SOLONOSE & SQUIRES
[2015] FamCAFC 190
•30 September 2015
FAMILY COURT OF AUSTRALIA
| SOLONOSE & SQUIRES | [2015] FamCAFC 190 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant appeals the orders providing for the venue the child is to spend time with the respondent, the requirement for both parties to consent to the enrolment of the child at high school and the restraint placed on the appellant from leaving the child alone with his brother – Where the major issues in dispute were resolved by consent, the trial judge determined those remaining issues on the brief evidence of the parties and by having recourse to the family report and earlier affidavits filed by them – Where there is no merit in the grounds of appeal as they relate to the venue the child is to spend time with the respondent and the requirement for both parties to consent to the high school the child is to be enrolled at – Where there is merit in relation to the order made restraining the appellant from leaving the child alone with his brother – Where it is not the case that a court order by way of injunction is the same as an undertaking given by a person to a Government Department – Where the trial judge needed to be satisfied that there were allegations that required such an injunction to be made and that did not occur – Where it was not sufficient to make such an injunction because it would make the mother feel more comfortable – Where the appeal be allowed in part – Where it is unnecessary and inappropriate to remit the matter to the Federal Circuit Court of Australia for rehearing – Relevant order set aside. FAMILY LAW – APPEAL – COSTS – Where the appellant sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in the event that the appeal was successful on a point of law – Where the respondent did not seek a costs certificate – Where there were many grounds of appeal that were unsuccessful – Application for a costs certificate by the appellant refused. |
| Family Law Act 1975 (Cth) |
Federal Proceedings (Costs) Act 1981 (Cth)
| Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Solonose |
| RESPONDENT: | Ms Squires |
| FILE NUMBER: | MLC | 2729 | of | 2011 |
| APPEAL NUMBER: | SOA | 70 | of | 2014 |
| DATE DELIVERED: | 30 September 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 September 2014 |
| LOWER COURT MNC: | [2014] FCCA 2395 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Levine |
| SOLICITOR FOR THE APPELLANT: | Templeton Fox Rothschild |
| THE RESPONDENT: | In person |
Order
The appeal be allowed in part.
Paragraph 19 of the Order made by Judge Connolly on 9 September 2014 be set aside.
The application by the appellant father for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Solonose & Squires has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 70 of 2014
File Number: MLC 2729 of 2011
| Mr Solonose |
Appellant
And
| Ms Squires |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 3 December 2014 Mr Solonose (“the father”) appeals against certain orders made on 9 September 2014 by Judge Connolly in relation to the child of the parties, B, born in 2007 (“the child”). Ms Squires (“the mother”) opposes the appeal.
The orders appealed against provide for the venue at which the child is to spend time with the mother, put in place a restriction on the enrolment of the child at high school without the consent of both of the parties, and restrained the father from leaving the child alone with his brother.
The course of the hearing before the trial judge
It is necessary to explain how the hearing before his Honour unfolded, in order to understand and appreciate the basis on which his Honour made the orders which are the subject of the appeal.
The competing applications of the parties for parenting orders were listed for hearing before his Honour on 9 September 2014. However, when the matter was called on at 10:10 am, counsel for the Independent Children’s Lawyer (“the ICL”) announced that it was capable of settlement, that the mother who appeared without legal representation had prepared a “helpful” minute of order, and requested that the matter be stood down “to fine-tune” the orders. His Honour agreed, and the matter was next called on just before 12 noon. At that time counsel for the ICL indicated, in effect, that more time was required, and his Honour again stood the matter down. The hearing was then called on just after 12:30 pm, when counsel for the ICL handed up a consent minute of order which disposed of most of the issues in dispute, including the major issues. Counsel for the father then addressed what matters were not agreed and in respect of which his Honour would need to make a determination. Relevant to this appeal, those matters were as follows:
a)Given that the mother had moved to live in the [Y] area, whether the agreed alternate weekend contact the child would have with the mother was to take place alternately in [Y] and at the maternal grandmother’s home (the father’s case), or only each third occasion at the maternal grandmother’s home (the mother’s case).
b)Although the parties agreed that the child should continue at [D] Primary School, where he was in grade 2, the mother sought (and the father opposed), that each party be restrained from enrolling the child in high school without the written consent of the other party.
c)Whether there should be a restraining order as sought by the mother, but opposed by the father, preventing the father leaving the child alone with his (the father’s) brother.
I observe that the ICL supported the mother’s position in relation to these three issues, and in respect of at least the first, so did the family report writer.
In any event, his Honour explored these issues with counsel as well as how they should be determined. There were no trial affidavits filed, but there were earlier affidavits on file from each of the parties, and there was a family report comprising recommendations on which the minutes of order were based. Thus, his Honour determined that each party should give “brief evidence” as to the issues in dispute and be asked questions in cross-examination. Counsel for the father, counsel for the ICL, and the mother agreed with that course, and that is what then happened.
At the conclusion of the evidence his Honour heard submissions from the father’s counsel, delivered ex tempore reasons for judgment, and made orders.
Reasons for Judgment of the trial judge
His Honour’s reasons are necessarily brief because of the limited nature of the hearing before him. Thus, I propose to address those reasons where relevant in considering the grounds of appeal.
The grounds of Appeal
The grounds of appeal comprised in the Amended Notice of Appeal are as follows:
1.The Trial Judge demonstrated a reasonable apprehension of bias against the Appellant.
2.The Trial Judge prejudged the issues that were being heard before him.
Particulars
The Trial Judge said words to the effect the Appellant should do more travelling.
The Trial Judge said words to the effect that I don’t understand why the Appellant would have a problem with a restraining order being made against him from leaving the child with his brother, (p 9 -10, 10 – 12 and p 33 of the transcript).
3.The Trial Judge did not provide natural justice to the Appellant;
Particulars
The Trial Judge did not permit the Appellant’s counsel to cross examine the wife on the basis of the child’s attendance at school when the child lived with the wife (lines 1 – 10 on p 21 of the transcript).
The Trial Judge did not permit the Appellant’s counsel to object to the questions put by counsel for the Independent children’s lawyer (lines 5 – 20 on 30 of the transcript).
The Trial Judge refused to listen to the Appellant’s counsel.
The Trial Judge did not take into account the evidence of the husband on the living arrangements of the wife’s mother.
4.The Trial Judge did not provide sufficient weight on the practicable difficulty of the child attending [Y] for 3 out of every 4 weekends in determining the time that the child would spend with the wife.
5.The Trial Judge failed to take into account the evidence of the husband in making a decision as to whether the wife could [sic] would be able to spend time with the child once per month at her mother’s home.
6.The Trial Judge had no evidence or insufficient evidence upon which to make a finding that it was important that the wife spend time with the child on a regular basis and that it be as significant and lengthy as possible.
7.The Trial Judge erred in making the restraints in paragraphs 8, 18 and 19 of the orders made on 9 September 2014, in the absence of a formal application or even an oral application for such an order.
8.The Trial Judge erred in making the restraints in paragraphs 8, 18 and 19 of the orders made on 9 September 2014.
9.The Trial Judge failed to take into account that the respondents bore the onus of proof to establish that the making of the restraints in paragraphs 8, 18 and 19 of the orders made on 9 September 2014, were necessary for the welfare of the child and/or in its best interests.
10.The Trial Judge did not have a proper basis for making the restraints in paragraphs 8, 18 and 19 of the orders made on 9 September 2014, as there was insufficient evidence to establish that the orders were necessary for the welfare of the child and/or in its best interests.
11.The Trial Judge should not have made the restraints in paragraphs 8, 18 and 19 of the orders made on 9 September 2014, unless he found that the husband would be likely to engage in the conduct that was sought to be restrained.
12.The Trial Judge should not have made the restraining order preventing the husband from leaving the child with his brother on the basis of the concerns of the wife, that were unsubstantiated in order to make her feel comfortable.
13.The Trial Judge erred in making the order restraining the husband from leaving the child with his brother on the basis that the husband had provided an undertaking in the same terms to the DoHS.
14.The Trial Judge failed to provide sufficient weight to the difference in the consequences between providing a private undertaking to the DoHS and to having an order made restraining the husband from leaving the child with his brother.
15.The Trial Judge erred in taking into account and he gave too much weight to the husband stating that he would not leave the child with his brother.
16.The Trial Judge did not have a proper basis for making the restraining order preventing the husband from enrolling the child in High School as it was unnecessary as the parties had shared parenting responsibility for the child.
17.The Trial Judge erred in making the restraining order preventing the husband enrolling the child in high school as the husband might have to enrol the child in a school without the consent of the wife, in an emergency, at short notice.
18.The Trial Judge should not have made the restraining order preventing the husband from enrolling the child in high school on the basis that the parties had agreed that there would not be any change in the child’s schooling without the agreement of the other.
19.The Trial Judge failed to take into account that the husband was required by law to enrol the child in a school, irrespective of the consent of the wife.
20.The Trial Judge failed to provide proper reasons for his decision.
As can be seen, a number of those grounds are repetitive, and that can also be seen from the father’s counsel’s written summary of argument with Grounds 13, 15 and 18 all just referring to Ground 9. Further, when challenged during the hearing of the appeal about this, the father’s counsel indicated that in relation to the appeal against the injunction restraining contact between the child and the father’s brother, Grounds 9, 10 and 11 were the primary grounds and Grounds 12 and 13 were just examples in relation to those grounds. However, I do not consider that Grounds 10 and 11 are discrete grounds, and I also consider Grounds 7 and 8 are encompassed by Ground 9.
Further, I record that at the hearing of the appeal the father’s counsel indicated that he was not pursuing Ground 1, and instead relied on Ground 2, namely the complaint that the trial judge pre-judged the issues that were before his Honour.
Given the unsatisfactory nature of the grounds of appeal, I propose to address the relevant grounds under the three topics the subject of the complaints in this appeal, namely, the venue of the time to be spent with the child by the mother, the restraint in relation to enrolling the child in high school, and the restraint in relation to the father’s brother.
Discussion
The venue for contact – part of Grounds 2, 3 and 20, and Grounds 4, 5 and 6
In Ground 2, the relevant particular of the alleged pre-judgment is that “[t]he Trial Judge said words to the effect the Appellant should do more travelling”. However, there was no submission in the father’s written summary of argument addressed to this particular, and I am not able to deal with this complaint in any meaningful way. I have though read the transcript of the hearing before his Honour, and in the context of counsel for the ICL explaining to the trial judge what the respective proposals of the parties were in relation to the venue for the child spending time with the mother, and specifically counsel for the ICL saying, “[h]e [meaning the father] does far less of the travel”, his Honour commented “[p]erhaps he should do more” (Transcript 9.9.2014, page 9, lines 13-16).
I am far from persuaded that this comment, in the context that it was made, demonstrates any pre-judgment on the part of the trial judge, and in any event, to repeat, with no submission being made, no link has been established between this comment and his Honour’s decision, such that the complaint could have any merit.
In Ground 3, the relevant particular of the alleged failure to provide natural justice is “[t]he Trial Judge did not take into account the evidence of the husband on the living arrangements of the wife’s mother”. However, again there was no submission in the father’s written summary of argument addressed to this aspect of the claimed failure to provide natural justice. Thus, again, I do not know what to make of this claim, and I am in no position to find that it is made out. I observe that this issue of the trial judge failing to take into account the father’s evidence is the subject of other grounds of appeal (e.g. Ground 20), and it is perhaps better discussed under those grounds.
With Ground 20, that is a ground which lacks specificity, but in the father’s written summary of argument it is claimed that “[t]he Trial Judge … failed to provide any reasons as to why he accepted the evidence of the mother in determining that she could only spend time with the child once every two months at her mother’s home” (at [24]). Further, the father suggests that his Honour did not “even mention the evidence of the father”.
There is no substance to this challenge. As with many of the complaints of the father, the context of this decision by his Honour has been overlooked. The parties reached agreement about the major issues in dispute, and required the trial judge to decide a handful of matters that could not be agreed. In those circumstances it was unnecessary for his Honour in his reasons for judgment to traverse every piece of evidence and every submission that was made to him (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 385-386). Plainly the trial judge accepted the evidence of the mother and rejected the evidence of the father, and it is not an appealable error in this case for his Honour to not have expressly stated this, or to have gone any further in his reasons for judgment than he did. In my view, his Honour gave adequate reasons in the circumstances for this decision.
Turning to Grounds 4, 5 and 6, what I have just said also disposes of Ground 5. With Ground 4, that is a weight challenge, but it has not been demonstrated that “the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance” (House v The King (1936) 55 CLR 499, 505).
His Honour clearly recognised the practical difficulties caused by the travel that the child would have to undergo, and he described in his reasons for judgment how that was “not an ideal situation”. However, what swayed his Honour was the importance of the child seeing his mother on a regular basis, and the evidence that his Honour accepted that that could “only occur if it happens three times in [Y] and once in Melbourne in every two-month period or eight-week period” (at [6]). Accordingly, there is no error by his Honour here.
In relation to Ground 6, I find that it is a specious ground lacking in merit. There was a family report prepared for the purposes of the hearing, and his Honour was clearly able to have regard to it, but his Honour did not need to do that in order to find, as he did in [6] of his reasons, that it was “most important that [the child] sees his mother on a regular basis”. Indeed, that was clearly a matter accepted by both parties in reaching agreement that time spent should take place every alternate weekend.
The restraint as to enrolling the child in high school – part of Grounds 3, 7, 8, 9, 10, 11 and 20, and Grounds 16, 17 and 19
In relation to Ground 3, the written summary of argument does not add to the relevant particulars in the ground of appeal. Thus, addressing those particulars, it is first suggested that the trial judge did not permit the father’s counsel “to cross examine the [mother] on the basis of the child’s attendance at school when the child lived with the [mother].” This appears in the transcript of the hearing as follows:
MR LEVINE: In the years that he was living with you, [the child], he missed a considerable amount of school; isn’t that correct? ---Yes. That is correct.
MS BUCHANAN: Well, I object to that; its relevance.
HIS HONOUR: Well, I don’t see what relevance.
MR LEVINE: Well, it’s a matter of credibility, your Honour. She ---
HIS HONOUR: No. It’s not. You don’t – I uphold the objection.
(Transcript 9.9.2014, page 21, lines 1-10)
As can be seen there was an objection on the ground of relevance which his Honour upheld. For my part, having closely read all the transcript of the hearing, and being aware of the issues in dispute, as his Honour also undoubtedly was, I can see no relevance to the question, and his Honour was quite correct to rule as he did. Further, it could not be a matter of “credibility”.
For his Honour to make a proper ruling on the evidence during the course of the hearing cannot sound in a failure to provide natural justice, and there is no merit in the complaint to that effect.
Secondly, it is alleged that the trial judge “did not permit the [father’s] counsel to object to the questions put by counsel for the Independent children’s lawyer”. This appears in the transcript of the hearing as follows during the cross-examination of the father by counsel for the ICL:
HIS HONOUR: No, no. You were asked a particular question. You’re not answering it. You’re repeating what you’ve said a number of times. What you were asked, having given that undertaking, and you say you’re going to keep that undertaking, what is the difficulty with having that enforced by way of an order?---Because it’s going to get used in the future, as it has, to withhold [the child].
Well, I don’t understand that.
MS BUCHANAN: You have no evidence, I suggest, that - - -
MR LEVINE: That’s not true. It actually has been used.
HIS HONOUR: Don’t interrupt, please.
MR LEVINE: Well, she is putting to him, she has no evidence.
HIS HONOUR: Don’t speak like that, and don’t interrupt.
MR LEVINE: I’m not allowed to object, your Honour. Okay. Is that – I won’t object.
HIS HONOUR: Go on, Ms Buchanan.
(Transcript 9.9.2014, page 29, line 44, page 30, line 19)
Certainly, the trial judge required the father’s counsel not to “interrupt”, but that was in no sense preventing the father’s counsel from making a proper objection, at an appropriate time.
The question by counsel for the ICL had not been completed, and the appropriate time to make the objection was after the question had been put. That was what his Honour was attempting to convey by requesting counsel not to interrupt. There was nothing to stop the father’s counsel from making the objection when the question had been asked, and before it was answered. Thus, again, this complaint has no merit.
I observe that I do not propose to address what I consider to be a throw-away line in the particulars of the ground of appeal that the trial judge refused to listen to the father’s counsel. I was not taken to anything in the transcript where that was apparent.
As to Ground 7, I understood that this related specifically to the issue of the restraint in relation to the father’s brother, and not the topic being addressed here. Indeed, it was only raised before his Honour in the former context, and that is borne out by the transcript references provided in the written summary of argument. Thus, I will leave discussion of this ground for when I address this topic.
I do make the comment though that again the father is overlooking the nature of the hearing before the trial judge, and how these issues came to be determined by his Honour. It would not have been open for his Honour to say he would not deal with these matters simply because the orders sought were not orders sought in the Initiating Application or the Response. They were clearly matters that were in dispute and needed resolution, and neither party, and in particular the father, sought an adjournment to put further material before his Honour.
Ground 8 is not a ground that I can address; it is simply a general assertion of error by the trial judge.
Turning to Ground 9, again, in the written summary of argument there is nothing said of relevance about this ground in relation to the topic under consideration. The submissions primarily relate to the restraint involving the father’s brother. In any event, it was certainly the case that the mother bore the onus of proving that it was necessary, or appropriate, for the restraint on either party enrolling the child in high school without the consent of the other party, to be put in place. However, there was no error by his Honour in how he dealt with that issue. It was put to his Honour that this was an issue in dispute, he heard brief evidence and any submissions the parties wished to make, and then made his decision in which he accepted the mother’s submissions and the need for the restraint, again in the context of the truncated hearing that his Honour was asked to conduct by both parties and the ICL.
Grounds 10 and 11 are grounds that when it comes to the written summary of argument, were confined to the issues relating to the father’s brother. However, insofar as Ground 10 is a complaint about the restraint under discussion, I am not persuaded that there was insufficient evidence to establish the need for the restraint. And, in relation to Ground 11, it was clear from his Honour’s reasons that he made the order, inter alia, because of the likelihood of the father enrolling the child in high school without the consent of the mother.
Turning to Ground 20, which, to repeat, comprises a mere general assertion, I am satisfied that his Honour’s reasons for making the order under discussion were adequate, again bearing in mind what his Honour was asked to do. His Honour said this:
2.In relation to the second restraining order, that is, that neither parent will enrol the child, without the express consent of the other, in some other school, again, father says that he would not do that, although counsel, in his original argument before evidence, indicated that there might be a position, if the parties were unable to reach agreement, where the child will have to be enrolled somewhere and that in those circumstances, it would be appropriate to do that. It would be, in my view, utterly inappropriate. The parties have agreed upon equal shared parental responsibility. They have agreed that there will not be any change in schooling without the agreement of the other. And in those circumstances, having the restraining order to that effect, in my view, is appropriate.
3.The parties are both aware as to when the child will be changing school, when he will be old enough to leave [D] Primary School, and providing they have their discussions early in the piece, it may well be that there is not a problem, but if there is, then they can make the application in sufficient time to have that determined by the Court.
A specific complaint by the father is that the trial judge “did not identify the source of power relied upon” (see paragraph 23 of the father’s summary of argument). However, there was no challenge made during the hearing to his Honour’s power to make this order; it was not an issue before his Honour, and thus there was no need for his Honour to identify the source of that power. Once again the nature of the hearing before his Honour has been overlooked.
As to Ground 16, his Honour clearly recognised that the parties had equal shared parental responsibility, and was aware of the father’s counsel’s argument based on that circumstance. However, as is apparent from a perusal of the transcript of the hearing, and of his Honour’s reasons, his Honour found that despite this, it was necessary to impose the restraint, and particularly given that the parties had agreed that there would not be any change in schooling without the agreement of the other.
With Ground 17, again his Honour was well aware of this, it being a submission made by the father’s counsel. His Honour addressed this issue in [3] of his reasons for judgment, and it has not been demonstrated that his Honour has erred in the way submitted. I also observe that the submission in support of this ground set out in the written summary of argument plainly comprises “evidence” that was not before his Honour, and there is of course no application to lead further evidence. This ground also has no merit.
Finally, there is Ground 19. However, that too has no merit. Certainly the submission was made to his Honour that the father would be breaking the law if he failed to enrol the child in high school because no agreement had been reached between the parties. However, his Honour did not accept that, and it has not been demonstrated that that was an error by his Honour. It is not an error simply because the father does not agree with how his Honour has dealt with this issue.
The restraint in relation to the father’s brother – part of Grounds 7, 8, 9, 10, 11 and 20, and Grounds 12 and 14
The relevant background to this matter is that there were allegations made that the father’s brother, who has an intellectual disability, had been “sexually inappropriate” with the child (Transcript 9.9.2014, page 9, lines 36-38).
These allegations were investigated by the police and by the Department of Human Services, and although the allegations were not able to be substantiated, the father gave an undertaking to the Department that he would not bring the child into contact with his brother. However, the mother, to whom the child made the allegations, was still concerned about the child “being on his own with his uncle” (Transcript 9.9.2014, page 17, line 40) and sought an injunction.
His Honour addressed this issue in [1] of his reasons for judgment as follows:
In relation to the restraining orders, the father has indicated that he does not intend to breach the undertaking that he gave to the Department. I think the mother, in those circumstances, is entitled to have that put into the force of an order and that the father to be restrained from leaving [the child] alone with his brother. I do not understand what his objection to the order is given that he says he will not be doing it. The mother clearly has concerns about the brother’s behaviour. Whether those concerns are well founded, I am not in a position to say, but certainly she says that she is concerned about the brother, and, in my view, the order will make her feel a lot more comfortable than the undertaking to the Department.
The first complaint about this made by the father is in Ground 7, namely there was no formal application seeking this order before the court. That was undoubtedly the case, but it cannot be maintained by the father that he was unaware of it, or that he did not have the opportunity to address it.
As was flagged with his Honour the issue was raised by the mother in her affidavit filed on 20 May 2014. There, she set out the detail of what the child had told her about the father’s brother on 9 May 2014, and how she subsequently reported that to the police and to the Department. She then said this (in paragraph 13):
I seek an order restraining [the father] from bringing [the child] into contact with [the father’s brother] or allowing any person to do so. Subject to this order being made or [the father] providing an undertaking to this effect I will return [the child] to [the father’s] care forthwith.
Further, there was no application made by the father before his Honour seeking an adjournment to enable the father to provide material in relation to the mother’s “application” for an injunction. Indeed, the father’s counsel provided submissions, and the father gave evidence as to this issue. Thus the father cannot complain on appeal that his Honour dealt with this “application”.
As to Ground 8, I repeat what I have said above, namely, it is not a ground that I can address; it is nothing more than a general assertion of error by the trial judge.
Grounds 9, 10, 11, 12 and 14 can be dealt with together. In summary, the father complains that his Honour failed to find that the restraint was necessary, and importantly, for the welfare of the child. It is said that the allegations were unsubstantiated, and in any event, there was no evidence that the father was likely to allow the child to come into contact with his brother.
There is no question that his Honour did not find the allegations to be substantiated. Indeed, in [1] he said that he was not in a position to find whether the concerns of the mother were well-founded. Further, the evidence of the father was that he did not intend to breach the undertaking that he gave to the Department.
It is quite apparent from his Honour’s reasons, and from the exchanges with counsel during the hearing, that his Honour was of the view that given there was an undertaking in place with the Department, there could be no objection to an injunction being put in place, and that that would not prejudice the father. His Honour clearly proceeded on the basis that making the injunction sought would be the same as the undertaking that the father had previously provided.
His Honour was clearly in error in how he approached this matter. It is not the case that an order of the court by way of injunction is the same as an undertaking given by a person to the Department. For example, there are quite different remedies that flow if there is a breach of an order, as compared to a breach of a private undertaking.
Further, it was not open to his Honour to make the order for the reason that it would “make [the mother] feel a lot more comfortable than the undertaking to the Department” (at [1]). To repeat, his Honour needed to be satisfied that there were allegations that required an injunction to be made, and that clearly did not occur. Accordingly, the complaints in these grounds of appeal have merit, and in those circumstances I do not need to consider Ground 20 insofar as it relates to this matter.
Conclusion
Having found merit in a number of the grounds of appeal in relation to paragraph 19 of the order made by the trial judge on 9 September 2014, the appeal will be allowed in part.
The question then becomes what should be done in relation to the order made by the trial judge. In my view it would be unnecessary and inappropriate to remit that aspect of the proceedings for rehearing by the Federal Circuit Court of Australia, and given that there was no proper basis on which his Honour was able to make the order, it should simply be set aside, and that is what I propose to do.
Costs
At the conclusion of the hearing I sought submissions from counsel for the father, and from the mother, in relation to costs depending on the result of the appeal.
In the event that the appeal was successful counsel for the father indicated that no order for costs was sought, but on the basis of the appeal being allowed on a question of law, then on behalf of the father, he sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
In relation to the mother, she indicated that she had not incurred any costs in relation to the appeal, and accordingly she did not seek a costs certificate in the event of the appeal being successful.
Although the appeal has been successful in part, there were many grounds of appeal that were unsuccessful, and accordingly I do not consider it appropriate for a costs certificate to be granted to the father.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 30 September 2015.
Associate:
Date: 30 September 2015
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