Pannell and Pannell

[2017] FamCAFC 237

FAMILY COURT OF AUSTRALIA

PANNELL & PANNELL [2017] FamCAFC 237

FAMILY LAW – APPEAL – where the respondents concede the trial judge made errors of law and join in seeking that the subject orders be set aside and the parties be granted costs certificates – where Full Court satisfied of error sufficient to support the making of the orders sought by all parties.

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

APPELLANT: Ms Pannell

RESPONDENT: Mr Pannell

INDEPENDENT CHILDREN’S LAWYER: Judy Stewart, Stewart Family Law

FILE NUMBER: BRC 9069 of 2015

APPEAL NUMBER: NA 41 of 2017

DATE DELIVERED: 13 November 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy, Kent & Carew JJ

HEARING DATE:	In chambers by way of joint written submissions
LOWER COURT JURISDICTION:	Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 26 July 2017

LOWER COURT MNC: [2017] FCCA 1906

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Pullos Lawyers

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITOR FOR THE RESPONDENT: Journey Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Stewart Family Law

Orders

1. Pursuant to s 94AAB(1) of the Family Law Act 1975 (Cth) Appeal Number NA 41 of 2017 be dealt with without an oral hearing.

2. The appeal be allowed.

3. Orders 1(b) and (c) of the orders made by Judge Howard on 26 July 2017 be set aside.

4. 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 the appellant mother in relation to the appeal.

5. 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 the respondent father in relation to the appeal.

6. The Court grants to the Independent Children’s Lawyer 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 Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 41 of 2017
File Number: BRC 9069 of 2015

Ms Pannell

Appellant

And

Mr Pannell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Serious allegations against the father of family violence, and of sexual abuse of the subject child, all denied by him, characterised the parenting proceedings which came before Judge Howard for an interim hearing on 26 July 2017. 

2. The primary judge correctly identified (at [1]) that such allegations were incapable of resolution by the Court in a circumscribed interim hearing.  The primary judge also appropriately recognised that until there could be a determination of these allegations at a trial, the child’s time and communication with the father in the meantime would need to be supervised.

3. However, the primary judge made orders that after the first three periods of the child’s time with the father being supervised at a contact centre (Order 1(a)), ordered time thereafter was to be supervised by the father’s mother, the child’s paternal grandmother (Orders 1(b) and (c)).

4. By a Notice of Appeal filed on 23 August 2017 the mother appeals from Orders 1(b) and (c).  On 14 September 2017 the primary judge granted the mother’s application for a stay of Orders 1(b) and (c) and ordered that the child’s time with the father be supervised at a contact centre, pending further order.

5. On 16 October 2017 the Appeals Registrar made directions to facilitate the appeal being listed for hearing by this Full Court on 17 November 2017.  Pursuant to those directions, appeal books and the mother’s List of Authorities and Summary of Argument for the appeal have been filed. 

6. In the event, on 9 November 2017 the parties to the appeal, including the Independent Children’s Lawyer (“the ICL”) representing the child’s interests in the proceedings, submitted proposed orders to be made by the Full Court with the consent of all parties, signed on behalf of each party by their respective lawyer.

7. The orders proposed are that the appeal be allowed; the subject Orders 1(b) and (c) made on 26 July 2017 be set aside; and that each party be granted a costs certificate in respect of costs of the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). All parties also sought that the Full Court deal with the appeal without an oral hearing, pursuant to s 94AAB(1) of the Family Law Act 1975 (Cth) (“the Act”).

8. The proposed orders to which each party expressed consent in writing were accompanied by a “Joint Summary of Argument and List of Authorities of the Parties as to the Appeal by Consent” [sic].  That document contains the identification by the parties as to that which they jointly contend to be the errors of law made by the primary judge sufficient to support the orders now sought on appeal, including the orders as to the provision to each party of a costs certificate in respect of costs incurred on the appeal.

9. For present purposes it is unnecessary for us to specifically traverse each of the submissions advanced in the joint summary document.  It suffices to record our satisfaction that there was no sufficient evidentiary basis before the primary judge to make an order that the necessary supervisory role of the child’s time with the father be undertaken by the father’s mother.  In short, there was no evidence as to any attitude or view the paternal grandmother may have had with respect to the subject allegations (or indeed as to her full knowledge of them); and there was no evidence as to whether the paternal grandmother was willing and able to undertake supervision with the necessary degree of vigilance to safeguard the child’s interests, and indeed the interests of all parties concerned, pending a trial.  Moreover, in circumstances where no party had made an application seeking the appointment of the paternal grandmother to the supervisory role, with this only being conceived of at the primary judge’s instigation as the hearing progressed, no sufficient opportunity was afforded to any party to adduce evidence directed to that conception.

10. We are thus satisfied of error on the part of the primary judge sufficient to allow the appeal and to set aside the subject orders, and to grant the costs certificates to each party as sought.

11. We record that there is no issue as between the parties, nor should there be, that by setting aside Orders 1(b) and (c) of the orders made on 26 July 2017, the order for supervision made on 14 September 2017 (Order 2) remains the operative order, until further order.

12. For these reasons we make the following orders:

    1.Pursuant to s 94AAB(1) of the Family Law Act 1975 (Cth) Appeal Number NA 41 of 2017 be dealt with without an oral hearing.

    2.The appeal be allowed.

    3.Orders 1(b) and (c) of the orders made by Judge Howard on 26 July 2017 be set aside.

    4.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 the appellant mother in relation to the appeal.

    5.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 the respondent father in relation to the appeal.

    6.The Court grants to the Independent Children’s Lawyer 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 Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Kent & Carew JJ) delivered on 13 November 2017.

Associate: 

Date:  13 November 2017