Jennings & Jennings

Case [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 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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Jennings & Jennings [2022] FedCFamC1A 104
Case
[2022] FedCFamC1A 104
Decision Date

CaseChat Overview and Summary

Jennings & Jennings involved a dispute between a father and mother over the residence of their child, who was born in 2015. The parents separated in July 2018 when the mother relocated to New Zealand without the child, who remained with the father in Australia. The mother sought to relocate the child to New Zealand, while the father sought for the child to live with him in Australia. The trial before the primary judge 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 during New Zealand school holidays. The father subsequently appealed this decision. The appeal raised the question of whether the primary judge’s determination was unreasonable or plainly unjust, indicating an error in exercising the court’s discretion.

The court examined the principles governing appeals from discretionary judgments, emphasising that it is not enough for the appellate court to consider that they would have taken a different course if in the primary judge's position. Instead, it must be shown that some error was made in exercising the discretion. This could include acting on a wrong principle, allowing extraneous or irrelevant matters to influence the decision, mistaking the facts, or failing to take into account some material consideration. The court also noted that if the primary judge's determination appeared unreasonable or plainly unjust, it may infer that a substantial wrong had occurred.

In this case, the court was required to determine whether the primary judge had erred in his determination that the child's best interests would be served by relocating to New Zealand. The court found that the primary judge had not erred in his decision, as it was supported by the evidence and the relevant legal principles. The court was satisfied that the primary judge had properly exercised his discretion and that the outcome was in the child's best interests. Therefore, the appeal was dismissed, and the primary judge's orders were upheld.

The final orders included interim parenting consent orders, allowing the child to relocate to New Zealand with the mother, subject to specific conditions regarding the child's time spent with the father during New Zealand school holidays.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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