Hickson & Matthew

Case [2022] FedCFamC1A 161

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Hickson & Matthew [2022] FedCFamC1A 161

Appeal from: Matthew & Hickson [2022] FedCFamC2F 201
Appeal number(s): NAA 87 of 2022
File number(s): BRC 1533 of 2019
Judgment of: MCCLELLAND DCJ
Date of judgment: 11 October 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from orders changing the child’s residence from living with the mother to the father – Where the primary judge ordered unsupervised time with the mother despite finding of unacceptable risk for the child in the mother’s care – Adequacy of reasons – Non sequitur exists between unacceptable risk finding and order for unsupervised time with the mother – Error established – Appeal allowed – Matter remitted for re-hearing – Costs certificates granted for the appeal and re-hearing.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 65DAA

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 25

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23

Blinko & Blinko [2015] FamCAFC 146

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Edhouse & Edhouse [2022] FedCFamC1A 84

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235

M v M (1988) 166 CLR 69; [1988] HCA 68

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255

N v S (1996) FLC 92-655; [1995] FamCA 139

Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316

Nikolakis & Nikolakis [2010] FamCAFC 52

Whisprun Pty Ltd formerly Northeast Exports Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Chisholm, Richard “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010)

Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249
Number of paragraphs: 60
Date of hearing: 20 September 2022
Place: Brisbane (via videolink), delivered in Sydney
Counsel for the Appellant: Ms Chekirova
Solicitor for the Appellant: Geldard Sherrington Lawyers
Counsel for the Respondent: Mr Hii
Solicitor for the Respondent: Neilson Stanton & Parkinson
Counsel for the Independent Children's Lawyer: Ms Murphy
Solicitor for the Independent Children's Lawyer: Life Law Solutions

ORDERS

NAA 87 of 2022
BRC 1533 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS HICKSON

Appellant
AND:

MR MATTHEW

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

11 October 2022

THE COURT ORDERS THAT:

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Details
AGLC
Hickson & Matthew [2022] FedCFamC1A 161
Case
[2022] FedCFamC1A 161
Decision Date

CaseChat Overview and Summary

The appeal in Hickson & Matthew concerns the determination of parenting arrangements for a child, where the primary judge ordered unsupervised time with the mother despite finding an unacceptable risk for the child in her care. The appellant mother, Ms Hickson, appealed the decision, arguing that the primary judge's orders were inadequate and contained a non sequitur. The Federal Circuit and Family Court of Australia Appellate Division considered the appeal and found merit in the arguments presented by the mother and the Independent Children's Lawyer (ICL).

The legal issues before the court were whether the primary judge's reasons were adequate, and if there was a non sequitur between the unacceptable risk finding and the order for unsupervised time with the mother. The court also considered if there was an error in the primary judge's failure to explain the application of s 65DAA of the Family Law Act 1975 (Cth) considerations in respect to the period prior to the child commencing school.

The court found that the primary judge had failed to provide adequate reasons for ordering unsupervised time with the mother, given the finding of unacceptable risk. The court found that a non sequitur existed between these two findings, which constituted an error of law. The court also noted that the primary judge did not consider the practicality of the child spending equal or substantial and significant time with the mother in the period before the child commenced school in 2024, which was an error of significance in the context of these proceedings.

The appeal was allowed, and the matter was remitted for re-hearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge. Costs certificates were granted for both the appeal and the re-hearing. The court found it appropriate to grant the parties costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

NAA 87 of 2022

BRC 1533 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS HICKSON

Appellant

AND:

MR MATTHEW

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

11 October 2022

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Orders 26, 27, 28 and 29 made on 25 February 2022 are set aside.

3. The proceedings are remitted for re-hearing by a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

4. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (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 her in respect of the costs incurred by her in relation to the appeal.

5. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (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 him in respect of the costs incurred by him in relation to the appeal.

6. The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (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 him in respect of the costs incurred by him in relation to the appeal.

7. Each party is granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to each party in respect of such part, as the Attorney-General considers appropriate, of any costs incurred by each party in relation to the new trial granted by these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For reasons which I explain, I am satisfied that those aspects of the appeal, as supported by the ICL, have merit and the matter should be remitted for rehearing before a judge of the Court other than the primary judge.Background It is helpful to briefly set out the relevant background facts that are pertinent to this appeal. In doing so, I draw substantially on [6] of the reasons and a helpful summary provided in the father’s Summary of Argument for this appeal. The father is 28 years of age and lives in City A. The mother is 32 years of age and lives in the City B district of Queensland, which is approximately 90 kilometres from the father’s residence. The parties commenced cohabitation in August 2017 and lived together until August 2018. The child was born in 2018 but, as result of complications associated with her birth, the child and the mother remained in hospital until August 2018. The parties separated approximately three weeks after the child’s birth in circumstances where the mother alleges that the father had engaged in an act of family violence resulting in the child being struck on the side of the head with a mobile phone. On 22 November 2018 on a “without admissions” basis, the father consented to the making of a Protection Order naming the mother as the aggrieved and the child as a protected person. That order was specified to remain in place until 20 September 2023. Despite the existence of the protection order, the mother facilitated the child having contact with the father for six visits during the period from November 2018 to 8 January 2019. On 8 January 2019, the mother ceased time between the father and the child. On 11 February 2019, the father filed an Initiating Application in the Federal Circuit Court of Australia (as it was then known) seeking orders inter alia for the child to live with him and spend time with the mother. On 1 July 2019, consent orders were made which provided for the parents to have equal shared parental responsibility, for the child to live with the mother and spend time with the father on a graduated basis, commencing at four hours every Saturday for a month, supervised by the mother and then for a period of a month with the mother supervising only the first hour of time that the child spent with the father. The orders provided for time to progress after that period such that the father spend four hours of unsupervised time with the child each Saturday until the child reached 18 months of age. On 26 September 2019, those orders were varied by a registrar of the Court to provide for the child to spend fortnightly, as opposed to weekly, time with the father. The parties were also directed to enrol in a Triple P Parenting Program and Managing Emotions Program. On 18 February 2020, orders were made for the child to spend time with the father from 8.00 am to 4.00 pm each alternative Saturday on an unsupervised basis, commencing on 29 February 2020. Orders were further made directing the parties to attend a Parenting Orders Program.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The failure to provide adequate reasons explaining that non sequitur constitutes an error of law.Failure to explain application of s 65DAA considerations in respect to period prior to the child commencing school Having determined that it is appropriate for orders to be made providing for the parents to equally share parental responsibility, s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) required the primary judge to consider whether the child spending equal time or substantial and significant time with each of the child’s parents would be in the best interests of the child. The primary judge specifically considered that issue and referred to her conclusion at [108] of the reasons that: Equal time and substantial and significant time are impractical given the distance the parties live apart once the child commences school.(Emphasis added) The primary judge did not, however, consider the practicality of the child spending equal or substantial and significant time with the mother in the period prior to the child commencing school in 2024. This is an error of significance in the context of these proceedings where the child, at just four years of age has, by the orders made by the primary judge, been removed from the care of her primary attachment figure and will spend just three nights per fortnight with her mother and no additional time during school holidays until 2024. In that respect, it is to be noted that the orders provide for the changeover of the child spending time with the father to that of the mother to occur mid-week. No explanation has been provided by the primary judge as to why it would be impracticable for that changeover to occur on another night, other than Thursday night, such that the child spends equal time with each parent or, at least, a greater amount of time with the mother. Disposition Accordingly, for these reasons I am satisfied that Ground 8 of the appellant mother’s grounds of appeal has merit and the appeal should be allowed. All parties, appropriately, in my view, accepted that, in the event of the Court finding that the learned primary judge had failed to provide adequate reasons regarding those matters of significance to which I have referred, the appropriate order would be for the matter to be remitted for rehearing rather than for the appellant court to re-exercise discretion. In those circumstances, it is unnecessary to consider the other grounds of appeal.Costs Given that the appeal is allowed for an error of law, I consider it appropriate to grant the parties costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the re-hearing.