Pascoe & Larsen

Case [2022] FedCFamC1A 64

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Pascoe & Larsen [2022] FedCFamC1A 64

Appeal from: Pascoe & Larsen [2021] FedCFamC2F 529
Appeal number(s): NAA 78 of 2021
File number(s): WOC 655 of 2021
Judgment of: MCCLELLAND DCJ
Date of judgment: 13 May 2022
Catchwords: FAMILY LAW – APPEAL – Where the appeal concerns interim parenting orders for the child to live with the respondent – Where respondent unilaterally changed residences – Whether the primary judge erred in rejecting appellant’s proposal for the child to be returned to the City A region – Whether reasons were adequate – Both respondent and child of Aboriginal descent – Appeal dismissed – Child’s right to enjoy their cultures and traditions with respondent – Respondent’s right of freedom of movement – Submissions as to costs.
Legislation:

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(3)(h), 61DA, 65DAA(5)

Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)

Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)   
Cases cited:

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802

Bolitho & Cohen (2005) FLC 93-224; [2005] FamCA 458

Davis & Davis and Anor (2007) 38 Fam LR 671; [2007] FamCA 1149

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1386

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

Sheldon & Weir [2011] FamCAFC 212

SS & AH [2010] FamCAFC 13

U v U (2002) FLC 93-112; [2002] HCA 36
Number of paragraphs: 70
Date of hearing: 9 March 2022
Place: Sydney (via videolink)
Counsel for the Appellant: Litigant in person
Counsel for the Respondent: Ms Lioumis
Solicitor for the Respondent: Broun Abrahams Burreket
Counsel for the Independent Children's Lawyer: Mr Haddock
Solicitor for the Independent Children's Lawyer: Venus & Smart

ORDERS

NAA 78 of 2021
WOC 655 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR PASCOE

Appellant
AND:

MS LARSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The respondent mother and the Independent Children’s Lawyer may, if they so choose, within 14 days, file and serve written submissions of no more than two (2) pages in support of an order for costs.

3.In the event of the respondent mother and/or the Independent Children’s Lawyer filing submissions in support of an order for costs, the appellant father may, within a further 14 days, file and serve written submissions of no more than two (2) pages in reply. 

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family…

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Pascoe & Larsen [2022] FedCFamC1A 64
Case
[2022] FedCFamC1A 64
Decision Date

CaseChat Overview and Summary

In the matter of Pascoe & Larsen, the appellant father sought to appeal the decision of the primary judge concerning interim parenting orders for his child to live with the respondent mother. The appeal was dismissed by the court, which found that the primary judge did not err in his decision to have the child live with the mother in City B. The court rejected the father's arguments that the primary judge had failed to follow the statutory pathway, provided inadequate reasons for his decision, or made impermissible inferences concerning the child's Aboriginal culture. The court found that the primary judge had appropriately considered the matters relevant to determining what was in the best interests of the child, including the child's right to enjoy their culture and traditions with the mother, and the mother's right of freedom of movement.

The court further found that the primary judge had adequately considered the practicability of the parties' competing proposals, the impact on the child of spending significantly less time with the father, and the allegations of family violence. The court rejected the father's argument that the primary judge had made material mistakes of fact, such as that an order for the child's residence to be in the City A region would have a negative impact on her Aboriginal culture, or that it was not in the child's interests to live with the father given the allegations of violence. The court found that the primary judge's reasons were adequate and that the appeal was without merit.

The court dismissed the appeal and ordered that the respondent mother and the Independent Children's Lawyer may file written submissions of no more than two pages in support of an order for costs, and that the appellant father may file written submissions of no more than two pages in reply if the respondent mother and/or the Independent Children's Lawyer file submissions in support of an order for costs. This decision serves as a reminder that in making interim parenting orders, the court must consider what is in the best interests of the child, including their right to enjoy their culture and traditions, and the rights of the parents to freedom of movement and to be involved in the child's life. The court must also consider the practicability of the parties' competing proposals and the impact on the child of spending less time with one parent. The court's decision must be based on adequate reasons that consider all relevant matters.

Orders

Orders of the court

NAA 78 of 2021

WOC 655 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR PASCOE

Appellant

AND:

MS LARSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The respondent mother and the Independent Children’s Lawyer may, if they so choose, within 14 days, file and serve written submissions of no more than two (2) pages in support of an order for costs.

3. In the event of the respondent mother and/or the Independent Children’s Lawyer filing submissions in support of an order for costs, the appellant father may, within a further 14 days, file and serve written submissions of no more than two (2) pages in reply.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For reasons which I set out, I have dismissed the appeal.BACKGROUND The parties commenced their relationship in 2015 and cohabited for approximately two years prior to their relationship ending in or about 2018. The appellant father has two children from a previous relationship aged 13 and 17. The latter resides with the appellant whilst the former resides with the appellant’s former partner and spends five nights per fortnight in the appellant’s care, together with half of the school holidays. The respondent mother is of Aboriginal descent and has one child from a previous relationship, aged 11, for whom she is the primary carer. In May 2021, the respondent unilaterally relocated with the child from City C to City B. The child did not spend any time with the appellant between May and August 2021. In June 2021, the appellant filed an application in the Federal Circuit Court of Australia (as it then was) seeking interim orders for the child to be returned to live in the City A region and to spend time with him. The appellant’s interim application was listed for hearing before a senior judicial registrar on 12 August 2021. The senior judicial registrar made orders for the child to live with each parent on a week about arrangement. The orders did not, however, address the issue as to the child’s primary place of residence. On 13 August 2021, the respondent filed an application for review of the senior judicial registrar’s decision. That matter was listed for hearing before the primary judge on 12 November 2021 and 30 November 2021, at which time the primary judge delivered ex tempore reasons for judgment. On 3 December 2021, the father filed a Notice of Appeal against the orders of the primary judge and, on 15 December 2021, the father filed an Amended Notice of Appeal, the terms of which are set out further below.THE PRIMARY JUDGE’S EX TEMPORE REASONS The primary judge weighed the parties’ competing proposals concerning where the child should live in the context of the child preparing to commence school in 2022. The primary judge determined that it was impracticable for the child to spend week about time with each parent if he rejected the appellant’s application for the child to be returned to live in the City A region. His Honour ultimately preferred the respondent’s proposal for the following reasons. The respondent and the child identify as being of Aboriginal descent and, in those circumstances, the primary judge noted the desirability of the child maintaining her connection to culture, as well as her right to do so in accordance with s 60CC(3)(h) of the Family Law Act 1975 (Cth) (“the Act”). The primary judge determined that this connection was best maintained by the child living with her mother, who is an Aboriginal woman of the D People. Additionally, while noting his inability to make findings of fact in respect to controversial issues, the primary judge determined that the respondent’s allegations that the appellant had engaged in conduct which constituted family violence could not be ignored.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, this ground of appeal is also without merit. CONCLUSION AND COSTS Having found a lack of merit in all of the appellant’s grounds of appeal, the appeal must be dismissed. As I foreshadowed at the hearing of this appeal, I will make orders facilitating the respondent and the ICL filing respective submissions of no more than two pages in respect to the issue of costs, and for the appellant to have an opportunity to reply with a submission of similar length. The orders will provide for each party to have 14 days respectively for those submissions to be made.

Ratio Decidendi

Legal Principle Established

The appellant’s grounds of appeal, as stated in his Amended Notice of Appeal filed 15 December 2021 and subsequently amended in his Summary of Argument filed 8 February 2022, are as follows:1.The judge at first instance erred at law by failing to follow the statutory pathway as set out in Goode & Goode [2006] FamCA 1346; FLC ¶93-296 [sic].2.The judge at first instance failed to provide reasons, or adequate reasons, as to why the orders are in the best interests of the child, including failing to adequately address:a.The practicability of either proposal;b.The impact on the child of spending significantly less time with the [appellant]; and/or c.How the allegations of family violence, legitimately impacted on the assessment of what is in the best interests of the child. 3.The judge at first instance made findings in respect of the child’s Aboriginal culture and the benefit of the [respondent’s] application which were impermissible inferences, and not available on the evidence before him.4.The discretion of the judge at first instance miscarried in that his Honour relied on material mistakes of fact, including: a.That an order for the child’s residence to be in the [City A] Region would have a negative impact on her Aboriginal culture ([22]);b.That it was not in the child’s interests to live with the [appellant], particularly given the allegations of violence ([24]); and/orc.That the [respondent] would pay a greater price ([26]).CONSIDERATIONGround 1 – Failure to follow the statutory pathway set out in Goode & Goode (2006) FLC 93-286 (“Goode”)Summary of appellant’s argument regarding Ground 1 By way of summary, in respect to this ground of appeal, the appellant’s submissions were as follows. It is contended that the primary judge did not follow the statutory pathway and, as a result, did not discharge the statutory preconditions to enable him to make the orders, therefore erring at law. In failing to follow that pathway, it is contended that:·The Court must consider whether the spend time arrangements would be reasonably practicable to ensure substantial and significant time with each parent.·The orders for the child to spend time with the appellant during the school term and school holidays are not in line with the above consideration. ·When considering the matter of geography, the primary judge did not properly consider s 65DAA(5), which required his Honour to consider whether it was reasonably practicable for the child to spend equal or substantial and significant time with the appellant.Rejection of Ground 1 In Goode, the Full Court, at [81]–[82], set out guidance for considering an application for parenting orders on an interim basis, suggesting that a trial judge should determine what orders are in the best interests of a child by:(a) identifying the competing proposals of the parties;(b) identifying the issues in dispute in the interim hearing;(c) identifying any agreed or uncontested relevant facts;(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;…