Kopel & Ferro - [2016] FamCAFC 202

FAMILY COURT OF AUSTRALIA

KOPEL & FERRO

[2016] FamCAFC 202

FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the appellant appeals against final parenting orders dismissing an application to relocate overseas with the child – Whether the primary judge erred in his assessment of the parties’ competing proposals – Where the primary judge failed to evaluate the proposal advanced by the appellant – Where the error is material – Appeal allowed – Whether the remitted re-hearing should be limited to the issue of relocation – Matter remitted without limitation.

Family Law Act 1975 (Cth): ss 94(2), 69ZX(3)
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 8, 9

AMS v AIF (1999) 199 CLR 160
Brett-Hall and Brett-Hall (2006) FLC 93-276
Hartnett & Sampson (Scope of Rehearing) (2009) FLC 93-391
Pateman v Higgin (1957) 97 CLR 521
Rice and Asplund (1979) FLC 90-725
Ruscoe and Walker (2002) FLC 93-093
Sampson and Hartnett (No 10) (2007) FLC 93-350
Walker v Ruscoe S115/2001 [2002] HCATrans 101 (5 March 2002)

APPELLANT:

Ms Kopel

RESPONDENT:

Mr Ferro

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

6467

2014

APPEAL NUMBER:

SOA

2016

DATE DELIVERED:

14 October 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Strickland & Ryan JJ

HEARING DATE:

14 October 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 May 2016

LOWER COURT MNC:

[2016] FamCA 409

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Ingleby

SOLICITOR FOR THE APPELLANT:

Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dickson QC

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

The appeal be allowed.
Paragraphs 4, 5, 6, 11 and 21 of the orders made on 26 May 2016 be set aside.
The proceedings be remitted to the Family Court of Australia for rehearing before a judge other than the primary judge.
Pending determination of the remitted rehearing or further orders, there be orders in accordance with paragraphs 4, 5, 6 and 11 of the orders made on 26 May 2016.
There be no order as to costs.
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 her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of 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 in respect of the costs incurred by him in relation to the appeal.
The Court grants to the appellant and the respondent a costs certificate pursuant to s 8 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 and the respondent in respect of the costs incurred by them in relation to the new trial ordered.

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 Kopel & Ferro 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 MELBOURNE

Appeal Number: SOA 50 of 2016
File Number: MLC 6467 of 2014

Ms Kopel

Appellant

And

Mr Ferro

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

By Notice of Appeal filed on 23 June 2016 Ms Kopel (“the appellant”) appeals against orders made by Berman J on 26 May 2016 insofar as they effect a dismissal of her application for her and Mr Ferro’s (“the respondent”) daughter, J (“the child”) to relocate from Australia and to thereafter live in Israel. There is a raft of other orders which are not challenged in the appeal.
The child was born in 2009 and was six years of age at the time of trial. As to the child’s day to day care, his Honour was satisfied both parents provided for this albeit during a two year period when the appellant was ill, the respondent primarily attended to the child’s needs. In the 20 months between separation and trial, the child’s time was divided between them equally.
By way of background to the relocation dispute, it needs to be understood that the parties and the child have significant connections to Israel and Australia. As to Israel, this is where the parties were born and raised and, for the first eight years of their cohabitation, they lived. It was in 2003 that they migrated to Australia. Having settled in Australia they regularly returned to Israel (where each has family) as did the child. In Australia the parties have established successful businesses, so much so that the respondent says his financial security means that he would not return to Israel permanently. Australia is where the child has lived the majority of her life and where she commenced her formal education.
Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), the primary judge ordered that the parties have shared parental responsibility for the child (Order 1) subject to an order that the appellant have sole parental responsibility in relation to education and health issues affecting the child. His Honour was satisfied that it was in the best interests of the child to live primarily with the appellant and had “no doubt” that she would comply with “any order” for the child to spend time with the respondent. However, in relation to the relocation application, the primary judge misstated the appellant’s proposal and concluded that, at best, she proposed “the child would spend about four weeks a year with the husband” albeit, this “may be supplemented should he travel to Israel” ([310]). Such an arrangement would be “a significant insult to the relationship that this child has with [the respondent]” ([322]) and on this basis, the appellant’s relocation application failed. The pivotal question for this appeal is whether this mistaken approach to the appellant’s relocation application is sufficiently significant to amount to an error of law.
There is no doubt that during the litigation the appellant changed her proposals concerning the amount of time the child would spend in Australia with her father if she were to reside in Israel. The time she would spend with him if he visited Israel was also increased. At the commencement of the trial, her position was as outlined in her counsel’s Outline of Case document. In that document, assuming the child relocated to Israel, the appellant proposed orders which would provide for the child to spend “four weeks in Australia during the Israeli summer school holiday period (during July to August) at such times to be agreed between the parties”. Otherwise the child would spend time with the respondent in Israel as the parties might agree and, similarly, without limitation as to location, on such other occasions as the parties might agree. This is the proposal by reference to which the primary judge determined the likely effect of the proposed relocation on the child’s relationship with the respondent.
However, the appellant’s position changed and on 15 February 2016 (day 3 of trial) a document was presented on her behalf which contained the final orders now sought. Again, assuming the child relocated to Israel and the respondent remained in Australia, the appellant proposed that the child spend time with him as follows:
3. That the husband spend time with [the child] as follows:
a)During any period that the husband is in Israel, for a period of not less than two weeks up to three occasions per year and thereafter in alternating weeks;
b)In Australia:
i)For two thirds (ie. six weeks of the eight weeks) of the Israeli long summer school holiday period; and
j)For one other period during [the child’s] school term holidays at a time to be agreed and in default of agreement during the Passover holiday period in March/April;
c)By telephone (or such other available electronic means such as Skype or FaceTime) between 6pm and 7pm (Israeli time) every second night that [the child] is in the wife’s care and at all other times as requested by [the child];
d)At such further or other time as agreed between the parties whether in Australia or Israel.
It is not in doubt that the appellant’s position shifted again and that the hearing was completed on the basis that the final orders she proposed were those contained in a document dated 18 February 2016. Concerning the child’s time with the respondent in the circumstances under consideration, the appellant proposed:
3.That the husband spend time with [the child] as follows:
a)During any period that the husband is in Israel, for a period of not less than two weeks and thereafter in alternating weeks;
b)In Australia:
i)For two thirds (ie. six weeks of the eight weeks) of the Israeli long summer school holiday period; and
j)For one other period during [the child’s] school term holidays at a time to be agreed and in default of agreement during the Passover holiday period in March/April;
c)By telephone (or such other available electronic means such as Skype or FaceTime) between 6pm and 7pm (Israeli time) every second night that [the child] is in the wife’s care and at all other times as requested by [the child];
d)At such further or other time as agreed between the parties whether in Australia or Israel.
It can be seen that her final position was essentially in the same terms as the 15 February 2016 proposal except that the time in Israel was not limited to three occasions annually. In relation to the proposed trip to Australia during the Passover holiday period, it was accepted that this would be for a period of two weeks. There was no objection taken to the appellant being given permission to amend her proposed orders or an application to have her recalled for the purpose of cross examination on her final proposal.
The appellant’s final proposal was supported by the Independent Children’s Lawyer (“the ICL”).
Although during closing addresses the primary judge clarified that the appellant proceeded on the basis of the 18 February 2016 document, at [14], [24], [173] and [310] of the trial reasons his Honour approached the evaluation of the appellant’s relocation application on the basis that she proposed the child would spend time with the respondent in Australia for four weeks during the Israeli summer school holidays, in Israel at such times as the parties agreed and, irrespective of the location, in accordance with their agreement. Namely, as was mentioned earlier, in accordance with the orders set out in the case outline document.
Notwithstanding the attempt by senior counsel for the respondent to persuade us that what his Honour did was to assess the practical reality of the appellant’s proposals as revealed by her oral testimony, I am not so persuaded. In my view the transcript references to which we were taken (see [12] of the respondent’s Summary of Argument) do no more than demonstrate that senior counsel who then appeared for the respondent at trial overlooked that the appellant’s proposal had changed and that her cross-examination was undertaken without taking into account that she no longer sought the orders contained in the case outline document. This is evident not only from senior counsel’s questions, but also the appellant’s answers; for example:
Yes. So have you thought through the consequences of that relationship, that’s between [the child] and her father, in the event that His Honour accedes to your request to go back to Israel, which would mean that, on your proposal, that [the child] would have time with her father for around about four weeks a year in Australia; that’s, in essence, your proposal, isn’t it?---I think I suggested another time during the year.
One other time during the year if he comes to Israel?---No. I think I said just another time to come to Australia.
It came in this morning, your Honour. I will just - - -
HIS HONOUR: Yes. That’s all right. 3 – order 3.
MR MAWSON: Yes:
... for four weeks in Australia during the Israeli school holidays. In Israel at such other times as may be agreed. Such other times as may be agreed.
Okay. And otherwise Skype and webcam?---Yes.
Right? Okay. So it’s your proposal to His Honour that it’s in [the child’s] interest, even though her father, you concede, is very important to her, to go from a shared arrangement, where you’re spending equal time with her, to a situation where [the child] sees her father for four weeks a year?---I have thought about it a lot. I find it very hard to believe that he will not come join us, but – but assuming he will not, as he says, I think the positive outweighs the negatives, and – and I think that [the family consultant] also supported that approach, and that was her assessment.
(Transcript of proceedings, 15 February 2016, page 286)
From these exchanges it can be seen that the appellant pointed out that her proposal had changed and she proposed the child travel to Australia twice a year. She repeated her evidence that it was her belief that if she secured a relocation order the respondent would probably follow. The exchanges also reveal that the primary judge acknowledged that the appellant’s case had changed and was now presented in a different suite of orders. Yet cross examination of the appellant proceeded without regard to the fact she proposed more extensive time in Australia and Israel. To the extent it was argued that the appellant ought to have corrected the misapprehension inherent in the further questions, as she had already done that once (as had his Honour) it was not necessary for her to continually correct the error. Nor am I able to accept that the appellant’s answers given to these misstated questions could have provided a proper foundation for the primary judge to conclude that the child would in fact live no more than four weeks in Australia.
I am satisfied that as is asserted by ground 1, his Honour overlooked the fact that the appellant’s proposal for time had changed in a significant way. I cannot agree with the submission by senior counsel for the respondent that the difference between the proposal which his Honour considered and that relied upon by the appellant was immaterial. Reference need only be made to the fact that she actually proposed time in Australia which doubled that considered by his Honour and for the child to come to Australia twice every year rather than for a single occasion to establish the point. In circumstances where the parties are Israeli citizens, had family in Israel, had lived in Israel and they and the child had visited Israel for extended periods, his Honour also needed to evaluate the evidence which, according to the case mounted by the appellant, pointed to a reasonable likelihood that the respondent could comfortably spend time with the child in Israel at least annually. This was not done.
The effect of these matters is that notwithstanding the primary judge acknowledged that it was well settled by authority that a judge in his position must evaluate the parties’ proposals so as to determine the child’s best interests (see AMS v AIF (1999) 199 CLR 160), he failed to evaluate the proposal advanced by the appellant. I agree with counsel for the appellant and counsel for the ICL that this error goes to the heart of his Honour’s exercise of discretion and ground 1 is made out.
If error as asserted by ground 1 was made good, it was common ground that consideration need not be given to the remaining challenges and that the appeal should be allowed. I am content to adopt this approach.
Although the Notice of Appeal proposed that we re-exercise, it was only this morning that the appellant acknowledged that this would not be possible and that the proceedings would need to be remitted for re-hearing. Senior counsel for the respondent agreed. As do I. I also agree with the parties the various adverse credit findings made by the primary judge requires that a different judge undertakes the remitted re-hearing.
Thus an issue arose as to the orders which would operate pending that

re-hearing and, in particular, whether we would remake the orders under challenge as interim orders, or leave those orders in place and simply remit the question of whether the child should live in Australia or Israel. The difficulty with the later approach is that the magnitude of the changes to the child’s life inherent in the relocation application will touch on many aspects of the child’s life. I struggle to perceive how a circumscribed hearing would properly enable the incoming trial judge to settle on a suite of orders which promoted the best interests of the child. With this in mind and so as to ensure the child is able to continue to spend time with the respondent pending the remitted re-hearing, I would set aside the orders referred to in the Notice of Appeal at paragraph 8, but order 4 in its entirety, and remake these orders as interim orders.
In the event the appeal was allowed, the appellant sought that the respondent pays her costs. This was on the basis that the error was manifest and properly advised the respondent should have conceded. However, as was said by senior counsel for respondent the question of the materiality of the error was a proper issue for consideration on appeal. Further, that it was only today that the appellant conceded that the proceedings would need to be remitted and thus this hearing was necessary.
I do not consider an order for costs is appropriate. However, I am satisfied it is appropriate that the parties are both given costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and re-hearing.
The ICL does not seek costs and is not entitled to a costs certificate.

Thackray J

I agree generally with the reasons of Ryan J and therefore agree that the appeal should be allowed. It is common ground in these circumstances that the matter should be remitted for re-hearing, and it is also the desire of both parties, albeit for different reasons, that the matter be heard by a judge other than Berman J.
The only remaining controversy is whether there should be any limitation on the remitter. Counsel for the appellant argues that the remitter should be limited to whether the mother should be permitted to relocate and the consequential variation in the contact orders if she were to be successful. Counsel for the appellant argues that in the absence of any cross-appeal, it would be inappropriate for his client’s success in the appeal to become the vehicle for the unsuccessful respondent to agitate all over again other issues which have already been the subject of a full hearing. He submits that the respondent should only be allowed to have those issues revisited if he is able to overcome the hurdle laid down by Rice and Asplund (1979) FLC 90-725.
Senior counsel for the respondent argues that the trial judge who rehears the matter should not be constrained in making whatever orders the evidence suggests should be made in the best interests of the child.

Counsel for the ICL supported the appellant’s position, although it must be said that she did not make submissions about the limits, if any, on the remitter.
It is not in doubt that this court has power to place conditions on the remitter of a matter after a successful appeal. So much is clear from s 94(2) of the Act, which provides that we can order a re-hearing on such terms or conditions, if any, as we consider appropriate. In Ruscoe and Walker (2002) FLC 93-093 at [19], the majority held that the power is wide enough to order “a limited rehearing of some issue or issues, or of some aspect of the exercise of discretion, which this Court considers appropriate in all of the circumstances of the case, including the history of the litigation to date and the grounds upon which the appeal has been upheld”.
The decision in Ruscoe and Walker was the subject of an unsuccessful application for special leave to appeal to the High Court: Walker v Ruscoe S115/2001 [2002] HCATrans 101 (5 March 2002). In refusing special leave, McHugh J said:
it would be wrong to put a narrow construction on section 94 simply because of the existence of the very broad discretion conferred on the Family Court by section 79 of the Act. There was no error in the judgment of the Full Court.
In approaching this issue, I also have in mind the comments of Kitto J in Pateman v Higgin (1957) 97 CLR 521 at 527, where his Honour said:
it would seem that the fundamental guiding principle in choosing between a general and a limited new trial ought to be that which was formerly applied where a new trial was in the discretion of the court: “if on the evidence the court above thinks that justice has not been done, but they shall do more injustice by setting the matter at large again, they may restrict the parties to certain points on the second trial”…
I accept that there is always potential for difficulty when remitting part only of a dispute. This was recognised when the Full Court granted a partial remitter in Brett-Hall and Brett-Hall (2006) FLC 93-276. Their Honours accepted that the course of the re-hearing in Ruscoe and Walker had been “less than straight forward”, and that the objectives of the Full Court in imposing conditions on the remitter in that matter were “not readily able to be achieved”.
Although it is sometimes said that a partial remitter in Sampson and Hartnett (No 10) (2007) FLC 93-350 led to difficulties, it should be remembered that the Full Court later explained in Hartnett & Sampson (Scope of Rehearing) (2009) FLC 93-391 that there had not been a partial remitter at all. The difficulty that arose there, as I perceive it, came from the fact that the matter was remitted to the same trial judge who had made the order that was successfully appealed, and her Honour was then persuaded that she should disqualify herself. That is not the course that is proposed here, since a new judge will hear the matter and there is no suggestion that the new judge would be bound by any findings made by Berman J. The limitation proposed goes only to the issues to be determined.
I turn then to the circumstances of this case to determine whether the trial judge who rehears the matter should be constrained in any way in the re-hearing. In doing so, I accept that a determination of what is in the best interests of a child requires a holistic assessment of the child and her family, and that it is not possible, in one sense, to compartmentalise the best interests of the child. However, recognising always that the court is not bound by the proposals of the parties, it is a fact that trial judges are routinely presented with cases in which the parties themselves have laid down the parameters of the dispute which requires determination.
For example, in the context of relocation cases, it would not be uncommon to find that the parties are in agreement that the child should live with one of the parents. It would not be rare for there also to be agreement about the time the child is to spend with the non-residence parent if the relocation is not permitted. There may even be agreement about the time the non-residence parent should spend time with the child if the relocation application succeeds. Potentially, the only issue for determination is whether the relocation itself should be allowed. If that was how the matter was presented to the trial judge, in my view it could not be fairly argued that the trial judge is in some way improperly constrained from arriving at the outcome that best promotes the child’s interests.
Recognition of this fact does not suggest that relocation cases are some special category of case where the relocation is divorced from consideration of the child’s best interests. Rather, the proposition recognises that parties are entitled to lay down the boundaries of the dispute and therefore to make concessions about matters that need not be the subject of judicial determination. This is, of course, subject to the caveat already mentioned, that in matters involving the welfare of a child, the trial judge retains an overriding discretion to cross the boundaries the parents themselves have laid down, subject to the requirement to afford natural justice.
If the parties themselves can lay down the parameters of the dispute for resolution, why should this court not do so in circumstances where the parties have already been through a lengthy trial and where a trial judge has resolved highly contentious issues in a way which senior counsel for the respondent properly conceded could not be the subject of a successful appeal. Charting such a limited course has the potential to limit the matters that would need to be traversed at the second trial, but that was not an argument put on behalf of the appellant. Taking such a course also has the potential to save the parties, and importantly the child, from involvement in further pre-trial processes, such as interviews with experts which might not be required at all, or which might be more limited than they would be if the primary issue of residence was left open. That argument was also not put by counsel for the appellant, who focussed his submissions on the unfairness to the appellant of the respondent having the opportunity to take advantage of his client’s successful appeal.
Ultimately though, while I consider there was some merit in the argument of counsel for the appellant that the further hearing should be confined in the way he proposed, I agree with Ryan J that no fetter should be placed on the new trial judge. My reason for adopting this position is that while a judge is at liberty to depart from an agreed position of the parties, the trial judge here would not be at liberty to depart from restrictions imposed by the Full Court, even if he or she considered that the evidence pointed to the desirability of that course, unless of course the Rice and Asplund threshold had been crossed.
Bearing in mind the length of time that will have passed between the close of the evidence in the first trial and the start of the second trial, what I fear with a limited remitter is that the trial judge would end up bogged down in a Rice and Asplund argument, at a hearing where evidence relevant to the relocation issue would also be highly relevant to the residence and contact disputes. I can then foresee that the trial judge would end up having to rule on the very issues which the appellant understandably wishes to avoid being agitated again.
As the matter has not been the subject of any submissions, I will not comment on what was said by Warnick J in Hartnett & Sampson (Scope of Rehearing) (2009) FLC 93-391 concerning the possible application of s 69ZX(3) at the second trial. That provision allows a trial judge to receive into evidence the transcript in other proceedings before the court; draw any conclusions of fact from that transcript that he or she thinks proper; and adopt any finding, decision or judgment made in those proceedings.
For these reasons, I would join with Ryan J in remitting the matter without limitation to a judge other than Berman J. I also join with her Honour in agreeing that there should be no order for costs, but that there should be costs certificates for both the appellant and the respondent, for both the appeal and the re-hearing.

Strickland J

I agree with the reasons given by Ryan J and with the orders proposed by her Honour.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Ryan JJ) delivered on 14 October 2016.

Associate:

Date: 25 October 2016