Lysons & Lysons
[2019] FamCAFC 29
•21 February 2019
FAMILY COURT OF AUSTRALIA
| LYSONS & LYSONS | [2019] FamCAFC 29 |
| FAMILY LAW – APPEAL – CHILDREN – Child’s surname – Whether the primary judge erred by refusing the appellant’s application to change the child’s surname – Whether the primary judge failed to take into account relevant considerations – Where the appellant did not make submissions on those considerations at trial – No error established. FAMILY LAW – APPEAL – CHILDREN – Order for baptism – Where the primary judge made an order for the child to be baptised if it is in the view of a priest that it is appropriate for the baptism to occur – Where neither party nor the Independent Children’s Lawyer expressly sought such an order – Whether the prospect of the making of such an order was sufficiently foreshadowed – Procedural unfairness – Appealable error established – Order for baptism set aside. |
| Australian Constitution s 116 Family Law Act 1975 (Cth) ss 60CC, 61B, 61DA, 64B, 65D, 65DAC(2), 70NFG(2), 112AP Judiciary Act 1903 (Cth) s 78B |
| Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 Doherty & Doherty [2016] FamCAFC 182 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296; [1984] HCA 29 Reynolds & Sherman (2015) FLC 93-659; [2015] FamCAFC 128 Reynolds & Sherman [2016] FamCAFC 240 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 White v Overland [2001] FCA 1333 |
| APPELLANT: | Ms B Lysons |
| RESPONDENT: | Ms T Lysons |
| INTERVENER: | Attorney-General of the Commonwealth |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 12213 | of | 2016 |
| APPEAL NUMBER: | NOA | 76 | of | 2018 |
| DATE DELIVERED: | 21 February 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Aldridge & Watts JJ |
| HEARING DATE: | 11 February 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 July 2018 |
| LOWER COURT MNC: | [2018] FCCA 2043 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Clutterbuck with Mr Walsh |
| SOLICITOR FOR THE APPELLANT: | Turnbull Mylne |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Quinn Family Law |
| COUNSEL FOR THE INTERVENER: | Mr Howe QC with Ms Watson (by telephone) |
| SOLICITOR FOR THE INTERVENER: | Australian Government Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Haddrick with Ms Fotheringham |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders made 11 February 2019
IT IS ORDERED:
The appellant have leave to file and rely upon a Further Amended Notice of Appeal.
That the Attorney-General of the Commonwealth have leave to withdraw as a party to the appeal.
That the appeal against Orders 12, 13 and 36 of the orders made in the Federal Circuit Court of Australia on 31 July 2018 is allowed.
That Orders 12, 13 and 36 of the orders made on 31 July 2018 be set aside.
IT IS ORDERED BY CONSENT:
That upon X Lysons (“the Child”) commencing grade 1, the parties are at liberty to travel with the Child outside the Commonwealth of Australia, and for the purposes of this Order:
(a)the parties will take all steps to obtain a passport for the Child;
(b)at least thirty (30) days prior to any overseas travel for the Child, the travelling parent is to provide the other with copies of return airfares for the Child and contact details for where the Child is staying, including a contact telephone number for the duration of the travel; and
(c)such travel is to occur during the Child’s school holidays and shall not infringe upon the Child’s time with the other parent, unless it has been prior agreed in writing between the parties or ordered by the Court.
NOTATION:
A.In respect of travel generally, including interstate travel and for the avoidance of any doubt, it is noted that the parties agree that such travel shall not infringe upon the Child’s time with the other parent, unless it has been agreed to prior between the parties, in writing or ordered by the Court.
Orders made 21 February 2019
The appeal against Order 11 of the primary judge’s orders made on 31 July 2018 is allowed and that Order is set aside.
The appeal is otherwise dismissed.
The appellant is to pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $3,500.
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 Lysons & Lysons and Anor 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 BRISBANE |
Appeal Number: NOA 76 of 2018
File Number: BRC 12213 of 2016
| Ms B Lysons |
Appellant
And
| Ms T Lysons |
Respondent
And
| Attorney-General for the Commonwealth |
Intervener
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
Ms B Lysons (“the appellant”) appeals against parenting orders made by Judge Vasta on 31 July 2018 in proceedings between her and Ms T Lysons (“the respondent”).
The parties have a son (“the child”) who was born in 2016.
Although it was common ground between the parties that the child should live with the appellant and spend time with the respondent, they were unable to agree on many other aspects of the child’s care. Of particular relevance to this appeal, consensus could not be reached as to parental responsibility with the appellant seeking an order for sole parental responsibility, which was initially opposed by the respondent. Ultimately, the respondent’s position was that she would not oppose an order for the appellant to have sole parental responsibility provided that such responsibility was constrained by the making of the specific orders she sought as to the name of the child, his primary health care and his schooling.
The primary judge made orders for the appellant to have sole parental responsibility for the child but accepted the submissions of the respondent and made the following orders:
(4)That the child be known as [X LYSONS] and that the Respondent mother be restrained from commencing or proceeding with any application for a change of name to be recorded against the child’s birth certificate.
…
(10)That [Dr. E] of the [C Medical Practice] be the child’s ordinary General Practitioner.
(11)That the child be baptised as a Catholic if it is in the view of the priest, who would conduct such a baptism, that it is appropriate for the baptism to occur.
(12)That the child not be permitted to travel [interstate] until such time as he has reached the age of seven (7).
(13)That the child not be permitted to travel [overseas] until he has reached the age of ten (10).
…
(19)That the child remain at [D School] until he commences Kindergarten.
(20)That the child be enrolled in 2021 in the Kindergarten program at Bluebird on a full-time basis.
(21)That the child be enrolled at [G Primary School] for commencement of prep in 2022.
(22)That unless otherwise agreed between the parents, the child shall complete his primary school education at [G Primary School] and his high school education at [G High School].
Extensive and detailed orders were also made for the child to spend time with the respondent. It is clear, although not expressly stated, that the child was to otherwise live with the appellant. Those orders are not the subject of the appeal.
By an Amended Notice of Appeal filed on 30 November 2018, the appellant challenged Order 11 (the order for baptism) on two grounds: first, that in making the order the Court contravened s 116 of the Constitution of the Commonwealth of Australia (“the Constitution”) and was therefore invalid and, secondly, that it was made without the parties being aware that such an order was in contemplation and that the appellant was thereby denied procedural fairness.
In support of the first ground, a Notice of Constitutional Matter was served on the Attorneys-General for the Commonwealth, States and Territories in accordance with s 78B of the Judiciary Act 1903 (Cth).
On 5 February 2019 the Attorney-General for the Commonwealth advised that he proposed to intervene and on 7 February 2019 filed an extensive and detailed Summary of Argument prepared by senior and junior counsel.
In summary, the Attorney-General submitted that s 116 of the Constitution did not operate to invalidate orders made by courts but, rather, laws enacted by Parliament. Thus, it was necessary to consider whether the provision under which the order for baptism was made – namely, s 65D of the Family Law Act 1975 (Cth) (“the Act”) – was enacted for a purpose prohibited by s 116. The submission was that it was not and that its entirely proper purpose was “to permit a court to deal with the care and welfare of a child by reference to the best interests of the child as the paramount consideration”.
On the same day the Independent Children’s Lawyer (“ICL”) filed a Summary of Argument which dealt with the s 116 issue along similar lines.
At the hearing of the appeal on 11 February 2019 the appellant sought leave to file a Further Amended Notice of Appeal. The proposed amendment was to delete the ground challenging Order 11 on the basis that it infringed s 116. Leave was not opposed and was granted. The constitutional issue thus fell away and counsel for the Attorney-General were excused.
Ground 2 of the Further Amended Notice of Appeal challenged Orders 10, 11, 19, 20, 21 and 22 on the basis that they usurped “the role given to the appellant to exercise sole parental responsibility” and contravened s 61DA of the Act or, as it was put in argument, s 61B of the Act.
This ground was abandoned during the course of the appellant’s submissions.
It therefore remains to consider the challenge to the order for baptism on the ground that the appellant was not accorded procedural fairness (Ground 3) and the challenge to the order that the child’s surname shall remain as Lysons (Ground 1).
We propose to deal with these grounds according to their terms. The appellant has been represented by solicitor and counsel who prepared all three Notices of Appeal. There is, therefore, no injustice in confining the appellant to the grounds raised and it would neither be appropriate nor necessary for us to rove more widely (Bahonko v Sterjov (2008) 166 FCR 415 at [3]).
On the hearing of the appeal, the ICL made submissions in support of Ground 3 but contended that Ground 1 should be dismissed.
The appeal
Was the order for the child to be known as X Lysons “against the weight of authority”? (Ground 1)
The parties began their relationship in November 2014. At that time the appellant was named Ms B Machulas and the respondent was named Ms T Holloman. Upon the child’s conception, they agreed to adopt the family name of Lysons and both changed their surnames accordingly.
The parties separated in late 2016.
At the hearing before the primary judge, the appellant indicated that she wished to revert to her earlier surname and wished to change the child’s name to match. The respondent sought orders requiring the appellant to maintain the name Lysons for the child.
His Honour’s reasons for maintaining the name Lysons were:
75.Notwithstanding that I am not inclined to order that the parents have equal shared parental responsibility, it seems to me that it is appropriate in this case that the Court make orders as to the primary health provider for [X], the education of [X] and the religion of [X].
76.In my view, it is very important for [X] to have an identity. [X] must understand why it was that he was called into this world. He was called into this world because his parents made a decision, out of love, that he should exist and be raised by them together.
77.[X] was born to be the child of both [the respondent] and [the appellant] and to be part of the unique [Lysons] family. [X] was born so that he could be educated in the Catholic tradition that both [the respondent] and [the appellant] had experienced. Both [the appellant] and [the respondent] had agreed that [X] would have both his primary and secondary schooling at [G] schools.
78.Both [the appellant] and [the respondent] had agreed that [X] would be a patient of this [sic] the [C Medical Practice]. They both agreed that [X] would be under the main care of Dr [E] or other doctors at that practice.
79.Those agreements, in my view, were integral to who [X] is and how both parents agreed that he would live his life. These aspects were integral to why he was called into this world.
80.I am not convinced that simply because the parents have ended their relationship this means that all of what [X] was to become can now simply be erased. For that to happen, in my view, paints [X] is been [sic] simply a commodity, and he is far more than that.
81.Notwithstanding that I will make an order for sole parental responsibility, it seems to me that I should make specific orders regarding health, education and religion. Making the orders for those matters necessarily indicates that the child must continue to live in a particular region.
82.It may be said that in making such orders, the sole parental responsibility is somewhat nugatory. There may be some merit in such an observation however, the only concern of the Court is to ensure that the orders made are in the best interests of [X]. In my view, such orders are definitely in the child’s best interests.
…
94.Consistent with my earlier findings, I order that [X] remain known as [X Lysons] and that neither parent is permitted to change that name.
The appellant submitted:
This order is against the weight of authority as the best interests of the child are the paramount consideration and it cannot be said to be in the best interests of the child to restrain the mother who has sole parental responsibility from commencing or proceeding with any application for a change of name to be recorded against the child’s birth certificate.
(Appellant’s Summary of Argument, p.2)
It is entirely correct to say that orders as to a child’s name are parenting orders within the meaning of s 64B of the Act and therefore must be made in the child’s best interests taking into account the considerations raised by s 60CC (Reynolds & Sherman [2016] FamCAFC 240 at [7]–[15]; Reynolds & Sherman (2015) FLC 93-659).
It is an entirely different thing to say that where one parent is given sole parental responsibility, it necessarily follows that a specific order providing for the child’s name cannot be in the child’s best interests. This aspect of the submission is rejected (see Doherty & Doherty [2016] FamCAFC 182).
In an attempt to show that the order was not in the best interests of the child, the appellant referred to the following passage in Reagan & Orton [2016] FamCA 330 at [34] where Foster J said:
The factors frequently considered in determining whether there should be any change to a child's name include:
a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
b)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
d)The effect of frequent or random changes of name;
e)The contact that the non-custodial parent has had and is likely to have in the future with the child;
f)The degree of identification that the child or children have with their non-custodial parent; and
g)The degree of identification which the child or children have with the parent with whom they live.
The submission was that the primary judge erred because he did not consider any of those matters.
We accept that when issues of these kinds are raised, as they commonly are, they are relevant considerations to be taken into account in determining what name is in the best interests of the child.
The difficulty that the appellant faces is that she did not make any submissions to the primary judge based upon any of these matters. She simply submitted that she should be given sole parental responsibility, including the right to change the child’s surname. The appellant cannot complain that the primary judge did not take into account submissions that were not made although the primary judge did make a passing reference to identity.
The ICL did make some submissions to the primary judge on the issue of the child’s name, saying:
4.The [appellant] has always been known by her birth name of [Machulas], except for changing her surname to [Lysons] during the parties’ short relationship. The [appellant] changed her surname [in mid] 2016, 6 months prior to separation. The [appellant] does not have any other children.
5.The [respondent]’s other child, [Y], is known by his father’s surname ...
6.The surname of [Lysons] does not originate from either the [respondent]’s or [appellant]’s family.
7.The [respondent] gave evidence at trial that she has changed her surname eight times, and used five different surnames. The Independent Children’s Lawyer is concerned that on the balance of probabilities the [respondent] will again change her surname.
(Submissions of the ICL dated 26 July 2018)
These submissions did not raise the points the appellant now seeks to agitate.
On appeal, a party is bound by the manner in which they conducted their case at trial and where the point sought to be raised on appeal could have been met at the trial by the calling of evidence, it cannot be raised for the first time on appeal (Metwally v University of Wollongong (1985) 60 ALR 68; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438). It follows that this ground, as framed, must fail.
Was the order for the baptism of the child procedurally unfair? (Ground 3)
As we have seen, the appellant submits that she was not given any reasonable warning of the possibility of the order requiring baptism being made and that, in making the order, the primary judge therefore failed to accord her procedural fairness.
The appellant submitted the order for baptism was one “which none of the parties contemplated and to which evidence and argument was not directed”.
The ICL accepted this to be so, saying in her Summary of Argument:
32.The ICL accepts that the parties were not informed that the primary judge was contemplating making an order requiring [X] to be baptised. Whilst there was evidence received in relation to the common intention of the parties to expose [X] to religion (as part of one family unit, and [X] being educated at a Roman Catholic school), they were unaware that when his Honour was forming the view that “it is very important for [X] to have an identity”, and “[X] must understand why it was that he was called into this world”, and that “[X] was born so that he could be educated in the Catholic tradition”, that his Honour was minded to ensure that [X]’s obtained salvation by way of baptism. There has been a disconnect between the evidence, and what his Honour has used the evidence to order.
33.The parties have not been afforded an opportunity to be heard on the issue of baptism. This order should be set aside for that reason alone, quite apart from the constitutional issue traversed above in this summary of argument.
(Footnotes omitted)
The respondent sought to maintain the order, submitting:
The Respondent submits that His Honour commented to the Report Writer at trial that with the child potentially going to [G Catholic Primary School] and [G Catholic High School], “there may be a necessity for him to be baptized as a Catholic”. The child’s religious and cultural upbringing was an issue in dispute. The parties were then provided with leave to file written submissions regarding issues in dispute. The Appellant failed to address such religious and cultural issues, but her failure is not an error of law or fact.
(Respondent’s Summary of Argument, p.8) (Footnotes omitted)
In effect, the respondent submitted that as the child was to go to a Catholic primary school it was obvious or likely that, given her evidence, the child would have to be baptised. Thus, she submitted the order was within reasonable contemplation and there was not procedural unfairness.
It is axiomatic that a person is entitled to know the case that is being made against them and which they must meet: Kioa v West (1985) 159 CLR 550 at 582.
The rule was explained in this manner by Gibbs CJ in National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 312:
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
Consequently, it is necessary to look closely at the conduct of the proceedings to see whether the order had been reasonably foreshadowed and whether the making of the order involved any unfairness.
We begin by observing that neither of the parties, nor the ICL, expressly sought an order requiring the baptism of the child.
The appellant’s position prior to and during the hearing before the primary judge was that she should have sole parental responsibility for the child. It follows that, if this order was made, all issues of religion and schooling would be left to her. She had enrolled the child at D School without consulting the respondent. It was evident that she would not willingly abide to the arrangement made when the child was conceived to send him to G Catholic Primary School (“G Primary School”) and G Catholic High School (“G High School”). Indeed, she proposed moving to another suburb that would make travel to and from those schools very inconvenient if not impossible.
The respondent’s case outline indicated that she sought an order for equal shared parental responsibility which means that decisions as to religion and schooling would have to be agreed between her and the appellant (s 65DAC of the Act).
Her position shifted during the course of the hearing. In her written submissions she accepted that if “the court makes orders for the health service that is to support [X] and for his schooling, there is no need to make an order for [equal shared parental responsibility]”.
In her submission the ICL proposed that the appellant have sole parental responsibility but that specific orders dealing with health and schooling be made. The submissions dealt with religion as follows:
9.However, the importance of the Catholicism [sic] religion to the [respondent] should be taken into account and reflected in the orders. Both the [respondent] and the [appellant] acknowledged the importance in their lives of the Catholicism [sic] religion and the orders as proposed by the Independent Children’s Lawyer take into account this importance on account of the choice of both primary and high schools being Catholic schools, as agreed to by the parties prior to separation. The [appellant] reaffirmed this agreement at trial.
(Footnotes omitted)
This, with respect, somewhat overstates the evidence to which we shall refer in a moment.
The appellant’s reference to religion in her affidavits was simply to say: “[d]uring my teens I realised I was a lesbian. I went to a Catholic school and was not able to express who I truly was so I turned to marijuana”. She proposed that the child attend a local non-faith based school. That evidence cannot support a finding that the Catholic religion was of importance in her life.
In cross-examination of the appellant by counsel for the respondent, the following exchange took place:
[COUNSEL FOR THE RESPONDENT]: You’re aware from the material that has been filed in these proceedings that my client is proposing a particular school for your son, aren’t you?
[THE APPELLANT]: Yes.
[COUNSEL FOR THE RESPONDENT]: That school is a school that the two of you agreed when you were together.
[COUNSEL FOR THE RESPONDENT]: Correct?
[THE APPELLANT]: We spoke about it and [the respondent] had high intentions of doing it, so – and I agreed.
[COUNSEL FOR THE RESPONDENT]: Yes. And that’s the school that [Y] goes to?
[THE APPELLANT]: Yes.
[COUNSEL FOR THE RESPONDENT]: And you’ve got a Catholic background?
[THE APPELLANT]: Yes.
[COUNSEL FOR THE RESPONDENT]: And she has got a Catholic background?
[THE APPELLANT]: Mmm.
[COUNSEL FOR THE RESPONDENT]: If I suggested to you that moving to [J Town] is an effective way to stop your son from going to the school that [the respondent] proposes because of distance, would you agree or disagree with that proposition?
[THE APPELLANT]: I agree with what you have suggested.
(Transcript 19 July 2018, p.83 lines 19–34)
That evidence falls well short of a desire on the part of the appellant to raise the child as a Roman Catholic or for him to attend a Catholic school.
The respondent gave the following evidence:
[X]’S PRIMARY AND HIGH-SCHOOLING
43.I am seeking that an Order be made that unless otherwise agreed, that [X] complete his education at [G Primary School] and [G High School].
44.My eldest son, [Y], is currently in Year 2 at [G Primary School] and will be moving through to [G High School] for his high school.
45.[The appellant] and I had discussed [X]’s schooling prior to separation and it was always agreed that the children would attend the same school.
46.Both [the appellant] and I live closer to [G Primary School] now than we did when we were cohabitating.
47.[The appellant]’s father and grandmother are both Catholic. [The appellant] received a Catholic education.
48.My family are Catholics, I was baptised Catholic and I received a mostly Catholic education.
(Respondent’s affidavit filed 21 June 2018) (Emphasis removed)
This evidence establishes that there was no agreement as to a Catholic upbringing for the child. It follows that there was no evidence of discussion, let alone agreement, about baptism. As there was no mutual commitment to a religious upbringing that would necessarily involve baptism, it cannot be said that a baptism was an obvious aspect of the child’s upbringing.
The respondent submitted that it could easily be inferred that the order for baptism was ancillary to the order for the child to attend G Primary School because baptism would be required before enrolment could take place. She relied on the following passage in the family consultant’s report:
35.[Ms T Lysons] indicated a further dispute about which school [X] should attend. She reported a belief that the parents had previously agreed to for [X] to attend the [G] Primary School, in order that he would attend the same school as [Y]. She reported a belief that [X] would need to be baptised in order to attend the [G] Primary School.
The basis of the respondent’s belief was not explained.
When this issue was raised with the appellant, she informed the family consultant that she was opposed to baptism:
61.[Ms B Lysons] identified that religion is a further issue in dispute between the parents. She reported that [Ms T Lysons] wants [X] baptised Catholic in order that he may attend the same school as [Y]. [Ms B Lysons] reported that she is not in support of [X] being baptised Catholic, and would prefer [X] to attend a local school, rather than having to endure the long commute required for him to attend [Y]’s school.
It is reasonable to deduce that if the respondent had sought an order for baptism it most likely would have been opposed.
Finally, the primary judge asked the family consultant questions on this issue as follows:
[HIS HONOUR]: All right. And if we look at, though – if it were that – because [the respondent] has made certain requests of me to make specific orders and that be a specific order as to where [X] goes to school, in effect now, during kindergarten, where he goes to prep to grade 6 and then where he goes to high school. With regard to health, that he be going to this particular health centre with a particular GP but obviously if that GP isn’t around, others within the practice will have access to the records so that that practice becomes the GP for [X]. And that if [X] is going to the particular school that he’s going to, it may be a – there may be a necessity for him to be baptised as a Catholic, which apparently both [Ms Lysons] have been baptised as Catholics themselves. So that if those specific orders were made and put in place, I’m just sort of wondering would that be some sort of way in which, “Well, you know, there you go, those are your main important things that have already been ordered, the two of you try and sort it out.” What’s your take on that?
[THE FAMILY CONSULTANT]: Yes, look, I certainly think that that would narrow the amount of topics that – that would be available for further conflict, I suppose. But from – from what I’ve read and what you’ve told me in terms of what you’ve heard so far, while it might narrow them – or, I guess, maybe not even narrow them – while it might take those three decisions out of the – the vast amount of things there would be to argue about, I suspect if the conflict is to the degree that we’re talking about at the moment, that there’s just an infinite number of other topics that people can find to argue about.
(Transcript 19 July 2018, p.97 lines 20 – 39) (Emphasis added)
The respondent submitted that the two passages in the Family Report and the above exchange sufficiently raised the issue of baptism, at least in the context of it being required for entry to G Primary School and that it was open to the primary judge to make an order for baptism without expressly raising it with the parties.
We do not accept this submission.
First, we do not think the evidence established the premises set out in the submission, namely that baptism was essential if the child was to attend G Primary School. The source of the respondent’s belief that the child would need to be baptised was not revealed. Further, the evidence falls short of establishing that the child would need to be baptised into the Catholic faith, which was the order that was made as opposed to being baptised into any Christian faith.
Secondly, and more importantly, we do not consider that the discussions with the family consultant and the question posed by his Honour reasonably raised the issue of baptism. After all, the words were “there may be a necessity” for baptism. That is hardly an indication that such an order was within active contemplation.
Attitudes towards baptism and how or whether it should be undertaken range as widely as people’s views on religion. It cannot therefore be assumed that baptism can be easily regarded as merely a step ancillary to enrolment in a school, not unlike the purchase of a uniform or enrolment in particular activities. In short, we are not prepared to accept that an order requiring a child to attend a Catholic school, for example, necessarily involves baptism or that an order for baptism can be seen as being merely ancillary to such an order. The considerations range much more widely and involve the parties’ approaches to religion. Furthermore, education and religious upbringing are defined as discrete aspects of “major long-term issues” under the Act (s 4(1)). It follows that although in a given case it might be established that the two are interrelated, one is not automatically ancillary to the other.
The appellant’s evidence, as best it can be gleaned, was that she opposed baptism. This is of some significance because under the orders that were ultimately made she had sole parental responsibility for the religious upbringing of the child. There was no evidence as to how she proposed to do that or as to how baptism as a Catholic might fit with those plans.
We consider that the issue was of sufficient significance, especially for the appellant, that the prospect of an order being made for baptism should have been expressly raised before it was made. The oblique references to it in the evidence were insufficient to raise it as an issue under active consideration.
In a different context, in White v Overland [2001] FCA 1333 at [4] Allsop J (as his Honour then was) referred to the need for the parties to ensure that all parties are cognisant of the issues in dispute. In a commonly repeated passage, his Honour then said:
Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly.
The same may be said of footprints scattered in the evidence.
We accept, of course, that in parenting cases, parties’ cases shift and turn as the hearing progresses and as the evidence develops along with, sometimes, the parties’ understanding of what may be in the child’s best interests. During the course of the proceedings, some issues may fall away and new ones may arise. Nonetheless, the question remains the same: namely, whether the person against whom a particular order is sought is sufficiently aware of the possibility of that order being made so that they are able to marshal a case against it.
In many parenting cases the field of dispute is quite clear and many orders that can be made are obviously in contemplation from the orders proposed by the parties, the evidence and their submissions. In the present case, however, we do not consider that the footprints about baptism that have been left in the evidence sufficiently raised the possibility of an order for baptism being made.
It follows that the appellant was denied procedural fairness and the order must be set aside. The respondent asked that the issue of baptism be remitted for rehearing. We are unable to do so because no application for such an order was made and, accordingly, there is nothing to remit.
Other matters
There are two matters, not raised by any version of the Notice of Appeal, to which we must refer because, if left uncorrected, they may leave the parties under a misapprehension. They also cause us considerable concern.
During the course of her cross-examination, the respondent expressed concerns about the appellant’s future compliance with the court orders and that she might move far away with the child, perhaps even overseas, and not return. The primary judge said:
And if she did that, you would come back to the court and not only would [X] be living with you but he wouldn’t be spending any more time at all with [the appellant]. I mean, that’s what happens when people break orders that I make…
…
Well, yes. People who break my orders – they only go one place and I don’t think that [the appellant] wants to spend five years in gaol, which is what would happen if she broke my orders. So forget about all that stuff. Let’s go on with what’s important.
The statement about an automatic change in the living arrangements for the child and the shutting out of the appellant from the child’s life upon a breach of the orders is manifestly wrong.
The statement in relation to imprisonment betrays one of two things. First, it possibly suggests a complete misunderstanding of the provisions of the Act that deal with contravention of parenting orders (Division 13A of Part VII) and contempt (Part XIIIB), the distinction between them (see s 112AP(1) which excludes from its operation a contempt which is also a contravention, unless the contravention involves flagrant challenge to the authority of the court) or the well-developed principles that attend their application. The focus of Division 13A is on achieving compliance with parenting orders and not merely on punishment.
It follows that any breach of any order whatsoever cannot be punished automatically by five years’ imprisonment. Any sentence of imprisonment is a sanction of last resort (see s 70NFG(2) of the Act).
Secondly and alternatively, the statement might be seen as hyperbole, deployed in an attempt to bully the appellant into complying with the orders (which, of course, she is obliged to do in any event).
Neither approach is acceptable.
The second matter relates to the close of the reasons, where his Honour said:
102.Whilst I have not made any provisions for the time that [X] spends with both parents after he begins Prep, except for school holidays and special days, I would expect that the time with [the respondent] gradually increases to a point where [X] is living in a week about arrangement by the time he has finished grade 1.
103.However, such an arrangement will only be possible if the parents improve their communication. This will take a great effort from both of them, but especially from [the appellant]. If the communication level remains as it is, then I cannot see a situation where a shared care arrangement would ever be able to work.
104.The ball is in [the appellant]’s court. Either she improves her communication and acknowledges that [X] has a right to have a relationship with [the respondent] and actively promotes that relationship or [the respondent] will be entitled to come back to the Court in term four of year one (presently October 2023).
105.If the evidence presented to me at that time indicates that there has been no improvement in the communication between the parents and the attitude of [the appellant], as is apparent from these reasons, I will seriously consider changing the residence of [X] from [the appellant] to [the respondent]. The considerations in Rice & Asplund will not apply.
(Emphasis added)
Having made final parenting orders, the primary judge made the following notation:
B.It is noted that in the event there is no improvement in the communication between the parents, the Court may consider changing the residence of the child from the [appellant] to the [respondent]. The considerations in Rice & Asplund will not apply.
The threat made in [105] of the primary judge’s reasons is punitive and contrary to authority. The circumstances that will exist in October 2023 may or may not support the child spending equal time with each parent but the primary judge has no way of knowing. There can be no doubt that the statement and the notation demonstrate impermissible pre-judgment and again seem to be an attempt to force the appellant to act as the primary judge now wishes, regardless of what might be in the best interests of the child at the time.
Finally, and sadly, it is necessary to state that a judge in the position of the primary judge cannot simply oust well-settled principles of law such as the principle in Rice & Asplund (1979) FLC 90-725 or pre-emptively decide they will not apply.
Costs
The appeal has been partly successful in that the order for baptism will be set aside and the parties agreed to orders setting aside the orders restricting the travel of the appellant and replacing them with consent orders.
On the other hand, two grounds of appeal were withdrawn during the hearing of the appeal and a further ground has failed. The Notice of Appeal was amended twice.
The ground of appeal raising s 116 of the Constitution, although only very briefly addressed in the appellant’s Summary of Argument, imposed considerable work upon the other parties to the appeal. It was only after submissions were received from the Attorney-General and the ICL that the ground was abandoned, shortly before the hearing of the appeal.
For these reasons, we think there is merit in the respondent’s claim for costs ($6911.23 at scale). It is appropriate for there to be a reduction to take account of the partial success and the withdrawn grounds of appeal.
We take into account that the appellant is employed part time and receiving Centrelink benefits.
We shall order the appellant to pay the respondent’s costs fixed in the sum of $3,500 which we consider appropriately reflects these considerations.
Neither the ICL nor the Attorney-General sought an order for costs.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Watts JJ) delivered on 21 February 2019.
Associate:
Date: 21 February 2019
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