Hinkler and Hinkler - [2011] FamCAFC 181

FAMILY COURT OF AUSTRALIA

HINKLER & HINKLER

[2011] FamCAFC 181

FAMILY LAW – APPEAL – CHILDREN – INTERIM PARENTING ORDERS – where the Federal Magistrate ordered that the child commence spending overnight time with the father – whether the Federal Magistrate denied the parties procedural fairness – where the Federal Magistrate failed to ensure the parties were aware that an interim hearing was being conducted – where neither party had sought an interim hearing – where the Federal Magistrate failed to afford the parties the opportunity to make adequate submissions – where the Federal Magistrate had regard to a report of the Family Consultant which was not properly before the Court – where the Federal Magistrate’s brief reasons did not follow the legislative pathway set out in Goode & Goode (2006) FLC 93-286 – explanation of the need to follow that pathway in single issue interim parenting determinations – appealable error found – appeal allowed – order set aside.

Family Law Act 1975 (Cth) s 69ZR, s 69ZU

Goode & Goode (2006) FLC 93-286
Miller v Harrington (2008) FLC 93-383
U v U (2002) 211 CLR 238

APPELLANT:

Ms Hinkler

RESPONDENT:

Mr Hinkler

FILE NUMBER:

NCC

3182

2008

APPEAL NUMBER:

2011

DATE DELIVERED:

7 September 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn & Loughnan JJ

HEARING DATE:

25 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

12 July 2011

LOWER COURT MNC:

[2011] FMCAfam 714

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Kelly
SOLICITOR FOR THE APPELLANT:	Hunter Family Law Centre

COUNSEL FOR THE RESPONDENT:	Ms Burns
SOLICITOR FOR THE RESPONDENT:	Craney Family Solicitors

Orders

The appeal against the orders made by Federal Magistrate Baumann on 12 July 2011 be allowed.
Order 1 of the orders made on 12 July 2011 be set aside.
There be no order for costs in relation to the appeal.
The Court grants to the appellant mother 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 the Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father 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 the Act to the respondent father in respect of the costs incurred by him in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Hinkler & Hinkler is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 81 of 2011
File Number: NCC 3182 of 2008

Ms Hinkler

Appellant

And

Mr Hinkler

Respondent

REASONS FOR JUDGMENT

This is an appeal by the mother of a seven year old boy against orders made on an interim basis by Baumann FM on 12 July 2011 which varied existing interim orders to have the effect that the child would immediately commence spending overnight time with his father on one night in each alternate weekend. The orders were stayed on 15 July 2011 pending the determination of this appeal.
Although there were 22 grounds of appeal, Counsel for the mother was able to address those grounds in two broad groups, the first being complaints regarding a lack of procedural fairness, and the second being complaints relating to the adequacy of the reasons for the orders having regard to the principles set out in Goode & Goode (2006) FLC 93-286.

The procedural fairness challenge

The procedural fairness grounds included complaints that his Honour had failed to ensure that the mother’s legal representatives understood that a hearing in which interim orders would be made was in fact being conducted in circumstances where neither the mother, nor the father, had sought an interim hearing, and to ensure that the mother’s legal representatives had the opportunity to make adequate submissions. It was also asserted that in reaching his decision, his Honour had taken into account a report from a Family Consultant which was not properly before the Court.
In order to determine if these complaints have substance, it is necessary to explain briefly how the matter had come before his Honour, and then to examine the course of the proceedings once they were before him.

The factual background to the procedural fairness challenge

The mother and father had separated in August 2008 after a four year relationship during which the child had been born in June 2004.
On 12 December 2008 the father filed an application in the Federal Magistrates Court at Newcastle seeking final orders whereby the parties would have equal shared parental responsibility for the child, and the child would live week about with each parent. By way of interim orders the father sought that the child live with him until the mother had “stable and secure accommodation”.
The mother filed her response on 23 February 2009 seeking both final and interim orders for sole parental responsibility, that the child live with her, and spend supervised time with the father for two hours each alternate Saturday.
On the first return date of the father’s application on 3 March 2009, orders were made by Coakes FM for a Family Report, and interim orders were made by consent providing for the child to live with the mother and have supervised time with the father.
In the first Family Report issued on 17 November 2009, a Family Consultant, Mr P, recommended that the child live with the mother and see the father on a graduated basis leading after about six months to overnights each alternate weekend. It was also recommended that the father provide evidence of his alcohol free status to the mother’s legal representatives and that he undertake a parenting course. (It is not clear from Baumann FM’s reasons for judgment in relation to the orders appealed, or from the relevant transcripts, whether his Honour read the first report before he made the orders appealed. But ultimately nothing turns on this.)
The matter was then listed for final hearing on 6 May 2010, but was not reached. Some further interim orders were made by consent, but they did not alter the arrangement whereby time spent with the father was supervised.
The matter was again listed for final hearing on 4 August 2010, but again was not reached.
Prior to the anticipated hearing date on 4 August 2010, the mother had filed a case outline on 30 July 2010 in which in addition to orders that the child live with her and she have sole parental responsibility for him, she had sought that the time which the father spent with the child continue to be supervised for a further six months and that then after a further six months of unsupervised day time contact, overnight contact commence on each alternate weekend.
On 2 August 2010 the father had filed a case outline from which it appears that he was continuing to seek equal shared parental responsibility and a week about living arrangement for the child.
It appears that following a call-over before Baumann FM on 23 September 2010, the matter was subsequently listed on 30 November 2010 for final hearing before his Honour on 28 February 2011.
Unfortunately, the matter was again not reached on 28 February 2011. However on that day his Honour made orders for an updated Family Report and he adjourned the matter to 9:30am on 20 June 2011 “for directions”.
Also on 28 February 2011 interim parenting orders were made by consent, which relevantly for present purposes, provided for the father to have unsupervised time with the child on each alternate weekend, but not on an overnight basis, and also for the parties to have equal shared parental responsibility.
An updated Family Report was then prepared by Mr P. It was released to the parties on 10 May 2011. In it Mr P recommended that the child “commence spending overnight time with his father immediately” on an alternate weekend basis.
In accordance with the orders of 28 February 2011 there was then a telephone hearing (of some ten minutes’ duration) before Baumann FM on 20 June 2011. At the commencement of the hearing his Honour said, “… I’ve read the family report that was released … on 10 May.”
There was then a brief discussion concerning the times for the then current arrangement for unsupervised time between the father and the child before his Honour himself raised with the legal representatives of the parties the issue of the child spending overnight time with his father in the following exchange:
HIS HONOUR: Well, I’m not worried about an hour in a day because the real issue here, is it not, is whether or not this child who is now seven should be spanning that gap between Saturday afternoon whenever it finishes and Sunday morning whenever it starts by spending overnight time with the father. [Mr P] says clearly he should.
[SOLICITOR FOR THE FATHER]: That’s right, your Honour. Yes.

HIS HONOUR: And the mother’s position is what?

[SOLICITOR FOR THE MOTHER]: Your Honour, that time is to start when he turns 10, your Honour.

HIS HONOUR: 10? But why – what’s magical about 10?

[SOLICITOR FOR THE MOTHER]: Your Honour, the mother is concerned, your Honour, that once the matter is over the father will resume drinking alcohol.

HIS HONOUR: Well, I understand that – that that’s a concern. That’s a matter taken up by [Mr P] in his report, and clearly the father and alcohol is not a good mix and he should be abstinent from utilising alcohol any time prior to the time, and any time the child is with him. The important issue for me is does your client produce, or is she able to produce any evidence at all that during the period that the child has been spending time with the father unsupervised – at least since February 2011 if not earlier – has she got any evidence at all that the father has been using alcohol during the period?

[SOLICITOR FOR THE MOTHER]: Your Honour, that’s a matter that I did raise with my client, and unfortunately I couldn’t take further instructions from her because there was no interpreter present, so I was unable to get those instructions from my client, and the interpreter was not available this morning, and …

HIS HONOUR: Well, let me make it clear to you, [solicitor for the mother], based on this report, unless your client can produce some very, very convincing evidence that the father has been having unsupervised time with the child and being affected by alcohol, I can’t see why I would feel reluctant to progress at the next stage to overnight time. I don’t see anything magical in the age of 10, or anything unmagical in the age of seven.
(Transcript, 20 June 2011, p 2-3)

Then a little later the following exchange occurred:
HIS HONOUR: There is no evidence before the family consultant – or I should say to you, [solicitor for the mother], before the court, to suggest that the father is either abusing or consuming any alcohol currently. Now, I need the father, within seven days, [solicitor for the father] - - -
[SOLICITOR FOR THE FATHER]: Yes, your Honour.
HIS HONOUR: - - - to file and serve an affidavit – I will make this direction: the father shall within seven days file and serve an affidavit setting out what steps he has taken to deal with his previous use of alcohol in excess and confirming when he last used alcohol. Why doesn’t he just tell me on oath?
[SOLICITOR FOR THE FATHER]: Yes.
HIS HONOUR: And I’m going to give the mother seven days to file and serve an affidavit setting out the basis upon which she says the child should not now move to unsupervised time with the father. That’s seven days, so that’s next Monday, you file them, and then I’m going to deal with this next week. And, [solicitor for the mother], having your client say merely, “I don’t think he should have time till 10”, does not help me.
[SOLICITOR FOR THE MOTHER]: Certainly I’m mindful of that, your Honour.
HIS HONOUR: Because that’s just her swearing to the event.
[SOLICITOR FOR THE MOTHER]: Certainly, your Honour.
HIS HONOUR: And I’m going to list it before me at 9.30 on 29 June.
(Transcript, 20 June 2011, p 4-5)
Then after some discussion about the need for an interpreter for the mother (who is from Thailand) his Honour said:
HIS HONOUR: But, you know, she’s got the report, it has been hopefully read. There were – I don’t want to take the view – I’m not taking the view that the mother is just obstructing time progressing for no good reason. I accept there is a history here that was troublesome, but in the absence of evidence it’s a problem now, and in circumstances where [the child] seems to be enjoying his time with the father and there has been no event, I have to ask myself why I wouldn’t feel comfortable about the child spending overnight time, and I’m inviting the mother to let me know why.
(Transcript, 20 June 2011, p 6)
It will thus be seen that at the hearing on 20 June 2011 his Honour himself raised the issue of whether or not the child, now aged seven, should be spending overnight time with his father, given that the Family Consultant had said that he should. It will also be seen that his Honour had indicated that unless the mother could produce “very, very convincing evidence that the father has been having unsupervised time with the child and being affected by alcohol”, he would not “feel reluctant to progress at the next stage to overnight time”.
It will be further seen that his Honour then ordered both parties to file further affidavits within seven days, and he said that he was “going to deal with this next week”.
In our opinion, it would not have been clear to the parties what the purpose of the further affidavits was or what exactly it was that his Honour intended to deal with in the following week. It would certainly have not been clear that there was to be an interim hearing, particularly as the proceedings had already been listed for final hearing on several occasions. Further the time of commencement and the fact that both parties were granted leave to appear by telephone tended to suggest a mention rather than a substantive hearing of any kind.
These matters were unfortunately not clarified in the engrossment of the orders made on 20 June 2011, which simply provided:
1.This matter be adjourned to 9.15am on 29 June 2011 in the Federal Magistrates Court of Australia at Brisbane with both parties being granted leave to appear by telephone.
2.The Father shall within seven (7) days file and serve an affidavit setting out what steps he has taken to deal with his previous use of alcohol excess and confirming when he last used alcohol.
3.The Mother file and serve an affidavit setting out the basis upon which the child should not now move to unsupervised time with the Father. (original emphasis)
On 22 June 2011 the father filed an affidavit in which he claimed he had not had an alcoholic drink since 5 April 2009, and annexed medical and other material in support of this claim.
On 27 June 2011 the mother filed an affidavit in which she challenged the claims made in the father’s affidavit and annexed a report from a toxicology expert, Dr R, which commented on the medical evidence annexed to the father’s affidavit.
The matter then came before Baumann FM for a telephone hearing (approximately of some twelve minutes) on the morning of 29 June 2011.
Having referred to the fact that on the last occasion his concern was to “do [his] best to resolve this matter” and having heard from the mother’s solicitors that the matter had not been able to be resolved, his Honour discussed with the parties’ solicitors the contents of the recent affidavit of each party. His Honour then continued:
Now that’s the point we’re at. So we’ve got two ways of dealing with it. I don’t think either party can put forward more than they have now. I’ve got three bits of evidence, it seems to me, which I’m going to consider over the next day or so: one is the affidavit of [the father], of course; one is the affidavit of the mother that includes the – unsworn but nonetheless – forensic toxicologist’s report, and I don’t ignore, nor should I ignore the family report released on 10 May.
Now, I’m going to make some inquiries in – with my colleagues in Newcastle where I collected this matter on one of my travels about a trial, because inevitably it seems to me from everything I’ve read that even if the court was to order unsupervised time, that is an issue which would not sit comfortably with the mother and she would want to test all this evidence at a trial. I can’t test it today. That’s not the nature of interim proceedings. I can’t make findings of disputed facts. But all the time the court has to make an assessment of risk, it has to do it on the best it can on the evidence, and in the absence of the court being required as soon as there’s any possible risk, take a nil-tolerance position, which is in the law.
I have to assess that risk against all the other factors including the right of the child to have a meaningful relationship with the father. So because I’ve only just received this material, and can I thank both you, [solicitor for the father] and [solicitor for the mother] for so quickly putting some material before the court, I’m going to reward that, I think behaviour, by looking at this over the next couple of days, and I’m sitting in Melbourne next week but I will one day next week, early in the week, have my associate contact you a day or so before and give you details when I will deliver a very short oral judgment in relation to not only the interim issue but some directions for trial, having consulted probably Foster FM in Newcastle about his availability to hear this matter.
…
So one day next week I will give you a short judgment on that interim relief, and it seems inevitable that that’s not going to deal with the long term problem, and we will probably have to get the matter on for trial. Do you agree with that, [solicitor for the father]?
[SOLICITOR FOR THE FATHER]: Well, it seems so, your Honour, yes. It seems so.
…
HIS HONOUR: See, unfortunate as it is, that does seem the position. Do you agree, [solicitor for the mother]?
[SOLICITOR FOR THE MOTHER]: The mother’s position is that she wants this matter to be set for trial, your Honour, before – there is a step to overnight time, your Honour.
HIS HONOUR: Yes, I know she wants it before overnight time. That’s a point I’m going to consider. It’s within my discretion whether in fact I order overnight time for the trial. I understand that’s her position. I want to find out how quickly I can get a trial in the docket of Foster FM in Newcastle, but that isn’t a determinant. The determinant is, like every inch of application, making a decision on the evidence before the court, which is what I will do. Thank you, [solicitor for the mother]. Thank you, [solicitor for the father].
(Transcript, 29 June 2011, p 4-5)
It seems to us that even at that point the legal representatives of the parties might well not have been aware that his Honour was apparently of the view that he had conducted an interim hearing on the issue of the child spending overnight time with his father, and was proposing to deliver a decision on that matter. It might well have seemed to them, particularly having regard to the submission of the mother’s solicitor that she wanted a trial of the overnight issue and also to his Honour’s response that he would make enquiries about trial dates, that his decision would relate only to the future course of the matter.
On 12 July 2011 there was another telephone hearing before his Honour (apparently lasting 13 minutes) at the commencement of which he delivered an oral judgment in which he determined that it was in the child’s best interests to commence overnight time with the father immediately.

We will refer in greater detail to the content of his Honour’s settled reasons for judgment when we later consider the challenge to his orders based on adequacy of reasons. It need only be said at this point that his Honour made it clear in his reasons that in reaching his decision he had relied on the updated Family Report of Mr P, on the recent affidavits of each party (including Dr R’s report annexed to the mother’s affidavit), and on another affidavit of the father filed on 1 June 2011. His Honour acknowledged that all this material was “untested”.
However, importantly for present purposes, he made no reference (at least in his settled reasons) to the submissions made on behalf of the mother that she sought a trial of the overnight issue. In relation to matters of procedure, he referred only to his hope that the parties might have been able to “resolve the matter on a final basis” (paragraph 2) before saying:
3.Alas that cannot be achieved with the father urging the Court now to increase time to overnight spanning the Saturday and Sunday gap and the mother maintaining the position that overnight time is effectively unsafe for the child at this stage. The mother says that she believes the child will be in a position to extend time with the father overnight from the age of 10, which is approximately three years time.
It appears from the transcript that it was only after his Honour had delivered his judgment that he said that he would hear from the parties as to whether the matter should be listed for trial or whether it “would benefit from a further directions hearing to see whether the parties can narrow the issues and/or finally resolve the matter” (transcript, 12 July 2011, p 2).
Having heard from the parties’ solicitors, his Honour then listed the matter for trial on 11 and 12 October 2011 before Foster FM in Newcastle and made “the interim order” arising from his reasons delivered earlier, being:
(1)That Order 3.2 of Orders made on 28 February 2011 be varied so that, until further Order, the Father shall spend time with the child each alternate weekend from 9:30am on Saturday until 4:30pm on Sunday including during school holidays …

Issues and conclusion in relation to the procedural fairness challenge

It will be clear from observations which we made when outlining the course of the proceedings before his Honour, that we are concerned that his Honour never made it sufficiently clear to the parties that he was proposing to conduct, and did conduct, an interim hearing in relation to the issue of the child spending overnight time with his father. The importance of the parties understanding the nature of the proceedings which are being conducted was emphasised by the Full Court in Miller v Harrington (2008) FLC 93-383 on which Counsel for the mother relied before us.
It was particularly necessary in this case for his Honour to have ensured that the parties understood that he was proposing to conduct an interim hearing of the issue of overnight time given that neither party had asked for such a hearing, let alone an interim order in the terms of the interim order ultimately made. In this regard we consider, with respect, that his Honour put the matter too highly when he said in paragraph 3 of his reasons for judgment that “the father was urging the Court now to increase time to overnight …”.
It is now well established that a court can make a particular parenting order of its own motion and without application from any party, but that is of course subject to the parties having the opportunity to be heard in relation to the proposed order (U v U (2002) 211 CLR 238 per Hayne J). (See also s 69ZR of Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).) It is true that in the present case Baumann FM raised the possibility of an order for overnight contact on both 20 and 29 June 2011. But as we have indicated, it was far from clear that he was proposing to make that order when the proceedings were then before him, rather than merely foreshadowing the likelihood of such an order when the case was finally given its long awaited hearing.
Thus, while it cannot be said that his Honour was in error in determining to make an interim order for overnight time when there was no application before him for such an order, we consider that he was in error in not ensuring that the parties fully understood that he was embarking on an interim hearing at the conclusion of which interim orders could well be made for overnight time. Not only did the lack of an application from either side make it imperative to ensure that the parties (or their representatives) understood what the purpose of the proceeding was, but it must also be remembered that the proceedings on 20 and 29 June 2011 were all conducted by way of brief telephone hearings.
There is a further complaint raised by the mother in the procedural fairness context which we consider also has substance, and that related to the fact that the updated Family Report had not been sworn or affirmed by its author. Section 69ZU of the Act is in the following unequivocal terms:
The court must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence.
It was accepted before us that the updated report was not annexed to an affidavit from Mr P, and he did not participate in the proceedings on 20 and 29 June 2011.
Counsel for the respondent father endeavoured to persuade us that the consent of the parties to his Honour’s use of the report could be implied on the basis that there had been no objection to its use by the mother. Even on the assumption that consent can be implied for the purposes of s 69ZU, we do not agree that it could be implied in the present case where the nature of the court event was ambiguous, and it was not clear that there was to be a hearing involving reliance upon this document.
Thus it has to be concluded that his Honour also erred in placing any reliance on the updated Family Report. Without that report it would have been difficult for him to reach a decision in favour of overnight time (as will be seen when we examine his reasons).
On the basis then of these procedural fairness complaints, the appeal must be allowed and the order for overnight time set aside.

The challenge directed to the adequacy of the Federal Magistrate’s reasons

Given that the appeal must succeed and the orders appealed be set aside, it may well be unnecessary for us to address the complaints related to the adequacy of his Honour’s reasons, and in particular the assertion that he did not follow the principles in Goode (supra) in relation to the legislative pathway to be followed in the making of interim parenting decisions. We consider, however, there may be some value in our addressing those matters.
His Honour commenced his published reasons for judgment (which were stated to be “settled from the ex tempore reasons”) by stating that his reasons related “to an interim dispute relating to what orders best meet the needs of [the child]”.
He then explained, with reference to the history of the matter, that there had originally been an order for supervised time on account of “the mother’s concerns about the father’s prior use of alcohol and the lack of the father’s parenting experience and capacity”, but that the supervised time had “moved to an unsupervised regime” earlier in the year.
His Honour next referred to the orders which he had made for an updated Family Report at the time that orders were made by consent for the child to spend unsupervised time with his father, and to his hope that the updated report might have assisted the parties to “resolve the matter on a final basis when it next came to Court”. But his Honour went on to explain that that could not be achieved “with the father urging the Court now to increase time to overnight … and the mother maintaining the position that overnight time is effectively unsafe for the child” until he attains the age of 10.
His Honour then said that he had heard “further submissions” on 29 June 2011 and had considered those submissions. He also said that he had had a chance to “properly read and consider … although untested” the updated Family Report, the father’s affidavits filed 1 June 2011 and 22 June 2011, and the mother’s affidavit filed 27 June 2011 “attaching importantly” Dr R’s report.
Having then referred to Mr P’s recommendations that overnight time should start “immediately”, his Honour extracted the “following critical factors” which in his Honour’s view, had been identified by Mr P in making his recommendation:
(a)the father’s committed approach in dealing with his prior alcoholism;
(b)accepted in the absence of any other evidence the father’s statement that he has abstained from alcohol use for nearly two years now;
(c)evidence of the child … , who says he feels safe in the father’s home (save for some small issues with his 13-year-old sibling, [D]);

(d)the father’s continued primary care of [D] (age 13) the sibling of [the child], and [D’s] statements to the report writer which corroborate the father’s absence of use of alcohol;

(e)the mother’s inability to point to any credible evidence indicating the father is still drinking.

His Honour then turned to the affidavit evidence of both parents and can be read as making certain findings in that context:
6.The father’s affidavits give details of the therapeutic engagement, courses and treatment he has undertaken. His other affidavit seems to take on board some of [Mr P’s] observations that the father must get more involved with the child in fact become more “hands on” in his parenting approach. There is no doubt – and the father does not say – that the mother is other than an excellent carer providing affection, good food and meeting the child’s emotional and physical needs. That the child presents so well to [Mr P] is largely due to the quality of the mother’s parenting to date.
7.The mother, as already mentioned, is an experienced parent who parents differently to the father. The father, however, is not an inexperienced parent and that fact and that his style differs from the mother is not a reason to reduce [the child’s] opportunity to develop a more meaningful relationship with his father. As far as the father’s alcohol use is concerned, perhaps understandably from the mother’s historical perspective (noting the parents have now been separated for nearly three years) and with a lack of trust, respect and effective communication that exists between them, the mother still holds the view that the child is at risk of harm if he spends overnight time with the father.
His Honour’s conclusion that overnight time should commence immediately was then expressed in the following way:
8.The evidence of [Dr R], who has not, it seems, met the father, is theoretical in nature and although I have taken his scientifically based comments and concerns relying on the data available to him into consideration, I have assessed overall the risk of the father’s past alcoholic induced behaviour occurring is at this stage minimal. Of course, relapses can never be ignored, but on all the currently available evidence before the Court I am satisfied on an interim basis that it is in [the child’s] best interests to commence overnight time with the father immediately.
In Goode (supra) the Full Court held that the following “legislative pathway must be followed” in interim parenting decisions:
82.In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In the present case the parties had agreed in the interim orders made by consent on 28 February 2011 that there would be equal shared parental responsibility. Thus, it was unnecessary for his Honour to concern himself with that matter.
Similarly, it was unnecessary for his Honour to consider issues of equal time or substantial and significant time since neither party was seeking such orders at least when the matter was before his Honour on 20 June 2011 and 29 June 2011.
Thus subparagraphs (e) to (j) of paragraph 82 in Goode (supra) could have no application in this case. Nor would subparagraph (k) be applicable given the issue which his Honour had identified to be determined, being the introduction of overnight time.
It could not be said that on a fair reading of his Honour’s judgment, the issue in dispute and the competing proposals of the parties were not identified adequately by him. Thus the requirements of subparagraphs (a), (b) and (c) of paragraph 82 were satisfied.
The only question that can therefore arise in the context of the requirement to follow the legislative pathway set out in Goode (supra), is whether his Honour did all that was necessary under subparagraph (d) of paragraph 82, which requires the making of findings in relation to the relevant matters in s 60CC.
It has to be acknowledged that nowhere in his reasons did his Honour refer expressly to s 60CC, or expressly identify the matters contained in that section which must be considered in order to determine what is in the best interests of a child for the purpose of determining whether the parenting order sought in this case, being the immediate introduction of overnight time, would be in the child’s best interest.
It is true that his Honour did make some references to the risk of harm to the child, which was the mother’s concern about overnight time, and he satisfied himself that the risk was “minimal”. He also made reference to the parenting capacity of each parent.
We are conscious that this was an interim determination on essentially one issue, namely whether overnight contact should commence now or at some future time. From a perusal of the various factors in s 60CC it would be obvious that only some of the matters set out in s 60CC will be relevant in a hearing involving a determination of one discrete issue, and that there will be no need to address them all. Further, in relation to those that are relevant they may be capable of being considered in short compass. This is particularly so in cases which involve a minor amendment to existing orders. But no general rule can be stated as to how much consideration constitutes enough, as each case must be decided on its own facts.
However, the legislation mandates identification and consideration of relevant matters and their weighing up to arrive at a result. In this case notwithstanding there was only one issue for determination we consider his Honour did not adequately identify and consider the various parts of s 60CC, particularly s 60CC(3), which would have a bearing on his decision. This is especially so as it was the crucial issue left for determination at the final hearing and his Honour was determining this issue on an interim basis prior to that hearing.

Conclusion and future course of the matter

As we have earlier concluded the appeal must be allowed and the first of the orders made on 12 July 2011 set aside.
As no application for interim orders had been made by either party, there is no application to be remitted. Subject to such an application being made, the matter should now proceed to a final hearing according to the directions made by Baumann FM on 12 July 2011 (being Orders 3 to 12 made that day), although we understand that some variation has already been made to the hearing date on account of the availability of Mr P.

Costs of the appeal

Having regard to the submissions made to us in relation to the costs of the appeal at the conclusion of the hearing before us, we are of the view that there should be no order for costs, but that each party should be entitled to the appropriate certificate under the Federal Proceedings Costs Act 1981 (Cth).

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Loughnan JJ) delivered on 7 September 2011.

Associate:

Date: 7 September 2011