Lysons & Lysons

Case [2021] FamCAFC 59

FAMILY COURT OF AUSTRALIA

Lysons & Lysons [2021] FamCAFC 59

Appeal from: Order made by a judge of the Federal Circuit Court of Australia on 12 November 2020
Appeal number(s): NOA 82 of 2020
File number(s): BRC 12213 of 2016
Judgment of: TREE J
Date of judgment: 28 April 2021
Catchwords:

FAMILY LAW – APPEAL – PARENTING – Where the primary judge made interim parenting orders following a discrete hearing in relation to the rule in Rice and Asplund (1979) FLC 90-725 – Where the primary judge found insufficient change in circumstances warranting re-litigation of the parenting orders – Where no occasion for making further interim parenting orders arose – Where the primary judge pre-determined the question of whether an unmade application for relocation would comprise a sufficient change in circumstance to warrant further litigation – Adequacy of reasons – Apprehended bias – Procedural fairness – Where none of the grounds of appeal except the challenges to Orders 1 and 2 were made out – Appeal allowed in part – Orders set aside – No occasion for rehearing.

FAMILY LAW – APPLICATIONS IN AN APPEAL – Extension of time to file documents – Where leave was given to the appellant to file an Amended Notice of Appeal and Summary of Argument – Adduce further evidence – Where the appellant’s application to adduce further evidence did not support any ground of appeal – Application to adduce further evidence dismissed.

FAMILY LAW – APPEAL – COSTS – Where the parties sought costs certificates in the event the appeal was allowed and remitted for rehearing – Where no rehearing ordered – Order for costs certificates.
Legislation:

Family Law Act 1975 (Cth) s 93A(2), 96

Family Law Rules 2004 (Cth)

Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Concrete Constructions Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

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

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Lysons & Lysons (2019) FLC 93-891; [2019] FamCAFC 29

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97

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

Sun Alliance Insurance Ltd v Massoud (1989) VR 8

Vakauta & Kelly (1989) 167 CLR 568; [1989] HCA 44

Walter & Walter [2016] FamCAFC 56
Division: Appeal Division
Number of paragraphs: 70
Date of hearing: 24 February 2021
Place: Cairns
The Appellant: Litigant in person
Counsel for the Respondent: Mr Baston
Solicitor for the Respondent: Turnbull Mylne
Counsel for the Independent Children's Lawyer: Mr Ashcroft
Solicitor for the Independent Children's Lawyer: Dooley Solicitors

ORDERS

NOA 82 of 2020
BRC 12213 of 2016

APPEAL DIVISION OF THE FAMILY…

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Lysons & Lysons [2021] FamCAFC 59
Case
[2021] FamCAFC 59
Decision Date

CaseChat Overview and Summary

The appeal in this case concerned parenting orders made by a primary judge in relation to a child born to a couple who had separated. The appellant, Ms Lysons, was seeking to vary the final parenting orders by, among other things, increasing the time she spent with the child, and also proposing orders in the event the respondent relocated with the child to another town. The primary judge determined that there was insufficient change in circumstances warranting reconsideration of the 2018 parenting orders, and dismissed the appellant's application. The appellant appealed the decision of the primary judge, and the appeal was heard by Tree J. The legal issues before the court were whether the primary judge had made Orders 1 and 2 against the weight of the evidence, weight of authority, and contrary to the principles of natural justice, whether there was an occasion for making further interim parenting orders, and whether the primary judge pre-determined the question of whether an unmade application for relocation would comprise a sufficient change in circumstance to warrant further litigation. The court found that the challenges to Orders 1 and 2 based upon the lack of occasion having arisen for them being made, and the impermissible pre-determination that relocation by the respondent would justify re-litigation, succeeded, but no challenge to Order 3 had succeeded. Orders 1 and 2 must therefore be set aside, but as they necessarily did not properly arise for consideration by the primary judge, there was no prospect of this Court re-exercising any discretion, nor any opportunity for those matters to be remitted. The court also dismissed the appellant's Application in an Appeal filed 10 February 2021, and granted the respondent and the Independent Children's Lawyer costs certificates in the appeal. The court's decision highlights the importance of ensuring that parenting orders are made on the basis of a sufficient change in circumstances, and that procedural fairness is observed in the making of such orders. It also emphasises the need for primary judges to avoid pre-determining issues that may arise in future proceedings.
In summary, the appeal was allowed in part, Orders 1 and 2 were set aside, and the appellant's Application in an Appeal filed 10 February 2021 was dismissed. The respondent and the Independent Children's Lawyer were granted costs certificates in the appeal.

Orders

Orders of the court

NOA 82 of 2020

BRC 12213 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS T LYSONS

Appellant

AND:

MS B LYSONS

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

28 APRIL 2021

THE COURT ORDERS THAT:

1. The appellant’s Application in an Appeal filed 10 February 2021 be dismissed.

2. The appeal be allowed in part.

3. Orders 1 and 2 of the primary judge made 12 November 2020 be set aside.

4. Otherwise Appeal No. NOA 82 of 2020 be dismissed.

5. The Court grants to the respondent 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 the costs incurred by her in relation to the appeal.

6. The Court grants to the Independent Children's Lawyer 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 him in relation to the appeal.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

For the reasons which follow, the appeal will be allowed in part.BACKGROUND The appellant was born in 1988 and hence is currently aged 32 years. The respondent was born in 1980 and hence is currently aged 40 years. They began cohabitating in about June 2015, and in October 2015, with the assistance of a fertility group, the respondent fell pregnant with the child. The parties separated on a final basis in November 2016 when the child was four months old. The appellant first commenced proceedings in the Federal Circuit Court of Australia on 7 December 2016. A trial of those proceedings was conducted in July 2018, after which, on 31 July 2018, final orders were made relating to issues of parental responsibility, living and time spending arrangements and other associated parenting orders. The respondent appealed those orders on 23 August 2018, which appeal succeeded in part, in that on 21 February 2019, the Full Court set aside certain orders in relation to the child’s religion, and orders restricting the parties from travelling with the child. Otherwise, the substance of the parenting orders made on 31 July 2018 was not disturbed. Some 14 months later, on 11 April 2020, the appellant filed a further Initiating Application seeking to vary the final parenting orders by, inter alia, increasing the time she spent with the child, and also proposed orders in the event the respondent relocated with the child to another town. That application came before the primary judge on 19 May 2020 and 4 August 2020, after which it was set down for a discrete hearing on whether there had been a sufficient change in circumstances to warrant the 31 July 2018 parenting orders being revisited. On 12 November 2020, the primary judge determined that she was not satisfied there was material before her that warranted reconsideration of the 2018 parenting orders, and made the following orders:1.In the event the child… is not provided to spend time with the [appellant], the respondent is to provide the [appellant] with a medical certificate.2.In the event the respondent intends to relocate with the child to J Town, the respondent shall file and serve an application which will be accepted.3.The initiating application filed on 11 April 2020 and all outstanding applications be otherwise dismissed. From those orders the appellant appeals. No written reasons for judgment were given by the primary judge, and before me the transcript of the hearing of 12 November 2020 was relied upon as comprising her Honour’s reasons.APPLICATIONS IN AN APPEAL The appellant filed two Applications in an Appeal. The first application was filed on 20 January 2021, and sought leave to file an Amended Notice of Appeal and an extension of time to file the appellant’s Summary of Argument and List of Authorities. The respondent did not oppose leave being given to the appellant to file and rely upon her late filed documents, given that her Summary of Argument was only one working day late, and that pursuant to the Family Law Rules 2004 (Cth) (“the Rules”) the appellant had until the day her Summary of Argument was due to be filed to amend her Notice of Appeal. Although the respondent did not address the two further grounds of appeal in her Summary of Argument, she has been on notice of the appellant’s Summary of Argument and Amended Notice of Appeal since 18 and 20 January 2021 respectively, and is thereby not prejudiced. As such, on 24 February 2021, I gave leave to the appellant at the hearing of the appeal to rely upon her Amended Notice of Appeal and Summary of Argument.

Evidence

Evidence Before The Court

In this context the appellant sought to rely upon further evidence filed in the Federal Circuit Court after 12 November 2020. This material all relates to the respondent’s application for costs arising from the hearing of 12 November 2020. It does not inform this ground, nor Ground 7. The Application in an Appeal filed 10 February 2021 therefore must be dismissed.Grounds 3 (and 2 and 4): Orders were made against the weight of evidence/weight of authority Ground 3 asserts that Order 2 was made without affording the appellant procedural fairness, however, other challenges are also made under that ground, akin to those advanced under Grounds 2 and 4, which generally contend that all of the orders of 12 November 2020 (set out above at [8]) were made against the weight of the evidence, against the weight of authority, and/or contrary to the principles of natural justice. It is therefore convenient to deal with these grounds conjunctively, albeit dealing with the orders sequentially. The appellant submitted that her evidence filed throughout the proceedings outlining her assertions that the respondent frustrates her ordered time with the child, did not fixate on medical issues suffered by the child, and thus Order 1 was made against the weight of the evidence. In addition, the appellant asserts that in making Order 1 as the primary judge did, it will be a further means for the time between the appellant and the child to be circumvented, although how that order would do so is quite unclear. As submitted by the respondent, the primary judge was not satisfied the appellant had demonstrated a significant change in circumstances, however her Honour made Order 1 “in an effort to negate the need for any future applications regarding non-compliance with ‘time-with’ Orders by mandating that the [respondent] provide evidentiary proof as to why the [c]hild is unable to spend time with the [appellant]” (Respondent’s Summary of Argument filed 5 February 2021, paragraph 35). That appears likely correct, however whilst Order 1 does not deal with any substantive matter or parenting of the child, and is in the nature of a machinery order, (and on one view, was manifestly favourable to the appellant, and unfavourable to the respondent) nonetheless, no opportunity for even tinkering with the extant final orders arose, unless and until the Rice and Asplund issue was determined favourably to the appellant. It was not so determined, and therefore no occasion for making Order 1 arose. This challenge to Order 1 therefore succeeds. As to the challenges that procedural error, want of fairness, and factual or legal error infects Order 1, the appellant’s arguments are again very difficult to follow. The primary judge was seeking to narrow the justification for the respondent not making the child available to the appellant by focussing on medical incapacity. The fact that other grounds may have been in the past, or may be again in the future, put forward by the respondent to justify the child not being made available, does not speak to error of the kind asserted.

Decision

Reasons for decision

Ground 9 fails.CONCLUSION The challenges to Orders 1 and 2, based upon the lack of occasion having arisen for them being made, and the impermissible pre-determination that relocation by the respondent would justify re-litigation, succeed, but no challenge to Order 3 has succeeded. Orders 1 and 2 must therefore be set aside, but as they necessarily did not properly arise for consideration by the primary judge, there is no prospect of this Court re-exercising any discretion, nor any opportunity for those matters to be remitted. I do not overlook that, on one view, the appellant’s success in challenging Orders 1 and 2 is contrary to her interests, however that cannot stand in the way of their success.COSTS In the event that the appeal succeeded, each party, including the ICL, sought a costs certificate in relation to any re-hearing. The respondent and the ICL also sought a costs certificate in respect of the appeal itself. No re-hearing will be ordered, notwithstanding the partial success of the appeal, and therefore no certificate to either party for any re-hearing arises for consideration, however I will order that the respondent and ICL have costs certificates in the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.