FAMILY COURT OF AUSTRALIA
| PARKS & FARMER | [2012] FamCAFC 12 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders made by a Federal Magistrate – Not established that the learned Federal Magistrate’s exercise of discretion miscarried – Appeal dismissed APPEAL ─ PRACTICE AND PROCEDURE ─ Change of venue ─ Not established that the learned Federal Magistrate’s exercise of discretion miscarried with respect to her Honour’s decision to transfer the proceedings ─ Appeal dismissed APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where despite the absence of merit in the mother’s challenges, the utility of her appeal was always questionable ─ Where there was an absence of any evidence as to the financial circumstances of the parties ─ No order for costs made |
| Family Law Act 1975 (Cth) ss 60CC, 60I, 61B, 61C, 65DAA, Part VII |
| Bennett and Bennett (1991) FLC 92-191 Goode & Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513 Morgan & Miles [2007] 38 Fam LR 275 MRR v GR (2010) 240 CLR 461 Norbis v Norbis (1986) 161 CLR 513 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
| APPELLANT: | Ms Parks |
| RESPONDENT: | Mr Farmer |
| FILE NUMBER: | DNC | 28 | of | 2009 |
| APPEAL NUMBER: | NOA | 45 | of | 2011 |
| DATE DELIVERED: | 3 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane by video link from Melbourne and Darwin |
| JUDGMENT OF: | Bryant CJ, Faulks DCJ & Coleman J |
| HEARING DATE: | 5 September 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 4 May 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 400 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Jodi Truman |
| SOLICITOR FOR THE APPELLANT: | Cecil Black Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Panayiota Karnis |
| SOLICITOR FOR THE RESPONDENT: | De Marco Lawyers |
Orders
That the appeal be dismissed.
That there be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parks & Farmer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 45 of 2011
File Number: DNC 28 of 2009
| Ms Parks |
Appellant
And
| Mr Farmer |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Notice of Appeal filed 1 June 2011 Ms Parks (“the mother”) challenged orders made by Federal Magistrate Turner in parenting proceedings between herself and Mr Farmer (“the father”) on 4 May 2011.
The orders of the learned Federal Magistrate provided that pending further order, the child of the parties T (“the child”) born in December 1999 live with the father in Melbourne and have telephone contact with the mother on the basis defined by her Honour’s orders. The further hearing of the parenting proceedings was transferred to the Federal Magistrates Court in Melbourne.
In lieu of the Federal Magistrate’s orders, the mother seeks that the child lives with her in Darwin, and spend each alternate weekend with the father, inferentially in the Darwin region. The mother sought…
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CaseChat Overview and Summary
The court had to consider whether the Federal Magistrate's exercise of discretion in making the interim parenting orders and transferring the proceedings miscarried. The court also had to determine whether the mother's appeal was wholly unsuccessful and whether an order for costs should be made. The mother argued that the Federal Magistrate did not adequately assess the risk of family violence and that the proceedings should have been transferred to a different venue.
The court found that the mother's challenges to the Federal Magistrate's exercise of discretion were not established. The court held that the mother's request for primary dispute resolution came after interim orders were sought and that participation in primary dispute resolution would have been unlikely to result in an agreement. The court also found that the mother had not made any application to the Federal Magistrate to defer the parenting and venue disputes so that the parties could participate in interim dispute resolution. The court held that the submissions with respect to the Federal Magistrate's approach to domestic violence did not identify any erroneous finding of fact by the Federal Magistrate or any matter to which the Federal Magistrate should, but failed to have regard. The court held that the mother's appeal was wholly unsuccessful and that no order for costs should be made.
The court dismissed the appeal and made no order for costs.
Orders
Orders of the court
1.
That the appeal be dismissed.
2.
That there be no order for costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Furthermore in the mother’s Application her request for an order for primary dispute resolution came after interim orders were sought and the precise order sought was “that the parties shall participate in primary dispute resolution in preparation for final orders”. Her Application indicates that the mother was not seeking dispute resolution prior to the interim orders being made. The allegations raised by the parties leave little scope for doubt that participation in primary dispute resolution would have been unlikely to result in an agreement. We have not been referred to any application to the learned Federal Magistrate that she defer the parenting and venue disputes so that the parties could participate in interim dispute resolution. Not surprisingly in the circumstances, the parties were not able to resolve, even on an interim basis, parenting arrangements for the child. In those circumstances, it was in the child’s best interests that he and his parents have some certainty. There may, as the submissions on behalf of the mother assert, have been a good deal of “independent” or other evidence, including testing of the evidence which was before her, which may have assisted the learned Federal Magistrate to determine the interim parenting proceedings. We have not been referred to any application to her Honour to do that, or to adjourn the proceedings so that that might occur. As she made clear on numerous occasions in her Reasons, the learned Federal Magistrate was acutely aware of the limitations which the state of the evidence imposed upon her. The complaint that the learned Federal Magistrate should have “sought such evidence from the parties” as that to which Counsel for the mother referred, in the absence of any request or suggestion by them that her Honour do so, at least for the purpose of determining the interim parenting proceedings, denies this complaint substance. The submissions with respect to the learned Federal Magistrate’s approach to domestic violence do not identify any erroneous finding of fact by her Honour. Nor do they identify any matter to which her Honour should, but failed to have regard. Nor is any asserted error of principle identified in relation to the issue. The cases to which Counsel for the mother referred cannot advance these complaints. Whether or not the challenges raised by Counsel for the mother are established is determined by reference to the findings of fact made by the learned Federal Magistrate and the inferences drawn or conclusions reached by her in reliance upon such findings in this case. As Counsel for the mother correctly identified at the commencement of her submissions, the principles governing these challenges are not in doubt and, as articulated in support of these grounds, are not able to be advanced in the absence of reference to the evidence before the learned Federal Magistrate. It was asserted on behalf of the mother that: 40.Here her Honour did not conduct any assessment of risk when determining the matters that should have been determined in relation to the Appellant’s allegations concerning family violence. Simply because her Honour was not able to make a finding as to whether family violence had actually occurred, should not have prevented her Honour from assessing the level of risk to the child given the Appellant’s allegations and particularly given the geographical location of the child, which meant there could be no capacity for the Appellant to have any time with the child to assess whether the child was safe.