Reece & Reece

Case [2011] FamCAFC 24

FAMILY COURT OF AUSTRALIA

REECE & REECE [2011] FamCAFC 24

FAMILY LAW - APPEAL – CHILDREN – appeal from interim parenting orders – whether the Federal Magistrate erred in the interpretation and application of the relevant principles, in particular those enunciated in Goode and Goode (2006) FLC 93-286 – whether the Federal Magistrate erred in failing to consider the family report – whether the Federal Magistrate failed to adequately consider s 61DA and s 65DAA of the Family Law Act 1975 (Cth) – whether the Federal Magistrate failed to provide any or adequate reasons – whether the Federal Magistrate erred in making findings and orders that were not supported by or which were contrary to the evidence – whether the Federal Magistrate failed to take into account all relevant matters – where the final hearing is listed to commence shortly – where there is no utility in allowing the appeal – appeal dismissed.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – applications by both parties to adduce further evidence – applications dismissed.

FAMILY LAW – COSTS - COSTS OF THE APPEAL – no order as to costs.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 93A & 117

Federal Proceedings (Costs) Act 1981 (Cth)
Allesch v Maunz (2000) FLC 93-033
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Goode and Goode (2006) FLC 93-286
Marvel v Marvel (2010) 43 Fam LR 348
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Wen & Thom [2010] FamCAFC 81
APPELLANT: Ms Reece
RESPONDENT: Mr Reece
FILE NUMBER: MLC 4711 of 2010
APPEAL NUMBER: SA 62 of 2010
DATE DELIVERED: 17 February 2011
PLACE DELIVERED: Brisbane
PLACE HEARD: Melbourne
JUDGMENT OF: Strickland J
HEARING DATE: 18 November 2010
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 5 August 2010
LOWER COURT MNC: [2010] FMCAfam 937

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr MacFarlane
SOLICITOR FOR THE APPELLANT: Kelly & Associates Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Cantwell
SOLICITOR FOR THE RESPONDENT: Hogg and Reid

Orders

  1. The Application in a Case filed by the wife on 3 November 2010 and the Response to an Application in a Case filed by the husband on 12 November 2010 be dismissed.

  2. The appeal be dismissed.

  3. There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Reece & Reece is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 62 of 2010
File Number: MLC 4711 of 2010

Ms Reece

Appellant

And

Mr Reece

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an appeal by Ms Reece (“the wife”) against interim parenting orders made by Federal Magistrate Turner on 5 August 2010 with respect to the parties’ child M who was born in March 2001 and is now aged 9 years.  The respondent to the appeal is Mr…

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Details
AGLC
Reece & Reece [2011] FamCAFC 24
Case
[2011] FamCAFC 24
Decision Date

CaseChat Overview and Summary

In this case, the parties were involved in an appeal concerning interim parenting orders made in relation to their children. The matter was heard by the Family Court of Australia. The wife had appealed the interim parenting orders made by a Federal Magistrate, arguing that the Magistrate had erred in the interpretation and application of the relevant principles, particularly those outlined in Goode and Goode (2006) FLC 93-286. She further contended that the Magistrate had failed to consider the family report, had not adequately considered sections 61DA and 65DAA of the Family Law Act 1975 (Cth), and had not provided adequate reasons for the orders made. The wife also argued that the Magistrate had made findings and orders that were not supported by or which were contrary to the evidence, and had failed to take into account all relevant matters.

The legal issues before the court included whether the Federal Magistrate had erred in the interpretation and application of the relevant principles, in particular those enunciated in Goode and Goode. The court also had to consider whether the Magistrate had erred in failing to consider the family report and whether the Magistrate had failed to adequately consider sections 61DA and 65DAA of the Family Law Act. The court needed to determine if the Magistrate had failed to provide any or adequate reasons for the orders made, and whether the Magistrate had erred in making findings and orders that were not supported by or which were contrary to the evidence. Finally, the court had to consider whether the Magistrate had failed to take into account all relevant matters.

The court found that the Federal Magistrate had not erred in the interpretation and application of the relevant principles. The court held that the Magistrate had not erred in failing to consider the family report, as the report was in dispute and would be the subject of cross-examination at trial. However, the court found that there was merit in the wife's complaint regarding the Magistrate's failure to have regard to the report of Dr N, a qualified clinical psychologist who had prepared a family report in the matter. The court concluded that the Magistrate had erred in this regard. Despite this error, the court held that there was no utility in allowing the appeal, given that the final hearing was listed to commence shortly. Consequently, the appeal was dismissed.

The court dismissed the wife's application to adduce further evidence and the husband's response to that application. The court made no order as to costs of the appeal.

Orders

Orders of the court

1.

The Application in a Case filed by the wife on 3 November 2010 and the Response to an Application in a Case filed by the husband on 12 November 2010 be dismissed.

2.

The appeal be dismissed.

3.

There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As outlined above, the Full Court in Goode and Goode (at paragraph 82) provided a “framework” as to how interim applications for parenting orders are to be determined. This included:(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); (emphasis added) In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), at 375, discussed the difficulties associated with making findings on contested evidence, with reference to the decision of SS & AH [2010] FamCAFC 13 as follows:120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB). 121. The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions (see Goode at paragraph 82(d)). 122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.123. Later, at paragraph 100 their Honours amplified their comments and said: The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. While a judicial officer does therefore need to be cautious in relation to the use of contested evidence at an interim hearing and making findings on contested issues, in this case I consider that there is merit in the wife’s complaint regarding the Federal Magistrate’s failure to have regard to the report of Dr N. Although the family report was clearly in dispute and would be the subject of cross-examination at trial, the report and Dr N’s recommendations should nonetheless have been considered by the Federal Magistrate at the interim hearing. Dr N is a qualified clinical psychologist and had been tasked with preparing a family report in this matter. She had conducted interviews with the wife, the husband, the two children and the wife’s partner Mr Q, and had observed interactions between the husband and the children, the wife and the children and also the wife with M and Mr Q. Although the report could not be tested at an interim hearing, I consider that the Federal Magistrate fell into appealable error by failing to have regard to this report and the observations and recommendations of Dr N.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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