JANOS & ALTON - [2018] FamCAFC 209

FAMILY COURT OF AUSTRALIA

JANOS & ALTON

[2018] FamCAFC 209

FAMILY LAW – APPEAL –Where the respondent concedes error by the primary judge – Where there was appealable error – Appeal allowed – Consent orders made.

FAMILY LAW – APPEAL – COSTS - COSTS CERTIFICATES – Whether costs certificates should be ordered – Where the appeal succeeded upon questions of law – Costs certificates ordered for both parties and the Independent Children’s Lawyer for the appeal and rehearing.

Federal Proceedings (Costs) Act 1983 (Cth) ss 6, 8, 9

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Sampson v Harnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365

APPELLANT:

Ms Janos

RESPONDENT:

Mr Alton

FILE NUMBER:

CAC

931

2014

APPEAL NUMBER:

2018

DATE DELIVERED:

31 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Alstergren DCJ, Ainslie-Wallace and Watts JJ

HEARING DATE:

31 October 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 December 2017

LOWER COURT MNC:

[2017] FCCA 3222

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Johnston

SOLICITOR FOR THE APPELLANT:

Barker & Barker

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

Orders

IT IS ORDERED BY CONSENT:

The appellant have leave to amend the Notice of Appeal to challenge paragraphs 1 – 29 of the orders made by Judge Neville on 21 December 2017.
The appeal be allowed.
The orders made by Judge Neville on 21 December 2017 be set aside.
The proceedings be remitted to the Federal Circuit Court for rehearing before a judge other than Judge Neville and are recommended to be given priority.
The following orders be made by consent until further order:
(a)The parties have equal shared parental responsibility for the child;
(b)The child live with the mother;
(c)The mother not be permitted to relocate the child’s residence away from Canberra in the Australian Capital Territory;
(d)The child spend time with his father as agreed between the parties, but failing agreement, from after school Friday until before school Wednesday each alternative week;
(e)If the child is not otherwise in the care of his father on the father’s birthday, he will spend from 3:00 pm to 7:00 pm with the father;
(f)If the child is not otherwise in the care of his mother on the mother’s birthday, he will spend from 3:00 pm to 7:00 pm with the mother;
(g)For the purpose of orders (d) – (f) above, changeover will occur at either the child’s school or at an agreed public place;
(h)Each parent will encourage and facilitate the child communicating with the parent with whom he is not currently spending time by telephone, mobile, Skype or other internet-based communication application at an agreed time each Monday, Wednesday and Friday (unless otherwise agreed) and at any reasonable time initiated by the child;
(i)For the summer school holidays of 2018/19 as agreed and failing agreement the child spend time:
(i)With the father from after school on Friday 21 December 2018 until 4.00pm on 24 December 2018;
(ii)With the mother from 4:00pm on the 24 December 2018 to 4:00pm on the 31 December 2018 (being a period of 7 nights);
(iii)With the father from 4:00pm on the 31 December 2018 to 4:00pm on the 7 January 2019, (being a period of 7 nights);
(iv)With the mother from 4:00pm on the 7 January 2019 to 4:00pm on the 14 January 2019 (being a period of 7 nights);
(v)With the father from 4:00pm on the 14 January 2019 to 4:00pm on the 21 January 2019, (being a period of 7 nights);
(vi)Following 21 January 2019 the usual term time arrangements will apply; and
(vii)With the father from 4.00pm on Tuesday 29 January 2019 until 9.00am on Wednesday 30 January 2019.
(j)Pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available is set out in the Fact Sheet attached hereto; and
(k)Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may flow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

IT IS FURTHER ORDERED:

There be no order as to costs as between the parties in respect of this appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (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.
The Court grants to the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 and the Independent Children’s Lawyer in respect of the costs incurred by the respondent and the Independent Children’s Lawyer in relation to the appeal.
The Court grants to the appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred in relation to the rehearing.

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 Janos & Alton 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 12 of 2018
File Number: CAC 931 of 2014

Ms Janos

Appellant

And

Mr Alton
Respondent

EX TEMPORE REASONS FOR JUDGMENT

Watts j

The mother has appealed the parenting orders and the property settlement order made by Judge Neville on 21 December 2017 which were based upon reasons for judgment (“the reasons”) published on that day.
We have agreed that the appeal should be allowed and the orders challenged be set aside. The proceedings have been remitted for rehearing.
Both parties and the Independent Children’s Lawyer seek costs certificates pursuant to the Federal Proceedings (Costs) Act 1983 (Cth) for the appeal and for the rehearing.
Given that this appeal primarily relates to parenting orders and given the basis upon which the appeal has been allowed, neither party should be required to pay the costs of the other party.
The appeal is a federal appeal which has been heard. The remaining issue is whether or not the appeal has succeeded on a question of law.
During the hearing (which took place over seven days after which the parties and the Independent Children's Lawyer provided written submissions), the central issue for determination by the primary judge was the appellant’s application to relocate the residence of the parties’ child, born in 2012, from Canberra to the City B area.
The primary judge resolved this central issue by making orders 7, 8, 19 and 29 in the following terms:
(7)Subject to these Orders (or agreement in writing between the parties) the Mother be restrained for a period of 2 years from the date of these Orders, being until 31 December 2019, from relocating outside a radius of 50 kilometres from CANBERRA.
(8)Thereafter, subject to the Mother being certified by the Mediator mentioned in these Orders as having satisfactorily completed the regime of Facilitated Parenting Meetings set out at Order 19 of these Orders (and provided this certification to the Court), the Mother be permitted to relocate to [the City B area] New South Wales, but otherwise thereafter be restrained from moving the child’s residence within 20 kilometres of [City B].
(19)Both parties shall attend facilitated parenting meetings as follows:
(a)     Arrange and attend, every month for 12 months, a facilitated parenting business meeting. It shall be facilitated by an accredited mediator (or other recognised professional). The cost of the mediator (and any associated costs) shall be borne ⅔ by the Father (because of his greater income) and ⅓ by the Mother;
(b)    For each meeting, in the absence of an agreed agenda, each party shall provide the mediator with an agenda of no more than 6 items. At the conclusion of each mediation session, the mediator/facilitator shall provide the Court with the agreed or individual agenda and a note (of no more than one paragraph) regarding what:
(i)matters were agreed and what were not;
(ii)what (if any) the stumbling blocks were encountered; and
(iii)why and who, in the view of the mediator, was responsible for the agreement or disagreement.
(c)     At the end of the first 12 months, provided the mediator certifies to the Court that the parties are ready to move to a reduced mediation regime, the parties shall then commence a 12 month period of mediation (with the same mediator or otherwise as agreed in writing) which will take place every second month. The earlier outlined process at Order 19(b) shall apply – agreed or individual agendas (limited to six items), report after each mediation regarding outcomes, the re-commencement of the 12 month period if it is interrupted, and a certification by the mediator at the end of the 12 month period, in this instance, that the parties can reasonably communicate in a business-like manner in relation to parenting.
(d)    If there is any interruption in the process (except for medical or other independently verified reasons, and apart from the express written consent of both parties otherwise), the 12 month period of monthly mediation sessions shall re-commence.
(e)     The costs of these facilitated parenting meetings shall be borne ⅔ by the Husband, and ⅓ by the Wife.
(29) All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
It can be seen that the primary judge resolved the principal issue for determination in the parenting case by deferring the child’s relocation and allowing it after a period of two years but only on the basis that the mother has satisfactorily completed a regime of “Facilitated Parenting Meetings” as set out at order 19. The appellant raises a number of irresistible challenges to this part of the primary judge’s determination of the central parenting issue.
In relation to the whole of order 19, the respondent concedes that no notice was given by the primary judge of the possibility that he might make an order in those terms and that there was a denial of procedural fairness in making order 19. I agree that the primary judge failed to give fair warning to the mother as to what he had in mind and an opportunity of replying to it. This failure constituted an error of law.
The next challenge made by the appellant to order 19 is that the order delegated to a third party the right to determine whether or not the appellant should be permitted to relocate with the child. The appellant’s primary parenting application was for a final order that would permit the child to relocate from Canberra to the City B area of New South Wales. The primary judge did not make that determination. That decision was placed in the hands of “an accredited mediator (or other recognised professional)”. There is no definition in the orders nor an explanation in the reasons as to what this expression means. The primary judge had no knowledge of what such a person’s expertise, training or merit might be. The primary judge ceased to bear the major responsibility for the exercise of judicial power. The decision of the mediator was not to be the subject of any review. The primary judge has invalidly delegated the central decision in the parenting case to the discretion of a person not vested with the Commonwealth’s power to make orders in relation to children and this was an error of law (see Harris v Caladine (1991) 172 CLR 84).
Another challenge to order 19 is that order 19(d) is discriminatory and unfair to the appellant in that it permits the respondent to frustrate the precondition the mother is required to satisfy in order to be able to relocate the child. The father’s behaviour could cause an “interruption” and order 19(d) would require the 12 month period of monthly mediation sessions to recommence. The order that the primary judge made by way of a final order put in the hands of the respondent the ability to frustrate the appellant’s legitimate and legal desire and to prevent what ultimately was determined by the primary judge to be in the child’s best interest.
Another further challenge is that orders 19(b) and 19(c) require that the mediator provide copies of certificates to the court but there are no reasons provided as to why that process is necessary or what the court was meant to do with such certificates in circumstances where final orders had been made and the matter had been removed from the docket of the primary judge.
Finally, orders 19(b) and 19(c) impose an obligation on an unknown third party without any evidence that such third party would be prepared to comply with that obligation.
All of the challenges in respect of order 19 have substance and the primary judge erred in law in making that order.
Given that order 8 is conditional upon the implementation of order 19, order 8 becomes otiose and the primary judge failed to determine the central issue in the parenting case.
The appellant further challenges order 7 which restrains the mother from relocating outside a radius of 50 kilometres from Canberra for a period of two years. Whilst there is power to make such an order, the Full Court has observed that a proper exercise of that power is likely to be rare and at the extreme end of the discretionary range. Any such order needs to be supported by “strong and well-defined” reasons (see Sampson v Harnett (No. 10) (2007) FLC 93-350 at [58] and [83]; Adamson & Adamson (2014) FLC 93-622). The primary judge erred in law in not providing any reasons as to why this order restraining the mother’s movement should be made.
Grounds 3, 4, 5, 6 and 7 of the appellant’s Notice of Appeal filed 15 January 2018 complain that the primary judge failed to consider and make orders in relation to the appellant’s applications that she be able to communicate with the child when he was in the care of the respondent; that she be able to spend time with the child on his birthday if otherwise in the care of the respondent; that the child spend time with the appellant on her own birthday when he would otherwise be in the respondent’s care and that the child spend time with the appellant at Christmas and Easter. The appellant also sought orders in relation to the child’s passport and in relation to the appellant travelling overseas with the child. The respondent concedes that the primary judge failed to consider and make orders in relation to these parenting applications made by the mother and concedes the primary judge failed to give any reasons as to why those orders should not be made. It was an error of law for the primary judge not to deal with these applications in his reasons and to not make orders one way or the other.
In respect of the property settlement order that the primary judge made at 1 to 5 of the orders, grounds 27 and 28 of the appellant’s Notice of Appeal challenge the primary judge’s conclusions about a number of balance sheet items and grounds 29 and 30 assert that the primary judge failed to give any or any adequate reasons as to how he assessed contributions and s 79(4)(d) – (g) considerations. The respondent at [20] and [21] of the respondent’s summary of argument concedes that the primary judge made the errors asserted by the appellant. I accept that the concessions were properly made and the errors asserted were errors of law.
For these reasons, I am satisfied that there should be costs certificates issued for the appellant, respondent and the Independent Children’s Lawyer pursuant to the provisions of s 9, s 6 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).

Ainslie-Wallace J

I agree with the orders proposed by Justice Watts and the reasons for making them.

Alstergren DCJ

I too agree.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Ainslie-Wallace & Watts JJ) delivered on 31 October 2018.

Associate:

Date: 31.10.18