Herbert & Herbert
[2019] FamCAFC 149
•30 August 2019
Family Court of Australia
| Herbert & Herbert | [2019] FamCAFC 149 |
| FAMILY LAW – APPEAL – PARENTING – Where the mother appeals interim parenting orders – Where the orders discharged a previous interim order made which provided for the mother to spend unsupervised time with the children in alternate weekends – Where a Recovery order was issued – Where the Recovery order has expired so the appeal in that regard has no utility – Where the mothers application to adduce further evidence is dismissed on the basis that the material that the mother seeks to adduce is not relevant to the issues on the appeal – Where there is no merit in the grounds that the mother agitates – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 60CC Family Law Rules 2004 (Cth) Ch 16 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Herbert & Herbert [2018] FamCA 690 Herbert & Herbert [2019] FamCA 5 Mifsud v Campbell (1991) 21 NSWLR 725 |
| Appellant: | Ms Herbert |
| Respondent: | Mr Herbert |
| Independent children’s lawyer: | Lyrene Wiid Lawyer & Migration Agent |
| File Number: | BRC | 4902 | of | 2017 |
| Appeal Number: | NOA | 11 | of | 2019 |
| DATE DELIVERED: | 30 August 2019 |
| Place Delivered: | Brisbane |
| Place Heard: | Brisbane |
| Judgment of: | Ainslie-Wallace, Watts & Carew JJ |
| Hearing date: | 30 August 2019 |
| Lower court jurisdiction: | Family Court of Australia |
| lower court judgment date: | 10 January 2019 |
| LOWER COURT MNC: | [2019] FamCA 5 |
REPRESENTATION
| THE Appellant: | In person |
| SOLICITOR FOR THE RESPONDENT: | Rosen Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Slade Jones |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lyrene Wiid Lawyer & Migration Agent |
Orders
The appeal against the Order made on 10 January 2019 by Forrest J is dismissed.
The Application in an Appeal to adduce further evidence filed by the mother on 8 August 2019 is dismissed.
There be no order as to costs.
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 Herbert & Herbert 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 BRISBANE |
Appeal Number: NOA 11 of 2019
File Number: BRC 4902 of 2017
| Ms Herbert |
Appellant
and
| Mr Herbert |
Respondent
and
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
WATTS J
By an Amended Notice of Appeal filed on 12 April 2019, Ms Herbert (“the mother”) appeals orders made by Forrest J on 10 January 2019. The orders concern the two children of the parties, X, who was born in 2003 and Y who was born in 2004. Mr Herbert (“the father”) and the Independent Children’s lawyer oppose the appeal.
His Honour’s orders, which are the subject of the appeal, discharge an order that the mother spend unsupervised time with the two children of the relationship and his Honour also made a Recovery Order in relation to the child X. The Recovery Order was expressed to remain in force for a period of six months. Obviously, that period has now expired.
Some brief factual background, taken from his Honour’s reasons for decision of 10 January 2019 gives understanding to the issues raised in the appeal (Herbert & Herbert [2019] FamCA 5).
There were on foot at the time the orders were made, what his Honour correctly described as “high conflict, difficult and complicated” parenting proceedings between the parties which had not been finally determined.
Following the parties’ separation and until 7 September 2018, the children had principally lived with the mother. There was an interim order to that effect made on 20 March 2018.
On 7 September 2018, his Honour made interim parenting orders to be given effect on that day which provided that X and Y live with the father and spend no time nor communicate with the mother without the father’s consent. His Honour’s orders further provided for family therapy. The reasons for these orders are published (Herbert & Herbert [2018] FamCA 690) and there was no appeal from these orders.
On 7 December 2018, on the mother’s application and over the opposition of the father and the Independent Children's Lawyer, his Honour ordered the children to spend unsupervised time with the mother each second weekend from
9.00 am on Saturday until 5.00 pm on Sunday commencing on the weekend of
8 and 9 December 2018.
The matter next came before his Honour on 10 January 2019, on the father’s urgent application in which he sought a Recovery Order in relation to X who had not been returned to the father’s care on Sunday 6 January 2019 in accordance with his Honour’s orders. Y had been returned to his father at the end of the weekend. His Honour noted at [7] that X was, in fact, returned to his father’s care on the Tuesday 8 January 2019 but early on the morning of 9 January 2019, without the father’s knowledge, the child left his father’s house and rode his pushbike to the mother’s house.
The mother said that she attempted to return the child to the father, however, the father was not home at the time and, rather than leaving the child there, she took him home with her. It seems that later that night the mother took X back to the father but the following morning, 10 January 2019, the child again left without the father’s knowledge and returned to the mother.
His Honour said at [9] of his reasons:
9.There are indeed disturbing events. It is disturbing that it reflects that this 15 year old boy is having some difficulties in dealing with the current living arrangements. Clearly, he is having some difficulties making the decision that he should stay at his father’s place, living with the determination made by this Court that it is in his interests to continue for the time being living at his father’s place. He is also having difficulties, as I see it on the facts as they are known to me, created by the position that I put in place in December that provided for him to be able to go back and spend unsupervised time in his mother’s care. I now accept that was a premature move.
His Honour concluded at [10] that the mother apparently had no capacity to persuade the child to remain living with his father in accordance with his Honour’s orders nor to persuade the child that to leave as he had done was not safe for him. His Honour concluded that it was in the child’s best interest for a Recovery Order to be made (at [11]).
His Honour further discharged the orders made on 7 December 2018 that provided for the children to spend unsupervised time with the mother.
Before turning to the Notice of Appeal, it must be understood and it is undisputed, that X was indeed returned to the father’s care. It is also apparent that there has been, in the time since the making of the Recovery Order, a final hearing of the parenting proceedings and on 2 August 2019, the primary judge reserved his decision in relation to them.
The mother, by Application in an Appeal filed 30 August 2019, seeks leave to adduce further evidence in the appeal. The evidence is said to demonstrate his Honour’s erroneous application of s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
The affidavit filed 8 August 2019 in support of the application refers to incidents and documents which predate the challenged orders, for example, the mother refers to an incident which occurred in July 2017 between the mother and father asserted to have been witnessed by the children. The affidavit further refers to and summarises part of a report dated 29 August 2018, produced following a Child Inclusive Conference.
None of the evidence proposed to be adduced is relevant to the issues sought to be argued on the appeal.
The basis on which further evidence will be received by the Full Court is limited and where, as here, the evidence is clearly controversial and its admission would amount to a rehearing of the proceedings, I would not grant leave to adduce the evidence.
However, no doubt all of these matters were considered by the primary judge in the final hearing of the parenting matter and will be reflected, so far as they are relevant, in his Honour’s reasons for decision.
The appeal
The mother’s Amended Notice of Appeal filed 12 April 2019 indicates that she appeals both the making of the Recovery Order and the order discharging the orders of 7 December 2018 that provided the children spend unsupervised weekend time with her. The mother’s challenges to his Honour’s order are not entirely easy to understand, they having been drawn by the mother who is acting for herself. However, the thrust of those challenges are that his Honour:
·Gave inappropriate weight to the mother’s lack of influence over X and to the child’s age, wishes and maturity (Grounds 4 and 8);
·Made a finding of fact that was not available on the evidence (Ground 7);
·Erred in the application of s 60CC of the Act (Ground 9);
·
Failed to take into account a domestic violence order made on
14 November 2018 (Ground 11);
·Failed to afford the mother procedural fairness in that she was not given a reasonable opportunity to be heard or respond to the father’s application for a Recovery Order or the order which restored the no time order, prior to those orders being made (Ground 12); and
·Failed to give adequate reasons for the orders made (Ground 13).
In the event that the appeal succeeds, the mother seeks that the Recovery Order be set aside. She further seeks the reinstatement of parenting orders made
20 March 2018.
However, setting aside the order made 10 January 2019 would not reinstate the 20 March 2018 orders. The operative orders would be those of the primary judge made on 7 September 2018 (providing for the children to live with the father) and varied by order on 7 December 2018 (providing for the mother to spend time with the children on alternate weekends).
Considering then so much of the appeal relates to the Recovery Order, it is clear that the order is spent, the six months of its operation having elapsed. Therefore, there can be no utility in the appeal and it will be dismissed.
Turning then to the mother’s challenges to his Honour’s discharge of the order of 7 December 2018, by which the children were to spend time with the mother each second weekend.
The mother contends that his Honour denied her procedural fairness in the manner in which the hearing took place.
It is to be noted that the urgency was created because the arrangements which his Honour had put in place on 7 December 2018 had seriously broken down and that X’s safety was at risk. Nevertheless, although the matter was brought back before his Honour urgently, the mother was afforded the opportunity to be heard and indeed statements made by her from the bar table are referred to in the primary judge’s reasons.
True it is that the mother did not receive the documents on which the father relied in making his urgent application until very shortly before the hearing commenced, however, the transcript demonstrates that his Honour gave the mother time to read them. Included in that material was correspondence by the mother explaining the circumstances as she saw them. His Honour then addressed the issues to be decided with the mother. The mother insisted that she had complied with the order to return the child but that he would not stay with his father.
During the argument on appeal, the mother did not point to any matter which she would have raised with his Honour had there been more time.
I find no support in the challenge that his Honour denied the mother procedural fairness before making the orders which he did.
The mother further argued that the primary judge failed to give adequate reasons for his decision to discharge the order providing that the children spend time with her each second weekend.
First, I point out that the order was made in circumstances where the seemingly undisputed facts were that, after the weekend with the mother no matter how the mother attempted to return the child to his father, X would not stay and continued to return to his mother’s house. Second, it is clear from the transcript and at [9] of the reasons as set out above, that his Honour accepted the Independent Children’s Lawyer’s submissions made on 7 December 2018, opposing the reinstatement of the mother’s time with the children had been prescient.
His Honour, having heard submissions from the parties and from the Independent Children's Lawyer, concluded that the difficulties X was having in dealing with the orders of 7 December 2018, evidenced that those orders had been made prematurely. That was the central reason why his Honour suspended the time that the children were having with the mother pursuant to the 7 December 2018 orders pending determination of the parenting issues in the final hearing.
It is important to understand that the matter had been placed in his Honour’s docket for final determination (see Chapter 16 of the Family Law Rules 2004 (Cth)) and was being managed by his Honour with the object of readying it for a final determination. As indicated, his Honour had earlier ordered that there be family therapy. The adequacy of reasons given must be measured against the circumstances of the particular case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA)). In that context, his Honour’s reasons delivered on the day of the hearing clearly demonstrate his thought process which led him to make the orders which he did.
In respect of the challenges that assert his Honour failed to consider matters set out in ss 60CC(2) and (3) of the Act when making an interim determination as to what is in the child’s best interests, again, those considerations need to be viewed in context. As the Full Court said in Goode & Goode (2006) FLC 93-286 at [74], the reasons given at an interim hearing, due to their circumscribed nature, may be brief. The primary judge found that X’s safety was at risk (s 60CC(2)(b)). This is to be given greater weight than the benefit of having a meaningful relationship with his mother (s 60CC(2A)). X’s views after spending time with his mother, expressed by his action, were referred to by his Honour (s 60CC(3)(a)). The parents’ ability and capacity, and particularly those of the mother’s, to have X do what the Court had found was best for him, was also considered by his Honour (s 60CC(3)(f) and (i)).
There is no merit in the Grounds which assert that the primary judge failed to consider matters that his Honour was required to consider.
Finally, the mother asserted that his Honour erroneously found that, by her returning the pushbike, she intentionally created a situation which enabled X to return to her. There is no reference to that in his Honour’s reasons.
In her Summary of Argument (page 5) (filed 17 May 2019), the mother refers to the following passage of the transcript:
[THE MOTHER]: How come their father can’t make them stay? Why didn’t he take his bike away? I gave him an opportunity.
(Transcript 10 January 2019, page 24, lines 23 to 24)
However, that part of the transcript does not support the mother’s contention.
However, what the mother seemingly is referring to is the following exchange between counsel for the Independent Children’s Lawyer and the primary judge:
HIS HONOUR: Does she support the notion that a recovery order should issue and that the boys’ contact with their mum be suspended again?
[COUNSEL]: She does. She does. My concern is that we’re dealing with a 15 year old and one thing I picked up from what mum was telling me was that she delivers the child back with his bicycle which he – which he then uses to cycle back to her place.
HIS HONOUR: Yes. She obviously knows that he’s going to get on it and ride back to her so she’s happy to deliver him back with it.
[COUNSEL]: Yes. So the only way that we can overcome the issues or the concerns that are being raised today is that there – the therapy between the father and the children should continue.
HIS HONOUR: Yes.
(Transcript 10 January 2019, page 20, lines 5 to 20)
Whilst the primary judge did not formally make a finding (as asserted by the mother), in the context of this interim hearing and given his Honour’s knowledge of the case, it was open to his Honour to express the view which he did. As is clear, the mother also had an opportunity to point out to his Honour that the father could have taken the pushbike away. There is no merit in Ground 7.
Thus I find no support for the mother’s challenges in relation to the discharge of the order and I would dismiss the appeal.
The orders I propose are that:
a)The appeal against the Orders made on 10 January 2019 by Forrest J is dismissed; and
b)The Application in an Appeal to adduce further evidence filed by the mother on 8 August 2019 is dismissed.
CAREW J
I agree with the orders proposed by Justice Watts and the reasons given.
AINSLIE-WALLACE J
I too agree with the orders proposed and the reasons delivered by Justice Watts for making them and therefore the orders of the Court will be:
(1)The appeal against the Orders made on 10 January 2019 by Forrest J is dismissed; and
(2)The Application in an Appeal to adduce further evidence filed by the mother on 8 August 2019 is dismissed.
(3)There be no order as to costs
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Watts & Carew JJ) delivered on 30 August 2019.
Associate:
Date: 24 September 2019
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