Newett & Newett - [2019] FamCAFC 102

FAMILY COURT OF AUSTRALIA

NEWETT & NEWETT

[2019] FamCAFC 102

FAMILY LAW – APPEAL – PARENTING – Appeal from parenting orders – Where the appeal lacks any utility given the parenting proceedings are proceeding to a final trial – Futility of the correctness of interim orders being subjected to review on appeal when those orders will terminate in effect given the trial – Appeal dismissed for lack of utility.

FAMILY LAW – COSTS – Whether justifying circumstances for costs orders to be made – Orders for costs made.

Family Law Act 1975 (Cth) ss 68L, 68LA, 94AAA(7), 117
Family Law Rules 2004 (Cth) 19.18(1)

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33
Idoport Pty Ltd v National Australia Bank Limited, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23
Stoian & Fiening(Costs) [2014] FamCA 944

APPELLANT:

Ms Newett

RESPONDENT:

Mr Newett

INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Mediation & Family Law

FILE NUMBER:

BRC

2179

2018

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

17 June 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

10 June 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

6 March 2019

LOWER COURT MNC:

[2019] FCCA 619

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Selfridge with Mr Hartnett

SOLICITOR FOR THE RESPONDENT:

Damien Greer Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Damien Carter, Carter Farquar
Mediation & Family Law

Orders

That the appeal and all extant applications in the appeal be dismissed.
The mother pay the father’s costs of and incidental to the appeal in the fixed sum of $10,000.
The mother pay the costs of the ICL of and incidental to the appeal in the fixed sum of $920.
The mother’s obligation to make payment of the costs as ordered be deferred until the property settlement proceedings between the father and the mother have been finally determined by order or agreement.

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 Newett & Newett 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 30 of 2019
File Number: BRC 2179 of 2018

Ms Newett

Appellant

And

Mr Newett

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ms Newett (“the mother”) and Mr Newett (“the father”) are engaged in parenting[1] and property settlement proceedings in the Federal Circuit Court of Australia (“the FCC”).
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Those parties are the parents of three children born in 2011, 2013 and 2014 respectively and who are, thus, aged eight years, six years and four years respectively. The parents commenced cohabitation in 2005, married in 2008 and finally separated in 2018.
The final trial of the parenting proceedings is set down to commence before a trial judge in the FCC today. The interests of the children in the parenting proceedings are independently represented by a lawyer (“the ICL”) appointed for that purpose pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”).
On 6 March 2019, some three months ago and thus in the shadow of the final trial of the parenting proceedings set down to commence today, Judge Spelleken made interim parenting orders in the FCC, and delivered reasons for judgment for those orders following an urgently listed interim hearing conducted by her Honour on 26 February 2019.
This is the mother’s appeal from those interim parenting orders made on 6 March 2019 (amended on 7 March 2019). The appeal is opposed by the father and by the ICL. This appeal came before me for hearing[2] on Monday last, that is, on 10 June 2019. Obviously, that is only seven days prior to today when the final trial of the parenting proceedings is set down to commence in the FCC.
[2] As a single judge exercising the appellate jurisdiction pursuant to s 94AAA(3) of the Act.
In my judgment the chronology just referred to, primarily the fact that the final trial of the subject parenting proceedings is to commence today, brings into stark focus the complete lack of any practical utility in this appeal. The subject interim orders made on 6 March 2019 will be spent, in that they will have no further operative effect, upon the making of final parenting proceedings consequent upon the trial being heard today. Indeed if the trial judge hearing the trial in the FCC determines, for whatever reason, to make further interim parenting orders, pending final orders being made, likewise the subject interim orders will no longer have any operative effect.
The futility of this Court engaging in a detailed review of the correctness, or otherwise, of interim orders which will today become subject to extinguishment in the trial proceedings in the FCC commencing today, is obvious.
In my judgment the lack of any practical utility in this appeal dictates the conclusion that it ought be dismissed. As I am of the opinion that the appeal does not raise any question of general principle, reasons for its dismissal on the basis of its lack of utility may be given in short form pursuant to s 94AAA(7) of the Act.

Lack of practical utility in this appeal

Prior to the interim parenting orders made on 6 March 2019, the operative interim parenting orders were those made on 18 April 2018.
The April 2018 orders provided, inter alia, for the parents to have equal shared parental responsibility for long term issues; for the children to live with the mother; and for the children to spend time with the father for designated periods in alternate weeks, amounting to five overnight periods each fortnight.
Significant alterations to those parenting arrangements were effected by the interim orders made on 6 March 2019. Those orders provided for, in summary:
a)The children to live with the father;
b)The children to spend supervised time with the mother once per week for no more than two hours;
c)The mother to commence psychiatric treatment and continue to attend until such time as her treating psychiatrist certifies in writing that she is no longer required to attend; and
d)The mother be restrained from approaching the children’s residence or school and from discussing the proceedings with the children.
The orders in relation to the children’s living arrangements have been put into effect. That is, the children have been living in their father’s primary care since the orders were made. Indeed, as a consequence of the father retaining the children in his care in advance of the application he filed for an urgent interim hearing, the children have been in the father’s care since early February 2019.
The mother represented herself in the hearing before me. Whilst she has undertaken, or is undertaking, study towards obtaining a law degree she is not a qualified or experienced lawyer. At the outset of the hearing of this appeal last Monday, I sought to emphasise to the mother that even if her appeal were to be successful in establishing some error on the part of the primary judge in the making of the interim orders, in the circumstances that each party would want the opportunity to put evidence before the Court for the purpose of the Court

re-exercising discretion, this Court would remit the proceedings, that is the interim application, for rehearing by a judge of the FCC. I sought to emphasise with the mother the futility of that exercise given that, rather than an interim hearing, the parenting proceedings are to be heard at a final trial commencing today.
At the hearing of the appeal each of the parents confirmed that each would seek to place further and current evidence before the Court for the purpose of any

re-exercise of the discretion to make interim parenting orders. For her part, the mother sought to file an Application in an Appeal to adduce further evidence which included a copy of a psychiatric report from the City T Hospital, dated 4 June 2019, expressed to be a summary of the mother’s care during her inpatient psychiatric admission from 24 May 2019 to 27 May 2019. The father had not been served with that application (or that report) in advance of the appeal hearing and his counsel made it clear that the father would seek to have proper notice of, and to test, such medical evidence. Obviously enough the report had not been considered by the single expert psychiatrist, Dr A, who provided a report attached to his affidavit filed on 30 October 2018 in the course of the proceedings. Nor, obviously, had this lately produced report been considered by Mr B the single expert family report writer who filed an affidavit on 11 July 2018 in the course of the proceedings. The mother confirmed that she would seek to rely upon this recent evidence to establish that she has no relevant psychiatric condition as would cause any impediment or impairment of her parenting capacity.
Asked to identify what, in the circumstances, the mother saw as the utility of this appeal, the mother submitted to the effect that the “integrity of the law” ought be preserved and obvious errors corrected. However, it is readily apparent from the mother’s approach that she is operating on the understanding that Judge Spelleken made concluded findings which are adverse to the mother in making the subject interim orders and/or that such findings, if left uncorrected, have a potential enduring effect in the proceedings, or upon the trial judge hearing the final trial.
This is not the case. In her reasons for judgment, Judge Spelleken was at pains to point out that given the nature of the interim proceedings heard by her, she was not able to make findings concerning disputed issues of fact. For example, at [4] of the reasons her Honour said:
4.These are interim proceedings. Of course, given the truncated nature of interim proceedings the Court is not able to make findings of disputed facts and issues, of which there are many, including some significant issues that can only really be resolved or findings made about those issues at trial…
As to those issues, about which her Honour made it clear she could not make concluded findings, these are identified by her Honour in the following paragraphs of her judgment and need not be detailed in full for present purposes. As her Honour noted, the issues which she described as “significant” include whether the mother has been the victim of domestic violence (including by the father stalking her via the internet, entering her property and interfering with appliances in her home); and “issues raised in relation to the mental health of the mother and its impact, if any, on her capacity to provide for the physical needs of the children, but also to provide for their emotional needs and whether they are at risk of emotional harm or, indeed, physical harm in the mother’s care” (at [5]) (emphasis added).
At [6] of the reasons her Honour referred to the concerns raised by the mother in relation to risk of harm to the children in the father’s care.
This was a case where the father assembled affidavit evidence from witnesses which squarely raised concerns about the mental health of the mother and, for example, whether that evidence provided legitimate concerns in relation to suicidal ideation by the mother; her denigration of the father to the children and the mother’s general state of mental wellbeing. These are all relevant to earlier recommendations that had been made by Dr A in relation to his recommendations concerning the mother pursuing treatment to deal with potential mental health issues.
I emphasise here, as did the primary judge, that all of this evidence is untested. The mother disputes it. It will be contested at the trial. However, faced with that evidence the ICL, charged with the statutory obligations imposed by s 68LA of the Act, supported at least some of the orders the father sought on the urgently listed interim application heard by the primary judge. For example, the ICL supported an interim order for the children to live with the father and for the mother’s time to be supervised and that there be some program of psychiatric treatment or counselling for the mother (see [2] of the reasons for judgment). It bears repeating that these interim orders were made in the context of the parenting proceedings having been set down for a final trial.
The limitations and constraints of an interim hearing, as to allowing for concluded findings of fact to be made, including findings as to relevant s 60CC considerations, are well known and obvious. Without the testing of disputed allegations of fact by cross-examination of relevant witnesses, such disputes simply cannot be satisfactorily concluded by the making of findings by the Court. Likewise, without the similar means of testing expert opinions, the Court is left unable to assume the degree of accuracy, or otherwise, or substance of such opinions, on more than a provisional basis. As the reasons for judgment of the primary judge demonstrate, these limitations were at the forefront of her Honour’s considerations and approach.
Given the nature of the disputed issues of fact in this case (of which there were many and of which some were very serious) the primary judge was bound to take the approach of formulating interim orders in the children’s best interests, allowing for the reasonable possibility that serious allegations, which could not be discarded, might be established at the forthcoming trial. Viewed in that context, the subject orders cannot be characterised as reflecting some failure in the exercise of discretion or the product of error of principle.
There is a vast gulf between a judge allowing for the possibility of allegations being established at a subsequent trial, and the making of concluded findings of fact. Contrary to the mother’s attempts to characterise the primary judge’s approach, her Honour did not make any concluded findings on the most central and serious issues in this case, nor did the primary judge make findings in a form which in any way could fetter the discretion of the trial judge in the FCC hearing the final trial and making final parenting orders in the children’s best interests. The parties, including the ICL, will, in a trial, have the forum in which all disputed issues of fact and allegations may be properly and fully tested and resolved. This appeal from interim orders falls well short of providing such a forum.
For these reasons this appeal and any extant applications in the appeal ought be dismissed.

Costs

In the event the appeal was to be dismissed, each of the father and the ICL respectively seek orders that the mother pay their costs. Those applications were opposed by the mother.
In the case of the father, he provides a schedule of costs calculated on a party and party basis on the scale in the total sum of $11,367.55. The father seeks an order for that amount.
For his part, the ICL has incurred costs, or at least received a grant, for 12 hours in respect of the appeal, equating to $1,680 plus GST. However, the ICL reduces his claim for costs by 50 per cent, or by one half of the grant amount, and claims $840 plus GST for costs. In round terms that can be treated as a claim for $920 for costs.
The mother contends that the father, like herself, might have avoided the costs he has incurred by representing himself. Whilst that is true, the father was legitimately entitled to engage legal representation for the purpose of this proceeding.
The mother further points to her constrained financial circumstances. She currently earns no income. The father’s counsel confirmed that the father currently earns $160,000 per annum but pointed out that the father has substantial commitments, including for financial support of the children, and in respect of joint liabilities. The parents’ main asset is the former matrimonial home which is estimated to be worth $960,000 but has an estimated current mortgage liability of $730,000, leaving net equity of $230,000. Property settlement forms part of the issues to be determined at the trial commencing today in the FCC.
The father, whilst acknowledging the financial disparity between the parents in terms of current income earned (s 117(2A)(a)) relies upon the fact that property settlement is yet to be determined. Primarily the father relies upon the feature of the mother being wholly unsuccessful in the appeal and in relation to the nugatory nature of the appeal from its outset.
In my judgment, the conduct of the mother in pursuing an appeal which never had any real utility is relevant conduct to consider under (c) of s 117(2A). Obviously enough the mother has been wholly unsuccessful in the proceedings within the meaning of (e) of that section.
In my judgment these are justifying circumstances, within the meaning of s 117(2) of the Act, for orders for costs to be made in favour of each of the father and the ICL.
Rule 19.18(1)(a) of the Family Law Rules 2004 (Cth) provides for the Court to make an order for costs in a specific amount. The methodology for arriving at a fixed amount as discussed in Idoport Pty Ltd v National Australia Bank Limited , Idoport Pty Ltd v Donald Robert Argus,[3] has been applied in this Court both at first instance[4] and on appeal.[5] Those principles need not be restated here but suffice to note this Court does not perform something akin to a taxation and the Court must do its best to undertake a reasonable estimation in fixing the appropriate amount for costs on the material available.
[3] [2007] NSWSC 23.
[4]Stoian & Fiening (Costs) [2014] FamCA 944.
[5] See, for example, Graham & Squibb (2019) FLC 93-892.
Broadly, with respect to the father’s claim, it seems to me that there is some degree of duplication between some of the items listed for the solicitor in the schedule having regard to the items for counsel. For example, there is an item dated 27 May 2019 for the solicitor to prepare a Summary of Argument for $829.95 yet an item on 9 May 2019 for counsel to settle the Summary of Argument at a cost of $823.70. Further, matters of estimation as to the duration of the appeal hearing did not prove to be accurate in that the appeal hearing was completed in well under the time periods allowed and costed for in the schedule.
In my judgment it is reasonable to fix a sum of $10,000 in total in respect of the father’s costs of and incidental to the appeal. The ICL’s claim for only $920 in total is reasonable and ought be allowed.
Allowing for the mother’s currently constrained financial circumstances I would make provision for the costs not to be payable by the mother to either the father or the ICL until the property settlement proceedings have been determined.

Orders

I make the following orders:
(1)That the appeal and all extant applications in the appeal be dismissed.
(2)The mother pay the father’s costs of and incidental to the appeal in the fixed sum of $10,000.
(3)The mother pay the costs of the ICL of and incidental to the appeal in the fixed sum of $920.
(4)The mother’s obligation to make payment of the costs as ordered be deferred until the property settlement proceedings between the father and the mother have been finally determined by order or agreement.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 June 2019.

Associate:

Date: 17 June 2019