Lokare & Baum
[2016] FamCAFC 135
•28 July 2016
FAMILY COURT OF AUSTRALIA
| LOKARE & BAUM | [2016] FamCAFC 135 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders – Where the grounds of appeal challenge the exercise of discretion and the weight given to factors – Whether the trial judge adequately considered s 61F of the Family Law Act 1975 (Cth) – Where the benefit of the child having a connection with her Aboriginal culture was not in dispute – Where the trial judge weighed this against other relevant considerations such as the child’s age and issues of practicality – Where the trial judge declined to order a Family Report at an interim stage – Where the orders made were open on the evidence before the trial judge – No error established – Appeal dismissed. FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Costs orders made. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(3)(h),(i), (g) and (m), 60CC(6), 61F, 117 |
| Browne & Keith [2015] FamCAFC 143 |
Donnell & Dovey (2010) FLC 93-428
Maldera & Orbel (2014) FLC 93-602
Metwally v University of Wollongong (1985) 60 ALR 68
Wacando v The Commonwealth (1981) 148 CLR 1
| APPELLANT: | Mr Lokare |
| RESPONDENT: | Ms Baum |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown Family Law |
| FILE NUMBER: | DNC | 17 | of | 2013 |
| APPEAL NUMBER: | EA | 106 | of | 2015 |
| DATE DELIVERED: | 28 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 27 April 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 June 2015 |
| LOWER COURT MNC: | [2015] FamCA 521 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Fowler |
| SOLICITOR FOR THE RESPONDENT: | Haydon Fowler Corbett Jessop |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Eldershaw |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Bankstown Family Law |
Orders
The appeal against the orders of Rees J made on 5 June 2015 is dismissed.
The Application in an Appeal filed on 12 April 2016 to adduce further evidence is dismissed.
The father pay the mother’s costs of and associated with the appeal, such costs to be agreed or assessed and paid within forty-two (42) days of agreement or assessment.
The father pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $4,356, such sum to be paid within forty-two (42) days of these orders.
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 Lokare & Baum 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: EA 106 of 2015
File Number: DNC 17 of 2013
| Mr Lokare |
Appellant
and
| Ms Baum |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
By Notice of Appeal filed on 2 July 2015, Mr Lokare (“the father”) appeals against interim parenting orders made by Rees J on 5 June 2015 in relation to Z Lokare (“the child”) who was born in early 2011.
Ms Baum (“the mother”) opposes the appeal, as does the Independent Children’s Lawyer.
The father is an L group indigenous man and lives in the Northern Territory. The mother is not Aboriginal and lives in Sydney. The parties separated in 2011 when the child was eight months old and since that time the mother has been the primary carer of the child. The child is now aged five.
The father appeals against orders which relevantly provide that the child live with the mother, and spend time with the father, both in Sydney and in Darwin during specified time periods.
It will be helpful to explain the procedural history of the matter to provide the context of these reasons.
Procedural history
The father filed in the Darwin Registry of the Federal Circuit Court an Initiating Application seeking final parenting orders on 16 January 2013 in Darwin. The mother filed a response seeking transfer of the proceedings to the Sydney Registry on 8 April 2013. The proceedings were transferred to the Federal Circuit Court in Sydney on 28 May 2013.
On 11 April 2014 the father filed an Application in a Case for interim parenting orders. On 15 April 2014 Judge Walker made preparatory orders for a Family Report, ordering that the father meet the costs of the report writer that he requested, Mr P.
On 15 October 2014 the father filed an Application in a Case seeking interim orders including that the child live with him for six months in Darwin. On
16 October 2014 Judge Walker transferred the proceedings to the Family Court and ordered that if the father failed to comply with the order that he pay the costs of the preparation of the Family Report by 15 January 2015, then the order for the report be discharged.
The father failed to pay the necessary costs for the preparation of the Family Report and consequently the order was discharged.
Interim parenting orders were first made by Principal Registrar Filippello on 20 March 2015 which provided for the time the child would spend with the father. These orders also provided that the child live with the mother.
The father sought a review of these orders on 14 May 2015 which was heard by Rees J. The issue before her Honour concerned the time that the child would spend with the father and, principally, whether the orders would provide for the child to spend time in Darwin and attend a smoking ceremony at C Community in Central Australia with her indigenous family. There was no issue before her Honour that the child should continue to live with the mother.
It was commonly accepted by all parties that the smoking ceremony is regarded as an important ritual in the father and child’s indigenous culture.
On 5 June 2015 Rees J delivered reasons for judgment and made orders providing that the child live with the mother and spend time with the father in Sydney. The orders also provided that the child spend time with the father in Darwin between certain dates and attend the smoking ceremony conditional upon the father paying for both the child and mother’s accommodation and travel costs, and the mother being permitted to attend the smoking ceremony with the child.
It is against these orders that the father appeals.
Grounds of appeal
The father’s Notice of Appeal contained 58 grounds of appeal, many of which were both interrelated and repetitive. His summary of argument did not address the grounds but rather argued the issues under headings. During the appeal hearing it was agreed that the appeal would be considered under the rubric of those headings rather than by reference to the Notice of Appeal.
During the course of the appeal, the father abandoned two of these grounds of appeal, the first of which related to allegations that the mother’s behaviour (in allegedly denying the child an appreciation of her indigenous culture) constituted family violence. The second related to the father’s attempt to adduce further evidence at the trial.
Also before the Court was an Application in an Appeal to adduce further evidence filed by the father on 12 April 2016. During the hearing of the appeal, the father withdrew this application in respect to two of the documents he was seeking to adduce, and conceded that the third document he sought to adduce did not advance the appeal. The application will be dismissed.
The first two grounds essentially raise the same issue albeit under different sections of the Family Law Act 1975 (Cth) (“the Act”).
Failure to properly apply the provisions of s 61F of the Act
Failure to properly apply the provisions of s 60CC(3)(i),(g),(h) and (m) and s 60CC(6)
Section 61F of the Act provides:
In:
(a) applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or
(b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child-rearing practices, of the child's Aboriginal or Torres Strait Islander culture.
Section 60CC(3) sets out the additional factors that the court may consider in determining the best interests of a child. They are, relevant to the ground:
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents…;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
…
(m)any other fact or circumstance that the court thinks is relevant.
Section 60CC(6) provides guidance on the application of s 60CC(3)(h).
But for one point, the arguments on these two grounds concern her Honour’s discussion of and findings about the funding of any visit by the child to Darwin or C Community.
It is helpful to understand the arguments on appeal to set out her Honour’s findings in this regard.
Her Honour first observed at [34] that the child has lived in the primary care of the mother since her birth, and since separation the distance between the parents’ residences has meant that the time the child has spent with her father has been limited and has not included overnight stays. Her Honour further noted that the last time the child spent time with her father in Darwin was in November 2014. Her Honour accepted the mother’s evidence that, at that time, the child was reluctant to be separated from the mother and was upset on occasions when the mother left her (at [35]). She further noted that the father has extended family in the Northern Territory but found at [36] that there was no evidence that the child would be comfortable with the father’s family to the extent that she could tolerate being away from her mother for any period of time.
There is no challenge to these findings.
Her Honour continued:
37. The father is [an L group] man. He has a cultural obligation to the child to ensure that she is supported in developing her connection to her indigenous culture and family. The father says, and I accept, that it is difficult for the child to maintain her contact and connection with her indigenous family whilst she lives in Sydney.
Her Honour accepted the evidence of the father’s sister in which she set out the importance to the child of knowing her indigenous family and participating in her culture. The father’s sister further spoke of the importance of the smoking ceremony to the child and how it would take place at [38]. Her Honour also observed at [39] that the father’s sister had discussed the mother’s request to be present at the smoking ceremony and it had been agreed that the mother would be welcome to attend.
The trial judge recorded that the mother was supportive of the child attending the ceremony. The mother had been told by the father’s sister that she would be welcome to attend, and the mother had told the father’s sister that she would arrange for the child to come to the Northern Territory for that purpose ([40]‑[41]).
However, her Honour then records at [42] that the father, after the hearing before the Principal Registrar, having taken offence at a submission made to the Principal Registrar by the mother’s counsel, rang his sister and as a result the father’s sister withdrew her permission for the mother to attend the ceremony.
As to how the child’s attendance at the ceremony would be effected, her Honour said:
44. The father initially told the Court that he was not in a position to assist with the mother’s airfares although he conceded that there were no circumstances in which the child could travel unaccompanied to Darwin. The father modified his position and conceded that he would “assist” the mother in relation to the airfares but maintained that he was not in a position to give her any assistance at all in relation to the payment of accommodation.
Her Honour then said:
46. I accept the submissions of the father that it is important that the child be supported, encouraged and given the opportunity to develop a positive appreciation of her indigenous culture and to form close relationships with her extended indigenous family.
47. I accept the evidence of the father’s sister that it is important for the child to spend time with her indigenous family so that she will come to know them and they will come to know her and she will feel herself a member of the family of her indigenous relatives.
48. I accept that the mother understands the importance of the child forming strong relationships with her indigenous family. The mother has purchased books for the child about the [L] people, written by [L] elders, and has used CDs to teach the child [L] words.
49. I also accept that only [an L] person can truly teach the child about her [L] heritage.
After referring to the paucity of the evidence of the father’s financial circumstances, her Honour said:
53. There was no evidence before the Court, in the father’s case, to demonstrate how it was practically possible for [the child] to be transported to [C Community], with or without the mother, for the smoking ceremony for the period of at least 11 days which is required.
54. There was no evidence before the Court about the way in which the mother could be accommodated in Darwin, in [C Community] or in [Town T].
Her Honour found that neither of the parties could fund the costs of accommodation for the child and the mother in Darwin to enable the child to spend time with her father, although she noted that the mother was prepared to facilitate the child spending time with him in Darwin if he would fund travel and accommodation costs for both mother and child at [57] and [59].
The father submitted that her Honour failed to properly apply the provisions of s 61F in two aspects. First, he submitted that while her Honour discussed the issues relevant to that section from paragraph [38] and following in her judgment, she did not in terms mention s 61F and thus erred in law.
The father’s proposition that, despite correctly identifying the relevant law and applying it to the facts in the case, the trial judge nonetheless erred by not incanting the section which she was applying is rejected (see Browne & Keith [2015] FamCAFC 143 at [22]).
Secondly, the father argued that her Honour’s focus in considering these two sections was only on who would pay for the child’s attendance at the ceremony and in so doing her Honour failed to give proper weight to the matters to which s 61F speaks. Further, it was argued that by only taking that matter into account her Honour failed to give proper regard to the relevant subsections of s 60CC(3) in determining the child’s best interest.
This ground is misguided. Her Honour’s consideration of the logistics of the proposed arrangements for the child reflected the agreed position before her, which was that it was important and necessary for the child to be exposed to her indigenous culture and to attend the smoking ceremony.
That position being accepted, it fell to her Honour to determine how that proposal was to be given effect on a practical basis in the best interests of the child.
As to how the child’s travel would be met, during the hearing before her Honour the following exchange occurred.
HER HONOUR: … Now, Mr [Lokare], your submissions please in relation to the parenting matter; that is, the time you that you say you would spend with [the child], pursuant to your application in a case filed on 14 May, and specifically, Mr [Lokare], it would assist me if you would address how this is all to be paid for and, secondly, how you suggest that [the child] is going to travel backwards and forward, and how much time you say she should be spending away from her mother.
MR [LOKARE]: Your Honour, in relation to how it’s to be paid for, I’ve indicated previously that I would seek to pay for [the child’s] travel. I don’t have the capacity to pay for the mother to travel to Darwin and to stay at the three-star accommodation. I have attempted to suggest alternative arrangements so that it doesn’t burden her financially and it doesn’t burden me financially, and in the past she has stayed with an aunty of mine – a relative – in the city.
(Transcript of proceedings 2 June 2015, p 8 lines 7-20)
After further discussion, her Honour said:
HER HONOUR: Well, I need to know, Mr [Lokare], how you’re putting your case. Are you saying to me, “If you say I have to pay the mother’s airfare, I will” or are you saying to me, “If you say I have to pay the mother’s airfare, I can’t”?
MR [LOKARE]: Well, I think it’s the first proposition.
HER HONOUR: That you will pay her airfare if I say that’s the basis on which [the child] would travel?
MR [LOKARE]: Yes, your Honour.
(Transcript of proceedings 2 June 2015 p 9 lines 16 – 25)
Her Honour discussed with the father the logistics of his proposal that the child alone travel to the site of the smoking ceremony, and said:
HER HONOUR: Well, I'm sure you’re aware, Mr [Lokare], that one of the matters that I'm required to take into account, pursuant to section 60CC(3) of the Family Law Act is the practical difficulty of the arrangements that you propose, and that really what I'm concentrating on here. I don’t think that there is any dispute that it would be a wonderful thing for [the child] to be able to do this, but I have to contend with the practicalities.
(Transcript of proceedings 2 June 2015, p 11 lines 32-37)
Later, her Honour said to the father:
HER HONOUR: It is a balancing act … and all of the factors in section 60CC(3) are to be taken into account and none of them is to be given more weight than the other.
(Transcript of proceedings 2 June 2015, p 28 lines 5-11)
The father further argued that her Honour was wrong to simply consider the financial capacity of him and the mother to support the child in participating in the ceremony. It was not suggested that her Honour was incorrect in finding that neither parent had the financial capacity to pay the necessary costs of the travel. The father submitted that her Honour could have ordered the mother’s parents to pay the necessary costs and expenses. Conceding that this position would be difficult to maintain in circumstances in which the mother’s parents were not parties to the proceedings before her Honour and not otherwise aware of the proposal for such an order, the father then submitted that her Honour could have ordered the mother to pay the costs and expenses even though she had no capacity to meet the order. The father said that in that way her parents would meet the costs.
None of these matters was put to her Honour and for that reason alone, this submission cannot be entertained by the Full Court (see Metwally v University of Wollongong (1985) 60 ALR 68).
The operation of section 61F was considered by the Full Court in Donnell & Dovey (2010) FLC 93-428 at 84,595:
183. It will be seen that s 61F, in the form ultimately enacted, applies to all cases involving an Aboriginal or Torres Strait Islander child. In proceedings under Part VII relating to such a child, the court must have regard to the child-rearing practices of the relevant Aboriginal or Torres Strait Islander culture. Failure to take account of that provision would, in our view, ordinarily amount to appealable error. (For an illustration of a case in which s 61F was properly treated as an “integral” part of the decision making process see the judgment of Young J in Davis v Davis (2008) 38 Fam LR 671.)
184. Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them. In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them. We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed.
(Original emphasis)
The father argued that her Honour did not address s 61F as required by the Full Court in this case. However, the Independent Children’s Lawyer submitted that her Honour did exactly that; she took into account the child’s Aboriginal culture and its importance to her and weighed it with the other relevant factors; the child’s age, her attachment to her mother, the mother’s primary caregiving to the child and the practicalities in determining the child’s best interests.
As we have said, these grounds are misguided. Her Honour did not, as the father contended, determine the child’s best interests solely by reference to the financial capacity of the parties. Her Honour determined that the child’s best interests would indeed be served by her being able to be immersed in her culture with her indigenous family, but, as her Honour correctly noted, in assessing that, she was obliged to consider how, practically, that could be achieved. As her Honour said:
60. The orders which are sought by the father cannot practically be implemented as neither party can afford the cost.
Finally it was argued that the effect of her Honour’s orders was to foreclose finally any prospect that the child could attend the ceremony. We do not agree with that proposition. Her Honour specifically noted at [59] that the mother would facilitate the child spending time with the father if he could fund the travel and accommodation.
Neither of these grounds is made out.
Failing to order a Family Report
As we have already indicated, when the matter was in the Federal Circuit Court, Judge Walker ordered the preparation of a Family Report and further ordered the father to pay the costs of that report. The father did not comply with the order that he meet the costs of the preparation of the report and thus the report was not prepared.
Before her Honour, he revisited this. At the outset of the hearing, the father contended that her Honour should order a report be prepared by Mr P.
Her Honour was informed by the Independent Children’s Lawyer that Mr P was a private consultant who could prepare a report for the Family Court. There was no objection to his suitability. However, when her Honour enquired about how Mr P was to be paid, the father had no proposition.
Her Honour later said:
But whether I order a report will depend, firstly, obviously on how that financially pans out but, also, I’m aware this matter is the trial process because I wouldn’t want to order a report too early.
(Transcript of proceedings 2 June 2015, p 31 lines 17-19)
She later said that it was too early in the proceedings to order a report.
Her Honour made no order for a report.
On the appeal the father argued that her Honour erred in not ordering a report as to the child’s development as an indigenous child. He contended that her Honour could have ordered that Mr P prepare a report and that the Court would pay for the report.
The father submitted that a report, had it been prepared, may have been of assistance to the child who he asserted was having difficulties with her identity as an indigenous child.
He further argued that her Honour should have ordered a report and adjourned the matter to await its production. It must be first observed that the father did not ask her Honour to do that. Even had he, there remained the outstanding issue as to who was going to pay the cost of the preparation of the report given that Mr P was a private consultant and the proceedings were not yet in the trial phase and being prepared for a final hearing.
None of these matters was put to her Honour for her consideration in whether to order a report. They cannot be argued on appeal.
It was clear that her Honour was conscious not to order a report so far out from a final hearing in circumstances which may well dictate that the information in it would be out of date by the time the hearing arrived. Further, her Honour was obviously aware of the need to spare the child the burden of repeated assessments.
In this case, the father advanced no cogent reason to her Honour why such an order should be made at that time.
In any event, the determination to order a report was one entirely within the judge’s discretion and her Honour’s decision was plainly correct. No error in that exercise of discretion has been established.
This ground is not made out.
The presence of the mother at the smoking ceremony
The premise for this ground is that her Honour directed the father and/or his family to allow the mother to be present at the smoking ceremony. The father submitted that her Honour had no power to direct the father and third parties in this way. Further, the father submitted that her Honour’s order required the mother not only to attend the ceremony but also to participate.
While the ground was first couched in terms of her Honour having no jurisdiction to make the order, during the argument, the father conceded that the order does no more than impose conditions on the child’s attendance, and thus the challenge was more accurately cast as an error in the exercise of her Honour’s discretion rather than an order made without jurisdiction.
Her Honour’s order was:
(2)(a)(ii) B. The mother shall be permitted to be present during the ‘smoking ceremony’.
Her Honour’s order does not, as the father submits, compel the mother’s participation in the smoking ceremony and we reject this submission.
The father argued that the effect of her Honour’s order is that the child is stopped from undergoing the ceremony because it is a condition that the mother attend and, if those conducting the ceremony do not wish her to be there, there can be no ceremony.
In discussing the merits of the father’s arguments, it is necessary to have regard to her Honour’s contextual findings in this regard.
Although it was first indicated that the mother would be welcome to attend the ceremony as noted by her Honour at [39], that invitation was later withdrawn at [42]. That being the case, the father proposed that the child would travel to Darwin by plane, then by car some 800 kilometres from Darwin to the site of the ceremony. The father estimated that it would take two days to make that journey. Her Honour concluded that there was no evidence to demonstrate how it could be practically possibly for the child to be taken to the ceremonial site with or without the mother for a period of about eleven days, which is what it was said was needed for travel, and to prepare for and conduct the ceremony at [53].
Whether the child attends the ceremony is thus in the gift of those conducting it. If the mother is welcome and arrangements are made which provide for her and child to travel both to Darwin and then further to the site where the ceremony is to take place, the child may undergo the ceremony.
Her Honour’s order that the child’s attendance at the smoking ceremony is dependent upon the condition that her mother be present given the child’s age and circumstances was not only open to her on the evidence, it was compelled by it.
No error has been shown.
Section 60B(2)(e) and s 60B(3) – the objects and principles of the Act
Relying on the statement of objects and principles in the Act, the father argued that the child has been deprived of an opportunity to experience her culture and heritage.
The objects and principles of the Act are set out in s 60B:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
Section 60B is subject to s 60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC then provides the means by which the Court determines the best interests of the child.
What then is the role of objects clauses, statements of principles and preambles in legislation? The proper approach was considered in Wacando v The Commonwealth (1981) 148 CLR 1. At page 23, Mason J (as he then was) said:
…
It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. There is, however, one difficulty in seeking to restrict the generality of the operative provision by reference to a suggested restriction expressed in the preamble: it is that Parliament may intend to enact a provision which extends beyond the actual problem sought to be remedied. Recognition of this difficulty led Viscount Simonds in Attorney-General v. Prince Ernest Augustus of Hanover to say “that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it”. …
(Footnote omitted)
Thus, objects clauses can be used as an aid to the construction of words in legislation. They cannot do more than provide context to the legislative purpose. The opening words of s 60B, namely; “The objects of this Part are to ensure that the best interests of children are met by…” do no more than reinforce the relationship between s 60B and s 60CC as to how the best interests are determined.
As the Full Court said in Maldera & Orbel (2014) FLC 93-602 at 79,466:
75. … Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.
Her Honour’s considerations of the best interests of the child were formed by reference to s 60CC in an orthodox and, in our view, entirely correct manner. Recourse to the objects and principles does not advance the father’s arguments.
The order that the father pay the mother and child’s travel and accommodation expenses
The father asserted that this order was “excissive (sic) and abusive”. He relied on his submissions on other grounds in support of this contention.
The father’s financial capacity was mentioned in a number of places during the hearing before her Honour. The father submitted that he did not comply with Judge Walker’s order to pay the costs of preparation of a Family Report because he did not then have the funds, but at the same time conceded that he had put no financial information before her Honour. Further, as we have set out, the father in his submissions to her Honour agreed that he would pay the cost of the child’s travel but that it would be difficult for him to pay the mother’s travel expenses although he conceded that if he had to pay the mother’s airfare, he could if that was the basis on which the child could travel. He did say that he could not afford the costs of the accommodation that the mother sought.
Based on those admissions, her Honour was entitled to make the orders as to the father paying the mother and child’s travel and accommodation costs. The father has not established that the order was either abusive or excessive.
None of the father’s asserted challenges to her Honour’s orders has succeeded and the appeal will be dismissed.
Costs
As is customary, we sought submissions from the parties on the question of the costs of the appeal to save the time, trouble and expense of them making those submissions at a later time.
Both the mother and Independent Children’s Lawyer sought costs in the event that the appeal was unsuccessful. Counsel for the Independent Children’s Lawyer indicated that the Independent Children’s Lawyer’s costs would total $4,356 inclusive of GST.
The father argued that if the appeal was unsuccessful costs should not be awarded as the matter is about the best interests of an Aboriginal child and the father’s application was made on that basis.
The issue of costs on an appeal is governed by s 117(1) of the Act which provides that each party to proceedings under the Act bear his or her own costs, unless the court is of the opinion that the circumstances justify the making of a costs order (s 117(2)). In determining what order (if any) should be made under subsection (2), the court must have regard to the factors in s 117(2A). Relevant to this case include:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid… ;
…
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings.
In this matter, the father’s appeal has wholly failed, and there was no challenge to her Honour’s findings about the mother’s financial circumstances. These circumstances persuade us that the father should be ordered to pay the costs of the mother and of the Independent Children’s Lawyer.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 28 July 2016.
Associate:
Date: 28 July 2016
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