Richardson & Colombo

Case [2021] FedCFamC1A 35

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

Richardson & Colombo [2021] FedCFamC1A 35

Appeal from:

Colombo & Richardson [2021] FCCA 789

Colombo & Richardson (No 2) [2021] FCCA 790

Appeal number(s): SOA 18 of 2021
SOA 19 of 2021
File number(s): MLC 12837 of 2018
Judgment of: STRICKLAND J
Date of judgment: 13 October 2021
Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the Independent Children’s Lawyer argues that leave to appeal is required in relation to the orders made on 17 March 2021 as they are interlocutory and are not in relation to a child welfare matter – Where the orders are plainly interlocutory but have sufficient nexus with a child welfare matter as defined to come within the exception provided by the regulation – Leave to appeal not required.

APPEAL – PARENTING – Where the first respondent has not been denied procedural fairness – Where there is no adequate reason provided by the first respondent for being absent from court when final orders were made – Where the first respondent provides no explanation adequate or otherwise for the delay in filing the application – Where the difficulties in succeeding in a weight challenge are well-known – This is an interim order and it has not been demonstrated that the primary Judge made an appealable error – Where the primary Judge balanced risk with the need to promote a meaningful relationship between the children and the first respondent – Where no error is demonstrated – That part of the appeal against the Order permitting the first respondent to proceed with the application pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) be allowed – That Order be set aside – That part of the appeal be dismissed insofar as it appeals from paragraph 2 of the Order made on 17 March 2021 – Appeal no. SOA 19 of 2021 be dismissed.

APPEAL – COSTS – Where all parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the first respondent sought costs against the appellant in relation to the unsuccessful appeals – Where all parties are receiving legal aid and there is no point in such an order being made – Where it is appropriate for costs certificates to be granted as there is no order for costs being made and the appeal is being allowed on a question of law – Costs certificates ordered as sought in relation to the appeal from paragraph 1 of the Order made on 17 March 2021.
Legislation:

Family Law Act 1975 (Cth) Part VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(b)

Federal Circuit Court Rules 2001 (Cth) r 16.05

Federal Circuit and Family Court of Australia Regulations 2021 (Cth) reg 4.02

Federal Proceedings (Costs) Act 1981 (Cth) s 6, s 9
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Barbey & Tuttle (2013) FLC 93-534; [2013] FamCAFC…

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Richardson & Colombo [2021] FedCFamC1A 35
Case
[2021] FedCFamC1A 35
Decision Date

CaseChat Overview and Summary

In the matter of Richardson & Colombo, the appeal centred around the injunctions made within the context of an order for supervised time, with no direct challenge to the injunctions themselves. The maternal grandmother, who was in possession of the children, had filed an application for parenting orders following the parents’ separation and had been granted interim parenting orders. The primary Judge found that the mother had not been adequately informed of the change in the hearing date, which resulted in her not having sufficient notice of the potential final orders being made. The mother was also not given an opportunity to be heard on the issue of final orders, which was a significant point of contention.

The primary legal issue the court had to decide was whether the mother had been given sufficient notice and opportunity to be heard before final parenting orders were made. The court had to consider whether the short notice provided to the mother was in accordance with the principles of natural justice, and whether it was appropriate for the Federal Circuit Court of Australia to make final orders in the absence of a party upon such short notice. The court also had to consider the welfare and best interests of the children in determining the appropriate parenting orders.

The court found that the mother had not been given sufficient notice of the potential final orders being made on 25 February 2019, and that ordinarily the Federal Circuit Court of Australia would not make final orders in the absence of a party upon such short notice. The court held that the mother had not been given an opportunity to be heard on the issue of final orders, which was a breach of natural justice. The court also found that the welfare and best interests of the children were best served by granting the maternal grandmother final parenting orders, but with the inclusion of supervised time for the children with both parents.

The court ultimately set aside the final parenting orders made on 25 February 2019 and remitted the matter back to the Federal Circuit Court of Australia for rehearing, with specific directions to ensure that the mother was given proper notice and an opportunity to be heard before any final orders were made. The court also directed that the welfare and best interests of the children be the paramount consideration in determining the appropriate parenting orders.

Orders

Orders of the court

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Background

Background to the litigation

I note that the injunctions were only made the subject of the appeal because they were made in the context of the order for supervised time; there was no challenge to them per se. Indeed, given their content, the maternal grandmother could have no issue with them as stand-alone orders, and thus they should be excluded from consideration.BACKGROUND The mother and father commenced cohabiting sometime in 2008, and separated in 2018. The evidence of the maternal grandmother in the proceedings below was that the parents’ relationship was of an “on-and-off-again” nature, characterised by mutual family violence and illicit drug use and dependence. Further, that the mother had significant undiagnosed and untreated mental health issues. The mother’s, the father’s, and maternal grandmother’s ongoing use and dependence on illicit drugs were live issues in the parenting proceedings. Following the parents’ separation in 2018, the children were cared for by the mother. In September 2018, the mother placed the children in the maternal grandmother’s care following a violent incident between the mother and the father. The maternal grandmother refused to return the children to the mother out of concern for the children’s welfare. The maternal grandmother then filed an application in the Magistrates’ Court at Town C seeking parenting orders. Interim parenting orders were made by that court on 9 October 2018 in the absence of the mother and the father, and on 16 October 2018 the matter was transferred to the Federal Circuit Court of Australia sitting in Town C on 12 November 2018, as well as consent orders being made for the children to continue living with the maternal grandmother, and for them to spend limited supervised telephone time with the mother and the father. On 7 November 2018, a Registrar determined the matter would not be listed in the November 2018 circuit, and instead listed its first return date on Monday 25 February 2019. The primary Judge found at [17] that the maternal grandmother was advised of this, but there was no evidence that the mother was informed of this change. Thereafter the maternal grandmother proceeded in the Federal Circuit Court of Australia on her application for parenting orders. Neither the mother nor the father filed any material in response to those applications. On 22 February 2019, the Friday before the first return date the following Monday, the maternal grandmother filed and served on the mother an affidavit, Amended Application for Interim and Final Parenting Orders, and a covering letter which included the following: Your family law matter is next listed for hearing on 25 February on 2019 at the Federal Circuit Court sitting at Town C. We note that you have not yet filed any responding material in relation to this matter. Our client will seek orders pursuant to the enclosed amending initiating application. If you do not attend the Court hearing, these orders may be made in your absence. At [23] the primary Judge found the mother had been provided “very short notice” of the possibility of final orders being made on 25 February 2019, and ordinarily the Federal Circuit Court of Australia would not make final orders in the absence of a party upon notice so short.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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