Lainhart & Ellinson

Case [2023] FedCFamC1A 200

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Lainhart & Ellinson [2023] FedCFamC1A 200

Appeal from: Lainhart & Ellinson [2023] FedCFamC2F 931
Appeal number: NAA 214 of 2023
File number: SYC 4512 of 2018
Judgment of: MCCLELLAND DCJ, ALDRIDGE & AUSTIN JJ
Date of judgment: 20 November 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders – Where the primary judge ordered the father to engage in cognitive behavioural therapy with a qualified clinical psychologist as the pre-condition for the child to progress to spending expanded unsupervised time with the father – Where no finding was made about the nature of the father’s psychological condition which the therapy is designed to defeat – Where the orders do not specify how long the therapy must be administered – Where the orders do not specify how the presumed success of the course of therapy will be measured – Where the primary judge ordered the father to provide the mother with a progress report from his psychologist – Where the report must confirm the father’s achievement of several milestones – Where the operation of the orders is tantamount to the divestiture of judicial power and the unlawful conferral of such power upon a third party to determine the proper future parenting arrangements for the child – Where the orders are aspirational and unenforceable, not prescriptive and enforceable – Appeal allowed – Matter remitted for rehearing, but confined to the orders which regulate the time the child will spend with the father – Costs certificates granted.
Legislation:

Family Law Act 1975 (Cth) Pt VII and Pt VIII, ss 64B, 65D, 65LA

Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

B and B (1993) FLC 92-357; [1993] FamCA 143

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

Boyle & Zahur & Anor (2017) FLC 93-814; [2017] FamCAFC 263

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

House v The King (1936) 55 CLR 499; [1936] HCA 40

Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108

Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66

Rader & Rader & Ors (No 2) [2019] FamCAFC 227

Re C and J (1996) FLC 92-697; [1996] FamCA 86

Re David (1997) FLC 92-776; [1997] FamCA 48

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23

Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4

Surridge & Surridge (2017) FLC 93-757; [2017] FamCAFC 10

U v…

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AGLC
Lainhart & Ellinson [2023] FedCFamC1A 200
Case
[2023] FedCFamC1A 200
Decision Date

CaseChat Overview and Summary

In the matter of Lainhart & Ellinson, the mother appealed from final parenting orders made by the primary judge. The dispute centred on the conditions under which the child would spend time with the father, which the mother argued posed a risk to the child’s safety. The primary judge ordered that the father engage in cognitive behavioural therapy as a precondition for unsupervised time with the child. The mother argued this order was flawed for several reasons, including the lack of a finding about the father’s psychological condition and the absence of specific details on the duration and evaluation of the therapy.

The court identified several legal issues, including whether the order divested judicial power and unlawfully conferred it on a third party, and whether the orders were aspirational and unenforceable. The court found that the orders were indeed aspirational and unenforceable, as they lacked specificity and relied on the presumed success of the therapy without clear metrics for evaluation. The court also held that the orders operated to divest judicial power and unlawfully confer it on the psychologist. The mother's appeal was allowed, and the matter was remitted for re-hearing, focusing solely on the orders concerning the time the child would spend with the father.

The court set aside the appealed orders and remitted the proceedings for re-hearing by a different judge. Costs certificates were granted to the mother, father, and the Independent Children’s Lawyer, authorising payments for their costs incurred in relation to the appeal and re-hearing. This decision ensures that the future parenting arrangements for the child will be determined through a process that adheres to legal principles and safeguards the child’s best interests.

Orders

Orders of the court

NAA 214 of 2023

SYC 4512 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS LAINHART

Applicant

AND:

MR ELLINSON

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ, ALDRIDGE & AUSTIN JJ

DATE OF ORDER:

20 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Orders 4(b), 4(c), 4(d), 4(e), 4(f), 4(g), 5, 6, 7 and 8 made by the primary judge on 27 July 2023 are set aside.

3. Orders 4(a) and 9 made on 27 July 2023 are set aside as and from the first return date before the Federal Circuit and Family Court of Australia (Division 2) following remitter pursuant to Order 4 hereof.

4. The proceedings are remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing by a different judge to determine the orders which should be made in respect of the subject child under s 64B(2)(b) of the Family Law Act 1975 (Cth).

5. The Application in an Appeal filed on 20 October 2023 by the appellant is dismissed.

6. The Application in an Appeal filed on 14 November 2023 by the respondent is dismissed.

7. The appellant is granted 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 her costs incurred in relation to the appeal.

8. The respondent is granted 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 in respect of his costs incurred in relation to the appeal.

9. The Independent Children’s Lawyer is granted 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 Independent Children’s Lawyer in respect of the costs incurred by her in relation to the appeal.

10. The Court grants to the appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to 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 the appellant, the respondent and the Independent Children’s Lawyer in respect of their costs incurred in relation to the re-hearing.

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).

Background

Background to the litigation

For the reasons which follow, the mother’s appeal from a selection of the parenting orders should succeed and the proceedings remitted for re-hearing to determine the parties’ competing applications for orders which will regulate the time the child must spend with the father.Background The parties met in 2006, commenced their relationship in 2013, married in 2015, and finally separated in 2018. Their only child was born in 2017 and is now aged six years. For several months following the parties’ separation, they were able to informally implement arrangements for the child to spend time with the father. The mother commenced proceedings in July 2018 seeking relief under both Pt VII and Pt VIII of the Act. Interim parenting orders were first made in July 2018, providing for the child to live with the mother and to spend supervised time with the father each week (at [19], [104] and [114]). Those orders were varied by more interim orders made in August 2020, providing for an expansion of the child’s weekly visits with the father, but preserving the requirement for supervision (at [22]). The time spent by the child with the father was interrupted at times during 2020 and 2021, due to public health restrictions imposed during the national pandemic emergency (at [115]). There were also some interruptions in late 2021 and early 2022 for other reasons (at [116]–[117]). At trial, the child’s continuing primary residence with the mother was not contentious. The dispute was confined to the allocation of parental responsibility for the child and the manner in which she would spend time with the father. The mother contended the father posed a risk of harm to the child by reason of an inability to manage his anger and his propensity for violence (at [7]), which he denied (at [8]). The primary judge ordered that the child should live with the mother and conferred sole parental responsibility for the child upon her. Those orders are not now contentious. The focus of the appeal was upon the suite of orders governing the manner in which the child must spend time with the father, which orders were conceived by the primary judge and are not reflective of any proposed by the mother, the father, or the Independent Children’s Lawyer (“the ICL”). Nor do they correlate with the recommendations of the single expert. That is not necessarily problematic, because the primary judge was duty-bound to make orders which promoted the child’s best interests even if they differed from those proposed (U v U (2002) 211 CLR 238 at 284–285), though it might help explain how his Honour fell into error. The appealed orders In summary, the primary judge ordered that, pending certain conditions being met by the father, the time the child spends with him is confined to 3.5 hours every Saturday under professional supervision at a contact centre (Orders 4(a) and 9). After the stipulated conditions are fulfilled, supervision is dispensed with and the time the child spends with the father gradually escalates over a period of around 15 months to include alternate weekends (Orders 4(b) to 4(g) inclusive), parts of the school holidays (Order 5), and other special occasions (Orders 6, 7 and 8).

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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