MOSZKOWSKI & MOSZKOWSKI

[2010] FamCAFC 249

FAMILY COURT OF AUSTRALIA

MOSZKOWSKI & MOSZKOWSKI [2010] FamCAFC 249

FAMILY LAW - APPEAL – CHILDREN – where order provided that a shared care arrangement be restored but conditional upon a report from the mother’s treating psychiatrist – held that inappropriate to ask psychiatrist to give an opinion upon whether the mother was well enough to have the child unsupervised on the particular basis that the Magistrate ordered – appeal allowed – matter remitted for re-hearing. 

FAMILY LAW - APPEAL – CHILDREN – where order provided for “joint parental responsibility” – order varied by consent to provide for “equal shared parental responsibility”.

FAMILY LAW - APPEAL – SPOUSAL MAINTENANCE – leave to appeal required – whether order provided for interim or urgent spousal maintenance – no prejudice to applicant – leave to appeal refused.

Family Law Act 1975 (Cth), Part VII, Division 12A
Family Court Act 1997 (WA)

Bruce F McLaren Holdings Pty Ltd & Ors v McLaren and McLaren (2000) FLC 93-030
Goode & Goode (2006) FLC 93-286
Harris & Smith and Anor [2008] FamCAFC 36
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Newlands & Newlands (2007) 37 Fam LR 103
Robertson & Sento [2009] FamCAFC 49

APPELLANT: Ms Moszkowski

RESPONDENT: Mr Moszkowski

FILE NUMBER: PTW 5994 of 2008

APPEAL NUMBER: WA 5 of 2009

DATE DELIVERED: 3 July 2009

PLACE DELIVERED: Perth

PLACE HEARD: Perth

JUDGMENT OF: Bryant CJ, Thackray & Crisford JJ

HEARING DATE: 3 July 2009

LOWER COURT JURISDICTION: Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE: 25 February 2009

LOWER COURT MNC: Not applicable

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Mangan

SOLICITOR FOR THE APPELLANT: Lavan Legal

COUNSEL FOR THE RESPONDENT: Mr Kenworthy

SOLICITOR FOR THE RESPONDENT: Kenworthy Lawyers

Orders

(1)That the appeal against the interim parenting orders made 25 February 2009 be allowed.

(2)That paragraph 6 of the Orders made 25 February 2009 be discharged.

(3)That the issue of interim parenting orders be remitted to a Magistrate other than Magistrate Stewart for re-hearing.

(4)That leave to appeal the interim financial orders made 25 February 2009 be refused.

IT IS ORDERED BY CONSENT:-

(5)That paragraph 7 of the Orders made 25 February 2009 be set aside and in lieu thereof UNTIL FURTHER ORDER the parties have equal shared parental responsibility for the child L born … March 2006 and each party have sole responsibility for the child’s care, welfare and development while the child is in that party’s care.

AND IT IS FURTHER ORDERED:-

(6)That 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 the appellant wife in relation to the appeal against the Orders of Magistrate Stewart made on 9 and 25 February 2009.

(7)That 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 the respondent husband in relation to the appeal against the Orders of Magistrate Stewart made on 9 and 25 February 2009.

(8)That the Court grants to each party a costs certificate 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED that publication of this judgment under the pseudonym Moszkowski & Moszkowski 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 PERTH

Appeal Number: WA 5 of 2009
File Number: PTW 5994 of 2008

Ms Moszkowski

Appellant

And

Mr Moszkowski

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Bryant CJ  

1.This is an appeal against an Order of a Family Law Magistrate of Western Australia.  The appeal is against interim interlocutory parenting orders, spousal maintenance orders and the reservation of costs.  The amended grounds of appeal total 22 in all and seek the setting aside of various orders made by the Magistrate on 25 February 2009. Although the Orders were interlocutory, a further interim hearing was to take place that did not occur at the time of the appeal.

2.Because we formed the view that if some particular discrete grounds were successful, in particular grounds 4 and 5.3 of the Amended Notice of Appeal, then the appeal must succeed, we sought submissions from counsel on these grounds, although, at least as far as the appellant was concerned, some other grounds were touched upon.

3.My view is that those grounds must succeed and thus the relevant order, Order 6 of the Orders made on 25 February 2009, should be set aside and the issue of interim parenting orders should be remitted to a different Magistrate for re‑hearing.  Although there were some earlier orders made in the matter, they appear to be of a temporary nature and the substantive orders the subject of the appeal were made on 25 February.

4.The parenting issues concern parental responsibility and the amount of time the parties' one child, L, born in 2006, should spend with each parent. 

5.The following brief facts appear to be uncontroversial:  the parties commenced a relationship in 1989; they were married in 2002; the child L was born in 2006; and they separated in October 2008.  The parties conducted a business together, and following the separation there was a shared care arrangement up until about November 2008.

6.I do not need to go into detail about the incidents that occurred between the parties, which may have been the manifestation of the mother's depressive illness, because the evidence focused upon at the hearing and in the reasons of the Magistrate related in the main to the psychiatric evidence.  Her Honour had evidence from the mother's psychiatrist, Dr W, and also a psychologist.

7.The Magistrate set out in the reasons for judgment the father's case, including his concern that the mother's time with the child should be supervised, and his concern that the mother had a mental illness, was unstable and used illicit drugs.  The Magistrate set out the father’s belief that the mother was volatile and prone to angry outbursts and was fearful that the mother might neglect or harm the child.  The Magistrate also set out his concern that the mother had recently harmed the child and her association with a man who is a drug dealer and has a criminal record.

8.It is clear that the Magistrate had before her the father's concerns that the mother was still suffering the effects of post-natal depression, depression anxiety and possibly bipolar disorder.  The Magistrate noted that the mother disputed the allegations and wanted the Court to restore the shared care arrangement, which was the arrangement that the parties themselves had put in place, to which I adverted.  The Magistrate noted that the mother admitted that she used marijuana from time to time but denied that she used drugs inappropriately and denied abusing drugs other than marijuana.

9.The Magistrate noted in addition that the mother admitted to suffering from depression in the past and that she had recently received treatment.  She noted that the mother said her problems with depression had much improved and that there was no reason why she should not resume care of the child on a shared care basis.

10.The Magistrate had before her evidence as to the mother's medical condition, which she described as "a pivotal issue in this matter".  In particular, at page 688 of the appeal book, she referred to the psychiatrist's report, in which he stated that the mother suffered from "major depressive disorder" and went on to describe other symptoms of the illness and the medication she was on: 

[The mother] also has erratic mood swings, which I consider to be related to a past history of trauma, sexual abuse and her reactive personality.  She probably also has developed a dependency on prescription Diazepam and possibly on recreational use of marijuana.  However, I do not have objective laboratory testing, but only information on her own admission.  These conditions may potentially have an impact on her mental state and ability to care for her son [L].  Depression, if untreated or relapsed and symptomatic, can lead to impairment of the mother and child bonding.  Mood irritability and anxiety can also affect the relationship between mother and child, such as being able to affectionately respond to the child’s needs in a calm way.  The use of prescription Diazepam in combination with marijuana can cause sedation, impairment in cognition, motor reflexes, judgment and thinking and possibly trigger off more serious mental health problems.  She should not be driving if she is under the direct influence of prescription or illicit substances, as they can contribute to impairment of driving ability, especially when using them in large quantities.  If she has already weaned herself off Diazepam and marijuana, and with adequate treatment of the depression with medication and counselling, the impact on her ability to care for her son is considered to be minimal.

11.Her Honour noted that the doctor had indicated that the mother was not seeing him regularly as she should be.

12.She then noted the psychologist's report, the psychologist also diagnosing that the mother suffered from depression, trauma, grief and loss.  At appeal book page 689, still quoting from the psychiatrist's report, her Honour noted the psychiatrist's comments in relation to the formation of the concern of an insecure attachment being formed.  Her Honour then went on to note that the mother said that she would be willing to undergo ongoing treatment. 

13.The gravamen of the reasons for her Honour's ultimate decision, which is the subject of the appeal, appears at page 690 of the appeal book.  Her Honour said:

The feature of both of the reports of the psychologist and the psychiatrist, that is, the feature that they share in common is one which indicates that with this type of disorder, combined with the use of alcohol and drugs, there is some risk of an impact on [the mother’s] capacity to care for [L].  However, both reports generally could be described as encouraging in the sense that they indicate that with appropriate attention to those issues, then there is no reason why [the mother] would not be in a position to resume care for [L] on a shared care basis.

14.Her Honour then dealt with other matters, but in coming back to the Orders that she ultimately made, the passage that I have described was the gravamen of her decision.  At page 693 of the appeal book she says:

Prior to these events, [that she previously described] [the mother] was the primary caregiver and although the father also made significant contributions to [L’s] day-to-day care, the primary care did fall to [the mother] simply by the fact that she was no [sic] working the extended hours in the business that [the father] was.

The parties did share care of [L] after the date of separation and this indicates that at that point in time at least the father had sufficient confidence in [the mother’s] abilities to care for [L] that he agreed to this shared care arrangement.

15.The Magistrate found on page 694 that although there were some areas of factual dispute, the father's concerns were not without some proper foundation.  She said that the evidence supported the finding that there was some degree of instability in relation to the mother’s ongoing medical treatment but that her situation was much improved.  At page 695, the Magistrate indicated that the Court had formed the ultimate conclusion that subject to a matter of conditions, it was in the child's best interests that the parents resumed a greater degree of shared care on an interim basis pending the matter reaching the final hearing.

16.She noted that it is important that the child had regular contact with both parents and that they both actively participate in his upbringing.  She further noted that the child had an extremely close and loving relationship with both parents and that needed to be maintained.  She opined that the current arrangements for limited and supervised visits would not give the child the advantage he needed of spending time with and being in the care of his parents.  She then made the comments which, in my view, are crucial to the appeal:

[t]he court intends to make orders which would restore a shared care arrangement, but subject to the following conditions…

17.Her Honour then went on to indicate that she wanted the doctor to provide an updated report confirming his recommendations in relation to ongoing treatment and was concerned to ensure that the orders she would make would be conditional upon the mother strictly following all the recommendations of the doctor in attending upon him.  She thought it was desirable for the mother to continue with her appointments with the clinical psychologist which would require her to undergo urine and drug analysis on a random basis at least once a fortnight.  She also indicated the intention to restrain the mother from consuming any illicit drugs.

18.The main orders for time that her Honour then made following her conclusions appear in Orders 2 and 6.  Order 2 in broad terms provides for the mother to have increasing periods of time with the child, leading up in paragraph 2(d), to periods from Friday at 5 pm until Monday at 9 am of each weekend.  However, there is a caveat to that Order, and that is that the time was to be supervised by the maternal grandmother and to primarily take place either at the mother's residence or at the maternal grandmother’s residence.  Order 6 is the other relevant order in relation to time spent, and says this:

6.Upon the Respondent's treating psychiatrist, Dr [W], providing an up to date psychiatric assessment based on recent interviews with the Respondent, confirming that the Respondent is well enough to resume shared care of the said child, and outlining in his report a recommended treatment programme then UNTIL FURTHER ORDER of the court the said child reside with each of the parents in a shared care arrangement as follows:

(a)week one – 3 days and 3 nights with the Respondent and 4 days and 4 nights with the Applicant; and

(b)week two – 4 days and 4 nights with the Respondent and 3 days and 3 nights with the Applicant.

19.Order 7 relates to "joint parental responsibility” to which we will return.  Before dealing with the grounds to which I have referred in relation to these Orders, it is necessary to say something about the structure of the judgment.  The Magistrate does not refer to any of the legislation in Part VII of the Family Law Act1975 (Cth) (“the Act”) , nor does she set out in the manner that the Full Court suggested in Goode & Goode (2006) FLC 93-286 how parenting proceedings, especially interim parenting proceedings, should be determined.

20.Whether or not this failure was fatal in this case does not, in the end, need to be determined because, in my view, the grounds that I have already referred to (grounds 4 and 5.3) determine the matter.  However, also in my view, not to follow the legislative pathway can often be a dangerous path, and indeed had it been followed in this case, then perhaps the orders that her Honour made would not have been made because it would have been clearer why those orders were not appropriate.

21.In particular, I refer to some of the matters in the additional considerations in s 60CC of the Act that her Honour might need to have considered in coming to the determination of what was in the best interests of the child. I refer in addition to Goode & Goode, to the matter of Harris & Smith and Anor [2008] FamCAFC 36 on this point.

22.The grounds of appeal to which I have referred are Grounds 4 and 5.3.  Ground 4 says that:

The learned Magistrate erred in law in making shared care arrangement conditional upon, or subject to, the provision of an up to date psychiatric assessment by the appellant's treating psychiatrist Dr [W], when this was in effect an abdication by the learned Magistrate of her task which was to make a decision on the applications of the appellant and the respondent.

23.Ground 5.3 says that:

5.The learned Magistrate erred in law in making the shared care arrangement conditional upon, or subject to, Dr [W] providing up to date psychiatric assessment based on recent interviews with the appellant, confirming that the appellant is well enough to resume shared care of [L], and outlining in his report a recommended treatment program when –

…

5.3There was no evidence that Dr [W] was qualified to provide the court with his opinion that the appellant is well enough to share the care of [L].

24.There is no doubt, in my view, that her Honour was entitled to seek further evidence from the psychiatrist before moving to the next stage.  There was also no doubt from the judgment that her Honour thought that, at the time of making the Orders, it was not appropriate in the interests of the child to move from a supervised arrangement, but that subject to the view of the psychiatrist, it might be in the future.

25.The problem with the Orders that her Honour ultimately made was that the psychiatrist was effectively being asked to decide extrinsically whether the mother was well enough to have the child unsupervised on the particular basis that her Honour ordered, that is, a specific arrangement for shared care.  In my view, that was not an appropriate order to make and not an appropriate task to delegate to a psychiatrist.

26.It was quite open to her Honour to seek to have the advice of the psychiatrist as to the mother's health, potentially in relation to whether or not supervision was still necessary, and potentially in relation to the kind of time that the mother might spend with the child.  However, having obtained that evidence, the ultimate decision as to what was in the best interests of the child was for her Honour to decide and not one to be abrogated to a psychiatrist. The primary duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusion (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at 59)

27.In my view, the correct course would have been for her Honour to make clear what she thought might happen, to seek further evidence from the psychiatrist following an assessment, and then to consider what orders should be made, having regard to the relevant matters in s 60CC, and why she thought in light of the evidence she had, including the psychiatrist's evidence, it was appropriate to make a particular order.

28.The respondent sought to support the Order made by her Honour partly on the basis that it was understood what her Honour meant, but ultimately he conceded that there was a difficulty as far as the Order was concerned in understanding precisely what that Order was intended to do or mean.  In addition to the matters that I have already referred to as to the abrogation of the decision‑making process itself, it is entirely unclear about how any disputes about the psychiatric evidence that might be part of the report were to be dealt with.  In my view, grounds 4 and 5.3 should succeed and for that reason, the appeal should be allowed.

29.The appellant sought from this Court in the course of argument that we would be in a position, if we found there was appealable error, to re-exercise the discretion of the trial Judge and, in doing so, to provide for a regime of shared care.  I think it would be demonstrably clear from my reasons, at least, that the evidence that did come from the psychiatrist or any other source would need to be assessed properly in a full consideration of what was in the best interests of the child. This Court would certainly not be in a position to do that.  Therefore, the matter must be remitted and, in my view, should be remitted to another Magistrate.

30.Whilst there was not extensive argument about the other grounds because we asked in particular that this ground be addressed first, there were other grounds which might have otherwise been successful.  I refer only to two in passing, and that is the complaint that the evidence that was admitted should not have been admitted.

31.Division 12A of Part VII of the Act and its equivalent in the Family Court Act 1997 (WA) provide that in parenting proceedings, unless the Court makes a specific order to the contrary, certain aspects of the Evidence Act 1995 (Cth) (and the Evidence Act 1906 (WA)) do not apply. In particular, relevant to this case, they are provisions relating to hearsay and opinion evidence. It is clear in this case that her Honour did not exclude the operation of Division 12A and therefore she was not bound by the Evidence Act 1995 (Cth) nor the Evidence Act 1906 (WA) and was entitled to admit evidence that was based on hearsay or was otherwise opinion evidence.

32.But in a case in which there were allegations which were contested it would have been helpful, in my view, for the Magistrate to have set out which of those matters she gave weight to and which she did not consider.  But as I have said, I do not need to deal with that matter further.

33.During the course of the appeal, it became apparent that the Order made in relation to parental responsibility made by the Magistrate was an order which did not accord with the provisions of Part VII of the Act. The Act talks about equal shared parental responsibility, and the orders sought in relation to parental responsibility on behalf of the mother was an order for equal shared parental responsibility. The father did not seek an order at all in relation to parental responsibility.

34.The importance of using the right terminology is not merely one of form. The Act provides that certain consequences are to follow, and indeed presumptions can follow, from a particular order. As a result, care must always be taken to ensure that the order made does comply with the legislation. This has been pointed out by the Full Court in Robertson & Sento [2009] FamCAFC 49 and also in Newlands & Newlands (2007) 37 Fam LR 103. Sensibly, the parties have both agreed that the Order her Honour made for “joint parental responsibility” should by way of consent be varied to now read as “equal shared parental responsibility”.

35.I turn now to the financial matters, in respect of which leave is sought, as they were interlocutory orders.  The requirements for leave are well‑known.  The Full Court said in Bruce F McLaren Holdings Pty Ltd & Ors v McLaren and McLaren (2000) FLC 93-030 at 87,486:-

[a]s the High Court said in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176:

The essence of such a matter is described in terms which are sufficient for present purposes in Salmond on Jurisprudence 10th ed. (1947), p. 476:

'Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated'.

…

An applicant seeking leave to appeal from interlocutory orders must demonstrate that there has been an error of principle and/or a substantial injustice to one of the parties (Rutherford and Rutherford (1991) FLC 92-255) or that the issue is one of general importance: Aarons v Knowles (1995) FLC 92-627.

Counsel for each of the parties concede in their written submissions that it has not been conclusively decided whether the Rutherford (supra) requirements ought to be applied disjunctively or not. Counsel for the applicants submits that in any event, both criteria have been met, whereas counsel for the respondent argues that neither has been met.

Before further considering this aspect of the matter, it is useful in our view, to refer to the following passage from the judgment of the High Court (Gibbs CJ, Aickin, Wilson and Brennan JJ) in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (supra) at 177:

“Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v Electronic Industries Ltd [[1978] VR 431, at p 440]; on the other hand, De Mestre v AD Hunter Pty Ltd [(1952) 77 WN (NSW) 143, at p 146]. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) [(1946) 46 SR (NSW) 318, at p 323]:

'I am of the opinion that,...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.'

See also, Brambles Holdings Ltd v Trade Practices Commission [(1979) 40 FLR 364, at p 365; 28 ALR 191, at p 193]; Dougherty v Chandler [(1946) 46 SR (NSW) 370, at p 374]. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.”

36.Two of the three matters which were raised initially by the appellant in this appeal have been abandoned, again sensibly in my view, in light of the leave requirement.

37.The first of those was a complaint that the costs were reserved and the second was a complaint about the Magistrate’s failure to categorise the periodic order for spousal maintenance, but rather to leave the categorisation for a future determination.  The appellant sensibly conceded that in the end, as there was no prejudice to these matters remaining on foot because they can be determined at a future time, it was unlikely that leave would be granted and the appellant therefore did not press those grounds.

38.The appellant did, however, press the ground in relation to the quantum of spousal maintenance.  The maintenance order appears at Order 17 of the Orders made on 25 February.  A payment of $4,000 was to be made in relation to the registration of the mother's BMW motor vehicle and that is really the relevant order here today.  Paragraph (b) provided for a payment of $750 per week, and whether that was to be categorised as an interim spousal maintenance payment was to be determined, importantly in my view, at the adjourned hearing.

39.There had been a good deal of material filed previously in relation to the financial position of the parties and the mother was seeking an order substantially more than the one that was made.  At the same time, the father was seeking an order substantially less than the Order that was made.

40.The appellant contends primarily that the Court should find an error and grant leave on the basis that there were no reason to support the order that was made by the Magistrate, given the substantial filed material, much of which the appellant says was uncontested.  Alternatively, the appellant contends that the characterisation should have taken place at the hearing and there was no basis for an adjournment. If one looks at the transcript of proceedings on that day and to the last passage in the transcript, at page 698 of the appeal book, it is clear, in my view, what her Honour had in mind.  She says this:

Now, in relation to interim financial issues, I am not satisfied that I really have all of the appropriate evidence before me to deal with that issue and I will make some directions for additional evidence to be placed before the court and adjourn the balance of that hearing to another day.

41.If the order needs to be characterised in any way, then I would characterise it as urgent maintenance pursuant to s 77 of the Act, to tide the mother over until the matter of interim maintenance could be more fully dealt with. The appellant contends that that was an error and the Magistrate should have determined the matter on that day. As I said and as is conceded, leave is required before the Court can consider that ground.

42.In my view, the appellant is not prejudiced by the Order.  The real complaint in respect of many of these matters by the appellant was that the Court below has not been able to provide the time in which to hear these various issues, as was anticipated.  However, when the Court is able to provide the opportunity for it to be heard, it is quite clear that the mother is at liberty to pursue her claim for the spousal maintenance sought on an interim basis.  In my view, therefore, her remedy lies and remains in the Court below and I do not consider that she has met the requirements in relation to leave and I would refuse leave.

Thackray J

43.I concur with the reasons given by the Chief Justice and for the reasons that she has given I would make the Orders that her Honour has foreshadowed. 

44.As a minor issue in relation to the granting of costs certificates, the legislation provides that certificates may be granted upon request.  I take it that we will receive in due course this afternoon from each counsel a request for such a certificate, both in relation to the appeal and the re‑hearing of the parenting issues.

45.I would also make a couple of comments in relation to case management matters flowing from the Orders that the Chief Justice has foreshadowed will be made by the Full Court. 

46.The first is that it would be anticipated, I would expect, that the matter would be listed for directions before a Magistrate of the Magistrates Court of Western Australia as soon as practicable in order that directions and orders be made in relation to the further conduct of the proceedings. In that regard, I note that in the course of hearing submissions this afternoon counsel for the mother, Ms Mangan, indicated that the matter was not ready for a final trial, certainly in relation to the financial issues.  Ms Mangan advised that there was no valuation of the business that is the source of income in the family, and that no appointment had yet been made of a single expert to undertake a valuation of that business because there were issues of disclosure still outstanding, it was said, on the part of the husband.

47.One matter that might therefore usefully be explored at the directions hearing is whether or not it would be appropriate to have the children's issues set down for a prompt final hearing and to allow the financial issues to follow their normal course.  Apart from anything else, resolution of the children's issues, or in this case child's issues, may indeed assist the family to resolve the financial issues.

48.The difficulty in this matter appears to have been that there have been repeated applications to the Court in which complaints have been made about matters not being resolved.  In my view, it would be helpful if the matter was resolved on a final basis by being set down for hearing sooner rather than later.

49.The second matter that I think requires some comment relates to the foreshadowed decision not to grant leave in relation to the spousal maintenance issue.  The effect of the decision is that the existing Orders relating to financial matters will stand.  This in turn raises an issue as to just what the learned Magistrate has reserved before her at the moment.

50.If it is the case that her Honour is considering not only parenting issues but also financial issues, then certainly the Orders that we have proposed making will have no impact on her Honour’s decision in relation to financial issues.  One would anticipate that given the remission of the interim parenting matters, her Honour would not proceed to deliver judgment in relation to parenting issues. However, for my part, nothing that we have done today would impede her Honour from proceeding to give a judgment in relation to financial issues, if indeed they are reserved before her.

51.That said, once her Honour delivers any judgment in relation to any outstanding financial issues, one would anticipate that the normal case management processes of the Court would result in some direction then being made for future interim or interlocutory financial issues between the parties to be dealt with by the same Magistrate who will have the conduct of the children's issues, hence no doubt saving the Court inconvenience and expense, and certainly saving the parties expense.

52.I would also say that given the time that will now elapse before the matter comes back before a Magistrate, and given the expenditure that there has been on legal costs to date, it would be useful in the meantime for the legal representatives to familiarise themselves with the provisions of the legislation relating to admissibility of evidence, to which the Chief Justice has referred in her reasons; also to familiarise themselves with the meaning of the expression "parental responsibility" and the consequences that flow from the making of orders for equal shared parental responsibility - and indeed the whole structure of the legislation.       

53.I suggest the parties deserve no less.

Crisford J

54.Yes, I agree with both the reasons given and the Orders pronounced by the Chief Justice and have nothing further to add.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  25 June 2010