MEAD & MEAD - [2016] FamCAFC 177

FAMILY COURT OF AUSTRALIA

MEAD & MEAD

[2016] FamCAFC 177

FAMILY LAW – APPEAL – CHILDREN – RECOVERY ORDER – Where the mother appeals against interim parenting orders and refusal of recovery order – Where children cared for by the paternal grandmother while mother took short holiday – Where father assumed care of the children – Where judgment reserved – Where interim parenting orders made without hearing either party – Whether there was a denial of procedural fairness – Whether failure to properly engage with the mother’s case for the children to be returned – Risk assessment – Appeal allowed – Orders set aside – Application for interim parenting orders remitted for rehearing – Application for recovery order listed for further hearing before the Full Court – Costs certificates for the appeal granted.

Family Law Act 1975 (Cth): s 67U
Federal Circuit Court of Australia Act 1999 (Cth): s 39(6)
Federal Proceedings (Costs) Act 1981 (Cth): ss 6 and 9

Allesch v Maunz (2000) 203 CLR 172
Ghorbani & Saeed [2013] FamCAFC 167
Stead v State Government Insurance Commission (1986) 161 CLR 141
Tokely & Tokely (2014) FLC 93-601

APPELLANT:

Ms Mead

RESPONDENT:

Mr Mead

FILE NUMBER:

BRC

731

2012

APPEAL NUMBER:

125

2016

DATE DELIVERED:

5 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Hannam JJ

HEARING DATE:

29 August 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 August 2016

LOWER COURT MNC:

[2016] FCCA 2074

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr S. Gardiner

SOLICITOR FOR THE APPELLANT:

LGM Family Law

COUNSEL FOR THE RESPONDENT:

Mr T. Hodgson

SOLICITOR FOR THE RESPONDENT:

Ghobrial Legal

Orders

That the appeal be allowed.
That Orders 1, 3, 4 and 9 of the orders dated 3 August 2016 be set aside.
The appeal in relation to the recovery application be listed for further hearing before the Full Court of the Family Court of Australia in Sydney at 10.00 am on 8 September 2016.
That the applications for interim parenting orders be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Newbrun.
That 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.
That 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 in relation to the appeal.

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 Mead & Mead 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 125 of 2016
File Number: BRC 731 of 2012

Ms Mead

Appellant

And

Mr Mead

Respondent

REASONS FOR JUDGMENT

Ms Mead (“the mother”) sought urgent orders from the Federal Circuit Court of Australia at Parramatta for the recovery of her children, X and Y (“the children”) from the children’s father, Mr Mead (“the father”). Her application was brought pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”). The mother had arranged for the paternal grandmother to care for the children while she had a short holiday. While the mother was abroad, the father took possession of the children and upon her return, he refused to return them.
The mother’s application came before Judge Newbrun on 27 July 2016. Not without some difficulty, counsel for the mother persuaded his Honour to hear the application for a recovery order, following which his Honour reserved his decision.
On 3 August 2016, the application for a recovery order was dismissed and interim orders were made for the parties to have equal shared parental responsibility for the children, the children to live with the father and spend time limited with the mother. The order concerning the children’s time with the mother operated until 14 September 2016, when the proceedings were listed for mention before his Honour. The orders for parental responsibility and for the children to live with the father were not so qualified.
By Notice of Appeal filed on 9 August 2016, the mother appeals against all orders made on 3 August 2016. However, the arguments advanced in support of the appeal reveals that in reality the mother only challenges Orders 1, 2, 3, 4 and 9. The appeal does not raise issues concerning the appointment of an Independent Children’s Lawyer (“ICL”) or the orders which gave effect to that appointment.
Otherwise, as we explained to the mother’s counsel at the commencement of the hearing, the effect of s 39(6) of the Federal Circuit Court of Australia Act 1999 (Cth) is that no appeal lies against the order (Order 2) dismissing the mother’s application for the proceedings to be transferred to the Federal Circuit Court in Brisbane. Of course venue issues may be reconsidered.
The essence of the challenges raised concerning the recovery and parenting orders assert a lack of procedural fairness in making the parenting orders and failure to properly consider the best interests of the children in refusing the application for a recovery order.

The orders dated 3 August 2016

PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1. The mother’s application for a Recovery Order is dismissed.
2.The mother’s application for an order that the proceedings be transferred to the Brisbane Registry of this Court is dismissed.
3.The parties shall have equal shared parental responsibility for [the children].

4. The children shall live with the father.
5.Pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of [the children], shall be independently represented by a lawyer and the Legal Aid Commission of NSW is requested to arrange the appointment of a lawyer to do so.
6.The solicitors for the parties shall forthwith forward to the Legal Aid Commission of NSW notice of these Orders and copies of the documents filed in the proceedings on behalf of their respective clients.
7.Leave is granted to the parties and the Independent Children’s Lawyer to issue more than 5 subpoenas for the production of documents.
8.The proceedings are adjourned for mention to 14 September 2016 at 9:30am.
9.Prior to the above mention date, the children shall spend time with the mother in Sydney, in accordance with the agreement of the parties, or failing agreement, they shall spend time with the mother in Sydney during the day time in the presence of an agreed adult, or failing agreement, a member of the father’s extended family, such as [the paternal grandmother]. Such time to be spent by the children with the mother shall commence, subject to the mother’s availability, on Saturday or Sunday 6 or 7 August 2016, for a period of at least 3 hours, and then fortnightly thereafter up to the next mention date of these proceedings.
10.Liberty is granted to the parties and the Independent Children’s Lawyer to relist the matter on 7 days’ notice in relation to any issue as to the implementation of these orders.

Background to the making of the orders of 3 August 2016

It is not necessary to set out the facts in detail but some background information will aid in understanding the appeal.
The father was born in 1985 and at the time of hearing was 31 years of age.
The mother was born in 1987 and at the time of hearing was 29 years of age.
The mother has a 12 year old son from an earlier relationship. That child lived with the parties for at least the first two years of their cohabitation and at some stage, by agreement between the mother and the boy’s father, he went to live with his father. The parties gave different accounts of why this happened.
In late 2009, the parties commenced cohabitation at Suburb T in the western suburbs of Sydney. They moved to Suburb P in Queensland in 2010 and within a relatively short period, they both had full time work.
The child X was born on in 2010. The mother had some time off work and, when X was about six weeks of age she went into day care.
The parties separated in late 2011, following which the father returned to Sydney where his mother and other members of his family reside. The mother and X remained in Brisbane where the mother’s mother and her large extended family reside.
The father, who had been in full time employment, then commenced fly-in and fly-out work in Papua New Guinea. By agreement, he spent time with X; albeit X remained in the mother’s primary care.
The Family Court at Brisbane made final parenting orders by consent on 27 July 2012. The orders provided for the parties to have equal shared parental responsibility for X, for X to live with the mother and spend time with the father. Presumably his Honour intended to suspend at least some of those orders but forgot to do so.
The parties reconciled in the latter part of 2012, and the father returned to Brisbane to live with the mother and X. He continued to work in Papua New Guinea.
Y was born in 2013. He also attended day care.
In mid 2014 the parties married.
In September 2014 the father commenced a fly-in fly-out position, working in Western Australia. This often involved working away for periods of three to four weeks at a time. It needs to be understood that even when the father was at home during his “fly-in” periods the children attended day care and, in relation to X, also school.
In late 2014 the parties purchased a home at Suburb O in Queensland. The parties and children lived in this property until separation.
The father ceased working in Western Australia in February 2016. He immediately obtained full time work in Brisbane and, it would seem that until May 2016 he was more significantly involved in the children’s care than had previously been possible.
The parties separated on 15 March 2016, albeit they continued to live in the family home. The family home was listed for sale and, having sold, settlement was due to take place in July 2016.
Prior to separation the parties purchased tickets for them to holiday in Country E in Southeast Asia in May 2016. Following separation, they agreed the mother would take the holiday and thus, the father cancelled his ticket. Arrangements were made between the parties and the father’s mother for her to care for the children while the mother was abroad. Other than the fact of the father’s full time employment, there is no explanation from him about why he could not care for the children.
In any event, the father paid for the mother and children’s return tickets to Sydney, from where she would fly out and where the paternal grandmother lived. As planned, the mother delivered the children to the paternal grandmother on 13 May 2016. The father remained in Brisbane. With the children in his mother’s care, and the mother abroad, the father left Brisbane and moved in with his mother. Once the mother was in Country E, the father told her he wanted Y to live with him in Sydney and that X could live with her in Brisbane. Notwithstanding the mother’s request that discussion of these issues await her return, the father continued to press her to agree, which eventually she did. This was on the basis that no changes would be put in place until well after the parties and children returned to Brisbane. Discussions about the children’s future care continued and two hours before the mother was due to board her return flight, the father told her neither child would be returned. True to his word, the children were not returned and the mother’s requests to spend time with them were rejected.
It is appropriate to observe at this stage, that the father gave wholly false evidence about his lack of knowledge of the mother’s holiday to Country E, that he was unaware the children would be placed with the paternal grandmother, and the mother had “taken off”. The uncontroverted facts establish the father was fully aware of the mother’s trip to Country E, the arrangements for the children to be with his mother for that period, and for the children to be returned to the mother at the end of her trip.
The father’s misleading evidence lies at the heart of his application for final and interim parenting orders which was filed in the Federal Circuit Court at Parramatta on 27 May 2016. In summary, by way of interim orders, the father proposed that the children live with him, that he have sole parental responsibility, and the children spend time with the mother as agreed, and for half the New South Wales school holidays. Other than for an injunction which would restrain the parties from denigrating the other in the presence of the children, he did not propose any conditions on the mother’s care of the children.
The mother filed her response to the father’s application on 27 June 2016. By way of final order, she proposed that the children live with her and spend time with their father on weekends and for one half of school holidays. Depending on whether he remained in Sydney or returned to Brisbane, different arrangements would operate during school term. However, by way of interim order, she proposed the children’s time with him be supervised at a contact centre in Queensland, it would seem to deny him the opportunity to again remove the children. She also sought a recovery order.

The children’s circumstances as at 13 May 2016

It is common ground that the children had lived in Brisbane their entire lives. They were well-settled in Suburb O in Queensland.
The child X attended F State School, where she was settled and happy. She attended swimming lessons and on Saturdays, had horse riding lessons. Y was well-settled in day care in a centre in Suburb O, where he had friends and was fond of his teachers. The parties’ friendship circle was in Brisbane, where the mother has extended family.
The mother had well-established full time employment and worked between 7.30 am and 3.30 pm. The father does not dispute the mother’s evidence that if the children were sick and when X required surgery, it was the mother who took time from work to care for them. He does not dispute the mother’s evidence that he never took X to school and rarely collected her from school.
The father had full time employment in his chosen field.

The children’s circumstances at the date of hearing

At the date of hearing the children were living with the father and his grandparents at Suburb K in the western suburbs of Sydney. The father worked full time, from 6.00 am until 4.00 pm, five days per week. The father’s mother collected the children in the morning and took X to R Public School and, three days a week, took Y to day care. She cared for Y on the other two days. The father’s sister in law picked the children up from school and day care and he collected them up on his way home from work.
X was seeing a psychologist and attending gymnastics after school on Wednesday. Y was to be enrolled in a soccer program on Sunday mornings.
Through no fault of the mother’s she and the children did not see each other between 13 May 2016 and 27 July 2016.

The interim parenting orders

As we said earlier, the primary judge took considerable persuasion that he should entertain the mother’s application for a recovery order. It is difficult to understand why that would be so (see Ghorbani & Saeed [2013] FamCAFC 167; Tokely & Tokely (2014) FLC 93-601). In any event, his Honour eventually agreed to conduct the “recovery hearing” but at no stage was there any indication he would also determine the applications for interim orders. Yet, having reserved his decision on the recovery application he did so.
Reference need only be made to the judgment of Kirby J in Allesch v Maunz (2000) 203 CLR 172 where his Honour referred to the importance of procedural fairness to establish the error:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”.
(Footnotes omitted)
See also Stead v State Government Insurance Commission (1986) 161 CLR 141.
While conceding the mother’s complaints about the process, counsel for the father did not concede the appeal. There can be no doubt Orders 3, 4, and 9 were made in circumstances where the mother was denied the opportunity to be heard and result from a procedurally unfair hearing. The process was so fundamentally unfair that the orders must be set aside and those questions determined by a judge other than the primary judge.

Failure to make the recovery order

Although at [1] of the trial reasons, the primary judge demonstrated he understood he was asked to determine a dispute in relation to a recovery order, what follows, are reasons for judgment in relation to the interim parenting orders. In this respect his Honour set out the principles by which applications for interim parenting orders should be determined but said nothing about the principles which apply to an application for a recovery order. Nonetheless it is possible to discern why his Honour decided not to grant the recovery application.
Although the primary judge accepted the mother had been the primary caregiver of the children, he was satisfied “there is a need to protect the children from being subjected to abuse and/or family violence, and there is an unacceptable risk of the children being exposed to abuse and/or family violence, should they be returned to the mother’s care in Queensland.” ([136]) The factors which led to that conclusion are identified at [136(a)]-[136(d)]. In those paragraphs the primary judge recounted evidence adduced by the father of various text messages in which the mother said she had hit one or other of the children (and the mother’s older son), threatened to hit them and acknowledged her bad temper. Similarly, in those text messages, she informed the father she had thrown a toaster and a chair in the presence of the children. Reference was also made to hearsay statements which the father attributed to the mother’s mother and allegations the mother threatened to harm herself.
Notwithstanding the mother’s clear evidence that if the recovery order issued, she and the children would live with her mother until she could afford her own rental accommodation, his Honour proceeded on the basis that he could not rely on this evidence, albeit he said no finding was made in relation to it.
We agree with counsel for the mother that the primary judge failed to engage with the essence of the mother’s case for the children to be urgently returned to her care. The point being, that she was the parent with whom the children had lived all their lives, she proposed returning them to the area in which they had lived (10-15 minutes away), for the children to return to school and day care they had always attended and would live, at least in the short term, with the children’s maternal grandmother. Her proposal provided on going stability and a safety net for the risk issues raised by the father. It would have been easy to either take the mother’s undertaking or to craft orders which bound her to the arrangements outlined in her evidence and to thereby enable the children to continue in the care of their primary carer.

As to the assessment of risk, although his Honour “noted” the details of the father’s allegations, he appears to have overlooked their antiquity. Although they were undoubtedly relevant and required consideration, this needed to include an assessment of whether those matters posed a sufficiently serious and current risk to the children that their lives should be turned upside down, which his Honour knew would be the effect of refusing the recovery order.
In a similar vein, before his Honour determined that the children would be exposed to an unacceptable risk if they were to return to the mother in the circumstances she proposed, it was necessary to properly take into account that notwithstanding the matters upon which the father relied, he entered into consent orders in the mother’s favour, he left her to be overwhelmingly responsible for the children’s day to day care and, in the lead up to the hearing, was willing to enter into orders that if the mother moved to Sydney, they could share the children’s time week about. These were weighty considerations which strongly suggested that the father did not consider the children to be at serious or current risk in the mother’s care.
The challenge to his Honour’s determination concerning the recovery order is made out.

Conclusion and costs

We conclude that the appeal should be allowed and his Honour’s orders should be set aside.
At the conclusion of the hearing, we invited submission about whether, in the event error was established, we should re-exercise or remit the proceedings for rehearing. On our review of the submissions, we do not consider they appropriately distinguished between the considerations that arise in relation to the recovery order compared to the interim parenting applications. Although we remain of the view that the interim parenting proceedings should be considered at a rehearing, the obvious urgency of the recovery application suggests that it would be in the best interests of the children for us to deal with it. In this regard we note the evidence is current and observe that before us the father repeated his offer for the children’s time to be shared equally. We will thus list the appeal against the refusal to make a recovery order for further hearing later this week.
It was common ground that in the event the appeal was allowed, this was not a matter in which an order for costs would be made, and it would be appropriate for the parties to receive certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and any rehearing. We agree certificates for the appeal are justified. We will reserve our decision in relation to certificates for any rehearing pending a determination as to whether we will re-exercise or remit.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge and Hannam JJ) delivered on 5 September 2016.

Associate:

Date: 5 September 2016