Hood and Duca

[2008] FamCA 139

FAMILY COURT OF AUSTRALIA

HOOD & DUCA [2008] FamCA 139

FAMILY LAW – APPEAL - From Court of summary jurisdiction

Family Law Act 1975 (Cth)

C v C (1995) 20 FamLR24
Goode & Goode (2006) FLC 93-286
Harris & Calladine (1991) 172 CLR 84
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Hood

RESPONDENT: Ms Duca

FILE NUMBER: LEC 51 of 2008

DATE DELIVERED: 06 March 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 06 March 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Hunter, Solicitor

SOLICITOR FOR THE RESPONDENT: Mr Pellandine, Solicitor

Orders

1. The appeal of the applicant filed on 4 March 2008 against the orders of the Local Court at Lismore of 26 February 2008 is allowed, order one (1) and four (4) of those orders are set aside, and it is ordered in lieu that:

   (1)Pending further, or other order, the parties do all such things and sign all such documents as are necessary, to have the child …, born … November 2002, enrolled at the B public school, and ensure her attendance thereat.

2. There be no order as to costs, of and incidental to this Appeal.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 51 of 2008

Mr Hood

Applicant

And

Ms Duca

Respondent

EX TEMPORAE

REASONS FOR JUDGMENT

1. The applicant, who is the father of a daughter, born in November 2002 (“the child”), appeals against a specific part of a decision made by the Lismore local court, a court of summary jurisdiction within the meaning of s.96 of the Family Law Act 1975 (Cth) (“the Act”).

2. This appeal proceeds as a hearing de novo pursuant to s.96 of the Act and in particular, s.96(6).

3. That appeal process has been explained in a number of decisions, notably by the High Court of Australia in Harris & Calladine[1].

   [1]          Harris & Calladine (1991) 172 CLR 84

4. The child was born of a short relationship of the parties.

5. Substantive orders were initially made in this court by Judicial Registrar Smith on 16 December 2004. The child was barely two years old at that time.

6. Subsequently, after a trial, final orders were made by The Hon Justice Bell on 17 March 2006. Those orders provided, in broad terms, that the child should live with her father from 9.00am Monday until 9.00am Friday each week, and with her mother from 9.00am Friday until 9.00am Monday each week with her mother.

7. The orders made by Bell J were substantially the same as the orders that had previously been made by Judicial Registrar Smith.

8. Justice Bell’s orders contain some 19 specific orders. Included among them were:

   “2.The Mother and Father have joint responsibility for the long term care, welfare and development of the said child.”

   “10.The school the child attends to be a joint decision of the parents and to be within the [M] city limits unless otherwise agreed between the parents.”

9. It can be seen that the orders made by his Honour, embodied an arrangement which effectively saw the child living with her father during the week, and with her mother on weekends.

10. Orders to that broad effect have been in place then for about three years. Significantly, as it seems to me, that arrangement was reflected pursuant to final orders to that effect that have been in place two years.

11. On 24 January 2008, that is, shortly prior to the commencement of the 2008 school year, the mother applied to the local court at Lismore.

12. The mother’s application seeks a significant change to the existing arrangements by providing, among other things, for what is frequently described as a “week about” shared arrangement. She seeks those orders also on an interim basis, pending a trial.

13. By paragraph 17 of her application filed on 24 January 2008, she seeks an order that:

    “The child to attend [M] Public School, commencing in term one in 2008, and the child not be enrolled at any other primary school, unless agreed in writing between the parents or pursuant to a court order.”

14. On 26 February 2008, the mother’s application was heard before the local court at Lismore.

15. Firstly, the magistrate ordered the transfer of the substantive proceedings to the Federal Magistrates Court sitting at Lismore and directed that the matter be listed as an urgent matter. It is common ground that the matter is due to be heard, pursuant to that transfer, by the Federal Magistrates Court at Lismore on 11 March 2008, that is in slightly less than a week.

16. Additionally, the local court made an order that “pending further order, that the child be enrolled at [M] Public School as soon as possible” and, at order (4), that “the father do all things to give effect to the order (1)”.

17. The father foreshadows a Rice & Asplund[2] argument. He contends that final orders have been in place for some time and that those orders contemplated, among other things, the very change that is one of the changes relied upon by the mother to found her application, namely commencement of school.

    [2]          Rice & Asplund (1979) FLC 90-725

18. The mother, it seems, acknowledges the Rice & Asplund issue. She points to the child’s being three years older, the commencement of primary school and the fact that she has now married her former partner who is a teacher in the local area, as all being factors by which any difficulties emanating from that decision of the Full Court, can be overcome.

19. It is accepted by both parties that when the matter is heard by the Federal Magistrates Court, it is highly likely that a further Family Report will be ordered. His Honour Justice Bell had the benefit of a Family Report, prepared by Ms D, dated 21 April 2005.

20. No appeal is made against any of the orders made by the magistrate, save orders (1) and (4), which I have quoted above.

21. Section 61DA(3) of the Act provides:

    “When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”

22. The presumption referred to is, of course, the presumption of equal shared parental responsibility applying by reason of s.61DA of the Act.

23. The parents here, clearly cannot agree in respect of which school the child should attend. Section 61D(1) of the Act, provides:

    “A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities, or authority in relation to the child.”

24. Accordingly, the school which the child should attend, falls to be determined on an interim basis, as an aspect of equal shared parental responsibility.

25. As I said during the course of argument, the Act makes it clear that equal shared parental responsibility is not a passive activity. Rather requires active participation and, in particular, active steps towards making joint decisions in respect of those matters covered by the concept (s.65DAC).

26. In his affidavit, filed in support of the Appeal on 5 March 2008, the father swears:

    “[B]school is within the [M] city limits. It is a small country school that would suit [the child’s] needs. It is 6km from my home – an 8 minute drive. I would be able to take [the child] to and from school on the school days she is in my care, those being Monday after school, Tuesday, Wednesday, Thursday before and after school, Friday before school. [B School] is serviced by a school bus that would be able to transport [the child] from [M] to [B School] on Monday mornings and [B School] to [M] on Friday afternoons. [B School] is the nearest school to my residence. There are vacancies available for [the child] at [B School], and her name is down at that school, subject to the mother’s approval, or other order.”

27. The mother, on the other hand, contends that the child should attend M Public School. In her affidavit, in support of the initial application before the Lismore local court, and subsequently filed in this Court on 3 March 2008, she deposes to attendance by the child at M Public School allowing the child to walk to school with, and attend the same school as, her sibling K. K is a child of a previous relationship of the mother and is currently aged 11.

28. The mother also deposes to the school being situated very close to where she is living with her current husband. Each of the parties contend that their asserted difficulties, and any asserted difficulties with respect to the child attending at the schools for which they respectively contend have no foundation.

29. I should add here that I ignore as inadmissible those parts of the mother’s affidavit which refer to matters discussed during the process of mediation. Those discussions are without prejudice and not admissible in any proceedings of this court, save in the circumstances specified in the Evidence Act, about which I have no evidence before me.

30. By reason of the background to which I have just refereed, I hear this application afresh in the following circumstances:

    ·    Against a background where final orders have been in place for two years, and the current broad arrangements in place for over three years.

    ·    In less than a week, the Federal Magistrates Court will hear and determine an application, including, presumably, an interim application to change those arrangements.

    ·    Both parties agree that a further Family Report relating to the child is both preferable and likely to be ordered by the Federal Magistrates Court.

    ·    Prima facie, the mother faces a Rice & Asplund issue at any subsequent trial.

    ·    The mother likely confronts a Rice & Asplund issue in respect of any interim orders that she seeks which were the subject of previous orders made on a final basis by this court.

    ·    Where issues specific to parental responsibility, including, specifically, an issue with respect to the child’s school, may well be live at a trial.

    ·    Where Justice Bell’s order, by reason of no aspect of it having been changed, remains in full force and effect between the parties.

31. I am, of course, hearing afresh, an interim application to which the usual principles outlined in decisions of the Full Court, such as C v C[3] and more recently, Goode & Goode[4], apply.

    [3]          C v C (1995) 20 FamLR24

    [4]          Goode & Goode (2006) FLC 93-286

32. I am also hearing afresh an interim application with respect to a specific aspect of parental responsibility which is presumed to be shared equally between the parties and which is, on any view of it, only a small aspect of that concept and the duties and responsibilities in review in it.

33. It seems to me, then, that the primary governing consideration for me should be to apply any relevant orders, made by Justice Bell, that is to say, the issue before me, is not so much either a Rice& Asplund issue, or indeed a “best interests issue”, (although the latter is clearly relevant). Rather, the issue is primarily one of interpretation of his Honour’s orders.

34. I say that in particular, because there can be little doubt that the order of which school the child might attend, although at that time, some eighteen months or so in the future, was nevertheless, the subject of argument, and ultimate determination (in one sense) by his Honour.

35. I have already referred to the terms of the order, made in respect of schooling, by Justice Bell. His Honour’s reasons for judgment were in evidence before me. I indicated to the parties that I would not receive them as evidence of any fact, in the sense of any fact in issue, but I would receive them as evidence of the process by which the orders made by his Honour were made, given that Rice & Asplund was in issue in these particular proceedings.

36. In his Honour’s reasons for judgment, his Honour said this at paragraph 12:

    “There are two matters left for my decision. One is whether in fact I should make orders in relation to the future in 2008, when, in all probability, [the child] will be attending primary school. I do not think I will do that. I think I am going to rely upon the parties to exercise a little bit of responsibility and to show a little bit of love and affection for their daughter, to the extent that, notwithstanding the fact that they may hate each other, they love their daughter more. I think it is absolutely essential that they come to their own decision in relation to that education. If it does not, it will come back before me, and you never know what will happen then.”

37. Later, in his Honour’s reasons, his Honour refers to the fact that agreed terms of orders were put before him by the parties:

    “15.I have put before me agreed orders by the parties. Once again, I compliment them. They have agreed on pretty well everything but they cannot quite agree on where the handover should take place…”

38. It seems then, reading those two passages together, that the order which ultimately became order 10, was the subject of agreement between the parties. I can see no other reference in his Honour’s reasons to any limitation of the type which ultimately found its way into that order.

39. No doubt, the parties may have had in mind something specific in providing in that order that the school which the child attends is to “be within the [M] city limits”. It may be that they had the same notion of what that term embodied. It may be that they had individual notions of what that term embodied.

40. Unfortunately, I have no notion of what that term embodies. Or, perhaps put more accurately, any notion I might have of what that term embodies, may well be different from what either or both of the parties contemplated.

41. The affidavit of the father annexes to it, as does the mother’s, a number of maps by which it said (presumably) that I ought to be able to come to a conclusion about what constitutes the “[M] city limits”.

42. In my view, I cannot come to any such conclusion based on that evidence. It seems to me that the phrase is capable of differing interpretations, including interpretations which may well have been subjective to each of the parties.

43. I cite as an example, from a geographical location closer to where this court sits, the sign above the Pacific Highway that says, in effect “welcome to the Gold Coast”. No doubt that sign marks the outer boundary of the Gold Coast and Brisbane City Councils respectively. However, whilst that may in fact be the delineation, I suspect that the sign would not coincide with the interpretation of many as to what constituted the “Gold Coast city limits”.

44. No other evidence points to a more precise interpretation.

45. Accordingly, it seems to me that the order is not, on its face, capable of precise interpretation by me.

46. That being the case, consistent with what I have earlier indicated as the background to this matter, and the circumstances in which I hear this application afresh, it seems to me that I ought interpret the orders in a manner that gives the greatest force and effect to the final orders made by Bell J, two years ago.

47. It seems entirely clear, that pursuant to those orders, and the earlier orders made by Judicial Registrar Smith, the child was to spend her week-day time, overwhelmingly, with the father, and her weekend time completely with the mother.

48. In those circumstances, and given the fact that, in particular, this situation has prevailed for three years, it seems to me that, pending the mother satisfying the tests required of her by the Full Court decision in Rice & Asplund, and pending any further or other decision by the Federal Magistrates Court with respect to all aspects of the parenting orders, it ought be, the father, who is in the position to determine where the child should go to school.

49. For those reasons, I allow° the appeal.

    °In delivering these reasons, I erroneously said “dismiss”. However, as I made clear when asked to clarify the orders I was making, and as is clear from these Reasons, I meant to use the word “allow”.

50. As indicated at the outset of these reasons, this Appeal is heard pursuant to the provisions of s.96 of the Family Law Act. Pursuant to s.96(4) of that Act, this court may “make such decrees as it consider appropriate, including a decree in affirming, reversing or varying the decree, the subject of the Appeal.”

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  7 March 2008