Hill & Weston
[2022] FedCFamC1A 98
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hill & Weston [2022] FedCFamC1A 98
Appeal from: Hill & Weston [2021] FedCFamC1F 174 Appeal number(s): NAA 26 of 2022 File number(s): SYC 1939 of 2016 Judgment of: ALDRIDGE, AUSTIN & WILLIAMS JJ Date of judgment: 1 July 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Procedural fairness – Where the primary judge made orders imposing a bond for the mother travelling overseas when it was not raised nor sought by the parties at trial – Where it is reasonably likely a different result may have flowed had the appellant been given the opportunity to make submissions – Adequacy of reasons – Where the reasons supporting the travel orders are insufficient – Where the reasons do not identify the appellant’s financial circumstances in ordering the payment of a bond particularly when finding travel to spend time with the maternal family would be beneficial – Where both the appellant and respondent sought the court’s discretion for the relevant appealed orders to be varied – Appeal allowed – Costs certificates orders for the appellant and respondent in relation to the appeal. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bhatnagar & Riju [2018] FamCAFC 144
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Saltern & Mink [2020] FamCAFC 320
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 38 Date of hearing: 29 June 2022 Place: Sydney Counsel for the Appellant: Ms Tabbernor Solicitor for the Appellant: Humphreys Family Lawyers Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Oakleys Law The Independent Children’s Lawyer: Filed Submitting Notice on 1 March 2022 ORDERS
NAA 26 of 2022
SYC 1939 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HILL
Appellant
AND: MR WESTON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, AUSTIN & WILLIAMS JJ
DATE OF ORDER:
29 JUNE 2022
THE COURT ORDERED ON 29 JUNE 2022 THAT:
1.The appeal be allowed.
2.The orders made on 4 November 2021 be varied as follows:
(a)Order 21 be varied to delete the words “until 12 April 2026” and substitute “until 12 April 2023”;
(b)Order 22 be varied to delete the words “That upon B turning twelve (12) years old, the mother be permitted to take B out of Australia for a period of up to three (3) weeks to the United Kingdom”
and substitute:
“That upon B turning nine (9) years old, the mother be permitted to take B out of Australia for a period of up to four (4) weeks to a country that is a signatory to the Hague Convention”;
(c)Order 22(c) be varied to delete the words “twenty eight (28) days” and substitute “twenty-one (21) days”;
(d)Order 28 be varied to delete the words “and proof of lodgement of the bond required by Order 22(d) and (e) above”.
3.Orders 22(d) and 23 of the 4 November 2021 orders be discharged.
4.In the event the appellant or the respondent’s overseas travel time impacts on either or the other’s spend time regime, the parent whose time has been affected shall be provided with makeup time, as agreed, and failing agreement, during the long summer vacation or school holiday period/s immediately following the child’s return to Australia.
5.The Court grants to the appellant a costs certificate pursuant to the provisions of 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 the appellant in respect of the costs incurred by the appellant in relation to the appeal.
6.The Court grants to the respondent a costs certificate pursuant to the provisions of 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 the respondent in respect of the costs incurred by the respondent in relation to the appeal.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hill & Weston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & WILLIAMS JJ
By a Further Amended Notice of Appeal filed 6 June 2022, the appellant appeals against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 4 November 2021.
The parenting orders provide for the parties to have equal shared parental responsibility for their only child (“the child”), the child live with the appellant, spend time with the respondent including during school holidays and on special occasions, the child’s name to be placed on the airport watch list and upon the child turning 12 years old, permitting her to travel to the United Kingdom with the appellant and internationally with the respondent.
There is no appeal against the parental responsibility or live with orders. The appealed orders provide for a bond to be paid by the appellant prior to the child travelling internationally with her, the child’s international travel commencing when she turns 12 years of age, inconsistencies between the conditions for each parent to travel internationally with the child and a failure to provide make up time for the appellant, in the event international travel impinges on her time with the child.
The appellant complains the primary judge failed to accord him procedural fairness, take into account material relevant facts, provide adequate reasons and to give any or adequate weight to relevant evidence.
The respondent initially resisted the appeal but at the hearing he agreed that the appeal should be allowed and remedial orders made. The Independent Children’s Lawyer (“ICL”) filed a Submitting Notice on 1 March 2022.
Notwithstanding the consent of the parties, the Full Court must be satisfied that there has been an appealable error before it allows the appeal (Bhatnagar & Riju [2018] FamCAFC 144 at [3]). We were so satisfied and on 29 June 2022 we made the above orders. These are our reasons for doing so.
Ground 1 was not pressed.
BACKGROUND
The appellant is aged 37 and was born and raised in the United Kingdom. She is now an Australian permanent resident and lives in Sydney. The respondent is aged 39, was born in Australia and lives in Victoria.
The parties commenced a relationship in 2012 and began residing together in Melbourne in mid-2013. They separated in 2016, when the appellant and the child relocated to Sydney. There is one child of the relationship now aged eight.
In April 2016, the appellant commenced proceedings under Pt VII of the Family Law Act 1975 (Cth). The final hearing before the primary judge took place for three days, commencing on 22 September 2021.
The issues in the proceedings were the appellant’s unilateral relocation with the child to Sydney, her intention to relocate to the United Kingdom (which was not pressed during the trial), holiday time the child would spend with each parent and the child’s right to travel internationally to the United Kingdom where the appellant’s family reside. The appellant sought orders the child remain living with her in Sydney and spend time with the respondent in Melbourne. The respondent sought orders for the child to relocate to Melbourne.
Ultimately, the primary judge made orders for the child to remain living in Sydney with the appellant and to spend time with the respondent in Melbourne, including during school holidays. Orders were also made for the child, upon her attaining 12 years of age, to travel internationally with each parent. The orders enable the appellant to take the child to the United Kingdom for a period of up to three weeks, subject to her providing 28 days’ notice and travel particulars to the respondent and payment of a bond to the respondent’s solicitors. The orders enable the respondent to take the child overseas for a period of up to four weeks, subject to him providing 21 days’ notice and travel particulars to the appellant.
GROUNDS OF APPEAL
Ground 3
In making the international travel Orders in respect of the [appellant] (Orders 22, 23 and 24), and keeping the child on the watchlist until the age of 12, (Order 21), His Honour erred by failing to provide any, or adequate reasons for:
(a) The setting of a bond, and in particular, in the amount of $40,000 and otherwise denying the [appellant] procedural fairness in the setting of such an amount; and
(b) Inconsistencies in Orders 22 and 24 in respect of the [appellant] travelling overseas versus the [respondent], including restrictions on the [the appellant’s] destination, that the father is afforded more travel time, the [respondent] is accorded make up time and differences in provision of travel documents
and in doing so, made an Order unsupported by evidence.
We deal firstly with this ground because it alleges a denial of procedural fairness, which must be considered first by an intermediate appellate court (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
The specific complaints under this ground are twofold. Firstly, it was contended the primary judge failed to accord procedural fairness to the appellant by imposing and fixing the quantum of a bond. Secondly, the primary judge failed to provide any or adequate reasons for both the imposition of a travel bond, discrepancies between the conditions of international travel for each parent and why travel should be delayed until the child reached 12 years of age.
A significant dispute in the trial was the child’s right to travel to the United Kingdom with the appellant, which the respondent consistently opposed. The primary judge dealt with the issue of overseas travel at [171]–[175] of the reasons. At [175], the primary judge set the bond at $40,000, if the appellant wished to travel to the United Kingdom with the child between the ages of 12 and 16.
Dealing with the first particular, the appellant contended no party sought an order during the trial that she should be required to pay a bond prior to travel, the primary judge did not raise with the parties he was considering an order for the appellant to do so, nor did he invite submissions about the quantum of any proposed bond. The primary judge’s failure to do so was a fundamental and material failure of procedural fairness, so that the orders made cannot be maintained.
Not every denial of procedural fairness vitiates the appealed orders and warrants a retrial (Stead v State Government Insurance Commission (1986) 161 CLR 141 (“Stead ”)). It must be demonstrated that the error of law and consequential denial of procedural fairness was material to the outcome of the appellant’s case.
As to the correct test to be applied, in Stead the High Court said, at 147:
Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
The appellant bears the onus of not only demonstrating error, but that a different result might have flowed had the legal error not occurred (Allesch v Maunz (2000) 203 CLR 172; Saltern & Mink [2020] FamCAFC 320).
We agree with the appellant’s submission pertaining to a denial of procedural fairness. Prior to ordering a bond, it was incumbent on the primary judge to raise the issue with the parties, both as to imposition of a bond and the quantum, to enable relevant submissions to be made. An examination of the transcript demonstrates that did not occur.
As to the second limb, it is reasonably likely that a different result might have flowed had the appellant been afforded an opportunity to make submissions about her limited financial means and inability to pay a bond. The imposition of a bond would prevent the child and the appellant from travelling internationally to spend time with the extended maternal family, which is inconsistent with the findings of the primary judge that the child would benefit from time with the maternal family overseas. There is merit in this ground.
We now turn to the complaint about adequacy of reasons.
The appellant complains the reasons of the primary judge supporting the travel orders made are wholly inadequate. Specifically, the primary judge failed to identify or engage applicable legal principles, failed to identify what may change in the future to undermine the appellant’s willingness to return to Australia to justify the imposition of a bond, failed to adequately identify the appellant’s financial circumstances and provided no reasons to substantiate a finding the child should be permitted to travel to the United Kingdom once she turns 12 years of age, other than he considered the proposal of the ICL to that effect was reasonable (at [174]). Furthermore, there were no reasons why orders permit the child to travel internationally with the respondent, on more favourable terms than those applicable to the appellant. The discrepancies include the child’s international travel with the appellant is limited to the United Kingdom, whereas the child is permitted to travel anywhere internationally with the respondent, the appellant is permitted to travel for three weeks, whereas the respondent is permitted to travel for four weeks, the appellant is required to provide 28 days’ notice of proposed travel, whereas the respondent is required to provide 21 days’ notice and the respondent is entitled to make up time if the international travel impinges his time with the child, whereas the appellant is not so entitled.
The appellant contended the primary judge did not provide any reasons why he prioritised the imposition of a bond over the benefit of travel, nor did he articulate why such an order would be in the child’s best interests.
The obligation of a trial judge is to provide adequate reasons, but adequacy depends on the circumstances of the case and brief reasons are not necessarily inadequate. What is necessary is that the essential grounds upon which the decision rests should be articulated and the path of reasoning be disclosed. Failure to do so will constitute an error of law: DL v The Queen (2018) 266 CLR 1 at [32]–[33] (Kiefel CJ, Keane and Edelman JJ) and [130]–[132] (Nettle J).
We accept the appellant’s submissions. The reasons of the primary judge pertaining to overseas travel do not articulate the essential grounds of reasoning to substantiate the differing requirements for overseas travel imposed on the appellant and the respondent, why the child’s international travel should be delayed until 12 years of age, and why one parent should be entitled to make up time, when the other is not. There is merit in this ground.
Ground 4
In setting a bond amount of $40,000, His Honour failed to take into account material facts, being the [appellant’s] financial situation (noting that she was represented by way of a grant of legal aid) such that the making of the bond amount made the order nugatory.
This complaint essentially mirrors Ground 3. An examination of the reasons of the primary judge does not identify any consideration of the factors relevant to the quantum of the bond, nor to the appellant’s financial circumstances, other than the remark, “despite her present financial circumstances, things may be different by the time the child is 12” (at [175]).
Both parties filed a Financial Statement in the proceedings. The appellant’s Financial Statement filed on 3 September 2021 discloses limited financial capacity. She is employed and has a weekly income of $652 and otherwise receives social security and child support. Her assets are negligible and Legal Aid funded her legal costs.
The reasons do not identify what the appellant’s financial circumstances were at the time of the trial, despite the filing of a Financial Statement, nor why the primary judge found (at [175]) “things may be different” by the time the child attains 12 years of age, in the absence of evidence to justify this finding or that requiring the appellant to pay a bond would render the child’s right to travel nugatory.
There is merit in this ground.
Ground 5
His Honour erred in failing to give any, or adequate weight, to evidence in respect of whether or not she was a flight risk in being allowed to travel to the UK with the child.
The appellant’s complaint under this ground is the failure of the primary judge to accord significant weight to evidence of whether or not she was a flight risk, if the child were permitted to travel to the United Kingdom.
The appellant seeks to challenge a discretionary judgment with all the difficulties that entails. It is sufficient to say that having regard to the principles set out in House v The King (1936) 55 CLR 499 at 504–505 and Gronow v Gronow (1979) 144 CLR 513 at 519–520, we are not satisfied that error has been established.
DISPOSITION
Grounds 3 and 4 of the appeal are sustained.
Both the appellant and the respondent sought this Court exercise its discretion and vary the relevant appealed orders, as neither party sought to adduce further evidence.
The variations to the orders proposed by the appellant and the respondent permit the child to travel internationally upon her attaining nine years of age, similar terms and conditions of international travel for both the appellant and the respondent, make up time for both parties if international travel impinges on their respective time with the child, the discharge of orders requiring the appellant to pay a bond and orders consequential to the imposition of a bond.
We considered it appropriate to exercise our discretion and made the orders sought by both the appellant and the respondent, which address the errors of the primary judge.
COSTS
None of the parties sought an order for costs against other parties.
Both the appellant and the respondent sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). As the appeal succeeds in part on an error of law, the appellant and the respondent are granted costs certificates in relation to the appeal.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Williams. Associate:
Dated: 1 July 2022
4
11
0