Tobey and Rezek and Ors

Case •

[2011] FamCAFC 86

•

8 April 2011

FAMILY COURT OF AUSTRALIA

TOBEY & REZEK AND ORS [2011] FamCAFC 86
FAMILY LAW - APPEAL – Appeal against interim orders made by a Federal Magistrate in parenting proceedings between the father, the mother and the maternal grandmother – No ground of appeal successfully made out – Whether, even if the appellant had successfully established appealable error on the part of the Federal Magistrate, the appeal should nevertheless be dismissed by reason of an absence of practical utility in allowing the father’s appeal and ordering a further interim hearing, in circumstances where the final hearing will take place in a short period of time and no interim hearing would be likely to take place before that time – Appeal dismissed.
Family Law Act 1975 (Cth) ss 60CC, 65DAA
Reece & Reece [2011] FamCAFC 24
APPELLANT: Mr Tobey
FIRST RESPONDENT: Ms Rezek
SECOND RESPONDENT: Mrs F
INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers
FILE NUMBER: CAC 740 of 2008
APPEAL NUMBER: EAA 129 of 2010
DATE DELIVERED: 8 April 2011
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Coleman J
HEARING DATE: 21 March 2011
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 9 September 2010
LOWER COURT MNC: [2010] FMCAfam 1466

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Amanda Tonkin
SOLICITOR FOR THE APPELLANT: Capon Hubert
COUNSEL FOR THE FIRST RESPONDENT: Ms Burgess
SOLICITOR FOR THE FIRST RESPONDENT: Legal Aid ACT
SOLICITOR FOR THE SECOND RESPONDENT: Farrar Gesini & Dunn
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gill
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Andrea Evans
Evans Family Lawyers

Orders

  1. That the appeal be dismissed.

  2. That the father pay the costs of the first respondent, the second respondent and the ICL as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment under the pseudonym Tobey & Rezek and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA 129 of 2010
File Number: CAC 740 of 2008

Mr Tobey

Appellant

And

Ms Rezek

First Respondent/Mother

And

Mrs F

Second Respondent/Grandmother

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

  1. By Amended Notice of Appeal filed 3 March 2011 Mr Tobey (“the father”) appealed against interim orders made in parenting proceedings between himself, Ms Rezek (“the mother”) and Mrs F (“the maternal grandmother”) on 9 September 2010 in the Federal Magistrates Court at Canberra.

  2. The Orders of the learned Federal Magistrate essentially provided that the child X, born in 2005, live with the maternal grandmother and spend time with each of his parents from after school on Friday to Sunday afternoon in alternate weeks, pending a final hearing of the proceedings.

  3. The mother resisted the appeal by the father and sought to maintain the Federal Magistrate’s orders. So did the maternal grandmother. Written submissions on behalf of the maternal grandmother were filed on 18 March 2011. For reasons which do not assume significance, the maternal grandmother was not represented at the hearing of the appeal. The mother was represented by Counsel at the hearing of the appeal, who adopted the submissions of the maternal grandmother, and made brief oral submissions in addition to them.

  4. The ICL, who had participated in the proceedings before the learned Federal Magistrate, filed written submissions, the general effect of which was that the learned Federal Magistrate had erred but that, in the circumstances referred to in the submissions, the appeal, being “futile in the sense that no remedy is available”, the appeal should be dismissed.

  5. As will be seen, two issues arise for consideration. They are whether the appellant has demonstrated appealable error on the part of the Federal Magistrate and, if so, whether the appeal should nevertheless be dismissed.

  6. As the orders of the Federal Magistrate of 9 September 2010 record, a five day final hearing of the proceedings was proposed for 18 April 2011. Regrettably, that did not eventuate. The proceedings are now fixed for hearing for five days before the Federal Magistrates Court commencing 23 May 2011, about eight weeks from the date upon which the appeal against the interim orders of the Federal Magistrates Court was listed for hearing.

  7. Although, as his Counsel firmly asserted, the appellant has absolutely no confidence in the Federal Magistrates Court actually hearing the proceedings on a final basis in the week commencing 23 May 2011, this Court proceeds, as it is entitled to, on the basis that the proceedings will in fact then be heard, particularly having regard to the fact that the earlier dates for trial could not be retained.

  8. The position in which this Court is placed is regrettably not new. There appears to be an unfortunate tendency to maintain appeals against interim parenting orders, notwithstanding that final trial dates for the parenting proceedings have been allocated and that, if the appeal against the interlocutory orders is successful, the only relief this Court could grant would be to direct a rehearing of interim parenting proceedings in circumstances where that further interim hearing would be likely to take place after the final hearing of the proceedings.

  9. As the transcript of the hearing in this Court would confirm, at the outset the Court called upon Counsel for the appellant to explain why permitting her client’s appeal to be heard would not constitute an abuse of the Court’s processes, as the hearing of the appeal and any outcome resulting from doing so could have no possible practical utility. Not without considerable misgivings, the Court has entertained the father’s appeal and will now give judgment with respect to it.

  10. As noted earlier, the parenting proceedings before the learned Federal Magistrate related to the child X who was born in February 2005. The father and mother are the child’s natural parents. The other party to the proceedings is the child’s maternal grandmother. The parties had been engaged in litigation with respect to parenting issues since May 2008. That litigation has resulted in approximately nineteen sets of court orders.

  11. The proceedings before the learned Federal Magistrate on 17 August 2010 concerned the competing applications of the father, the mother and, albeit through the Chief Executive of the Office for Children, Youth and Family Support (“the Chief Executive”), the maternal grandmother. The issue was the time which the child should spend with each of the parents and the maternal grandmother.

  12. Prior to 28 May 2010, the children had spent approximately nine days in each fourteen day period with the mother, and five days with the father pursuant to orders which were then in force and effect.

  13. As a result of the mother’s hospitalisation on or about 28 May 2010, on or about 4 June 2010 the learned Federal Magistrate made interlocutory orders providing that the child X spend time with his father nine nights in each fortnight period, and with the maternal grandmother for five nights during such period.

  14. Subsequently, on 6 August 2010 orders were made varying the orders of 4 June 2010. In what circumstances that occurred is unclear. The orders of 6 August 2010 provided that the child spend time with the mother from after school Friday until 4pm Saturday each week and from after school until 7pm each Wednesday, provided that the mother spend such time at the home of Ms A.

  15. The parties were again before the Federal Magistrates Court on 29 July 2010 at which time a report from a Family Consultant, Ms W, was apparently released [see Appeal Book page 136], and the matter was ultimately adjourned indefinitely. No formal orders appear to have been made on that occasion although the orders of 6 August 2010 appear to have been the subject of substantial agreement between the parties.

  16. On 9 September 2010, after what was clearly a circumvented hearing on 17 August 2010, during which no witness was sought to be cross-examined, the learned Federal Magistrate delivered the judgment which gave rise to the father’s appeal. As is not in doubt, the effect of the interlocutory orders made by the learned Federal Magistrate was that the child X would primarily reside with his maternal grandmother, and essentially spend each alternate weekend with each of his parents.

The Grounds of Appeal

Ground 1

  1. Ground 1 of the Amended Notice of Appeal provided:

    1.The learned Federal Magistrate erred in law in acting upon a wrong principle and/or in failing to properly exercise his discretion in the following manner:-

    (a)He failed to determine the appellant’s recovery order application.

    (b)Without notice to the appellant, he proceeded to hear oral applications for a variation of interim residence.

  2. As is apparent from its terms, this complaint raised two issues. The first, with respect to the submissions of Counsel for the father, is an issue which can be simply disposed of. Having concluded that the parenting issue should be determined in the way he did, the learned Federal Magistrate had no occasion to consider the father’s recovery order application.

  3. If his Honour erred, and appellate intervention is enlivened, this Court could do no more than remit the parenting proceedings for a further interim hearing, and would most certainly not be in any position to determine a recovery order application. The father’s recovery order application may or may not require determination in the course of that exercise. If the challenge to the Federal Magistrate’s decision in relation to interim parenting orders fails, any challenge in relation to the father’s recovery order application before the learned Federal Magistrate could not change anything. Either way, this complaint lacks merit.

  4. The complaint that the learned Federal Magistrate proceeded to hear oral applications for a variation of interim residence without notice to the father is unsustainable. It is clear that the father, who elected to represent himself on 17 August 2010, raised the very question of changes to the parenting orders [Appeal Book page 323], albeit not in ways which found favour with the learned Federal Magistrate.

  5. As the transcript of 17 August 2010 makes clear, the father referred extensively, prior to outlining his position, to complaints he made about the current parenting arrangements.

  6. For reasons which do not matter, Counsel for the Chief Executive appeared after the interlocutory hearing had been in process for some time. The record suggests that, for the bulk of that time, the father had been addressing the learned Federal Magistrate.

  7. Counsel for the maternal grandmother, erroneously referred to at the commencement of the coversheet of the transcript of 17 August 2010 as Counsel for the “3rd party intervener”, when invited to articulate her client’s position, indicated that the maternal grandmother would be “willing to have [the child X] continue to live with her until such time as the court sees that it’s no longer necessary”.

  8. As is also clear, Counsel for the ICL supported the position of the father, in accordance with the orders of 6 August 2010, which provided that the child X primarily reside with him on an interlocutory basis.

  9. The learned Federal Magistrate traversed with the various parties “the specifics” of the approaches which had by that time been articulated. During the course of so doing, Counsel for the ICL articulated matters supportive of the father’s position, at least in relation to primary care.

  10. As the transcript records, being aware of the orders being sought on behalf of the maternal grandmother, the father expressed that “having heard the submissions, I’m more than happy to start negotiating with myself and to show the court my reasonableness in this matter” after which, as is apparent from the passages that follow, the father clearly engaged with the issue of where the child should primarily reside on an interim basis.

  11. Thereafter, as is also clear from the transcript of the proceedings, the focus of enquiry of all parties addressing the learned Federal Magistrate was clearly with respect to preparation for the final hearing of the proceedings, dates for which had previously been allocated, albeit those dates were later put back by approximately one month.

  12. In what way the father was disadvantaged by the course which events took on 17 August 2010 has not been demonstrated. The transcript of 17 August 2010 reveals that, although not legally trained, the father, as could perhaps be expected having regard to his profession, was both forthright and articulate in the submissions he made to the learned Federal Magistrate. It has not been demonstrated that the father was in anyway prejudiced by any absence of notice of an application to vary the interim parenting orders of 6 August 2010.

Ground 2

  1. Ground 2 provided:-

    2.The learned Federal Magistrate’s exercise of discretion miscarried:-

    (a)In finding that continuing to live with [Mrs F] was not a major change in [the child X]’s life;

    (b)In failing to address the statutory provisions under section 60CC as to what constituted [the child X]’s best interests;

    (c)In failing to give any adequate reasons why it was in [the child X]’s best interests that he not continue to live with his father;

    (d)In failing to make any adequate findings of fact to support a change of residence; and

    (e)In failing to address the likely impact on the child of separation from his father.

    (e)In failing to address the likely impact on the child of separation from his father.

  2. The crux of this challenge was articulated as follows by Counsel for the father:

    13.The primary reason given for making the Orders dated 9th September 2010 (in relation to proceedings before the Court on 17th August 2010) was “to militate against major change in [the child X]’s life.” As at 17th August 2010 [the child X] had been in the full time care of his father following the admission of his mother in May 2010 to the Psychiatric Services Unit of [the Hospital] on a psychiatric treatment order. He had spent very little time with the intervener. His Honour was in error in finding that his Order would not be a major change for [the child X]. [Appellant’s Summary of Argument, page 5, par 13].

  3. The critical paragraph of the reasons for judgment of the learned Federal Magistrate provided: -

    27.On the basis of that precautionary principle, which militates against major change in [the child X]’s life – particularly his living situation – in my view it is in [the child X]’s best interest to continue to live with [Mrs F]. As I have previously mentioned, her relationship with [the child X] and [the child Y], and the reasons for her involvement therein, are set out in my judgment of 4th June 2010. I need not, and will not, repeat what was previously said there. [Appeal Book page 28, par 27].

  4. That paragraph however must be read subject to a number of comments made by his Honour in earlier paragraphs, such as paragraph 26 of his judgment where his Honour said: -

    26.While no adjournment application is before the Court in this matter, from this latter case I seek to draw, for the benefit of the Court and for the parties, and especially for the child’s best interests, the singular importance of having the benefit of the best evidence available to it before making any significant parenting orders.  That “best evidence” will come from the expert’s report in the not too distant future.  From this also follows what might be described, as part of a general precautionary principle, that in the absence of that report, the Court should proceed cautiously so as not to make too many changes in [the child X]’s already long-running, rather turbulent life as he continues to be embroiled in the ceaseless conflict between his parents. [Appeal Book page 27, par 26].

  5. It cannot be successfully suggested that the learned Federal Magistrate was unaware of the history of change in the life of the child X. Although not referred to by his Counsel in this Court, the father’s own recent behaviour was not readily reconcilable with the stability he asserted that he could provide for the child. This Court has not been referred to any evidence which establishes that it was not reasonably open to the learned Federal Magistrate to conclude as he did in paragraph 27 of his judgment. There may have been other conclusions open to his Honour, but that is not the test for present purposes.

  6. In the context of an interlocutory judgment, the reasons challenges (Grounds 2 (c) and (d)) can be rejected by reference to the paragraphs to which reference has been made and others, including paragraphs 28, 29 and 30 of his Honour’s judgment. The learned Federal Magistrate’s consideration of the best interests of the child X in those paragraphs also, in this Court’s view, denies the father the prospect of success with Ground 2(e).

  7. The challenge contained in Ground 2(b), which was agitated in some detail, must be seen in context. At a number of places in his judgment, it was considered by the learned Federal Magistrate “essential to have regard to the background of the current dispute set out in my earlier judgment” of 4 June 2006, “which includes details surrounding the Mother’s hospitalisation on psychiatric grounds, and the consequent intervention by the third party, [Mrs F], who is [the child X]’s sister’s Grandmother”.

  8. Notwithstanding that reference, and his Honour’s subsequent and sensible suggestion that he was not going to repeat what he had barely two months earlier found in a judgment, which did not give rise to an appeal by anyone, those reasons for judgment were not included in the Appeal Book. The Court has, at the request of Counsel for the father, read his Honour’s earlier judgment. It is not without significance that no part of the appeal to this Court involved any challenge to the accuracy of any finding of fact or any criticism of anything included in his Honour’s earlier judgment.

  9. His Honour referred in his judgment under challenge to section 60CC and section 65DAA of the Act before proceeding to a “consideration” of the evidence. It is not suggested that the learned Federal Magistrate’s exposition of relevant legal principles was erroneous or deficient.

  10. His Honour reiterated (paragraph 15) that he would “not repeat” what was set out “at some length and with some particularity” in his judgment of 4 June 2010. In circumstances such as the present, where there had been, since June, ongoing interlocutory skirmishes between the parties, it is unrealistic and unnecessary, in a judgment such as that of 9 September 2010, for a Federal Magistrate to refer again to matters which have been uncontroversially found and recorded in an earlier judgment.

  11. This Court is not left in any doubt as to why the learned the learned Federal Magistrate concluded as he did on 9 September 2010. Apart from his Honour’s specific reasons for the decision he then made, it is clear that it was made against a background of parenting litigation over a number of years, a future final hearing of five days duration and comprehensive preparation for it, and a regime of time spent whereby the child X would spend time with both his parents during that period.

  12. The learned Federal Magistrate clearly recognised the limitations upon the proceedings which he was required to determine. His Honour referred in some detail to them in his judgment and during the course of debate with Counsel at the hearing. This Court is not persuaded that, in the circumstances as they have been revealed, the learned Federal Magistrate failed to address any of the statutory provisions of section 60CC. Indeed, the ability of Counsel for the father to agitate challenges to his Honour’s exercise of discretion is clearly, when analysed, predicated on his Honour having done precisely what this challenge asserts that he failed to do.

  1. For reasons the Court has suggested, this complaint cannot be advanced by reference to the recovery order application of the father.

Ground 3

  1. Ground 3 provided:

    3.The failure of the learned Federal Magistrate to observe the fundamental rules of natural justice and procedural fairness deprived the appellant of a fair trial and resulted in a miscarriage of justice. In this respect the Federal Magistrate:-

    (a)Failed to apply the guidelines in Re F: Litigants in Person Guidelines (2001) FLC 93-072;

    (b)Failed to indicate what (if any) evidence he relied on in determining the matter;

    (c)Treated submissions from the Bar table as evidence;

    (d)Failed to rule on the admissibility of evidence over objection by the appellant;

    (d)Took into account irrelevant considerations;

    (e)Made material errors of fact including:

    (i)That there were competing applications from [Mr Tobey] and [Ms Rezek] before him;

    (ii)That the father sought an order for sole parental responsibility; and

    (iii)That [Ms Rezek’s] orders sought were supported by the Chief Executive.

  2. With respect to the balance of the challenge, it was submitted:

    18.…At no time did the Court indicate what (if any) material was before the Court nor did the Court indicate in the judgment what (if any) material it had relied on in reaching its decision. Without notice to the appellant, each of the parties was invited to make an oral application regarding a variation of interim orders. No opportunity was afforded the appellant to properly consider these applications nor was any evidence filed in support of the various applications. On the contrary the Court received evidence from the Bar Table and appears to have relied on that evidence. [Appellant’s Summary of Argument, page 7, par 18].

  3. Regrettably, the reports and/or letters complained of in this ground have not been placed before the Court. This Court is thus in no position to conclude that they were inadmissible. The complaint was amplified in paragraphs 19 and 20 of the submissions. The transcript of the proceedings does not in this Court’s view establish that the father objected to their receipt into evidence on legal grounds, but did so for other reasons, which he articulated.

  4. To the extent that the father complains that he was denied natural justice, the Court is not persuaded that such was the case. As is clear from the transcript, during the course of a circumscribed hearing, the father appears to have addressed the Court for longer than Counsel for the other parties combined. The father clearly made submissions with respect to the asserted deficiencies in the medical evidence. At no time did the father express any feeling of disadvantage in conducting his own case, or appear to fail to understand the process in which he was participating. Nothing to which the Court has been referred demonstrates an absence of a “level playing field”, or that his Honour failed to explain anything to the father which he should have. The learned Federal Magistrate clearly recognised the limitations under which he was obliged to make a decision with respect to the child X’s interim parenting arrangements.

  5. A number of the other complaints (e.g. paragraph 23), would not, even if established, warrant appellate intervention in the circumstances of this appeal.

  6. As the learned Federal Magistrate recorded (paragraph 7), and which is not suggested to have been inaccurate, the contest before him on 17 August 2010 was fairly clear and stark, as were the positions of each of the participants, one of whom (the ICL) supported the father, the other (the Chief Executive) supported the mother and the maternal grandmother, or the “alternative proposal” which emerged during the course of the hearing.

  7. The submission that the learned Federal Magistrate “erred in finding” that the father sought sole parental responsibility may be literally correct. The Court has not found any such application in any of the material before it. His Honour appears, however, to have accepted, from a document submitted to him by Counsel, that such was the case (see paragraph 11, Appeal Book page 4, footnote 5). The complaint however lacks merit in the Court’s view, as the orders of 9 September 2010 make no changes to any orders with respect to parental responsibility. The issue before the learned Federal Magistrate on 17 August 2010, to which he referred in his reasons for judgment of 9 September 2010, was what time the child X should spend with each of his parents and the maternal grandmother until a final hearing of the proceedings could take place. His Honour’s apparent misconception did not influence, or vitiate, the exercise of his discretion.

  8. To the extent that, formally, the father’s recovery application may have been the reason the parties were before the court, as the transcript makes clear, the broader issue of interim parenting of the child X, was clearly placed on the agenda by all parties participating in the interlocutory hearing on 17 August 2010.

  9. The complaints in Grounds 3(b) and 3(c) overlook the context in which the interlocutory proceedings were heard by the learned Federal Magistrate on 17 August 2010. As his Honour made clear, and the parties could have been in no doubt, the interlocutory hearing proceeded from earlier interlocutory hearings before his Honour with respect to parenting of the child X. It is clear that in this case, given the frequency of court appearances – 4 June 2010, 29 July 2010, 6 August 2010, 12 August 2010, 17 August 2010 – during which time the evidence reveals there to have been a number of circumstances relating to the child X’s life to have been in a state of flux, it is somewhat artificial to seek to draw a line between one interlocutory proceeding and another. It is also artificial and unrealistic to suggest that, in the circumstances of this case, reasons for judgment engaging in depth with s 65DAA and/or s 60CC could, or should, have been provided.

  10. In what way the learned Federal Magistrate “treated submissions from the Bar table as evidence” has not been demonstrated. Nor, on a balanced reading of the transcript of the proceedings could anyone have been in doubt as to what evidence the learned Federal Magistrate relied upon.

  11. It is clear from his reasons for judgment that his Honour relied upon evidence of which the parties were aware, and which had been before him in previous interlocutory hearings. In the absence of any application that his Honour disqualify himself from hearing the proceedings on 17 August 2010 because of anything which occurred on any of those previous occasions, it was reasonable of his Honour, and to be expected by the parties, that he would have regard to the cumulative effect of the evidence before him. This his Honour clearly did.

  12. As noted earlier, having not been provided with the evidence admitted over objection by the father, this Court cannot conclude that any objection that the father might have taken would have resulted in the documents being rejected on grounds of admissibility.

  13. To the extent that a number of material errors of fact or irrelevant considerations were asserted to have vitiated the learned Federal Magistrate’s exercise of discretion, (Grounds 3(d) and 3(e)) nothing to which this Court has been referred demonstrates either of those complaints to have substance.

  14. In what way the father was denied any assistance or other direction or advice by the learned Federal Magistrate in accordance with the rules of natural justice or any supposed “guidelines” of the Court has not been specified, nor could it having regard to the transcript of the proceedings before the learned Federal Magistrate.

  15. To read the transcript is to leave no doubt, save to the possible extent that might result from his not being legally qualified, that the father was at any disadvantage by reason of the failure of the learned Federal Magistrate to advise or direct him as to any aspect of the proceedings. There is, significantly, an absence of any express or implied request for guidance in relation to the course of the proceedings before the learned Federal Magistrate on the part of the father.

  16. This ground does not have merit.

Ground 4

  1. Ground 4 provided:

    4.The learned Federal Magistrate erred in failing to give any (or adequate) weight to the following:-

    (a)the mother continued to be subject to a Psychiatric Treatment Order:

    (b)the mother had not provided a full  psychiatric assessment in respect of the state of her mental health;

    (c)the mother continued to breach the interim orders;

    (d)the father continued to be available to care for the child full time;

    (e)the child had spent very little time with the interveners before 9th September 2010; and

    (g)the interveners sought to withdraw from the proceedings.

  2. The learned Federal Magistrate was clearly aware that the mother continued to be subject to a psychiatric treatment order. His Honour had made orders, to which he referred (paragraph 16), on 6 August 2010 relevant to that topic. His Honour’s reasons for judgment of 4 June 2010 also leave little room for doubt in that regard. Moreover, his Honour expressly referred to the Psychiatric Treatment Order (paragraph 9) in his reasons for judgment of 9 September 2010.

  3. The documents tendered by Counsel for the mother (identified in paragraph 8 of the reasons for judgment) included three medical reports or letters relating to the mother’s psychological or psychiatric wellbeing. His Honour recorded that those documents “all attest to [Ms Rezek’s] current good health and, in the cases of [Dr T] and [Dr M], both of whom are psychiatrists, that she is able to look after herself and her son” (paragraph 10 of the reasons for judgment). His Honour was also aware that the father disputed the opinions expressed in those reports. Although footnoted, the references his Honour made to the medical reports are consistent with the conclusions which he had expressed with respect to them.

  4. The learned Federal Magistrate’s conclusion as to how the child X’s interests would best be secured on an interim basis were clearly predicated on the recognition of the possible difficulties the mother would have in adequately caring for him by reason of psychological or psychiatric impairment. It is to be remembered that, whereas until 4 June 2010 the child X spent time with his mother for nine out of each fourteen days, the orders of 9 September 2010 provided that she have him for alternate weekends. It cannot be successfully asserted that the learned Federal Magistrate failed to give adequate weight to the mother continuing to be subject to a Psychiatric Treatment Order.

  5. The complaint that the learned Federal Magistrate failed to give adequate weight to the fact that the mother had “not provided a full psychiatric assessment in respect of the state of her mental health” overlooks the reality that the order that she do so was only made on 6 August 2010. It did have a date by which the mother was to provide the assessment. Nothing to which this Court has been referred establishes that the mother had failed to comply with the spirit or the letter of that order. In those circumstances, the learned Federal Magistrate cannot be criticised for not referring to that order.

  6. Whilst it was clearly the father’s contention that the mother “continued to breach the interim orders”, nothing to which this Court has been referred establishes that the learned Federal Magistrate erred by not so finding. No part of the learned Federal Magistrate’s conclusion was predicated upon any inability of the father to “be available to care for the child full time”. Evidence of the father’s conduct in the period prior to the hearing which, if accepted, would not have assisted him, was also not referred to by his Honour.

  7. So far as the complaint that the order made by the learned Federal Magistrate “involved another change or residence for [the child X]” is concerned, his Honour was clearly aware of that reality, but, for the reasons he provided, concluded that so doing constituted the best option available to him in the interests of the child. Whilst other conclusions were clearly open to his Honour, it has not been established that concluding as he did was not reasonably open to the learned Federal Magistrate.

  8. As with a number of assertions articulated in the written outline of argument in support of this challenge, this claim involves the assumption that the learned Federal Magistrate was obliged to make findings in the terms there expressed, when it has not been established that the evidence obliged him to do so. He may have done so, but that is not the test. The test is whether the findings made have been shown to have not been reasonably open to the Court.

  9. In what way, if it be fact, the interveners seeking to withdraw from the proceedings vitiated the discretion of the learned Federal Magistrate has not been demonstrated.

  10. These complaints lack merit.

  11. No ground of appeal having been made out, the father’s appeal should be dismissed.

  12. For more abundant caution, it remains, however, to consider the second issue identified at the commencement of these reasons. As it not in doubt, even if this Court has erroneously rejected challenges to the Federal Magistrate’s decision agitated on behalf of the father, given that the parties will almost certainly have a full final hearing before any further interim hearing could take place, allowing the father’s appeal and ordering a further interim hearing would have no practical utility. In those circumstances, as urged by Counsel for the maternal grandmother and the ICL, the appeal should be dismissed.

  13. Whilst the absence of practical utility of an appeal may not have been apparent prior to the allocation of a date for hearing of the appeal, from the moment it was realised that the appeal against the interim parenting orders would be heard on 21 March 2011, two months before the final hearing would take place, continuance of the appeal became an exercise devoid of practical utility. That is particularly so given that the orders of the Federal Magistrate of 9 September 2010 were not stayed. The father did not seek a stay of those orders.

  14. In Reece & Reece [2011] FamCAFC 24, Strickland J discussed the “difficulties associated with appeals from interim parenting orders where a final hearing has been listed to commence within a relatively short time frame”. In that case, despite finding merit in the appeal, Strickland J dismissed the appeal in view of the futility of allowing it in circumstances where there was insufficient time in which to either re-determine or re-hear the interim matter prior to the final hearing. The decision has application to this case.

  15. Accordingly, even if, contrary to the Court’s conclusions in that regard, the father has demonstrated appealable error on the part of the learned Federal Magistrate, for this Court to do other than dismiss his appeal would constitute an abuse of the Court’s processes, as no interim hearing would be likely to take place.

Costs

  1. It was, sensibly, conceded by Counsel for the father that if, as has transpired, his appeal was found to lack merit, the father would have difficulty resisting an order for costs, which has been sought on behalf of the mother, the maternal grandmother and the ICL.

  2. The costs of the mother and the ICL would properly include the costs of Counsel’s appearance on the hearing whilst the maternal grandmother, whose Counsel filed comprehensive submissions in opposition to the father’s appeal, would be entitled to costs only up to and including the filing of written submissions in opposition to the father’s appeal.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of Justice Coleman delivered on 8 April 2011.

Associate: 

Date:  08.04.11

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Cases Citing This Decision

2

JELBART & GANZER (No.2) [2018] FCCA 3137
Hulce and Chorley (No 2) [2020] FamCAFC 201
Cases Cited

1

Statutory Material Cited

1

Reece & Reece [2011] FamCAFC 24