Pawley and Pawley (No 2)
[2017] FamCAFC 136
•22 June 2017
FAMILY COURT OF AUSTRALIA
| PAWLEY & PAWLEY (NO 2) | [2017] FamCAFC 136 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Interim order permitting the father time with two young children – Where the order did not prevent the mother from remaining in a new location where she was living when proceedings commenced – Father argued primary judge erred in failing to order the mother to return to live in the area where she previously resided – Mother prepared to continue facilitating weekly time between father and children – No error by the primary judge – Appeal dismissed. FAMILY LAW – CROSS-APPEAL – CHILDREN – Interim orders amended under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) by imposing a requirement that the mother live in the area of her former place of residence for part of each week – Slip rule can be applied only where the proposed amendment is one about which no real difference of opinion can exist – As this condition was not met the primary judge erred in amending the order – Father correct in conceding the cross-appeal. FAMILY LAW – APPEAL – COSTS – Offer of settlement – Both parties in difficult financial positions – No order as to costs – Costs certificates issued for both parties. |
| Family Law Act 1975 (Cth) Federal Circuit Court Rules 2001 (Cth) r 16.05 |
| C & S [1998] FamCA 66 |
| APPELLANT/RESPONDENT: | Mr Pawley |
| RESPONDENT/CROSS-APPELLANT/APPELLANT: | Ms Pawley |
| FILE NUMBER: | NCC | 363 | of | 2017 |
| APPEAL NUMBERS: | EA | 33 | of | 2017 |
| EA | 54 | of | 2017 |
| DATE DELIVERED: | 22 June 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Kent & Loughnan JJ |
| HEARING DATE: | 22 June 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 March 2017 |
| LOWER COURT MNC: | [2017] FCCA 804 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT/RESPONDENT: | Mr Tregilgas |
| SOLICITOR FOR THE APPELLANT/RESPONDENT: | Bale Boshev Lawyers |
| COUNSEL FOR THE RESPONDENT/ CROSS-APPELLANT/APPELLANT: | Mr Levick |
| SOLICITOR FOR THE RESPONDENT/ CROSS-APPELLANT/APPELLANT: | Powe & White Family Lawyers |
Orders
The appeal EA 33 of 2017 be dismissed.
The cross-appeal in EA 33 of 2017 be allowed.
The orders made by Judge Middleton on 4 May 2017 be set aside.
The appeal EA 54 of 2017 be dismissed.
There be no order as to costs.
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 cross-appeal in EA 33 of 2017.
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 cross-appeal in EA 33 of 2017.
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 Pawley & Pawley (No 2) 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 SYDNEY |
Appeal Numbers: EA 33 of 2017
EA 54 of 2017
File Number: NCC 363 of 2017
| Mr Pawley |
Appellant/Respondent
And
| Ms Pawley |
Respondent/Cross-Appellant/Appellant
EX TEMPORE REASONS FOR JUDGMENT
THACKRAY J
There are three appeals before the Full Court, all arising from orders made by Judge Middleton in the Federal Circuit Court on 21 March 2017, which his Honour later amended by application of r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the slip rule”) on 4 May 2017.
The first appeal (EA 33 of 2017) is the father’s appeal filed on 18 April 2017 which challenges the original order made on 21 March 2017.
The second appeal is the cross-appeal of the mother, filed on 16 May 2017, challenging the amended order made on 4 May 2017.
The third appeal (EA 54 of 2017) is that of the mother filed on 30 May 2017, which challenges an order dismissing her application for a stay of the amended order pending determination of the cross‑appeal.
The appeals have been expedited. This has made it possible to list all the matters together, thus making it unnecessary to consider the stay appeal.
In the course of argument, counsel for the father conceded that the cross-appeal ought to be allowed but continued to agitate the original appeal, arguing that his Honour ought to have made an order requiring the mother to live with the children in the area in which the mother and father lived before separating.
Although it is accepted the cross-appeal should be allowed, it is appropriate that reasons be given to indicate why the cross-appeal is to be allowed.
Background
The following background appears to be common ground.
The mother and father were married in 2013. There are two children of their marriage; X who was born in 2014 and Y who was born in 2016, well after the parties separated very early in 2016.
The mother and father grew up in the Town S area of New South Wales. For most of the time they were together they lived in N, a suburb of Town S.
In late 2015, they moved to a farm owned by the mother’s family, west of Town S, with a view to running an animal business.
The mother was the primary carer of both children while the father went out to work. In January 2016, the father gave up his industry job to focus on his other occupation and to undertake work on the farm.
The marriage had become increasingly unhappy. In February 2016, the mother and X went to live with the maternal grandmother in her home on the same property from which the parties operated the animal business. Soon afterwards, the father returned to live in suburb N in his mother’s home.
Thereafter, the father saw X one day a week from about 9 am until 7 pm. He also had her overnight twice. The father saw Y only at the time of the handovers with X. The mother claims he did not express any wish to spend more time with the girls, whereas the father says he was not allowed more time.
Following the separation, the mother formed a relationship with a farmer, Mr M, who lives at district Z, in northern New South Wales, and more than five hours drive from suburb N.
The mother and children stayed regularly at Mr M’s farm from about the middle of 2016, but from January 2017 began staying five nights a week, returning to the Town S area for the father’s weekly time with the children.
The competing applications
In February 2017, the father filed an application seeking an injunction restraining the mother from “relocating the children from where they reside or removing the children from their previous environment without the prior written consent of the Father”.
In retrospect the order seems a little odd because, by that time, the mother and children were already largely living on Mr M’s farm; however the father was unaware of this at the time of filing his application.
The father also sought orders that:
a)the father and the mother have equal shared parental responsibility;
b)the children live with the mother;
c)the children spend time with the father:
i)until X turns three years of age [i.e. in August 2017]: with X each Tuesday and Saturday from 10 am to 4 pm; and with Y on the same days from 10 am until 1 pm;
ii)after X turns three years of age: with X from 10 am Tuesday until 10 am Wednesday and from 10 am on Saturday until 4 pm Sunday; and with Y each Tuesday and Saturday from 10 am until 2 pm;
iii)in later years, for increasing periods until X turns six, at which time the children would live in a week about arrangement.
On 20 March 2017, the mother filed a response in which she sought:
a)sole parental responsibility;
b)the children live with her;
c)subject to certain conditions about the father’s mental health, the father spend time with the children:
i)until 1 June 2017: with X from 10 am until 4 pm on Monday and Tuesday each week; and with Y on the same days for two hours each day;
ii)after 1 June 2017: in the first three weeks of each month with X from 10 am on Monday until 4 pm on Tuesday; and with Y from 1 pm to 4 pm on Monday and Tuesday.
It can be seen from these orders that the mother was, in fact, seeking an introduction of overnight time a little earlier than the father had proposed.
The orders appealed
After hearing argument on 21 March 2017, Judge Middleton delivered an ex tempore judgment, and made these orders “pending further order”:
a)the children live with the mother;
b)X to spend time with the father each Wednesday and Saturday from 10 am until 4 pm; and
c)Y to spend time with the father on the same days from 10 am until noon.
His Honour also ordered a family report and directed that it be made available by 4 September 2017. On that basis his Honour adjourned the proceedings to a “directions hearing” to be conducted on 14 September 2017.
On 18 April 2017, the father filed the appeal in which the primary complaint was that his Honour had not made an order requiring the mother and children to return to the Hunter Valley region, which is the outcome the father clearly wanted after he realised the mother and children had already moved.
After becoming aware of the appeal, and on short notice to the parties, Judge Middleton relisted the proceedings on 4 May 2017. After exchanges with the parties’ solicitors, his Honour amended his earlier order by making an additional order which restrained the mother “from relocating the children’s residence from the [Hunter Valley] region between Wednesday and Saturday”.
We have today been shown a copy of an order Judge Middleton subsequently made transferring the proceedings to Judge Myers’ docket on the basis that the matter remains listed for a directions hearing on 14 September 2017.
The mother’s cross-appeal
It is appropriate to consider the mother’s cross-appeal first, given the obvious impact its dismissal would have on the father’s appeal.
The first issue to consider is whether, as the mother contends, his Honour was functus officio at the time he made the order on 4 May 2017.
I accept that insofar as the interim applications were concerned, the primary judge was functus officio, at least pending further application by either party for variation of those orders. As Jordan CJ explained in Graziers Association of New South Wales v Australian Legion of Ex-Serviceman and Women (1949) 49 SR (NSW) 300 at 303:
The general rule, as established by the authorities … is that “when an arbitrator or judicial officer has given his award or adjudication … he is functus officio, and cannot add to, amend, or detract from what he has done”; although in some jurisdictions an adjudication is not regarded as having been finally made until it has been passed and entered … This rule applies to judges exercising judicial authority conferred by statute, unless otherwise provided by statute…
However, the fact that a judge may be functus officio does not prevent the judge from correcting his or her orders by application of the slip rule. The real issue, therefore, is whether there was error in his Honour’s purported reliance on the slip rule in adding to the orders he originally made.
All courts have implied jurisdiction to amend orders which do not accurately state what was actually decided or what the court intended to decide: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 389–399; DJL v The Central Authority (2000) 201 CLR 226. Consistent with this, r 16.05(2)(e) of the Federal Circuit Court Rules provides that the court “may vary or set aside its judgment or order after it has been entered if … the order does not reflect the intention of the Court”. Rule 16.05 goes further in permitting the variation or setting aside of an order on the basis that the order is “interlocutory”, but that is not a power the judge sought to rely upon here.
Although the topic was not the subject of submissions, I consider that r 16.05 does not constitute a code which replaces the implied power of the Federal Circuit Court to control its own process, including the power to take action to prevent injustice. See the authorities discussed in Teo & Guan (2015) FLC 93-653 at [36] et seq and Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc and Ors (2007) 70 NSWLR 411 at [18].
Therefore, although not provided for in r 16.05, I accept that the power of a court to correct its own order also extends to cases where a matter was not dealt with as a result of inadvertence: Raybos Australia Pty Ltd and Anor v Tectran Corportion Pty Ltd and Ors (1988) 77 ALR 190. However, there is a distinction between cases where an amendment of an order is proposed to give effect to the court’s original intention, and cases where the court proposes to correct an order by including a provision dealing with a matter that was not dealt with at the original hearing. In cases of the latter type, the power to amend appears to be limited to correcting only ancillary or consequential matters and not “substantial” questions. However there is no such limitation where a change is to be made to reflect the original intention of the court: Owston Nominees No 2 Pty Ltd and Anor v Branir Pty Ltd and Ors (2003) 129 FCR 558 at [25].
In determining whether the original order reflected what the court decided (or whether it is appropriate to make an additional order to deal with an issue that was overlooked), it is necessary to look at the surrounding circumstances which include the reasons, the pleadings and, if necessary, the evidence and how the case was conducted: Owston Nominees at [27].
I have already set out the relief each party sought. Before considering his Honour’s reasons, I propose to outline the submissions and exchanges during the original hearing, which are potentially of importance given the judgment was given ex tempore. I then intend to set out what transpired when the legal representatives were called back to court after the father had filed his appeal.
The submissions at the original hearing
The hearing on 21 March 2017 was a brief one as might be anticipated in the busy trial court that was described to us in submissions today. The entire proceedings, including delivery of judgment, took just over half an hour.
In his oral argument, the father’s solicitor made submissions concerning the difficulties that the relocation would create for the father and the children, and reference was made in particular to concerns about the extent of the travel the children had obviously been undertaking in moving between the two locations.
His Honour enquired about the mother’s intentions, to which her solicitor responded by noting that while the mother had primarily resided at district Z since January 2017, the parties were nevertheless agreed (on an interim basis) that the children could spend two days per week with the father. In response to this submission, his Honour enquired, “And that can happen notwithstanding where mum predominantly resides?”
The mother’s solicitor responded to this question in the affirmative, noting that the real issue was whether the two days should be spent consecutively, as the mother proposed, or on Tuesdays and Saturdays as the father proposed. The mother’s solicitor submitted there was no evidence that the mother’s proposed arrangement, including the associated travel, was not “reasonably practicable”.
The mother’s solicitor went on to submit that the question of making a “coercive order” against the mother should be postponed until the family report had been prepared, noting that all the father sought until August 2017 was two days a week (or part thereof). He also argued that the court ought not interfere with arrangements that had been in place since January 2017.
His Honour, having clarified the relief sought, said to the father’s solicitor, “all of the orders on your client’s interim application won’t be affected if that issue around relocation isn’t decided on an interim basis, as I read it.”
The solicitor responded, effectively disagreeing, by drawing attention to the fact that while the mother was proposing two consecutive days, the father was proposing that the days would be “stretched out”, for which he said there were “very important reasons”, particularly given the age of Y and her need to form a close attachment with her father. He further submitted that “the cases demonstrate the judges are very apprehensive about making orders allowing parents to relocate at this early interim stage”. The solicitor concluded by submitting that his Honour ought to make “a coercive order” requiring the mother and children to live in the “[Hunter Valley] region”.
The mother’s solicitor again argued in reply that the better course was for his Honour to obtain the family report, prior to making a “coercive order” which he submitted would cause “further upheaval” for the children. In advancing this argument the solicitor drew attention to the absence of any complaint in the father’s affidavit about any adverse impact of the travel on the children.
This led to the following closing exchange:
HIS HONOUR: Whether there’s a complaint or not is, to some extent, moot. It’s whether I consider it’s reasonably and practical having regard to the age of the children, which is in evidence, and their circumstances.
MR WHITE: I accept that, your Honour. But your Honour must be informed by the evidence of the parties in order to draw certain inferences or conclusions or findings in relation to that might in my submission.
HIS HONOUR: Yes. Well, I’m certainly told on your client’s own case that the children are travelling a great distance often.
MR WHITE: Yes, your Honour. It’s once – in effect, it’s once per week which has been occurring, and in her position it would continue to occur. The two days spending with the father – she’s increasing the time that [X] would spend with the father. Identifying or recognising the benefit for more time would still occur in one sitting. Just consecutive days during each week.
HIS HONOUR: Yes. All right. I hear what you say. Thank you.
(Transcript, 21 March 2017, p 9)
(Errors and omissions in original)
The reasons for the original order
The primary judge’s reasons were brief. I propose to set them out almost in their entirety as they are clearly of great significance in determining whether the original orders reflected his Honour’s intentions.
Relevantly his Honour held:
2.It has been raised today that the mother is intending to relocate on a more permanent basis to an area at [district Z] which is […] approximately 450 kilometres from where she had previously resided on a full-time basis until about … February 2017. The mother says she now spends more time at … [Z] property, being approximately five days per week, and two days per week in the area where she formerly resided.
3.These are very, very young children subject to the application … [X] will turn three in August of this year, and [Y] will turn one in August of this year. The father in his application clearly wants to spend substantial and significant time with the children, but appropriately seeks by way of interim orders that see a progression in time, so that the developmental needs of the children can be taken into account; and indeed, his final orders also see that progression in time.
4.The mother in her response seeks orders on a final basis, provided the father is living 50 kilometres from the children’s residence, for alternate weekend time. And upon [X] commencing school, that time extends to a Monday. And she seeks a prohibition, that the father remain within 150 kilometres of the children’s school when he spends that time. I infer from the order that she seeks that she is concerned about the children travelling long distances.
5.Obviously, I must make orders that are in the best interests of the children, and in deciding what is in the best interests of the children, I must have regard to the legislative pathway, and in particular sections 60CC, 61DA, and 65DAA, should I order equal shared parental responsibility.
I pause there to note that his Honour made no further reference to the question of parental responsibility, and made no order about it, nor did he make any express reference to any of the factors arising under the statutory provisions to which he referred. In any event, his Honour continued (footnotes omitted):
6.In relocation cases – not that the Act specifically refers to relocation cases. But in cases where relocation is sought, there is a good line of authority that says that relocation should only be granted after a final hearing. Warnick J said this in C & S:
“In my view, it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children such as a relocation being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.”
7.The situation for these children immediately before the mother relocated in the main to [Mr M’s] Farm as it is affectionately known, was that the child – that is [X] – was spending one day per week with her father. And as I understand it, [Y] is yet to have spent any time with her father. Notwithstanding that, the recent move – and I say recent because it occurred in January of this year, and we are now towards the end of March – will likely have an effect on the relationship between the children and their father due to the tyranny of distance. Boland J in Morgan & Miles said this in relation to relocations:
“It appears to me that the very difficult issues in cases involving a relocation… make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me, the comments of Warnick J in C & S remain apt and relevant to determination of these issues.”
…
9.As it is the mother’s ultimate desire to relocate to [Mr M’s] Farm, the issue of relocation is very live in this matter. In those circumstances, noting that the children have a relationship it seems with [Mr M] as well, and noting that the mother has a relationship with [Mr M], it is obviously important for those relationships to be considered in my determination as well, because those relationships impact upon the needs of the children and will form a basis of my ultimate decision in relation to their best interests.
10.The father seeks an order that he spend time with the children on an interim basis on a Tuesday and Saturday. The mother proposes that he spend time with the children on Monday and Tuesday. Doing the best that I can on an interim basis, I will make orders that the children spend time with their father each Wednesday and Saturday.
11.In circumstances where both [X] and [Y] will be together, though, I am of the view that the children spend time with their father each Wednesday and Saturday from 10.00am until 4.00pm until further order.
12.The children should otherwise live the mother. And I am going to order a full family report returnable on 4 September, and we are going to fast track trial.
13.[X]’s time will be 10.00am to 4.00pm and [Y]’s time will be 10.00am to 12.00pm until further order.
14.And I reserve my right to make more fulsome orders [sic] in the event that I need to.
After judgment was delivered there was a further interchange between bench and bar concerning the details of the days and times the father was to see the children, at the conclusion of which this was said:
HIS HONOUR: And I reserve my right to make more fulsome orders in the event that I need to.
MR WHITE: Thank you, your Honour.
HIS HONOUR: More fulsome reasons in keeping with what I’ve said.
(Transcript, 21 March 2017, p 11)
The slip rule hearing
When the matter resumed on 4 May 2017, his Honour commenced by addressing the mother’s solicitor, who was attending by telephone:[1]
HIS HONOUR: Thank you, Mr White. I’ve caused this matter to be re‑listed in circumstances where I had to review - not review, sorry, settle my reasons given and the orders that I gave on the last occasion and it came about as a result of an appeal being lodged and, I must say, when I heard that an appeal had been lodged on the basis that I hadn’t prevented the relocation, my initial response was incredulous because I thought that my orders had clearly set out that the mother was not permitted to relocate on an interim basis. When I reviewed the orders, it seemed to me that the orders didn’t reflect the intent that I meant them to. And so I’ve relisted the matter pursuant to rule 16.05 which provides that a court can vary or alter an order if it doesn’t reflect the court’s intent.
(Amended transcript, 4 May 2017, p 2)
[1]The transcript from which these extracts are taken was amended in the primary judge’s chambers to correct typographical and other errors.
His Honour then enquired of the mother’s solicitor whether his client had understood that the basis of his ruling was that she must remain living in the “former region” between the Wednesday and Saturday when the children were to spend time with the father. The mother was not with her solicitor (the parties having been excused), but in any event the mother’s solicitor responded:
MR WHITE: Your Honour, to be frank, I had difficulties reconciling at the … conclusion of your reasons precisely - and following the delivery of your orders - precisely what the effect of the orders would have on my client … It wasn’t until I received your Honour’s actual orders that I confirmed that those orders did not prevent my client from residing - if I could describe it - on the Mid North Coast except the period of which time she would need to have the children in the Hunter Valley area to spend time with the father.
(Amended transcript, 4 May 2017, p 2)
His Honour then went on to explain why he considered the order did not reflect what he intended. In doing so, his Honour said:
HIS HONOUR: …And, in real terms, your client was seeking two days - two consecutive days so that she could live on “[Mr M’s] Farm”, as I affectionately called it, for five days a week and then come back for the purposes of the father spending time. The father, of course, was seeking those days to be separated so to ensure that the mother did not remain living on “[Mr M]’s Farm”. And it was on that basis that I did separate the days and that was my intent. It was to ensure that the children remain in the former area the Hunter […] so that there was not the situation where the children were travelling long distances between those days.
And, clearly, my orders, if taken literally, would provide for the mother to be able to travel down, potentially, on a Wednesday morning - early hours of the morning - spend time with dad and then travel back to “[Mr M]’s Farm” and come back down on Saturday. And that’s, indeed, more travel than anybody was contemplating. So it’s on that basis that I brought the matter back because clearly the orders needed to be specific that the mother could not relocate. You’re quite right, Mr White. My reasons certainly go to [C & S] and Morgan & Miles and why relocation isn’t permitted until final orders unless there’s emergent [sic] circumstances. There was nothing contained within the evidence that went to emergent [sic] circumstances and so I didn’t deal with it. It’s quite clear from my reasons that I was not of a mind to allow the mother to relocate to “[Mr M]’s Farm.”
(Amended transcript, 4 May 2017, p 3–4)
After further exchanges, in which the mother’s solicitor indicated a desire to seek instructions, the following exchange occurred:
HIS HONOUR: Yes. So the order that I’m intending to make is that the mother is prohibited from relocating the children’s residence between the days of Wednesday and Saturday so that she is in the Hunter […] area from Wednesday through to Saturday at the very least. I think that’s when the - yes. At the very least. And thereafter she can, obviously, travel to “[Mr M]’s Farm” and spend time with [Mr M]. And I actually refer to the understanding that I had that [Mr M] has been involved in these children’s lives and that’s also a consideration that I need to take into account in my reasons.
MR WHITE: Yes. And can I suggest to your Honour that that - it was at that point of your Honour’s judgment that I became a bit less than clear as to whether or not your Honour was directing my client to return. So I think that’s why - where I could clarify to the court to say prior to that aspect of your Honour’s judgment, it seemed to be that your Honour’s attention [sic] was to return the mother.
HIS HONOUR: Yes.
MR WHITE: That your Honour’s discussion in relation to that issue - and then the delivery of the orders shortly thereafter it became somewhat confusing and I think, in fairness, if I could speak on behalf of Mr - my learned friend’s instructor, we’ve subsequently both seem to see that that was the turning point in your Honour’s judgment.
(Amended transcript, 4 May 2017, p 5–6)
His Honour then made the order which is the subject of the cross-appeal.
Was the slip rule properly applied?
As I have said during submissions today, I have no reason to doubt the primary judge’s recollection of the order that he intended to make, but that is not the end of the matter. As Spigelman CJ (with the concurrence of Santow AJ and Handley AJA) said in Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc and Ors at [95]:
... the relevant question is what the Court intended to do and/or what the Court would have done, if the issue had arisen at the time the orders were made. Anything a judge, even the same judge, says about what s/he would do to correct the original orders is no more than evidentiary and may not even be admissible over objection...
Furthermore, the authorities make plain that the slip rule can be applied only where the amendment is one upon which no real difference of opinion can exist. Hence, it cannot apply where there is any question involving the exercise of discretion by the judge: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 390–391. This proposition is true not only at common law but applies also to matters in which rules equivalent to r 16.05 apply (for example, r 39.05 of the Federal Court Rules 2011 (Cth) and its predecessor, Order 35 r 7 of the Federal Court Rules 1979 (Cth)).
The fact that the primary judge was making a discretionary judgment when amending the order becomes plain when it is realised there was more than one outcome his Honour might have contemplated when deciding what further order to make. It may have been, for example, that he intended that the mother should be required to live around region G at all times, as the father seemed to be proposing. Alternatively, he may have had in contemplation that the mother should remain in the area only from Wednesday through to Saturday, as his Honour ultimately ordered. Another possibility is that the mother ought to predominantly live around region G and therefore be restricted to leaving from Saturday through to Wednesday. It was also possible that his Honour intended, as the mother had proposed, that the mother could determine where she lived, provided she made the children available to the father at the determined times, in the same way she had been doing since the middle of 2016.
I accept that the primary judge made comments indicating concern about the extent of travel the children were required to undertake. This may have reflected an intention to restrict the mother’s travel or choice of residence. On the other hand, his Honour also said that it was “obviously important” for him to consider the relationships that the children and the mother had with her new partner. This may have reflected an intention to allow her to travel and live where she wished. His Honour did refer to authority which he understood suggested that a “relocation should only be granted after a final hearing”. However it was not entirely clear what relevance such authority had to a case where the time the father spent with the children on an interim basis would not change regardless of the location in which the mother resided between visits. His Honour had said as much himself during argument when he commented “all of the orders on your client’s interim application won’t be affected if that issue around relocation isn’t decided on an interim basis, as I read it”.
In my view, it would have been a matter of pure conjecture what additional order, if any, his Honour had in his mind to make to give effect to his reasons. Accordingly, any proposed amendment would inevitably have led to real differences of opinion, thus making it an inappropriate case for application of the slip rule. This has to be especially so in circumstances such as these where the amended order his Honour made was not one either party had sought or which he had indicated was within his contemplation during argument.
His Honour also appears to have proceeded on the basis that the order necessarily had to be rectified if it did not correspond with his original intention. This approach overlooks the fact that an amendment to an order under the slip rule is not available as a matter of course, and that there is a discretion to refuse to amend an order if something has intervened which would render it inexpedient or inequitable that it be amended: L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No. 2) (1982) 151 CLR 590.
While there are no criteria laid down to guide the discretion conferred by the slip rule, I consider his Honour ought first to have provided the mother an opportunity to give evidence of what her solicitor said she had done in reliance upon the original order. I also consider that a further relevant matter in the exercise of the discretion was the fact that the father had filed an appeal, presumably on the basis that he saw no scope for application of the slip rule.
For these reasons, I consider that counsel for the father was right in conceding that the cross-appeal must be allowed.
The father’s appeal
The consequence of the cross-appeal being allowed is that the father’s appeal now needs to be dealt with on the basis the father originally anticipated: i.e. the failure of his Honour to make an injunction preventing the mother from living wherever she wants as long as she facilitates the father’s time with the children.
The Notice of Appeal had four grounds of appeal. Ground 4 was not a ground at all, and Grounds 1 and 2 were abandoned. Ground 3 asserts that his Honour:
… failed to consider, and have hence erred at law, the effect of the orders on the welfare of the children of the marriage, such welfare to be determined at the final hearing.
As I pointed out during argument today, r 22.22 of the Family Law Rules 2004 (Cth) provides that a summary of argument shall set out the grounds of appeal and beneath each ground set out the arguments advanced in support of that ground. That course was not followed in the father’s Summary of Argument, and we therefore had to await the oral submissions to understand the basis of the complaint in Ground 3, which was the sole remaining ground of appeal.
Counsel for the father submitted, in effect, that it would not be in the interests of the children for them to live predominantly at district Z on an interim basis because by the time the matter came on for trial, and I am paraphrasing the argument, the children would have settled into that area; it would be disruptive for them to be removed; and the father would be disadvantaged because the mother would contend that the children had put down roots.
I find no merit in the father’s complaint. By the time the matter first came before the primary judge, the mother had already effectively relocated to district Z where she was living for the majority of the week. The mother was continuing to return to the Hunter Valley to ensure that the father spent time with the children in the same way he had been previously. Further, this was having so little impact on the father and on the children that the father was unaware of the mother travelling back and forward between the two locations at the time of filing his application for an injunction.
The Court has learned today that on the day prior to the hearing below the mother had filed an affidavit which alerted the father for the first time to the arrangements that were already in place. The mother indicated she was willing to increase significantly the time the father was spending with the children. She foreshadowed a willingness to extend that time in the near future to overnight time and she said all of this was reasonably practicable because she had already been undertaking the required travel. The mother’s evidence was that the children had “coped well with the travel”. In fact, she saw some benefits in it. There was no evidence to contradict this.
The mother also referred in her affidavit to the difficulties associated with her living with her mother on the farm. She stated, and this was not contested, that she and the two children were obliged to share one bedroom in the grandmother’s residence. She gave evidence of more satisfactory arrangements on her partner’s farm in district Z, where there was more space and bedrooms for all. She also gave evidence of having moved part of the business to her partner’s farm, and how they had established a relationship together and how her work around the property was of mutual advantage.
The decision his Honour had to make would determine arrangements only until later in the year, in circumstances where the mother was the uncontested carer of the children and was prepared to do all the travelling associated with the father continuing to spend the same amount of time with the children that he would have in the event she were living in the Hunter Valley. I am not persuaded that his Honour failed to consider the effect of his orders on the welfare of the children. The arrangements the mother had made for the children at district Z were perfectly adequate, and arguably superior to those she could provide if confined to the Hunter Valley. His Honour’s orders gave the father the same amount of time with the children he would have had if the mother lived closer to his residence, and the father was not obliged to undertake any of the travelling involved in him seeing the children. Furthermore, there was no disruption to the children because the relocation the father hoped to prevent had already taken place.
The rest of the concerns expressed by counsel for the father related to matters of forensic advantage to the father, rather than having any relevance to the welfare of two young children who would scarcely be putting down “roots” pending distribution of a report and further hearing later in the year, especially when they would be going back to the Hunter Valley every week.
It is for these reasons that I find no merit in the father’s appeal. I consider the appeal ought to be dismissed.
KENT J
I agree with the orders proposed by the presiding judge and with his Honour’s reasons. I only wish to add a couple of comments in respect of the father’s appeal concerning the contention of error on the part of the trial judge in the orders as made.
It may be trite to say so, but in parenting cases including so-called relocation cases considered at an interim stage or, properly described, cases involving a proposal by a party for children to live in an area removed from an erstwhile living area, statements of general principle from the authorities do not apply in the abstract or have application independent of the facts of the particular case.
In this case reference has been made both in the proceedings at first instance and on appeal, to the judgment of Justice Warnick in C & S [1998] FamCA 66. It is important in my view to emphasise or to place focus upon what his Honour said in the cited passage. His Honour said:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.
(Emphasis added)
In this case as the presiding judge has pointed out in his reasons, there was no significant alteration to the relationship of these children with their father by reason of the mother moving to live where she did in January, nor would there have been on the interim hearing any significant impact upon the continuation of the time the father was to spend with the children.
As it seems to me the centrally important facts relevant to any general statement of principle in this case, included that a family report was ordered at the interim hearing with a view to bringing the matter back to court in a timely way once that family report had been prepared.
The mother had always been the primary carer of the subject children, including in the post-separation period, and remained so at the time of the interim hearing as the uncontested primary carer of them. The very young age of these children had in fact dictated the children living mainly with the mother and spending what might be characterised as limited time with the father. As I have said that time, and the continuation of that time, was unaffected by the feature that the mother and children had relocated, in effect for most of the week, in January and proposed to continue to do so.
In my judgment, no error, even by application of the statement of principles referred to, has been demonstrated with respect to the father’s appeal from the orders as made originally.
LOUGHNAN J
I, too, agree with the orders proposed by the presiding judge and endorse the reasons given by the presiding judge and Kent J and have nothing to add.
THACKRAY J
Costs
Before the court now is the mother’s application for the father to pay her costs of all three appeals.
In support of her application, the mother relies upon the fact she has been entirely successful, which cannot be gainsaid.
She relies also on the fact she does not have legal aid and is in a poor financial position. Her income consists of payments from Centrelink, $100 a month child support from the father, and minimal income from her business. She received a property settlement of $45,000, but this has been spent on legal fees.
The mother also relies on Exhibit 1, which is a letter from her lawyers to the father’s lawyers dated 5 June 2017 in which reference is made to the expedition application that came before Ryan J on 2 June 2017 at which time, it is said in the letter, her Honour implored the parties to consider reaching some interim agreement to preserve funds and energy.
Exhibit 1 was an offer by the mother which would have ensured that the father continued to see the children on the two days a week proposed, but on the basis that the requirement for her to live in the Hunter Valley be lifted. Implicit in the offer is that the mother’s position in relation to the appeals would be accepted on the basis there would be an agreed variation to the orders that would have been open to the parents to reach, but which we could not have ordered, given the way in which the matter was presented to us today.
The mother also submits that the cross-appeal should have been conceded in advance of the hearing given the obvious merit in the cross-appeal.
In response, counsel for the father relies only on the father’s poor financial circumstances. We are told the father earns only around $25,000 per annum net. We are also told that he received $13,000 from the property settlement but this has been expended on legal fees. We are further informed that the father has unpaid legal fees and he is selling his car of modest value in order to meet them. In summary, the father is impecunious.
There are, of course, strong arguments in support of the application for costs. The mother has been wholly successful and I accept that the cross-appeal ought to have been conceded before today. Nevertheless, the original error was that of the judge, not the father or his legal advisors. I also consider it necessary to face the reality that the father is in difficult financial circumstances and it is this factor which I consider tips the matter in the father’s balance, since he could not afford to meet an order for costs.
For these reasons, I consider there should be no order as to costs.
This gives rise to the question of whether a certificate ought to be granted to the parties, or one of them, under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth), this having been a Federal appeal that has been heard and allowed because of on an error of law. Both parties seek such a certificate. In my view a certificate should be granted to both of them to cover, at least, a modest proportion of the costs that have been involved in this exercise.
KENT J
I agree with the orders proposed by Thackray J and with his Honour’s reasons and have nothing to add.
LOUGHNAN J
I agree with the orders proposed by the presiding judge and the reasons and have nothing to add.
THACKRAY J
For those reasons, and for those given earlier, there will be the following orders:
(1) The appeal EA 33 of 2017 be dismissed.
(2) The cross-appeal in EA 33 of 2017 be allowed.
(3)The orders made by Judge Middleton on 4 May 2017 be set aside.
(4) The appeal EA 54 of 2017 be dismissed.
(5) There be no order as to costs.
(6)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 cross-appeal in EA 33 of 2017.
(7) 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 cross-appeal in EA 33 of 2017.
I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Kent & Loughnan JJ) delivered on 22 June 2017.
Associate:
Date: 18/7/17
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