Perry & Perry

[2015] FamCAFC 187

FAMILY COURT OF AUSTRALIA

PERRY & PERRY [2015] FamCAFC 187

FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders – Where the appeal does not raise any question of general principle – Reasons for decision in short form pursuant to s 94(2A) – Appeal dismissed.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Bennett and Bennett (1991) FLC 92-191
Goode and Goode (2006) FLC 93-286
Tael and Bonnard Equipment Pty Ltd & Liao (2008) FLC 93-379

APPELLANT: Mr Perry

RESPONDENT: Ms Perry

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: TVC 1195 of 2013

APPEAL NUMBER: NA 12 of 2015

DATE DELIVERED: 28 September 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy, Aldridge & Forrest JJ

HEARING DATE: 7 August 2015

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 2 February 2015

LOWER COURT MNC: [2015] FCCA 442

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Betts

SOLICITOR FOR THE APPELLANT: Lee Turnbull & Co

COUNSEL FOR THE RESPONDENT: Mr Fellows

SOLICITOR FOR THE RESPONDENT: Boulton Cleary & Kern

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mayes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. That the appeal from the parenting Order of Coker FCCJ of 30 January 2015 is dismissed.

2. That the appellant father pay the respondent mother’s costs of and incidental to the appeal as agreed or to be assessed on a party and party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perry & Perry 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: NA 12 of 2015
File Number: TVC 1195 of 2013

Mr Perry

Appellant

And

Ms Perry

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By Notice of Appeal filed on 26 February 2015, the appellant father (“father”) appeals against interim parenting orders made by the Federal Circuit Court on 30 January 2015 in respect of the three children of the father and respondent mother (“mother”).

2. The Notice of Appeal contended the learned trial judge erred at law and in fact provided inadequate reasons and allowed his judicial discretion to miscarry. At the hearing of the appeal, counsel for the father submitted that the gravamen of the appeal was that the trial judge’s reasons were inadequate, in that it could not be seen from his reasons that his Honour applied the “unacceptable risk” test, that his Honour dealt with the risk allegations advanced by the father against the mother, that he applied the primary consideration set out in s 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) or that he followed an identifiable pathway in order to determine the matter.

3. In our opinion, the father failed to establish that his Honour erred in any of these respects and, as such, the appeal should be dismissed. As was agreed at the hearing, this appeal does not raise any question of general principle and pursuant to s 94(2A) of the Act reasons for its dismissal may be given in short form.

The Background

1. Proceedings between the parties were commenced by the father in December 2013 seeking a parenting Order in respect of their children pursuant to Part VII of the Act.

2. The three children of the parties are now aged 15, 11, and nine years respectively.

3. In January 2014, only a month after the proceedings were commenced, an interim parenting Order was made by the trial judge with the parents’ consent. Relevantly, the Order provided for the children to live with the mother in Town T and to spend time with the father, both in Town T and in Town R, where the father lived.

4. That Order was implemented unexceptionally for a year until, in January 2015, the father retained the two youngest children and refused to return them to the mother after a holiday visit. By that time, the eldest child’s relationship with the father had deteriorated and she was not spending as much time or communicating as frequently with the father as the two youngest children were.

5. The preparation of a family report to assist the Court and the parents finally determine the matter was also well underway. Indeed, the father spoke to the report writer about his concerns for the wellbeing of the children before he determined to retain the two youngest children in his care.

6. The mother filed an interim application on 14 January 2015 seeking recovery of the two children retained by the father. It was given some listing priority and was heard on 30 January 2015. Aware of the developments, the report writer finished her report which was then available to the trial judge at the hearing. She recommended the children be returned to the mother’s care.

7. The father responded to the recovery application, seeking an Order from the trial judge that the two youngest children live with him and have supervised time with the mother. 

8. On 30 January 2015, after the hearing, the trial judge made an Order returning the two children to the mother’s care. He ordered the appointment of an Independent Children’s Lawyer (“ICL”) and requested the intervention of the Director-General of the Department of Communities, Child Safety and Disability Services. He also transferred the proceedings to the Family Court of Australia. He published reasons for his Order two days later.

The Procedural Context

1. When applications are brought on in circumstances of urgency, such as on a “holding over” of children, contrary to an existing Order after a school holiday visit, the process by which the application is determined is necessarily an abridged process in which the scope of the inquiry is “significantly curtailed” (Goode and Goode (2006) FLC 93-286 at [68]).

2. Although adequate reasons must still be given, any assessment of the adequacy of the reasons given for decisions made in such circumstances must take account of those circumstances. (Bennett and Bennett (1991) FLC 92-191; Tael and Bonnard Equipment Pty Ltd & Liao (2008) FLC 93-379 per Thackray J at [29]–[31]) Overly pernickety scrutiny on appeal, of reasons given in such circumstances, should be avoided.

3. Further, in such circumstances, the trial judge is not required to demonstrate that he or she has considered each of the s 60CC “primary” factors and “additional” factors by discussing them all. Discussion of the relevant, determinative factors will generally suffice, particularly where it is obvious that the findings made as to some of them will be determinative of the children’s best interests on an interim basis. In Banks & Banks (2015) FLC 93-637 at [50] the Full Court said:

   When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors.  Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations.  Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

The Judgment

1. It is abundantly clear from his Honour’s reasons that his Honour considered the father’s case and submissions as to matters presenting risk to the children in the mother’s care (see paragraphs [18], [21], [87]-[88], [110]-[111], [115]). His Honour was at pains to refer to evidence supporting findings of inadequate parenting by the mother of the children in numerous respects (see paragraphs [28], [35], [36], [38], [40], [41], [76], [91], [95]-[97], [103]-[104], [108]). On the other hand though, his Honour also referred to evidence supporting concerns he had of some inadequacy of parenting capacity on the father’s part (see paragraphs [29], [76], [82]-[87]), and he carefully considered the family report that was hastily finished with the urgent hearing before his Honour in mind (see paragraphs [32], [37], [50]-[65], [68]-[75], [82]-[85], [89]-[90], [98]-[101], [103], [105]-[106]) .

2. His Honour’s reasons poignantly refer to the fact that the father was seeking an Order that only the two youngest children continue to live in his care. It is clear that in a very difficult case in which there was objective evidence of risk to the children whichever parent they were placed with, keeping all three siblings together weighed heavily in the exercise of the trial judge’s discretion and permissibly so (see paragraphs [107], [110] and [114]).

3. His Honour clearly weighed the evidence and considered the s 60CC factors. He ultimately made a determination that reflects his satisfaction that placing all three children back in the care of the mother until further order was in their best interests and did not expose them to an unacceptable risk of physical or emotional harm. His Honour’s pathway to that determination is discernible and does not demonstrate error. That one or more of the matters his Honour considered may or may not have been given as much weight or may or may not have been given more weight by us on appeal is no reason to set his Honour’s Order aside.

4. Accordingly, as we have already observed, we would dismiss the appeal.

Costs

1. The mother asked for an order that the father pay her costs of the appeal if it is dismissed. In support, she relied upon the father being “wholly unsuccessful” in the appeal, as well as a letter dated April 2015, from her solicitors to the father’s solicitors (which was made an exhibit in the appeal) in which they set out their views on the circumstances of the hearing, referred to lack of prospects of success on appeal and suggested withdrawal. She also relied upon her relatively impecunious financial circumstances.

2. We are satisfied that the mother’s solicitors put a reasonable case to the father’s solicitors for the withdrawal of the appeal by the father. In effect, it was an offer to settle the appeal in written form. The outcome of the appeal, in our judgment, is as the mother’s solicitors effectively foreshadowed. In addition, counsel for the father quite appropriately conceded that if the appeal was unsuccessful his client could not avoid a costs order.

3. We would make an Order that the father pay the mother’s costs of the appeal.

4. The ICL took no part in the hearing in which the parenting Order appealed against was made, only being appointed by that Order. Each party to an appeal determines whether he or she needs to appear and make submissions and, in our respectful judgment, it was not necessary for the ICL to do so in this appeal.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Aldridge & Forrest JJ) delivered on 28 September 2015.

Associate: 

Date:  28 September 2015