Langley & Tarelli and Anor (No. 2)
[2020] FamCAFC 126
•15 May 2020
FAMILY COURT OF AUSTRALIA
| LANGLEY & TARELLI AND ANOR (NO. 2) | [2020] FamCAFC 126 |
| FAMILY LAW – APPEAL – Appeal against orders to stay parenting proceedings pending determination of criminal charges – Interlocutory order – Right of appeal – Best interests of the child – Paramountcy principle – Consideration of privilege against self‑incrimination and s 128 of the Evidence Act 1995 (Cth) – Findings of fact – Error established – Appeal allowed – Orders set aside – Re-exercise – Application to stay parenting proceedings dismissed – Costs certificate issued to appellant. |
| Evidence Act 1995 (Cth) s 128 Family Law Rules 2004 (Cth) r 5.05(1) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2018) 351 ALR 168; [2018] FCAFC 4 Farmer & Rogers [2010] FamCAFC 253 Field & Kingston (2018) FLC 93-850; [2018] FamCAFC 145 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Landsal Pty Limited (in liq) v REI Building Society (1993) 41 FCR 421; [1993] FCA 171 Langley & Tarelli and Anor [2019] FamCAFC 30 Re K (1994) FLC 92-461; [1994] FamCA 21 Tarelli & Langley and Anor [2017] FamCA 708 Tarelli & Langley and Anor [2018] FamCA 522 VJ v CJ (1997) FLC 92-772; [1997] FamCA 50 |
| APPELLANT: | Ms Langley |
| FIRST RESPONDENT: | Mr Tarelli |
| SECOND RESPONDENT: | Secretary, Department of Communities and Justice |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | PAC | 4311 | of | 2014 |
| APPEAL NUMBER: | EAA | 33 | of | 2020 |
| DATE DELIVERED: | 15 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 15 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 March 2020 |
| LOWER COURT MNC: | [2020] FamCA 196 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPELLANT: | Adam Jones Solicitor |
| COUNSEL FOR THE FIRST RESPONDENT RESPONDENT: | Mr Shaw |
| SOLICITOR FOR THE FIRST RESPONDENT: | F W Ewart & Ewart |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE SECOND RESPONDENT: | Crown Solicitor’s Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Messner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders made 15 May 2020
NOTING THE CONSENT OF ALL PARTIES:
The appeal against the orders dated 4 March 2020 be allowed and those orders be set aside.
The Response to an Application in a Case filed by the first respondent on 13 February 2020 be dismissed.
IT IS FURTHER ORDERED THAT:
Leave is given to the appellant to rely upon her Amended Summary of Argument dated 15 May 2020.
There be no orders as to costs.
The first respondent’s application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
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.
NOTATION:
The Application in an Appeal to adduce further evidence filed by the second respondent on 6 May 2020 is withdrawn and dismissed.
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 Langley & Tarelli and Anor (No 2) 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: EAA 33 of 2020
File Number: PAC 4311 of 2014
| Ms Langley |
Appellant
And
| Mr Tarelli |
First Respondent
And
| Secretary, Department of Communities and Justice |
Second Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Ryan J
Introduction
Listed for hearing before us today is the Further Amended Notice of Appeal filed on 4 May 2020 by Ms Langley (“the mother”). She seeks leave to appeal orders vacating the hearing of interim and final parenting applications listed to commence on 4 August 2020. The parenting proceedings concern her son, born in 2013 (“the child”). Mr Tarelli is the child’s father (“the father”). In October 2019, the father was charged with offences against the mother spanning 11 October 2012 and 17 November 2014. Having concluded that the child was living in a stable and well settled environment with the father and there was no immediacy of danger [77] the primary judge determined that the father’s “right to silence” compelled that the hearing be adjourned.
We are informed by those appearing for the father, the Independent Children’s Lawyer and the Secretary for the Department of Communities and Justice (“the Department”) that the appeal may be allowed by consent. Before that order can be made it is necessary to consider whether error is established. These reasons address that point and the question of costs.
An appeal, whether by right or leave, only lies against a decree (s 94 of the Family Law Act 1975 (Cth) (“the Act”)). Without more, a successful application for an adjournment is concerned with no more than the mechanics of case management and pre-trial management and will not have the effect of concluding an issue on a point. Such an order lacks the characteristics of a decree as explained in Commonwealth v Mullane (1961) 106 CLR 166. However, the law recognises that there are circumstances in which an interlocutory decision is to be treated as concluding an issue between the parties and, in effect leads to entry of final judgment on the point (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [8]), in which case the decision is a decree and a prima facie case for granting leave exists. A stay of proceedings is such an order.
The gravamen of Order 3 made by the primary judge is that the final hearing will not be relisted until “determination of the father’s criminal charges”. Properly understood, it can be seen that in substance, the primary judge granted the father’s application for a stay of proceedings until the criminal proceedings against him were finalised, in accordance with his Response filed on 13 February 2020. The absence of a formal order to that effect does not prevent the determination from being a decision from which an appeal will lie if a decision can be implied, which it is (Landsal Pty Limited (in liq) v REI Building Society (1993) 41 FCR 421).
However, where a stay is ordered in relation to a child welfare matter, the combined effect of s 94AA of the Act and reg 15A(2) of the Family Law Regulations 1984 (Cth) is that leave to appeal is not required. It follows that the mother does not require leave to appeal and can prosecute her appeal as of right.
Background
So as to give the appeal context, it is necessary to refer to some brief background facts, including the somewhat lengthy and complex litigation history. The child was 10 months of age when the parties separated in 2013. After separation he remained in the mother’s care and, after a dispute arose in relation to the amount of time the child would spend with the father, on 10 September 2014, the father commenced proceedings in the Federal Circuit Court of Australia so as to spend time with the child. On 23 March 2015, the Federal Circuit Court requested the Department intervene in the proceedings, which it did.
Interim orders were made on 8 July 2015 for the child to live with the mother on conditions which required her to make the child available to the Department from time to time and for her and the child to attend recommended programs or services. The father was to have supervised time with the child at a contact centre. The proceedings were then transferred to this Court.
There were ongoing difficulties in the child being made available to spend time with the father.
Dr S, who is a child and adolescent psychiatrist, was appointed as the single expert to provide a report, which was prepared in June 2016. Suffice to say the report raised quite complex issues about the child’s welfare and Dr S opined that if the child remained in the care of the mother, which was recommended, it was important that she support the child’s relationship with the father, for her to engage with therapy to assist her to do so and that the Department maintains a degree of supervision over the child.
The proceedings were then listed for final hearing for seven days to commence in June 2017. Unfortunately the mother failed to comply with directions to file evidence and after her application for Legal Aid was refused, on her application, the hearing was vacated.
On 20 July 2017, the matter was listed for final hearing to commence on 23 October 2017.
However, on 11 August 2017 the mother filed an application to adjourn the October 2017 hearing. The mother’s application was made returnable on 8 September 2017 on which occasion, the Department, without notice, filed an application seeking sole parental responsibility for the child. The mother, who appeared without representation, sought that that application also be adjourned. Foster J refused both applications for an adjournment and made interim orders giving the Department sole parental responsibility for the child (Tarelli & Langley and Anor [2017] FamCA 708). His Honour understood that in the exercise of its parental responsibility, the Department was likely to place the child with the father, which it did. The ratio of the decision is that the mother had a constellation of mental health and personality issues that were pervasive risks to the child’s wellbeing [142] and [144]. Notwithstanding that she was the child’s primary attachment figure [144] and there was no relationship between the child and the father [136], he was assessed as reasonably capable and his Honour was satisfied that the child would adapt [152]. No orders were made in relation to the child’s time with the mother and those arrangements were left to the Department.
The hearing proceeded as listed before Cleary J.
The mother last spent time with child on 8 November 2017. Her reasons for not seeing him are complex and because the hearing was undertaken on the basis that if the child continued to live with the father he would also spend time with the mother, the mother applied to re-open the case so as to make it clear that this outcome was no longer an option. Her application to re-open was dismissed and on 27 June 2018, final orders were made for the child to live with the father (Tarelli & Langley and Anor [2018] FamCA 522). The mother appealed and her appeal was heard on 15 February 2019.
On appeal, the mother argued that her evidence of family violence, which included unchallenged eyewitness accounts of the father inflicting family violence on her provided by the maternal grandmother, was not considered by the primary judge. In relation to this, the Full Court observed (Langley & Tarelli and Anor [2019] FamCAFC 30):
9.As to the substantive parenting component of the appeal, it is accepted that the primary judge failed to have regard to evidence in the mother’s case given by Mr J, Ms P and the second report of her treating psychiatrist. Moreover, for reasons which are not explained, unchallenged evidence given by the maternal grandmother of her direct observation of family violence inflicted by the father on the mother was not considered; indeed, the evidence given by the maternal grandmother is neither identified in the material read at trial, nor mentioned at all in the trial reasons. The submission for the mother that the inescapable conclusion is that the primary judge had no regard to the evidence given by the maternal grandmother at the hearing should be accepted (Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [130]).
10.It is not necessary to say more. Once the mother established that potentially significant evidence in relation to her mental health and allegations of family violence was overlooked the findings in relation to those important matters could not stand.
All respondents conceded the appeal, the orders made by Cleary J were set aside and the matter was remitted for rehearing. The effect of this decision was that the orders of 8 September 2017 became the operative orders.
The remitted proceedings came before Foster J. The mother sought that his Honour recuse himself. Although the recusal application failed, his Honour transferred the proceedings to the primary judge.
On 11 July 2019, the primary judge listed the proceedings for final hearing for seven days commencing on 23 April 2020. As well as the parenting issue, the parties’ property dispute was to be heard.
As has already been mentioned, in October 2019 the father was charged with various offences in relation to the mother including sexual assault, sexual intercourse without consent, assault causing actual bodily harm, common assault, destroy/damage property, acts of indecency and threatening and intimidating behaviour. It is unchallenged that the mother was interviewed by police about these matters in October 2017, she completed her statement in December 2017 and in total the police undertook something like a two year investigation which culminated in these charges.
The father applied to adjourn the April 2020 hearing, and on 15 November 2019 over the unrepresented mother’s objection, his application was granted.
On 11 December 2019, the primary judge relisted the final hearing to commence on 4 August 2020 for seven days. Her Honour noted that on the next occasion it would be known whether the father would be committed for trial and whether the August 2020 hearing dates could be maintained. The implication being, that if he was committed for trial, the August 2020 dates would be vacated.
With the April 2020 hearing dates vacated and a degree of uncertainty as to whether the August 2020 dates would be maintained, on 2 January 2020 the mother filed an application for interim parenting orders that the child live with her and that she have sole parental responsibility for him. Without formally doing so, the primary judge dispensed with r 5.05(1) of the Family Law Rules 2004 (Cth) which requires that applications for interim orders be listed as near as possible to 28 days, or as soon as practicable thereafter, from when the application was filed, and directed that the mother’s interim application be listed with the final hearing on 4 August 2020. It is not clear why that decision was made. But in any event, the mother assumed that this listing had been made by a Registrar and, on 30 January 2020 she filed an application for a review of that decision and to have her application for interim parenting orders heard expeditiously. The father filed a Response on 13 February 2020 seeking that all proceedings be stayed until the criminal proceedings were determined. In the alternative, that the August 2020 dates be vacated and the matter listed for further mention in July 2021 for the allocation of trial dates.
The various applications were listed before the primary judge on 21 February 2020. Senior counsel who appeared for the mother advised that provided the August 2020 dates were maintained, the mother would not press to have her application for interim orders heard in the meantime. Thus, her Honour heard argument on whether or not the father’s stay should be given and, on 4 March 2020 orders were made to that effect. Nothing further was said about when the mother’s application for interim orders might be heard.
We are informed that the 4 March 2020 orders have been stayed and if the appeal is allowed and the father’s application for a stay is dismissed, the hearing will proceed as originally intended in August 2020.
The best interests of the child is paramount
At first instance and before us, it is agreed that the question of whether proceedings under Part VII of the Act in relation to the welfare of a child should be stayed or adjourned until the completion of criminal proceedings against a party was authoritatively addressed in Re K (1994) FLC 92-461 (“Re K”) (mother’s Case Outline dated 21 February 2020, p.4; father’s Case Outline dated 20 February 2020, paragraphs 28, 36 and C(1) and the Lists of Authorities filed in this appeal). And that Re K is authority for the proposition that in deciding whether a stay of parenting proceedings should be given or refused, the welfare of the child is the paramount consideration (at 80,764), which it is. However, subsequent to Re K, Part VII was amended and the paramountcy principle changed from operating “in proceedings in relation to” a parenting order (s 64, now repealed) to “[i]n deciding whether to make a particular parenting order” (s 60CA). A stay of parenting proceedings is not a parenting order (s 64B) and therefore s 60CA is not expressly engaged.
The question which must therefore be considered is how, if at all, these legislative changes affect the principle stated in Re K. Given the consensus this morning that the appeal should be allowed and the father’s application to stay the parenting proceedings should be dismissed, we have not taken argument on the point, but I consider that the position is unchanged. Firstly, s 60B which contains the objects of Part VII, is designed to ensure that the Part operates to promote the best interests of the child. Secondly, this sentiment is echoed in s 69ZN of the Act which sets out the principles which govern child related proceedings.
Thirdly, in CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the principles which govern the admission of further evidence on appeal and in the course of so doing considered the amendments made to the paramountcy principle set out earlier. The plurality (McHugh, Gummow and Callinan JJ) observed that an order admitting or rejecting further evidence does not constitute a parenting order pursuant to s 64B and therefore, does not directly invoke the application of the principle. However, the plurality agreed with the Full Court (VJ v CJ (1997) FLC 92-772 at 84,513–84,514) on this point and said that the Full Court was plainly right in concluding that the best interests of the child is a powerful matter to be weighed up against a competing principle such as finality [87]. The plurality continued:
87.… In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal. It necessarily follows that, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order.
88.It is not to the point that the Full Court in this case was not asked to make a parenting order as such. An order admitting or rejecting further evidence is part of the appeal process in which the best interests of the child are the paramount consideration. In determining whether or not to admit that evidence, the effect that it may have in determining what are the best interests of the child is a factor of great weight. It will be one of the most important discretionary considerations to which the Full Court must have regard.
In other words, where the ultimate decision to be made is in relation to a parenting order, other decisions that arise in the course of the process require that the best interests of the child is given great weight. This does not require the Court to apply s 60CC, for example, which seems to have been implied by the Notice of Appeal as originally presented, in order to determine a matter of practice and procedure or case management. But it does require that the decision should serve and certainly not thwart the best interests of the child (see also Farmer & Rogers [2010] FamCAFC 253 at [197]). This also means that Re K should be followed.
Concurrent parenting and criminal proceedings
The primary judge was astute to the ratio of Re K and at [49] and [50] of her reasons extracted portions of that decision which state that the decision of whether to grant or refuse an adjournment of the parenting proceedings “is to be made solely against the criterion of the welfare of the child”. However, as senior counsel for the mother contends, her Honour’s decision prioritised the father’s “right to silence” (privilege against self-incrimination) over the welfare of the child and in so doing her discretion miscarried (Grounds 4 and 5).
The primary judge said:
72.This is the difficulty I have in this matter and with [the mother’s] application. The facts of this matter are vastly different from that decision as well as in Re K. Serious criminal charges have been laid, and whether the behaviours the subject of those criminal charges are correct or not is crucial to the decision I, as the Judge, must make. What is at stake in this matter is where it is in the child’s best interests to live the remainder of his young life. The behaviours of his parents and an assessment of those behaviours is germane to this decision.
73.The behaviours the Court needs to examine and have tested are the very behaviours the subject of the criminal charges in the father’s case. The only way that these matters can be tested is through cross‑examination. The father will be cross-examined on the very matters, upon which he faces serious criminal charges.
74.I am not in a position today to determine if I would compel [the father] to answer the question, as they go to the heart of his criminal charges, and to do so I am denying him the right to silence. I accept the Court’s capacity to issue a 128 Certificate is a protection which is arguably absolute, in other proceedings.
75.However, where, as here the father’s liberty is clearly at issue in relation to a conviction on, not even all, but some of the charges he is facing, I have determined his right to silence is the most compelling reason for the adjournment of his hearing despite my sympathy with the plight that the mother and child find themselves in.
As the Full Court said in Re K at 80,765, where there is a genuine contest between the parties in relation to the welfare of the child, it is generally inappropriate for the Court to make no orders and adjourn the proceedings. And, further:
… The exercise by a party of his or her right of silence or privilege against self-incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this Court should continue. It would not usually be to the welfare of the child for disputed proceedings about guardianship, custody or access to be delayed for a significant period of time because that person chooses to exercise that right or privilege.
(Emphasis added)
I agree, and in my opinion, the statement of principle emerging from that paragraph could not be clearer. Any other approach would have the effect that the welfare of children involved in family law proceedings would be held hostage to criminal justice processes and may have the effect of discouraging victims of crime, including family violence, from taking their complaints to police.
There is no doubt that the primary judge was concerned about how she could, in the best interests of the child, conduct a fair hearing in which the allegations of physical violence and sexual assault were appropriately ventilated. As is evident from [72], the primary judge was of the view that a decision as to the child’s long‑term best interests could not safely be made unless the mother and the father gave evidence, including in cross-examination, concerning these matters. The primary judge grappled with the how this might be achieved and said:
62.I accept the submission by the father that his right to silence and defence to his criminal charges would be significantly compromised if he answers questions in cross-examination which go to the very heart of the decision I am asked to make, namely, “Did he perpetrate this appalling behaviour, as alleged, upon the mother?” The provision of a section 128 Certificate is not an answer to his right to silence, as I see it on these facts.
Although the respondents’ concession of error and the consequential consent that the appeal must be allowed has rendered unnecessary any more extensive discussion as to whether her Honour was correct at [62] about the interaction of the father’s right to silence and the conduct of the parenting proceedings and the efficacy of the provision of a certificate pursuant to s 128 of the Evidence Act 1995 (Cth), for my part, I do not understand the basis for her Honour’s conclusion, and it is a conclusion of which I do not agree. No explanation is given about why the provision of a certificate in accordance with s 128 would not provide an adequate answer to the dilemma expressed in the reasons for judgment, and the better view is as her Honour expressed in the final sentence of [74] of her reasons. The effect of this is that the challenge raised by Ground 1 as to the adequacy of the reasons on this point is made out.
I also cannot let pass without comment, the question raised in argument as to whether the father could have a s 128 Certificate in relation to any conversation he has with Professor W, who has been retained to prepare an expert’s report for the proceedings. The authorities of Field & Kingston (2018) FLC 93‑850 (“Field & Kingston”) and Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2018) 351 ALR 168 could not be clearer that a certificate could not be granted for that interview.
In any event, having decided s 128 would not achieve its purpose, the primary judge considered the mother’s contention that the father had, in the earlier final hearing, given evidence in relation to most, if not all, of the incidents with which he was now charged. In rejecting this submission, at [66], the primary judge said that the father was charged with offences that occurred on the 20 occasions listed in the paragraph. Ground 10 challenges these findings and asserts that contrary to the list, there are no charges relating to December 2012, August 2013, 26 December 2014, 9 January 2014, 6 February 2014, 7 February 2014, November 2014, 9 March 2015 and 3 May 2019. The genesis of the list at [66] is not clear but whatever it was, it has been established that it is wrong in the manner alleged. The primary judge then compared the list with the transcript of the earlier hearing so as to determine whether the father had already given evidence and been cross-examined about the conduct with which he was now charged. Having completed this exercise, the conclusion was reached that the charges concerned “far more extensive dates than [the father] was cross‑examined on at trial” [66].
The effect of this conclusion is at [76] and [77] where the primary judge said:
76.The allegations made by [the mother] to the police are now contained in 20 criminal charges which he must face. They are at the very heart of the matter I am tasked to determine, because they are behaviours of a parent who seeks to be a carer or have time with the child. Had there been no criminal charges pending, this matter would have been heard in August 2020.
77.I find that in these circumstances, the father’s right to silence to not incriminate himself overrides the necessity for this Court to act as quickly as is possible to determine to finality where it is in the best interests of the child that he live. Given that I have found that he is living in a stable and well-settled environment and there is no immediacy of danger, a risk of harm to him in continuing to live in this environment, save to say he does not spend time with or see his mother, the father’s application, I find, is successful and the hearing dates in August will be vacated.
Because the list is mistaken as to the facts, it follows that the comparative analysis was undertaken on a flawed footing and the conclusions at [66] and [77] cannot be sustained. On this issue, the primary judge should have concluded that the father had given evidence about all of the incidents of sexual assault and assault occasioning actual bodily harm with which he was now charged (Ground 3). And that he had not been cross-examined about four of the less serious offences. Consideration should then have been given to the power in s 69ZX(3) of the Act for the Court to receive into evidence the transcript of the father’s evidence given in the earlier hearing. Had this exercise been undertaken and s 128 been considered in accordance with Field & Kingston, it would have been apparent that the final hearing could have been satisfactorily undertaken without compromising the father’s privilege against self‑incrimination in relation to matters relevant to his charges. Lest it be misunderstood, it is not suggested that this right should have greater prominence than the importance of proceeding with the remitted hearing on the allocated dates. Plainly, in balancing the child’s interests with those of the father, the child’s best interests had to drive the outcome.
Finally, the primary judge placed significant weight on the fact that the child resides with the father in accordance with the order made on 8 September 2017. It needs to be remembered that this order was intended to address a short‑term issue and was made knowing there would be a final hearing within six weeks. Foster J made it clear at [157] of his reasons for judgment that the decision did not consider the medium or longer term. Moreover, at [156] he noted the significant allegations of family violence made in the case and said that issue too would be addressed at the rapidly approaching final hearing. In other words, his Honour’s reasons and orders did not contemplate and do not address the child’s living arrangements in February 2020 and beyond. Without any disrespect to his Honour, the decision made on 8 September 2017 was irrelevant to the appropriateness of the parenting arrangements in February 2020 and pending determination of the criminal proceedings. There was no evidence as to the child’s living arrangements and, the contention in Ground 6, that the findings made as to their suitability was unsupported by evidence is correct.
Otherwise, it is accepted that the findings as to when the mother first approached police are out by about two years (Ground 7) but as it is not apparent that this influenced the decision, it is an error without consequence.
Conclusion and Costs
The effect of this is that the mother has established to my satisfaction that the appeal should be allowed and the concession made by all respondents to that effect is appropriate and should be reflected in the orders made by this Court. It is also agreed that the stay sought by the father should be dismissed and her Honour’s orders should be set aside. The course of the proceedings now being agreed, the Department said that its Application to Adduce Further Evidence in the event of a re‑exercise is withdrawn.
The only remaining issue concerns the applications by the mother and the father for costs certificates in relation to the appeal. The conditions for a certificate have been made out and I would give the mother a certificate in relation to the appeal. I would not give the father a certificate in relation to the appeal. Quite simply, a number of the errors in the reasons for judgment reflect the case run by the father before the primary judge and in the exercise of my discretion I give that factor greatest weight.
Aldridge J
I agree with the orders proposed by Ryan J and the reasons given for them.
Ainslie-Wallace J
I too agree with the reasons and the orders proposed by her Honour and the orders of the Court will be as follows:
NOTING THE CONSENT OF ALL PARTIES:
(1)The appeal against the orders dated 4 March 2020 be allowed and those orders be set aside.
(2)The Response to an Application in a Case filed by the first respondent on 13 February 2020 be dismissed.
IT IS FURTHER ORDERED THAT:
(3)Leave is given to the appellant to rely upon her Amended Summary of Argument dated 15 May 2020.
(4)There be no orders as to costs.
(5)The first respondent’s application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
(6)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.
NOTATION:
(7)The Application in an Appeal to adduce further evidence filed by the second respondent on 6 May 2020 is withdrawn and dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 15 May 2020.
Associate:
Date: 26 May 2020
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