Simpson & Brockmann
[2009] FamCAFC 73
•20 April 2009
FAMILY COURT OF AUSTRALIA
| SIMPSON & BROCKMANN | [2009] FamCAFC 73 |
| FAMILY LAW – APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – APPLICATION FOR CONSENT ORDERS – Days before the allocated hearing date the Court was advised that the parties had negotiated consent orders – On the morning of the hearing the Court received the minute of order – Minute of order contained potentially contentious issues and orders on matters that had not been before the Federal Magistrate – Discussion of whether Full Court need be satisfied of appellable error before allowing an appeal by consent – In seeking some orders, the parties relied upon legislation introduced after the hearing before the Federal Magistrate – Application for orders in the appeal to be made by consent refused |
| APPELLANT: | Ms SIMPSON |
| RESPONDENT: | Ms BROCKMANN |
| FILE NUMBER: | LEC | 311 | of | 2007 |
| APPEAL NUMBER: | NA | 81 | of | 2008 |
| DATE DELIVERED: | 20 April 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, May, Barry JJ |
| HEARING DATE: | 20 April 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18/07/2008 |
| LOWER COURT MNC: | [2008] FMCAfam 763 |
REPRESENTATION
| APPELLANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mrs Cotter-Moroz |
| SOLICITOR FOR THE RESPONDENT: | Trenches McKenzie Cox |
Orders
That the application for orders in the appeal to be made by consent be refused.
That the appeal be listed for directions before the Honourable Justice Warnick at 08:58 2:15pm on Tuesday 21 April 2009.
That each party have leave to attend the directions hearing by telephone.
That the costs of today be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Simpson and Brockmann is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA81 of 2008
File Number: LEC 311 of 2007
| Ms SIMPSON |
Appellant
And
| Ms BROCKMANN |
Respondent
REASONS FOR JUDGMENT
WARNICK J:
This appeal was listed for hearing today. The Court was advised late last week that the parties had reached agreement and would have orders which they would seek be made by consent to present to the Court this day. That has happened.
The orders which will be marked and received as the proposed consent orders are, firstly, that the appeal be allowed, secondly, that the orders of the Federal Magistrate concerned be set aside, and what follows in Os 3 to 25 are substantially new parenting arrangements, including as to parental responsibility.
Two orders, however - 4 and 5 - seek declarations that, pursuant to s 69VA of the Family Law Act, the named person, in each case the mother of one of the children concerned here, be declared a parent of the child of the other person. As well, there are orders that, in the event of the death of one of the mothers, the child of that mother live with the other woman and there is an order that the appellant be given a costs certificate in respect of the appeal.
I would not be prepared to make the orders.
There is some debate in intermediate Appellate Courts, in particular perhaps the Federal Court, about whether an Appellate Court ought allow an appeal by consent unless satisfied of merit in the appeal. Just how an Appellate Court satisfies itself of merit where an appeal is not fully argued is a matter of some discussion and perhaps the lack of agreement about that is one of the foundations for disagreement about the fundamental proposition.
I, for myself, if satisfied that an Appellate Court can make orders allowing an appeal by consent and consequential orders, consider the Court might still decline to do so in particular circumstances. I think this matter may be one where, even if there is a power to make orders by consent allowing appeals without being satisfied of merit in the appeal, such an order ought not be made. That is largely because of what I will now say about the balance of the orders.
I would not make a declaration as sought pursuant to s 69VA of the Family Law Act which I will refer to as the Act. I am not satisfied that the power to make a declaration as to parentage in that section in fact applies to circumstances that present here, where there is no issue about the parentage of either of the children. It is well known who the mother is of each child. It is not known who the donor of sperm was, but it is known that it was the same male person in each case. Nothing contended to be any other way.
The issue here is not about parentage, but the position or description which each of the mother's wishes to adopt in relation to the child of the other mother for the purpose of parenting orders. That is not the same as the determination of an issue about parentage. At least I am not satisfied that the power is available, in circumstances where there has not been a contrary position argued against that urged upon us by Ms Cotter-Moroz, who appears for the appellant.
An added reason for not making the orders, if there is any hint of contention about them, is that they would be orders of the Full Court and not at first instance, giving rise to the unsatisfactory position that, firstly, if there was a challenge to the orders, notwithstanding that they are made by consent, the appeal would be to the High Court rather than from a Judge of first instance to this Court, and secondly, that a person looking at such an order made by a Full Court may consider that all relevant issues underpinning such orders have been determined in favour of them.
As well, if I was considering the making of these orders by consent at first instance I would hesitate over the making of an order for equal shared parental responsibility and the arrangements for the children to be together, in the light of the evidence that is in the Appeal Book and was before the Magistrate, although it may well be that the fact of consent of itself would overcome my hesitation and persuade me to make the orders for those parenting arrangements. However, that does not apply to the orders said to be pursuant to s 65K of the Act, to operate in the event of death of each of the mothers.
In my view, a Court would necessarily be particularly cautious in making such orders, which must be made in the context of the assessment of the child's best interests. Where one is dealing with a future event, to take place at an unknown time, where each child will be obviously of an unknown age but, having regard to their present ages, might well each be of an age where their views ought be given significant weight, or prediction of what will be in each child’s best interests is a precarious task.
Finally, in the circumstances of this case, even if I were satisfied that all the other orders were to be made, in the exercise of my discretion, I would not grant a costs certificate to the appellant. Whilst I might, assuming as I said, the debate was decided in favour of making a consent order allowing an appeal, - be prepared to do that, that would not imply a level of satisfaction that the appeal had merit on a point of law, a necessary precondition towards the award of a costs certificate.
For those reasons I refuse to make the orders in accordance with the request. I say nothing at this stage until the views of the other members of the Bench are known, as to what order I would consider appropriate.
MAY J:
I agree with the reasons of the Honourable Presiding Judge and would add a few further matters.
The first question is whether the appeal should be allowed. I would not make an order as asked by consent that the appeal be allowed. The main point, it seems argued, on behalf of the appellant in relation to the appeal relates to legislation about de facto partners introduced after the orders were made by the Federal Magistrate.
Without hearing lengthy oral argument about this matter, although we do have comprehensive written submissions, I could not see that such a ground of appeal could succeed. If the determination is made that the application that the appeal be allowed is not acceded to then it must be that the consent orders as proposed could not be made. As I have said, I otherwise agree with the reasons of the Presiding Judge.
BARRY J:
In my view is not necessary to determine at this point in time whether an Appeal Court should allow an appeal.
The orders as sought before the learned Federal Magistrate are set out at page 47 of the Appeal Book, at pars 4 and 5 of his reasons. He also makes reference to appendix A. Nowhere in that application does the appellant seek orders for a declaration as to parentage, nowhere is there an order sought pursuant to s 65K. Similarly, the respondent, from my reading of the material, sought no such order.
We are now asked to allow the appeal and rubber stamp consent orders on issues that were not canvassed before the Trial Judge. In the circumstances I would not be prepared to sign off on consent orders in terms as sought by the parties for the reasons advanced by the Presiding Judge.
RECORDED : NOT TRANSCRIBED
WARNICK J:
I will list the matter at 2.15 pm tomorrow, Tuesday, 21 April, for directions and give leave to both parties to appear by telephone if they wish.
If the appeal is to proceed we would like to dispose of it this week, if at all possible, and I suppose we would reserve the costs of today, of both parties.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Warnick, May, Barry JJ).
Associate:
Date: 7 May 2009
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