Lindberg and Scott

[2007] FamCA 871

FAMILY COURT OF AUSTRALIA

LINDBERG & SCOTT [2007] FamCA 871

FAMILY LAW - APPEAL – PARENTAL RESPONSIBILITY – SCHOOLING – Federal Magistrates Court – In a dispute concerning which school a child should attend the Federal Magistrate identified all the relevant issues and it was not demonstrated that the discretionary judgment should be interfered with – The Federal Magistrate, when hearing a dispute about schooling, purported to summarily dismiss a contravention application that was listed for a later date and without inviting submissions – The dismissal was contrary to the rules of natural justice and procedural regularity and accordingly the contravention application was remitted for rehearing – An order that was made that the father have sole parental responsibility where he did not seek it was not open to the Federal Magistrate, particularly where submissions were not invited on this possibility – Setting aside this order means the parties will both retain parental responsibility for the child pursuant to s 61C – Appeal allowed in part

Family Law Act 1975 (Cth)

Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716; (1979) 5 Fam LR 719
House v The King (1936) 55 CLR 499

APPLICANT: MS LINDBERG

RESPONDENT: MR SCOTT

INDEPENDENT CHILDREN’S LAWYER: …

FILE NUMBER: MLM 2796 of 2006

APPEAL NUMBER: SA 42 of 2007

DATE DELIVERED: 26 July 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Kay J

HEARING DATE: 26 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr J. Melilli

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr M.G. Hebblewhite

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Bowland Dunstan & Associates

ORDERS

1. The appeal be allowed in part.

2. Order (3) of the orders made by O'Dwyer FM on 22 January 2007 be set aside and the contravention application filed on 21 December 2006 be remitted for hearing by the Federal Magistrates Court.

3. Order (3) of the orders made by O'Dwyer FM on 12 April 2007 be set aside.

4. The appeal otherwise be dismissed.

5. The Court grants to the appellant a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 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.

6. The Court grants to the respondent a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 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 the respondent in relation to the appeal.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLM 2796 of 2006
APPEAL NUMBER: SA 42 of 2007

LINDBERG

Appellant

And

SCOTT

Respondent

REASONS FOR JUDGMENT

1. The mother of the child C born in April 1996 has appealed orders that were made by O'Dwyer FM on 22 January 2007 and on 12 April 2007. 

THE ORDERS OF 22 JANUARY 2007

1. The orders of 22 January 2007 commence with an order that C continue his primary school education in an inner city primary school commencing in 2007.  They go on to suspend an order that required the child to continue at a western suburbs primary school pending the outcome of competing residence applications (I use that term in a broad sense). 

2. The orders also:

   ·Dismissed a contravention application filed by the mother on 21 December 2006;

   ·Adjourned all extant applications to final hearing on 12 April 2007;

   ·Directed that the Independent Children’s Lawyer organise for C to attend Relationships Australia with a view to providing him with therapeutic counselling and assist him and his mother to re-establish their relationship; and

   ·Requested the mother to help facilitate the re-establishment of the relationship by attending Relationships Australia as suggested.

The contravention application

1. It seems clear that the contravention application was not really before the Federal Magistrate on that day.  The mother’s contravention application had been filed on 21 December 2006 and was returnable on 27 February 2007.  It asserted there had been two contraventions by the father in relation to the time the child was to spend with the mother.  One contravention had occurred on 11 August 2006 and a second contravention had occurred on 15 December 2006.  They were contraventions of different orders.  The first was a contravention of an order made on 29 May 2006 and the second was a contravention of an order made on 8 December 2006. 

2. As I indicated, these matters were not yet returnable before the Federal Magistrate.  His Honour was not asked to deal with them on that day.  No opportunity was given to the mother to advance her case in relation to the contravention applications nor was the father ever asked, in accordance with the rules, to plead to the contravention applications. 

3. In particular, the second contravention application concerned the refusal of the child to go with the mother at the changeover.  The facts surrounding that event had been canvassed in some of the material before the Federal Magistrate that was relevant to other issues that he had to determine on 22 January 2007, but he was not asked to deal with the contravention application.  Whilst there might have been some common sense in the Federal Magistrate suggesting that it was unlikely to go anywhere, and accordingly it would be best for all the parties if it was simply summarily dismissed, he was not free to do that of his own volition without asking the mother if she wanted to make submissions about such a course of action.

4. It seems to me that in so dealing with the matter the Federal Magistrate failed to observe a number of the rules of natural justice and procedural regularity, and it seems in those circumstances it is inevitable that the order that purports to dismiss the application should be set aside and the application should be remitted back to the Federal Magistrates Court to be dealt with subject to its normal listing procedures.  One can be sympathetic to the approach taken by the Federal Magistrate in that he anticipated that perhaps the matter would ultimately result in the dismissal of the application, but without hearing all the evidence or at least inviting some submissions about whether the course that he was proposing was an appropriate course he clearly, in my view, breached the requirements of a fair hearing and the order cannot stand.

Schooling

1. As to the more significant order that has been the subject of the proceedings before me today, the Federal Magistrate had an extended hearing over two days with oral evidence being given by each of the parties, cross-examination, two reports being provided by a psychologist, an opportunity given to have the psychologist cross-examined, and the child being separately represented.  The mother disagrees with the outcome.

2. The issue was which school C should attend at the commencement of 2007.  Although C had lived with his mother all of his life until May 2006 and the mother had been effectively responsible for the child’s education, a real dispute had arisen between the parents as to the future schooling of the child.  The issues involved, amongst other matters, the dislocation to the child of continuing to attend a school in the western suburbs when the father, with whom the child was now living, was working in city and residing in an inner city suburb.  The father had indicated strongly in his material that the burden both upon himself and the child of continuing the arrangements of the child attending a school in the western suburbs was such that the welfare of the child was at risk by that continuing.  The mother was strongly opposed to the child leaving the western suburbs primary school where he had been educated to date for a number of reasons, some of which were philosophical and some of which dealt with her perception of what the welfare of the child best required. 

3. The Federal Magistrate identified all of the competing issues and reached a conclusion about them in a manner that seems to me to be unimpeachable. 

4. This was a discretionary judgment.  The circumstances in which the Full Court should interfere with a discretionary judgment are well known.  In Gronow v Gronow (1979) 144 CLR 513 at 519; (1979) FLC 90-716 at 78,848; (1979) 5 Fam LR 719 at 722 Stephen J said:

   The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.

5. In House v The King (1936) 55 CLR 499 at 504 – 505, Dixon, Evatt and McTiernan JJ. 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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.

6. None of the matters that are required to be demonstrated in an appeal against a discretionary order have been demonstrated in the arguments advanced to me by the mother, and accordingly I do not propose to allow the appeal in relation to the order made on 22 January 2007 as to where the child should attend school this year.

Counselling

1. The orders made relating to the issues of counselling on 22 January 2007 no longer appear to be relevant in that the time for that counselling has passed.  It was counselling that was ordered with a view to enabling the Federal Magistrate to better deal with the competing applications as to who the child should live and what time the child should spend with the other parent when the matter was re-listed for hearing in April 2007.  The counselling did not come to pass for a number of reasons, none of which I need now to deal with.

THE ORDERS OF 12 APRIL 2007

1. I move now to the second set of orders that are the subject matter of the appeal.  The relevant orders are:

   ·The child live with the father;

   ·The father have sole parental responsibility for the child;

   ·The question of the mother's time with the child is reserved; and

   ·The father is authorised to apply for and receive an Australian passport for the child without first obtaining the written consent of the mother.

Passport

1. As to the passport issue, that is now moot in that the passport has issued.  I cannot, even if I was to allow the appeal, un-issue it.  But I say that having read the reasons for judgment, there were good and proper reasons advanced by the Federal Magistrate as to why it was appropriate in the circumstances for a passport to issue to enable the father to take the child for a short visit to New Zealand, and I can see no error both as to form or substance in relation to those orders.  As I have indicated the order is now wholly executed and there is no purpose in the appeal proceeding any further.

Parental responsibility

1. As to the order that the applicant father have sole parental responsibility for the child there was no such application before the Federal Magistrate.  The formal application of the father was:

   The parties shall retain shared parental responsibility for decisions relating to the long-term care, welfare and development of the child of the de facto relationship.

2. That application itself demonstrates a little bit of a misunderstanding of the existing legislation.  When the matter first came before the court in May 2006 the shared parenting responsibility amendments to the Family Law Act 1975 (Cth) (“the Act”) were not yet in force and the terminology of the Act was different to that which it presently is. An order was made by Hartnett FM on 29 May 2006 that each party was to retain responsibility for the child’s long-term care, welfare and development. The terminology changed as and from 1 July 2006 and applies in relation to any orders that are made after that date. The present state of the legislation is that under s 61C each of the parents of a child who has not attained 18 has parental responsibility for the child. The Act goes on to provide at s 61DA:

   When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Then there are circumstances in which the presumption does not apply.  The section does not actually then require the court to do anything other than apply the presumption.

3. As nobody in these proceedings was seeking an order relating to the sole parental responsibility it was not, in my view, open to the Federal Magistrate to make the order of his own volition.  To the extent that he had the power to do so on the basis that he perceived that might be in the best interests of the child, the very least he needed to do was to advise the mother of his intention to make such an order and then invite her to make a comment about whether it was appropriate to make such an order.  That course does not seem to have been adopted in these proceedings.  It seems to me that the order that grants the father sole parental responsibility of the child itself cannot stand.  That is not to say that it cannot be looked at again in further proceedings if an application is made by either parent for such an order.

4. I should add as a matter of completeness that the mother's application that was before the Federal Magistrate on 12 April 2007 sought an order that the parties retain joint responsibility for decisions relating to the long-term care, welfare and development of the child except for matters relating to the child's education, which would be the responsibility of the mother.  That order as sought by the mother again did not really reflect either the statutory position nor the order of Hartnett FM.  Hartnett FM’s order, as I have indicated, did not speak of “joint responsibility” but spoke of each of the parties retaining responsibility of the child's long-term care, welfare and development.  The order sought by the mother was that the parties “retain joint responsibility for decisions relating to long-term care, welfare and development” even though that language was no longer appropriate in light of the amendments to the legislation. 

5. The order sought by the father was equally inappropriate in that it sought that the parties should retain “shared parental responsibility for decisions relating to long-term care, welfare and development” when no order for shared parental responsibility had yet been made and the statutory position did not create that situation (see s 61C).

With whom the child lives

1. As to the issues relating to the decision that C should live with the father, it appears abundantly clear on the material that the Federal Magistrate had explained why he reached that conclusion and that the conclusion was clearly open to him by applying the relevant criteria under s 60CC that he needed to pay attention to.  Those matters were identified by the Federal Magistrate in the very brief reasons for judgment he delivered, and in particular I refer to the explanation by the Federal Magistrate as to why it is that he concludes the child should live with the father set out in paragraphs 16 and 17 of his reasons for judgment.

CONCLUSION

1. So whereto from here is the next question.  The father has made it clear through his counsel that he is anxious to have C and his mother re-establish a relationship.  That may or may not require professional involvement.  The mother has indicated that she has no faith in Relationships Australia as being an appropriate institution to provide what, if any, therapy is necessary.  The provisions of the orders made by the Federal Magistrate on 12 April 2007 leave open the issue of what time C should spend with the mother, and it would be appropriate for the mother to revisit those matters by a fresh application returnable in the Federal Magistrates Court seeking whatever orders it is that she now thinks are appropriate, and putting forward such evidence as she thinks is appropriate.  Then the Federal Magistrate dealing with the matter can come to grips with whether some further therapeutic counselling is required before the relationship can be re-established.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate: 

Date:  21 August 2007