McPherson and McPherson (No 2)
[2017] FamCAFC 195
•14 September 2017
FAMILY COURT OF AUSTRALIA
| MCPHERSON & MCPHERSON (NO. 2) | [2017] FamCAFC 195 |
| FAMILY LAW – APPEAL – PARENTING – Where there is an incongruence between the primary judge’s reasons for judgment and the orders made – Appeal allowed by consent – Costs certificates granted. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Mr McPherson |
| RESPONDENT: | Ms McPherson |
| FILE NUMBER: | SYC | 4540 | of | 2016 |
| APPEAL NUMBER: | EA | 22 | of | 2017 |
| DATE DELIVERED: | 14 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 14 September 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 February 2017 |
| LOWER COURT MNC: | [2017] FCCA 254 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPELLANT: | Abrams Turner Whelan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | Horton Rhodes Lawyers |
IT IS ORDERED:
The appellant have leave to file in court and rely upon a Further Amended Notice of Appeal dated 1 September 2017.
The Application in an Appeal filed by the appellant on 1 September 2017 is otherwise dismissed.
BY CONSENT IT IS ORDERED:
The appeal be allowed.
The orders made by Chief Judge Pascoe on 22 February 2017 be set aside.
The matter be remitted for rehearing of the interim parenting issues to a judge or a senior registrar of the Family Court of Australia.
Pending the remitted rehearing of the matter:
(1)The parties shall have equal shared responsibility of their child, X, born 2013.
(2)X shall live with the Respondent Mother.
(3)X will spend unsupervised time with the Applicant Father from 9:00am to 12:00 noon each Wednesday.
(4)The time identified in Order (3) shall take place without the presence of Ms B.
(5)For the purposes of facilitating X spending time with the Father, changeover shall take place at the Father’s house or at a location agreed between the parties in writing.
(6)The Father is permitted to communicate with X by telephone each Monday between 6:00pm and 6:30pm, with the Father to facilitate the call to the Mother’s mobile telephone.
(7)Each party be restrained from denigrating the other party, and/or members of the other party’s family, and/or household in the presence of and/or in the hearing of the child. Further, it is the responsibility of each party to remove X from the presence and/or hearing of any third party who does so.
(8)Each party shall supervise the child while the child is in that party’s care, unless an emergency occurs or the child is in day care or school.
(9)Each party be restrained from leaving the child unsupervised by a responsible adult.
(10)Each party keep the other party informed of their current telephone number. In the case of a party’s telephone number changing, the party whose number has changed is to inform the other party of the change and supply the new telephone number to that party within 48 hours of the change.
(11)Each party inform the other party as soon as practicable of:
(a)Any illness or injury that may be suffered by X whilst she is in their care, respectively; and
(b)The name and contact details of any medical practitioner or healthcare provider upon whom X may attend from time to time.
(12)Each party do all acts and things necessary to authorise any treating medical practitioner of X to discuss his heath and treatment with the other party.
(13)Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are attached to these Orders.
There be no order as to costs.
IT IS FURTHER ORDERED:
The Court grants to the appellant father a costs certificate pursuant to 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 him in relation to the appeal.
The Court grants to the respondent mother 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 her in relation to the appeal.
The Court grants to each of the parties 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 of the parties in respect of the costs incurred by them in relation to the new trial ordered.
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 McPherson & McPherson 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 22 of 2017
File Number: SYC 4540 of 2016
| Mr McPherson |
Appellant
And
| Ms McPherson |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is the hearing of an appeal against orders made by Chief Judge Pascoe on 22 February 2017. The orders concern the parental responsibility for X born in 2013. His Honour’s orders provide that X shall live with the respondent mother and spend unsupervised time with the appellant father from 9 am to 12 noon each Wednesday.
In his reasons, his Honour said:
52.Based on the limited evidence presented, I find that [X] should spend regular time with the Father. Overnight time is, in my view, less important for a child of [X]’s age than regular quality time. These Orders provide for [X] to spend unsupervised time with the Father for three hours twice a week.
Thus there is an incongruence between the reasons, which provide for two periods of three hours a week, and the orders, which provide for only one period of three hours per week.
Very properly, counsel for the respondent mother concedes that that was an error on the primary judge’s part, which it clearly is.
The difficulty that attends this matter is that there has been such a change in the circumstances of the parties, including the preparation of a Child Inclusive Conference memorandum, that a simple correction of the order by providing for another period of three hours per week is not an option. Accordingly, the matter has to be remitted for a rehearing. However, in those circumstances, and given that the error was one on the part of the primary judge, it is appropriate that there be no order for costs.
I am also satisfied that in those circumstances the parties should be granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and any rehearing.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 14 September 2017.
Legal associate:
Date: 13 November 2017
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