Jennings & Jennings
[2022] FedCFamC1A 104
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jennings & Jennings [2022] FedCFamC1A 104
Appeal from: Jennings & Jennings [2021] FedCFamC1F 314 Appeal number(s): NAA 31 of 2022 File number(s): BRC 3275 of 2019 Judgment of: TREE, JARRETT & CAMPTON JJ Date of judgment: 12 July 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – International Relocation – Where the appealed orders permit the mother to relocate the child’s residence to New Zealand – Risk assessment – Where the primary judge failed to properly consider how the facts raised an unacceptable risk of harm to the child – Where the primary judge failed to adequately expose the requisite reasoning – Appeal allowed by consent – Matter remitted for rehearing – Costs certificates granted to the parties – Interim parenting orders made by consent. Legislation: Family Law Act 1975 (Cth) Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bhatnagar & Riju [2018] FamCAFC 144
Harridge and Anor & Harridge and Anor [2010] FamCA 445
House v The King (1936) 55 CLR 499; [1936] HCA 40
N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Napier and Hepburn (2006) FLC 93-303; [2006] FamCA 1316
B. Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569
Number of paragraphs: 23 Date of hearing: 29 June 2022 Place: Brisbane Counsel for the Appellant: Mr Bunning Solicitor for the Appellant: SJP Law Solicitor for the Respondent: Keyworth Harris & Lowe Family Lawyers Counsel for the Independent Children's Lawyer: Mr Dodd Solicitor for the Independent Children's Lawyer: Life Law Solutions ORDERS
NAA 31 of 2022
BRC 3275 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR JENNINGS
Appellant
AND: MS JENNINGS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE, JARRETT & CAMPTON JJ
DATE OF ORDER:
29 JUNE 2022
THE COURT ORDERED ON 29 JUNE 2022 THAT:
1.The Application in an Appeal filed on 29 April 2022 be dismissed.
2.The appeal be allowed.
3.The matter be remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to 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.
5.The Court grants to the respondent and the Independent Children’s Lawyer a costs certificate pursuant to 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 and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
6.The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER THAT:
Parental Responsibility
7.The mother and father have equal shared parental responsibility for the major long term issues for the child X born […] 2015 (“the child”).
8.The mother and father consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about decisions to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
9.Notwithstanding the preceding orders for equal shared parental responsibility, the mother and father shall each be responsible for the daily care, welfare and development of the child whilst the child is living with or spending time with them.
Living Arrangements
10.The child live with the father.
11.The child spend time and communicate with the mother at all times as agreed in writing between the parents and failing agreement as set out in these orders.
12.During the school term the mother be at liberty to travel to Australia to spend time with the child:
(a)The mother shall give the father 21 days notice of any intended travel to Australia;
(b)The child shall spend time with the mother for up to 7 consecutive nights on no more than 2 occasions each term;
(c)The child shall spend time with the mother on school days in Location C and ensure that the child attends school.
13.The child spend time with the mother for school holidays as follows:
(a)For the shorter school holidays at the end of Term 1 and Term 3:
(i)In even numbered years for a period of 10 nights commencing on the first Saturday following the conclusion of the school term and concluding 10 nights later;
(ii)In odd numbered years for a period of 10 nights concluding on the Saturday immediately before the recommencement of the following school term.
(b)For the shorter school holidays at the end of Term 2 for one half of the school holiday period:
(i)In even numbered years for the first half commencing on the first Saturday and concluding on the day calculated to be one half of the school holidays;
(ii)In odd numbered years for the second half for a period calculated to be one half of the school holidays and concluding on the Saturday immediately prior to the recommencement of the following school term.
(c)For the longer school holidays for one half of the school holiday period:
(i)In even numbered years for the first half commencing on the first Sunday following the conclusion of the school term and concluding on the day calculated to be one half of the school holidays;
(ii)In odd numbered years for the second half for a period calculated to be one half of the school holidays and concluding on the Sunday which is approximately week prior to the recommencement of the new school year.
Changeover and Travel Arrangements and Costs
14.Changeover shall occur:
(a)in Australia:
(i)during school term either by the mother collecting the child from school or from BB Town;
(ii)during school holiday periods as required at the […] Airport; or
(b)in New Zealand at the […] Airport with the father not to leave the airport for 15 minutes following changeover.
15.Where it is intended that the child travel internationally to spend time with the mother for the purposes of the child spending time with the mother during school holiday time:
(a)the mother and the father shall share equally in the costs associated with the international travel for the child;
(b)such travel arrangements will be made at least 21 days prior to the school holiday period;
(c)the parents will each ensure that they have a copy of the travel itinerary for the child;
(d)where there is a disagreement regarding the arrangements of flights, the mother shall be responsible for booking the flight for the child from Australia to New Zealand and the father shall be responsible for booking the flight for the child from New Zealand to Australia;
(e)Where the parents elect to travel with the child they shall be responsible for their own travel costs.
Telephone/Video Communication with the Child
16.While the child is living with the father:
(a)The child be at liberty to speak with the mother by telephone, Facetime or other video facility on any occasion that he requests to do so;
(b)the father ensure the child has available a phone or device with sufficient phone charge and data to communicate with the mother;
(c)the child be given privacy during such calls;
(d)the mother be at liberty to call the child with such telephone call to commence at 4:00pm each Tuesday, Thursday and Sunday; and
(e)should a call be missed the call will be facilitated by the father on the following day at the nominated time with the fixed days in (d) continuing regardless of any make up call.
17.When the child is spending time with the mother;
(a)The child be at liberty to speak with the father by telephone, FaceTime or other video facility at all times that the child request to do so;
(b)the mother shall ensure that the child has available a phone or device with sufficient phone charge and data to communicate with the father;
(c)the child be given privacy during such calls;
(d)the father be at liberty to call the child with such telephone call to commence at 4:00pm each Tuesday, Thursday and Sunday; and
(e)should a call be missed the call will be facilitated by the mother on the following day at the nominated time with the fixed days in (d) continuing regardless of any make up call.
Communication between parents
18.Save for cases of emergency, when it is necessary to exchange information or to discuss issues about the child the parents will communicate via a parenting application agreed by the parents and failing agreement then the Talking Parents application with such communication limited to such matters as:
(a)start and finishing time and locations of any special requirements of any extra-curricular activity scheduled for the child during a contact period;
(b)any special medication the required by the child;
(c)any special homework, assignment or school work required to be undertaken by the child;
(d)any other unscheduled or periodic activities or events of which the other parent should be aware; and
(e)a list of preferred medical practitioners recommended by the child’s medical practitioners.
and shall not include any other matters such as observations or comments upon the other parent’s parenting.
19.During the time the child is with either parent that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Neither parent shall denigrate the other or allow the other parent to do so in the presence of the child;
(d)Not discuss matters of an adult nature, including these proceedings, with the child or in the child’s presence or hearing and that the parents use their best endeavours to ensure that no other person discusses matters of an adult nature with the child or in the child’s presence or hearing.
20.This order is authority for all schools and other care providers of the child to give each parent information about the child, including but not limited to records, educational progress and other school related activities, school reports, newsletters, certificates and awards obtained by the child (at the cost of the requesting parent).
21.Each parent shall keep the other parent informed of the child's doctors, health care or other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child and this order shall act as such authority.
22.Each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent and this order shall act as such authority.
23.Each parent shall inform the other parent immediately in the case of emergency, hospitalisation or serious injury/illness of the child and each parent be able visit the child in hospital if staying there.
24.The parents advise the other parent of any change of telephone number or residential address within 24 hours of such change occurring.
Travel and Passport Arrangements
25.The child be permitted to travel between Australia and New Zealand to spend time with the mother pursuant to these Orders.
26.The travel between Australia and New Zealand referred to in these orders is subject to and conditional upon any travel or quarantine restrictions which are in place at the time given the Covid-19 Pandemic such that if quarantine restrictions are in place the child will not travel to New Zealand however this does not preclude the mother travelling to Australia provided any quarantine period concludes prior to the child spending time with the mother.
27.In the event the child’s passport requires renewal, the Father or the Mother must execute and return to the other parent the relevant Application Form within 14 days of their receipt of the Application Form from the other parent.
28.Pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child X born […] 2015 is permitted to have an Australian travel document.
29.The parent holding the Australian passport of the child X must make X’s passport available travel between Australia and New Zealand to the other parent or person nominated to receive that passport on behalf of the other parent not less than 72 hours before the proposed travel.
30.The mother do all things necessary to return the child to Australia no later than 11 July 2022.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jennings & Jennings has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, JARRETT & CAMPTON JJ:
INTRODUCTION
By a Notice of Appeal filed on 21 February 2022, Mr Jennings (“the father”) appealed from final parenting orders made on 15 February 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1) concerning the living arrangements of X (“the child”) who is the only child born to the parties’ relationship. Those orders permitted Ms Jennings (“the mother”) to relocate the residence of the child to New Zealand to live with her there, and for her to exercise sole parental responsibility for the child. The orders further provided for time to be spent between the child and the father in Australia during school holiday periods.
Initially the mother resisted the appeal but during argument consented to it being allowed. The Independent Children’s Lawyer (“ICL”) also consented to the appeal being allowed.
Subsequently we upheld the appeal, and made consequential orders including interim parenting consent orders. However we reserved our reasons for allowing the appeal, as the parties’ consent does not obviate the need for the Court to be satisfied of error justifying the success of the appeal (Bhatnagar & Riju [2018] FamCAFC 144). These reasons explain why we were so satisfied.
BACKGROUND
The father was born in 1972 and is presently 50 years of age. The mother was born in 1978 and is presently 44 years of age. They commenced their relationship in 2011, were married in 2015 and finally separated in July 2018.
The child was born in 2015 and is presently seven years old. The mother has another child to a previous relationship, Y, who is 13 years old, and who lives with the mother in New Zealand. Y’s father lives in Australia and spends time with her here during school holiday periods.
In July 2018, the mother relocated from Australia to New Zealand without the child. It was not in dispute that at that time, she was the child’s primary attachment figure, although subsequently the father assumed that role, as the child remained living with him in Australia. Thereafter the child had only spent time with the mother on four occasions up until the date of trial.
At the time of trial, the mother lived in New Zealand with Y, together with her new partner and, on alternate weeks, that partner’s child to a previous relationship. The child had never met either the mother’s new partner or his child, nor visited New Zealand.
The trial before the primary judge took place over three days in June 2021. At that hearing, the father sought final orders for the child to live with him in Australia, whereas the mother sought to relocate the child’s residence to New Zealand to live with her and his half-sister.
On 16 December 2021, the primary judge delivered reasons for judgment which concluded that the child’s best interests would be served by him living with the mother and his sister in New Zealand, and spending time with the father in Australia during New Zealand school holidays. After the primary judge gave the parties a period of time to agree and submit draft final orders reflecting his Honour’s reasons for judgment, final parenting orders were pronounced on 15 February 2022.
In conjunction with filing his Notice of Appeal, the father filed an application to stay the final orders pending the appeal. On 7 March 2022, that application was dismissed and the child subsequently went into the mother’s care in New Zealand.
THE APPEAL
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The father agitated ten grounds of appeal in his Notice of Appeal, some of which overlapped or were interrelated, as follows:
1.The learned Judge failed to give adequate Reasons and in particular failed to give adequate consideration of any of the Section 60CC factors, or Section 65DAA or Section 61DA before making a determination and his failure to do so is an error of law.
2.The learned Judge made premature determinations without consideration of any of the relevant legislative pathway, or for that matter any of the other evidence in the matter at paragraph 25 of the Reasons and his predetermination is an error of law.
3.The learned Judge’s focus in his reasons on historical family violence and the corresponding findings made in relation to that topic meant that the learned Judge failed to engage with the other evidence and caused his discretion to miscarry.
4.The learned Judge’s finding at paragraph 18 of the Reasons is unsupported by any other finding in the Reasons as to what risk is posed by the child remaining in the care of the Appellant and the learned Judge gave either no or insufficient Reasons to support the finding at paragraph 18 of the Reasons. His failure to do so is an error of law
5. The learned Judge’s finding at paragraph 138 of the Reasons that the Appellant had not changed his manner or living’ as it was described by the learned Judge is unsupported on any other evidence in the matter.
6.The learned Judge failed to consider, weigh and assess any risk posed to the child in living with the Appellant, in light of the other findings he made and his failure to consider, weigh and assess the risk is both against the case authority and an error of law.
7.The learned Judge’s finding at paragraph 105 of the Reasons that one of the most important aspects underpinning the opinion of the Family Report writer was that the Father had demonstrated an openness to change’ is internally inconsistent with paragraph 134 of the Reasons and is inconsistent with the other evidence of Ms D. The finding is wrong in fact and caused the learned Judge’s discretion to miscarry.
8.The learned Judge failed to give any consideration, whatsoever, to the effect on the child’s relationship with the Appellant when the evidence was the child had lived with the Appellant since June 2018 and in doing so failed to give any consideration to either Section 60CC (3) (b) or Section 60CC (d) and his failure to do so is an error of law.
9.The learned Judge’s application of the case of Banks v Banks (2015) FLC 93-637 is wrong at law.
10. The Reasons are otherwise inadequate and insufficient.
It is only necessary for us to address the challenges advanced in relation to the primary judge’s consideration of the risk which he found that the father posed to the child.
The primary judge was satisfied that there had been extensive family violence between the parties perpetrated by the father, the last episode of which was seemingly in October 2017. That finding was well open on the evidence. His Honour also found that the father had not thereafter gained insight into the impact of such behaviour, notwithstanding his assertions to the contrary. Again, we are satisfied that conclusion was well open to the primary judge. His Honour thereafter turned briefly to consider the future risks which the father was said to thereby pose to the child at [128] as follows:
128.The family report writer did acknowledge that, in effect, if the Court was not satisfied that the father had in fact gained insight into the effects of his conduct and, if the Court was not satisfied that the father had changed his ways – then there would be a risk for the child remaining in the father’s care. These are the inferences and conclusions I drew from the evidence of the family report writer which is contained in the Transcript (Transcript 18 June 2021, p.363 line 29).
However, despite the primary judge thereafter often referring to the contended risk and particularly saying that it was “obvious” (e.g. at [136] and [150]), exactly what the risk comprised, or why it was assessed to be unacceptable, hence necessitating the child’s removal from the father’s care and relocation to New Zealand, is not able to be discerned from the reasons.
In Napier and Hepburn (2006) FLC 93-303 (“Napier and Hepburn”) at [56] the Full Court adopted what Fogarty J had earlier said in N and S and the Separate Representative (1996) FLC 92-655 at 82,713–82,714 as follows:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
(Emphasis added)
An often quoted example of one means of complying with that mandate was adopted by Murphy J in Harridge and Anor & Harridge and Anor [2010] FamCA 445 at [73] from B. Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 as follows:
Risk assessment in any situation involves, in essence, the asking of the following questions:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
When compared against that list of inquiries, it can be seen that here the primary judge has not addressed any of the relevant considerations.
First, the nature of the risk posed by the father is unexplained, and particularly whether it comprised a risk of physical, psychological or emotional harm to the child. Secondly, no assessment of the likelihood of the father again engaging in family violence in the presence of the child was explicitly undertaken. Thirdly, even if the primary judge implicitly found that there was some real possibility of further family violence by the father in the future, the gravity of any harm to the child should such violence occur was not considered. Fourthly, no consideration of the mechanisms to mitigate such risks as may exist, so as to reduce them below being unacceptable, is apparent in the primary judge’s reasons.
It is otherwise not possible to see how the primary judge gave “real and substantial consideration to the facts of the case … and why … those facts could be said to raise an unacceptable risk of harm to the child” (Napier and Hepburn at [56]).
Those deficiencies necessarily meant that there was no weighing of the precise risk posed by the father, against the risks to the child of again being removed from his primary attachment figure, and going to live in an unfamiliar household with two persons unknown to him, in a country of which he had no experience. To the extent the primary judge undertook such an exercise at [18] and [141], it was only in relation to the unspecified “risk to the child” posed by the father.
These errors are either a failure to properly consider how the facts raised an unacceptable risk of harm (Napier and Hepburn) as contended by Grounds 4 and 6, or a failure to adequately expose the requisite reasoning (Bennett and Bennett (1991) FLC 92-191) as contended by Grounds 1, 4 and 10, or both.
For these reasons, on 29 June 2022 we allowed the appeal, remitted the matter for rehearing, and issued relevant costs certificates to the parties.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Jarrett & Campton. Associate:
Dated: 12 July 2022
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