OWEN and GOSON

[2022] FCWA 156

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: OWEN and GOSON [2022] FCWA 156

CORAM: O'BRIEN J

HEARD: 15 JULY 2022

DELIVERED : Ex tempore

FILE NO/S: [REDACTED]

BETWEEN: MR OWEN

Applicant

AND

MS GOSON

Respondent

Catchwords:

APPEAL - Where the father seeks to appeal parenting orders made by a Family Law Magistrate after a trial - Discussion of principles relevant to the grant of leave, and the proper distinction to be drawn between interim parenting orders and orders made following a trial, notwithstanding that both forms of orders are interlocutory in nature - Where the father asserts errors of law and in the exercise of discretion, inadequacy of reasons, and absence of procedural fairness - Where there is merit in each of the grounds of appeal - Leave to appeal granted and appeal allowed - Matter remitted for rehearing.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr M Beckerling
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Efficient Law Group
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Allesch v Maunz (2000) 203 CLR 172

Banks & Banks (2015) FLC 93-637

Bennett and Bennett (1991) FLC 92-191

Bhatnagar & Riju [2018] FamCAFC 144

Browne v Browne [2019] WASCA 1

Cape & Cape (2013) FLC 93-549

CDW & LVE (2015) FLC 93-683

Doherty & Doherty [2016] FamCAFC 182

Dundas & Blake (2013) FLC 93-552

French & Fetala [2014] FamCAFC 57

Gronow v Gronow (1979) 144 CLR 513

Guthrie and Guthrie (1995) FLC 92-647

Heidari & Ebadi [2020] FamCAFC 316

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor; Tatmar Pastoral Co Pty Ltd and Anor v Housing Commission of New South Wales [1983] 3 NSWLR 378

Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101

Jess and Ors & Jess and Ors (2014) FLC 93-620

Johnson Tiles Pty Ltd and Ors v Esso Australia Ltd and Anor (2000) 104 FCR 564

L v P [2022] WASCA 40

Lovell v Lovell (1950) 81 CLR 513

Lovett & McGregor (2019) FLC 93-935

Mallet v Mallet (1984) 156 CLR 605

Marsden & Winch (2013) FLC 93-560

Medlow & Medlow (2016) FLC 93-692

Minister for Immigration and Citizenship v SZGUR and Anor (2011) 241 CLR 594

Newlands v Newlands (2007) 37 Fam LR 103

Paggett & Cable (2015) FLC 93-670

Poisat & Poisat (2014) FLC 93-597

Rice and Asplund (1979) FLC 90-725

Stott & Holgar and Anor [2017] FamCAFC 152

Tibb v Sheean (2018) 58 FamLR 351

U v U (2002) 211 CLR 238

Vallans v Vallans (2019) 60 Fam LR 193

Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Owen and Goson has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the order pursuant to r 311 Family Court Rules 2021 (WA).

1The parenting proceedings between [Mr Owen] ("the father") and [Ms Goson] ("the mother") regarding their son [Child A] born [in] November 2014 proceeded to a trial before a Family Law Magistrate on [in] June 2021. It was apparent that some matters were likely capable of agreement and at a separate hearing on [a different date later in] June 2021 various orders were made by consent. The trial magistrate otherwise reserved her decision.

2The trial magistrate delivered judgment [in] December 2021, and made orders ("the primary orders") discharging all interim parenting orders and otherwise relevantly providing for:

(a)the parties to have equal shared parental responsibility, subject to the mother having sole parental responsibility for deciding which high school [Child A] would attend;

(b)a requirement for the mother to consult with the father prior to exercising that sole parental responsibility;

(c)[Child A] to live with the mother during school terms;

(d)[Child A] to spend time with the father during the school term on a fortnightly cycle as follows:

(i)in week one, from after school Thursday until before school Monday; and

(ii)in week two, from after school Thursday until before school Friday;[1]

(e)those arrangements to be varied during school holidays such that [Child A] would spend time with the father:

(i)in week one, from 4.00 pm on Wednesday until 4.00 pm on Monday; and

(ii)in week two, from 4.00 pm Wednesday until 4.00 pm on Friday.

[1] In each case with the relevant start or finish time to be 4.00 pm on a non-school day.

3Specific orders were also made in relation to special occasions, handover and communication between the parties. The substantive applications and responses, and an unrelated enforcement application in the financial case, were otherwise dismissed.

4The father sought to appeal. His solicitors initially misunderstood the appellate pathway and sought to commence the appeal in the Supreme Court of Western Australia. [In] March 2022, I extended the time for filing of the father's notice of appeal and application for leave to appeal. Those documents were then filed in compliance with that order.

5The father seeks to appeal the primary orders in relation to parental responsibility and the time Child A is to spend with him both during school term and school holidays. If the appeal is successful, he seeks remitter.

6The father's notice listed four grounds of appeal, set out in more detail later in these reasons. Distilled, they assert inadequacy of reasons, error in finding that the statutory presumption of equal shared parental responsibility was rebutted, discretionary error in the weight given to existing parenting arrangements in determining future parenting arrangements, and an absence of procedural fairness in making orders not sought by either party without giving adequate opportunity to address them.

7The application for leave to appeal, and the appeal if leave is granted, are opposed by the mother.

Brief background

8The parties lived together in a de facto relationship from 2012 to 2018. Both subsequently re-partnered.

9The father commenced proceedings [in] February 2019. He sought equal shared parental responsibility, and orders whereby Child A would spend eight nights with him in blocks of two, one, four and one night over each fortnight. He sought various other specific orders not relevant for present purposes.

10The application were listed for an initial hearing [in] April 2019. The parties agreed to attend an informal conference [later in] April 2019 and to vacate that hearing. At their joint request, a further hearing date was allocated [in] July 2019. The primary judgment records that the parties reached an informal agreement whereby Child A was spending five nights per fortnight with the father and the remaining nine nights with the mother.

11The mother filed her response [in early] July 2019. She sought sole parental responsibility for all decisions about major long-term issues (albeit with a requirement to consult), and that "[Child A]'s time with the Father be particularised, within 28 days of resolution of the interim issues". On an interim basis, she proposed orders for Child A to spend time with the father each alternate Saturday and Sunday from 8.00 am to 6.00 pm, and in the intervening week each Tuesday and Thursday from after school until 6.00 pm.

12At the scheduled hearing [in] July 2019, the parties were ordered to attend a case assessment conference [in] August 2019 and an interim hearing was listed for [a date in] October 2019. At the case assessment conference both parties reported that the informal agreement referred to above was "generally being adhered to", but that it did not "occur without complications". Both parties were recorded as having claimed to be victims of violence perpetrated by the other.

13The matter proceeded to argument [in] October 2019 and the magistrate then assigned to the proceedings reserved his decision. His Honour delivered reasons [later in] October 2019. An interim order for equal shared parental responsibility was made by consent. Orders were made for Child A to live with the mother and spend time with the father on a fortnightly basis as follows:

(a)in week one, from after school Tuesday (or 6.00 pm if a non-school day) until the commencement of school Wednesday (or 9.00 am if a non-school day), and from after school Friday (or 6.00 pm if a non-school day) until the commencement of school on Monday (or 9.00 am if a non-school day); and

(b)in week two, from after school Thursday (or 6.00 pm if a non-school day) until the commencement of school on Friday (or 9.00 am if a non-school day).

14While orders were made for certain specific occasions, the interim orders did not otherwise differentiate between school term and holiday arrangements.

15The mother then filed an amended response [in] May 2020, seeking financial orders which are not relevant for present purposes. The final parenting orders she sought continued to propose that she have sole parental responsibility, but now with a requirement that she "notify" the father of any decision she made in relation to long-term and significant issues. She proposed that Child A live with her, and spend time with the father on a fortnightly cycle as follows:

(a)until [late in] November 2022 - in week one, from after school Friday until the commencement of school on Monday, and in week two from after school Wednesday until the commencement of school on Friday; and

(b)thereafter, for "five-night blocks per fortnight" from after school Wednesday until the commencement of school on the following Monday.

16Apart from various special occasions, she did not propose any change to that routine during school holidays.

17A dispute then arose between the parties as to the primary school to be attended by Child A. At the time, Child A was attending [Primary School A] and day-care in [Suburb B]. That arrangement had been agreed in mid-2019 at a time when the mother was living in [Suburb C] and the father was living in rental accommodation in [Suburb D]. The mother moved to rental accommodation in Suburb B in February 2020 and sought interim orders for Child A to attend at [Primary School B]. The father opposed that application, proposing that Child A continue at Primary School A. The magistrate then assigned to the proceedings heard and determined the dispute and made orders [in] June 2020 for Child A to attend Primary School B from the commencement of term three.[2] As will be seen, that dispute and the expressions by the parties of their desires as to what high school Child A would eventually attend assumed some importance in the trial judgment.

[2] Both parties proposed arrangements for Child A to spend time with the father pivoting around the beginning or end of a school day. Each proposed that where any relevant day was a non-school day, the hand over time in question should be 4.00 pm. For ease of reading, that variation is not repeated in the summary of the orders sought.

18The financial proceedings were resolved by agreement and the parenting proceedings progressed towards trial. The trial took place over two days commencing [in early] June 2021.

The proposals of the parties at trial

19By his minute of proposed final orders filed [in] May 2021, the father relevantly sought:

(a)an order for equal shared parental responsibility;

(b)that Child A live with the mother;

(c)that Child A spend time with him on a fortnightly basis as follows:

(i)in week one, from after school on Wednesday until before school on Monday; and

(ii)in week two, from after school on Wednesday until before school on Friday.

20By her minute of proposed final orders filed shortly prior to trial, the mother relevantly sought:

(a)an order that she have "sole parental responsibility for major long-term decisions of [Child A]' (sic);

(b)that she be required to notify the father of any decision made in relation to Child A's long-term care and well-being, including significant decisions regarding health, education and religion;

(c)that Child A live with her;

(d)that during school terms Child A spend time with the father on a fortnightly basis as follows:

(i)in week one, from after school on Friday until the commencement of school on Monday; and

(ii)in week two, from after school on Wednesday until the commencement of school on Friday; and

(e)that Child A spend time with the father during school holidays for "five-night blocks per fortnight commencing from 4.00 pm on Wednesday until the commencement of school on the following Monday (or 4.00 pm if it is not school day)".

21That minute was accurately reproduced in the judgment. That said, the trial magistrate stated that in the minute the mother "sought orders that [Child A] spend five consecutive nights in the father's care each fortnight". Self-evidently, that was wrong. As pointed out in her written submissions for the purposes of the appeal, the mother proposed that during school term Child A spend three consecutive nights with the father one week and two consecutive nights the next. The reference to blocks of five consecutive nights was proposed to apply during school holiday periods only.

22The trial magistrate said further that at the commencement of the trial the mother changed her position and confirmed that she sought that the then current arrangement for Child A remain in place. In fact, the mother sought the orders set out in the minute just described. The arrangements she proposed differed from those then in place pursuant to the interim orders of October 2019.

23Each party sought various specific issues orders, and orders in relation to special occasions and the like, which were largely resolved by the making of consent orders [in] June 2021 and are not otherwise relevant for present purposes.

24The primary orders differed in material respects from those proposed by either party.

Relevant legal principles - leave to appeal

25The parties were not married. The proceedings fall to be determined pursuant to the Family Court Act 1997 (WA) ("the Act").

26The relevant orders are interlocutory in nature and were made by a Family Law Magistrate in the exercise of non-federal jurisdiction; leave to appeal is accordingly required.[3] If leave is granted, the appeal must proceed by way of a rehearing, but the court "may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the Magistrates Court",[4] and "may make such decrees as it thinks fit, including a decree affirming, reversing or varying the decree the subject of the appeal".[5]

[3] Family Court Act 1997 (WA), s 211(1).

[4] Ibid, s 211(2)(a).

[5] Ibid, s 211(2)(b).

27For leave to appeal to be granted, the primary test requires that the court be satisfied that the decision in question is wrong, or at least attended with sufficient doubt to warrant the grant of leave, and that a substantial injustice will result from a refusal of leave to appeal. That test is to be applied in the general run of cases, but in the context of the unfettered discretion to grant leave to appeal. It may give way to the particular interests of justice in appropriate cases.[6]

[6] Medlow & Medlow (2016) FLC 93-692; Jess and Ors & Jess and Ors (2014) FLC 93-620; Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101.

28The first limb of the primary test is directed to the outcome at first instance, rather than to the path by which that outcome was reached, keeping a firm focus on the real issue - whether there is a realistic prospect of the decision being reversed if the appeal is permitted to proceed. The consideration of the first limb of the test informs the consideration of the second.[7]

[7] Jess and Ors & Jess and Ors (2014) FLC 93-620, [63].

29That said, legislative requirements that leave be granted before a party may appeal against an interlocutory order reflect the policy consideration that court resources "should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties".[8] Binding authority establishes that the orders in this case, even though they were made after a trial and characterised as "final", are in fact interlocutory.[9] That is consistent with the fact that the legislation specifically empowers the court to discharge, vary or suspend all or part of a previous order.[10]

[8] Johnson Tiles Pty Ltd and Ors v Esso Australia Ltd and Anor (2000) 104 FCR 564, 583 [42].

[9] CDW & LVE (2015) FLC 93-683.

[10] Family Court Act 1997 (WA), s 89(1).

30Nevertheless, there is a clear distinction between interim parenting orders intended only to operate pending trial, and parenting orders made following a trial. While both are interlocutory, any discharge or variation of orders made following trial (other than in the context of an appeal or contravention) can only be pursued by the commencement of fresh proceedings. On the commencement of those proceedings, an applicant for such discharge or variation must address what is commonly referred to as the rule in Rice & Asplund.[11]

[11] Rice and Asplund (1979) FLC 90-725, 78,905.

31That rule is intended to apply to every case in which "final" parenting orders are sought to be discharged or varied subsequently.[12] It recognises both the benefits of finality of litigation, and "that considerations acutely relevant to a child's best interests can change, including, for example, by reference to the child's age and level of maturity".[13] What is required is a consideration of whether a prima facie case of changed circumstances has been established and, if so, whether that case is a change of circumstances sufficient to justify embarking on a full hearing of the new application.[14]

[12] Poisat & Poisat (2014) FLC 93-597, [13].

[13] Ibid, [41].

[14] Marsden & Winch (2013) FLC 93-560, [36].

32The fact that the rule applies in relation to orders made following a trial appropriately informs a consideration of whether leave to appeal against such orders should be granted. That is not inconsistent with the legislative provisions, bearing in mind that the discretion to grant leave is unfettered, and that the primary test described will give way to the interests of justice in appropriate cases. It would, in my view, be wrong when considering the question of leave to simply ignore the difference between the future litigation pathways available in the case of interim orders as distinct from orders made following a trial, notwithstanding that both forms of order are interlocutory.

33As will appear, in the present matter I conclude that the primary test for leave is satisfied. Even were that not so, in the circumstances of the present case I would nevertheless grant leave to enable the appeal to be determined on its merits.

The grounds of appeal

34The father raises four grounds of appeal, set out verbatim below:

1."The learned magistrate erred in law and in principle in being satisfied for the purposes of s 70A(4) that the evidence rebutted the presumption of equal shared parental responsibility.

2.Further or alternatively, the earned magistrate erred:

(a)in law, by misconstruing the nature of her obligation under s 66C(l) and, or, by failing to give any or any proper consideration to all of the other relevant s 66C factors in making orders about parental responsibility;

(b)in giving too much weight to the evidence of the parties' previous disagreement about [Child A]'s schooling; and

(c)in giving reasons inadequate to illuminate the path by which her Honour's decision as to parental responsibility, was reached.

3.The learned magistrate erred in law and in principle in making orders about [Child A]'s living arrangements by failing to give any or any proper consideration to all of the relevant s 66C factors and further, or alternatively;

(a)in giving too much weight to the evidence of [Child A]'s familiarity with, and the stability of, the existing arrangement;

(b)in giving reasons inadequate to illuminate the path by which her Honour's decision as to [Child A]'s living arrangements, was reached.

4.The learned magistrate failed to provide the parties an adequate opportunity to address the orders she proposed to make in relation to [Child A]'s living arrangements, being orders not sought by either of them, before those orders were before they were made" (sic).

35Counsel for the father abandoned Ground 4 at the hearing.

Grounds 1 and 2

36These grounds, which challenge the decision of the trial magistrate in relation to parental responsibility, are conveniently dealt with together.

37Her Honour correctly noted that pursuant to s 70A of the Act, she was required to apply a presumption that it is in Child A's best interests for the parties to have equal shared parental responsibility for him. She noted the provisions of s 70A(2) and the broad definition of family violence before finding that there was a "disagreement and physical incident between the parties in October 2018", declining to make any further findings on the point. Her Honour expressly stated that she had "not made any finding as to family violence" and concluded that the statutory presumption applied.

38It may first be observed that, the issue having been squarely raised, the trial magistrate was obliged to make a finding as to whether there were "reasonable grounds to believe" that either parent had engaged in family violence. While her Honour concluded that she was unable to make any definitive finding as to which of the competing versions of events in October 2018 was to be believed, that was not the finding required.[15]

[15] L v P [2022] WASCA 40, [82]-[83].

39Her Honour then correctly noted that the presumption could be rebutted by evidence which satisfied her that it would not be in Child A's best interests for his parents to have equal shared parental responsibility. Having then observed that there had been "periods of cooperation between the parties, and periods of difficult communication", her Honour noted that issues that had been the subject of conflict included dental treatment for Child A, arrangement and attendance at extracurricular activities, and arrangements for handover. As her Honour observed, agreement had been reached as to equal shared parental responsibility on an interim basis and about extracurricular activities. The parties had been able to resolve issues regarding dental and medical treatment without recourse to the court and the mother had as recently as 30 November 2020 offered to consent to a final order for equal shared parental responsibility if the father accepted other aspects of her offer.

40The matter to which the trial magistrate paid particular heed in considering the question of parental responsibility was Child A's schooling. Her Honour noted that the parties "were not able to agree a change to [Child A]'s primary school", referring to the interim dispute summarised earlier in these reasons. Her Honour's judgment did not descend into detail about the circumstances of that dispute, which were as outlined above; not unimportantly, the father's opposition to the mother's proposed change of Child A's school came in circumstances where the mother had herself enrolled Child A in his then current, and agreed, school.

41The trial magistrate noted that at paragraph 55 of her trial affidavit, the mother said that she would like Child A to attend [High School C] and the father would like him to attend [High School D]. In fact, the mother said that in June 2020 she had "stated future plans to enrol [Child A] to [High School C] for high school whilst [the father] wanted him to study in [High School D] instead".

42Her Honour then said:

"The evidence therefore foreshadows a dispute about [Child A]'s high school enrolment.

[Child A]'s high school is many years away, and the court is not asked to, and nor would it be able to, decide about the school that he may attend in the future. The court is, however, obliged to make orders that would be least likely to lead to the institution of further proceedings for [Child A]. A court hearing may be necessary about [Child A]'s high school and this should be avoided, for [Child A]'s benefit, if possible". (emphasis added)

43With due respect to the trial magistrate, the court is not "obliged to make orders" least likely to lead to the institution of further proceedings. The statement emphasised above is a misstatement of the law. Rather, as noted by her Honour elsewhere in the judgment, the court is required in determining what is in the child's best interests to "consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child",[16] as but one of the additional considerations set out in the Act.

[16] Family Court Act 1997 (WA), s 66C(3)(l).

44The question of the high school to be attended by Child A in due course was barely touched upon at trial. It was not referred to in the affidavit evidence other than by the passing reference already noted in the mother's affidavit; even in that context, the evidence referred only to the past dispute as to Child A's primary school. Neither party referred to the question in their papers for the judicial officer, by which the issues requiring determination at trial could be expected to be defined. No questions about high school were put to the father in cross examination.

45The mother mentioned in passing in her opening submissions that "[the father] and I have different choices for [Child A]'s high school", before confirming in the context of cross examination about the earlier dispute about Child A's primary school, that she wants him to attend High School C in due course. Neither party sought orders directed specifically to decision-making about the choice of high school. At the time of trial, Child A was in year one of primary school, both parties were living in rental accommodation, and the mother (while expressing her intention to continue to live in the Suburb B area) acknowledged that her plans might change including, for example, if she decided to move to live with her partner. In the context of questions about the possibility of her seeking to move Child A from his current primary school, the mother said she had no current plans to do so "but then - yes, things can happen in six years, so we wouldn't know".

46That matter was touched upon by counsel for the father in closing submissions, in addressing the mother's proposal that she have sole parental responsibility, not in any sense limited to decisions about high school, in the following exchange:

[BECKERLING, MR]: Let's take this particular example, and perhaps the focus on the order itself rather than the implications is at issue. A sole parental responsibility order would permit the mother to move the child's home from [Suburb B] to the south of the river, to change his schools without discussing it. That is an enormous diminution of the father's role.

[HER HONOUR]: Yes. And it's a concern when there's a risk that such a decision might be made without regard for the child's wellbeing or without regard for the other parent's role in the child's life.

[BECKERLING, MR]: Yes.

47The question was not otherwise addressed in closing submissions for the father and was mentioned only in passing by the mother when she said "another foreseeable issue would be high school" in the context of seeking a global order for sole parental responsibility.

48Nevertheless, the only reason advanced by the trial magistrate for departing from her broader finding that an order for equal shared parental responsibility should be made was the perceived possibility of a future dispute about choice of high school. Having made the observation at trial just quoted, her Honour said in her judgment that she was satisfied that the mother would "decide about high school in a manner that is supporting and respectful of" the father's relationship with Child A. Her Honour went on to say that the proposed order giving the mother sole parental responsibility for the choice of high school did "not mean that the father's views are of less importance than those of the mother"; with respect, orders granting the mother power to make the relevant decision, regardless of any views of the father, might be interpreted as meaning just that. The ordered requirement for consultation does not alter that.

49It is clearly permissible for an aspect of parental responsibility (including as in this case in relation to a major long-term issue) to be allocated to one parent and for the other aspects of parental responsibility to be the subject of an order for equal shared parental responsibility.[17] That said, if the statutory presumption in s 70A applies, as the trial magistrate found in this case, the requisite level of satisfaction as to its rebuttal by evidence must be achieved against the background of the clear legislative intent that the statutory presumption is of central importance. Explicit and cogent reasons, sometimes described as "convincing proof as to the children's best interests"[18] are required to displace it.[19]

[17] Newlands v Newlands (2007) 37 Fam LR 103; Doherty & Doherty [2016] FamCAFC 182.

[18] Vallans v Vallans (2019) 60 Fam LR 193.

[19] Dundas & Blake (2013) FLC 93-552; Paggett & Cable (2015) FLC 93-670, [39].

50In the factual context already described the requisite level of satisfaction to rebut the presumption, even in part, could not be achieved. Whether or not the conflicting statements by the trial magistrate as to the effect of s 66C(3)(l) lead to a conclusion rather than merely a reasonable apprehension that her Honour misdirected herself as to the law, the weight attributed to that consideration to the apparent exclusion of all other considerations amounted to a failure to properly exercise the discretion entrusted to the court.[20]

[20] Lovell v Lovell (1950) 81 CLR 513 per Latham CJ; see also Mallet v Mallet (1984) 156 CLR 605 per Gibbs CJ; Gronow v Gronow (1979) 144 CLR 513, 519 per Stephen J.

51Doubt attaches to the conclusion of the trial magistrate that the presumption applied (as distinct from being rebutted by evidence), her Honour having failed to consider whether there were reasonable grounds to believe that there had been family violence between the parties. That does not alter the conclusion just drawn, or its effect. While it appears that her Honour should have concluded that the presumption did not apply, that would not have been the end of the matter. Had that finding been made, the task of considering whether an order for equal shared parental responsibility was in Child A's best interests would have remained, albeit from a neutral starting point. Her Honour's reasons are simply inadequate to enable a consideration of her reasoning on that issue, had it been commenced from the correct starting point.

52Ground 1 succeeds. While expressed in the alternative, it is appropriate to record that Grounds 2(a) and (b) are also made out. Ground 2(c) fails; as outlined above, the trial magistrate's reasons were adequate to enable her reasoning in relation to this specific question to be discerned, at least from the likely incorrect starting point her Honour adopted.[21]

Ground 3

[21] See Browne v Browne [2019] WASCA 1, [80].

53By this ground, the father asserts that the trial magistrate "erred in law and in principle" in making orders about Child A's living arrangements (as distinguished from the issue of parental responsibility) by failing to give "any or any proper consideration to all of the relevant s 66C factors". Alternatively, it is asserted that her Honour attributed too much weight to the evidence of Child A's familiarity with, and the stability of, the existing arrangement, and that in any event her Honour's reasons were inadequate.

54It may first be observed that while the trial magistrate was obliged to consider each of the matters set out in s 66C, she was not obliged to discuss each of them in the primary judgment.[22] Secondly, the issues joined by the parties dictated which of those matters were relevant to the determination required. The papers for the judicial officer filed by the parties are instructive in that regard.

[22] Banks & Banks (2015) FLC 93-637; L v P [2022] WASCA 40, [62].

55It was common ground that Child A had a meaningful relationship with both parents, to his benefit, and that should continue. It was also common ground that there was no risk of Child A being exposed to harm in the care of either parent. The primary considerations set out in s 66C(2) were noncontentious.

56It was common ground that given Child A's age and level of maturity, little weight if any should be given to any views expressed by him. The parties agreed that Child A had a very good relationship with each of them, albeit there was a dispute as to the nature of his relationships with their respective new partners. There were disputes between the parties as to their ability to make joint or cooperative decisions about major long-term issues in relation to Child A, but no dispute as to the extent to which each had taken the opportunity to spend time and communicate with him. It was common ground that the father paid child support as assessed, albeit the mother was critical of his alleged failure to make additional contributions to Child A's maintenance. Neither party suggested there were any relevant practical difficulties or expenses associated with Child A spending time with either of them. Both agreed that Child A is a happy well-adjusted child, maturing appropriately, albeit the mother contended that the father was not sufficiently supportive of his extracurricular activities. Both parties noted the mother's cultural background. The mother did not suggest that any family violence involving Child A or a member of his family was relevant; the father simply noted the incident in October 2018 without placing emphasis on it. There was no relevant family violence order. Both parties expressed a preference for the proceedings to be finalised.

57As may be seen from that admittedly brief summary, most of the additional considerations set out in s 66C(3) were noncontentious. It is well-established that the breadth and depth of the required consideration of the matters listed in the legislation will again depend on the issues joined between the parties.[23] Where particular of those matters are either of limited relevance, or entirely noncontentious, the required consideration in a particular case might be no more than to "merely salute [the consideration] in passing".[24]

[23] Tibb v Sheean (2018) 58 FamLR 351, [85] referring to French & Fetala [2014] FamCAFC 57, [48].

[24] Ibid.

58The first limb of Ground 3 falls to be considered against that background. To a degree, that limb overlaps with the contention that the trial magistrate's reasons for making the relevant orders were inadequate.

59It may fairly be noted that the conclusions of the magistrate as to the appropriate school term and holiday arrangements for Child A occupied only five brief paragraphs of the judgment. The earlier references in the judgment to the primary and additional considerations (with limited exceptions) were very brief and in a number of instances simply bald statements of conclusion. By way of example, in the context of s 66C(3)(b), her Honour simply stated as follows:

"[Child A] has close and loving relationships with both of his parents. He also has close relationships with the father's partner and his siblings, and with the mother's partner."

60It will be recalled that the nature of Child A's relationships with the new partners of the parties was in fact a matter of some contention at trial. How that factual dispute was resolved by the trial magistrate so as to lead to the conclusion just quoted is not apparent.

61The trial magistrate noted that Child A was "accustomed to living with the mother and spending five nights per fortnight with the father" and expressed her satisfaction that such an arrangement would see his relationships with both parents, their partners, and his brother "maintained and fostered". Her Honour went on to say that the evidence was that the "current school term arrangement works well for [Child A]", that he enjoyed his time in both households, transitioned between the parties' homes without difficulty, and that the arrangement gave him "a stable base during the school term in the mother's household and meaningful time with the father".

62Having made those statements, her Honour immediately expressed her intention to make a change to that arrangement, to decrease "the amount of transitions between the parties homes", before foreshadowing the orders already summarised earlier in these reasons. No mention was made of the fact that the proposals of either party would themselves reduce the number of transitions, nor of the common elements of those proposals. The rationale for the orders actually made is not articulated.

63Reasons need not be lengthy to be adequate. The adequacy of reasons will depend on the circumstances of the individual case.[25] The reasons must be read as a whole and an appellate court may take into account what can legitimately be inferred from them.[26] It is not necessary to make an explicit finding on each disputed piece of evidence,[27] nor to mention every fact or argument relied on by the unsuccessful party.[28]

[25] Bennett and Bennett (1991) FLC 92-191.

[26] Browne v Browne [2019] WASCA 1, [80].

[27] Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor; Tatmar Pastoral Co Pty Ltd and Anor v Housing Commission of New South Wales [1983] 3 NSWLR 378 per Mahoney JA.

[28] Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447, [62].

64That said, reasons must "disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error."[29]

[29] Browne v Browne [2019] WASCA 1.

65Regrettably, the published reasons in this matter do not meet that essential test. It is not possible to discern from them with any degree of certainty the relative weight given by the trial magistrate to the various legislated considerations, the basis of her Honour's conclusions in relation to the admittedly narrow range of disputed facts, or the means by which her Honour concluded that the orders for Child A's living arrangements during school terms, not having been proposed by either party, were in his best interests. The weight challenge which forms part of Ground 3 need not be addressed further in those circumstances.

66Ground 3 succeeds.

Ground 4

67While Ground 4 was abandoned, and it is not necessary to determine it, brief comment about the issue raised is appropriate.

68The trial magistrate made orders in relation to the time Child A was to spend with each parent which, as she acknowledged at the hearing at which judgment was delivered, did not reflect the proposal of either party. As her Honour appreciated, in a parenting case, the court is not bound to simply choose between the competing proposals of the parties.[30] Nevertheless, procedural fairness requires that if the court is contemplating the possibility of an order being made outside the parameters of those proposals, notice must be given to the parties unless the making of such an order was obviously open on the known material.[31] Put another way, a consideration of whether procedural fairness has been afforded may depend upon the extent to which the order in question deviates from the parameters of those proposals.[32]

[30] U v U (2002) 211 CLR 238.

[31] Stott & Holgar and Anor [2017] FamCAFC 152; Minister for Immigration and Citizenship v SZGUR and Anor (2011) 241 CLR 594, [9] per French CJ and Kiefel J.

[32] Lovett & McGregor (2019) FLC 93-935, [47]; Guthrie and Guthrie (1995) FLC 92-647.

69The purpose of the required notice of the possible deviation must be borne in mind. That purpose is to "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."[33]

[33] Allesch v Maunz (2000) 203 CLR 172 per Kirby J, [35].

70The parties were notified of the listing at which judgment would be delivered and orders pronounced. The trial magistrate's written reasons for decision were provided immediately prior to the scheduled commencement of that hearing. The parties were given a brief opportunity to peruse them. The hearing commenced, and after certain exchanges which need not be recounted in detail, orders were then pronounced in the terms foreshadowed in the written reasons for decision.

71The process of making written reasons available to the parties shortly prior to the formal publication of those reasons in open court, and the making of orders as foreshadowed in the reasons, is unremarkable. It reflects the requirement that (absent the consent of the parties to a different process) reasons for decision should be given publicly and orders should be made in open court.

72The hearing at which that takes place, however, does not afford to the parties an opportunity to make submissions or adduce evidence directed towards the question of whether or not orders, substantially as foreshadowed in the written reasons, should be made. Put simply, the relevant decision has been made and it remains only to pronounce orders to give effect to it.

73Rather, the only opportunity afforded is to make submissions as to the form of the orders. That is limited to potential questions as to whether the orders as drafted accurately reflect the intention established by the written reasons, possible omissions or typographical errors, and the wording of the proposed orders. The attention of the judicial officer may appropriately be drawn only to matters of that nature.

74When that is understood, the potential for procedural unfairness, where the only opportunity to address foreshadowed orders which depart substantially from the proposals of the parties is said to occur at such a hearing, is clear.

Conclusion and orders

75It follows that the first limb of the primary test for leave to appeal is readily satisfied. Bearing in mind that the orders were made following a trial, and the observations already made as to the litigation pathway applicable should leave to appeal not be granted, I am satisfied that a substantial injustice would arise from a failure to grant leave.

76It also follows that the appeal must be allowed.

77In the event the appeal was allowed, the father sought remitter. He did not suggest that the relevant discretion could be re-exercised at this hearing; while the outcome is regrettable, that approach was sensible bearing in mind both the nature of a rehearing and the passage of time since the evidence was completed in the trial. The matter will be remitted for rehearing before a different magistrate.

78At an early stage in the hearing, I drew two matters to the attention of the parties so as to afford them the opportunity to make submissions in relation to them.

79The first was the proposition that, should the appeal succeed, the parties should be offered an extended conference with a registrar of the court as an opportunity to endeavour to negotiate an agreed outcome rather than proceed to a retrial. Both parties sought that opportunity.

80The second matter related to the precise terms of the orders made by the primary magistrate, and the notice of appeal. The father sought to discharge paragraphs two, three, four, six and seven of the primary orders. Paragraphs two, three and four dealt with parental responsibility as earlier summarised, while the remaining paragraphs dealt with the time Child A is to spend with the father during school terms and school holidays.

81By paragraph 1 of the primary orders, the magistrate discharged "all interim parenting orders". The father did not appeal that order. Accordingly, success on the appeal in its terms would leave a void, such that there would be no operative orders as to parental responsibility or the time Child A is to spend with the father during school terms and school holidays pending any new trial. Of course, no decision as to Child A's attendance at high school will be required during that hiatus; the appropriate interim orders need not caveat the primary order for equal shared parental responsibility.

82In drawing that issue to the attention of the parties, I raised the question of whether (in the event of a successful appeal) they would nevertheless seek that the arrangements contained in the primary orders, which have been in place since December 2021, continue on an interim basis. Both said that they would, while reserving the right to bring a further interim application pending the new trial, if the listing of such trial is in any sense delayed.

Costs

83I enquired of counsel for the father as to whether, if leave was granted and the appeal was successful, any order for costs would be sought. After being given the opportunity to take instructions he confirmed costs were sought.

84The father incurred costs exceeding $13,000 in relation to the appeal. In support of his application for costs it was noted that the most recent evidence as to the financial circumstances of the parties as contained in their respective financial statements filed in 2020. In May 2020, the mother deposed to having permanent part-time employment as a [medical professional] earning approximately $144,500 per annum from that source and from rental income. In September 2020, the father deposed to having casual employment as a [tradesman] earning approximately $92,000 per annum. It is unnecessary to recount the evidence at that time as to the property and liabilities of each party bearing in mind that their circumstances were altered by the making of consent orders for alteration of property interests [in] October 2020.

85Sensibly, counsel for the father did not contend that any disparity in the respective financial circumstances of the parties was itself a matter justifying an order for costs. Rather, he referred to those financial circumstances only to support a submission that the mother has the capacity to meet a costs order.

86The father also submitted that, in effect, the mother was wholly unsuccessful in the appeal. No criticism of the conduct of the appeal proceedings by either party was raised, and self-evidently those proceedings were not made necessary by either party failing to comply with a previous order. Neither party was in receipt of legal aid. My attention was not drawn to any written offers.

87The only other matter raised in support of the costs application was the proposition that, given the dismissal of the appeal, properly advised the mother might have conceded it potentially at a stage early enough to reduce costs. That submission, with respect, is at best only partially accurate. Even if both parties consent to an appeal being allowed and the matter being remitted, the court must still be satisfied of error in the primary judgment.[34] The mother was, of course, also entitled to the benefit of the judgment and to presume that it was correct.[35] That point goes not only to the submission just referred to, but to the father's submission that by virtue of being "wholly unsuccessful" in her opposition to the appeal, an order for costs against the mother could be justified.

[34] Bhatnagar & Riju [2018] FamCAFC 144; Heidari & Ebadi [2020] FamCAFC 316.

[35] Cape & Cape (2013) FLC 93-549, 218 [21].

88In short, there was nothing in the submissions to persuade me that an order for costs was justified.

Orders

1.Leave to appeal is granted.

2.The appeal is allowed.

3.The proceedings are to be remitted for a trial before a Magistrate other than the primary Magistrate.

4.The parties and their solicitors, if represented, must attend a Conciliation Conference [in] August 2022 before Registrar Hall.

5.Until further order of the Court, and without prejudice to the right of either party to bring a further interim application seeking to vary these orders prior to trial:

(a)the parties have equal shared parental responsibility for the child, [Child A] born [in] November 2014; and

(b)orders in the terms of paragraphs 6 and 7 of the orders made [in] December 2021.

6.The father's application for costs is dismissed.

These reasons are the reasons for decision delivered on 15 July 2022, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

26 JULY 2022