MALONEY & MALONEY
[2012] FamCAFC 16
•9 February 2012
FAMILY COURT OF AUSTRALIA
| MALONEY & MALONEY | [2012] FamCAFC 16 |
| FAMILY LAW – APPEAL – CHILDREN – where the appellant mother alleges that the Federal Magistrate failed to provide adequate reasons – where the law in this regard is well settled – where the quest of the Court is to be able to discern the path by which the result has been reached – where it is not for the Court or the parties to speculate – where there is a distinct lack of clarity in parts of the reasons for judgment – where conclusions are formed without an indication of how the conclusion is arrived at – where the evidence relied upon in reaching a conclusion is not identified– where it is not clear how the Federal Magistrate treated the evidence of the family consultant where it supported the mother’s case – where there is merit in a number of the grounds of appeal – where the orders identified to be set aside are to be stayed pending further order of a Federal Magistrate – appeal allowed – matter remitted to the Federal Magistrates Court for re-hearing before a different Federal Magistrate. FAMILY LAW – APPEAL – CHILDREN – COSTS – where both counsel sought that there be no order for costs and that costs certificates issue – where the appeal has been allowed on a question of law – costs certificates to issue for the appeal and for the re-hearing. |
| Family Law Act 1975 (Cth) s 60CC(3), s 94AAA(6) |
| Bennett and Bennett (1991) FLC 92-191 Cales & Cales [2010] FamCAFC 237 Churchill & Winston [2007] FamCA 723 House v The King (1936) 55 CLR 499 McCall & Clark (2009) FLC 93-405 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
| APPELLANT: | Ms Maloney |
| RESPONDENT: | Mr Maloney |
| FILE NUMBER: | LNC | 314 | of | 2009 |
| APPEAL NUMBER: | SA | 18 | of | 2011 |
| DATE DELIVERED: | 9 February 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 18 July 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 January 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 51 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Dixon SC |
| SOLICITOR FOR THE APPELLANT: | Coulter Roache |
| COUNSEL FOR THE RESPONDENT: | Mr Welch |
| SOLICITOR FOR THE RESPONDENT: | Philip Welch |
Orders
The appeal be allowed.
Subject to paragraph 3 hereof, Orders 1, 2, 3, 4, 5 and 10 made by Federal Magistrate Roberts be set aside.
The setting aside of the said Orders be stayed pending further order of a Federal Magistrate.
The proceedings be remitted to the Federal Magistrates Court for re-hearing before a Federal Magistrate other than Federal Magistrate Roberts.
There be no order as to costs.
The Court grants to the Appellant Mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.
The Court grants to the Respondent Father a costs certificate pursuant to the provisions of 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 Father in respect of the costs incurred by the Respondent Father in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of
s 8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maloney & Maloney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 18 of 2011
File Number: LNC 314 of 2009
| Ms Maloney |
Appellant
And
| Mr Maloney |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 20 April 2011 Ms Maloney (‘the mother”) appeals against parenting orders made by Roberts FM on 28 January 2011. The respondent in the appeal is Mr Maloney (“the father”). The child the subject of the proceedings is X (“the child”), born in 2002.
In summary, the orders appealed against provided for the interim orders made on 30 April 2010 to be discharged, for the parties to have equal shared parental responsibility for the child, and for the child to live with the father in Tasmania. Orders were also made for the child to spend time with the mother in Victoria for the entirety of the school holidays at Easter and at the end of first and second terms, for half of the summer school holidays, and for a minimum of two weekends during each school term, with the father to book and pay for the child’s travel from Tasmania to Victoria. The orders also provided for the child to communicate with the mother by telephone and email at least three times weekly and on special days if those days fall when the child is with the father. Various orders were made allowing both parties to remove the child from Australia for the purpose of travel to overseas during any non-school period while the child is not spending time with the other parent. The orders also required the father to provide the mother with information in relation to the child’s education and for both parties to consult with each other as to the child’s health care.
The mother seeks that the above orders be varied so that the child lives with her in Victoria. She proposes that the child spend time with the father for half of each school holiday period and for a minimum of two weekends each term, and that the child communicate with the father by telephone and email at least three times weekly and on special days if those days fall while the child is with the mother. The mother also seeks an order that the father book and pay for the child’s travel to spend time with him in Tasmania.
Background
The father was born in Australia in 1957 and was 53 years of age at the time of trial. The mother was born overseas in 1977 and was 33 years of age at the time of trial.
The parties married overseas in 2001 and the mother migrated to Australia later that year to live with the father in Tasmania. The parties separated in 2004 and were divorced in 2005.
The parties’ only child, X, was born in 2002 and was 8 years of age at the time of trial.
The father remarried in late 2006. He and his current wife have two sons, born in 2005 and 2011.
After the parties separated the mother established a home in Melbourne and moved regularly between Melbourne and Tasmania. By her own admission the mother worked as a prostitute in Melbourne at various times between 2005 and 2009 to supplement her income.
On 19 May 2009 the father filed an application seeking orders that the child live with him and spend time with the mother during the school holidays. However, on the same day the parties entered into a parenting plan which provided for the child to live with each parent for three weeks alternately. At the commencement of each three week period, the parent commencing time with the child was to collect the child from the State where the other parent resided. The father was to book and pay for the airfares for the parties and the child.
The father discontinued his application on 16 July 2009, however, the arrangements under the parenting plan subsequently broke down.
On 10 March 2010 the father filed a further application seeking orders essentially the same as the terms of the parenting plan, along with orders that the parties participate in joint mediation to make alternative arrangements in the event either parent believes the child is not coping with the current arrangements, that both parents be permitted to remove the child from Australia for the purpose of travel overseas during any non-school period while the child is not spending time with the other parent, and that the mother be restrained from causing the child to reside outside of Melbourne or Tasmania without the father’s written consent or leave of the Court.
On 19 April 2010 the mother filed her response seeking orders that the child live with her and spend half of the Victorian school holidays with the father.
Roberts FM made interim and procedural orders on 30 April 2010 providing for the parties to have shared parental responsibility and for the child to live with the mother in Victoria. Orders were also made for the child to spend time with the father for the entirety of the winter and spring school holidays in 2010, for one weekend per month during school terms, and for a minimum of half the summer school holidays. The father was permitted to communicate with the child by telephone and email three times weekly and on special days. In accordance with the father’s application, an order was made allowing both parties to travel with the child overseas. The orders also provided for each party to inform the other of issues in relation to the child’s education and health, and for a Family Report to be prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”).
The Family Report was prepared and then released to the parties on 27 July 2010.
Roberts FM heard the matter on 3 and 4 November 2010, and his Honour made orders and delivered his reasons for judgment on 28 January 2011.
Reasons for judgment of the Federal Magistrate
The Federal Magistrate commenced his reasons for judgment by providing the background of the parties and the proceedings, before setting out the orders sought by each party at the final hearing.
In summary, the father sought that the interim orders made on 30 April 2010 be discharged, that the parties have shared parental responsibility for the child, and that the child live with him in Tasmania. The father proposed that the child spend time with the mother during the school holidays and for one weekend per month during the school terms, with travel from Tasmania to Victoria to be booked and paid for by the mother and travel from Victoria to Tasmania to be booked and paid for by the father. The father also proposed orders for the child to communicate with the mother by telephone and email three times weekly and on special days, and that both parties be permitted to remove the child from Australia for the purpose of travel overseas during any non-school period while the child is not spending time with the other parent.
The mother sought that the interim orders be discharged, that the parties have equal shared parental responsibility, and that the child live with her in Victoria. The mother proposed orders that the child spend time with the father for two weekends every school term, for each of the Victorian school term holidays and half of the summer school holidays, with the father to book and pay for return travel between Tasmania and Victoria for both the child and an accompanying adult. The mother also proposed orders for each party to have telephone communication with the child twice weekly when the child is spending time with the other parent. Lastly, the mother sought orders that both parties be restrained from removing the child from Australia without providing written confirmation of travel and accommodation arrangements no later than twenty-eight days prior to the intended departure, with the mother to retain the child’s passport at all other times.
His Honour then outlined the documents relied upon by each party and set out the relevant provisions of the Act, namely ss 60B, 60CC, 61DA and 65DAA. In relation to s 60CC, the Federal Magistrate was of the view that “each consideration, whether ‘primary’ or ‘additional’, should be given the weight it deserves in the light of the facts of the particular case” and referred to an extract from the Full Court decision of Mulvaney & Lane (2009) FLC 93-404. His Honour also referred to Bolitho and Cohen (2005) FLC 93-224, noting that the Court was not restricted to the proposals put forward by the parties.
The Federal Magistrate then outlined the issues noting that, whilst it was common ground between the parties that they should have equal shared parental responsibility for the child, it was not open to his Honour to make any order pursuant to s 65DAA because the parties resided in different States and thus it was not reasonably practicable for the child to spend equal time or substantial and significant time with each parent. His Honour considered the major issues to be with whom the child should live, how much contact the child should have with the other parent (and the terms and conditions of that contact), who should pay for the child’s travel between the parents, and whether the father should provide flight details to the mother when taking the child overseas.
Turning to credit, the Federal Magistrate found that the father was not “truthful at all times”. In particular, his Honour found that the father’s account of how he first became aware of the mother’s prostitution activities “defied belief” and that the father’s claims as to the child experiencing noticeable weight loss after staying with the mother were “deliberately exaggerat[ed] in an effort to raise doubts about the care of the child by the mother”. Furthermore, the Federal Magistrate found the father’s witness, Mr T, to be “less than candid about his relationship with the mother”, especially as he failed to mention that the mother had obtained an intervention order against him. His Honour concluded that
Mr T was “quite comfortable with the mother’s employment in the sex industry” and that it did him “no credit to appear critical of her now in relation to that employment”. In general, the Federal Magistrate found the mother’s evidence to be honest, but that she was “also prone to some exaggeration”. His Honour suggested that the parties’ exaggerations were “probably the result of our adversarial court system in which parties often misguidedly perceive that there is a need to belittle the case of the other in order to succeed”.
Turning to the s 60CC primary considerations, the Federal Magistrate outlined the family consultant’s evidence that the child “seemed to have good emotional relationships with both parents and their respective partners and her brother, with no strong preference indicated”. This suggested that “beneficially she can live mainly with one parent and her relationship with the other parent could be sustained by spending time and communicating with them as often as is practical and conducive to her schooling and social development”.
Whilst there was no credible evidence suggesting that the child had been subjected to any abuse or neglect by the parents, there was evidence that on two occasions the father’s wife smacked the child as a form of discipline. However, his Honour did not consider that to have been “abuse” within the meaning of s 60CC. The Federal Magistrate also considered the father’s “somewhat dominant” attitudes in his dealings with the mother, but did not consider such conduct to come within the definition of family violence. Whilst there had been family violence within the mother’s household in Melbourne, the Federal Magistrate was satisfied that the mother had taken appropriate action to protect the child from it and that many of the problematic relationships were no longer in existence.
As to the relevant s 60CC additional considerations, the Federal Magistrate firstly recorded the family consultant’s evidence of the child’s views that she would have to “keep flying” to spend time with both parents and that she wished her parents were in the same place.
The Federal Magistrate determined that the child had “warm and loving relationships with both of her parents” and that she had “very close and loving relationships with her father’s current wife and her half brother”. Whilst the child had little or no relationship with her mother’s other three children living overseas, she did have a “close and comfortable relationship with the mother’s partner”.
In relation to the willingness of each of the parties to facilitate and encourage the child’s relationship with the other party, the Federal Magistrate outlined some of the father’s concerns about difficulties the father had had in arranging to spend time with the child and speak to her on the telephone. However,
his Honour found both parties’ attitudes not unreasonable in the circumstances. The Federal Magistrate noted that the mother permitted the child to spend time with the father in Victoria at various times that were not mandated in the orders of 30 April 2010, and determined that the parties’ willingness to enter into an agreement for the child to spend alternate three weekly periods with each parent suggested that they were “both very willing to promote the child’s relationship with the other”.
As to the capacity of the parents to provide for the child’s needs, the Federal Magistrate expressed concern about the father’s continued inability to recognise the inappropriateness of the parenting plan in which the child travelled between the parents on three weekly cycles and attended schools in different States. His Honour had no concerns though as to the child’s educational or physical needs being met in either parent’s household and rejected any suggestion that the child was underfed when she stayed with the mother.
In relation to the parties’ attitudes to the child and to parental responsibilities, the Federal Magistrate noted the father’s refusal to provide the mother with details of the child’s impending travel overseas, and the mother’s subsequent retention of the child’s passport. The father’s explanation for his refusal was on the grounds of security, however, the Federal Magistrate considered that if the child’s safety was compromised by providing those details then the father was being irresponsible by taking her into such a situation. The mother gave evidence of wanting to bring two of her older children from overseas to join her in Australia, however, the Federal Magistrate considered the mother’s inaction in completing the necessary immigration formalities over the nine years she had lived in Australia to “raise some concerns … about the mother’s attitude to her parental responsibilities”. The Federal Magistrate also expressed some concern about the mother’s “somewhat careless” attitude towards the child’s exposure to the sexual side of the mother’s life, referring specifically to evidence that mother had a large “sexy tiger” sticker on her car and that she had posted a suggestive photograph of herself on her Twitter page and an internet dating site. His Honour concluded that he was “left with the clear impression that the mother’s attitude to parental responsibility is somewhat below the Australian societal norm”.
As to the likely effect of any change in the child’s circumstances, the Federal Magistrate commented on the “long lasting negative psychological effects” of frequent change in a child’s life and the importance of stability, as recognised by the Court in Cowling v Cowling (1998) FLC 92-801, although his Honour did acknowledge that the decision in Goode and Goode (2006) FLC 93-286 may have diminished the overall importance of the first-mentioned case. The Federal Magistrate also noted the mother’s evidence that her situation may change soon after the hearing as she had been given notice to vacate her rental accommodation and there was a real possibility that they would move over
100 kilometres away to a house owned by the mother’s partner, which would mean that the child would attend a different school.
His Honour went on to consider the practical difficulty and expense of the child spending time with the other parent, noting that both parties had agreed to use a service for unaccompanied travel by children to reduce the costs they had been paying prior to the hearing. The Federal Magistrate considered the financial position of each party, the mother having an annual income of $25,792 from her employment and the father owning two businesses, one based in Tasmania which made a profit of just over $17,000 in the 2010 tax year, and one based overseas which made a loss of nearly $18,000 in the 2010 tax year and $45,000 in the 2009 tax year. His Honour determined that the father was still financially better off than the mother, especially if he was to cease his overseas business, and therefore the father was in a better position to meet the costs of the child’s airfares.
Ultimately, in paragraph 105 of his reasons for judgment the Federal Magistrate determined that “the father offered a more settled lifestyle for the child than the mother” and that, although he had some concerns about the father’s ability to fully appreciate the child’s needs, the father would be assisted by his current wife who has a loving relationship with the child. Thus, his Honour concluded that the child’s welfare would be best served by living with the father and attending her school in Tasmania, and having regular and substantial contact with the mother.
Orders made 28 January 2011
Roberts FM made the following orders:
(1) That orders 1 to 9 inclusive of the orders made on 30 April 2010 are discharged.
(2) That [MR MALONEY] (“the father”) and [MS MALONEY] (“the mother”) have equal shared parental responsibility for [X] born [in] 2002 (“the child”).
(3) That the child is to live with the father in Tasmania.
(4) That the child spend time with and communicate with the mother as follows:
(a)in Victoria for the entirety of the child’s Tasmanian school holidays at Easter and at the end of each of her first and second school terms;
(b)in Victoria for one half of the child’s Tasmanian long summer school holidays, being:
(i)the first half when those holidays start in an even numbered year;
(ii)the second half when those holidays start in an odd numbered year;
(c)in Victoria for a minimum of two weekends during each of the child’s Tasmanian school terms, as agreed between the father and the mother, but failing agreement the first such weekend during each school term is to be the fourth weekend after the last weekend in the preceding school holiday and the second such weekend is to be the fourth weekend thereafter;
(d)by telephone and email at least three times weekly and on the child’s birthday, Christmas day and Mothers’ day if those days occur when the child is with the father.
(5) That on each occasion that the child is travelling from Tasmania to Victoria for the purpose of spending time with the mother, the father must book and pay for the child’s travel.
(6) That subject to the availability of suitable airline bookings for the unaccompanied travel of the child, the father must ensure that the time of departure for a plane on which the child is travelling in either direction is between 4.00 p.m. and 6.00 p.m.
(7) That the father and the mother are permitted to remove the child from Australia for the purpose of travel [overseas] during any non-school period while the child is not spending time with the other parent in accordance with these orders, provided that;
(a)the parent taking the child [overseas] provides the other parent with a detailed itinerary of the child’s travel at least 21 days prior to the child’s scheduled date of departure; and
(b)the child is returned to Australia in time for any passing into the care of the other parent in accordance with these orders.
(8) That if there has been compliance with sub-paragraph (a) of Order No. 7 hereof the child’s passport is to be provided to the parent taking the child [overseas] at least 10 days prior to the child’s scheduled date of departure for the [overseas country].
(9) That the father and the mother are each hereby restrained from removing the child from Australia unless and until there has been compliance with sub-paragraph (a) of Order No. 7 hereof.
(10) That the father must do all things necessary to ensure that the mother obtains information in relation to the child’s education (including but not limited to school reports, school photographs, order forms and notices).
(11) That the father and the mother must each inform the other fully of any illness or accident suffered by the child and, except in the case of an emergency, must each consult with the other prior to the child receiving medical treatment or undergoing surgery.
(12) That the father and the mother must notify the other of any change of address or telephone number within 48 hours of such change.
The mother appeals against all orders, although in doing so she has overlooked that like the father she sought at trial that the interim orders made on 30 April 2010 be discharged. Thus, the mother would be hard pressed to establish an error by the Federal Magistrate in making this order, save and except that given they were interim orders it was strictly unnecessary for the Federal Magistrate to do so.
I also observe that with Orders 6, 7, 8, 9, 11 and 12 of the orders made by the Federal Magistrate the mother in fact seeks in her Amended Notice of Appeal that the same orders be made again without any amendment. Accordingly, I am at somewhat of a loss to understand why the mother would seek to appeal against these orders, and I can say that if the appeal is successful I would not be disposed to set those orders aside.
Grounds of appeal
The mother’s grounds of appeal as contained in her Amended Notice of Appeal filed on 20 April 2011 are as follows:
1. His Honour failed to give any or any adequate reasons for:-
(a)concluding and accepting,
“Mr Crawford’s assessment of the veracity of the parties does accord with my own, particularly in relation to the mother” (Paragraph 45);
(b)making a conclusion in relation to the mother,
“that must surely raise some concerns in my mind about the mother’s attitude to her parental responsibilities”
when relating to the child who is the subject of these proceedings (Paragraph 85);
2. His Honour erred in:-
(a)reaching the conclusion that the mother’s parental responsibilities had in any way diminished in respect of the mother’s ability to care for the child. (Paragraph 85)
(b)concluding that a car sticker on the mother’s car, which the mother had owned since 2006, was relevant to a finding that the child should reside with the father (Paragraph 86 – 88);
(c)concluding:
“that the mother is somewhat careless about the child’s exposure to the sexual side of the mother’s life”
had any effect on the welfare of the child during the period the mother worked as a prostitute (Paragraph 90);
(d)concluding that the child would,
“surely be wondering about, and asking questions about what she observed around her”;
(e)concluding as to why his Honour was,
“left with the clear impression that the mother’s attitude to parental responsibility is somewhat below the Australian societal norm” (Paragraph 91);
(f)concluding that the father
“offers a more settled lifestyle for the child than the mother” (Paragraph 105);
(g)concluding that the child’s welfare would be,
“better served by living with the father” (Paragraph 105).
3. His Honour failed to properly assess and give any or any adequate reasons relating to the competing proposals of the father and the mother as to with whom the child should reside and failed to give proper attention to the provisions of the Family Law Act, 1975, particularly the provisions of s.60CC(3) (Paragraph 43).
4. His Honour erred in:-
(a)failing to take into account and give proper weight to the evidence of the Family Report prepared by Ms [B] as to the mother’s capacity to provide for the emotional needs of the child;
(b)failing to give any or sufficient weight to the evidence of
Ms [B] as to the mother’s ability to perceive the child’s emotional and psychological needs as opposed to that of the father (Paragraphs 75-77).5. His Honour failed to give any or any adequate weight or address the evidence of:
(a)Mr [C], the mother’s partner;
(b)the mother and father’s individual capacity to provide for the physical and emotional needs of the child and promote the relationship with the other parent;
6. His Honour erred in failing to properly assess the evidence relating to the mother’s ability to continue to promote the child’s relationship with the father and other significant adults in the father’s household.
7. His Honour failed to properly evaluate:
(a)the competing proposals as to where the child would reside;
(b)the fact that the child had resided with the mother and attended the same school since April, 2010 and the status quo that existed at the time of the trial.
8. His Honour erred in fact in not concluding that the mother was the person who could best anticipate and properly respond to all of the child’s needs both contemporary and developmental as given by the evidence of the Family Report [sic], Ms [B];
9. His Honour erred in failing to take into account the fact that the child, the subject of the proceedings, had resided with the mother pursuant to an Interim Order made on 30 April, 2010, a period of approximately nine (9) months prior to his Honour’s judgment delivered on 28 January, 2011, in circumstances where his Honour found as a matter of fact that:
(a)the child had a warm and loving relationship with both parents (Paragraphs 57, 58 and 68);
(b)the child had a close and comfortable relationship with the mother’s partner (Paragraph 70);
(c)he had no concerns in relation to the child’s physical needs in either parents [sic] household, rejecting any suggestion that the child was underfed when she was with the mother (Paragraph 79); and
(d)the child’s educational needs would be adequately met in either household (Paragraph 79).
10. His Honour erred in finding that the mother’s attitude to parental responsibility to the child was diminished by reason that:
(a)She had posted a suggestive photograph of herself on her Twitter page and on another dating site (Paragraph 86) in circumstances where there was no evidence or any finding that the child was aware of these matters or was in any way adversely affected or prejudiced by them and against his Honour’s finding that:
(b)The child had a warm and loving relationship with both parents (Paragraph 57, 58 and 68);
(c)He had no concerns in relation to the child’s physical needs in either parents [sic] household (Paragraph 79); and
11. His Honour erred in making an Order that the child live with the father in circumstances where he found that:
(a)From the outset the father demonstrated a remarkable lack of insight into the harm that the Parenting Plan could do (Paragraph 76) whilst noting (Paragraph 77) that the Family Consultant agreed with the mother’s Counsel that the mother appeared to have had a greater insight into the affects on the child of the operation of the Parenting Plan; and
(b)He had some concerns about the father’s ability to fully appreciate the child’s emotional needs without having considered or properly considered the mother’s ability to fully appreciate the child’s emotional needs.
Application to adduce further evidence
On 29 June 2011 the father filed an Application in an Appeal seeking to adduce the further evidence contained in his affidavit filed on the same day. In his affidavit, the father set out his attempts to contact the mother regarding her change of address in early 2011, annexing a copy of an email from the father to the mother’s solicitor on 21 January 2011 regarding the mother’s change of address. The father then outlined the child’s attendance at school while living with her father in Tasmania, annexing the child’s mid-2011 school report.
At the commencement of the hearing before this Court counsel for the respondent took no objection to the Court receiving that further evidence, and thus I did so.
Discussion – Grounds of appeal
In the written summary of argument of the mother’s counsel and in his oral submissions made at the hearing before this Court, the principal complaint is the alleged lack of adequate reasons by the Federal Magistrate in reaching his decision. That complaint is picked up specifically in Grounds 1 and 3, as well as to a certain extent in Ground 2 and thus I propose to address those grounds together.
It is also apparent that most of the balance of the grounds of appeal involve “weight challenges”, but as will be seen, in many respects the real issue there is also an alleged lack of adequate reasons by the Federal Magistrate. In any event, I propose to address Grounds 4 to 9 together and then Grounds 10 and 11 together.
Grounds 1, 2 and 3
To repeat, the common complaint here is an alleged lack of adequate reasons.
The law with respect to the need to provide adequate reasons is well settled (see Bennett and Bennett (1991) FLC 92-191). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA stated at 279 that:
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In Bennett & Bennett the Full Court said this at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. …
Their Honours went on to say at 78,267:
… It is unnecessary to decide, in this case, whether the inadequacy of her Honour’s reasons was itself an error of law requiring her decision to be set aside, in that we have already determined that the appeal should succeed on the merits. The weight of judicial authority, however, suggests that it might well amount to such an error. At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge’s discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
The quest therefore is for this Court to be able to discern the path by which the result has been reached by the Federal Magistrate.
With Ground 1(a) the result to be considered is his Honour’s findings in relation to the credit of the parties, but particularly the mother. It is submitted that the “conclusion” at paragraph 45 of the reasons for judgment simply does not accord with his Honour’s findings in relation to specific aspects of the mother’s evidence. For example, in paragraph 51 of his reasons his Honour said that he accepted the mother’s explanation in relation to the claim by the father that there were noticeable changes in the child’s weight as she moved back and forth between her parents’ households. However, even more significantly this appears in paragraph 55 of the reasons:
In general, I found the mother’s evidence to honest but she was also prone to some exaggeration.
There is a distinct lack of clarity surrounding this part of his Honour’s reasons, and at first blush the problem appears to arise from the circumstance that initially his Honour seems to accept the submission of the father’s counsel as to the mother’s evidence and her veracity (paragraph 45), but later he reaches a different conclusion (for example in paragraph 55).
However, for my part, this is not an issue of lack of adequate reasons, and it is apparent from a reading of the judgment as a whole that the conclusion in paragraph 55 is the one that his Honour applies and not what he says in paragraph 45. In other words, his Honour does not in fact only accept the mother’s evidence when it is corroborated. Indeed, the respondent’s submission is that there is a typographical error in paragraph 45 and that the word “do” should be “not” so that the paragraph reads, “Mr Crawford’s assessment of the veracity of the parties does not accord with my own”. Counsel for the father says that this is “made apparent from a reading of paragraphs 46-56 of His Honour’s Reasons for Judgment”.
It may be that counsel for the father is correct and that explains the inconsistency that has been highlighted. However, whatever the explanation is, it is clear to me that what appears in paragraph 55 is the more accurate representation of his Honour’s assessment of the veracity of the mother’s evidence.
That said, with the conclusion in paragraph 55, his Honour’s chain of reasoning is discernible, and thus, although there is some confusion I do not consider that this ground has any merit.
As to Ground 1(b), the complaint as amplified in counsel’s written submission is that this statement “is not supported by any tangent or cogent evidence”, whatever that may mean. It seems though that the issue is not solely lack of adequate reasons, but also lack of evidence to support the conclusion. In any event, the fact of the matter is that within paragraph 85 of his Honour’s reasons he clearly sets out the basis for reaching the conclusion that he does.
His Honour says this:
85.The mother has three other daughters living [overseas], who are 14, 13 and 9 years old. The 13 year old has always lived with her father but the other two live with the mother’s parents, and the older of them is registered as being a child of the mother’s parents. The mother says that she would like to have those two children join her in Australia. However, the only evidence available to me suggests that the mother has done very little at all in the nine years that she has lived in Australia to complete the immigration formalities necessary to achieve that objective. That must surely raise some concerns in my mind about the mother’s attitude to her parental responsibilities.
Thus, his Honour does refer to the evidence, and he does reveal his reasoning, and it would appear that the complaint is not made out, however, the issues for me are whether this is a conclusion that is open to his Honour on the evidence, and if so, what importance did it have in his Honour’s ultimate decision.
As to the first issue, it is necessary to be clear about what his Honour was saying. In other words, he was not saying that the mother’s apparent failure to have her children join her in Australia led his Honour to find that the mother has a poor attitude to her parental responsibilities; his Honour was simply saying that that circumstance raised “some concerns in [his] mind”. Understood in that way, I consider that it was open to his Honour to make that statement on the basis of the evidence before him.
Turning to the second issue, it is not apparent from his Honour’s reasons what part this statement played in his Honour’s ultimate decision, and therein lies the difficulty with that decision. This highlights the general complaint that is made, not so much in the grounds of appeal, but rather in the written summary of argument that:
… no adequate reasons were given in the proceedings and it is impossible for an Appellate Court or, for that matter, the parties, to properly examine the decision of his Honour. A result of the absence of adequate reasons leads to what was referred to in Bennett’s case as a ‘defect’ in that his Honour moved directly to a conclusion without indicating that reasoning which lead [sic] him to that conclusion (see para. 105 of his Honour’s Judgment).
Paragraph 85 of the reasons for judgment appears in the section headed “The attitudes of the parents to the child and to parental responsibilities”, and
his Honour’s concluding paragraph to that section reads as follows:
91.In the light of the above, I am left with the clear impression that the mother’s attitude to parental responsibility is somewhat below the Australian societal norm.
Now it is unclear to what “Australian societal norm” his Honour was referring. He does say this in paragraph 87:
While I note that in N v N Mullane J said that prostitution may well be legal and that “Australian society may well be more tolerant of the sex industry than in past times” ((1997) FLC 92-782 at page 84,644) that does not mean that it is widely accepted by society or that it is in any way acceptable for children to be exposed to it.
And then his Honour says this in paragraph 90:
I get the impression that the mother is somewhat careless about the child’s exposure to the sexual side of the mother’s life and, at her age, the child must surely be wondering about, and asking questions about what she observes around her.
Thus it may be that this is what his Honour is referring to in paragraph 91, but it is not for this Court or the parties to speculate. It is for his Honour to discernibly set out his chain of reasoning, and I consider that his Honour has failed to do that here. There is simply no link between paragraph 85 and paragraph 91, and, as is submitted by counsel for the mother, in paragraph 105 of his reasons for judgment his Honour moves directly to a conclusion without indicating how he has reached that conclusion. Accordingly, although I will say more about this later in these reasons, this ground has merit when looked at together with the propositions set out in the written summary of argument of the mother’s counsel.
As to Ground 3, the complaint made lacks sufficient specificity to allow this Court to address it in any meaningful way, and there was virtually nothing in the written summary of argument of counsel for the mother or in his oral submissions made to this Court to overcome this deficit. In particular, the Court was not taken to anything in the documents before the Court to identify or justify the complaint. However, and doing the best I can, it is apparent that in his reasons for judgment his Honour clearly identified the “competing proposals”, he clearly identified the relevant legal principles to be applied, and he traversed the relevant additional considerations arising under s 60CC(3). Thus, at this very general level, and without being able to address any specific alleged error by his Honour, it is not readily apparent that his Honour erred in his approach to the issue to be determined. That is not to say though that
his Honour did not err in arriving at his conclusion as to the so-called s 60CC factors, and that issue is raised in other grounds of appeal, such as Ground 2.
Turning to Ground 2, I have already addressed Ground 2(a) when considering Ground 1(b), and I do not need to say anything more about this.
As to Grounds 2(b), (c), (d) and (e) they relate to his Honour’s “concerns” expressed in paragraphs 86 to 91 of the reasons for judgment “about the mother’s lifestyle”.
The evidence was that the mother engaged in prostitution in a brothel between 2005 and 2009 in order to supplement her income. The mother also displayed a large sticker on the rear window of her motor vehicle between December 2006 and when she sold the motor vehicle three to three and a half years later, and which showed a picture. Underneath in large writing were the words “Sexy Tiger” and underneath that the words “Good Girl and a Bad Girl That don’t get Caught!”
Further, there was evidence that the mother posted “a suggestive photograph of herself on her Twitter page under the user name ‘…’ with a ‘bio’ description ‘good girl and a bad girl that don’t get caught!’ That same photograph was also posted by the mother on an Internet dating site, accompanied by the words “Sex … 32. Where?”
After recording this detail in his reasons for judgment, his Honour said this:
87.While I note that in N v N Mullane J said that prostitution may well be legal and that “Australian society may well be more tolerant of the sex industry than in past times”, that does not mean that it is widely accepted by society or that it is in any way acceptable for children to be exposed to it.
88.The mother says that the sticker on her car was simply something that she obtained from a market, and that it was just a “logo” and “art”. However, it is a sticker that the child would probably have seen on a daily basis when she was living in her mother’s household, and when the father’s counsel asked her “Didn’t you stop and think that that’s not a good thing for a seven year old girl to be travelling around in a car, with a mother who is a sexy tiger? Did you stop and think?”, her response was:
It – because it’s been there for – I didn’t think. It’s been there, it’s just nothing.
89.The mother’s evidence was contradictory about whether her computer needed a password. At one point during her cross-examination she said that she changed her password two months previously, yet she later stated that the child was able to use her laptop when it was open and that it was “automatic”.
90.I get the impression that the mother is somewhat careless about the child’s exposure to the sexual side of the mother’s life and, at her age, the child must surely be wondering about, and asking questions about what she observes around her.
91.In the light of the above, I am left with the clear impression that the mother’s attitude to parental responsibility is somewhat below the Australian societal norm.
(Footnotes omitted)
The complaint by the mother is that in effect it was not open to his Honour on the evidence before him to reach the conclusions that he did about her lifestyle and any impact of that on the child.
As to the issue of prostitution, the evidence from Ms B, the family consultant and report writer, was that the child was unaware that her mother had worked in a brothel, and in any event the evidence was that the mother had ceased that employment well before the hearing before his Honour. Moreover, the father did not suggest otherwise as to the child’s knowledge in his evidence, and in fact he did not raise the mother’s employment as an issue or as a concern vis a vis the welfare of the child, or the mother’s ability to properly and adequately care for the child, with Ms B or in his affidavit of evidence-in-chief. I also observe that his Honour found that the father’s account of how he met the mother overseas, and when he first became aware of her prostitution activities “defied belief”. His Honour concluded in paragraph 46 of his reasons for judgment as follows:
…
a)the father knew about her activities from the time when he first met her working in a bar [overseas]; and
b)when she told him that she would be working in “a parlour”, he knew exactly what she meant and further, he did not object to what she was doing.
In any event, the point is there was no evidence that the child was either aware that her mother had worked as a prostitute, that she had been exposed in any way to that activity, and most importantly that there had been or was likely to be any negative effects on the child as a result of this past activity of the mother. Thus, it is plain that his Honour’s comments in paragraphs 86, 87 and 90 which tend to suggest otherwise were without foundation.
As to the sticker, although there was a dispute as to its meaning and why it was on the motor vehicle, there was no evidence that the child had been aware of it or if she was, what her interpretation of it was vis a vis her mother. In any event, as was pointed out by the mother’s counsel, the motor vehicle had been sold by the mother well before the hearing. Thus, again it is apparent that the comments of his Honour are not supported by any evidence.
As to the suggestive photograph on the Twitter page and the internet site, although there was evidence that the child had access to the mother’s laptop computer there was again no evidence that the child was in fact aware of the photograph or if she was what her interpretation of it was. Accordingly, once more, there is a difficulty with a lack of evidence justifying his Honour’s comments, including his “impressions” set out in paragraph 90 of his reasons for judgment.
This then highlights the complaint of lack of adequate reasons. It is not possible to ascertain the reasons upon which the conclusion at paragraph 91 is based, and then in turn what role that conclusion played in the ultimate decision.
There is an allied problem with his Honour’s conclusions here, and that is
his Honour’s comment in paragraph 87 about what is “widely accepted by society” and his reference in paragraph 91 to “the Australian societal norm”.
There was no evidence presented to the Court as to these concepts, and
his Honour failed to explain in his reasons what the “norm” was that he was applying. Further, if of course his Honour relied on social research in reaching this conclusion, then it is plain that his Honour failed to afford the parties, and particularly the mother, procedural fairness by alerting them to this research and giving them the opportunity to present evidence about the same.
In these circumstances these grounds of appeal have merit.
As to Grounds 2(f) and (g), again the complaint is that his Honour failed to disclose his reasoning in reaching the conclusions in paragraph 105 of his reasons for judgment. Nowhere does his Honour set out what he means by “settled lifestyle”, and nowhere does his Honour refer to any evidence that supports the finding that the father offers the more “settled” lifestyle. Indeed, I accept the submission of the mother’s counsel that when the evidence is analysed the mother offered at least as settled a lifestyle as the father, and it could even be said that she offered the more settled lifestyle, and particularly in the context of the arrangements put in place by the interim orders in April 2010.
It is also submitted, and I accept, that in relation to the conclusion that the “child’s welfare is better served by living with her father and having regular and substantial contact with her mother” there is a lack of adequate reasons provided by his Honour given the state of the evidence before him. For example, this appeared in the cross-examination of the family report writer Ms B:
Just concluding, [X] is going to have the better opportunity in the household that (a) will have the knowledge and capacity to support and foster her developmental needs?---Yes.
The household that will not pose [sic] her to any undue risks upon those developments?---Yes.
That foster and encourage the relationship with the other parent?---Yes.
Based on you interviews with these parents, it was the mother who had that greater insight into the effects and the child’s development, wasn’t it?---Apparently so.
Based on your interviews, you had concerns about Mr [Maloney’s] present capacity to provide for [X] and what she needs to develop and grow into a well adjusted person?---The answer is not so straight forward. I felt no doubt that the father would foster the child’s schooling – academic development. My concern was about fostering her emotional social development.
(Transcript, 3 November 2010, page 20 line 43 – page 21 line 13)
His Honour provides no basis for his conclusion and he does not identify the evidence that he is relying on in reaching that conclusion. Thus, plainly there is merit in these grounds of appeal as well.
Grounds 4, 5, 6, 7, 8 and 9
As identified above these grounds primarily look to raise “weight challenges”. However, as will become apparent they also raise again the issue of a lack of adequate reasons.
Before embarking on a consideration of these grounds, it is useful to refer to what the High Court has said about when appellate interference with discretionary judgments may be enlivened. In House v The King (1936) 55 CLR 499 their Honours said this (at 504):
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 substation 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 unreasonably 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 the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
As to Ground 4, his Honour was obviously aware of the report and evidence of Ms B. For example, in paragraphs 58, 59 and 70 of his reasons for judgment he referred to and accepted the evidence of Ms B as to the child’s relationships with her parents, their respective partners and her brother.
The issue though that counsel for the mother outlines in his written summary of argument is that his Honour’s conclusion in paragraph 105 is not supported by the evidence presented by Ms B, and in some respects is inconsistent with it. Of course, it was always open to his Honour to reject the evidence or the opinion of the expert, but if that was what his Honour did then his Honour needed to explain that as part of his chain of reasoning. However, his Honour simply did not do that and accordingly this Court and the parties are left wondering as to how his Honour treated the evidence of the family consultant that supported the mother’s case given his Honour’s conclusions in paragraph 105 of his reasons for judgment.
I observe that it is not the case that the Federal Magistrate has ignored the evidence of Ms B that is favourable to the mother; he referred to this evidence in various parts of his reasons for judgment including for example in paragraphs 71 to 73 and paragraphs 75 to 77. However, having done that it is not then apparent from his Honour’s reasons how he reached the conclusions that he did despite this evidence and his Honour’s recognition and acceptance of it. It is indeed even more problematic because not only was there ample evidence from Ms B supporting the mother’s ability to adequately care for and attend to the needs of the child, there was also some damning evidence about the risk to the child of being placed in the care of the father. For example, this appears in the cross-examination of Ms B:
And you would agree that if the father does not have the capacity to recognise what is emotionally and physically too much for [X], if she lived with him full time, then potentially she will be at risk?---Potentially she might be.
(Transcript, 3 November 2010, page 15 lines 15-17)
In these circumstances there is also merit in this ground of appeal.
As to Ground 5(a), this is clearly presented as a “weight challenge”, i.e., it is alleged that his Honour failed to give any or any adequate weight to or address the evidence of Mr C, the mother’s partner. However, that is not apparent from his Honour’s reasons for judgment. For example, in paragraph 70 his Honour said this:
I am also satisfied that the child has a close and comfortable relationship with the mother’s partner. In this regard, the family consultant reported:
Unexpectedly (the child) encountered (the mother’s partner) as (the mother) was temporarily elsewhere. The reciprocated greeting between (the child) and (the mother’s partner) was remarkably warm and bright. They clearly really like each other.
The particular issue though that concerns the mother is explained in her counsel’s written summary of argument. In paragraph 105 of the reasons for judgment where his Honour sets out his ultimate decision, he refers to and seems to take into account the assistance that will be provided to the father by his wife who his Honour says has a very loving relationship with the child, yet there is no mention here of the excellent relationship that Mr C has with the child, and no explanation of why the former relationship is to be given more weight. However, this is amply explained by the circumstance that in this paragraph his Honour is setting out his conclusion, and there is no doubt that the father will receive assistance from his wife, and that she has a loving relationship with the child. It is plain that his Honour is not comparing that with the relationship that the child has with Mr C, and nor is he suggesting anything about their relationship.
Thus, I am not persuaded that his Honour has erred in this regard.
As to Ground 5(b), although it is expressed as a “weight challenge”, this is also yet another example of the complaint made by the mother that the evidence before his Honour does not justify or support his Honour’s conclusions and ultimate decision, and thus there was an obligation on his Honour to disclose the reasoning on which his decision is based, but he has failed to satisfy that obligation.
The evidence is certainly that the mother has demonstrated a greater capacity to meet the emotional needs of the child, and to this extent I am satisfied that
his Honour has failed to explain in his reasons for judgment how, despite this, and despite his acceptance and acknowledgement of this evidence in his reasons for judgment, he was able to reach the decision that he did.
With the evidence of the capacity of the parties to provide for the child’s physical needs, his Honour found that both parties had that capacity, and thus there can be no error here by his Honour. Indeed, his Honour did not make that a basis for his decision.
In relation to the evidence of the ability of the parties to promote the child’s relationship with the other of them his Honour said this in paragraph 74 of his reasons for judgment:
The very fact that the parties were misguidedly willing to enter into an agreement for the child to spend alternate three weekly periods in the household of the other suggests clearly to me that they are both very willing to promote the child’s relationship with the other.
However the evidence clearly establishes that overall the mother had demonstrated a greater willingness than the father to promote the relationship of the child with the other parent. Thus again there was a need for his Honour to explain how he reached the decision that he did despite this evidence.
Accordingly, there is merit in Ground 5(b).
As to Ground 6, there is also merit in this ground for the same reasons that I have expressed in relation to the previous grounds. The complaint raised here is well and truly covered by those previous grounds including Ground 5(b), and I need not dwell on it further.
As to Ground 7, I am not persuaded that this ground of appeal has any merit. As I have said already when addressing Ground 3, his Honour was well aware of the competing proposals of the parties and the fact that his interim orders had been in place since April 2010, and a reading of his Honour’s judgment as a whole reveals that his Honour took the proposals into account as well as the status quo. It has not been established how his Honour has erred in the exercise of his discretion in this regard.
As to Ground 8, this is in effect the same complaint that is made in Ground 4, and there is nothing further that I need to say on this topic. I have found that his Honour erred in not disclosing his reasoning for his ultimate decision, and in particular he has not explained how he has treated the evidence of
Ms B which favoured the mother’s case.
As to Ground 9, this ground is also another way of expressing the same complaint made in previous grounds such as Grounds 5 and 7. Insofar as it is said that his Honour failed to take into account the status quo, I do not consider that there is merit in that claim, but otherwise insofar as the complaint is that his Honour failed to explain in his reasons how he treated the considerable body of evidence that was favourable to the mother’s case in reaching the decision that he did. Prima facie, it seems that his Honour failed to take this evidence into account, but it is the absence of adequate reasons which creates the difficulty for the Court and the parties in understanding how his Honour reached his decision.
Grounds 10 and 11
Again these grounds do no more than repeat the complaints raised in previous grounds and there is nothing further that needs to be said.
Conclusion
Having found merit in a number of the grounds of appeal, the appeal must be allowed and the orders identified above set aside.
That then leads to the question of whether the matter should be remitted to the Federal Magistrates Court for re-hearing by a different Federal Magistrate or whether it is open to this Court to re-exercise the discretion.
Although the mother sought extensive alternative orders in her Amended Notice of Appeal, and which could only be achieved if there was a re-exercise of discretion, in his oral submissions at the hearing of the appeal counsel for the mother indicated that the appropriate course was for the proceedings to be remitted to the Federal Magistrates Court.
Counsel for the father did not challenge that outcome in the event the appeal was successful. Indeed, he submitted that if remission was ordered it was open to this Court pursuant to s 94AAA(6) of the Act to also make an order that pending the re-hearing the current orders remain in place including that the child continue to live with the father. In support of that submission he highlighted two matters. Firstly, if the child lived with the mother in Victoria that would entail the child living with her in G and attending a school there so that her place of residence and school would be different than they were at the time of the interim orders. Secondly, in the event of the father being successful at the re-hearing in his application for the child to live with him, the child would be required to return to him and re-enrol at the school which she currently attends causing significant disruption to the child.
In the circumstances I agree that this matter has to be remitted to the Federal Magistrates Court for re-hearing before a different Federal Magistrate. Given the passage of time since the trial before the Federal Magistrate there is insufficient evidence available to this Court, even allowing for the further updating evidence adduced by the father, to enable this Court to re-exercise the discretion and determine what parenting orders would be in the best interests of this child.
As to what should be done about the orders, although there are factors here which are said to militate against reverting to the interim orders that were in place prior to the final orders made by the Federal Magistrate, namely the change of arrangements that would have to take place, just as I am unable to re-exercise the discretion and make orders on a final basis, I am not in a position on an interim basis to determine what is in the best interests of the child. Thus I propose that the setting aside of the orders should be stayed until the matter is re-listed before a judicial officer who can determine the future conduct of the matter, including if necessary, any interim orders pending the re-hearing. This is a course that is plainly open to me, and I observe that it has been a course taken in a number of Full Court decisions namely Cales & Cales [2010] FamCAFC 237, Churchill & Winston [2007] FamCA 723 and McCall & Clark (2009) FLC 93-405 to name but a few.
Costs
At the conclusion of the hearing I received submissions from both counsel as to the issue of costs.
In the event that the appeal was successful, both counsel sought that there be no order for costs, but that there be costs certificates issued.
In the circumstances of the appeal being allowed on a question of law, I consider it appropriate that costs certificates should be ordered both in respect of the hearing of the appeal and the re-hearing in the Federal Magistrates Court.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 9 February 2012.
Associate:
Date: 9 February 2012
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