Stock & Stock
[2024] FedCFamC1A 210
•12 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Stock & Stock [2024] FedCFamC1A 210
Appeal from: Stock & Stock [2024] FedCFamC2F 748 Appeal number(s): NAA 179 of 2024 File number(s): CAC 230 of 2022 Judgment of: RIETHMULLER J Date of judgment: 12 November 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Procedural fairness – Where primary judge made orders different from agreed orders and outside the ambit of disputed orders sought by the parties without giving the parties an opportunity to be heard – Where lack of procedural fairness material to outcome – Where parental responsibility orders set aside parenting orders must also be set aside due to possibility of s 65DAA being engaged in case heard before 2024 Amendments – Grounds of appeal established – Matter remitted for rehearing – Costs certificates issued. Legislation: Family Law Act 1975 (Cth) ss 61DA, 65DAA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Cases cited: Fazil & Fazil [2024] FedCFamC1A 54
Field & Kingston [2021] FedCFamC1A 66
Guthrie & Guthrie (1995) FLC 92-647; [1995] FamCA 134
KB & TC (sub nom Bolitho and Cohen) (2005) FLC 93-224; [2005] FamCA 458
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Robertson & Sento [2009] FamCAFC 49
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 34 Date of hearing: 29 October 2024 Place: Parramatta Counsel for the Appellant: Mr Othen, SC Solicitor for the Appellant: Dobinson Davey Clifford Simpson Counsel for the Respondent: Mr Havenstein Solicitor for the Respondent: Neilan Stramandinoli Family Law Counsel for the Independent Children's Lawyer: Did not participate - Submitting notice filed Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
NAA 179 of 2024
CAC 230 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR STOCK
Appellant
AND: MS STOCK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
12 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Appeal NAA 179 of 2024 be allowed.
2.That the proceedings be remitted for rehearing.
3.That Orders 1 to 7 made on 14 June 2024 be set aside on the first date that the matter is before a judge or registrar of the Federal Circuit and Family Court of Australia (Division 2) following remittal for re-hearing.
4.That the appellant be granted a costs certificate pursuant to 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 that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.That the respondent be granted a costs certificate pursuant to 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 that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
6.That the appellant and the respondent be granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant and the respondent in respect of the costs incurred by them in relation to the new trial ordered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stock & Stock has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
This appeal concerns a parenting decision for two children, aged eight and five (at the time of the trial in late 2023). On 14 June 2024, the trial judge made orders that provided the respondent mother with sole parental responsibility with respect to medical and educational issues, and that the appellant father spend time with the children for five nights per fortnight.
The evidence was heard over two days on 11 and 12 December 2023. On the last day of the hearing, the parties reached agreement on many issues, leaving for determination the questions of parental responsibility and whether the appellant would have seven rather than five nights per fortnight with the children (commencing late this year).
Whilst the final hearing concluded at 3.05 pm on the second day, there were no oral addresses. Instead, the parties provided written submissions prior to the end of January 2024. Judgment was delivered in June 2024, a little over six months after the evidence was heard.
GROUNDS OF APPEAL
The appellant filed an Amended Notice of Appeal on 27 September 2024 with six grounds of appeal. The appellant did not press Ground 3 from his original Notice of Appeal but added Ground 1A.
Ground 1
1. His Honour erred in the making of Order 6, in circumstances where no party sought such an Order, such provisions were incompatible with the terms of Order 15 which was made by Consent, and as such:
a. His Honour failed to give the parties' procedural fairness in respect of the proposed Order; and
b. His Honour failed to give any, or adequate reasons, to support the Order.
At the conclusion of the oral evidence, the parties provided the primary judge with a Minute of Order identifying many agreed orders and the terms of the orders sought by each party where there was a dispute. This Minute is set out verbatim in the judgment (at [9], pages 12 to 19). The Minute contained an order, which was made by the primary judge as Order 15, that provided for the times when the appellant would be able to attend at the children’s activities, as follows:
15. Unless otherwise invited in writing by the other parent, each parent will only attend any extracurricular activities that either child is involved in when the child/children are in that parent's care, except for the following:
(a)Both parents may attend such activities in the event that the children are involved in a special event in relation to such activities such as a sporting final or [extracurricular activity] performance.
(b) Both parents can attend [sports] games (not training) and outdoor sports games (not training) or other field sports so long as they do not approach within
10m30m of the other parent.The primary judge determined that it was also appropriate to make an order (Order 6 of the orders made) which provided that:
6. The Father be restrained by injunction from attending the children’s extra-curricular activities while the children are in the Mother’s care.
It is apparent that Orders 6 and 15 are inconsistent. By the end of the hearing it was clear from the draft Minute that Order 15 was agreed and there is no indication that the respondent sought orders in terms that would be reflected by Order 6. The issue was not addressed in the written submissions of the parties, all of which are quoted in their entirety at pages 49 to 66 of the judgment. The Independent Children's Lawyer noted, in the first paragraph of their submissions (quoted at [104]), that “the parties reached consent on [the] majority of orders” and focused their submissions on the remaining issues. The primary judge gave no indication that he would not make orders in the terms agreed by the parties.
The respondent argues that the court is not restricted by the parties’ proposals (see U v U (2002) 211 CLR 238 at [80]) and that Order 6 “did not significantly fall outside of the ambit of the parties’ respective proposals” (Respondent’s Summary of Argument filed 18 October 2024 at paragraph 5). The first of these propositions cannot be disputed: if the parties’ proposals do not meet the child’s best interests it would be illogical for a judge to be bound to choose one of the proposals. However, after agreement was reached as to the terms of the order on this topic, there was no longer an “ambit of the parties’ respective proposals” or “parameters of the submissions expressed or implicit at trial” (the phrase used by Fogarty J in Guthrie & Guthrie (1995) FLC 92-647 at 82,545): there was only an agreed form of order before the primary judge on the issue. Whilst the primary judge was not bound to make orders in the form agreed by the parties, it was incumbent upon his Honour to give the parties notice if he was considering making orders that differed from their agreement and to hear submissions on the issue (see, for example, KB & TC (sub nom Bolitho and Cohen) (2005) FLC 93-224 at [85]; Robertson & Sento [2009] FamCAFC 49 at [138]; Field & Kingston [2021] FedCFamC1A 66 at [21]; Fazil & Fazil [2024] FedCFamC1A 54 at [34]). The primary judge’s failure to do so could only have resulted in the appellant proceeding upon the basis that there was no longer an issue relating to the aspects of the dispute covered by the agreed orders.
Arguing that the evidence had closed by the time that the agreed order was provided to the primary judge does not resolve the procedural fairness problem as procedural fairness requires not only an opportunity to put relevant evidence before the court but also the opportunity to make submissions. As the appellant was denied the opportunity to make submissions on this issue, he was therefore denied procedural fairness. The failure was material as, given the respondent’s position in the orders sought, it deprived the appellant of a realistic possibility of a different outcome (see generally Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [2] and [85]).
The appellant has established appealable error with respect to Ground 1.
Ground 1A
1A. His Honour erred in making a sole parental responsibility order in favour of the mother for education when His Honour failed to give the parties procedural fairness in respect of the order His Honour proposed be made.
The parties had, in the joint Minute of Order provided at the end of the evidence in the hearing (referred to above), each proposed orders concerning parental responsibility. The appellant sought equal shared parental responsibility. The respondent sought equal shared parental responsibility with respect to education issues, together with a practical mechanism for resolving any deadlock: the respondent nominating two schools and the appellant choosing between them. Effectively, there was agreement to share parental responsibility with respect to education issues with the only dispute being whether a mechanism was necessary to resolve any deadlock.
Unfortunately, the primary judge did not put the parties on notice that his Honour was considering making orders for sole parental responsibility with respect to education issues, in favour of the respondent.
For the same reasons as discussed with respect to Ground 1, the primary judge failed to afford the appellant procedural fairness on this issue and that failure was material to the outcome. The appellant has therefore established appealable error with respect to Ground 1A.
Ground 2
2. His Honour erred in making a sole parental responsibility order in favour of the mother for education as follows:
a. His Honour failed to give any, or adequate reasons, for the making of a sole parental responsibility order in favour of the mother for Education where no party had sought it;
b. His Honour failed to give any or adequate weight to evidence of the parties being able to come to joint decisions in respect of the education decisions
Having regard to the findings with respect to Ground 1A it is unnecessary to address Ground 2.
Ground 5
5. His Honour erred in the making of Orders 3 and 5, without also making the entirety of the Orders sought by the mother (in particular, paragraphs 3-6 of her "post-hearing Minute") without giving procedural fairness, without giving adequate reasons and in a manner plainly unreasonable.
Ground 5 refers to the orders concerning parental responsibility with respect to medical issues. The appellant simply sought shared parental responsibility orders. The respondent sought orders for sole parental responsibility with respect to medical issues and a complex set of orders providing for the appellant to be able to attend the children’s medical appointments by electronic means and attend upon the children’s general practitioner.
The primary judge made orders that the respondent have sole parental responsibility with respect to medical issues (Order 1) together with complex orders concerning information sharing and consultation with the appellant (Orders 2 and 3) and an injunction prohibiting the appellant from contacting the medical practitioners (Order 5).
The effect of the orders made by the primary judge was for less involvement by the appellant in the decision making on these issues than those sought by the respondent in the post-hearing Minute as it removed his right to attend appointments by electronic means and removed his right to attend upon the children’s general practitioner.
Whilst Grounds 1 and 1A concerned consent positions with respect to various orders, this ground concerns disputed orders. However, the ambit of the dispute was between the appellant seeking shared parental responsibility and the respondent’s orders for the appellant’s involvement and consultation on medical issues. The orders made by the primary judge were beyond the ambit of the dispute between the parties, as they provided a far more restricted level of involvement for the appellant than that sought by the respondent. As with the previous grounds, there had been no notice to the appellant that the primary judge was considering more restrictive orders than those sought by the respondent and therefore there was a material failure to afford procedural fairness.
Whilst not the subject of a ground of appeal it is also notable that neither the orders as made, nor the respondent’s proposed orders on this issue, appears to provide for appropriate limits on the operation of an injunction against contacting medical practitioners (Order 5 of the orders as made). Order 3, as made by the primary judge, requires the respondent to authorise “treating medical practitioners to provide any information the [appellant] may require”. Despite the requirement to authorise medical practitioners to provide the appellant with information, Order 5 restrains the appellant from contacting the medical practitioners. It is difficult to see how the orders can function if the appellant is unable to contact the medical practitioners to obtain the information they will be authorised to provide to him.
For the same reasons as given above there was a failure to afford procedural fairness that was material to the outcome of the proceedings. The appellant has established appealable error with respect to Ground 5.
Ground 6
His Honour erred in providing no, or inadequate, reasons for finding, at [143] that the Mother's minute provided post pre-Hearing should be preferred, but thereafter departing from this Minute (in particular at Order 2) in further detriment to the father in a manner plainly unreasonable, and doing so in a manner which denied the parties procedural fairness.
Ground 6 concerns the order requiring the respondent to consult with the appellant before making “any major long-term decision”. The respondent’s proposed Order 2 included:
b) That within 7 days of the father receiving such notification, the father may comment to the mother or provide the children’s treating medical practitioners with the information he asserts is important or relevant for the treating medical practitioner(s) to take into account in formulating treatment for the children.
(Emphasis added)
The orders as made by the primary judge reduce the time for the appellant to respond from seven days to three days. The only reference to this point in the judgment is at [142] where his Honour says:
142 Before making any major, long-term decision concerning health or education regarding the children, the Mother’s “consultation Orders” sought should be made, save that the period for the Father to consider and make any comments is to be no more than 3 days, rather than the proposed 7 days.
In the context of family law disputes there are many minute details to orders that are often not the subject of specific submissions, with the parties leaving the details of the orders to the judge or registrar. The absence of reasons with respect to every minute detail of an order is not necessarily an appealable error. However, where detailed orders are provided by the parties, and the judge proposes to depart from the ambit of the orders sought, it is necessary to give the parties an opportunity to make submissions on the proposed changes, if the issue is not understood by the parties to be at large.
In this case the issues were not at large, rather the dispute had narrowed to a difference between the respondent’s proposals and the appellant’s proposals. The ambit of the dispute was that the orders would be no worse, from the respondent’s perspective, than that sought by the appellant and no worse for the appellant than those sought by the respondent (with regards to shared parental responsibility). The case highlights one of the risks of having only written submissions: The primary judge would have almost certainly raised these matters during any oral final addresses, providing the parties with sufficient notice and an opportunity to address the orders his Honour was contemplating.
There can be no doubt that submissions by the appellant would have been to the effect that the reduction in the time from seven days to three days would not allow him sufficient time to consider and respond to major medical decisions, and that such submission may well have been accepted.
The appellant has made out this ground of appeal on the basis of a failure to afford procedural fairness which was material to the outcome.
CONCLUSIONS WITH RESPECT TO PARENTAL RESPONSIBILITY ORDERS
The appellant has established that the primary judge fell into error by failing to afford the appellant procedural fairness with respect to the various orders concerning parental responsibility. Having regard to the extent to which the failure to afford procedural fairness has impacted the orders made, the orders with respect to parental responsibility must be set aside. I will therefore set aside Orders 1 to 5.
Ground 4
4. In rejecting the father's application for increases in the children's time with him and in making orders allocating aspects of parental responsibility to the mother solely, His Honour:
a. Made a material error of fact when determining that the father's equal time application would require the children to undertake more changeovers than in the 9-5 arrangement;
b. Made a series of findings not open on the evidence;
c. Acted upon wrong principle
d. Had regard to irrelevant considerations;
e. Failed to have regard to material considerations; and
f. The decision was so unreasonable and plainly unjust the Court would infer that an error in the exercise of discretion has in fact occurred
Setting aside the orders for parental responsibility results in the possibility of the presumption of equal shared responsibility applying and therefore that s 61DA of the Family Law Act 1975 (Cth) having been engaged, as the hearing occurred prior to the 2024 amendments coming into force. The reasons of the primary judge proceed on the basis that ss 61DA and 65DAA were not engaged when determining the other parenting orders. The effect of the orders that flow from the success of the other grounds of appeal necessarily results in the possibility of s 61DA being engaged and s 65DAA applying to the disputed parenting orders. This requires the other parenting orders to be set aside. It is therefore unnecessary to traverse the detailed submissions in support of this ground of appeal.
This particular difficulty would not arise on the current version of the Family Law Act following the 2024 amendments as the relevant provisions have been repealed.
CONCLUSIONS
As set out above, the orders with respect to parental responsibility (Orders 1 to 5) must be set aside. Order 6 must be set aside for the reasons given with respect to Ground 1. The impact of setting aside the parental responsibility orders is that the orders for living arrangements and spending time must also be set aside.
The primary judge did not formally dismiss the appellant’s application to vary Order 7 from Term 3 of this year, although it appears that was his Honour’s intention. Order 7 as made by his Honour is described as a consent order when the consent was only given by the appellant with respect to that order (which provided for the living arrangements for the children for nine nights per fortnight with the respondent) until Term 3 of this year. To the extent that the order remains in force past Term 3 of 2024 it is (on the reasons given by primary judge) an order of the court which (for the reasons set out above) must be set aside.
The appellant seeks that the issues be remitted for rehearing as he proposes to lead further evidence. In the circumstances that is the appropriate course in this case. The appellant should note that his success in this appeal may not be reflected in the rehearing as the judge on the rehearing will consider the matters afresh and may make orders that are even more favourable to the respondent than the orders that have been set aside.
As there cannot be a lacuna in parenting orders the appropriate course is to order that the various disputed orders be discharged on the first return date of the matter after the matter is remitted for re-hearing. Appropriate interim orders can be made by the judge or registrar assigned to hear the matter on that first court date following remittal.
The errors that have led to the appeal being allowed were errors of law by the primary judge that were not induced by the conduct of the parties. It is appropriate that they have certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal and the costs of a new trial.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 12 November 2024
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