Miley & Miley
[2021] FedCFamC1A 62
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Miley & Miley [2021] FedCFamC1A 62
Appeal from: Miley & Miley [2021] FCWAM 52 Appeal number(s): WEA 18 of 2021 File number(s): PTW 2401 of 2018 Judgment of: STRICKLAND J Date of judgment: 12 November 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the appellant opposes the return of the child from Victoria to Western Australia – Where the appellant asserts that before his Honour made the order he did he did not make a finding that a substantial and significant time arrangement was reasonably practicable as he was obliged to do – Where his Honour did address one or two of the relevant issues when considering best interests, but it was not open to his Honour to conflate the issues of “best interests” and “reasonable practicability” – Where there is merit in Ground 1 – Where there is no merit in Grounds 2 and 3 – The appeal is allowed in part and paragraphs 5, 8, 10, 11, 12 and 13 of the Order made on 2 July 2021 be set aside – The interim parenting proceedings be remitted for a partial rehearing by a family law Magistrate other than the presiding Magistrate limited to the question of whether the child spending substantial and significant time with each of the parents is reasonably practicable.
COSTS – Where the appeal is being allowed on a question of law – No costs orders sought – Costs Certificates to issue for the appeal and the limited rehearing.
Legislation: Family Law Act 1975 (Cth) s 65DAA(2), s 65DAA(5)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(1)(c)
Federal Proceedings (Costs) Act 1981 (Cth) s 6, s 8, s 9
Cases cited: Agambar & Agambar [2021] FedCFamC1A 1
Barone & Barone [2012] FamCAFC 108
Collu & Rinaldo [2010] FamCAFC 53
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Hamish & Brighton [2014] FamCAFC 242
Heaton & Heaton (2012) 48 Fam LR 349; [2012] FamCAFC 139
Kopel & Ferro (2016) FLC 93-741; [2016] FamCAFC 202
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Pateman v Higgin (1957) 97 CLR 521; [1957] HCA 62
Ruscoe & Walker (2002) FLC 93-093; 28 Fam LR 566
Scott & Scott (1994) FLC 92-457; [1994] FamCA 12
Wainder & Wainder [2011] FamCAFC 155
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 67 Date of last submission/s: 10 November 2021 Dates of hearing: 13 October 2021
10 November 2021Place: Western Australia
South AustraliaCounsel for the First Appellant: Mr Hedges SC Solicitor for the First Appellant: Carr & Co Counsel for the First Respondent: Ms DeMaio Solicitor for the First Respondent: Bannerman Solicitors ORDERS
WEA 18 of 2021
PTW 2401 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MILEY
Appellant
AND: MR MILEY
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
12 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.Paragraphs 5, 8, 10, 11, 12 and 13 of the Order made on 2 July 2021 be set aside.
3.The interim parenting proceedings be remitted for a partial rehearing by a family law Magistrate other than the presiding Magistrate limited to the question of whether the child A spending substantial and significant time with each of the parties is reasonably practicable, and subject to the outcome of that rehearing, the making of appropriate orders taking into account the unchallenged findings of the presiding Magistrate.
4.The Court grants to the appellant wife 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 wife in respect of the costs incurred by her in relation to the appeal.
5.The Court grants to the respondent husband 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 husband in respect of the costs incurred by him in relation to the appeal.
6.The Court grants to the parties costs certificates pursuant to the provisions of s 8 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 parties in respect of the costs incurred by them in relation to the rehearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND J
By Amended Notice of Appeal filed on 8 September 2021, Ms Miley (“the wife”) appeals from interim parenting orders made by a family law Magistrate of the Magistrates Court of Western Australia on 25 June 2021. Mr Miley (“the husband”) opposes the appeal.
The interim parenting orders principally resolved whether A born in 2015 (“the child”), would be permitted to continue to reside in Victoria as the wife sought, or be required to return to Western Australia as the husband sought.
The Magistrate found in the husband’s favour, and the orders provide for the wife to return the child to Western Australia by 24 December 2021, for the parties to have equal shared parental responsibility for the child, for the child to live with the wife and spend time with the husband in Victoria (where the child is currently residing with the wife), with that time to increase following the child’s return to Western Australia.
The wife effectively seeks that the orders providing for the child’s return to Western Australia, and the orders providing for the child to spend time with the husband thereafter, be set aside, and the matter be remitted to another Magistrate for rehearing.
BACKGROUND
The husband is currently aged 42 years, and the wife is currently aged 36 years. The parties commenced a relationship in early 2012, and married in 2013. The child, who was born in 2015, is currently aged 6 years.
The parties lived initially in South Australia before moving to Western Australia.
The parties separated on 23 May 2017, and thereafter the child lived with the wife in Western Australia. The husband spent very little time with the child post-separation owing to the parties’ acrimonious relationship. The wife’s evidence in the court below was that the husband had spent less than 100 hours with the child, with no overnight time.
The husband has re-partnered and he and his partner have a young son. The husband and his partner commenced a relationship in October 2017, and began cohabiting in August 2018.
In September 2019 the husband, who is a public servant, moved to G to undertake country service as part of the conditions of his employment.
In November 2020, the husband purchased a property in Western Australia intending to relocate back to Western Australia in around September 2021, after his two years of country service.
In August 2020 the husband told the wife of his intention to return to Western Australia to live and work.
The wife is a senior manager, and prior to relocating to Victoria she had been unemployed for the majority of 2020. Her evidence is that her financial position was deteriorating in Western Australia, but has since greatly improved in Victoria, she having found employment there.
On 7 January 2021, the wife relocated with the child to her sister’s residence in Victoria. No prior notice was provided to the husband, and it was not until 22 January 2021 that the wife advised the husband that she had relocated with the child to Victoria.
On 25 January 2021, the husband filed an Initiating Application in the Family Court of Western Australia seeking interim and final parenting orders. The wife’s Response was filed on 5 February 2021. The primary issue was the husband’s application seeking the child be returned to Western Australia, and the wife’s opposing application seeking the child be permitted to remain in Victoria.
In March 2021, the wife commenced employment in Victoria as a senior manager and now earns a significant wage.
On 25 June 2021, the primary judge heard the parties’ applications for interim parenting orders. Both were represented by counsel, and each provided a number of affidavits in support of their respective applications. The parties agreed that there should be an order for equal shared parental responsibility, and the child should live with the wife regardless. The evidence of the wife and her sister was that they would both return to Western Australia if the child was ordered to return.
The husband primarily sought that the child be returned to Western Australia immediately, that he spend time with the husband on each alternate weekend from 3:00pm Friday until 3:00pm Sunday until November 2021, and from December 2021 on each alternate weekend from 3:00pm Friday to 9:00am the following Monday, and on each intervening Wednesday from 3:00pm to 9:00am the following Thursday, and on special occasions.
The wife’s primary position was that the child be permitted to remain in Victoria, with the husband to spend time with the child throughout the year. In the event the child was ordered to be returned to Western Australia, the wife sought that that occur no earlier than 24 December 2021 to enable the child to complete the 2021 school year in Victoria, that the child spend time with the husband during the July and September 2021 school holidays for five consecutive nights on each occasion, and from the commencement of term one in 2022 (which would occur in Western Australia) on each alternate weekend during the school term from 3:00pm Friday until 3:00pm Sunday, and for five consecutive nights in each school holiday period, and on special occasions.
The Magistrate made orders substantially in the terms proposed by the wife in the event the child was ordered to be returned to Western Australia.
THE APPEAL
Ground 1 – His Honour made an error of law by failing to follow the legislative pathway mandated by section 65DAA(2) of [the Act] in that, having considered whether the child spending substantial and significant time with each of the parents would be in the best interests of the child, he failed to determine as a question of fact that it was reasonably practicable that substantial and significant time be spent with each parent, which was a statutory condition which had to be fulfilled before there was power to make an order of that kind.
Section 65DAA(2) of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides as follows:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
…
(2) …, if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
The argument presented by the wife relies on the High Court decision of MRR v GR (2010) 240 CLR 461. There, the High Court said this:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
…
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub‑section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
…
That decision of course was concerned with equal time, but as can be seen, the same considerations apply when substantial and significant time is being considered.
In simple terms, it is said that before his Honour could make the order that he did, his Honour was obliged to make an affirmative finding that a substantial and significant time arrangement in Western Australia was reasonably practicable, and his Honour failed to make that finding.
Certainly his Honour was alert to the issues raised by the wife as to the impact of an order for substantial and significant time with the child returning to Western Australia. For example, in her written submissions filed on 26 May 2021, and which submissions were before his Honour, the wife said this:
131.The burden placed on the [wife] by refusing her permission to relocate and effectively requiring her to live in [Western Australia], to be available to the [husband] for his contact with [the child] would be significant. The [wife] submits that the ill-balance of inconvenience that this arrangement would impose favours refusing it. As the [wife’s] attempts to get employment in [Western Australia] have shown, if she is ordered to return, she will be denied the pursuit of her professional aspirations in [Victoria] that would, by inference, be available to her were she to remain.
132.If [the child] is ordered to return to [Western Australia], and the [wife] with him it will confine her, effectively, to living in a place and in circumstances for the convenience of the [husband], who has not, for his part, offered to relocate his home and work to [Victoria] but expects his life to go on uninterrupted. Effectively, this would impose on the [wife] not only the primary responsibilities of providing residence and most of the obligation of care for [the child], but also serious economic, personal and emotional burdens.
(Footnotes omitted)
Those submissions were based on matters deposed to in the wife’s affidavit filed on 18 May 2021 as to her previous difficulties in finding suitable employment in Western Australia, the termination of her employment in [Victoria] if the child was ordered to return to [Western Australia], the need to find suitable accommodation in [Western Australia], the need to break the lease of her accommodation in [Victoria], and her financial circumstances generally. I pause to note that there was no question that if the child was ordered to return to [Western Australia], then the wife would return with him, as well as the wife’s sister.
His Honour adverted to some of these issues in his overview of the case at [6] as follows:
[The wife] would like to continue to live in [Victoria] with [the child] and [her sister]. She has secured well paid employment in [Victoria], which affords her flexibility to care for [the child]. She maintains she was unable to secure a similar position in [Western Australia]. In addition, she asserts she has had significant support from [her sister]. [The wife] is willing to foster [the child’s] relationship with [the husband, his partner and their child] including permitting [the child] to travel to [Western Australia] as well as [South Australia], where [the husband’s] parents live.
Further, his Honour included the affidavit of the wife in the list of documents he took into account (at [9]).
However, nowhere in his Honour’s reasons is there a specific consideration of whether the child spending substantial and significant time with each of the parties in Western Australia, is reasonably practicable.
There is no doubt that his Honour considered that the child spending substantial and significant time with each of the parties in Western Australia would be in the best interests of the child, and that finding is not challenged in this appeal, but that is only one of two questions that needs to be asked, and without affirmative answers to both, as the High Court said in MRR, a court is not able to consider making the order.
In various paragraphs of his Honour’s reasons, his Honour did consider and make findings that would be necessary if he was considering reasonable practicability, but it is not apparent that those findings were made in the context of a consideration of that issue.
For example, at [78]–[79] his Honour referred to the availability of speech therapy for the child in Western Australia, but that was in that part of the reasons where his Honour was addressing the question of best interests.
Then, in his conclusion, where his Honour provides his reasons for being satisfied that it is in the best interests of the child to live with the wife in Western Australia, his Honour said this at [97.8]:
Whilst [the child] would have to readjust with a return to [Western Australia], he would be returning to a city that is familiar to him and be surrounded by people who love him and with whom he has an existing relationship. Just as [the wife] was able to assist [the child] with his relocation to [Victoria], I am satisfied she has the necessary skills to help [the child] adapt to life back in [Western Australia].
Further, in [98] his Honour determined to delay the relocation until the conclusion of the 2021 school year in Victoria, and no later than 24 December 2021, to primarily enable the child to finish his school year, and to allow the wife to “tidy up loose ends”.
And finally, in [99]–[100] his Honour refers to the proposals of the parties to provide financial assistance to the other depending on where the child is living, and given that would be in Western Australia, his Honour took up the proposal of the husband to assist the wife with any break-lease fee, and her rental in Western Australia.
It is submitted by the husband that the legislation does not require his Honour “to apply a separate heading in the judgment that says ‘reasonably practicable’ when considering a form of orders for substantial and significant time” (paragraph 7 of the husband’s written submissions filed on 8 October 2021).
And in that context, it is further submitted that “[i]t can be readily inferred from reading the judgment as a whole that His Honour considered the reasonably practicable aspect of the order in finding that substantial and significant time was the appropriate order in this case, and then ordering the same” (paragraph 8 of the husband’s written submissions filed on 8 October 2021).
It is correct that there does not need to be a separate section of the judgment addressing reasonable practicability, but the reasons for judgment need to reveal, expressly or even impliedly, that that question has been considered via reference to the matters identified in s 65DAA(5) of the Act as a separate question to the issue of best interests, and an affirmative answer given (for example see Wainder & Wainder [2011] FamCAFC 155 at [28]–[32], Barone & Barone [2012] FamCAFC 108 at [44]–[45], and Collu & Rinaldo [2010] FamCAFC 53 at [375]).
However, that is not the case here. As identified, his Honour did address one or two of the relevant issues when considering best interests, but it was not open to his Honour to conflate the issues of “best interests” and “reasonable practicability” (see Heaton & Heaton (2012) 48 Fam LR 349 at [37]–[38] and Hamish & Brighton [2014] FamCAFC 242 at [38]).
Thus, his Honour has erred, and there is merit in this ground of appeal.
Ground 2 – In making the finding: “I am not satisfied of her bona fides in relocating to [Victoria]” His Honour made an error of law in that he failed to discuss or explain his findings.
Particulars
There was no evidence to contradict the wife’s assertions that:
(a)the move was brought forward by the growing uncertainty of travel restrictions and the consideration of timing for the school year;
(b)she had no one to depend on to help her with [the child] like she could with her sister, … when she was in [Western Australia];
(c)she had no job and her attempts to obtain one over an extended period were unsuccessful;
(d)a factor in relocating to [Victoria] was employment and education opportunities;
(e)a reason to relocate to [Victoria] was that she could not afford to return to [Western Australia];
(f)a reason to relocate to [Victoria] was that her father had sold his home and was living with his sister;
in failing to discuss and explain the process by which His Honour impliedly rejected the assertions in particulars (a) – (f), His Honour failed to give adequate reasons thereby failing to accord the wife procedural fairness.
This ground is a confusing and confused ground of appeal.
Ultimately it appears to assert a lack of reasons in making the finding as to the wife’s bona fides. A failure to give adequate reasons cannot be a failure to accord procedural fairness.
However, there is no merit in the claim of inadequate reasons.
His Honour had before him the affidavit material and the written submissions in which the assertions contained in (a)–(f) above, appear.
His Honour though was neither obliged to accept those assertions, nor to deal with each of them in his reasons for judgment (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, at 463-464, DL v The Queen (2018) 266 CLR 1 at [130]–[131], Fox v Percy (2003) 214 CLR 118 at 132).
His Honour set out his reasons for not being satisfied of the wife’s bona fides at [97.6] as follows:
Whilst [the wife] need not show compelling reasons for the proposed relocation, I am not satisfied of her bona-fides in relocating to [Victoria], for the following reasons:
(a)I have already expressed my concerns about the timing of [the wife’s] relocation, her failure to notify and consult [the husband] prior to her relocation and her failure to clarify [the husband’s] intentions regarding his return to [Western Australia].
(b)[The wife] has given different reasons for her failure to inform [the husband] of her relocation.
i.In an email from [the wife] to [the husband] sent 22 January, 2021 (and attached to [the husband’s] affidavit filed 3 May, 2021) [the wife] states the final decision to move was fairly sudden brought forward by the growing uncertainty of travel restrictions in 2020 and the consideration of timing of the school year. She states that whilst she would have preferred to have discussed the matter with [the husband] beforehand, given the deteriorated relationship and his history of lashing out when upset, questionable behaviour and willingness to operate beyond his [public servant] authority, she reached the conclusion this was not in either [the child’s] or her best or safest interests.
ii.In her Case Information Affidavit, [the wife] states she relocated to [Victoria] as, amongst other things, she formed the view after [her sister] relocated to [Victoria] there was no real support for [the child] and her in [Western Australia]. She said she missed [her sister] terribly and had no one to depend on to help her with [the child] like she could with [the sister] when she was in [Western Australia]. She goes on to state that given she had no job and her attempts to obtain one over an extended period were unsuccessful, there were more reasons to move than to stay.
iii.During the Case Assessment Conference, [the wife] stated she did not disclose her intentions to move with [the husband] prior to her relocation as she felt intimidated by him as he had repeatedly breached his [public servant] order and she could not trust him to do the right thing. Counsel assisting [the wife] acknowledged there is no evidence of [the husband] having breached a [public servant] order.
iv.Whilst [the wife’s] affidavit sets out a number of factors which she maintains support her decision to relocate, there is no evidence as to why she relocated without any consultation with [the husband].
(c)During the course of the hearing, [the wife] confirmed she did not secure employment in [Victoria] until March 2021, although she maintains she had been informed she was the preferred candidate for the role. There is no independent evidence to support this.
Plainly, in those reasons, his Honour has revealed the pathway leading to the finding that he made, and that is what is required for reasons to be adequate.
Also, insofar as his Honour’s finding can be considered a finding of fact, that finding was reasonably open on the evidence, and no complaint can be made that his Honour erred in making that finding (Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307).
And further, insofar as his Honour rejected some of the wife’s reasons for relocating, that outcome is not precluded merely because those reasons were unchallenged (Agambar & Agambar [2021] FedCFamC1A 1 at [24], citing Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587–588; Scott & Scott (1994) FLC 92-457 at 80,729).
As is apparent, there was other evidence and circumstances which called into question the wife’s bona fides, and which his Honour ultimately accepted.
Ground 3 – His Honour made an error of law in making the finding at JJ25:5: “[the husband] stated he would not be able to relocate to [Victoria] due to the impact it would have on his work and [the husband’s partner’s] work, as well as the financial considerations arising out of having to sell his home in [Western Australia] and acquire a home in [Victoria]” as there was no evidence to support the finding.
The first point to make is that there is no “finding” here; his Honour is simply recording the husband’s position. However, plainly his Honour accepted what the husband said.
Secondly, there was evidence which provided the source for at least some of what his Honour recorded. At paragraph 56 of his affidavit filed on 3 May 2021, the husband deposed:
I am unable to relocate to [Victoria]. I have employment here and my partner and her family are in [Western Australia], along with my very young child. These factors, along with the expense, also make it difficult for me to travel to [Victoria] to spend time with [the child].
Then there is what was said by counsel for the husband in response to a query from his Honour during the hearing, namely:
HIS HONOUR: So against that background, given the proposal that’s now been made for your client to relocate, and there being a contribution, what does your client say to that?
GARDNER, MR: Well, your Honour, what my client would say – and the only instruction he gave me on this matter – is if he were to have to sell his home – which he would have to – in [suburb K], there would be approximately a $40,000 capital gains tax immediately off the bat. So that’s just in terms of him having to sell his home to relocate to [Victoria], and that’s nothing to do with any relocation costs, obviously, my client and his partner both being unemployed and having another child to care for as well. I can take those instructions, but that’s what he has told me off the bat about a potential relocation, sir.
HIS HONOUR: Why would it be necessary to sell the home?
GARNDER, MR: He’s – I think he’s - - -
HIS HONOUR: It could be rented, presumably, and that might cover the loan repayments.
GARDNER, MR: I will take some instructions, sir, I think in relation to the sale of the home in itself, your Honour, my client will want to buy another property. He wants to have a stable location where he can reside, obviously, with his partner and child and have [the child] stay there. So he wouldn’t be able to afford to retain that house and also buy another house. His intention would be, wherever he was going to relocate he wanted to be permanent, which is why he has bought the house in [suburb K] in the first place.
(Transcript 25 June 2021, lines 8-40 page 58)
His Honour was entitled to accept that as the husband’s position, and it was clearly the basis for his Honour’s observation at [97.5].
Accordingly, there is no merit in this ground of appeal.
OUTCOME OF APPEAL
Having found error as asserted in Ground 1, the appeal must be allowed in part, and the relevant orders set aside. The question then becomes whether it is possible for this Court to re-exercise the discretion or whether the matter should be remitted.
Given that the error only relates to one aspect of the proceedings, namely the failure to consider reasonable practicability pursuant to ss 65DAA(2)(d) and (5) of the Act, and then only in the context of the child returning to [Western Australia], it would be sensible and efficient to re-exercise the discretion on that topic, but both parties indicated at the initial hearing that they would want to adduce further evidence, and accepting that that evidence may be controversial, that renders it difficult for this Court to undertake that task. I note though that at the brief hearing that took place on 10 November 2021, which was arranged for another purpose, and to which I will come shortly, counsel for the husband appeared to want to revisit that issue. However, I did not permit that, not only because that hearing was for another purpose, but because even if the position of one party is that the discretion can be re-exercised, and no further evidence is to be called, if the other party would want to call further evidence, then that would still render it difficult for this Court to undertake the task of hearing that evidence and re-exercising the discretion. That is because, given the history of animosity between the parties in this matter, it could be expected that there would still be a need for cross-examination, and that comprises a significant aspect of the difficulty that would face this Court. In any event, from other submissions made by counsel for the husband, it was in fact unclear if further evidence would be called by the husband or not on a re-exercise of the discretion. Indeed, it would be unusual, particularly, given again, the history of animosity between the parties in this matter, that if the wife called further evidence, the husband would not want to call his own evidence.
In these circumstances the appeal will be allowed in part, the relevant orders set aside, and the matter remitted to the Federal Magistrates Court for rehearing by a family law Magistrate other than the presiding Magistrate.
However, the question then is whether there should only be a partial remitter, namely of the question of reasonable practicability, and it was in relation to that question that the further brief hearing took place on 10 November 2021.
It is not in doubt that this Court has the power to place conditions on the remitter of a matter after a successful appeal. Indeed, that is permitted by s 36(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Then there are authorities such as Ruscoe & Walker (2002) FLC 93-093 at [19], Pateman v Higgin (1957) 97 CLR 521 per Kitto J at 527, and Kopel & Ferro (2016) FLC 93-741.
However, on 10 November 2021, both counsel submitted that there should be a full remitter rather than a partial remitter.
The senior counsel for the wife indicated that there had been changes to the circumstances of the parties, and at a rehearing the wife would want to lead evidence beyond evidence that would only be relevant to the issue of reasonable practicability.
Unfortunately, the submissions of counsel for the husband were difficult to understand, but to the extent that they could be understood, they were not to the point. In general terms, counsel spoke of the need for this Court to “fashion” appropriate orders, and that a partial remitter would take away “the essence” of being able to weigh the facts in accordance with the principles in Goode & Goode (2006) FLC 93-286 relating to interim parenting hearings. I confess to not understanding the relevance of those submissions to whether there should be a full or a partial remitter.
Despite the submissions, I consider that it is clearly appropriate and necessary for there to be only a partial remitter. There is no basis for the presentation of any evidence beyond evidence relevant to the issue of reasonable practicability; that is the only issue that needs to be determined, and it would not be open to lead evidence beyond that. For example, there is no challenge to his Honour’s determination of the question of whether the orders made were in the best interests of the child (s 65DAA(2)(c)), but his Honour failed to determine the question of whether the orders were reasonably practicable (s 65DAA(2)(d)) by reference to s 65DAA(5), and that is the question to be remitted for rehearing, and subject to the outcome of that rehearing, the making of appropriate orders taking into account the unchallenged finding of his Honour.
I note that the challenge to paragraphs 8, 10, 11, 12 and 13 of the Order was only pursued because they provided for the time to be spent following the return of the child to Western Australia, and for the handovers to effect that. They will need to be formally set aside, but it is relevant to record that in the event that the result of the rehearing is a return of the child to Western Australia, no issue was taken in this appeal with those orders being put in place.
The final observation to make is that it is clearly necessary for the rehearing to take place urgently, and I request that the Family Court of Western Australia give as much priority to the rehearing as possible.
COSTS
In the event that the appeal was allowed, both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
The appeal is being allowed on a question of law, no orders for costs are sought, and thus it is appropriate for costs certificates to issue for the appeal, and for the limited rehearing.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 12 November 2021
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