Smith & Smith
[2017] FamCAFC 226
•27 November 2017
FAMILY COURT OF AUSTRALIA
| STERRY & STERRY | [2017] FamCAFC 226 |
| FAMILY LAW – APPEAL – CHILDREN – Where a child lives – Relocation – Allegations of family violence – Primary judge made interim orders including s 69ZW order until further interim hearing – Where there were no orders regarding parental responsibility and no submissions about such at the hearing – Inferred that the primary judge applied s 61DA(3) of the Family Law Act 1975 (Cth) – Held the primary judge did not err in prioritising the child’s safety – Although s 60CC factors were not explicitly considered by the primary judge, none of those factors could have overcome the critical weight attached to issues of family violence – Appeal dismissed – The appellant to pay the respondent’s costs in a fixed sum. |
| Family Law Act 1975 (Cth) s 60CC, 61DA, s 65DAA, 67ZBB, 69ZW Family Law Rules 2004 (Cth) r 19.18(1) |
| Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Banks & Banks (2015) FLC 93-637 Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 Cox & Pedrana (2013) FLC 93-537 Goode and Goode (2006) FLC 93-286 Housing Commission of NSW v Tatmar PastoralCo Pty Ltd [1983] 3 NSWLR 378 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Marvel v Marvel (2010) 43 Fam LR 348 Mazurka & Mazurka [2011] FamCAFC 68 Parke & the Estate of the Late A Parke (2016) FLC 93-748 SCVG & KLD (2014) FLC 93-582 |
| APPELLANT: | Mr Sterry |
| RESPONDENT: | Ms Sterry |
| FILE NUMBER: | ADC | 2331 | of | 2017 |
| APPEAL NUMBERS: | SOA | 61 | of | 2017 |
| DATE DELIVERED: | 27 November 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide (with Thackray & O’Brien JJ via video link in Perth) |
| JUDGMENT OF: | Thackray, Strickland & O’Brien JJ |
| HEARING DATE: | 27 November 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 July 2017 |
| LOWER COURT MNC: | [2017] FCCA 2255 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Anderson |
| SOLICITOR FOR THE APPELLANT: | Sexton Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr McQuade |
| SOLICITOR FOR THE RESPONDENT: | All Family Law |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $5,000, such amount to be paid within 28 days of the day hereof.
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 Sterry & Sterry 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 ADELAIDE |
Appeal Number: SOA 61 of 2017
File Number: ADC 2331 of 2017
| Mr Sterry |
Appellant
And
| Ms Sterry |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Thackray J
Mr Sterry (“the father”) has appealed interim parenting orders made by Judge Kelly in the Federal Circuit Court of Australia on 20 July 2017.
The appeal is opposed by Ms Sterry (“the mother”).
Background
The mother and the father commenced living together in 2011, and were married in 2015. They lived throughout their relationship in the Southern Highlands area of New South Wales, where the father’s parents also reside.
The parties have one child (“the child”), who was born in 2013, and who is therefore now four years of age.
The mother and the father separated at the end of May 2017 when the father asked the mother to leave their home, following which she returned to her home state of South Australia, where she has since resided with the child.
The mother commenced proceedings in June 2017, seeking permission to remain in South Australia with the child. The father filed a response in July 2017 in which his primary proposal was that the mother should return to NSW, where the child would spend time living with both parents. In the event the mother elected not to return, the father proposed that the child live with him on the basis that he would be cared for by the father and his parents.
The matter came before Judge Kelly in what was clearly a busy Duty List, in which we are told there were 22 cases listed. Having heard submissions which she necessarily had to curtail, her Honour gave brief ex tempore reasons.
The orders appealed
The orders appealed were prefaced by the words “THE COURT ORDERS DURING THE PERIOD OF THE ADJOURNMENT THAT”, and concluded with an order adjourning the proceedings to 6 November 2017 “for further consideration”. In other words, the orders were only intended to operate for a period of less than four months.
The orders provided that the mother and the child “are permitted to reside in South Australia” and further provided that the child could spend time with the father within 100 km of the Adelaide area:
·for seven hours on two days following the hearing, in the presence of the maternal grandmother and either of the paternal grandparents; and
·thereafter, each alternate weekend from 10 am on Saturday until 5 pm on Sunday under the supervision of either of the paternal grandparents.
Provision was also made for the father to communicate with the child electronically twice each week.
Two procedural or case management orders are also relevant to this appeal.
One of these orders, which was made pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”), directed the South Australian Police to provide to the court documents or information relevant to reports or notifications of child abuse or family violence allegations involving the parties or the child.
The other order specified that the father’s affidavit should be uplifted and be refiled within 21 days in accordance with a Practice Direction applicable in the Adelaide Registry limiting affidavits filed in interim proceedings to 10 pages and five annexures. The orders went on to provide for the mother to file an affidavit in response within 21 days of the father refiling his affidavit.
The primary judge’s reasons for judgment
The primary judge recorded at the outset of her reasons that the mother had alleged that the father had been “physically, sexually and emotionally violent towards her during the relationship and that relocating to South Australia is the only safe option for her and for [the child]” (at [2]).
Her Honour also recorded that the evidence suggested that the parties’ relationship had been deteriorating, and that there had been disagreement about whether the child should be removed from the area where the family had been living (at [3]).
While her Honour accepted that the mother was well aware that the father did not want her to move away with the child, she accepted also that the mother had made it clear to the father that moving back to South Australia was her only “viable option at the time, given that he insisted she had to vacate the family home where they [had] been living” (at [4]).
The primary judge then made some brief observations about the legal principles, some of which she acknowledged only “loosely paraphrase[d] the current law” (at [5] and [6]). Inter alia, her Honour noted that:
·a court should be cautious in permitting a significant change to the child’s living arrangements on an interim basis;
·parenting decisions must be determined in accordance with the child’s best interests; and
·generally the court will be best placed to determine those best interests once all the evidence has been heard and tested.
Her Honour recorded (at [7] and [8]) that the father:
·denied the serious allegations of family violence;
·claimed he had not been charged with any criminal offence; and
·had provided documents which were said to prove that one of the more serious (and recent) allegations of violence made by the mother could not have happened on the day and time it was said to have occurred because the father was not in the same place as the mother at the time.
The primary judge accepted that the father’s evidence “may well cast doubt upon the reliability of the mother’s allegations” but correctly observed that the evidence of both parties remains untested. Importantly, her Honour observed that she did not yet know whether the police were still investigating the allegations (at [9]). She noted that it would be surprising, given the statements the mother had made to the police, if there were not some investigation ongoing. She concluded that an order made under s 69ZW “may provide some further information in that regard” (at [10]).
Her Honour went on to say that in determining the child’s best interests, “the Court cannot ignore the very serious and very detailed allegations of physical, sexual and emotional violence that the mother has reported to police”. She also set out her understanding of why a party in a domestic relationship may not make contemporaneous reports of family violence (at [13]).
Her Honour recorded her view that the evidence, “while untested, raises real concerns”, and concluded that the allegations were of such seriousness that it would not be in the child’s best interests for him to be returned to live in the area where he had previously resided (at [14]).
Her Honour said she was not satisfied that “the father is an appropriate primary caregiver for [the child] at this time, given the serious allegations of violence, nor should the Court impose any implicit expectation upon the mother that she must accompany [the child] back to [the Southern Highlands]” (at [14]).
The primary judge accepted that her decision would have a significant impact on the child’s capacity to maintain a relationship with his father in the short‑term and that the child’s relationship with his extended paternal family would also be disrupted. Her Honour accepted that this was an important factor given that the father and his family had played a significant role in the child’s life, but she said, “I weigh that disruption against the emotional impact upon [the child’s] primary caregiver – and therefore upon [the child] himself – if the child is required to return to live in [the Southern Highlands]” (at [15]).
Finally, her Honour concluded that there was no reason why the child could not spend supervised time with his father, which she said would “ensure that [the child] is able to maintain an ongoing relationship with his father, while protecting the child from the risk of exposure to abusive or violent behaviour” (at [16]).
The Grounds of Appeal
The father’s amended Notice of Appeal contains six grounds.
Counsel for the mother submitted today that the appeal lacks utility as the period of adjournment ordered by her Honour has now passed and the orders that were made therefore no longer have any operative effect. I do not accept this submission since, if the father’s arguments succeed, one option available to us would be to re-exercise the discretion of the primary judge and make orders as proposed by the father for the return of the child to NSW.
It is therefore necessary to consider each of the grounds of appeal since all of them were pressed with varying degrees of vigour by counsel for the father.
Ground 1 – failure to follow “the legislative pathway”
The mother sought in the proceedings before the primary judge that she have sole parental responsibility for the child, on both an interim and final basis, while the father sought equal shared parental responsibility. No orders were made dealing with parental responsibility, and her Honour made no reference at all to the issue in her brief reasons.
Section 61DA of the Act provides:
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
These provisions are pivotal to the scheme of the Act because if their application leads to the making of an order for equal shared parental responsibility, then s 65DAA comes into play and the Court must then consider whether to make an order for the child to spend equal time with each parent or substantial and significant time (Cox & Pedrana (2013) FLC 93-537).
Ground 1 asserts:
The learned Judge failed to apply the presumption of equal shared parental responsibility pursuant to section 61DA(1) of the … Act … or determine an alternative pursuant to the provisions of section 61DA(2), 61DA(3) or 61DA(4) and failed to determine the Father’s interim application for an order for equal shared parental responsibility.
The failure of her Honour to follow what counsel for the father called the “legislative pathway” must be understood in light of the fact that neither counsel made any submission during the hearing below about the allocation of parental responsibility. In the absence of any submission on the topic, it is unclear precisely how the primary judge was expected to determine whether or not the presumption in favour of equal shared parental responsibility in s 61DA(1) applied, especially given the (admittedly untested) claims of family violence.
Counsel for the mother argues that it can be inferred from the reasons that her Honour placed great weight on the allegations of family violence, and that it can be further inferred that her Honour found, by reference to s 61DA(2), that the presumption in favour of equal shared parental responsibility did not apply. While I accept that her Honour was troubled by the allegations of family violence, she clearly had no means of determining whether they were truthful. There was therefore an insufficient factual foundation to support a “belief” that the father had engaged in conduct of the kind described in s 61DA(2). At most there were grounds for a belief that he may have done so. Thus I would not be prepared to infer that her Honour applied s 61DA(2).
Counsel for the mother argued in the alternative that it can be inferred, by reference to s 61DA(3), that her Honour considered it would “not be appropriate” to apply the presumption in favour of equal shared parental responsibility. That proposition gains strength, in my view, from the fact that neither counsel addressed the applicability of the presumption in their submissions before her Honour. While her Honour properly curtailed unnecessary recital of the well-known provisions of the Act there was no indication that either counsel was prevented from addressing the applicability of the presumption.
However, as the Full Court said in Goode and Goode (2006) FLC 93-286 at [51]:
… it does not matter whether the issue of equal shared parental responsibility was put in issue by the parties, or either of them, as the Court is required to apply s 61DA in any case in which a parenting order is to be made.
The Full Court went on to say at [78]:
The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult …
In my view, given the stark contrast between the stories of the parties and the absence of reliable corroboration, it ought to have been apparent to all those involved in the proceedings that it was “difficult” – I would say impossible – to determine whether or not the presumption should be applied. That fact in itself would explain why neither counsel attempted to address the issue.
In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court, while recognising the burden on judges in busy courts of negotiating legislation of “labyrinthine complexity”, nevertheless said this about the “exclusion” in s 61DA(3):
107.… The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision-making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied …
I must therefore accept that application of s 61DA(1) is mandatory subject to s 61DA(2) and s 61DA(3), and that the task of dealing with those provisions would usually require reference to them and the giving of at least brief reasons for the application of one part and the discarding of other parts of s 61DA. However, as the Full Court said in SCVG & KLD (2014) FLC 93-582:
78. … it is useful to recall that the necessary content of reasons for judgment depends upon the context in which they are given. Thus, factual and legal concessions, if accepted by the court, may conclusively deal with factors that legislation requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding.
In his often cited judgment in Housing Commission of NSW v Tatmar PastoralCo Pty Ltd [1983] 3 NSWLR 378 at 385, Mahoney JA made clear that the duty of a judge to state reasons for a decision “does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument”. The latter proposition might be thought to apply with even greater force in cases where a matter was not raised in argument at all, as was the case here with the issue of parental responsibility.
It must also be borne in mind that we are dealing with an ex tempore judgment, given in a busy Duty List, where the judge was making a decision that would last just a few months, pending the gathering of further information. As Heydon J said in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, where the judgment was given on the day after a hearing:
185.… This was an appropriately speedy response to the exigencies created by the manoeuvring of the parties. But speed can come at a price – a necessary and reasonable price. Seeming infelicities or obscurities or confusions in a reserved judgment pondered for some time might be regarded as signs of error. They ought to receive a more benevolent construction, if that is reasonably available, when they appear in a judgment produced under the pressure of the circumstances just outlined.
Giving the primary judge’s reasons a benevolent construction, I would adopt the same approach that I did in Mazurka & Mazurka [2011] FamCAFC 68 where I said:
22.Whilst his Honour could have expressed himself more clearly, it has to be remembered that he was giving his reasons ex tempore. The Family Law Magistrates sit in a very busy court. Unless a significant percentage of judgments are delivered orally, the burden of reserved judgments and the delays in delivering them would quickly become unacceptable. It is to be expected that judgments given immediately following the conclusion of submissions will not be as elegant as those that are reserved. Making allowances for the fact that the decision was given ex tempore, in my view it is sufficiently clear that his Honour did not apply the presumption because he was not able to determine the accuracy of the allegations of family violence.
In the present matter, I would be prepared to infer that her Honour did apply s 61DA(3) and elected simply to by-pass the question of parental responsibility in the same way counsel had by-passed that issue in their submissions. Counsel for the father in his oral submissions today also properly accepted that such an inference might be open.
If I am wrong in this approach, I would nevertheless see little basis for appellate intervention, especially as there was nothing to prevent the parties seeking to agitate the question of parental responsibility at the further interim hearing to which her Honour adjourned the proceedings.
It is true that having not considered s 61DA, her Honour also did not consider s 65DAA. But what were the consequences of her failure to do so? In his oral submissions to her Honour at least, counsel for the father did not seek an order for equal time with the child. Thus s 65DAA(1) would not have had any impact on the outcome. Further, her Honour was not satisfied that the father was “an appropriate primary caregiver” and in fact determined that he should only have supervised time with the child. The fact her Honour concluded that this was the arrangement that was in the best interests of the child clearly precluded any possibility of an order for “substantial and significant time” on an interim basis. Accordingly, consideration of s 65DAA(2) would also not have led to any different outcome.
For these reasons, I consider that even if her Honour erred in failing to give some brief reasons about the issue of allocation of parental responsibility, there was no practical consequence of that failure.
I therefore find no merit in this ground.
Ground 2.1 – the s 69ZW order
Ground 2.1 asserts that the primary judge erred by:
Elevating an enquiry to South Australia Police pursuant to section 69ZW of the Act above the requirement to determine the interim applications of the parties on the basis of the evidence before the Court and in accordance with the legislative pathway under Part VII of the Act
In support of this ground, counsel for the father asserted that her Honour’s decision to make an order under s 69ZW
was not clear having regard to submissions made by the Father’s counsel to the effect that the Father had not received contact from New South Wales Police, South Australia Police, the Department of Families and Communities (NSW) or any government at [sic] agency at all in relation to the Mother’s allegations of sexual assault.
(Citation omitted)
While I accept such a submission was made, the father’s argument overlooks the fact that her Honour was also advised by counsel for the mother at the hearing that her complaints were, in fact, being investigated (transcript, 20 July 2017, p 14).
In dealing with this complaint, it should be noted that s 67ZBB of the Act makes provision for the management of cases in which there have been claims of family violence. Subsection (2) mandates the court to consider what interim orders should be made to enable appropriate evidence about the allegation to be obtained expeditiously. Subsection (4) specifically states that “the court must consider whether orders should be made under section 69ZW to obtain documents or information from State and Territory agencies in relation to the allegation”.
Her Honour properly acknowledged that she did not know whether there was any ongoing investigation into the mother’s allegations, but concluded that an order made under s 69ZW “may provide some further information in that regard”. In making an order under s 69ZW, the primary judge was doing nothing more than performing her duty as prescribed by the legislation.
Other submissions made on behalf of the father seem to be nothing more than speculation as to the use her Honour might put any information received pursuant to the s 69ZW order when she next came to consider the interim arrangements for the child. Counsel sought to imply that her Honour had foreshadowed that the information might have a conclusive effect on the outcome of the further argument by stating in his written submissions that her Honour had said, “what comes in pursuant to the section 69ZW [order] may not support this interim arrangement, with [the child] remaining here in South Australia”. In fact, what her Honour said was, “because for a start, it may be that what comes in pursuant to the section 69ZW [order] may not support this interim arrangement, with [the child] remaining here in South Australia” (transcript, 20 July 2017, p 39).
In other words, her Honour made clear that the s 69ZW information would be only one of the matters to be taken into account at the next hearing. No doubt her Honour also intended to take into account any other evidence provided prior to the resumption of the hearing, including the content of the affidavit the mother was permitted to file in response to the overly lengthy affidavit of the father, which had been received only a day or so before the hearing.
I therefore find no merit in this ground.
Ground 2.2 - inappropriate weight placed on one allegation
Ground 2.2 asserts that the primary judge erred by:
Placing excessive weight (to the extent that it was the only expressed reason for the live with and spend time orders dated 20 July 2017) on the allegations made by the Mother against the Father arising from the alleged events of … May 2017.
This complaint proceeds on a false premise since her Honour’s reasons did not rely only on the allegations the mother had made about an assault on her in May 2017. As her Honour recorded, the mother made allegations of physical, sexual and emotional violence towards her throughout the relationship. Her Honour was unable to determine the accuracy of all of these allegations, but obviously took them all into account in determining that there were “real concerns at this time”.
I therefore find no substance in this complaint.
Ground 3 - difficulty in the father exercising time with the child
By this ground it is asserted that:
The learned Judge erred by not giving proper consideration to the practical difficulty and expense of the child spending time with the Father and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Counsel for the father asserted that the judgment showed that the primary judge gave no proper consideration to the practical difficulty and expense of the child spending significant, substantial or any time with the father on a regular basis. It was said in particular that the primary judge had overlooked the father’s evidence in his financial statement revealing that his expenditure exceeded his income.
The father’s submissions overlook the way in which the matter was presented to the primary judge. The father’s response contained detailed orders based on a number of possible scenarios. In dealing with the scenario where the child remained living in South Australia, the father proposed a visiting regime under which he would spend up to two weekends each month with the child in South Australia and the mother would be required to bring the child to NSW on one weekend each month. The father’s proposal did not seek that the mother contribute anything to the cost of him coming to South Australia although it did seek that she meet the cost of the monthly trip to NSW.
When her Honour enquired of counsel for the father during the oral argument concerning the proposals he had for the father to spend time with the child if the child remained living in South Australia, she was informed again that the father’s proposal was that the child should “spend time with the father in [South Australia] for up to two weekends a month” (transcript, 20 July 2017, p 28). That is, in effect, the order her Honour made.
At another point in the oral submissions, her Honour was informed that the father’s preferred position was that the child would be brought back to the Southern Highlands each alternate weekend by the paternal grandfather. The proposal was that the father would pay for the child to fly from South Australia to NSW and the mother would pay for the child’s return journey, but on the basis that the child would be accompanied by his paternal grandfather who would meet his own airfares. It was also proposed that there be a seven-day visit for the child to return to NSW about three weeks after the hearing on the basis that the paternal grandfather would meet all the costs for himself and for the child.
These matters were sufficient in my view to satisfy her Honour that there were enough funds available to the father to afford a regular visiting regime for both the father and one of his parents during the few months pending the resumption of the hearing.
While I accept that her Honour did not expressly discuss the difficulty and expense associated with the father spending time with the child, it is clear she prioritised issues of safety, which she was obliged to do by the legislation. It is also relevant to note that her Honour obtained an indication from the mother’s counsel during the hearing that on the basis of the father paying all of the airfares, the mother would not seek child support until the matter returned to court. As her Honour said, “I’m not saying that’s necessarily a fair outcome; I’m just trying to do something quickly” (transcript, 20 July 2017, p 39).
Her Honour also explicitly recognised that the father might not be able to afford all of the visits to which he was entitled. In dealing with that issue she said:
I grant liberty to the father to vary the dates for his time with [the child] in [South Australia]. It may be that the cost becomes prohibitive. It may be that one grandparent is not available at particular occasions, so I want there and expect there to be some flexibility in that regard.
(Transcript, 20 July 2017, p 42)
It therefore cannot be said that her Honour was not cognisant of the costs and difficulty associated with the visits.
I therefore find no merit in this complaint.
Ground 4 - failure to consider s 60CC of the Act
By this ground it is asserted that:
The learned Judge failed to consider section 60CC of the Act more generally in arriving at an Order, which the Court considered proper under section 65D of the Act.
Counsel for the father submitted that the primary judge gave no consideration to the primary or additional considerations contained in s 60CC(2) or s 60CC(3) of the Act. Plainly, that is not the case insofar as s 60CC(2) is concerned since the entire basis upon which her Honour arrived at her decision involved making orders which would protect the child from the harm of being exposed to family violence. Her Honour also took into account the other primary consideration in s 60CC(2), namely the benefit to the child of having a meaningful relationship with both parents but properly, in accordance with s 60CC(2A), her Honour placed greater weight on the former rather than the latter.
It is true that her Honour did not expressly then work her way through the s 60CC(3) factors, but given the approach she adopted to the issue relating to the father’s alleged behaviour, it is readily apparent that none of those factors in isolation or combination could have overcome the critical weight that was attached to the issues relating to family violence.
As the Full Court said in Banks & Banks (2015) FLC 93-637:
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
In this context it must be stressed also that her Honour was not purporting to make interim orders that would remain in force until trial. Instead, she was dealing with what she had herself called an “urgent” situation in circumstances where she repeatedly made plain she was making a holding order before being able to hear the interim issue again with the benefit of any further evidence that might be forthcoming, including under the s 69ZW order.
I accept that a more careful consideration of the s 60CC(3) factors might have had some impact on the issue of whether supervision of the father’s time was necessarily in the child’s best interests, but as was pointed out today, there was no ground of appeal directed to the order for supervision. No doubt that could be a matter to be considered at the resumption of the interim hearing.
It is true, as was submitted in support of this ground, that the primary judge made no express reference in her reasons to a proposal made by the father that he would vacate the former home to allow the mother and child to reside there, on the basis he would meet all of the expenses and submit to an injunction restraining him from attending at the property. However, it could not be suggested that this proposal was overlooked since her Honour gave her reasons immediately after hearing submissions about the competing proposals. I accept the submission of counsel for the mother that her Honour must have had the father’s proposal in mind when concluding at [14] that the mother’s allegations were of “such seriousness that it would not be in [the child]’s best interests that he return to live in the Southern Highlands region.”
It should also be borne in mind that the father’s proposal about vacating the former home in favour of the mother and child living there was made in an affidavit filed by the father only very shortly prior to the hearing. In my view, it was an appropriate exercise of her Honour’s discretion to permit the mother time in which to respond to the affidavit prior to ruling finally on the competing proposals for interim arrangements for the child.
For these reasons, I consider this complaint too lacks merit.
Ground 5 – case management order
By this ground, which was only faintly pressed, it was asserted that:
The learned Judge erred by directing that the Father’s Affidavit filed on 18 July 2017 be uplifted to be refiled with the Adelaide Registry Practice Direction published in May 2017 in circumstances where the Father’s counsel made extensive submissions in relation to the content of that document and where:-
5.1. The substance and form of the Father’s Affidavit was proportionate to the issues requiring interim determination; and
5.2. The making of the order was neither just nor necessary when the matter had proceeded to hearing on the first return date.
Leave is required to appeal against the case management order that is the subject of this complaint. Leave to appeal should be refused since while the father’s affidavit did not comply with the Practice Direction, her Honour was nevertheless prepared to take the affidavit into account and expressly did so stating: “I’m happy for you to rely upon it today” (transcript, 20 July 2017, p 17).
There was real utility in requiring the affidavit to be uplifted and refiled, since this not only reinforced the obligation to comply with Practice Directions, but meant that the mother would not be obliged to respond to an overly lengthy affidavit, with far more annexures than the Practice Direction permitted.
As her Honour said when making the order:
… the reality is that there are reasons why the court limits affidavit material, to try and make parties and their legal representatives focus on the issues that are actually relevant to these proceedings, and there’s much in your client’s affidavit that frankly goes into a level of detail that is simply not relevant for interim issues hearings.
(Transcript, 20 July 2017, p 45)
Ground 6 - failure to dismiss interim applications
By this ground it is asserted that:
It was not open to the learned Judge and was an error of law to make the interim parenting orders dated 20 July 2017 and at the same time state that each party’s interim application was not dismissed or finalised by those orders.
I am mystified by this ground of appeal, and by the submissions made in support of it. Her Honour was not purporting to make orders that would apply until the matter came on for trial. Instead, the orders she made were aimed expressly at determining the arrangements for the child pending the resumption of the hearing of the interim application. It would, in my view, have been an error for her Honour to have dismissed the interim application in those circumstances. There is therefore no merit in this ground.
The outcome and costs
There being, in my view, no merit in any of the complaints, I am of the view that the appeal should be dismissed.
Counsel for the father has properly conceded that costs should follow the event. The appeal having been entirely unsuccessful, I would order the father to pay the mother’s costs.
During the course of the proceedings we sought from counsel estimates of the costs incurred in the appeal. Counsel for the father advised that his costs amounted to $9,470, but he properly conceded that these were in fact not party/party costs but included solicitor/client costs and that the appropriate amount that would be sought by him in the event that he was successful would be $6,000.
When we sought an indication from the mother’s counsel, we were informed that even on a party/party basis, the costs claimed would be $15,000. The presiding judge enquired quite appropriately, in my view, somewhat quizzically, how costs of $15,000 could be incurred when acting for the respondent, but that was the figure maintained by the mother’s counsel.
As the presiding judge indicated to counsel when seeking submissions on costs, it is now the policy of the appeal division of this Court to endeavour to fix costs wherever practicable in order, in particular, to save the parties the unwarranted costs of assessments of costs and to avoid the time necessarily taken up by registrars in assessing costs.
The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) which state:
19.18 Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a) of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
As was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162, and as I have just said, the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
As Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93-748 (citations omitted):
130. If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
And as was said in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, the court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner” (at [10]).
In this matter, I consider that the estimate provided by the father’s counsel of the costs claimed on a party/party basis of $6,000 was well within the range. Bearing in mind all of the additional costs that an appellant must bear, including preparation of the appeal book index and drafting grounds of appeal, I consider that the appropriate sum payable by the father to the mother in relation to this appeal would be $5,000, and I would order payment of that sum within 28 days.
O’Brien J
I agree with the orders proposed by Thackray J and with his Honour’s reasons, and I have nothing to add.
Strickland J
I too agree with the reasons given by Thackray J and the orders proposed by his Honour. The orders of the Court will be:
(1)The appeal be dismissed.
(2)The appellant pay the respondent’s costs fixed in the sum of $5,000, such amount to be paid within 28 days of the day hereof.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & O’Brien JJ) delivered on 27 November 2017.
Associate:
Date: 1/12/17
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