Molyneux & Miller
[2009] FamCAFC 85
•25 May 2009
FAMILY COURT OF AUSTRALIA
| MOLYNEUX & MILLER | [2009] FamCAFC 85 |
| FAMILY LAW – APPEAL – RELOCATION – APPEAL FROM FEDERAL MAGISTRATE – Appeal from interim orders allowing the relocation of a child to Brisbane from Townsville – Whether the Federal Magistrate erred by not considering issue of expense to the parties – Whether the Federal Magistrate erred by making orders that were not requested by the parties - Where the orders made were unclear and difficult to enforce FAMILY LAW - APPEAL – Allowed – Remitted for rehearing on interim basis FAMILY LAW - COSTS – Both parties in receipt of legal aid – Appellant asked for no order as to costs – Respondent asked for a costs certificate with respect to the appeal – Respondent granted costs certificate pursuant with s6 of the Federal Proceedings (Costs) Act 1981 |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 |
| APPELLANT: | MR MOLYNEUX |
| RESPONDENT: | MS MILLER |
| FILE NUMBER: | TVC | 308 | of | 2008 |
| APPEAL NUMBER: | NA | 19 | of | 2009 |
| DATE DELIVERED: | 25 May 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Coleman, Warnick & May JJ |
| HEARING DATE: | 19 May 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 11 March 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 283 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | ATSILS (QLD) LTD |
| COUNSEL FOR THE RESPONDENT: | Ms Mayes |
| SOLICITOR FOR THE RESPONDENT: | ATSI Women's Legal Service NQ |
Orders
The appeal be allowed.
The interim applications of the parties’ be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Coker.
The interim orders made 11 March 2009 be set aside, this order to take effect upon the commencement of a re-hearing.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent in relation to the appeal against the parenting orders.
IT IS NOTED that publication of this judgment under the pseudonym Molyneux & Miller is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 19 of 2009
File Number: TVC 308 of 2008
| MR MOLYNEUX |
Appellant
And
| MS MILLER |
Respondent
REASONS FOR JUDGMENT
This is an appeal by the father against a number of interim parenting orders made by Federal Magistrate Coker on 11 March 2009.
As it emerged in the argument one of the grounds of appeal was in effect conceded so that the appeal must be allowed. For that reason we do not intend to deal with the grounds of appeal at any length save to mention one other ground which we conclude has some merit.
As the appeal is to succeed the central question for our determination is whether we should re-exercise the discretion of the Federal Magistrate possibly leading to different orders or whether there must be a re-hearing, albeit on an interim basis until trial.
For the reasons we will shortly provide it is necessary to order a re-hearing of the entire matter as the orders successfully appealed permeate the whole matter.
Background
The orders made by the Federal Magistrate relate to the parties’ only child, a boy aged four. The parents lived together for a short time but largely lived in Townsville separately until March 2008. The times the child spent with the father and mother are controversial but it can be said, as found by the Federal Magistrate, that the mother moved to Brisbane in March 2008 and has remained living there. It is also clear that the father objected to that course but until November 2008 the child moved between them, (though not on any agreed basis that the Federal Magistrate felt able to find), the father remaining in Townsville.
The effect of the orders made by the Federal Magistrate can be summarised, for the purpose of this judgment. Where there is a dispute about the meaning or effect of the order it will be set out in full:
·The father and the mother have equal shared parental responsibility;
·The child is to live with the mother in Brisbane;
·The father is to spend time with the child as prescribed by the following orders:
(5)The Father spend time with the child at all reasonable times as agreed between the parties and in particular:
(a)Every two months for a minimum period of 16 days at times to be agreed between the parties, and failing agreement, from 8:00am on the second Saturday to 4:00pm on the fourth Sunday in April, June, August, October and December of 2009;
(b)For one half of any time that the Mother may be in Townsville, provided however, that such time should be not more than one consecutive week in the care of the Father;
(6)If the Father is in the same locality as the Mother, the Father spend one additional nine day period with the child as may be agreed between the parties, and failing agreement from 8:00am Saturday until 5:00pm on the following Sunday during each two month period as referred to in these orders.
…
[and to operate after the child commences prep or pre-school]
(9)If the Father is in the same locality as the Mother, the Father spend one additional nine day period with the child during each gazetted school term, subject to the child’s continued attendance at Prep school or Preschool, from 8:00am Saturday until 5:00pm on the following Sunday as nominated by the Father.
·The father is responsible for the whole of the costs of any travel incurred by him in relation to spending time with the child pursuant to these orders except for the provisions of paragraph (5)(b) (Order 10).
This judgment will deal particularly with paragraph 10 of the orders. It was conceded that this was an order different to that asked by the parties’ and without the father having an opportunity to make submissions. We will also deal with orders 6 and 9 as it is submitted, we think correctly, that these provisions are uncertain and therefore may not have the effect as expected by the Federal Magistrate.
Reasons for judgment
To further understand the two matters already referred to it is necessary to set out some parts of the Federal Magistrate’s reasons.
In the only paragraph referring to the costs associated with the child spending time with each of the parents, the Federal Magistrate said:
48.There are also the financial concerns that arise one way or the other. If the mother remains in Brisbane, there are significant travel expenses that are associated with the father spending time with the child or the mother spending time with the child if [K] were to live in Townsville, as well as, of course, the difficulties that are inherent in the transportation arrangements that have to be made. Of course, those financial concerns, include variable expenses that might arise in relation to the transportation of the child and, at least until he were to attain five years of age, the accompanying person, be it one parent or the other or for an airline steward or stewardess. It is a continuing difficulty.
In a paragraph which appears to be the summary of his Honour’s reasons, the Federal Magistrate said:
49.In the end, I have come to a determination, based primarily on what has been in place for a significant period of time. It is not determinative, as I have already said, but it is certainly significant. The mother is established in Brisbane. The mother says that she wishes to continue to live in Brisbane. It would be, in my view, an unreasonable impost upon the mother, at this time, to require that she should relocate back to Townsville, having been established in the locality where she is, for a period of almost one year, when her wish is to remain.
In relation to the time to be spent with the father the following paragraphs are relevant to the issue arising from orders 6 and 9:
50.The father is still able and should, of course, have the opportunity for a significant and substantial time spent with the child, so as to foster and develop a meaningful relationship. The upheaval to the child of month about arrangements, as the father says has been in place, is a matter that troubles me. The limited time that the mother proposes is just as troubling, because it is not sufficient to foster and develop a meaningful relationship.
…
53.The father needs to have significant time with the child. More particularly, the child has a right to significant and substantial time with the father.
Orders (6) & (9) for time in Brisbane
Paragraph 5(a) of the orders provided for a minimum period of 16 days every two months at times to be agreed, failing agreement from 8.00am on the second Saturday to 4.00pm on the fourth Sunday. A minor difficulty about the provisions of orders 6 and 9 read with paragraph 5(a) is that the time in those paragraphs is expressed to commence on Saturday and conclude on the Sunday. The question of whether the father may spend time with the child in Townsville and immediately follow that with nine days in Brisbane, whether it is to commence on the Saturday or the Sunday has proved an impossible issue for the parties’ to resolve. Although such an attachment of the two time periods is not prohibited by the orders, the effect would be a 25 day period with the father.
The difficulty is exacerbated by the absence of reasons for these orders. We can also see that the terms of the orders read as a whole are unclear such that there would be difficulty with enforcement.
It is our view that this difficulty would on its own create a reason for allowing the appeal with possible remission to Federal Magistrate Coker or an order for re-hearing. However, as will be seen there is the other order which in itself leads to the decision not just that the appeal be allowed, but there also be a re-hearing.
Order that the father pay the costs of the child’s transport
The father’s application filed on 17 December 2008 asked that the child live with him should the mother not return to live in Townsville. He then asked that the child spend time with the mother in Brisbane on the last week of each second month with the father and the mother to be equally responsible for the costs of such travel.
The interim orders sought by the mother in her amended response filed 9 March 2009 in paragraph 6 ask that the parents share equally the costs of travel, including the cost of travel of the accompanying person. In the mother’s affidavit filed 3 March 2009 at paragraph 12 she said:
In or about March 2008, I relocated to Brisbane with the Father’s consent. The Father and I agreed that [K] would spend time with the Father for one (1) week at two (2) monthly intervals. The agreement was not reduced to writing, but it was agreed that we would share the travel, by way of the Father either travelling to Brisbane or my travelling to Townsville with [K]. We agreed to share costs whoever was travelling and this was worked out by the Father paying a couple of time and then I paid a couple of time for the fares.
It can be seen that the orders made by the Federal Magistrate involve considerably greater expense of travel than envisaged by either of the parties.
It was conceded by counsel for the mother on the appeal, that as there was no issue about how the cost of transport was to be met at the interim hearing, there was no evidence directed to this question nor were there any submissions.
It seems clear that the appeal must be allowed by reason of these factors.
Re-exercise or remission
The question then is whether we should re-exercise including whether we can deal with this question discretely.
The provisions of s 60CC of the Family Law Act 1975 (Cth) require the consideration of a number of matters. Certainly the Federal Magistrate considered the matters contained in s 60CC(2). It is less clear that he considered the provisions of paragraph s 60CC(3)(e) which is as follows:
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
It is not just the allocation of the expenses of travel on limited evidence and without submissions that is the difficulty, it is also how the Federal Magistrate considered that factor in determining the orders in the best interest of the child which is important. Thus, as we see it this question is intrinsically linked with all the other matters required to be considered in making such decisions.
Each of the parties sought to put further evidence before us, the father in support of the appeal and in the mother’s case to buttress the reasons for the orders made and on the part of both parties’ in the event that we should re-exercise. We do not think that the material ought be allowed in support of the appeal or to buttress the Federal Magistrate’s findings but, in view of what we have already said with regard to the appeal, think it unnecessary to deal with that aspect further. In so far as receiving the future evidence for the purpose of re-exercising the discretion, we consider we should have regard to the material, but its receipt merely reinforces the view that as many of the matters are controversial, the application relating to interim orders ought be remitted.
Conclusions
It is apparent that the appeal should be allowed and the matter remitted for re-hearing of the interim applications before a Magistrate other than Federal Magistrate Coker. We inquired as to whether the existing orders should remain until the re-hearing. It seems that there was general agreement. We were told that the next occasion the father would be having time with the child would be in mid June. Thus in allowing the appeal we will not set aside the interim orders but make provision that upon commencement of the re-hearing they be deemed to be set aside.
Costs
At the conclusion of the appeal the appellant explained that as they were in receipt of legal aid that there would be no application for costs should the appeal be successful. The respondent also is apparently in receipt of legal aid. On behalf of the respondent an application was made for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 but only in relation to the appeal. As neither party seeks a costs certificate for the re-hearing consequently we will only make an order for a costs certificate for the respondent for the appeal.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 25 May 2009
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