at the trial or before us suggested it did.
The mother appeals the making of the s 11F order.
Orders of 8 July 2016
The primary judge made orders as set out below:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Pursuant to section 11F of the Family Law Act 1975 the parties attend a child inclusive child dispute conference with a family consultant in this Registry on a date to be advised AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court AND the Applicant and Respondent are to do all things necessary to facilitate the attendance of the child/children promptly at the commencement of the conference.
THE COURT REQUESTS THAT the family consultant ascertain the child’s views about the father and how much time he might spend with the father
2.The matter is adjourned to 21 September 2016 at 9.00 am for a directions hearing in the Federal Circuit Court of Australia sittings at Wauchope for the purposes of allocating a date to determine the Rice & Asplund argument and the threshold issues between the parties.
THE COURT NOTES THAT:
A.Counsel has made enquiries and ascertained that [Ms J] is available to interview the parties and the child on 30 or 31 August 2016.
(Original emphasis)
It is important to recall that a child cannot be required to express his or her views in relation to any matter (s 60CE of the Act). We are thus somewhat troubled that his Honour’s “request” proceeds on the apparent basis that the family consultant would require the child to express his views on the nominated subject matter. We assume this was not his Honour’s intention and trust this style of “request” is not common place.
The nature of the order
A number of preliminary questions arise about the nature of the s 11F order which must be determined before we turn our attention to what are said to be errors of law which vitiate his Honour’s determination. The preliminary questions are:
a)Is the s 11F order a “decree” as defined in s 4(1) of the Act?
b)If that question is answered in the affirmative, is the s 11F order an interlocutory order in relation to a “child welfare matter” as defined in reg 15A(2) of the Family Law Regulations 1984 (Cth) (“the Regulations”)?
c)If the s 11F order is not a child welfare matter, has the mother established a basis for a grant of leave to appeal (Medlow & Medlow (2016) FLC 93-692)?
The significance of the first question is that unless the s 11F order is a decree as defined, there is no right of appeal including an appeal with leave.
Appeals to the Family Court from a judge of the Federal Circuit Court exercising original jurisdiction are governed by s 94AAA of the Act. Relevantly, s 94AAA(1) provides:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; or
(b) a decree or decision of a Judge of the Federal Circuit Court of Australia exercising original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
Section 94AAA(1) is subject to s 94AA which provision sets out the circumstances in which leave to appeal is required. This is a matter to which we will return.
The word “decree” in s 94AAA(1) is defined in s 4(1) of the Act as:
decree means decree, judgment or order and includes:
(a) an order dismissing an application; or
(b) a refusal to make a decree or order.
By reference to Commonwealth v Mullane (1961) 106 CLR 166 at 169 and Tallant & Kelsey (2016) FLC 93-742 at [22], counsel for the father argued that the s 11F order is not a “decree” and that this court was “without jurisdiction” to determine the appeal. It was argued that the “order” was no more than a ruling on a point of law, or perhaps a determination in relation to a matter of practice and procedure.
Mullane was concerned with whether a ruling on a point of law amounted to a judgment, decree or order (or sentence). The High Court determined it did not and there was no right of appeal. Tallant concerned the same issue but in relation to a ruling on the admissibility of evidence. The Full Court, per Ryan J at [22], said:
Her Honour’s decision did not determine the proceedings or an identifiable part of them. It was a decision which could be varied without the intervention of an appeals court. It is telling that the decision would not be entered in the records of the Court. In my view, the facts of this case are on all fours with the decision in Mullane and no appeal lies against the decision of the primary judge.
As we will now explain we are satisfied that the s 11F order is an “order” and, thus, a “decree” to which s 94AAA(1) applies.
First, the provision under which his Honour ordered the parties and child to attend upon the family consultant speaks of it being an order. Section 11F(1) provides:
(1) A court exercising jurisdiction in proceedings under this Act may make either or both of the following kinds of order:
(a) an order directing one or more parties to the proceedings to attend an appointment (or a series of appointments) with a family consultant;
(b) an order directing one or more parties to the proceedings to arrange for a child to attend an appointment (or a series of appointments) with a family consultant.
Note: Before exercising this power, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).
In both s 11F(2) and (3) there is the reference to “making an order under subsection (1)” and phrases of that ilk. Although it is accepted that merely because a document is issued as an “order” it does not necessarily follow that the “order” is one to which s 94AAA(1) applies (Tallant), the categorisation of the judicial act taken under s 11F(1) as an “order” is strongly indicative that this is what it is.
Secondly, we reject the submission that his Honour’s decision did not determine an identifiable part of the proceedings. Clearly, the s 11F order determined whether or not the child should attend a family consultant.
Thirdly, as counsel for the father properly acknowledged, it is telling that the s 11F order would be entered in the records of the court (r 16.07(1)(e) Federal Circuit Court Rules 2001 (Cth)).
Finally, as was conceded by counsel for the father, the order was coercive and in the event of non-compliance, contravention and enforcement proceedings could be brought.
We have no doubt that his Honour made an “order” within the meaning of s 4(1) and, thus, a “decree” within the meaning of s 94AAA(1) with the consequence that the court’s jurisdiction is engaged.
Is the order in relation to a “child welfare matter”?
In the event we were satisfied that the s 11F order is a decree, it was agreed that it is an interlocutory order and thus, by reference to s 94AA(1) and reg 15A(1) it was necessary to consider whether the order is a prescribed decree. If it is a prescribed decree, pursuant to s 94AA(1) leave to appeal is required. Notwithstanding that the order is an interlocutory decree, leave to appeal pursuant to s 94AA(1) would not be required if the order is in relation to a child welfare matter. The phrase “child welfare matter” is defined in reg 15A(2) as follows:
(2) In this regulation:
child welfare matter means a matter relating to:
(a) the person or persons with whom a child is to live; or
(b) the person or persons with whom the child is to spend time or communicate; or
(c) any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.
Sub-regulations (a) and (b) have no application. Hence, the question to be answered is whether an order pursuant to s 11F is in relation to “any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child”.
The meaning of parental responsibility contained within Part VII of the Act is found in s 61B of the Act. Section 61B provides:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
We emphasise the use of the word “all” in s 61B. Although counsel for the father did not concede the point, we are satisfied that whether or not a child should attend a family consultant (or counsellor) is an aspect of the “powers, responsibilities and authority” parents have in relation to children. It is a child’s parents, acting in the exercise of their individual and collective powers, responsibilities and authority who decide whether or not to take a step on the basis of the welfare of the child objectively assessed (Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 240). An order coercive of one or both parents in respect of any such step is an “…aspect of parental responsibility, within the meaning of Part VII of the Act, for a child” (reg 15A(2)(c)).
In the event we so found, counsel for the father appropriately conceded that the s 11F order is an order to which reg 15A(2)(c) applies.
It follows that this is an order in relation to a child welfare matter and leave to appeal pursuant to s 94AA(1) is not required.
As the second question has been answered in the affirmative, it is not necessary for us to consider the third preliminary question.
Grounds of Appeal
The various challenges raised by the mother can be distilled to a single proposition, namely, whether the primary judge erred in the exercise of his discretion in making the s 11F order by failing to take into account relevant considerations. It is contended that his Honour failed to take into account the evidence adduced in the mother’s case and her argument that his Honour was required to consider the best interests of the child in considering whether to involve the child in a further report and yet further conflict between his parents about him.
As to the latter point, it is well settled that a Rice and Asplund threshold issue is to be determined by reference to the best interests of the child (Marsden v Winch (2009) 42 Fam LR 1; Walter & Walter [2016] FamCAFC 56).
In SPS and PLS (2008) FLC 93-363, Warnick J said at [81]:
[I]n my view, when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking upon a hearing. Though sometimes unstated, the underlying conclusion will or ought be, that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
Although an order pursuant to s 11F is not a parenting order as defined (see s 64B), it involves the powers and authority which a child’s parents have to require (or refuse) the child’s attendance on a family consultant. It too, was to be decided by reference to the best interests of the child.
In Walter, the Full Court considered an appeal against a judge’s refusal to order a family report for a Rice and Asplund threshold hearing. At [109], Murphy J explained that where a court has decided to address the rule as a preliminary matter, the court in the exercise of its discretion must also decide “the necessary ambit of the evidence and proceedings necessary to decide the preliminary issue”.
Murphy J continued:
110.The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
111.In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
112.However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
(Original emphasis, footnotes omitted)
Although in this case the primary judge was charged with the same exercise of discretion, as we have pointed out at the outset of these reasons his Honour failed to take account of a number of aspects of the evidence directly relevant to the exercise of that discretion. For example, Judge Coakes’ reasons for judgment contain numerous findings which would undoubtedly have given the primary judge serious reason to doubt whether a s 11F order would be in the best interests of the child. We need only refer to Judge Coakes’ findings at [71], [245] and [264] to establish the point. These passages are set out below:
71.[The family consultant] made a particularly pertinent observation in my view when she said that if the parents continued to involve [the child] in the conflict, then they should be aware of the impact on [the child’s] emotional and psychological state which would be such that he may develop depression, anxiety, obsessive compulsive disorder, oppositional defiant disorder and/or an eating disorder. Additionally, they may find that as he enters his adolescent years he may use alcohol and drugs as a way to escape from the parental conflict and pressure.
…
245.Whilst that may be an appealing submission, it is incorrect. The father’s availability which has been lacking on some occasions and to which I have referred and the father’s completely inappropriate behaviour towards the mother leads to a very clear necessity in my view for the time to be less than five days. The mother has felt besieged by the father’s continuing conduct toward her and the risk lies in her parenting ability being further attacked or undermined if [the child] spends extended periods with the father. There is a further risk of which the mother gave evidence as to stability for [the child] being crucial particularly with his homework, seeing a tutor, and feeling comfortable moving between the two homes.
…
264.It is for the father to reflect on the adverse findings I have made about his conduct toward the mother and desist from such behaviour. If he fails to do so he will do nothing but harm further his relationship with his only son.
As we said earlier, although the decision was potentially of real significance to the child, it was of small compass. Brief reasons for judgment were all that was required and the primary judge’s reasons were succinct. However, even brief reasons must demonstrate that the primary judge understood the principles relevant to his exercise of the relevant discretion and exhibit the relevant considerations that have informed the exercise of that discretion. With respect, his Honour’s reasons do not and we are otherwise unable to see how his Honour has turned his mind to those relevant considerations.
Error is established.
Conclusion and Costs
It follows that the appeal should be allowed, the order set aside and the proceedings remitted to a judge other than the primary judge.
If the appeal succeeded, the mother sought that the father pay her costs calculated on a party/party basis. The father resists the application for costs.
An application for costs is governed by s 117 of the Act. Section 117(1) sets out the general rule that each party to proceedings shall bear his or her own costs. The general rule is subject to s 117(2) which permits the court to make an order for costs where there are justifying circumstances (Penfold v Penfold (1980) 144 CLR 311).
We accept the proposition advanced by the mother that the father has been wholly unsuccessful in the proceedings constitutes circumstances that justify an order for costs in her favour. Although this does not mean that costs follow the event, in this case, this factor weighs heavily in favour of an order for costs. The father (who we note is a practising lawyer) asserts that the “propositions of law” advanced on his behalf were “arguable” and that this militates against an order for costs being made against him. We disagree.
The order sought by the mother is appropriate and will be made.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered (Ainslie-Wallace, Ryan and Murphy JJ)_on 2 December 2016.
Associate:
Date: 2 December 2016
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