PJC & MHC

[2006] FamCA 1048

FAMILY COURT OF AUSTRALIA

PJC & MHC [2006] FamCA 1048

APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – POWERS AND DISCRETION OF FULL COURT – On 5 July 2006, parenting orders were made in the Federal Magistrates Court in relation to the two children of the parties, providing for the children to live with their mother – Both parties conceded that the Federal Magistrate failed to apply the new provisions of the Family Law Amendment (Shared Parental Responsibility) Act and agreed that the appeal must be allowed – The mother submitted that the matter should be remitted to the Federal Magistrate for re-determination based on the new law – The father submitted that the Full Court should re-exercise the Federal Magistrate’s discretion – The father argued that he had lost confidence in the Federal Magistrate due to his failure to apply the new law and believed that the Federal Magistrate was unsympathetic to him as a self-represented litigant – As the findings of fact were to remain identical, the father’s concerns carried very little weight – The relevant exercise of judicial power was not one of neat distinction between findings of pure fact and application of the law, but involved the drawing of discretionary conclusions – It is desirable for applications to be determined in all elements by the same judicial officer.

Eaglesfield v Marquis of Londonderry (1875) 4 Ch D 693
Thomas v The King (1937) 59 CLR 279

Family Law Act 1975 s 94AAA(6)
Family Law Amendment (Shared Parental Responsibility) Act

APPELLANT: PJC

RESPONDENT: MHC

FILE NUMBER: SYM 4265 of 2002

APPEAL NUMBER: NA 63 of 2006

DATE DELIVERED: 17 October 2006

PLACE DELIVERED: Brisbane

JUDGMENT OF: WARNICK J

HEARING DATE: 11 October 2006

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 5 July 2006

LOWER COURT MNC: [2006] FMCAfam 319

REPRESENTATION

APPELLANT IN PERSON: PJC

SOLICITOR FOR THE RESPONDENT: Mr Cooper

SOLICITORS FOR THE RESPONDENT: Barry & Nilsson Lawyers

Orders

1. That the appeal be allowed.

2. That orders 1, 3, 4 and 5 of the orders of Federal Magistrate Lindsay made 5 July 2006 be set aside.

3. That the applications of the father upon which the orders set aside were made be remitted to Federal Magistrate Lindsay, on the facts as found by him in accordance with his reasons for judgment delivered 5 July 2006, for determination according to law.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 63  of 2006
File Number: SYM 4265  of 2002

PJC

Appellant

And

MHC

Respondent

REASONS FOR JUDGMENT

1. On 9 June 2006 Lindsay FM presided over a hearing of parenting issues between the parties.  The parties have two children, “M”, about 8½ years of age, and “H”, 6 years of age.  In his reasons for judgment delivered on 5 July 2006, Lindsay FM recorded that there had been considerable previous litigation between the parties about a range of parenting issues.  As to the particular issues that ultimately required his determination, the Federal Magistrate utilised the following headings:

   •“Restoration of Tuesday contact

   •Discipline of the Children

   •Holiday Contact

   •Family Assessment Report, and

   •Application for Change of Schooling.”

2. After a short introduction and a background, but prior to the discussion of matters relevant to each of the above issues, the learned Magistrate discussed the applicable law under the heading “Section 60B and 65E issues” during which he also set out the full terms of s 68F(2).  He said:

   “8.…I have taken proper notice of and given proper attention to that legislative direction and in particular to s 68F(2)(b), (c), (e), (g), (h), (i) and (a).

   9.   The discussion which is to follow will demonstrate the application of those provisions to the ascertainment of the best interests of the children.…”

3. The learned Magistrate made the following orders.

   “(1)That the father’s application for variation of the orders of 25 June 2004 contained in his Further Amended Application of 7 June 2006, or in his Amended Application of 2 June 2006, or in his application filed on 13 July 2005 do stand dismissed;

   (2)That the mother’s application for orders in relation to the children's schooling contained in her Amended Response filed on 10 May 2006 be dismissed;

   (3)That the father's oral application for the preparation of a family assessment report directed to the wishes of the children be dismissed.

   (4)That the respondent mother file and serve written submissions in support of any application for costs within 28 days.

   (5)That upon the filing of such written submissions a date for the hearing of that application will be allocated.

   (6)Liberty to either party to apply as to consequential orders.”

4. On 1 August 2006, the father filed a Notice of Appeal challenging orders 1, 3, 4 and 5.  His first ground of appeal was:

   “1.The Federal Magistrate failed to apply the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006.”

5. The Family Law Amendment (Shared Parental Responsibility) Act stipulates that both s 60CC and s 65DAA (in Schedule 1, Item 43(1) and (8) respectively) shall apply to orders made on or after the commencement of the Act, which was 1 July 2006.

6. Thus in broad terms the Federal Magistrate should have applied:

   (a)the new two-tiered list of factors that a court is to consider in determining what is in a child’s best interests (s 60CC); and

   (b)the new three-step approach in considering the quantity of time a child is to spend with each parent (s 65DAA).

7. On the appeal being mentioned, the solicitor for the mother, conceded that this ground must succeed.

8. The question remaining for my determination is what should now be done in respect of the father’s application and the consequential provisions for determination of costs.

A decision by this court or a remission?

1. The solicitor for the mother submits that the applications should be remitted to Federal Magistrate Lindsay for determination according to law.

2. The father has accepted the concession in respect of the first ground and has not pursued the other grounds of appeal, notwithstanding that in many ways he would really like a full rehearing.  However, after time for reflection, he accepted the position that all findings of fact made by the Federal Magistrate will stand and the issue is whether the law is applied to those facts either by Federal Magistrate Lindsay upon remission (as sought for the mother) or by myself as urged by the father.

3. Upon a successful appeal, this court may “affirm, reverse or vary” the orders made by Lindsay FM and “make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate order a rehearing on such terms and conditions if any, as it considers appropriate” (s 94AAA(6) Family Law Act 1975).

4. The father urges that I determine the matter as he says he has lost confidence in Federal Magistrate Lindsay because of his failure to apply the correct law, because he has already formed an opinion as to the outcome and because he criticised the father’s presentation of his case and was unsympathetic to him as an unrepresented litigant.

5. It seems to me that where the findings of fact will be unchanged the father’s concerns about the Federal Magistrate’s unsympathetic attitude carry little weight.  The solicitor for the mother argued that the Federal Magistrate had seen the witnesses and would more readily have in mind the evidence in the case, whereas I would need to familiarise myself with all of that evidence and would not have the chance of observing the parties.  I note that each of the parties gave oral evidence and was cross examined.

6. Traditionally a trial is described as involving both the determination of the facts and the application of the relevant law to those facts by the same judicial officer.  However, while sometimes one speaks of findings of fact and the application of the law to the facts as if there is no melding of the two processes, in fact it has often been discussed that some findings are of mixed law and fact (see Eaglesfield v Marquis of Londonderry (1875) 4 Ch D 693 and Thomas v The King (1937) 59 CLR).

7. In parenting cases the findings of “pure” fact (eg. an act of violence was committed) are generally converted into findings (probably still properly regarded as of fact) by the application of “judgment” (eg. the father fails to have due regard to the needs of the children).  Legal principle is then introduced (eg. the paramountcy of the child’s best interests) - but the ultimate conclusion remains discretionary.

8. This is not a process easily divided between two different minds.

9. In my view it is desirable for applications to be determined in all elements by the same judicial officer.  Of course, matters of expense and of delay involved in remission for rehearing are appropriately taken into account by an appellate court in deciding whether to take that course or to arrive at its own conclusions.  Since here there are only to be further submissions in relation to the application of the amended Act, whether heard by the Federal Magistrate or myself, such considerations do not arise.  In the circumstances I conclude that the proper orders are that the appeal be allowed and the matter be remitted to Federal Magistrate Lindsay for determination according to law.

10. No doubt, prior to that determination, the Federal Magistrate will provide directions relating to submissions.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate: 

Date:  17 October 2006