Hoffner and Hoffner
[2019] FamCAFC 220
•25 November 2019
FAMILY COURT OF AUSTRALIA
| HOFFNER & HOFFNER | [2019] FamCAFC 220 |
| FAMILY LAW – APPEAL – PARENTING – Whether the primary judge failed to give adequate reasons – Where there are no findings of fact by the primary judge which provide a sufficient basis for making the impugned orders referred to in the grounds of appeal – Where the impugned orders were not sufficiently supported by reasoning – Where there is no finding that the father posed a risk to the child that justified an injunction – Where the court uses its power under s 94AAA(6) of the Family Law Act 1975 (Cth) to correct accidental error – Appeal successful – Order setting aside the impugned orders – Orders made in relation to the passport as proposed by the father – Costs certificate granted. |
| Family Law Act 1975 (Cth) s 94AAA and s 102QB Federal Proceedings (Costs) Act 1981 (Cth) s 9 |
| Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148 Gilles & Irby (2016) FLC 93-687; [2016] FamCAFC 13 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 |
| APPELLANT: | Mr Hoffner |
| RESPONDENT: | Ms Hoffner |
| FILE NUMBER: | BRC | 7972 | of | 2014 |
| APPEAL NUMBER: | NOA | 66 | of | 2019 |
| DATE DELIVERED: | 25 November 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 19 November 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 June 2019 |
| LOWER COURT MNC: | [2019] FCCA 1608 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Horsley |
| SOLICITOR FOR THE APPELLANT: | DA Family Lawyers |
Orders
That the appellant’s appeal filed 12 July 2019 be allowed.
That orders 7, 21, 29, 36, 37(b), 37(c), 37(e), 39 and 40 of the primary judge’s orders made 14 June 2019 be set aside.
That the mother shall provide the child’s passport to the father for the purposes of his overseas travel with the child at least fourteen (14) days prior to the departure date, and the father shall return the child’s passport to the mother within seven (7) days of the conclusion of that overseas travel.
That the mother is to retain the child’s passport at all times other than when the father has possession of same pursuant to order 3.
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.
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 Hoffner & Hoffner 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS |
Appeal Number: NOA 66 of 2019
File Number: BRC 7972 of 2014
| Mr Hoffner |
Appellant
And
| Ms Hoffner |
Respondent
REASONS FOR JUDGMENT
introduction
On 14 June 2019 the primary Federal Circuit Court judge made final parenting and property orders[1] between the parties. The parenting orders generally provided that Ms Hoffner (“the mother”) have sole parental responsibility for the only remaining minor child of the parties’ three children, who would live with the mother and spend alternate weekends, and approximately half of school holiday time, with Mr Hoffner (“the father”). No appeal is brought from those orders, nor in relation to any of the property orders.
[1] Albeit later amended on 28 June 2019.
However the primary judge also made a number of other, more specific, orders pertaining to the parenting of the child, seven of which are challenged by the father in this appeal. Other than filing a Submitting notice on 8 November 2019, the mother did not engage in the appeal.
For the reasons which follow, the appeal must be allowed.
Background
At the time of trial the mother was a 48 year old health professional, working part time, and the father was a 49 year old science professional, albeit then unemployed. The parties married in 2006 and separated in 2014. By then, three sons had been born to the marriage, being, Mr X, who was 20 at the time of trial, Mr Y, who was 17 at the time of trial, but 18 at the time of judgment, and Z, aged 11 at the time of trial.
The proceedings were commenced by the mother in 2014. It is not clear on the material before me why they took something in the order of five years to resolve. At all events, by the time of the trial, the only practical dispute between the parties related to the youngest child, Z.
Ground 1
This ground asserts:
1. That the learned trial judge failed to give adequate reasons to support and erred in the exercise of discretion when making order 39.
Order 39 of the orders made by the primary judge on 14 June 2019 provided:
That no further applications to the Court will be made in relation to the child.
It appears as though the source of power relied upon by the primary judge to make this order was s 102QB of the Family Law Act 1975 (Cth) (“the Act”). Relevantly it provides as follows:
(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
…
(5) An order made under paragraph 2(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
The obligation on a court to give reasons is well settled. In Bennett & Bennett (1991) FLC 92-191 at [414], the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at [18] as follows:
The adequacy of the 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 above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently 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.
Although the mother did seek this impugned order at trial, and raised, albeit very briefly, the assertion that the father was a vexatious litigant in her trial affidavit, there was no cross-examination of the father directed to this issue, and neither written nor oral submissions were made in support of the order.
There is no reference to s 102QB of the Act in the primary judge’s reasons. There is no finding that the father has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. The primary reasons are entirely bereft of any consideration of, or justification for, order 39.
The only explanation for its inclusion in the final orders appears at [154] where the primary judge said “I will make the orders as sought by the mother”. Even accepting that his Honour was then advertent to the s 102QB order which the mother sought, that reasoning is inadequate to support the making of such an order.
This ground of appeal succeeds.
Grounds 2 and 3
These grounds assert as follows:
2. The learned trial Judge’s finding that there “was no real dispute about travel orders” was against the weight of the evidence.
3. That the learned trial Judge failed to give adequate consideration to the father’s proposal for the provision of the child’s passport to a travelling parent, failed to give adequate reasons to support and erred when making Order 21.
Order 21 provides:
That the passport for the child remain in the mother’s possession at all times.
However order 15 provided that either party was able to take the child out of the Commonwealth of Australia for the purposes of a holiday, which would, of course, be impossible in the case of the father, if the mother retained the child’s passport “at all times.”
Although this was argued by the father as demonstrating a failure to properly consider the parties’ competing proposals, the preferable basis for setting aside order 21 is that it is a clear error when reading the orders as a whole. Particularly, it appears as though the wholesale adoption of the mother’s proposed orders generally was undertaken by the primary judge without any advertence to the difficulty which the conflict within them caused. In fairness to the primary judge, there was no evidence or submissions in relation to this issue, but that does not preclude the pronouncement of order 21 as comprising error.
It follows that ground 3 succeeds. It is unnecessary in those circumstances to determine ground 2.
Ground 4
This ground provides:
That the learned trial Judge failed to give adequate reasons to support and erred in the exercise of his discretion when making orders 29, 36, 37(b), 37(c) and 37(e).
Order 29 provides:
That the parties are not to discuss any family or parenting matters at any school event or function.
Order 36 provides:
That the father is not to attend the mother’s residence for any reason or to open her mailbox.
Order 37 relevantly provides:
That neither party shall:
…
(b)Expose the child to sexualised behaviour;
(c)Expose the child to nude activities;
…
(e)Shower with, dress or share a bed with the child.
As with ground 1, there are no findings of fact by the primary judge which provide a sufficient basis for making these orders, nor any reasons directed towards them. Rather, again, the only reasoning which supports them, is the introduction to [154], recited earlier in these reasons.
Whilst there was evidence before the primary judge which, if properly addressed and analysed, might have led to findings sufficient to support such orders, that analysis and those findings do not appear in the judgment. The primary judge was not assisted by virtue of the fact that the father was not cross-examined by reference to any of these issues, which were only glancingly dealt with during submissions. Nonetheless, if his Honour was intending to make such orders, they need to be sufficiently grounded in findings of fact, and supported by reasoning in relation to those findings.
Absent such findings and reasoning in the judgment, this ground must succeed.
Before leaving this ground, I should recognise that it is unlikely to be in a child’s best interests for a parent to expose the child to sexualised behaviour, nudist activities, or share a bed with an adolescent child. But the point that was made by the father was that, absent a finding that a parent posed a risk to the child in those respects, there could be no justification for an injunction restraining them from doing so. In a sense therefore, these injunctions were in the same category as an injunction restraining the parent from assaulting the child, neglecting, or otherwise abusing the child. Such injunctions must be founded upon an assessment of risk, which in turn is supported by findings of fact. The primary reasons are entirely without any such findings or reasoning.
Grounds 5 and 6
These grounds provide:
5. That the learned trial Judge failed to give adequate reasons to support Orders 7 and 40.
6. That Order 7 was made against the weight of the evidence and is superfluous as the child does not spend time with the father at any time during the school week pursuant to Orders 5, 8 and 9.
Order 7 provides:
That the father be restrained and injunction hereby issue restraining the father from withholding the child from school without a medical certificate from a registered [medical] practitioner. The father provide the [medical] certificate to the mother within 24 hours of the child missing school and the father will advise the mother of the illness before the commencement of the school day.
Order 40 provides:
That if the child is hospitalised, the mother will be responsible for the child during this time, from admission to when the child is discharged.
Orders 5, 8 and 9 provided for the time the child spends with the father, which, during term time, was on each alternate weekend from 3:00pm Friday until 3:00pm Sunday. Moreover, all school holiday time the child spent with the father, concluded at the latest on the day prior to the commencement of school. It is therefore said that it is impossible to determine a circumstance in which the father would, pursuant to the orders, have the opportunity to withhold the child from school, as the child would never be in his care during any school time.
As with the balance of the grounds of appeal, there is no reasoning to support why the orders raised in the grounds were pronounced, beyond the introduction to [154]. That in itself is sufficient to resolve these grounds of appeal, in that, absent the necessary findings and reasoning, orders 7 and 40 cannot stand. In any event, as ground 6 asserts, order 7 is, on any view, superfluous. However in the circumstances, it is unnecessary to consider whether a superfluous order is thereby necessarily erroneous, and thus susceptible to appellate interference.
These grounds succeed.
Outcome
It is unfortunate that the mother did not engage in the appeal, rather than simply abstain from involvement in it. That is because it is unclear whether, in the event that the impugned orders were set aside, she nonetheless sought to have them remitted for hearing before another judge, or whether she was content, as the father sought, that there not be a remitter, but rather a simple discharge of the orders, together with a correction of the error in relation to the passport issue.
However, given that her Submitting notice was filed on 8 November 2019, well after the father’s Summary of Argument was filed on 18 October 2019, upon balance it is my view that I should construe her Submitting notice as not seeking a general remitter, and not opposing the course sought by the father. I say that because that was plainly the position espoused by the father in his Summary of Argument, and had the mother wished for some other outcome, then the proper course was for her to engage in the appeal.
As to order 21, there is a clear, accidental error which supports its correction in the way formulated by the father, namely that there should be an opportunity for the father to obtain the passports from the mother upon reasonable notice. Section 94AAA(6) of the Act gives me the power to correct patent accidental error: Gilles & Irby (2016) FLC 93-687 at [18]. I will therefore remedy that error in relation to passports in the way he contends.
Therefore the only orders which I will make are to allow the appeal, set aside the impugned orders, and pronounce orders in relation to the passport as proposed by the father.
Costs
In the event that the appeal succeeded, the father did not seek an order for costs, but rather a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). Given that the appeal has wholly succeeded in relation to questions of law, it is appropriate that such a certificate issue.
I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 November 2019.
Associate:
Date: 25 November 2019
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