Sujatha & Gutierrez
[2024] FedCFamC1A 223
•2 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sujatha & Gutierrez [2024] FedCFamC1A 223
Appeal from: Gutierrez & Sujatha [2024] FedCFamC1F 421 Appeal number: NAA 198 of 2024 File number: ADC 1047 of 2022 Judgment of: ALDRIDGE, CARTER & CURRAN JJ Date of judgment: 2 December 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother and father appeal from final parenting orders permitting the mother to relocate to the USA with the children after 1 June 2026 subject to the children’s wishes –– Where the orders do not specify when and how the wishes are to be ascertained – Where the operation of the orders is a divestiture of judicial power – Where the orders are not prescriptive and enforceable – Appeal allowed – Matter remitted for rehearing – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth) r 13.39
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Boyle & Zahur and Anor (2017) FLC 93-814; [2017] FamCAFC 263
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277
Guthrie and Guthrie (1995) FLC 92-647; [1995] FamCA 134
Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85
Paciullo & Paciullo [2020] FamCAFC 169
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3
Surridge & Surridge (2017) FLC 93-757; [2017] FamCAFC 10
Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs: 62 Date of hearing: 31 October 2024 Place: Heard in Melbourne, delivered in Sydney Counsel for the Appellant / Cross-Respondent: Ms Robertson-Clark SC with Ms Betro Solicitor for the Appellant / Cross-Respondent: Resolve Divorce Lawyers Counsel for the Respondent / Cross-Appellant: Ms Tiernan Solicitor for the Respondent / Cross-Appellant: Andersons Solicitors ORDERS
NAA 198 of 2024
ADC 1047 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SUJATHA
Appellant / Cross-Respondent
AND: MR GUTIERREZ
Respondent / Cross-Appellant
ORDER MADE BY:
ALDRIDGE, CARTER & CURRAN JJ
DATE OF ORDER:
2 DECEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The cross-appeal is allowed.
3.The orders made by the primary judge on 28 June 2024 are set aside, other than Order 3 which is set aside upon the first return date of the remitted matter.
4.The proceedings are remitted to the Federal Circuit and Family Court of Australia (Division 1) for rehearing by a judge, other than the primary judge, to determine the parties’ parenting applications.
5.The cross-appellant’s application for costs is dismissed.
6.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
7.The cross-appellant is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).
8.The appellant and cross-appellant are respectively granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Sujatha & Gutierrez has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, CARTER & CURRAN JJ:
INTRODUCTION
On 28 June 2024 final parenting orders were made in respect of the parties’ two children, X and Y. The parties were to have equal shared parental responsibility for the children, who were to live primarily with the mother (“the appellant”). Importantly, the primary judge through Order 2 permitted the appellant to relocate to the United States of America (“USA”) with the children. However, relocation was not to occur before 1 June 2026 and was “subject to the wishes of the children (or each of them)”.
By an Amended Notice of Appeal filed on 4 October 2024 the appellant appeals Orders 1, 2, 4, 9.1, 9.2, 14 and 16.3. She seeks this Court re-exercise the primary judge’s discretion. By an Amended Notice of Cross-Appeal filed on 4 October 2024, the father (“the cross-appellant”) appeals Orders 2, 3, 4, 5, 6 and 9 and seeks the matter be remitted for rehearing.
The parties each contend, for reasons which overlap, that the primary judge erred in the making of Order 2. Both say that Order 2 is not enforceable; they challenge the adequacy of the primary judge’s reasons and say that the primary judge did not appropriately weigh the evidence. The cross-appellant contended that the primary judge delegated decision making responsibility to the children and failed to afford procedural fairness to the parties in making Order 2. The parties were unable to agree on the orders that should be made if the appeal was allowed. The appellant suggested amendment of Order 2 to permit immediate relocation and the cross-appellant proposed that the order be varied so as to prevent any such move.
These reasons explain why the primary judge erred in the making of Order 2 and why it is necessary to remit the matter for rehearing.
BACKGROUND
Both parties were born in the USA. The parties commenced cohabitation in around August 2001 and were married in the USA in mid-2003. Final separation occurred on 10 January 2018. There are two children to the relationship, X who is now aged 14 and Y, aged 9. Both children were born in the USA.
The parties were granted Australian visas in early 2018, following final separation. The cross-appellant arrived in Australia in late 2019 and obtained full-time employment approximately one month later. The appellant and the children arrived in Australia in early 2020 and moved into the cross-appellant’s rental property.
The children commenced school in Australia in early 2020. The parties remained in Australia throughout the COVID-19 pandemic, but their co-parenting relationship deteriorated, and the appellant moved out of the cross-appellant’s property in June 2021.
In January 2022, the appellant informed the cross-appellant that she intended to return to the USA with the children. The cross-appellant filed an Initiating Application on 11 March 2022, seeking interlocutory and final parenting orders. The interlocutory application sought to restrain the appellant from removing the children from Australia and to place the children on the Family Law Watchlist.
THE APPEAL AND CROSS-APPEAL
There were 16 challenges, including sub-grounds, raised by the appellant in respect of the primary judge’s orders. There were six grounds of challenge raised by the cross-appellant. There was overlap in some, but not all grounds of appeal.
We only need to deal with the challenge to Order 2 because the matter is to be returned for rehearing and it is not appropriate to express views on matters of evidence which ultimately will be determined by the next judge who hears the matter. Furthermore, judicial economy persuades us that it is not necessary to determine each remaining ground of challenge, where the issues raised in respect of Order 2 are dispositive of the appeal (see Kiefel CJ, Gageler & Keane JJ in Boensch v Pascoe (2019) 268 CLR 593 at [7]).
Complaints in respect of Order 2
Order 2 is as follows:
2.Subject to the wishes of the children (or each of them) and no sooner than 1 June 2026 and on not less than three (3) months written notice, Ms Sujatha ( “the mother “), be at liberty to relocate with the children to City B, State C United States of America ( “the USA “) on the following conditions:
2.1That as from the date of this order, the mother shall do all necessary acts and things to inform Mr Gutierrez ( “the father “) and keep him informed in writing in relation to the following:
2.1.1 her projected departure date with the children;
2.1.2any arrangements made by her in relation to the children’s school enrolments; and
2.1.3details of the children’s residential address, contact phone number and email address in City B, State C.
(Emphasis added)
The appeal focusses on the emphasised words.
Were the parties denied procedural fairness?
Any grounds of appeal going to procedural fairness, are challenges to the administration of justice and should be dealt with first, before the other discrete grounds (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [2], [117] and [172]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]), as a failure to afford procedural fairness will amount to an error of law (see Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321).
In Guthrie and Guthrie (1995) FLC 92-647 parenting orders made by the primary judge, which fell outside of either parent’s proposals, were considered procedurally unfair on appeal, as the parties were not afforded the opportunity to make submissions about these alternate orders.
The decision of the primary judge to make relocation orders that were subject to the children’s wishes, fell outside both parent’s proposals. The appellant’s primary position at trial was for her and the children to relocate to the USA on or before 25 April 2024. The cross-appellant’s primary position was in opposition of relocation and for the children to remain in Australia. The cross-appellant’s alternate position, only to be considered if relocation was granted, was that relocation should not occur until 1 June 2026. Neither party proposed that relocation should be subject to the wishes of the children or that the children be split, which is an inherent possibility under the orders.
There was no contemplation by any party or any indication by the primary judge that the wishes of the children in relation to the potential relocation could become determinative.
The primary judge did not afford the parties the opportunity to make submissions on these matters and they were, accordingly, denied procedural fairness.
Does Order 2 delegate decision-making responsibility to the children?
It is uncontroversial that judicial authority cannot be delegated to third parties. The Full Court in Lainhart & Ellinson (2023) FLC 94-166 (“Lainhart”) found that orders made must be “prescriptive and enforceable” and that an order will be defective if it divests judicial power onto a third party to determine the proper future parenting arrangements for a child (at [28]).
In appropriate cases parenting orders are valid when made subject to the wishes of children. In such cases the Court may, in giving weight to the maturity and often express wishes of children, make orders subject to the children’s wishes so as to provide children autonomy in respect of some decisions, such as the time that they spend with each parent. These types of orders are valid and enforceable as a determination has been made as to the justiciable issue that time will be spent, and it is the implementation of that time that is to be subject to the wishes.
In this case the justiciable dispute is the determination of the orders that are in the best interests of the children, including whether it is in the best interests of the children for the appellant to be permitted to relocate their residence to the USA.
The primary judge cited the family report writer’s evidence at [153] and again at [234] that “[i]t is not the responsibility of children to guide decisions about relocation, nor do they have the developmental capacity to consider all the relevant factors, but in any case, neither [X] nor [Y] expressed a strong view either way”. The primary judge referred to the opinion of the family report writer’s evidence at [282]: “At present, the evidence of the report writer was such that less weight should be given to any views expressed by the children at this stage of their development. As they get older, their views may well change”.
Despite this, the primary judge by Order 2 delegated the decision of relocation to the children, albeit at a time in the future. This divested judicial power to the children to determine this issue at the future time nominated and is therefore an error.
Is the order capable of implementation?
The primary judge said at [284]:
Whilst not suggesting that the litigation should be ongoing, there is likely to be a significant advantage to the children of having the option and opportunity to elect to return to the U.S.A. It is likely that as of 1 June 2026 the children will be spending time with each of the parties upon their terms and as such it would be anticipated that the parties would facilitate the views of the children.
The primary judge anticipated that the parties would implement this order by facilitating the views of the children. However, the mechanism for implementation is not specified, other than that it in some way falls to the parties to “facilitate the views”.
The order presumes that the wishes of one or both children, expressed to an unknown party at a future time, will be dispositive of the issue as to whether the children (or possibly either of them) should be permitted to relocate to live in the USA. On one reading, the order empowers the children (or either of them) to determine whether or not their mother is permitted to relocate their residence to live in the USA.
The order as made:
(a)fails to grapple with the prospect of only one child expressing the wish to relocate and what that might mean for the children or the possibility that the children might not wish to make the decision;
(b)provides no clarity as to whether the order is intended to be time limited as it is unclear from the order or from the reasons whether it was intended that relocation occur at any time after 1 June 2026 if at a time after that date one or the other child indicates such a wish;
(c)provides no mechanism for ascertaining the wishes.
There can be no doubt that more litigation will ensue if the cross-appellant disputes the contention that a wish has been expressed and should be acted on.
All of these questions in respect of what the orders mean and how and when they are intended to be implemented are incapable of being satisfactorily answered. The order is not capable of being implemented given there are no mechanisms to give it effect. The order is not prescriptive and enforceable as identified in Lainhart. This is a legal error.
RE-EXERCISE OR REMIT
In hearing an appeal, the Court has the power under s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to make orders that affirm, reverse or vary the judgment appealed, or make orders that it sees as appropriate.
It is a matter of discretion whether to re-exercise the discretion of the primary judge, or remit the matter for a rehearing, on either limited matters or for a complete retrial.
In Marcin & Marcin (2020) FLC 93-956, the Full Court identified that a rehearing is an order of last resort and “an exasperating outcome for both parties” (at [161]–[162]). However, it is general practice that if there is an error of law established on appeal, as is the case in this matter, it will be appropriate for the matter to be remitted for rehearing (see Lane & Nichols (2016) FLC 93-750).
The potential re-exercise of discretion by the appellate court is in the nature of a rehearing based on evidence as at the date of that rehearing. In those circumstances, the parties must be given an opportunity to adduce fresh evidence (see Allesch v Maunz (2000) 203 CLR 172 at [31] (“Allesch”)). Where that evidence is likely to be controversial, it is common for the “appellate court to remit the matter for rehearing rather than, itself, exercise the discretion in question” (Allesch at [30]).
The appeal Court is already in a position of disadvantage to the primary judge, having not had the advantage of seeing and hearing all the evidence presented by the parties at the trial (see State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at [90] per Kirby J). The Court needs to be cautious in circumstances where there are assertions that the primary judge has failed to deal with the evidence appropriately. Each party complained within their respective grounds of appeal that this is the case.
Neither party availed themself of the opportunity to produce further evidence pursuant to r 13.39 of the Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth) (“the Rules”), to remedy the identified deficiencies in the evidence nor to adduce evidence as to matters that might have changed since the trial.
The cross-appellant said the post-trial evidence would be controversial and required updating. Factual disputes over significant issues, requiring resolution by cross-examination of witnesses, are ill-suited to hearing before the Full Court (Surridge & Surridge (2017) FLC 93-757 at [89]; Boyle & Zahur and Anor (2017) FLC 93-814 at [115]).
The Full Court considered the question as to whether to remit or re-exercise in the matter of Yarrow & Yarrow [2022] FedCFamC1A 135 (“Yarrow”), in which it was observed at [61]:
…It is well established that an appeal court is entitled to consider and decide the matter for itself, if it can do so. In Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 the Court of Appeal said at 444:
…An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: NSW Insurance Ministerial Corporation (formerly GIO of New South Wales) v Mesiti (Court of Appeal, 1 December 1994, unreported).
(Emphasis in original)
In Paciullo & Paciullo [2020] FamCAFC 169, the Full Court said at [91]:
As the Full Court recently explained in Marcin & Marcin (2020) FLC 93-956 at [160]-[170], provided neither party wants to adduce contested evidence about current circumstances or material changes since the appealed orders were made, discretion may be re-exercised and substitute orders made by this Court to rectify simple mathematical error.
The appellant contended that there is no error in the finding that she should be permitted to relocate with the children and that “the evidence points to that needing to occur sooner rather than later”. She contended that the errors made by the primary judge in providing for the relocation to be subject to the wishes of the children or each of them and in delaying the relocation can simply be dealt with as part of a re-exercise of the Court’s discretion.
Further, the appellant contended that as the appeal had been listed reasonably quickly, the evidence is not “stale” and as neither party had made an application for the Court to receive fresh evidence and the circumstances of the parties are largely the same, that the Court is in a position to re-exercise.
While she sought the Court re-exercise its discretion to make orders as set out in her Amended Notice of Appeal, the appellant maintained her challenge to various orders on the basis that they were against the weight of the evidence and were plainly wrong. For example, she maintained her weight and reasons complaint in respect of the determination as to orders for parental responsibility. This lends against a re-exercise of discretion by this Court.
The cross-appellant contended that:
Yarrow (supra) can be distinguished from this case…The [primary] judge had made findings of fact that were not challenged by either party. The evidence before the Court in that case being reviewed was to financial matters, established on the papers and not so subject to the vicissitudes of examination of credit, how evidence was given in the box, and the nature of cross examination, as in parenting matters such as this one.
The children were interviewed in January 2024 before the commencement of the school year. By the time of the appeal the 2024 school year is almost completed. The cross-appellant contended that the school year that has passed is a significant window of time where the children will have progressed, developed and matured, necessitating a fresh report.
Additionally, it was contended that there has been further material change which mandates fresh evidence being called before a determination of the best interests of the children can be made, in that the primary judge fundamentally changed the way the children are spending time with their parents. The orders made by the primary judge consolidated the time the children now spend with each party such that now there is one non-school changeover each fortnight and previously there were eight, in circumstances of heightened conflict between the parents.
It is likely that relevant facts and circumstances have changed between the date of trial and the determination of the appeal. A significant period of time has passed in the children’s lives since they were interviewed by the family report writer and since the trial. The primary judge made orders altering the spend time with arrangements pursuant to Order 3. These changed arrangements have now been in place since June 2024. There is no evidence before this Court of the impact of the new arrangements.
Given the significant areas of factual dispute, the absence of current evidence before the Court and the time that has passed since the interview with the children, we agree that to re-exercise the Court’s discretion risks the decision not being sound if the Court does not have appropriate evidence before it (see Yarrow at [64]).
The proceedings will be remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 1), other than the primary judge.
Neither the appellant or the cross-appellant took issue with the existing order which provides for the current live with and spend time arrangements (Order 3). That order will remain in force pending the rehearing.
COSTS
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) sets out the statutory framework for the exercise of the discretion in respect of costs. The starting point is that each party will bear their own costs, unless the circumstances justify otherwise, having regard to the considerations set out at s 117(2A) of the Act.
The costs applications
In oral submissions, the appellant withdrew her costs application and conceded that a costs certificate would be appropriate.
The Amended Notice of Cross-Appeal sought orders that both parties be granted a costs certificate, pursuant to s 9 and s 6 respectively, of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), in relation to the costs incurred for the appeal. The cross-appellant also sought the Court make an order pursuant to s 8 of the Costs Act, for certificates in relation to the costs to be incurred by the appellant and respondent on the rehearing.
However, in his Summary of Argument in Reply, the cross-appellant sought costs on an indemnity basis and, in the alternative, that he be granted a costs certificate pursuant to s 6 of the Costs Act.
The order for indemnity costs was not pressed, but the cross-appellant did seek an order that the appellant pay his costs calculated in accordance with the scale set out in Schedule 3 of the Rules.
In support of his costs application the cross-appellant relied on an offer by letter dated 19 September 2024 which became Exhibit 1 in the appeal. This letter acknowledged that both the Amended Notice of Appeal and Amended Notice of Cross-Appeal had identified error in Order 2 and stated that it “appears inevitable that this matter will be listed for rehearing, and indeed this is what both parties are seeking”. In the letter, the cross-appellant proposed that:
1.There be a mutual concession of the parties’ respective appeals, to avoid each party incurring the costs of preparing for and attending at the Appeal Hearing.
2.The parties jointly request that the Full Court:
a. Relist this matter for rehearing at the next available date; and
b. Make orders for mutual costs certificates, for both the costs of the appeal and the fresh trial.
…
Should your client reject our client’s proposal (as set out herein) and the Full Court deem it appropriate to re-list this matter for rehearing, we put your client on notice that our client intends to seek an Order that your client pay his legal costs of and incidental to the appeal.
On 2 October 2024 the appellant rejected the cross-appellant’s proposal advising she sought the Full Court exercise its discretion, as opposed to the matter being remitted for rehearing.
There was no response to this letter and importantly no party proposed limiting the question on appeal to the contest of whether the Full Court should exercise its discretion or remit for rehearing.
The appellant submitted that it was not an “inevitability” that the matter was to be remitted and contended that this is a matter where the Court could choose to re-exercise its discretion based on the evidence currently before it.
That neither party proposed to limit the matters to be determined to the identified area of contest (that is, not whether the appeal should succeed but whether the matter should be remitted) tends against the costs application.
The evidence that the appellant has limited employment in Australia and is currently in a situation of financial stress, is not contentious. The evidence supports the finding that the appellant is in constrained financial circumstances, although there was no updating evidence in this regard.
There was limited evidence as to the cross-appellant’s financial circumstances and no submissions were made by his counsel as to this consideration.
On balance, and in considering both the terms of the offer and both parties’ financial circumstances we decline to make an order that the appellant pay the cross-appellant’s costs.
Application for costs certificate
Given the appeal will succeed due to legal error raised by both parties, the parties are granted costs certificates in accordance with s 6 and s 9 of the Costs Act in respect of the appeal.
There should also be certificates under s 8 of the Costs Act in respect of the new trial.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Carter & Curran. Associate:
Dated: 2 December 2024
0
11
4