Hartnett-Dean and Dean (No. 2) - [2012] FamCAFC 158

FAMILY COURT OF AUSTRALIA

HARTNETT-DEAN & DEAN (NO. 2)

[2012] FamCAFC 158

FAMILY LAW – APPEAL – CHILDREN – Where the Federal Magistrate made final orders in relation to living and schooling arrangements – Where the recommendation of a Family Report was that living arrangements for the children not be determined on a final basis until the father’s living circumstances were settled – Where the Federal Magistrate referred to parts of the Family Report however neither acknowledged nor provided reasons for not following the clear recommendation – Appealable error demonstrated – Where there have been changes in circumstances since the time of the hearing – Appeal allowed and matter remitted for rehearing.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Bennett v Bennett (1991) FLC 92-191
Re F: Litigant in Person Guidelines (2001) FLC 93-072
Gronow v Gronow (1979) 144 CLR 5
House v The King (1936) 55 CLR 499
Sun Alliance Insurance Ltd v Massoud (1989) VR 8

APPELLANT:

Ms Hartnett-Dean

RESPONDENT:

Mr Dean

FILE NUMBER:

BRC 8831 of 2007

APPEAL NUMBER:

NA 11 of 2012

DATE DELIVERED:

12 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

12 September 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

9 December 2011

LOWER COURT MNC:

[2011] FMCAfam 1294

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Waterman

SOLICITOR FOR THE APPELLANT:

Davey Law

THE RESPONDENT

In person

Orders

The appeal be allowed.
Paragraphs 1, 2, 3, 9, 10, 11 and 13 of the orders made by Federal Magistrate Howard on 9 December 2011 be set aside.
Until the further hearing or earlier orders, interim orders are made in terms paragraphs 2, 3, 9, 10, 11 and 13 of the orders made by Federal Magistrate Howard on 9 December 2011.
The parenting applications be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Howard.
There be no order as to costs of the application in an appeal filed

6 February 2012 and allowed on 22 May 2012.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (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 mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 each of the parties in respect of the costs incurred by them in relation to the re-hearing.

IT IS REQUESTED: the matter be listed for mention in the Federal Magistrates Court as soon as possible.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hartnett-Dean & Dean (No. 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 11 of 2012
File Number: BRC 8831 of 2007

Ms Hartnett-Dean

Appellant

And

Mr Dean

Respondent

REASONS FOR JUDGMENT

This is an appeal from parenting orders expressed as being on a final basis made by Federal Magistrate Howard on 9 December 2011. Various orders were made in relation to two children, A born in February 1999 and B born May 2001. At the time of the trial in November 2011 the children were aged twelve and ten respectively. In particular, orders were made for where they live, spending time with their parents, education and health arrangements.
The mother’s appeal concerns living arrangements for the child A only. It was ordered that A live in alternating weeks with each parent.
The mother also complains about orders made in relation to the children’s high schooling arrangements. In that respect it was ordered that the father maintain his primary residence sufficient to satisfy the School X local catchment area enrolment requirements, in order for the children to attend School X throughout their high school years. Provision was made in the orders for the child B to sit a scholarship exam at School Y. The mother would prefer the boys attended that school.
The mother appeals from all of the orders made and asks that the application for parenting orders be remitted with priority to be heard by a Federal Magistrate other than Federal Magistrate Howard. It is also asked that an updated Family Report be produced.
Counsel for the mother explained three main grounds to the appeal. First that orders should not have been made on a final basis in view of contrary recommendations in the Family Report, namely that the matter ought be returned for final determination after the father had established his living arrangements. Second that the Federal Magistrate provided inadequate reasons for the making of final orders especially in the circumstances of the Family Report recommendations. Third is a complaint about the absence of procedural fairness afforded to the mother during and after the hearing.

Background

It is not necessary to set out at any length the history of this matter other than to refer to the reasons given by me on 22 May 2012 when I allowed the mother an extension of time in which to file her appeal.
The main dispute between the parties relates to the child A, the issues being the amount of time he is to spend with each parent, and the school he should attend.
The submissions of the father filed on 7 September 2012 describe the changes in his own living arrangements to accord with the orders. He reports that the child A is well settled into School X, participating in sports and excelling academically. The father explained the child was content with the living arrangements and he did not think it would be in A’s best interests to continue the litigation. The father’s employment with the Government is tenuous and his financial situation is such that he is unable and unwilling to incur further legal costs, and could not afford to pay private school fees for attendance at

School Y.
It may well be, as the father says, that he has complied with the orders which obviate the need for change to the arrangements and that the child is well settled into both the schooling and equal time arrangements. However, as the information had not been filed in an appropriate affidavit format with notice to the mother and an opportunity for her to reply, it is not possible to assess his purported evidence. Aside from the mother’s inability to reply, some of the matters raised by the father may well be controversial.

Relevant Principles

The well settled general appellate principles applicable to discretionary judgments were enunciated in House v The King (1936) 55 CLR 499 where it was said at 504-505:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
In the marriage of Bennett (1990) 14 Fam LR 397 the Full Court (Nicholson CJ, Simpson and Finn JJ) considered the authorities regarding the adequacy of reasons. It was held that the test propounded by Gray J in Sun Alliance Ltd v Massoud [1989] VR 8 was “particularly useful”. This test prescribed:
The adequacy of 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 stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficient 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.

Discussion

The real difficulty in this matter which, as I have explained to the parties demonstrates to me appealable error, is the Federal Magistrate’s treatment of the Family Report.
Both children and the parents were interviewed on 14 November 2011. The report was released to the parties on 18 November and the hearing held on

21 November 2011. The reasons for judgment were delivered ex tempore on the day of the hearing, and the final orders made on 9 December 2011. The Family Report Writer was not called as a witness at the hearing.
The following evaluations and recommendations from the Family Report are relevant to the mother’s appeal:
Evaluation
Clearly the most pressing issue to resolve is the schooling for [A] in 2012 when he commences his secondary education. At this stage he has a confirmed position at [School X]. The mother would like him to attend [School Y] although recognises that he is unlikely to now get a position for the beginning of term one. The mother would like to be able to revisit the option of attending [School Y] if a position comes up during the year.
…
The parents agree that the boys have a valuable relationship with each of them. The boys have lived primarily with their mother since separation and also have a strong relationship with their father…The boys’ preference for time with their father must be looked at in relation to their experience of time on weekends when there is less pressure to get homework and other chores done. Nevertheless their desire to spend more time with their father is seen as positive by both parents.
The father would like the boys to live with him and to spend time with their mother. At this stage it is not certain whether the father will be living as he intends to purchase a house once the school issues are resolved. It would be helpful if the father was settled in his residence before a final evaluation of the boys living arrangements are made. At present the boys share a room with their father when they stay at the [father’s] house which is not ideal for long periods. The boys also appreciate having time where they can have space from one another.
Ongoing court proceedings and uncertainly are stressful for both the parents and the boys particularly [A].
Future Directions
A final decision about funding [School Y] school fees needs to be resolved. If it found that attending [School Y] is financially viable after [A] has commenced as [School X] then [A’s] opinion should be sort [sic] before a decision is made for him to leave [School X].
The time the boys spend between their parents [sic] households should be resolved after the father has established his living arrangements.
(emphasis added)
The Federal Magistrate referred to the Family Report, which was made Exhibit 1 in the proceedings. His Honour did not however, mention or discuss at all the second of the Family Report Writer’s recommendations, that living arrangements not be determined on a final basis until the father had established his living arrangements. Counsel for the mother referred to the transcript, where the mother had reminded the Federal Magistrate at the conclusion of the hearing:
MS [HARTNETT-DEAN]: Your Honour, I just wanted to remind you of the family report writer where she recommended that the living environment at [the father’s house] is not ideal and that a decision on where [A] lives isn’t made until the respondent is settled.
HIS HONOUR: Yes. Thank you for that. Now, what I’m going to do, I’m going to stand down now and I will say not before 2.30 come back, and I intend to give my decision then.
His Honour appears to have favoured bringing finality to the litigation as a reason for the making of final rather than interim orders, referring to the stress caused to the child A by the parents’ dispute as expressed to the Family Report Writer:
34.[A], unfortunately, is quite stressed about all of these events and this Court case. [The Family Report Writer] stated:-
“He was teary during the interview and clearly finds his parents’ dispute stressful.”
35.There needs to be a resolution quickly for his sake…
(original emphasis)
Indeed his Honour referred to the s 60CC consideration about whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child as the reason for making final orders:
49.That is why I would like to put in place clear and definite orders relating to [A] and [B], and in particular relating to their high schooling. Any such order will need to accommodate the possibility that [B] may win a scholarship to [School Y]. If that occurs, it seems to me more likely than not that he will attend that school, and that is precisely the matter upon which I will want to hear submissions shortly.
While the Federal Magistrate’s reasons for making final rather than interim orders (the mother’s first complaint) can be said to follow a clear reasoning process, it cannot be said that those reasons were sufficient where there was a clear Family Report recommendation that the orders for living arrangements be treated differently. In the face of that evidence, though not obliged to follow that recommendation, his Honour was required to acknowledge the recommendation and provide reasons for not following it. The mother’s first and second complaints are therefore made out.
In addition to the failure to give reasons about the Family Report, there is a noticeable absence of reasons in relation to issues of equal shared responsibility. The Federal Magistrate said of this, at paragraph 51, there would be an order for equal shared parental responsibility, though the rationale was not explained. Unfortunately this does not find its way into the orders, they having been drafted by the parties.
In light of the change in circumstances, the possibly controversial evidence of the father, and the clear need for an updated Family Report, it is not appropriate for me to re-exercise discretion in this matter. The parenting application must be remitted to the Federal Magistrates Court for rehearing.
Appealable error has been demonstrated. The parties agree that the expedient disposition of the matter is most important to the best interests of the children. It is not necessary to deal at length with the mother’s complaint about a denial of procedural fairness other than to refer to the following observations. The parties represented themselves at the hearing and there was no explanation by the Federal Magistrate at the outset of the proceedings as to matters of which self represented litigants are generally unaware (see Re F: Litigant in Person Guidelines (2001) FLC 93-072).
The practice which a number of Federal Magistrates have adopted in asking parties to provide the settled orders after hearing the reasons was also a problem in this case. Apart from the parties being self represented, they did not have the reasons in writing at the time they were asked to submit the orders.

Costs

In the event that the appeal was successful, counsel for the mother sought a costs certificate in respect of the appeal, and the rehearing. The father had not incurred legal costs for the appeal, however is entitled to a costs certificate for the purposes of the rehearing. As the appeal is to be allowed because of errors by the Federal Magistrate as described, those are the appropriate orders to make.
The costs of the mother’s application in an appeal for an extension of time heard on 22 May 2012 were adjourned to this hearing. As the father incurred no legal costs and the extension of time was granted but attributable to the mother’s own but short delay, the appropriate order is that there be no order as to costs for that application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 12 September 2012.

Associate:

Date: 12 September 2012