ODORISIO & ODORISIO
[2011] FamCAFC 32
•24 February 2011
FAMILY COURT OF AUSTRALIA
| ODORISIO & ODORISIO | [2011] FamCAFC 32 |
| FAMILY LAW - APPEAL – CHILDREN –With whom a child spends time – Interim orders – Where the Federal Magistrate dismissed the father’s interim application for parenting orders – Whether the Federal Magistrate failed to give reasons for dismissing the father’s application for time during the Christmas school holidays – No appealable error established – Whether the Federal Magistrate failed to consider s 60CC of the Family Law Act 1975 (Cth) – No appealable error established – Whether the Federal Magistrate failed to consider the issue of equal or substantial and significant time pursuant to s 61DA and s 65DAA of the Family Law Act 1975 (Cth) – Appealable error established. FAMILY LAW - APPEAL – PROCEDURAL FAIRNESS – Whether the Federal Magistrate erred in determining the whole of the father’s application for interim parenting orders when the hearing was confined to the issue of time during the Christmas school holidays – Appealable error established. FAMILY LAW - COSTS – Costs certificates granted in relation to the appeal proceedings. |
| Allesch v Maunz (2000) 203 CLR 172 Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Odorisio |
| RESPONDENT: | Ms Odorisio |
| FILE NUMBER: | SYC | 4106 | of | 2010 |
| APPEAL NUMBER: | EA | 5 | of | 2011 |
| DATE DELIVERED: | 24 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 9 February 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 December 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1463 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr P Batey |
| SOLICITOR FOR THE APPELLANT: | Watts McCray |
| COUNSEL FOR THE RESPONDENT: | Ms A Rees SC |
| SOLICITOR FOR THE RESPONDENT: | Champion Legal Pty Ltd |
Orders
The appeal is allowed.
The father’s application for interim orders is remitted for rehearing by a Federal Magistrate other than Scarlett FM.
The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
I recommend that the rehearing of the application be given such priority as is appropriate.
IT IS NOTED that publication of this judgment under the pseudonym Odorisio & Odorisio is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 5 of 2011
File Number: SYC 4106 of 2010
| Mr Odorisio |
Appellant
And
| Ms Odorisio |
Respondent
REASONS FOR JUDGMENT
Background
The father, Mr Odorisio, appeals against orders made by Federal Magistrate Scarlett on 22 December 2010 in which the Federal Magistrate dismissed the father’s interim application for parenting orders.
The parties are parents to two children, J, born in 2004 and N, born in 2008. The parties separated in 2009. The children have lived with the mother since separation.
After the parties separated there was correspondence between their respective lawyers about what orders would be in the children’s interests. According to the mother’s affidavit sworn 8 December 2010, the parties attempted to resolve the time spent between the children and the father and an “arrangement” was reached in about mid 2009. In November 2009 the mother proposed orders which the father acceded to in a letter dated 4 December 2009. However, this letter noted that the father did not accept that the proposal was in the best interests of the children, but that he would try the suggested arrangement and see the effect of it on the children in the short term.
Since then the father has been seeing the children in accordance with that arrangement. There was no suggestion that the mother had not in the past, nor would not in the future, give effect to the arrangement.
There was argument before the Federal Magistrate as to whether this was an “agreement” or an imposition on the father by the mother. It is clear from the submissions made by the father’s counsel to the Federal Magistrate that the father did not regard it as an agreement, in the sense that there was a meeting of minds between him and his wife, but rather that he was given little choice but to accept the terms proposed by the mother. The Federal Magistrate was not asked to decide the true complexion to be put on the arrangement, and to a degree it was largely irrelevant to his considerations. The argument devolved to the position where senior counsel for the mother said that her client believed that there was an arrangement in place to govern the Christmas holiday period.
The father’s applications (both interim and final) sought a graduated increase in the time to be spent with J and N arriving at an essentially equal sharing of time with the mother.
The mother’s response to the interim application was to ask that it be dismissed. In her response to the final application she sought an order for joint parental responsibility and orders providing for the children to spend time with the father, albeit not as extensive as those proposed by the father.
Procedural history
On 15 November 2010 the father filed an application seeking final and interim orders. The application seeks final orders in relation to property and the children.
The application for interim orders was solely in relation to the children. In essence the interim orders sought to put in place a graduating increase in time spent by the children with the father up to August 2011. In particular, order 2.1.4 related to time to be spent between the children and the father during the Christmas school holidays due to start on 17 December 2010. Apart from specifying arrangements for Christmas day, the orders proposed that the children would spend a week together with the father, be returned to the mother for two weeks and then spend a further two weeks with the father. The balance of the orders related to the school holiday periods that will occur later in 2011, the children’s birthdays, the parent’s birthdays and Father’s and Mother’s day.
The application was first listed before the Court on 13 December 2010. The father pressed for an urgent determination of what time the children should spend with him over the Christmas period and the holidays. The matter was set down for interim hearing on 20 December 2010. At the conclusion of the hearing, his Honour reserved his decision and made orders and published his reasons on 22 December 2010. His Honour dismissed the father’s interim application in its entirety.
The Grounds of Appeal
The grounds of appeal as drawn in the Notice of Appeal are:
1. That the learned Federal Magistrate erred in failing to consider or apply the objects and principles of Section 60B of the Family Law Act.
2. That the learned Federal Magistrate erred in law in failing to make consent orders for shared parental responsibility.
3. That the learned Federal Magistrate erred in dismissing the father’s application for parenting orders without ensuring adequate, or any arrangements were in place for the two children to spend equal, substantial or significant time with the father.
4. That his Honour erred in making orders that were not in the best interests of the children.
5. That His Honour erred in awarding a costs order against the father.
6. That His Honour failed to identify the circumstances necessary to overcome the presumption in Section 117(1).
7. Such other grounds as become available upon publication of His Honour’s reasons for judgment.
At first glance, the grounds of appeal are curious, containing assertions of error in making a costs order against the father (grounds 5 and 6) when his Honour made no costs order. Apparently the grounds were drafted without the benefit of his Honour’s reasons for judgment. However, no amended notice of grounds of appeal was filed.
During the course of argument on the appeal, counsel for the appellant raised a further challenge to the decision; that the father was denied procedural fairness by the Federal Magistrate’s decision to dismiss the whole of the application notwithstanding that only part of it was argued before him. While this additional challenge took senior counsel for the mother by surprise, she was in a position to deal with it and directed argument to the issue.
The argument devolved to two challenges to the decision of the Federal Magistrate. That relating to the decision to dismiss so much of the interim application as related to the Christmas school holiday period in early 2011 and the part of the decision that related to the dismissal of the application in toto.
These grounds are somewhat illuminated by the appellant’s written argument. It was asserted that, having being seized of a controversy, the Federal Magistrate erred in failing to determine the issues before him. It was argued that the Federal Magistrate failed to properly exercise his discretion by acting, “…on extraneous considerations and what he has done really amounted to a refusal to hear and determine a matter (that the husband) was entitled to have dealt with.” The document argues that his Honour determined the matter on the basis of whether the matter was urgent.
It was also argued that the Federal Magistrate failed to give adequate reasons for his decision and, in particular, given that he was dealing with an application regarding parenting orders, was required to give proper consideration to the legislative requirements of the Family Law Act1975 (Cth) in coming to that decision.
It was during oral argument on the appeal that the grounds crystallised. The first complaint is that his Honour failed to give reasons or any adequate reasons for refusing to make an order for Christmas school holiday time as sought by the father. The second complaint is that while the argument before him was limited to part of the interim application, his Honour dismissed the whole of the application and in so doing failed to afford the father procedural fairness.
Procedural Fairness
There was dispute about the ambit of the hearing before his Honour and so it is appropriate to lay out in some detail the circumstances in which the matter came to be heard by his Honour.
On 13 December 2010 when the application was first before the Court, counsel for the father urged the Federal Magistrate to give the interim application a hearing before Christmas. Counsel told the Federal Magistrate that the orders to be sought in that hearing were, “…block periods of time…over the Christmas holidays” (transcript of 13 December 2010 at page 7). The listing was opposed by senior counsel for the mother on the basis that there was an existing arrangement providing for contact between the father and children over Christmas. Before acceding to the request to list the matter, the Federal Magistrate again clarified with counsel for the father what was to be ventilated at an interim hearing (transcript of 13 December 2010 at page 8):
HIS HONOUR: …So is your client seeking the interim orders set out in the application?
MR TODD: He is, your Honour.
HIS HONOUR: School holidays. I wouldn’t have thought that Autumn, Winter and Spring school holidays would be that urgent. I wouldn’t have thought that Mother’s Day and Father’s Day is all that urgent.
MR TODD: No. It is accurate to say that, your Honour. The urgency is in relation to the summer or Christmas school holidays.
HIS HONOUR: …So the orders that are said to have such urgency would be those under the heading 2.1.4, 2.1.5.
MR TODD: That’s correct your Honour.
The matter was then fixed for hearing on 20 December 2010.
On 20 December 2010 when the matter was first called on for hearing, counsel for the father was not present but his instructing solicitor was and senior counsel for the mother was present. His Honour, in discussing the matters listed before him and in relation to the limitations on his time said:
…With all the matters that are before me today, I am making it quite clear to practitioners I am looking at two matters: (1) what is the necessity for this matter to be litigated today on the Monday before Christmas: and (2) does the evidence adduced support the orders that are being asked for? Anyone who has cold feet about either of those points might need to give the matter serious consideration.
The matter was stood in the list.
When the matter was next called on, counsel for the father indicated to his Honour that the father was pressing for orders in terms of the interim application to which the Federal Magistrate asked, “The whole of them, including orders for Father’s day?” Counsel said that the father wanted them all considered because he did not want to have to come back to Court again.
The Federal Magistrate said (transcript of 20 December 2010 at page 6):
… I don’t like the chances…
To which counsel for the father said:
You don’t like my chances. If your Honour is not prepared to do that, then the immediate pressing matter is the current Christmas break.
Very shortly after this, counsel again said to his Honour (transcript of 20 December 2010 at page 7), “…I am limiting myself now to the Christmas break – is a regime that would not cause any concern to anybody.”
Senior counsel for the mother too appeared to be limiting her argument to the issue of Christmas school holiday contact because at page 8 of the transcript she said:
…So the issue that your Honour is being asked to determine is the appropriate arrangement both for [J] and [N] in terms of these holidays only.
In further submission, senior counsel for the mother said at page 11 of the transcript:
What your Honour has to decide today is what are the appropriate arrangements for these two little boys in the next few weeks, given that there is a family dispute conference on 18 January and the matter comes back before the court on 20 March.
Senior counsel then made submissions on the mother’s position, which was that the older child spend alternating weeks of the school holidays with the father and outlined the different regime proffered by the mother in relation to the younger child.
Apart from the submissions on behalf of the mother that urged the Federal Magistrate to find that the arrangement that had been previously put in place was appropriate and should be undisturbed, no submission was addressed by either counsel to his Honour on the other aspects of the father’s interim application.
In his reasons for judgment under the heading “Evidence” at paragraph 22 and following, the Federal Magistrate referred to the application and the evidence before him. He noted at paragraph 22:
At the interim hearing on 20th December, counsel for the father told the Court that his client was seeking all the interim orders set out in the Interim Application. I asked him if that included the proposed orders about time spent with the children on Father’s Day in September 2011, and he informed the Court that the father sought all the orders in the application as he did not wish to return to Court.
When his Honour came to record the submissions made in the matter (at paragraph 45), his Honour again noted, “Counsel for the father told the Court that his client sought all the orders in the interim application.”
His Honour made no reference to the discussion in which the ambit of the hearing had been limited by the concession of counsel for the father.
At paragraphs 48 and 49 his Honour sets out the competing proposals of the father and the mother about the Christmas school holiday period. In essence this was that the father wished to spend block periods with the children during the holidays and the mother relied on a pre-existing arrangement which provided for time between the father and the children, but of less time than proposed by the father.
His Honour concluded (at paragraph 75) that he was not prepared to make an order for block time to be spent between the children and the father, “…without some evidence that this would be in [N’s] best interests.”
After noting that the parties were to attend a conference with a Family Consultant on 18 January 2011, his Honour said at paragraph 80:
The evidence and submissions in support of the application to make interim orders in relation to the younger child spending block periods of time with the father are unconvincing, to say the least.
His Honour then turned to the other orders sought by the father in the interim application and the order sought that the application be listed urgently and determined before the commencement of the school holidays on 17 December 2010.
As to the orders sought that provided for time with the children in the forthcoming school holidays (being orders 2.1.6 and 2.1.7) the Federal Magistrate said, “The need to make orders about these holidays prior to 17 December 2010 is not readily apparent”.
His Honour then referred to each order sought in the interim application as follows:
83. The father’s proposed order 3 provides that the children will live with their mother at times when they are not with their father. There is no issue about that. They live with their mother now.
84. The father’s proposed order 4 relates to the children’s birthdays, which fall on [x] January and [y] August. It appears from the letter of 17 December that the children will be with their father until 5pm on New Year’s Day, which is only … before [J’s] birthday. [N’s] birthday is not until [y] August, so the need for orders about either birthday is not apparent.
85. In any event, the mother in her Response seeks final orders about [J’s] birthday and [N’s] birthday in virtually identical terms to those sought by the father, so where is the issue?
86. The father’s proposed orders 5 and 6 relate to the time with the children on the parents’ birthdays, Mother’s Day and Father’s Day.
87. The mother in her Response seeks final orders that the children should be with the father on Father’s Day and with the mother on Mother’s Day, albeit with different commencement and finishing times. However, there seems to be little need to litigate that issue in December 2010, especially when Mother’s Day falls on 8th May 2011 and Father’s Day does not fall until 4th September 2011.
88. The father’s proposed order 7 seeks time with the children on Easter Sunday. It is a matter of public knowledge that Easter Sunday next falls on 24th April 2011, so there is no need for an order to be made in December 2010.
89.The father’s proposed order 8 relates to arrangements for changeover between the parents. The father sets out in his affidavit that he believes that it is important that the parents pick up and deliver the children personally at each other’s homes. This application seems a little premature, given that there is an apprehended violence order in force against the father for the protection of the mother and both of the children. That order is in force until 23rd February 2011.
90.True it is that the father claims that the mother’s allegations were not true, but he did consent to the order being made. If he wished to contest the veracity of the mother’s claims it was open to him to have the matter heard by the Local Court. The Court is required to consider whether any family violence order is in force. [footnote omitted]
91.The father’s proposed interim order 9 relates to the parents’ attendance at important events, such as First Holy Communion and Confirmation services. [J] is just about to turn seven, and [N] is aged two. There is no evidence that either child will be confirmed or attending his first Holy Communion within the next twelve months. The Court would be in a position to decide this matter on a final basis before the end of 2011, so why should this clearly non-urgent issue be litigated on an interim basis as a matter of urgency in December 2010, or at all?
92.The father’s proposed order 10 seeks the institution of a communication book to facilitate the passage of information between the parties. The father’s reasons for this order are set out in his affidavit:
I understand that communication is always difficult with separating parents and indeed it has been quite difficult for the wife and I since our separation. [footnote omitted]
93.A communication book may be of some value, but it hardly seems to be such a pressing issue that it needed to be decided by 17th December 2010. Indeed, there was no submission made about it, or most of the other interim orders sought, at the hearing on 20th December 2010. This is despite the fact that counsel for the father told the Court that the father was seeking all the orders in his interim application.
It appears that the purpose of the discussion in these paragraphs was to indicate that they were not matters that required urgent hearing. His Honour said at paragraph 93, apropos an order seeking the use of a book by which the parents might communicate:
Indeed there was no submission made about it, or most of the other interim orders sought, at the hearing on 20th December 2010. This is despite the fact that counsel for the father told the Court that the father was seeking all the orders in his interim application.
On appeal, senior counsel for the mother did not agree that the hearing had been confined to a discussion of the issue of Christmas holiday arrangements for the children and said that she believed that the hearing had concerned the whole of the interim application. She had certainly pressed his Honour to find that the agreement that the mother pressed was appropriate (and which contained a regime up until August 2011) and in the children’s best interests, she made no submissions referring to other parts of the orders sought. However, with the advantage of a transcript of the proceedings before his Honour in December 2010, it is clear from what both counsel said in response to his Honour’s comments about the pressures on his time, that the ambit of the application was limited to the Christmas holiday time.
Senior counsel for the mother argued that, even if counsel had confined themselves to a particular issue, the whole of the interim application was before his Honour and he was at liberty to consider it all. That is, on one view correct. However where the moving party had, as here, in direct response to his Honour’s views about what was or was not appropriate to agitate on that day, confined the application to the immediate Christmas holiday period, for his Honour to consider the whole of the application (and dismiss it) without giving either counsel an opportunity to be heard denied the father procedural fairness.
No better expression of the principle can be found than in the following paragraphs of Kirby J in Allesch v Maunz (2000) 203 CLR 172; 173 ALR 648; 26 Fam LR 237; [2000] HCA 40 at [35]-[36]:
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.” [footnotes omitted]
In the context of his Honour’s comments at the commencement of the hearing and the position adopted by both counsel which limited the ambit of the hearing, for his Honour to proceed and determine the whole of the issues raised in the interim application without notice to either party, but particularly the father, did not afford him procedural fairness.
During the debate on the appeal, I raised with senior counsel for the mother whether a reasonable reading of his Honour’s decision would lead to the conclusion that he in truth only considered the Christmas holiday aspect of the matter and in determining that that particular aspect should fail, mistakenly ordered that the whole of the interim application should be dismissed. She agreed that that was a reasonable reading of the decision.
After determining that he would not make the orders governing Christmas holidays as the father asked, the Federal Magistrate certainly turned his attention to the balance of the orders sought in the interim application. To each, he expressed the view that either there was no need for the orders to be made before 17 December 2010 (orders sought about school holidays in Autumn, Winter and Spring; orders concerning N’s birthday, Easter, important events in the lives of the children and the adoption of a book through which the parties can communicate about the children); or there was no need for the orders because the mother sought those or similar orders in her response to final orders (the children’s birthdays, Mother’s and Father’s day), or the orders could not in fact be made (the father’s proposal that the children be collected personally from each other’s home when there was an Apprehended Violence Order in place in the mother’s favour).
His Honour then made a number of comments about unnecessary litigation as an abuse of the Court’s process. He said at paragraphs 98 and 99:
Interim hearings are not intended to be a “short cut” to a final hearing. They are solely to deal with matters that need an order quickly to meet with an issue that cannot wait until a final hearing.
Practitioners need to be aware that the Court will give close scrutiny both to the need for matters to be litigated on an interim basis and to the evidence adduced in support of the interim orders sought. If an applicant is not able to satisfy the Court on both counts, the likely result is that the application will be dismissed, as this application is about to be.
A close reading of the reasons for decision and in particular his Honour’s final comments about the balance of the application, coupled with his remarks about unnecessary litigation being conducted by way of interim applications, seems very much to support the appellant’s position which is that his Honour did in fact consider the whole application and intended to dismiss it.
I am of the view that he did indeed consider the whole of the application rather than the discrete part to which counsel confined themselves. I am fortified in this conclusion by his Honour’s remarks in paragraph 93 that no submission was addressed to the issue of the communication book “or most of the other interim orders sought”.
For the reasons already indicated, I find that his Honour erred in law.
Failure to give reasons
I turn now to consider the second challenge to his Honour’s decision that he failed to give reasons for dismissing the father’s application for time with the children during the Christmas school holidays.
In his reasons for decision, the Federal Magistrate noted in a number of places, the competing proposals of the parties. At paragraph 27 he set out the reasons advanced by the father in support of an increased regime of time. At paragraph 35 his Honour noted the father’s complaint that the mother had not afforded him the amount of time he desired with the children.
At paragraph 40 the Federal Magistrate noted the mother’s position was that there was an arrangement negotiated between the parties in the middle of 2009 that catered for time spent between the children and the father and that also provided for an increase in the time they spent together. That arrangement made provision for time between the father and the boys over the Christmas school holidays.
His Honour noted the submissions made on behalf of both parties. It was argued for the father that he had to take whatever time the mother provided and that the children should spend their time with him together, subject to his undertakings to take the younger boy home if distressed and to provide him with a break with his mother in any extended period of time away from her.
The mother’s counsel submitted that there was a long standing arrangement that the mother believed would govern the coming periods including Christmas. It was argued that there was no evidence that the father’s proposal to extend the time that he spent with the younger child was suitable for a child of that age. The mother’s position as noted by the Federal Magistrate was that the present arrangement was suitable for the children.
At paragraphs 63 and 64, his Honour considered the terms of a letter sent to the father’s solicitors from those acting for the wife in which the time to be spent between the father and the children was set out in line with the arrangement forged in mid 2009.
The Federal Magistrate found that the mother believed there was an existing arrangement in place, that was in its terms similar to the arrangement for the previous year and the mother intended to be bound by that arrangement.
His Honour noted (at paragraph 69) that the present arrangement, “…appear on their face to assist in maintaining a meaningful relationship between [J] and his father”.
At paragraph 70 he noted that the child N has been spending significantly less time with the father since separation. He observed that he could make no determination about the strength of N’s relationship with the father but considered it important that the relationship be built up over time.
His Honour then said that in the circumstances the Court would approach the father’s proposed increase with “a great deal of caution”. He said that there was no evidence that such a “drastic change” in the arrangements for the younger child would be in his best interests and no evidence that it ought to be made before the parties had had an opportunity to discuss the matter with a Family Consultant in mid January 2011.
I do not find that his Honour failed to provide sufficient reasons for his decision not to make an order for Christmas time contact with the children, as the foregoing analysis indicates.
The appellant’s written submissions argued that his Honour was obliged to consider the legislative pathway set out in s 60CC and his reasons do not reflect that he did.
Under the heading “The Applicable Law” and following his Honour referred to s 60CA of the Family Law Act 1975 (Cth) and the provision of s 60CC(2), 60CC(3), 60CC(4) and (4A). His Honour said of the aforementioned sections, “I have considered all these matters” (paragraph 56).
Although his Honour did not make explicit reference to the provisions of each section his reasons reveal that he considered the sections that might have relevance to the issue he decided.
I find no error in his Honour’s approach, nor that he failed to take into account the matters which s 60CC required him to consider as relevant to the issue before him.
Equal Shared Parenting
It was also argued for the appellant that where both parties sought an order for equal shared parenting, his Honour erred in not taking into account the issue of equal time or substantial and significant time.
Both parties sought an order for equal shared parenting. The father in both his interim and final applications, the mother in her response to the final orders. As the argument developed before the Federal Magistrate, it seemed that little turned on whether his Honour in fact made the order for equal shared parenting at the hearing or not. It was agreed by both his Honour and counsel for the father, that the presumption of equal shared parenting found in s 61C of the Family Law Act1975 (Cth) applied and neither party sought to bring evidence to rebut it.
The appellant’s argument was that if it was accepted that the presumption applied, his Honour was obliged to consider the question of equal time or substantial and significant time and the question of reasonable practicability.
His Honour referred to the issue of equal shared parenting at paragraph 47 of his reasons for decision. He said:
Counsel for the mother addressed the Court at some length. She said that the Court was not required to deal with the question of equal shared parental responsibility.
At paragraph 58, his Honour said, referring to Goode & Goode [citations omitted]:
The Court must also consider the presumption in s.61DA of the Act that it is in the children’s best interests for their parents to have equal shared parental responsibility for them, and whether that presumption should apply in the particular circumstances of the case ... In this case, it is not an issue that needs to be decided. It will be considered at a final hearing (see s.61DB).
Even though senior counsel for the mother submitted that the issue of equal shared parenting was not a matter necessary to be determined at that hearing, s 61DA(3) required a consideration of that question at an interim hearing (subject to the provisions of the section).
Having regard to his reasons for decision, it seems that the Federal Magistrate did not give consideration to the provisions of s 65DAA.
I am of the view that in the circumstances in which both parties sought an order for equal shared parenting, the Federal Magistrate should have given consideration to the presumption to which he referred and to what extent it applied to the decision he was to make. I am thus of the view that his Honour misdirected himself about the application of the particular provisions to which he referred and erred in law.
Disposition of the appeal
During argument on the appeal, I questioned counsel for the father about the utility of pressing so much of the appeal as related to Christmas school holiday time in 2011 when clearly the passage of time had rendered that part of the appeal pointless. It was argued that if I found error, I would re-exercise his Honour’s discretion and consider the whole of the interim application to make orders for forthcoming holiday periods.
I do not propose to do that. In my view it is not appropriate for an appeal court to re-exercise the discretion in an interim application such as this because it leaves a party with no avenue for reconsideration of the matter but the High Court.
I propose to remit the father’s application for interim orders to the Federal Magistrate’s Court to be heard by another Federal Magistrate. I will recommend that the matter receive such priority as the Court can afford it.
Costs
At the conclusion of the hearing both counsel addressed on the issue of costs. In the event that error was identified and the appeal was successful, each sought a costs certificate.
Having identified error and determined that the appeal be allowed, I am of the view that there should be no costs order and that it is appropriate that each party receive a costs certificate.
_____________________________________________________________________
I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 24 February 2011.
Legal Associate:
Date: 24 February 2011
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