Mazurka & Mazurka

Case [2011] FamCAFC 68

FAMILY COURT OF AUSTRALIA

MAZURKA & MAZURKA [2011] FamCAFC 68

FAMILY LAW - APPEAL – CHILDREN – Appeal from interim parenting orders – Where orders were made by a Family Law Magistrate increasing the father’s time with the child – Whether the Magistrate erred in failing to apply the presumption in s 61DA – Application of the presumption in interim proceedings discussed – Whether the Magistrate erred in not providing sufficient reasons – The Magistrate failed to provide adequate reasons for increasing the father’s time with the child - Appeal allowed – No order for costs – Costs certificates granted to both parties

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
AMS v AIF (1999) 199 CLR 160
Bennett & Bennett (1991) FLC 92‑191
CDJ v VAJ (1998) 197 CLR 172
Chappell & Chappell (2008) FLC 93-382
Goode and Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Marvel & Marvel (2010) 43 Fam LR 348
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
Mulvany & Lane (2009) FLC 93-404
Salvati & Donato [2010] FamCAFC 263
APPELLANT: Ms Mazurka
RESPONDENT: Mr Mazurka
FILE NUMBER: PTW 652 of 2008
APPEAL NUMBER: WA 29 of 2009
DATE DELIVERED:

5 April 2011

1 July 2010 (date of orders)
PLACE DELIVERED: Perth
PLACE HEARD: Perth
JUDGMENT OF: Thackray, Strickland & Crisford JJ
HEARING DATE: 1 July 2010
LOWER COURT JURISDICTION: Magistrates Court of Western Australia
LOWER COURT JUDGMENT DATE: 17 December 2009

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms T A Farmer
SOLICITORS FOR THE APPELLANT Bannerman Solicitors
COUNSEL FOR THE RESPONDENT: Mr A R Godecke
SOLICITORS FOR THE RESPONDENT Griffiths & Godecke

Orders

  1. The appellant’s oral application to introduce further evidence be dismissed.

  2. The appeal be allowed.

  3. Paragraphs 2 and 3 of the orders of the Magistrates Court of Western Australia made on 17 December 2009 are discharged.

  4. The proceedings be remitted to the Magistrates Court of Western Australia with a request for the matter to be listed for trial on an expedited basis before a Judicial Officer other than Magistrate Moroni.

  5. There be no order for costs in relation to the appeal.

  6. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (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 her in relation to the appeal.

  7. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 him…

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AGLC
Mazurka & Mazurka [2011] FamCAFC 68
Case
[2011] FamCAFC 68
Decision Date

CaseChat Overview and Summary

The appeal in this matter concerns interim parenting orders made by a Family Law Magistrate in relation to a child, with the father seeking increased time with the child. The appeal was heard by the Family Court of Australia. The central issue was whether the Magistrate erred in failing to apply the presumption of equal shared parental responsibility in section 61DA of the Family Law Act 1975 (Cth) and whether the Magistrate provided sufficient reasons for increasing the father’s time with the child. The court also considered whether the presumption should be applied in interim proceedings, given the absence of arguments from counsel but the presence of the issue in the parties' applications.

The court found that the Magistrate erred by not applying the presumption of equal shared parental responsibility as required by section 61DA(3) of the Family Law Act. The court emphasised that the presumption should apply unless it is inappropriate in the circumstances, and that this should be considered even in the absence of arguments from counsel. The court further found that the Magistrate did not provide adequate reasons for increasing the father’s time with the child, which was a critical error given the importance of the child’s best interests in such decisions. The court noted that the Magistrate did not follow the guidelines set out by the Full Court in Goode’s case, which should have been applied to ensure the presumption was considered.

The appeal was allowed, and the orders made by the Magistrate on 17 December 2009 were discharged. The case was remitted to the Magistrates Court of Western Australia to be listed for trial before a different Judicial Officer. No order for costs was made in relation to the appeal, but costs certificates were granted to both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). This allows the Attorney-General to authorise payment of costs incurred by the appellant and the respondent in relation to the appeal.

Orders

Orders of the court

1.

The appellant’s oral application to introduce further evidence be dismissed.

2.

The appeal be allowed.

3.

Paragraphs 2 and 3 of the orders of the Magistrates Court of Western Australia made on 17 December 2009 are discharged.

4.

The proceedings be remitted to the Magistrates Court of Western Australia with a request for the matter to be listed for trial on an expedited basis before a Judicial Officer other than Magistrate Moroni.

5.

There be no order for costs in relation to the appeal.

6.

The Court grants to the appellant 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 in respect of the costs incurred by her in relation to the appeal.

7.

The Court grants to the respondent 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 in respect of the costs incurred by him in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note here that by the time of the hearing on 17 December 2009 the father was seeking an equal sharing of time with the child. Whilst that in itself is of little relevance to the argument now before me, it is to be borne in mind that the presumption of equal shared parental responsibility must be applied no matter what each party is seeking in terms of any time to be spent with a child. In revisiting the issue of parental responsibility on 17 December 2009 the Magistrate recorded:The Court when delivering its judgment on 13 March 2009 did not follow the basic architecture as contemplated by the Full Court in Goode’s case. This is a case where family violence has been alleged against one of the parties. No findings have yet been made in that direction and if the case proceeds to trial that will have to be one of the issues for exploration at that time.In the result the Court has not made any order at all in relation to parental responsibility and it did not in its reasons delivered on 13 March 2009 analyse the issue of whether or not the presumption should or should not be applied, or whether or not it consider that it would be in the child’s best interest for the presumption to apply.Obviously the making of an order for equal shared parental responsibilities has consequences in terms of the Court then needing to follow the pathway set out in section 65DAA of the Family Law Act. The Court’s focus on 13 March 2009 was really upon establishing a platform for the building of an appropriate relationship between the subject child and the applicant. (emphasis added) It matters not whether the orders sought are on an interim or final basis, the approach mandated in the legislation is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub‑sections (2), (3) and (4). For convenience, I will repeat here the provision of s 61DA(3):When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. Although there are circumstances where it may be inappropriate to apply the presumption and s 61DA(3) will come into play, that decision is “not to be exercised in a broad exclusionary manner” (see Goode (supra) at [78]). An analysis of the Magistrate’s judgments indicates the apparent reason he did not apply the presumption was that, in his view, there was no mandatory requirement that it be applied. True it is the matter was not argued by counsel at either interim hearing, although the issue was raised by both parties in their interim applications and by the father in his Minute of Orders Sought filed in advance of the December hearing. Merely because the parties chose not to argue parental responsibility does not relieve the Court of its obligation to address it in a meaningful way. Depending on the circumstances of a particular case it may, of course, be addressed in a circumscribed way.

Ratio Decidendi

Legal Principle Established

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