PAASKE & THATCHER - [2012] FamCAFC 30

FAMILY COURT OF AUSTRALIA

PAASKE & THATCHER

[2012] FamCAFC 30

FAMILY LAW – APPEAL – CHILDREN – where the orders of the Federal Magistrate do not specify the country in which time is to be spent between the child and the father and which was a matter in dispute between the parties– where the reasons for judgment of the Federal Magistrate do not explain this deficiency in the order – appeal allowed – orders of the Federal Magistrate set aside – issue of the place or places where the child is to spend time with the father be remitted for re-hearing by a Federal Magistrate other than the Federal Magistrate in the first instance.

FAMILY LAW – APPEAL – COSTS - costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) awarded to the appellant mother and respondent father in relation to the appeal and the new hearing.

A v J (1995) FLC 92-619
Allesch v Maunz [2000] 203 CLR 172

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Ms Paaske

RESPONDENT:

Mr Thatcher

FILE NUMBER:

CAC

2064

2008

APPEAL NUMBER:

2011

DATE DELIVERED:

1 March 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn J

HEARING DATE:

23 February 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 June 2011

LOWER COURT MNC:

[2011] FMCAfam 592

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Ron Friesen

SOLICITOR FOR THE RESPONDENT:

Mr Ken Hubert

Orders

The appeal be allowed.
Order (1) of the Orders made by Federal Magistrate Brewster on 15 June 2011 be set aside.
The issue of the place or places where the child S (born … December 2000) is to spend time with her father twice a year, be remitted for re-hearing as soon as possible by a Federal Magistrate other than Federal Magistrate Brewster.
That there be no order for costs in relation to the appeal.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 father in respect of the costs incurred by him in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new hearing granted by these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paaske & Thatcher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 82 of 2011
File Number: CAC 2064 of 2008

Ms Paaske

Appellant

And

Mr Thatcher

Respondent

REASONS FOR JUDGMENT (revised)*

Introduction

This is an appeal by the mother against an order (Order (1)) made by Brewster FM on 15 June 2011 which provided “[t]hat the mother arrange for the child [S] born…December 2000 to spend time with the father for two weeks in the Christmas school holidays and two weeks in July to coincide with the Australian Capital Territory July school holidays.”
The appeal is being determined by me as a single judge pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
The essential challenge in the appeal is to the adequacy of his Honour’s reasons for Order (1). There was no challenge to any of the other orders made by his Honour on 15 June 2011, nor to his refusal to make any order concerning the time which the two older children of the parties would spend with the mother.
The appeal is opposed by the father.

Background

The following relevant background appears to be uncontroversial.
In late 1989 the father and mother married in the United Kingdom and came to Australia. Four children were then born to them: A in 1991, R in 1994, E in 1996 and S in December 2000. The father and the mother separated in early 2008.
On 7 December 2010 the mother filed an initiating application seeking orders that R and E reside with the father and that S reside with her in the United Kingdom.
Following the preparation of a Family Report, orders were made by consent by Brewster FM on 15 March 2010, which provided for R and E to reside with the father in Australia and for S to reside with the mother in the United Kingdom as from 28 March 2011.
Issues remained between the parties as to periods in which and the place or places where S was to spend time with the father and R and E were to spend time with the mother, and as to the costs of the travel necessary for each child to see the parent with whom he or she did not live.
These issues were the subject of a hearing before Brewster FM on

15 March 2011, which then continued on 12 April 2011 and 18 April 2011.
Specifically in relation to the only one of these issues presently relevant, being the place or places where S was to spend time with her father, at the hearing of the appeal it was common ground that at the end of the hearing on 18 April 2011, it was the mother’s position that S should spend time with her father twice a year on one occasion in Australia and on the other occasion in the United Kingdom (Transcript 18 April 2011, page 24, line 46 – 47 and page 28, line 20 – 40), and that it was the father’s position that S spend time with him twice a year in Australia (Transcript 18 April 2011, page 31, line 23-25). In this context I would explain that the dispute which remains on this appeal is whether both periods of time which S was to spend with her father in any one year were to be in the United Kingdom or whether one should be in the United Kingdom and one in Australia.
At the conclusion of the hearing on 18 April 2011, his Honour reserved his judgment, which he then delivered on 15 June 2011.
Given that the appeal challenges the adequacy of his Honour’s reasons, it is necessary to look closely at his reasons.

Judgment of Brewster FM of 15 June 2011

In the first paragraph of his reasons his Honour can be seen as outlining the issues which he had to decide when he said:
1.This matter involves a dispute as to the arrangements that should apply in relation to the father spending time with the child [S] and the mother’s spending time with the children [R] and [E]. The mother has relocated to [the United Kingdom] and it is agreed that [S] will live with her. The other two children will remain with the father in Canberra. The mother proposes that [S] spend time with the father twice a year and the other children likewise with her. She proposes that the costs be shared. The father proposes that the mother bear the costs of travel.
I observe in passing that there does not appear to be any error in what his Honour actually said in that first paragraph. The problem is, however, that he did not record in which country the mother proposed that the children would spend time with either parent, nor did he record what the father’s proposals were concerning the times and place or places for the children to spend time with the parent in question.
In the second paragraph of his reasons, his Honour outlined briefly the financial position of each of the parents, before referring in his third paragraph to the fact that the mother was a co-trustee with her brothers of a discretionary trust of which the children were beneficiaries. He went on to express the view that the mother could, if she wished, “utilise some of the trust monies to assist to defray the cost of travel.”
Immediately thereafter his Honour observed in his fourth paragraph that he had “regard to the fact that it is the mother’s move to the United Kingdom that has caused the problem”.
Then in his fifth paragraph his Honour can be seen as dealing with the arrangements for the two older children, and in concluding he said that he did not propose to make any orders with regard to their contact with the mother. He also said that he would not make any orders requiring the father to contribute to the cost of contact with the older children. As I have already indicated, no issue arises on this appeal concerning his Honour’s refusal to make any order in relation to the two older children.
However as some reliance was placed before me particularly by the father on certain things said by his Honour in paragraph 5, I set it out in full:
5.I do not propose to make any orders about contact with the older two children. [R] is aged 17 and it will not adversely impact on the relationship he has with his mother if contact is mainly confined to telephone calls or Skype. To a degree this is also true of [E]. By the time the next opportunity comes for her to see her mother she will be almost 15. The mother proposes to travel to Australia at least for the time being when [S] visits the father in Australia. I assume that arrangements could be made for her to spend time with [R] and [E] when she is in Australia. I also assume that if either child wished to visit the mother in the Australian Christmas holidays this could be arranged. There will be one more such holiday before [R] turns 18 and three such holidays before [E] turns 18. I do not propose to make any order requiring the father to contribute to the cost involved.
His Honour then turned in paragraph 6 to the position of S, saying:
6.I propose to order that the mother arrange for [S] to spend time with the father for two weeks around the Christmas vacation and two weeks in July. I propose that the mother bear two thirds of the cost. I will order that she pay the cost of the visit in July 2011 and the Christmas holidays in 2011/2012. I propose that the father bear the cost of the visit in July 2012 and the mother the next two visits. I propose the father bear the cost of the next visit and the mother the next two visits and so on.
Orders (1) and (2) made by his Honour were then as follows:
(1)That the mother arrange for the child [S], born … December 2000 to spend time with the father for two weeks in the Christmas school holidays and two weeks in July to coincide with the Australian Capital Territory July school holidays.
(2)That the mother is to be responsible for the payment of airfares for the next two visits, the father for the next visit, the mother the next two visits and so on.
I reiterate that it is only Order (1) which is the subject of this appeal, with there being no appeal before me in relation to Order (2).
For the sake of completeness, I mention that the remaining two short paragraphs of his Honour’s reasons (paragraphs 7 and 8) concerned matters not presently relevant, being passports for the two older children and S’s education in the United Kingdom. These two matters were the subject of his Honour’s orders numbered (3) and (4), which as I have indicated, are not appealed.

The mother’s grounds of appeal

The mother’s grounds of appeal, which have to be read as being directed to Order (1), asserted first, a misunderstanding on the part of his Honour of the mother’s position regarding the time that S should spend with the father, and secondly, a failure on his Honour’s part to give reasons for preferring the father’s position in relation to the amount of time S should spend with the father.
There was a third ground of appeal directed, it seemed, to matters in the consent orders made on 11 March 2011. But this ground was not pursued.

Discussion

The two grounds pursued by the mother can be read as containing an implicit acknowledgement that his Honour accepted the father’s proposal that S should visit him twice each year (in Australia). But be that as it may, the submissions made in support of these grounds focused on the adequacy of his Honour’s reasons for his order.
Notwithstanding the terms of the mother’s grounds of appeal, and also the fact that there is no cross-appeal by the father, it has to be acknowledged that Order (1) does not, at least on its face, specify in what country S is to spend the two week period with the father in each of the Christmas and ACT mid-year school holidays. It also has to be acknowledged that neither in paragraph 6, nor in any other paragraph of his reasons, does his Honour expressly specify the country in which the time is to be spent between S and her father. Thus the order is deficient in failing to specify where the child is to spend time with her father and his Honour’s reasons do not, at least on their face, explain this deficiency in the order.
The father’s solicitor, appearing as Counsel, endeavoured to persuade me that various passages in his Honour’s reasons, and also particular words in his order, would support the interpretation that his intention was that S should travel to Australia for each of the two holiday periods.
In this regard Counsel relied on the reference in paragraph 5 of his Honour’s reasons to the mother’s travelling to Australia with S in order that the mother could see the two older children. It is true that there is such a reference. But in my opinion, nothing in that paragraph supports an interpretation that S (and her mother) would be making two trips each year to Australia.
Counsel for the father also relied on the use by his Honour both in paragraph 6 of his reasons and in Order (1) of the words “arrange for [S] to spend time with the father” as meaning that there was an obligation on the mother to organise the child to travel to the place where the father lived. This is an available interpretation of his Honour’s order, but without any greater clarification or support his reasons, it would be unsafe to conclude that it was his Honour’s intention. This is particularly so having regard to the mother’s application which was before his Honour for the child to only come to Australia once each year.
Further, Counsel for the father sought to establish that the reference in

Order (1) to “the Australian Capital Territory July school holidays” indicated an intention that S would come to Australia to see her older siblings during their school holidays. But even if this explanation of the reference to the ACT school holidays is correct, it would not support an interpretation of the order which required S to come to Australia twice in a year.
Possibly the strongest support for the father’s case (being that it can be understood from his reasons that his Honour intended that S come to Australia for the two holiday periods each year), is the use of the word “visit” or “visits” on five occasions in paragraph 6 of his Honour’s reasons. Those words could well carry the implication that it is the child “S” who is to do all the “visiting”. But if his Honour had in fact intended to accept the mother’s proposal that the father come to the United Kingdom to spend time with the child on one of the two occasions each year, the word “visit” would also be appropriate.
Should it be that having regard to these various passages in his reasons, his Honour’s order can be interpreted as requiring S to spend both periods of time with her father in Australia, there remains the problem that his Honour has provided no explanation as to why he preferred this arrangement which was proposed by the father against the arrangement proposed by the mother.
In my view, the statement in the fourth paragraph of his Honour’s reasons, that it was “the mother’s move to [the United Kingdom] that … caused the problem”, seems to me to relate to the conclusion the mother should pay the greater part of the costs, and not provide a reason for the child, S, undertaking two international trips each year.
Counsel for the father also endeavoured to persuade me on the basis on what was said by the Full Court in A v J (1995) FLC 92-619 that any shortcomings in his Honour’s reasons in this case were of a minor nature and should not result in the appeal succeeding. The difficulty with this submission is that while the parties were in agreement that S should see her father twice a year and on one occasion in Australia, they were not in agreement that both occasions should be in Australia. In other words, the place of at least one of the meetings between father and child was a contested issue between the parties; it was therefore necessary that the issue be clearly determined by his Honour in his order and in his reasons.
Out of fairness to his Honour, it must be observed that the transcripts reveal that although the issue of the places where S would see his father was a matter of dispute between the parties, there were other closely related issues also requiring determination by his Honour. Those other issues were the arrangements for the two older children to see their mother and the cost of all necessary travel associated with each of the children spending time with the parent with whom they did not live. Much of the hearing before his Honour and then a substantial part of his reasons were devoted to the costs issue. So far as the issue of the arrangements for the older children were concerned, once his Honour determined (in my view, justifiably) that he would not determine that issue, it is not entirely surprising that issues surrounding the arrangements for S’s time with her father, became somewhat confused.
Nevertheless, the analysis which I have carried out above, demonstrates that it is impossible to be certain from either his Honour’s order or his reasons which of the parties’ proposals, concerning the place or places where S should spend time with her father, his Honour intended to accept.
But even if the reasons would support an interpretation of the orders which would require S to travel to Australia twice a year as proposed by the father, there are not sufficient reasons provided as to why that proposal was adopted in preference to the mother’s proposal. For these reasons, the appeal must succeed and the orders must be set aside.
This is unfortunately a case where the reasons do not assist in understanding the order thus making a “slip rule” application unavailable.

Future course of the matter

It became common ground at the conclusion of the hearing of the appeal that in the event that I determined that the appeal would have to be allowed, then the issue of the place or places where S was to spend time with her father each year would have to be remitted for re-hearing by the Federal Magistrates Court. That there would have to be a remission was accepted to be necessary once I explained that if I was to re-determine the matter, I would not just be implementing his Honour’s intentions from his reasons (if that were possible), but rather exercising my own discretion on the basis of the material before his Honour (and of any updating material upon which the parties might want to rely pursuant to the principles in Allesch v Maunz [2000] 203 CLR 172), and that any appeal from my decision could only be by way of an application for special leave to appeal to the High Court.
I canvassed with the parties the possibility of remitting to Brewster FM the issues of the place or places where S was to spend time with her father. But that course was not supported by both parties, and in any event experience in other cases has shown that remission to the trial judge or Federal Magistrate can lead to further complications.

Because it is only Order (1) that was appealed and is to be set aside, it will only be the issue of the place or places where S is to see her father that will be remitted for re-determination. The other orders made by his Honour (including the orders in relation to the costs of airfares) will remain in place, although in my view, those orders could be varied if there was to be any significant variation in the circumstances in which they were made.
As I indicated during the hearing of the appeal, the fact that there has to be a re-hearing is most unfortunate for the parties. But unless they can reach some agreement (which I urge them to continue to try to do), a re-hearing is required for the reasons which I have explained.

Costs of the appeal and the re-hearing

As I indicated at the hearing, the appropriate outcome in relation to the costs of the appeal given the reasons for its success, is that there should be no order for costs and that each party’s application for costs certificates in relation both to the appeal and the re-hearing should be granted.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn delivered on 1 March 2012.

Associate:

Date: 1 March 2012

* Revised 8 March 2012 – correction of typographical error at paragraph 18, last word of first sentence: ‘father’ has been replaced by ‘mother’.