Reid & Clements And Ors
[2015] FamCAFC 33
•10 March 2015
FAMILY COURT OF AUSTRALIA
| REID & CLEMENTS AND ORS | [2015] FamCAFC 33 |
| FAMILY LAW – APPEAL – Where the Independent Children’s Lawyer appeals interim orders of the trial judge – Where a further hearing of the parenting proceedings is pending – Where the trial judge ordered a regime whereby the children spend one day on and one day off with each parent – Whether the trial judge failed to consider relevant sections of the Family Law Act 1975 (Cth) – Whether the trial judge failed to follow the principles relevant to the conduct of an interim parenting hearing – Where the appeal was conceded – Where the parties applied for costs certificates pursuant to ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appeal succeeded on an error of law –– Where the trial judge failed to provide reasons – Appeal allowed – Costs certificates ordered for the appeal and re-hearing of the application. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| B & B (Costs Certificates) (2007) FLC 93-339 Cramer v Davies (1997) 72 ALJR 146 Goode & Goode (2006) FLC 93-286; (2007) 36 Fam LR 422; [2006] FamCA 1346 |
| APPELLANT: | Ms Reid |
| FIRST RESPONDENT: | Ms Clements |
| SECOND RESPONDENT: | Mr Jackson |
| THIRD RESPONDENT: | Ms White |
| FILE NUMBER: | PAC | 693 | of | 2011 |
| APPEAL NUMBER: | EA | 122 | of | 2014 |
| DATE DELIVERED: | 10 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 7 November 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 August 2014 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bates |
| SOLICITOR FOR THE APPELLANT: | Foat Associates Lawyers |
| SOLICITOR FOR THE FIRST RESPONDENT: | Mr Coyle of The Family Law Firm |
| THE SECOND RESPONDENT: | In person |
| THE THIRD RESPONDENT: | In person |
Orders made on 7 NOVEMBER 2014
The appeal be allowed.
Orders 1, 4, 5, 6, 7, 8, 9 10 and 12 of Judge Myers made on 4 August 2014 be set aside.
BY CONSENT:
Pending further order, orders in terms of paragraphs 4 and 5 of the Minute of Consent Orders signed by the parties and/or their legal representatives and initialled by me on 7 November 2014 marked as “Exhibit 1”.
There be no order for costs in relation to the appeal.
That the Court grants to the appellant a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the 1st and 2nd respondents a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by them in relation to the appeal.
That the Court grants to the appellant and the 1st and 2nd respondents a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 and the 1st and 2nd respondents in respect of the costs incurred by the appellant and respondents in relation to the rehearing of the application.
THE COURT NOTES:
The matters contained in paragraphs (a), (b) and (c) of the Minute of Consent Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reid & Clements and Ors 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 SYDNEY |
Appeal Number: EA 122 of 2014
File Number: PAC 693 of 2011
| Ms Reid |
Appellant
and
| Ms Clements |
First Respondent
and
Mr Jackson
Second Respondent
and
Ms White
Third Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed on 29 October 2014, Ms Reid, the Independent Children's Lawyer (“the ICL”), appeals against orders made by Judge Myers on 4 August 2014 in relation to three children of Mr Jackson (“the father”) and Ms Clements (“the mother”).
The mother and the father are the parents of three children, T (born 2007), C (2008) and B (born late 2013). Thus B was not yet one year old when his Honour made the orders appealed from.
The parents are presently each seeking parenting orders in relation to the three children. On 30 November 2012, the parties consented to parenting orders which provided for them to have equal shared parental responsibility and provided that the children live with each parent on a week about basis.
In March 2014 an Apprehended Violence Order (“AVO”) was made in protection of the father. The mother consented to the making of that order after being advised that it was in the best interests of all family members if it was made. On 15 May 2014, the mother breached the AVO and as a result she was arrested and charged with contravening the order. The children, who had been living with her, were then taken to the father and placed in his care. Concerns were also expressed about the mother’s emotional wellbeing at that time.
On 21 May 2014, the mother brought proceedings in the Federal Circuit Court seeking orders that the children be returned to her care and that they live with her and spend time with the father. That application was opposed by the father who sought orders that the children live with each parent on alternate weeks.
On 1 and 4 August 2014, the matter came before the primary judge as an interim hearing in relation to parenting orders. On 1 August 2014 his Honour heard submissions and viva voce evidence from the Family Consultant who had prepared a s 11F memorandum which was also before his Honour. The matter returned to his Honour on 4 August 2014 and, after hearing further submissions, his Honour made the orders which are the subject of this appeal.
It was accepted in submissions before the primary judge that it would be preferable if the mother’s time with the children was supervised and accordingly, the discussion turned to a suitable supervisor. The wife of the mother’s employer, Ms White, was suggested by the mother as a suitable supervisor. Neither the ICL nor the father supported Ms White as an appropriate person to act as supervisor of the children’s time with the mother.
His Honour considered that it was appropriate that Ms White be made a party to the proceedings between the parents, it seems because his Honour was of the view that it was only in that event that he could make an order that Ms White supervise the mother’s time with the children.
As to the frequency of the time that the children would spend with the mother, his Honour considered that a regime by which the children spent day about with both parents was appropriate.
Thus his Honour ordered:
1. Ms [White] be joined as the second respondent in the proceedings.
… …
THE COURT ORDERS PENDING FURTHER ORDER THAT:
3. The children [T JACKSON] born … 2007, [C JACKSON] born … 2008 and [B JACKSON] born … 2013 live with the father.
4.The said children spend time with the mother on a 1 day on 1 day off basis with the parties to deliver and return the children to the [F] Public School on a school day at 8.45am.
5.The mother shall commence spending time with [B] from 8.45am and [C] and [T] at the conclusion of school on a school day and the mother shall return [B] to the father at the commencement of the following school day at 8.45am.
6.Should [T] or [C] be unwell or unable to attend school then the children shall be in the care of the father.
7. For the purposes of the children living with the father and spending time with the mother on weekends the parties shall collect return and deliver the children to one another at 8.45am on a Saturday or a Sunday at the McDonalds Family Restaurant [at Town F].
… …
Finally, his Honour transferred the matter to the Family Court of Australia for further hearing.
The Appeal
The ICL appealed his Honour’s orders. The Amended Notice of Appeal asserts three challenges to the orders:
1. The proceedings, being interim parenting proceedings, His Honour failed to approach his determination of the issue before him by considering and applying sections 60B, 60CA, 60CC and 61DA of the Family Law Act and failed to follow the principles formulated in Goode & Goode (2006) FamCA 1346
2. His Honour failed to give reasons in support of the orders made.
3. Order No 4, Order No 5, Order No 6, Order No 7 and Order No 8 were made over objection of the Independent Children's Lawyer and are not supported by the evidence which was before his Honour.
When the appeal came on for hearing all of the parties agreed that the appeal must succeed and, that his Honour’s orders could not stand. Ms White appeared on her own behalf.
Thus the appeal was allowed and orders 1, 4, 5, 6, 7, 8, 9 10 and 12 were set aside.
The parties agreed on interim orders to provide for a regime of time to be spent by the children with the mother at a contact centre pending the further hearing of the parenting proceedings in the Family Court of Australia.
Costs
Each party, save for Ms White, sought an order for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”). Those orders were made and I indicated that I would deliver reasons for the making of the orders. These are the reasons.
Before orders pursuant to either s 6 or s 9 of the Costs Act may be made, three matters must be established, namely:
·the existence of a Federal appeal;
·that the appeal has succeeded on a question of law; and
·that the court concerned should have heard the appeal.
(B & B (Costs Certificates) (2007) FLC 93-339).
In addition, it must be established that the matter was one in which it would not be appropriate to make an order for costs inter partes.
Each of these matters has been established.
There is no doubt that the matter was a Federal appeal and, despite the truncated nature of the hearing, it has been “heard” in the relevant sense (see Cramer v Davies (1997) 72 ALJR 146).
As to the appeal succeeding on a question of law, the Amended Notice of Appeal asserted three grounds of challenge to his Honour’s orders.
Ground 1 contends that his Honour failed to pay any or any proper regard to the statutory matters relevant to a determination of the issue before him and failed to follow the established principles for conducting an interim hearing in relation to parenting issues.
It was accepted by the parties and it is abundantly clear that the primary judge failed to consider relevant sections of the Family Law Act 1975 (Cth) (“the Act”). In particular it was contended that he failed to give any consideration to s 60CC of the Act and failed to make findings necessary to a determination of the children’s best interests. The concession that his Honour fell into error in this regard was well made. The orders which require the children, one of whom was not then one year old, to move between their parents on a daily basis, on their face are such as to drive the conclusion that his Honour could not have given proper consideration to the dictates of, at least, s 60CC in making the orders.
Ground 2 asserts that his Honour erred at law in that he gave no reasons for his decision. That assertion was also accepted by the parties. His Honour made no findings of fact, articulated no legal basis for, nor gave any reason for making the orders he did.
In this case the transcript reveals considerable discussion between
his Honour and the various parties. Nevertheless, at no point in that conversation or at any other time did his Honour provide even the most rudimentary reasons to enable the parties to understand why he considered that the regime ordered was in the children’s best interests.
Finally, Ground 3 argued that his Honour made orders over the objection of the ICL. The ICL’s summary of argument contended that his Honour, knowing that the orders he proposed making were not consented to by the ICL, was obliged to conduct the hearing according to established principles (see Goode & Goode (2006) FLC 93-286; (2007) 36 Fam LR 422; [2006] FamCA 1346). That asserted error was also properly conceded.
Each of these grounds of appeal asserts errors of law and, in this case, each matter alone, let alone collectively, made it inevitable that the appeal would succeed.
I am well satisfied that the appeal succeeded on a question of law within the meaning of, respectively, s 6(1) and s 9(1)(a) of the Costs Act.
Section 9 of the Costs Act imposes an additional requirement if an appellant is to receive a certificate. In addition to the matters earlier referred to, an appellant must satisfy the court that, “in accordance with s 117 of the Act, each party to the appeal bears his or her own costs”. In this matter, neither party sought an order for costs against the other, nor is this a matter in which that would be an appropriate order.
Accordingly, I am of the view that the preconditions essential to the issue of certificates pursuant to ss 6 and 9 respectively of the Costs Act are met in this case and I will order accordingly.
At the conclusion of the hearing, as I have indicated, the primary judge transferred the further hearing of the matter to the Family Court of Australia. It is inevitable that there will be a rehearing of the application and, in my view, it was appropriate to make an order for a costs certificate for the appellant and first and second respondents in relation to the rehearing of the application.
Thus, the application for costs certificates succeeded both for the appeal and the re-hearing of the application.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
10 March 2015.
Associate:
Date: 10 March 2015
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