Sellink and Sellink (No. 2)
[2017] FamCAFC 151
•4 August 2017
FAMILY COURT OF AUSTRALIA
| SELLINK & SELLINK (NO. 2) | [2017] FamCAFC 151 |
| FAMILY LAW – APPEAL – where the parties filed joint submissions – where those joint submissions provided for the appeal to be allowed – where the primary judge failed to have regard to the family report – where this failure amounted to appealable error – appeal allowed by consent. FAMILY LAW – COSTS – where there was a demonstrated error of law – where the circumstances justified granting certificates to both parties. |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 94AAA, 94AAB, 97(3) |
| Sinnott v Firth (No 2) (2013) 51 Fam LR 28 | ||
| B v B (Costs Certificate) [2007] FamCA 1177 Cramer v Davies (1997) 72 ALJR 146 | ||
| APPELLANT: | Ms Sellink | |
| RESPONDENT: | Mr Sellink |
| INDEPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | BRC | 7638 | of | 2013 |
| APPEAL NUMBER: | NA | 13 | of | 2016 |
| DATE DELIVERED: | 4 August 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | In chambers by joint written submissions |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | In chambers |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bunning |
| SOLICITOR FOR THE APPELLANT: | Hopgood Ganim |
| FOR THE RESPONDENT: | Mr Rosen |
| SOLICITOR FOR THE RESPONDENT: | Rosen Lawyers | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors | |
Orders
That the appeal from Orders 1 to 18 of the orders of Judge Howard dated 4 February 2016 be allowed.
That Orders 1 to 18 of the orders of Judge Howard dated 4 February 2016 be discharged.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 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 the Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the court grants to the respondent father a costs certificate pursuant to the provisions of s 6 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 the Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
Consequent upon the said orders it is further ordered by consent
That the Mother and Father have equal joint parental responsibility for the children X born … 2007 and Y born … 2010.
That each parent have the sole parental responsibility for the day to day care, welfare and development of the children whilst the children are in their respective care.
That the children live with the Mother.
That the Father spend time with and communicate with the children at all such reasonable times as may be agreed to between the parents and failing agreement:
(a)Each alternate weekend from after school (or 3:00pm, if it is not a school day) on Thursday until the commencement of school (or 9:00am, if it is not a school day) on Monday;
(b)In the alternate week from after school (or 3:00pm, if it is not a school day) on Thursday to the commencement of school (or 9:00am, if it is not a school day) on Friday; and
(c)One half of each school holiday period as follows:
(i)In relation to the Easter and September holidays, the children will spend the first half of the holiday period in even numbered years and the second half of the holiday period in odd numbered years with the Father and the second half of the holiday period in even numbered years and the first half of the holiday period in even numbered years and first half of the holiday period in odd numbered years with the Mother.
(ii)In relation to the June/July and December/January holidays:
1. the Father spend time with the children for the first week of each holiday period and each alternate week thereafter in even numbered years and the second week and each alternate week thereafter in odd numbered years, subject to (iii) below; and
2. the Mother spend time with the children for the second week of each holiday period and each alternate week thereafter in even numbered years and the first week and each alternate week thereafter in odd numbered years subject to (iii) below.
(iii)for the purposes of Christmas Day, the children will remain in the care of the parent they are currently spending time with in accordance with paragraphs (i) and (ii) above until 1.00pm on Christmas Day.
(iv)That for the purpose of calculating the school holiday period, the school holidays commence after school (or 3:00pm, whichever is the later) on the last day of school term and conclude on the first day of the following term; and
(v)In the event there is an uneven number of nights during the holidays, the Father spend time with the children for an additional night.
General
That if Father’s Day falls on a weekend when the children are not with the Father, then the children will be delivered to the Father at 5:00pm on the Saturday and returned to the Mother at 5:00pm on Sunday.
That if Mother’s Day falls on a weekend when the children are not with the Mother, then the children will be delivered to the Mother at 5:00pm on Saturday and returned to the Father at 5:00pm on Sunday.
That, on the children’s birthdays, the children spend time with the parent they are not already living with:
(a)If the birthday falls during the week, from after school for two (2) hours; and
(b) If the child’s birthday falls on a weekend for four (4) hours.
That on the birthday of each parent, the children spend time with the parent they are not already living with:
(a)If the birthday falls during the week, from after school for two hours; and
(b)If the birthday falls during the weekend, from 9:00am to 5:00pm.
That the parents have reasonable telephone contact with the children while they are in the other parent’s care.
That these Orders authorise any educational institution to which the child or children attend to provide to the Mother or Father, at the Mother's or Father's expense, all reasonable requests for information, including but not limited to, school reports, newsletters, and important school notices.
That these Orders authorise any health professional who attends to the child or children to provide to the Mother or Father, at the Mother's or Father's expense, all reasonable requests for information by the Mother or Father as to the child or children.
That each parent inform the other parent as soon as reasonably practical of any serious illness or hospitalisation of the children.
That each party keep the other informed as to their current residential address, landline telephone number, mobile telephone number, email address (if any), and facsimile transmission number (if any) and they are to notify any change in those details forty eight (48) hours of the change.
That neither party denigrate the other, nor permit any other person to do so, in the presence or hearing of the children.
That neither party discuss these proceedings with the children.
That when handover does not occur at school then the parent with whom the children are next to live with will collect the children from the other parent at the commencement of each period, such that:
(a)where the children are to go into the mother’s care, the Mother will collect the children from the father from Southport Avenue, Mt Tamborine or such other location as agreed in writing between the parties; and
(b)where the Father is to collect the children from the Mother, the Father will collect the children from the Mother’s home or such other location as agreed in writing between the parties.
That the Independent Children’s Lawyer be discharged.
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 Sellink & Sellink (No. 2) 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: NA 13 of 2016
File Number: BRC 7638 of 2013
| Ms Sellink |
Appellant
And
| Mr Sellink |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 1 March 2017, I made orders reinstating an appeal by the mother of two children who were the subject of parenting orders made by Judge Howard.
My orders included a timetable designed to have the appeal heard and determined consequent upon the filing of an Amended Notice of Appeal by the mother and the taking of all other relevant preliminary steps.
Subsequent to the making of that order the parties, through their respective legal practitioners and with the assistance of the Independent Children’s Lawyer (“ICL”), have apparently had discussions with the consequence that all now join in seeking orders that the appeal from Orders 1 – 18 of the orders of Judge Howard be allowed and that there be no order as to costs of the appeal between the appellant and respondent. Each thereafter seek the issue of a costs certificate pursuant to the provisions of the Federal Proceedings (Costs)Act 1981 (Cth) (“the Costs Act”).
In the event the appeal is allowed the parties also seek that this Court re-exercises the relevant discretion so as to make parenting orders upon which they are agreed.
Appealable Error and Procedure
The parties recognise that in order for the appeal to be allowed, the Full Court should be satisfied that error justifies that course. To that effect, joint written submissions have been signed by the legal practitioners for each of the parties and the ICL and forwarded jointly to the court.
Pursuant to s 94AAA(8)(b) Family Law Act 1975 (Cth) (“the Act”) a single judge may “make an order by consent disposing of an appeal under subsection (1) or (1A) (including an order for costs)”. Section 94AAB provides in turn, that, relevantly, an appeal pursuant to s 94AAA “may be dealt with without an oral hearing if all parties to the appeal consent to the appeal being dealt with in that way”.
The parties give that consent and this appeal is determined in chambers without the necessity of an oral hearing in order to save costs and inconvenience to the parties.
The Grounds Of Appeal
By her Amended Notice of Appeal foreshadowed in the orders made by me, the appellant raises six grounds of appeal.
The parties all agree that each of the appeal grounds reveal an error of law on the part of the primary judge. Particular emphasis is placed upon grounds three and four as follows:
3. The learned Judge had reference only to the recommendations in a Family Report in making the Orders that he did. The learned Judge did not either read, refer or have reference to any of the other filed material in the matter and his failure to do so is an error of law.
4.In addition to Appeal Ground 3, the learned Judge relied, in making the Orders that he did, upon recommendations in the Family Report only. His reliance upon the recommendations only is an error of law.
In essence, the central thrust of the grounds is that his Honour failed to have regard to the evidence in making the findings that he did or failed to take account of relevant considerations, namely evidence of the parties and witnesses other than the evidence of the family reporter.
A suggestion that a judge has not “read” a family report is a serious matter. Here the proper foundation is laid for it. It is contended, correctly as it seems to me by reference to the transcript, that at the commencement of the hearing on 4 February 2016 the learned judge was not aware of the family report author until appraised of that fact by the ICL.
Nowhere in the transcript is there any reference to the primary judge having read that report (save, perhaps, for the recommendations). The transcript reveals that there is a foundation for the assertion made in the joint submissions of all parties that it appears the primary judge read only one paragraph of the family report, namely paragraph 78 “and then looked briefly to what were the rest of the recommendations”.[1]
[1] Joint submissions, paragraph 20.
The transcript also reveals that the ICL needed to take his Honour to the family report writer’s recommendations and it was only after that occurred that the primary judge turned to the report himself to appraise himself of the recommendations.
No reference is made in the transcript to any of the evidence before the court other than the family report, and that occurred in the manner just outlined.
The Alleged Grounds in Context
Further context is provided most conveniently by reference to my reasons for judgment with respect to the expedition application:
12.It is said centrally, and intended to be pleaded as a sixth ground, that his Honour gave no reasons for judgment for the orders that he made. It needs to be pointed out that the orders made by his Honour were, in terms, final parenting orders in respect of two young children. The first observation that should be made is that the prospective appeal ground embraces an uncontested fact: his Honour did not in fact give any reasons for decision. It is said that his Honour sought to rely upon the transcript as founding the orders that he made. Whether or not his Honour was entitled to do so, and whether or not his Honour did in fact do so, there are no reasons for judgment in terms given to support the orders.
…
14.It does not appear to be contentious that the mother was told by her previous solicitors that she did not need to be present in court at what his Honour described as a “trial callover” in February. In that respect, counsel for the applicant refers to a decision by me in Sinnott v Firth (No 2) (2013) 51 Fam LR 28. That case involved a successful appeal devolving from issues also emanating from a “trial callover” held by his Honour. Counsel for the applicant submits that the circumstances addressed in that decision are directly analogous to those which occurred in the instant case. Again, it is not appropriate for me to say too much about the merits of any such assertion, but there can be little doubt, I think, that the circumstances are at least somewhat analogous to the circumstances discussed and ultimately prosecuted successfully in Sinnott.
15.Given the advice by her then solicitor that she did not need to appear at the “trial callover”, she was represented, not by her solicitor at that “callover”, but by a town agent. She alleges that her instructions to her solicitors were always that family violence played a predominant role in her case in respect of parenting orders and she asserts she made it very clear that this was a predominant issue in her case and should be notified as such to the court. The mother says that these issues were not presented by the town agent to the court. The mother says, in effect, that on any view of the transcript the agent cannot be said to have put her case to Judge Howard.
16.Issues of procedural fairness similar to those which emerged in the decision in Sinnott relating to the making of an order in chambers and the consequences for non-appearance by a party at a “trial callover”, together with the events which occurred at that “callover” in her absence, are central to issues which the mother seeks to prosecute on her appeal.
Error is Established
I agree with the submission made jointly by the parties that the instant case is similar in all respects to Sinnott v Firth (No 2) (2013) 51 Fam LR 28.
I said in that case at [78]:
Neither the reasons, nor anything said during the proceedings as revealed by the transcript, show any consideration of the power to make parenting orders and, importantly, the presumption of equal shared parental responsibility and the role that it plays in conditioning the power of a court to make parenting orders (see s 65D; MRR at [20]; Cox at [15]-[19]).
The context in which final parenting orders were made by his Honour is important to an assertion of a lack of procedural fairness in this case, just as it was in Sinnott.
On 21 July 2015, his Honour listed this matter for a “trial callover” and required personal appearances. That order was made in chambers. On 4 February 2016, the primary judge was told that the appellant was not aware that she was to be before the court on 4 February 2016. Indeed, the evidence was that she had not been told by her solicitor to attend the court on that date. That evidence was effectively unchallenged.
The orders listing the matter for a trial callover were made in chambers – it cannot be said the appellant was in court when the orders were made and therefore knew she had to be in court. Just as in Sinnott, the order made in chambers indicated that it was made “upon application made to the Court”. In fact, no such application had been made.
In addition to the matters just described, the primary judge was not aware on 4 February 2016 if in fact the orders had been provided to the appellant. The primary judge knew that the appellant’s then solicitor had not asked the appellant to attend court.
This case raises the same issue raised in Sinnott, namely that it is a “… fundamental principle of natural justice applicable to all Courts that a person must be given a reasonable opportunity of appearing and presenting his case”.[2] It is abundantly plain that in this case the Appellant was not afforded that opportunity.
[2]Sinnott, [47].
The transcript reveals his Honour saying, immediately prior to the making of the parenting orders on a final basis, that “there’s no way there could have been any misunderstanding”[3] (referring to the appellant’s non-attendance and his Honour earlier foreshadowing the making of final orders in the event of non-attendance). However, the premise is false.
[3]Transcript, 4 February 2016, p 8 ln 9 – 10.
No only could there have been a misunderstanding; the evidence plainly revealed that there was a misunderstanding and that there was a perfectly good reason why the appellant did not attend. The judge was made aware of that, but plainly ignored it.
I am well satisfied that appealable error is established. Equally, as is effectively properly conceded in the joint submissions of the parties, significant injustice results to the appellant as a consequence.
Costs
Neither the appellant nor the respondent seeks an order for costs against the other. In my view, the particular circumstances of this case make that submission appropriate; there are no “justifying circumstances” suggesting a costs order should be made.
Each of the parties apply for a certificate pursuant to the Costs Act. Reliance is placed upon B v B (Costs Certificate) [2007] FamCA 1177, which decision, in turn, referred to the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146.
Relevantly s 6 of the Costs Act provides that:
(1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
Similarly, s 9 of the same Act makes reference to s 6 specifically in relation to proceedings in this Court and it, too, refers to “the Court that heard the appeal”.
The Full Court in B v B, above describes Kirby J’s adoption of a “broader construction of the expression ‘the court that heard the appeal’ as meaning or requiring ‘no more than having heard the matter listed before the court so that it may dispose of the appeal in a public and formal way’ …”.
Here, this Court hears the application, consistent with its overriding obligation pursuant to s 97(3) of the Act, in the manner specifically provided for by the Rules so as to avoid proceedings being both protracted and more expensive than they need to be. Proceedings have been dealt with in a formal way by reference to the adherence by each of the parties to the proper procedures in seeking this Court hear their application in accordance with Rules designed specifically for it to be dealt with in that manner.
It seems to me entirely consistent with the approach taken by Kirby J, with respect, and that taken by the Full Court in B v B, to hold that this Court has “heard the appeal” in circumstance where the appeal has been heard and determined in accordance with provisions of the Act and Rules that provide for same.
I have earlier set out in this judgment the sections of the Act and Rules permitting a single judge of the court to hear appeals by way of consent in chambers without the necessity for an oral hearing. The parties have complied in every respect with those requirements. They have consented to the court hearing the appeal in a manner prescribed by the Act and Rules provided certain conditions are met.
In my view, the relevant precondition for the operation of the relevant sections of the Costs Act are satisfied in this case.
Otherwise there is no doubt that this is a “Federal appeal” as defined; that the appeal has succeeded on an error of law and that by reference to the relevant provisions of the Costs Act, the parties each bear their own costs.
I will order that the parties be granted a costs certificate with respect to the appeal.
Re-Exercise or Remitter?
The parties have submitted to the court via the Appeals Registrar an order which they request the court to make by consent on a final basis in relation to parenting in the event that the appeal is allowed. That order is accompanied by an annexure to the proposed consent parenting orders signed by each of the parties pursuant to (r 10.15A(3)).
By that action, and by reference to their joint submissions, the parties indicate that if this Court were minded to exercise for itself the discretion inherent in the orders impugned, they are in agreement about the orders that best meet the best interests of these children.
Equally the parties agree that the decision of this Court as to whether those orders are proper can be made by reference to the material currently before the court and, by way of corollary, no party seeks to adduce further evidence or additional evidence in that respect.
The orders pertain to two children now aged 9 and 7. They provide for the parties to have “equal joint parental responsibility” and for each of the parents to have “the sole parental responsibility for the day to day care, welfare and development of the children whilst the children are in their respective care”.
The orders go on to provide that the children live with the mother and that the father spend time with, and communicate with, the children at all times as might be agreed and failing agreement each alternate weekend from after school on Thursday until the commencement of school on Monday and, in the alternate week, from after school Thursday to the commencement of school on Friday. Additional time is provided for during half of the school holidays, on birthdays and at Christmas and the like.
In terms of the conflict that has erstwhile attended the parental relationship, the orders make provision of information from schools, health professionals and the like; the notification by one parent to the other of serious illness or hospitalisation of the children; for “non-denigration orders”; and that “neither party discuss these proceedings with the children”.
As an additional means of seeking to limit the potential conflict between the parents and its undoubted impact upon the children, the orders provide for handovers to occur at school and, if that cannot occur, alternate collection by the parties is to take place.
I have had regard to all of the evidence currently before the court, the consent of the parties; the fact that they are all advised by experienced family lawyers; the assistance rendered by an experienced ICL and the parties’ commendable respective efforts to resolve issues in dispute between them so as to facilitate a consensual co-parenting arrangement.
I consider that the orders proposed by the parties and sought to be made by consent are in the children’s best interests and should be made.
Accordingly, I consider it appropriate to re-exercise the relevant discretion upon allowing the appeal in accordance with the joint proposal of all of the parties. I will so order.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 4 August 2017.
Associate:
Date: 4 August 2017
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