MAREET & COLBROOKE
[2019] FamCAFC 15
•7 February 2019
FAMILY COURT OF AUSTRALIA
| MAREET & COLBROOKE | [2019] FamCAFC 15 |
| FAMILY LAW – APPEAL – Parenting – Appeal from interim orders restraining the appellant from relocating – Where the respondent concedes the appeal – Significant errors of law – Failure to take into account relevant matters – Orders made that were unsupported by evidence – Cost certificates sought – Cost certificates granted – Appeal allowed – Orders of the primary judge set aside – Matter remitted for hearing. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| B & B(Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177 Cramer v Davies (1997) 72 ALJR 146 D and SV (2003) FLC 93-137; [2003] FamCA 280 Kyriakos & Kyriakos (2013) FLC 93-528; [2013] FamCAFC 22 Quant & Bonde (2018) FLC 93-853; [2018] FamCAFC 150 Sampson & Hartnett(No 10) (2007) FLC 93-350; [2007] FamCA 1365 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
| APPELLANT: | Ms Mareet |
| RESPONDENT: | Mr Colbrooke |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Campbell |
| FILE NUMBER: | WOC | 357 | of | 2018 |
| APPEAL NUMBER: | EA | 151 | of | 2018 |
| DATE DELIVERED: | 7 February 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 7 February 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 October 2018 |
| LOWER COURT MNC: | [2018] FCCA 3397 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Davies |
| SOLICITOR FOR THE APPELLANT: | Hanna Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Dowson Turco Lawyers |
| SOLICITOR FOR THE INDEPENDENT | Bowral Legal |
Orders
IT IS ORDERED:
The appeal against the orders of a judge of the Federal Circuit Court of the 5 October 2018 is allowed.
That the orders made by the primary judge on 5 October 2018 are set aside.
The application is remitted to be heard by a judge of the Federal Circuit Court other than the primary judge.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to ss 9 and 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 the appellant in respect of the costs incurred by him in relation to the appeal and in relation to the new trial in the matter.
The Court grants to the respondent a costs certificate pursuant to the provisions of ss 6 and 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 the respondent in respect of the costs incurred by her in relation to the appeal and in relation to the new trial in the matter.
IT IS ORDERED BY CONSENT:
In lieu of the orders set aside and pending further order:
a) That within fourteen (14) days of the date of these orders, the parties together with their legal representatives shall attend a telephone conference (“the Conference”) with the Independent Children’s Lawyer to discuss the parenting arrangements for the child B born … 2018 (“the child”);
b) That within thirty (30) days of the date of these orders, the child shall spend time with the respondent in accordance with the agreement reached at the Conference; and
c) That within fourteen (14) days of the date of these orders, the appellant and the respondent shall enrol in the online parenting program offered by the Relationspace or any such other similar parenting program.
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 Mareet & Colbrooke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 151 of 2018
File Number: WOC 357 of 2018
| Ms Mareet |
Appellant
and
| Mr Colbrooke |
Respondent
and
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
AINSLIE-WALLACE J
Ms Mareet (“the mother”) and Mr Colbrooke (“the father”) are the parents of a very young baby, B (“the child”) who was born in 2018. The child was born in Town C in New South Wales after the mother had moved to live in the D Region in Queensland in March 2018. The mother and father were very briefly in a relationship which began in about May 2017 and ended in September 2017. The mother has a child from a former relationship who is aged about four.
The parties were living in the Northern Territory at the time of separation, having moved there for the father’s work in July 2017. The mother says that she “fled” the Northern Territory having been the victim of family violence by the father and, further said that she was assisted in moving by the father’s employer. She moved back to Town F (in the H Region in New South Wales) where her family lives. The mother lived in that area for a time before moving to live in the D Region in Queensland. The mother alleged that she moved because the father was stalking her, parking outside her house and harassing her. The child had not been born at the time the mother moved to live in the D Region in Queensland.
When she moved to live in the D Region in Queensland, the mother with the assistance of her parents, entered into a lease on a house, moved her possessions and enrolled her older child at a local kindergarten.
On 5 October 2018 a judge of the Federal Circuit Court ordered that by 22 November 2018, the mother return with the child to the H Region in New South Wales and that she “temporarily” reside at her mother’s home in Town F (Order 2). Her Honour restrained the mother from leaving the H Region in New South Wales until further order (Order 3). The primary judge directed that the mother communicate with the father through her solicitor if she needed financial assistance with her accommodation in the event that she finds “independent accommodation” in the H Region in New South Wales (Order 13).
Her Honour made orders that the father spend time with the baby for 30 minutes on three nominated days in November 2018 (to be accompanied by the paternal grandmother on at least the first occasion) with the child being delivered to a supervised changeover centre (Order 6).
The primary judge enjoined the father from attending on or approaching the mother’s or maternal grandmother’s home or at any other address where the mother may reside. Her Honour’s order contemplates the father being advised of the mother’s address from time to time through her solicitors (Order 8).
The primary judge made orders to get the matter ready for hearing and adjourned the proceedings until 29 November 2018.
The mother appeals those orders. The father has conceded the appeal and each party seeks costs certificates both in relation to the appeal and any rehearing of the application.
The Independent Children's Lawyer’s position on the appeal was to assist the court if required.
The case of B & B(Costs Certificates) (2007) FLC 93-339 (“B & B”), which in turn at 81,821 refers to the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146 (“Cramer v Davies”), sets out the criteria which must be satisfied before a costs certificate pursuant to ss 6 or 9 of the Federal Proceedings (Costs) Act1981 (Cth) (“Costs Act”) will be issued in relation to an appeal. They are:
i)the existence of a Federal Appeal;
ii)that the appeal has succeeded on a question of law; and
iii)that the court concerned should have heard the appeal.
The appeal is clearly a “Federal Appeal” (see paragraph (j) of the definition of “Federal Appeal” in s 3(1) of the Costs Act) and although the appeal was resolved by agreement, the appeal has been heard in the relevant sense. In that regard I place reliance on Kirby J’s broad interpretation of that expression in Cramer v Davies which is to the effect that the requisite hearing can be “no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way” (quoted in B & B at 81,822). Here, however, the hearing had not commenced before the appeal was conceded.
Turning then to whether the appeal has succeeded on a question of law. The mother, who represented herself up until very shortly before the appeal was to be heard, prepared the grounds of appeal from which I have gleaned a number of complaints.
Nature of the orders made
It was contended that the primary judge erred in making orders which required the mother to change her location and, further, in restricting the mother to that area by an order preventing her from leaving it (for any reason).
While it is undisputed that the Family Law Act1975 (Cth) (“the Act”) provides the power to enjoin a party to relocate (or not relocate), such an injunction should rarely be made (see Sampson & Hartnett (No 10) (2007) FLC 93-350 in particular at [58]). The making of such an injunction can be avoided if the court gives adequate consideration to alternate forms of access to children (see D and SV (2003) FLC 93-137 at [16]).
Her Honour regarded the issue before her as a “relocation case” and clearly proceeded on that basis, saying at one point: “unless the child – such a young child who’s totally dependent on his mother comes back to an area that the mother was in subsequent to her relocation to the D Region in Queensland, to facilitate the father establishing a relationship with his son…” (transcript of proceedings, 5 October 2018, page 20, lines 4 – 7). Clearly however, the child’s residence was never in the H Region in New South Wales. The mother moved to the D Region in Queensland while pregnant in March 2018 and later in 2018 gave birth to the child in Town C. Properly considered, the father’s application was that the child be brought to the H Region in New South Wales so that he, the father, could make a relationship with the child. Her Honour’s characterisation of the issue led her to make significant errors of law.
In particular, her Honour gave no consideration to making orders that the father travel to the D Region in Queensland to see the child. Nor did she turn her mind to the interests of the mother’s older child who had been enrolled at preschool in the D Region in Queensland. Instead, her Honour took the view that the mother should be compelled to return.
This order, that is, one which directly affected the mother’s right of freedom of movement, in the circumstances of this case was wrong at law. Secondly, her Honour’s ancillary order which bound the mother to the H Region in New South Wales from which she could not leave is patently erroneous.
I point out that her Honour’s order which required the mother to break her lease, pay the penalties associated with that and the other financial implications of being forced to move was, in her Honour’s words “only until further order” (transcript of proceedings, 5 October 2018, page 2, lines 2-3). That is, her Honour’s order took no account of the financial and other burden on the mother consequent on the move which might, in her Honour’s view, only be short term.
Failure to take into account relevant matters
It was argued that the primary judge took no account of the mother’s circumstances in the D Region in Queensland. The mother’s evidence was that she had entered into a lease on a property, her furniture had been moved in and, as I have said, her other child enrolled in preschool. She was not then in receipt of any rental assistance and said that her parents had given her financial assistance. She further gave evidence of the cost to her in breaking her lease, the necessity of paying the rent until it was re-let, paying for further advertising and her concern over receiving a refund of her rental bond. Her Honour gave no detailed attention to this evidence but observed that the evidence about the costs of moving was “inadequate” (at [37]). Thus, although the father made some offers of financial support, her Honour adjourned off the question of financial support until after the mother moved back to the H Region in New South Wales. Her Honour at [37] said she “anticipate[s] the maternal grandmother will again financially assist the mother”.
There was no evidence before the primary judge that the mother’s parents had the financial capacity or indeed the desire to financially assist the mother in moving back to the H Region in New South Wales. Her Honour’s order thus was unsupported by the evidence and was wrong in law.
The father’s position was that the mother should move back to the H Region and live with her parents. For the mother it was submitted to her Honour that the maternal grandmother said she could not accommodate the mother in her home (transcript of proceedings, 5 October 2018, page 30, lines 17 – 18). Notwithstanding that evidence, her Honour made an order requiring the mother to live with her mother and, it being unsupported by any evidence and, in fact against the evidence, was an error.
Failure to provide reasons
The mother asserts that despite a number of requests, the primary judge failed to deliver written reasons for her decision. While the mother amplifies her complaint and says that her Honour’s delay in delivering the reasons was deliberately done to prevent the mother from appealing, a suggestion which is unsupported by the objective evidence and which I reject. Nevertheless, her Honour’s production of the written reasons is attended by controversy.
Her Honour’s written reasons, which bear the date 5 October 2018 commence with the following paragraph:
1. These reasons were requested by the respondent to the proceedings. The interim hearing proceeded on 5 October 2018 during a busy duty week wherein the Court dealt with 99 matters in four days many of which were interim hearings requiring interim determination. The Court was in addition required to sit in two different Court venues. I raised a concern with both parties regarding the deficiency in the evidence to support the parties competing interim proposals. The parties were advised that the Court intended to rely on the discussion between the legal representatives and the Court with respect to the reason for making interim orders. Reasons were given in short form pursuant to Subsection 69ZL(1) of the Family Law Act 1975 (Cth) (“the Act”).
(Footnote omitted)
Her Honour’s footnote to the first sentence refers to the well-known authorities concerning a judge’s capacity to revise reasons given ex-tempore.
Her Honour’s reference to the discussion between her and the legal representatives representing the reasons for the making of the orders is confusing because there is nothing in the transcript of discussion between her Honour and the parties’ representatives which indicates that what was said would form the basis for the orders.
It is apposite to remember at this point that to give reasons is an obligation of the exercise of the judicial function and reflects judicial accountability (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). That obligation however is owed to the parties and is not discharged at the option of the judge but the duty may be expressly relieved by the parties (see Kyriakos & Kyriakos (2013) FLC 93-528 (“Kyriakos”)).
I was then confused as to both what part of the discussion purports to form the basis for the decision and absent any indication of consent of the parties, how her Honour came to the view that the discussion could substitute for reasons. Further, her Honour’s reference to s 69ZL of the Act that provides for the giving of short form reasons seems to be inconsistent with her reference to the discussions between the parties and her Honour.
If, as her Honour indicated, the discussion with the lawyers during the argument constituted her reasons for making the order, then the transcript of that discussion cannot be subject to revision or alteration as her Honour’s footnote seemed to imply. If her Honour delivered reasons ex tempore, I agree that she was entitled to amend them but not in a way as to change the substance. Certainly the written reasons provided do not appear to represent a discussion between her Honour and the parties’ lawyers.
Regrettably, I am unable to determine what were the reasons delivered by her Honour. However, it is important to note what was said by Forrest J in Kyriakos at [72] which was later endorsed by the Full Court of the Family Court in Quant & Bonde (2018) FLC 93-853 at [19]:
The process of arriving at a discretionary judgment is a single self-contained and indivisible exercise. The provision of reasons, delivered orally or in writing, is merely the articulation of that process for the benefit of the parties and the public administration of justice. An invitation to parties to request further reasons, or a reservation of the right to review and expand upon reasons, after some have already been given simply reveals that the process of arriving at the discretionary judgment has not been adequately disclosed, and the obligation of the judicial officer thus not discharged.
I cannot be confident that her Honour did in fact deliver a “single self-contained and indivisible” judgment (Kyriakos at [72]). However, as it turns out, that issue is unnecessary to unravel as the father has conceded the appeal and, as I have indicted, her Honour’s orders reflect error that satisfies me that the appeal succeeded on an error of law and I will thus make the orders for costs certificates sought.
I will thus make the costs orders sought.
RYAN J
I agree with the reasons given by Ainslie-Wallace J and the orders that are proposed.
ALDRIDGE J
I also agree.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & JJ) delivered on 7 February 2019.
Associate:
Date: 7 February 2019
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