RYCROFT & HAMLETT - [2018] FamCAFC 212

FAMILY COURT OF AUSTRALIA

RYCROFT & HAMLETT

[2018] FamCAFC 212

FAMILY LAW – APPEAL – PARENTING – Relocation – Where the father appeals orders made allowing the mother to relocate with the child – Findings of the primary judge unsupported by the evidence – Where adverse findings against the father were not put in evidence or raised by the primary judge – Procedural fairness – Appeal supported by the Independent Children’s Lawyer – Appeal conceded – Orders made by consent setting aside certain orders and remitting the matter for rehearing.

FAMILY LAW – APPEAL – COSTS – Appeal successful on a question of law – Costs certificates ordered in favour of all parties for the appeal and rehearing.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) ss 3(1), 6, 8 and 9

B & B(Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177

Cramer v Davies (1997) 72 ALJR 146

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

APPELLANT:

Mr Rycroft

RESPONDENT:

Ms Hamlett

INDEPDENDENT CHILDREN’S LAWYER:

SJP Law

FILE NUMBER:

BRC

5094

2011

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

12 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Ryan & Austin JJ

HEARING DATE:

18 October 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

8 June 2018

LOWER COURT MNC:

[2018] FCCA 1506

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Cullen

SOLICITOR FOR THE APPELLANT:

Integrated Family Law

COUNSEL FOR THE RESPONDENT:

Mr Bolovan

SOLICITOR FOR THE RESPONDENT:

Genuine Legal

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Bunning

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

SJP Law

Orders made on 18 October 2018

The appeal against the orders of Judge Egan made on 8 June 2018 and amended on 20 July 2018 be allowed.
Orders 4, 5, 6, 8, 11, 12, 13, 14, 17 and 27 made by Judge Egan on 8 June 2018 and amended on 20 July 2018 be set aside.
The matter is remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Egan.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to ss 9 and 8 of the Federal Proceedings (Costs)Act 1981 (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 him in relation to the appeal and in relation to the new trial in the matter.
The Court grants to the respondent a costs certificate pursuant to the provisions of ss 6 and 8 of the Federal Proceedings (Costs) Act 1981 (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 her in relation to the appeal and in relation to the new trial in the matter.
The Court grants to the Independent Children's Lawyer a costs certificate pursuant to the provisions of ss 6 and 8 of the Federal Proceedings (Costs) Act 1981 (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 Independent Children's Lawyer in respect of the costs incurred by him in relation to the appeal and in relation to the new trial in the matter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rycroft & Hamlett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 59 of 2018
File Number: BRC 5094 of 2011

Mr Rycroft

Appellant

And

Ms Hamlett

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 8 June 2018 Judge Egan made parenting orders as between Mr Rycroft(“the father”) and Ms Hamlett (“the mother”) in relation to their child X (“the child”) who was born in 2009. The orders permitted the mother to relocate the child’s residence from Town X to a suburb in Brisbane, Suburb E.
The father appealed his Honour’s orders and sought that they be set aside and the matter be remitted for hearing by a judge other than Judge Egan. The father’s appeal was supported by the Independent Children's Lawyer (“the ICL”) who also sought that the matter be remitted.
The appeal was heard on 18 October 2018 and, after submissions from counsel appearing for the father and the ICL, counsel for the mother conceded the appeal.
Thus the appeal was upheld, certain identified orders of the primary judge set aside and the matter remitted for rehearing by a judge other than Judge Egan.
All parties sought an order for costs certificates both in relation to the appeal and the rehearing. Those orders were made and we indicated reasons would be delivered subsequently. These are the reasons.
The case of B & B(Costs Certificates) (2007) FLC 93-339, which in turn refers to the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146 (“Cramer v Davies”) at 81,821, sets out the criteria which must be satisfied before a costs certificate pursuant to ss 6 or 9 of the Federal Proceedings (Costs) Act1981 (Cth) (“Costs Act”) will be issued in relation to an appeal. They are:
i)the existence of a Federal Appeal;
ii)that the appeal has succeeded on a question of law; and
iii)that the court concerned should have heard the appeal.
The appeal is clearly a “Federal Appeal” (see paragraph (j) of the definition of “Federal Appeal” in s 3(1) of the Costs Act) and although the appeal was resolved by agreement, the appeal has been heard in the relevant sense. In that regard we place reliance on Kirby J’s broad interpretation of that expression in Cramer v Davies which is to the effect that the requisite hearing can be “no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way” (at 81,822). Here, however, the hearing had commenced before the appeal was conceded.
Turning then to whether the appeal has succeeded on a question of law. The appellant father argued that his Honour’s reasons were fatally flawed to the extent that the ultimate conclusion could not be maintained and ultimately, that position was agreed by all parties to the appeal.
The first basis for that submission was found in his Honour’s conclusion at [46]:
… As the primary caregiver for the child over most of the child’s life, she has, no doubt, a very good appreciation of the child’s nature and comprehension of matters at large. I find that the mother is best placed to make decisions regarding the child’s future welfare and wellbeing, rather than the father or a family report writer who has only seen the mother on one occasion on 19 March 2018.
Further, at [9] his Honour said:
It is also apparent from the evidence that the child has, for the whole of her life, been in the care of the mother as the primary caregiver. The child is nine years of age and is approaching a time in her life where the bond between mother and daughter is extremely important, a fact which has not been lost upon me. It is also clear from the evidence that the child has been very happy for the whole of the time that the child has lived with the mother.
It was argued that his Honour’s ultimate conclusion in this case rested on the assumption that for the female child, the best person to be her primary carer was her mother and thus was an error of law. We agree.
As long ago as 1979, the High Court in Gronow v Gronow (1979) 144 CLR 513 said at 521 - 522:
… The learned primary judge undertook a searching analysis of all those qualities of each of the parties which might in any way relate to their respective suitability as custodian of their daughter. When this is done there can be little room for any presumptions: a full investigation of the relevant circumstances must necessarily provide a much more accurate assessment of the suitability of each parent than will any arbitrary presumption or rule, applied regardless of the infinite variability of human beings.
…
… Even in a community of unchanging social conditions, hard and fast rules or presumptions, based only upon matters of common but not invariable experience, provide a poor basis for the assessment of human behaviour compared with detailed investigation of the individuals in question. In times of rapid social change their inadequacy will be the greater.
It was further argued that the primary judge also based his determination on value judgments, on conclusions not founded in the evidence and on findings adverse to the father in circumstances where his Honour failed to afford the father procedural fairness.
For example, his Honour concluded that for a child to be driven on winding mountain and country roads on a daily basis was “excessive and deleterious to a stable educational experience on the part of the child” (at [33]). He found that Town X, as compared with Town Y where the father lived and where he proposed the mother find proximate accommodation, “is recognised as having high

socio-economic criteria [and that this]…is also the case with Suburb E” (at [34]). His Honour also found at [53] that Suburb E is a “hub of many social, cultural and artistic activities” into which the mother would fit well.
His Honour said:
35. The mother, I find, is highly focussed on the issue of her proving to her daughter that, notwithstanding that she does not have family living near her in Australia, and notwithstanding that she has not grown up in Australia with old friendships able to be called upon, she can nevertheless demonstrate to her daughter that through hard work as a psychotherapist, she will succeed in life, raising her daughter with her and enabling her daughter to be proud of her.
It is not merely the fact that his Honour’s conclusions were not informed by any evidence of the fact, but that these value judgments were used by his Honour in place of an analysis of the evidence that was properly before him and a consideration of the parties’ competing proposals leading to a determination of the child’s best interests.
His Honour also made a number of criticisms of the father in the course of his reasons. It was argued that the conclusions were unsupported by any evidence, neither were they put to the father by his Honour for comment.
An example of this is found at [11]; that the father had consciously or subconsciously exerted his will towards the mother such that she felt intimidated; that he was “proud of his being the pre-eminent male in a group household”

(at [14]).
His Honour referred to a circumstance in which the father did not hand over the child at the end of his time with her that occurred on the morning of the parties being interviewed for the family report. His Honour found at [49] that the father “gratuitously and unilaterally, and well knowing that if there was any disruption to the usual changeover arrangement, the mother would become distressed and confused”. His Honour continued and said:
50.… I find that the father was deliberately manipulative of the situation, in order that he might seek a benefit from the mother being agitated and upset later that morning when she attended before the report writer, [Ms R].
His Honour’s conclusion as to the husband’s state of mind; that is that he deliberately set out to upset the mother so as to disadvantage her in the forthcoming interviews is a serious conclusion which was not put to the father in his evidence nor raised with the father by his Honour for his comment. In failing to do so, his Honour did not afford the father procedural fairness. The need for fairness in this regard applies to judges as to advocates (see Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 388).
For these reasons the appeal succeeded on a question of law and thus we ordered costs certificates.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Justice Ainslie-Wallace, Ryan and Austin JJ) delivered on 8 November 2018.

Associate:

Date: 12 November 2018