Valentine & Lacerra and Anor
[2013] FamCAFC 53
•9 April 2013
FAMILY COURT OF AUSTRALIA
| VALENTINE & LACERRA AND ANOR | [2013] FamCAFC 53 |
| FAMILY LAW – APPEAL – CHILDREN – Parental responsibility and best interests of a child – where the Federal Magistrate made orders for the father to have sole parental responsibility and for the child to live with the father and spend time with her maternal aunt and grandmother – where the father argued on appeal that a natural parent with sole parental responsibility must have primacy when the Court is considering making other parenting orders – where the Full Court found there are no presumptions or preferential positions that apply as between parent and non-parent, and that an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely according to its own facts and having regard to the bests interests of the child as a paramount consideration – where the Federal Magistrate was well aware the father was the sole surviving parent and that the respondents were non-parents and no fault was found with how his Honour approached the decision making process – no merit found in this ground of appeal. FAMILY LAW – APPEAL – CHILDREN – Overseas travel – where the Federal Magistrate refused to make the order sought by the father pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) and instead made orders restraining all parties from taking the child outside of Australia and requesting that the child’s name be placed on the Airport Watch List/PACE Alert system – where the father argued on appeal that the Federal Magistrate erred by finding the father’s proposed order would entail the “delegation of judicial power to a party or non-judicial officer” and that the Federal Magistrate failed to address the evidence and make factual findings as to what orders should be made in the best interests of the child – merit found in this ground of appeal – the issue of orders to be made in respect of overseas travel remitted to the Federal Magistrates Court for rehearing. |
| Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC(2)-(3), 61B, 61C(2), 61D(2), 61DA, 61DAC, 65C(ba)-(c), 65D, 65Y, 68B Federal Proceedings (Costs) Act 1981 (Cth) |
| Aldridge & Keaton (2009) FLC 93-421 Cales & Cales (2010) FLC 93-459 Church & S Overton (2008) 40 Fam LR 357 Malcolm & Monroe (2011) FLC 93-460 Mulvany & Lane (2009) FLC 93-404 Yates & Yates (Independent Children’s Lawyer - Costs) [2012] FamCAFC 219 |
| APPELLANT: | Mr Valentine |
| FIRST RESPONDENT: | Ms Lacerra |
| SECOND RESPONDENT: | Ms Dalley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 2473 | of | 2011 |
| APPEAL NUMBER: | EA | 60 | of | 2012 |
| DATE DELIVERED: | 9 April 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Coleman & Strickland JJ |
| HEARING DATE: | 6 December 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 2 April 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 414 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Harper SC |
| COUNSEL FOR THE FIRST & SECOND RESPONDENTS: | Ms Judge |
| SOLICITOR FOR THE FIRST & SECOND RESPONDENTS: | John Spence & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The appeal be allowed in part.
Orders 14, 15 and 16 made by Federal Magistrate Harman on 2 April 2012 be set aside.
The application by the appellant father for orders pursuant to section 65Y(2)(b) of the Family Law Act 1975 (Cth) and the applications for an injunction restraining the appellant father and the respondents from removing the child X from Australia, requesting the Marshall of the Federal Magistrates Court and all officers of the Australian Federal Police and of the Police forces of the States and Territories of Australia to give effect to any injunction and to take all necessary steps to restrain either party from removing the said child from Australia, and requesting the Commissioner of the Australian Federal Police to place the said child’s name on the Airport Watch List, also known as the PACE Alert System, be remitted to the Federal Magistrates Court for rehearing by a Federal Magistrate other than Federal Magistrate Harman.
The court grants to the appellant father a costs certificate pursuant to the provisions of section 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 father in respect of the costs incurred by him in relation to the appeal.
The court grants to the respondents a costs certificate pursuant to the provisions of section 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 respondents in respect of the costs incurred by them in relation to the appeal.
The court grants to each of the appellant father and the respondents a costs certificate pursuant to the provisions of section 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 each of the appellant father and the respondents in respect of such part as the Attorney-General considers appropriate of any costs incurred by each of those parties in relation to the new trial.
In the event that the Independent Children’s Lawyer seeks to pursue an application for costs certificates pursuant to the provisions of sections 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth), within twenty-one (21) days of the date of these orders the Independent Children’s Lawyer file written submissions in support of such application and serve the same upon the other parties.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valentine & Lacerra and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 60 of 2012
File Number: PAC 2473 of 2011
| Mr Valentine |
Appellant
And
| Ms Lacerra |
First Respondent
And
| Ms Dalley |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 28 September 2012 Mr Valentine (“the father”) appeals against parenting orders made by Harman FM on
2 April 2012. The respondents to the appeal are Ms Lacerra (“the maternal aunt”) and Ms Dalley (“the maternal grandmother”) who both oppose the appeal.
The parenting orders appealed against relate to X Valentine (“the child”), and in summary they provide for the child to live with the father and spend time with the maternal aunt and grandmother. In the event the child resides in the Sydney metropolitan area she is to spend time with the maternal aunt and grandmother each third Sunday, for the second half of short school holidays and for two weeks during the Christmas school holidays. In the event the child resides outside the Sydney metropolitan area the time spent is to be limited to the second half of short school holidays and two weeks during the Christmas school holidays. Various orders were also made providing for the handover and travel arrangements for the child if she resides outside of Sydney, as well as orders for information sharing in relation to the child’s health and education. All parties were restrained from removing the child from Australia.
Background
The father was born in 1965 and at the time of the trial was 47 years of age.
The maternal aunt was born overseas in 1960 and at the time of trial was 51 years of age. She was the sixth born of seven daughters, the youngest being the child’s mother, Ms V (“the mother”).
The maternal grandmother was born overseas in 1926 and was 85 years of age at the time of the hearing.
In 1979 the maternal aunt, her mother (the maternal grandmother), and her sisters immigrated to Brisbane.
In 1982 the maternal aunt married and moved to Sydney with her husband.
In 1987 the mother and the maternal grandmother moved to Sydney to reside with the maternal aunt and her family.
The mother and the father met in 1996, and they commenced cohabitation shortly thereafter.
The child was born in 2004 and when the child was about seven months old the mother was diagnosed with breast cancer. In January 2005 the mother had her first surgery and was in remission between October 2005 and
July 2006. During 2006 the mother was advised she had terminal cancer.
On 16 November 2008 the father left the mother’s house and commenced living at a college.
On 28 October 2010 the mother was admitted to hospital and thereafter the father took the child into his care. The mother died in November 2010.
Between November 2010 and April 2011 the maternal aunt and grandmother saw the child on eight occasions. During this time there were four occasions where the father refused to allow the child to spend time with her maternal family.
Between 16 and 19 December 2010 the father and the child were in Tasmania and between 26 December 2010 and 12 February 2011 the father and the child were in Perth, from where they travelled overseas. The father also took the child overseas between 7 and 24 April 2011 and from 5 May 2011 until at least 15 May 2011.
The maternal aunt and grandmother commenced proceedings on 3 June 2011.
On 8 July 2011 orders were made by consent for the child to spend time with the maternal aunt and grandmother each Sunday from 9am to 6pm and from 9am on 11 July to 5pm on 14 July 2011. The child was not delivered to the maternal aunt as provided for in the orders.
On 15 July 2011 orders were made, inter alia, that the child spend time with “her maternal family” from 9am on 16 July 2011 until 9am on 19 July 2011, restraining the parties from removing the child from Australia, requesting the Marshall, the Australian Federal Police and all other Police forces in Australia to give effect to the injunction and to take all necessary steps to restrain either party from removing the child from Australia, and requesting the Australian Federal Police to place the child’s name on the Airport Watch List, also known as the PACE Alert System.
On 19 July 2011 the matter was listed for interim hearing on 31 August 2011 and orders were made providing, inter alia, that the orders of 8 July 2011 for the child to spend time with the maternal aunt and grandmother each Sunday continue.
On 31 August 2011 interim orders were made by consent for the child to spend time with the maternal aunt and grandmother each alternate Sunday from 9am to 6pm, from 10am on 25 September to 10am on 2 October 2011, and for a block of time in the Christmas school holidays. The father though did not inform the Court or the other parties that he was in the process of moving to Victoria, which took place on or about 8 September 2011.
On 12 October 2011 the matter again came before the Court and the alternate Sunday time was suspended.
Between October 2011 and the time of the hearing before the
Federal Magistrate the child did not spend any time with the maternal aunt and grandmother, despite orders for that to occur between 21 and 24 December 2011 and 5 to 20 January 2012.
The matter came before the Federal Magistrate for final hearing on 29 and 30 March 2012. His Honour made final orders and delivered his reasons for judgment on 2 April 2012.
Reasons for judgment of the Federal Magistrate
The Federal Magistrate commenced his reasons for judgment by setting out the evidence relied upon by each party and outlining the issues ultimately in dispute at trial, namely the time the child was to spend with the maternal aunt and grandmother, whether injunctive orders should be made restraining the child’s removal from Australia, the maternal aunt and grandmother’s receipt of materials relating to the child’s education, and the manner in which a mutual non-denigration order between the parties was to be expressed.
His Honour first noted the father and the child were “in grief” as a result of the mother’s death and that the father harboured a significant degree of distrust towards the maternal aunt and grandmother. In particular, the
Federal Magistrate noted the father’s criticisms of the maternal family’s approach to the mother’s illness and subsequent passing, although on the evidence his Honour did not find any difficulty with the family’s cultural practices surrounding death.
Upon outlining the relevant law, the Federal Magistrate was satisfied the maternal aunt and grandmother were persons “significant” to the child as the child “had spent periods of her life living in the same household with them and has since her birth and until her mother’s demise had regular, if not, daily interaction with each of [them]”. Furthermore, the Federal Magistrate was satisfied, pursuant to s 64C and s 65C of the Family Law Act 1975 (Cth) (“the Act”), that the maternal aunt and grandmother were persons entitled to apply for a parenting order. In relation to parental responsibility, the
Federal Magistrate found “[t]he presumption applies only between parents and, accordingly, as the sole surviving parent, [Mr Valentine] is entitled to the benefit of the presumption of parental responsibility in his favour alone”.
Turning to the primary considerations in s 60CC(2) of the Act, the
Federal Magistrate found there was “no serious suggestion in this case and to the extent that it might be inferred there is no evidence to support such inference or allegation that this child needs protection from exposure to physical or psychological harm in the care of any of the parties”. His Honour also found the benefit of the child having a meaningful relationship with both her parents “is not and cannot be in play in this case as the proceedings are not between the child’s parents”.
The Federal Magistrate’s findings as to the relevant additional considerations arising under s 60CC(3) of the Act can be summarised as follows:
·(a): There was no specific evidence before the Court of the child’s views and, to the extent there was evidence, it suggested that the child enjoyed an excellent relationship with her maternal family, father and certain members of the paternal family. Neither party made an application for a family report to be prepared.
·(b): His Honour was satisfied the child enjoyed an excellent relationship with her father, maternal aunt and maternal grandmother and, on the evidence before the Court, found there did “not appear to be any basis in reality” for the father’s ire with the maternal aunt.
·(c): The Federal Magistrate expressed concern about the father’s lack of willingness and ability to facilitate the child’s relationship with her maternal family. In particular, his Honour found that the termination of the child’s relationship and communication with the maternal family, notwithstanding the various orders providing for the child to spend time and communicate with the maternal aunt and grandmother, was “highly regrettable” and did the father “no credit”.
·(d): His Honour was satisfied there would be a positive change for the child if she had precise and predictable periods of time with her maternal family, so as to have an “appreciation and understanding of that half of her make-up”.
·(e): The Federal Magistrate found there was significant practical difficulty so long as the child continued to reside outside of the Sydney metropolitan area, but that it was largely overcome as the parties all agreed the child could travel as an unaccompanied minor and that the maternal aunt and grandmother would meet the costs of such travel.
·(f): The Federal Magistrate was satisfied all the parties were able to meet the child’s needs, although his Honour expressed some concern about the father’s capacity to recognise the impact of his past actions upon the child’s ability to grieve and continue to experience her mother’s memory by spending regular time with her maternal family.
·(g): His Honour was satisfied both parties’ proposals would meet the child’s present level of cognisance and understanding, and that any interferences with the father’s parenting (as the sole surviving parent) were “matters of degree rather than matters of fundamental jurisprudence”.
·(j): The maternal aunt and grandmother alleged family violence was perpetrated by the father, however, those allegations were not prosecuted with any vigour and were denied by the father. The Federal Magistrate determined, by reference to the rule in Brown & Dunne, to have no regard to the allegations.
·(l): His Honour expressed concern that this factor was of “some greater relevance” in this case, particularly in relation to the issues of overseas travel and past non-compliance with Court orders.
The Federal Magistrate then set out his determinations as to the specific “judiciable” issues between the parties. First, his Honour determined the child would spend time with the maternal aunt and grandmother for a period of seven days during short school holidays and two weeks during the Christmas school holidays, with that period to alternate between the first and second half of the holidays so as to include Christmas Day each alternate year. His Honour proposed the orders for telephone communication be left broad and general, but with specific provision for one time period per week when there was a clear expectation and requirement that the child would be available to receive calls. His Honour also determined that the maternal aunt and grandmother should obtain information in relation to the child’s schooling directly from the child’s school, that the child’s name be placed upon the Airport Watch List, and that all parties be restrained from denigrating the opposing party or causing any third party to do so in the presence and hearing of the child.
Notably, his Honour considered the Airport Watch List order was “an issue of interpretation of the legislation”. The Federal Magistrate found s 65Y of the Act applied to all parenting orders, whether they were between parents or others or both, but determined that to make the order sought by the father would not be an appropriate exercise of judicial authority. As there was some debate before his Honour about the jurisdictional basis for such an order, the Federal Magistrate considered the Court’s powers under s 68B and s 114 of the Act, but was ultimately satisfied the Court had “an inherent jurisdiction to make any order in aid of jurisdiction” because s 65Y (by creating a criminal offence relating to the removal of a child from the Commonwealth) would “authorise and entitle the Court to make such further practical order as would be necessary to give effect to and to forestall and prohibit a prospective breach of that order through the utility of the Australian Federal Police”. His Honour also found, based on the father’s own evidence and demonstrated attitude towards compliance, that the potential of criminal prosecution would not be sufficient motive or protection to avoid the child’s removal from the Commonwealth.
Lastly, the Federal Magistrate discussed the Court’s jurisdiction to make the mutual non-denigration order proposed by each of the parties. His Honour considered s 68B of the Act was the only basis on which a non-denigration injunction could be made with the intent of precluding a child from being emotionally or psychologically harmed through exposure to denigration of a parent or other person of significance to them. However, his Honour ultimately determined that on a “literal reading of s.68B, the child’s protection could not be met by an order which precluded actions … taken without any reference to or any involvement of that child” and thus, “to expand the ambit of such a restraint would be an exercise outside of jurisdiction”.
Orders made 2 April 2012
The Federal Magistrate made the following orders:
1)All prior parenting orders with respect to child [X] [born] 2004 (save orders made 30 March 2012) shall be and are herby [sic] discharged.
2)[X] shall live with her father [Mr Valentine].
3)[X] shall spend time with applicants being the maternal grandmother [Ms Dalley] and applicant maternal Aunt [Ms Lacerra] as follows;
a) If and when [X] is residing in Sydney
i)
Each third Sunday during school terms from 9 am to
6 pm such periods to commence on the second Sunday of each school term;
ii)For the second half of each short New South Wales school holiday period from 6pm on the Friday proceeding the middle weekend of the holiday period until 6pm on the last Friday of holiday period;
iii)For a two week block during the New South Wales Christmas school holidays each year and being from 6pm boxing day until 6pm 9 January.
b)Whilst so ever the child is residing outside of the Sydney metropolitan area;
i)For the second half of each short Victorian school holiday period from the second Friday thereof and until the last Friday of holiday period;
ii)For a 14 day block period in each Victorian Christmas school holiday period and being
(1)
For the school holidays commencing December 2012 and each alternate year thereafter for a 14 day block commencing on the day after school breaks up and concluding 14 days later (and which in 2012 would commence 22 December, 2012 and conclude
5 January, 2013); and,
(2) For the school holidays commencing December 2013 and each alternate year thereafter for a 14 day block period to commence on the third last Sunday and conclude on the last Sunday of the school holidays;
and with respect to the above periods [X] shall travel from Melbourne to Sydney and from Sydney to Melbourne at the commencement and conclusion of each period respectively and to depart each airport on a flight at or approximate to 6pm.
4)For the purpose of implementing the above orders as to [X’s] time with the applicants if she resides the Sydney Metropolitan Area, one of the applicants or their agent is to collect the child from the father’s residence and return the child to the father [sic] residence.
5)For the purpose of implementing the above orders as to [X’s] time with the applicants when [X] is residing outside the Sydney Metropolitan area;
a)The applicants or either one of them, are to provide to the father by ordinary pre paid post at [Property V] or email at … the child’s air travel itinerary to Sydney, paid for by the applicants, no later than 28 days prior to the booked departure date
b)The Respondent is to deliver the child [X] to the airport from which she is booked to travel to Sydney in time to ensure that she is able to board the flight booked for her by the Applicants or either one of them and is to do all acts necessary to ensure that the child boards the flight.
c)The applicants or either one of them is to collect the child from Sydney airport on her arrival there for the purpose of commencing time to be spent with them.
d)At the conclusion of their time spent with the child the applicants or either of them are to do all acts necessary to ensure that the child is delivered to Sydney airport in time to board the return flight and are to ensure that the child boards the return flight
e)Should the father fail to place the child on the flight to Sydney as provided for herein the father is to pay the applicants the amount of the airfare lost and is to do all things necessary to ensure that the child is forthwith delivered to the Applicants or either of them for the purpose of them spending time with the child and the child with them including booking a fresh fare for travel that day or the next and [X’s] time with the applicants shall extend by such period as is necessary to ensure that [X] spends an equivalent period of time with the applicants as these orders provide.
f)Should the applicants fail to provide the flight ticketing details within the time period provided for in these order [sic] the Respondent is not obliged to provide the child to the Applicants for the purpose of the child spending time with them on that occasion.
6)In the event that the father should change his and [X’s] place of residence to any place other than the Sydney metropolitan area or Victoria then the reference to school holidays in the above orders shall thereafter be taken to refer to school holidays for the State or Territory in which [X] is then residing
7)The Respondent shall do all acts and things necessary including dialling the phone number to facilitate, cause and ensure that the child [X] telephone the landline telephone number of the second Applicant [Ms Dalley] being number … on each Sunday between 5pm and 6pm.
8)All parties are to advise the other in writing or via email of their current residential address and contact number and email address and are to advise the other of any change of residential address, phone number or email address at least one week prior to any proposed change.
9)The Father shall forthwith sign all documents and do all acts and things necessary to provide to the Principal of the child’s current school and any future school attended by her an irrevocable authority in writing requesting the Principal to arrange to forward to the Applicants copies of the child’s school reports and any information relating to the child [sic] progress at school and/or requested by the applicants and:.
a)In the event of the child changing school the father is to provide an irrevocable authority in the same terms to the Principal of the child’s new school.
b)The father is to provide to the applicants a copy of any irrevocable authority executed pursuant to this order within 72 hours of its execution.
10)Each party is to notify the other promptly of any major medical illness or hospitalisation suffered by the child including details of treatment by medical practitioners.
11)All parties are restrained from denigrating the opposing party or causing any third party to denigrate the opposing party, in the present [sic] and hearing of the child.
12)All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
13)Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
14)The applicants and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children [sic] [X Valentine] born … 2004 (female) from the Commonwealth of Australia.
15)The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
16)The Commissioner of the Australian Federal Police is requested to take all necessary steps to immediately place the said children [sic] name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia and, further the Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia are requested to:
a)Maintain an airport watch of the said children [sic] on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
b)Assist in the implementation of, and give effect to, these orders.
THE COURT NOTES THAT:
a) For the Easter 2012 school holidays and not withstanding anything to the contrary expressed above, [X] shall spend time with the applicant from 30 March to 6 April 2012 inclusive and in accordance with orders made 30 March 2012.
b) The Independent Children’s Lawyer is not obliged to make any application for contribution of costs and accordingly no such application has been made nor adjudicated upon.
c) Pursuant to the Family Law Act (and subject to the balance of these orders) [Mr Valentine] is the sole person entitled to exercise parental responsibility for [X] as [X’s] sole living parent.
d) [X] presently resides with her father in the Melbourne area and the father intends to continue to reside in that area and with respect to same no restraint upon the father’s place of residents [sic] (other than through the requirement to keep the applicants advised of that address) is included in these orders.
The father appeals against all orders.
Grounds of appeal and orders sought
The Amended Notice of Appeal contained eight grounds of appeal, however, subsequently two grounds were abandoned. The six remaining grounds of appeal are as follows:
Ground 1 – Failure to Consider the Importance of Parental Responsibility
1. His Honour’s discretion miscarried in making the Parenting Orders in the terms imposed because he:
a. failed to consider, or give any proper weight to, the fact that the appellant had sole parental responsibility;
b.wrongly construed s 60CC(3)(c) as applicable;
c.wrongly construed s 60CC(3)(g) as requiring a focus upon the willingness of the father to facilitate a relationship with non parents;
d.failed to take account of evidence that the parenting capacity of the appellant would be impacted by the Parenting Orders;
e.failed to take account of the parental relatives of the child.
Ground 2 – Erroneous consideration of s 60CC(3)(c)
2.His Honour’s discretion miscarried in making the Parenting Orders in the terms imposed because he:
a. wrongly construed s 60CC(3)(c) as applicable to proceedings between a parent and non parents;
b.alternatively, failed to give any reasons why that facilitation of the relationship between the child and the applicants was otherwise relevant;
c.failed to consider, or give any proper weight to, the fact that the appellant had sole parental responsibility;
d.focused solely and erroneously on the willingness of the father to facilitate the child’s relationship with the non parents;
e.failed to consider the willingness of the non parents to facilitate the child’s relationship with the father.
Ground 3 – Erroneous consideration of s 60CC(3)(g)
3.His Honour’s discretion miscarried in making the Parenting Orders in the terms imposed because he:
a.wrongly construed s 60CC(3)(g) as applicable to proceedings between a parent and non parents;
b.alternatively, gave no consideration to background, lifestyle, culture and traditions of the father in light of his sole parental responsibilities;
c.failed to take account of evidence that the father was very emotional about restriction of travel to the locations of his cultural background.
Ground 4 – Erroneous order for the provision of school information
4.His Honour’s discretion miscarried in making Order 9 the Parenting Orders in the terms imposed because he:
a.failed to take account of the father having sole parental responsibility;
b.failed to reason from the starting point that that [sic] the onus lay on the applicants to establish why the order was either desirable or necessary in connection with them spending time with the child;
c.failed to take account of the extent to which order 9 would result in further proceedings.
Ground 5 – Failing to allow Overseas Travel
5.His Honour’s discretion miscarried in refusing to make an order under s 65Y(2)(b) of the Family Law Act, 1975, allowing travel by the father with the child outside Australia because:
a.erroneously construed such an order as delegation of judicial power to a party or non judicial officer;
b.failed to take account of the father having sole parental responsibility;
c.failed to take account of the best interests of the child by considering the opportunity of her travelling to the country of her heritage and experiencing her culture with her extended family and doing so in a cultural and geographical context;
d.failed to take account of the parental relatives of the child.
e.failed to take account of the fact that any application under
s 65Y(2)(b) is itself a parenting order within the Family Law Act, 1975;f.failed to take proper account of s 60CC(3)(l);
g.failed to take account of the degree of any risk that the child would not be returned to Australia.
6.His Honour’s discretion miscarried in making Order 14 and paragraphs 15 and 16 of the Parenting Orders in that:
a.order 14 and paragraphs 15 and 16 were made without jurisdiction;
b.he purported to invoke an inherent jurisdiction not possessed by the Federal Magistrate’s Court in making order 14 and paragraph 15 and 16.
7.His Honour’s discretion further miscarried in making Order 14 and paragraphs 15 and 16 of the Parenting Orders in that he:
a.failed to take account of the father having sole parental responsibility;
b.failed to take account of the best interests of the child by considering the opportunity of her travelling to the country of her heritage and experiencing her culture with her extended family and doing so in a cultural and geographical context;
c.failed to take account of the parental relatives of the child;
d.failed to take proper account of s 60CC(3)(l);
e.failed to take account of the degree of any risk that the child would not be returned to Australia in making order 14 and paragraphs 15 and 16;
f.failed to take account of the fact that moral or criminal opprobrium might attach to the father by the making of order 14 and paragraphs 15 and 16.
Ground 6 – Erroneous Approach to Evidence
8.His Honour’s discretion miscarried in making the Parenting Orders in the terms imposed because he:
a.failed to reject late served evidence of the respondents;
b.failed to deal with objections to evidence of the respondents;
c.admitted voluminous latent evidence without giving the appellant father a reasonable time or opportunity to respond.
d.failed to admit evidence of care and education of the child from teachers;
e.failed to admit evidence of hormonal medical condition of the maternal aunt and her practice of black magic.
f.erroneously formed an adverse view of the appellant for not responding to late served evidence from respondents;
g.laid undue emphasis on the fact that the appellant had legal training.
In his Amended Notice of Appeal the father seeks that all of the orders made by the Federal Magistrate on 2 April 2012 be set aside. Then, the father seeks orders that the child live with him, that he have sole parental responsibility for the child and that he be permitted to travel overseas with the child. It is the father’s proposal that the child spend time with the maternal grandmother for four days and nights during short school holidays and 10 days and nights during the Christmas school holidays. In the event the father and child relocate to live in Sydney, the father proposes the child spend additional time with the maternal grandmother every third Sunday from 10am to 5pm. Whilst the child is in each party’s care, the other party is to have at least 30 minutes telephone communication with the child per week.
The father also proposes various orders in relation to the child’s travel arrangements, including that every six months the father provide the maternal grandmother with an advance plan of the child’s travel arrangements and associated costs, that the maternal grandmother provide the father with a “Visiting Plan” outlining who will be responsible for the child’s care during the visit, and that the maternal grandmother pay half the child’s travel costs. Lastly, the father seeks orders restraining the maternal aunt from contacting the child without the presence of a responsible adult, approaching the father’s residence or provoking him, and proclaiming herself to be the child’s guardian.
Discussion
Ground 1
The crux of this ground is articulated in paragraph 4a of the father’s written submissions, namely:
The FM erred in giving [sic] failing to take account of, or giving proper weight to the fact that the father was the sole surviving parent and the only person with parental responsibilities, including a failure to take into account the views of the father concerning the parenting issues before the court.
Conceding, as he must, that the maternal aunt and grandmother had “standing” to make the application that they did under s 65C(ba)-(c) of the Act, and that all the authorities both pre and post the 2006 amendments to the Act are clear in rejecting any presumption in favour of the natural parent or any entitlement of a natural parent to a preferential position from which the decision making process commences, the father submits that where a natural parent has sole parental responsibility then that parent must have a level of primacy when the Court comes to consider what parenting orders are made.
Thus, the focus is on the parent having sole parental responsibility, and it is suggested that the implication from the legislation is that the Court needs to support that parent in discharging his or her parental responsibilities.
The definition of “parental responsibility” in s 61B of the Act is “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
It is submitted by the senior counsel for the father that:
25.The person with parental responsibility has duties and responsibilities. The corollary of this is that they have commensurate powers and authority and are entitled to parent as they see fit, subject to the best interests of the child.
…
27.So whilst the fact of parenthood may create no presumption in favour of parents, the significance of the fact of parental responsibility must be very great for the purposes of Part VII. The burden of the duties and responsibilities of a parent must be given some precedence. It would be contrary to the clear intention of
Part VII, properly construed, and unjust, to hold otherwise.…
29.More specifically, the father submits that there must be a fundamental distinction between those on whom parental responsibility falls and others who seek a lesser involvement in the life of a child by way of “spending time”. A non parent who has no parental responsibility and enjoys access only by virtue of an order for a child to spend time with such a person, patently does not stand in an equal position to the parent in relation to the child. This distinction is inherently recognised in Part VII.
We do not accept these submissions. First, in relation to the legislation, as far as we can see there is nothing in Part VII of the Act that explicitly or impliedly provides support for this argument. The fact that one party has sole parental responsibility does not create primacy in relation to the making of other parenting orders; certainly, that person has the duties, powers, responsibilities and authority set out in the definition, but it does not dictate what other orders might be made in accordance with what is in the best interests of that child. Indeed, it can be argued that the Act provides the opposite; the parental responsibility that a parent has is always subject to any other parenting order
(s 61C(2)), and pursuant to s 61D(2):
A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
As to authority, senior counsel for the father relies heavily on the single judge decision of Benjamin J in Church & S Overton (2008) 40 Fam LR 357, but that reliance is misguided. In that case, Benjamin J was faced with an argument by the applicant grandfather that a grandparent has a “special position” under the legislation which entitles him or her to spend time and communicate with grandchildren. That is clearly not correct, but it seems that in dispelling that notion his Honour went too far the other way and in effect accepted the submission of the parents that it was their role to determine with whom their children should have a relationship, and that should shape whatever order is made. His Honour’s comments that tend to suggest that the commencement of the decision-making process is a presumption that a parent knows best, and the onus is on a non-parent to persuade the Court that the role of the parent should be usurped and their views disregarded, are not supported by authority, and indeed depart from Full Court authority. For example, in Aldridge & Keaton (2009) FLC 93-421, the Full Court, in considering whether the 2006 amendments to the Act alter the principle that applied previously, said this:
75.While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
·the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
·the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
·that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79.In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). That is not altered by the parent having sole parental responsibility.
Turning to the facts in this case, and the complaints about the approach of the Federal Magistrate, in his written submissions senior counsel for the father makes the following extraordinary but consistent submission:
… the starting point for the FM’s decisions should have been that the father had the duty, responsibility and authority in the first instance:
a.to make day to day decisions about his child and her care and welfare;
b.to determine the duration and location of any time spent with relatives;
c.to determine what access non parents and relatives could have to information about his child’s schooling;
d.to decide when, where and for how long he could travel inside and outside Australia
Not only is it the case that there is no such starting point (as we have explained), but also most if not all of these decisions are not decisions that are left to be made by the person with sole parental responsibility.
It is submitted that the Federal Magistrate erred “in failing to give any proper consideration at all to the relative positions of [the aunt and the grandmother] and the father as sole surviving parent.” However, his Honour was well aware that the father was the sole surviving parent, and that he had sole parental responsibility. Indeed, the latter was not in issue. Further, his Honour was clearly aware that the respondents were non-parents, and we can find no fault with how his Honour approached the decision making process, given that background.
His Honour said this, effectively in response to the same argument that has been presented to us:
81.[The circumstance that the father has sole parental responsibility] does not mean however, that an order cannot be made which impacts upon the day-to-day care, welfare and development of the child. Indeed, parental responsibility, as defined in s.61DA and s.65DAC, does not include responsibility for making day-to-day decisions nor does that legal position preclude the Court making orders that would temper the free and unfettered exercise of parental responsibility by a parent such as to require for instance the provision of information regarding medical or schooling issues. They are live issues between these parties.
As is pointed out by senior counsel for the husband, his Honour was incorrect in referring to s 61DA and s 61DAC as containing the definition of parental responsibility, but that does not take away the force of his Honour’s observations, which we consider to be accurate.
We reject the proposition of senior counsel for the husband in his written submissions that:
44.The central question which should have been posed by the FM was, in circumstances where the father had sole parental responsibility, how far Parenting Orders in favour of the applicants could legitimately hinder, circumscribe or dictate the discharge of that responsibility by the father in the best interests of the child.
We find no merit in this ground of appeal.
Grounds 2 and 3
It is convenient to address these grounds compendiously. The central complaint is effectively the same, namely, the Federal Magistrate “wrongly construed [these paragraphs of s 60CC(3) of the Act] as applicable to proceedings between a parent and non parents”.
There is no doubt that these paragraphs appear only to be relevant when assessing where the best interests of a child lie in proceedings between parents. However, as has been explained by the Full Court on a number of occasions, that does not preclude consideration of these factors when the proceedings are between a parent and a non-parent, and the facts of the case raise these factors as issues. For example, in Malcolm & Monroe (2011) FLC 93-460 the Full Court said this:
97.In summary, to the extent that it is asserted that some of the considerations listed in s 60CC of the Act precludes consideration of those factors in relation to persons other than a parent, for the reasons outlined above by the respective Full Courts in Mulvaney [sic] & Lane and Aldridge & Keaton, this assertion or submission is rejected. Even if the literal interpretation of the s 60CC factors which specifically refer to “parents” (s 60CC(2)(a), s 60CC(3)(c),
s 60CC(3)(e), s 60CC(3)(g), s 60CC(3)(h), s 60CC(3)(i)) must only relate to parents (in the strict sense) a submission that we do not accept, s 60CC(3)(m) would permit and, indeed, almost require a consideration of the matters set out above in relation to persons who are other than parents.98.The paramount consideration before the Federal Magistrate was determining what orders could be made in the best interests of the L. This in turn meant that he was to give consideration to the relevant
s 60CC factors in relation to all of the relevant people in her life. We are satisfied that he did so.It is also important to keep in mind that the paragraphs in s 60CC(2)-(3) of the Act are in reality only a means to an end, namely to ascertain where the best interests of the child or children might lie. This was the thrust of the joint judgment of May and Thackray JJ in Mulvany & Lane (2009) FLC 93-404 at paragraphs 76 and 77 where their Honours said this:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in
s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.(original emphasis)
There is no doubt that in this case, where there is only one parent, the
Federal Magistrate was to say the least “confused” as to the application of many of the factors in s 60CC(2)-(3) of the Act, and it was unclear as to whether he was aware of the availability of s 60CC(3)(m) of the Act to overcome the strict language of the Act. However, in oral submissions senior counsel for the father eventually conceded that this lack of clarity in
his Honour’s reasons did not constitute appealable error.
The further complaints raised in Ground 2 are that, in any event, his Honour erred in that he:
b.… failed to give any reasons why that facilitation of the relationship between the child and the applicants was otherwise relevant;
c.failed to consider, or give any proper weight to, the fact that the appellant had sole parental responsibility;
d.focused solely and erroneously on the willingness of the father to facilitate the child’s relationship with the non parents;
e.failed to consider the willingness of the non parents to facilitate the child’s relationship with the father.
In relation to paragraph b., we have a serious difficulty with this complaint. The evidence is quite clear that the father objected to the maternal family having much if anything to do with the child, and that stemmed from circumstances surrounding the treatment of the mother for her illness, and her subsequent death. The Federal Magistrate noted, correctly in our view, that the father harboured a significant degree of distrust towards the maternal aunt and the grandmother, and that coloured his attitude towards their relationship with the child. There was also the evidence of the disruption to the relationship between the child and the maternal family as a result of the father’s unilateral move to Melbourne with the child.
His Honour referred to these issues in his reasons for judgment in the context of discussing s 60CC(3)(c) of the Act, and they provide an obvious basis as to why facilitation of the relationship between the child and the respondents was relevant.
Paragraph c. raises the same issue that we dealt with in addressing Ground 1. It is suggested that the fact that the father has sole parental responsibility means that the onus is on the respondents “of establishing their willingness to facilitate”, and not the other way around. Consistent with what we have said in relation to Ground 1, we find that proposition untenable and we reject it.
As to paragraphs d. and e., given that there was no issue that the child would live with the father and that he would have sole parental responsibility, and given the history of the case since the death of the mother, it was understandable that his Honour’s focus should be on the father and his willingness or otherwise to facilitate a relationship between the child and the respondents.
His Honour may have been incorrect in paragraph 95 of his reasons for judgment in approaching this issue on the basis that because the father was the only “parent” then it was only his willingness and ability that could be considered under s 60CC(3)(c) of the Act, but as we have just highlighted, in fact it was his attitude which needed to be the subject of the relevant query, and not the attitude of the other parties given the orders that they were seeking. In any event, we are not persuaded that there was evidence before the
Federal Magistrate which indicated a lack of willingness on the part of the maternal aunt or the grandmother to facilitate a relationship, and thus there was no scope for the Federal Magistrate to take that into account.
In relation to the further complaints raised in Ground 3, it is apparent that
his Honour failed to address what a court would normally be expected to address in considering s 60CC(3)(g) of the Act, namely, “the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.”
His Honour, instead, made what we consider to be irrelevant references to the International Convention on the Rights of the Child, and to apparent attacks in overseas courts to the recognition of the “family unit” as “the fundamental unit of society”. His Honour then moved to consider submissions by the father that his parenting capacity would be impaired if the orders sought by the respondents were made, but concluded with the following general finding:
111.I am satisfied accordingly that the interferences which are urged in either party’s case are matters of degree rather than matters of fundamental jurisprudence.
Accordingly, we agree that his Honour failed to properly and adequately address this factor, but we consider that this error is not such as would result in the appeal being allowed. Section 60CC(3)(g) is just one factor of many in
s 60CC(3), and in this case it is not a factor that is determinative of the result. As is plain from his Honour’s reasons for judgment there were many other factors in s 60CC(3) that on the evidence before his Honour informed and justified his Honour’s assessment of what orders would promote the best interests of the child.
Ground 4
In this ground of appeal the father suggests that because he has sole parental responsibility the onus lay on the respondents to establish why the provision of information from a school was either desirable or necessary in connection with the child spending time with them. Again, we reject that proposition.
It is certainly the case that the respondents need to demonstrate that it is in the best interests of the child for such an order to be made, and we are satisfied that there was ample evidence before the Federal Magistrate to enable his Honour to proceed on that basis. The Federal Magistrate considered that given the history of this case and the attitude of the father, this order was an order that it would be preferable to make as being least likely to lead to the institution of future proceedings in relation to the child (s 60CC(3)(l) of the Act). The father though submits that the opposite applies because the order “impinged” on his “right and capacity to parent as he saw fit”, and in particular given that the issue of education was a matter which lay exclusively with him. Once again we reject this submission by the father, and repeat what we have said when addressing Ground 1. The question to ask is whether on the facts of the case such an order is in the best interests of the child, and there is no preferential position from which the Court commences that decision making process such as that the father is a natural parent who has sole parental responsibility.
We find no merit in this ground of appeal.
Ground 5
This is a challenge to the exercise of discretion by the Federal Magistrate in refusing to make an order under s 65Y(2)(b) of the Act, and instead making orders 14, 15 and 16.
First, there is the submission that the Federal Magistrate erred by finding that the father’s proposed order would entail the “delegation of judicial power to a party or non-judicial officer”. We agree with this submission.
The order sought by the father pursuant to s 65Y(2)(b) was as follows:
Order that the Respondent be and is hereby permitted to take the child [X] with him on any business trip or holiday out of Australia provided that any such trip or holiday:
(i)does not exceed a period of 28 days;
(ii)does not occur during a school term; and
(iii)does not occur during any period during which the child is to spend time with the applicants or either of them pursuant to these orders.
It can be seen that this order was perfectly proper, and if made would in no sense involve an inappropriate “exercise of judicial authority” by delegating judicial power. Thus, we are satisfied that his Honour erred in refusing to make the order sought for these reasons.
The second complaint made (paragraph b. of the ground of appeal) again raises the argument that because the father has sole parental responsibility for the child that should dictate what other parenting orders can or should be made. The father submits that the fact of parental responsibility is of “the utmost significance”, and “the starting point is that the father should be entitled to travel with his child, unless, in the best interests of the child, his parental responsibility should be circumscribed by constraining travel”.
The father goes even further and suggests that in these circumstances, to refuse to make the order sought, has the “effect of elevating non parents over both biological father and the child”.
For the reasons that we set out in addressing Ground 1 we reject these propositions. We also observe that these submissions expose the argument of the father as nothing more than promoting what a long line of cases both before and after the 2006 amendments to the Act say is not the case under the Act, namely, there is no presumption in favour of a parent, and there is no entitlement that a parent has to a preferential position from which the decision making process is to commence.
Next there is the issue raised in paragraph c., and this is indeed where the inquiry of the Federal Magistrate should have focussed, namely was the order sought by the father in the best interests of the child. This would also extend to the issue of whether orders 14, 15 and 16 should be made.
As the father correctly points out, the Federal Magistrate “found that the child derives particular joy and enjoyment from plane travel and enjoyed travelling generally” (reasons for judgment paragraph 65); his Honour also “seemed to accept that the child enjoyed an excellent relationship with the paternal family” (reasons for judgment paragraph 91).
This, coupled with the evidence of previous travel overseas (to the country of the child’s heritage), the importance of the child having the opportunity to experience her culture with her extended family, and the fact that the child had always returned to Australia after any trip overseas, should have led the
Federal Magistrate to give serious consideration to making the order sought by the father, as well as informing the Federal Magistrate’s decision to make orders 14, 15 and 16. However, as is correctly pointed out by senior counsel for the father, the Federal Magistrate failed to address this evidence and make any factual findings as to what order was in the best interests of the child, and we accept that this constitutes appealable error.
Of course, there was the circumstance of the father not informing the Court or the respondents that he was in the process of moving to Melbourne at the time when interim orders were made by consent providing for regular contact between the child and the respondents, and the respondents also raised concerns about security issues and interference with studies if the child was taken overseas, but again, that was only one side of the story, and the
Federal Magistrate clearly failed to take into account the relevant evidence in refusing to make the order sought by the father, and in making orders 14, 15 and 16.
Turning then to orders 14, 15 and 16. There is clearly jurisdiction to make an injunction restraining a party from taking a child out of the country (i.e. as per order 14), and that jurisdiction is found in either s 65D (namely as a parenting order) or in s 68B of the Act (see Cales & Cales (2010) FLC 93-459, at 80). Accordingly, to the extent that the Federal Magistrate considered otherwise we find his Honour to be in error.
As to orders 15 and 16, as has been recognised, they are requests rather than orders. As such there is no question that they are requests made in aid of the jurisdiction that the Federal Magistrates Court has to grant injunctions pursuant to s 65D or s 68B of the Act. Of course, that is not how the Federal Magistrate determined this issue; his Honour seems to have made the “orders” to prevent a prospective breach of s 65Y of the Act. We agree with senior counsel for the father that that is untenable, but in the circumstances it is unnecessary to take that any further. If his Honour had jurisdiction he need not identify the source of that jurisdiction. The real issue though in this case is the exercise of that jurisdiction by the Federal Magistrate, and as outlined above, the
Federal Magistrate failed to address the evidence and make factual findings as to what orders should be made in the best interests of the child.
We conclude that there is merit in this ground of appeal.
Ground 6
The first complaint here is that the respondents failed to serve their evidence until 10 days before the trial, and as such the Federal Magistrate should have rejected that evidence and dismissed their application.
His Honour dealt with the material to be considered in paragraphs 4 to 22 of his reasons for judgment. The key paragraphs are paragraphs 16 and 17 where
his Honour said this:
16.As parenting proceedings governed by Division 12A, I have determined to allow and admit all of the material which each of the parties has identified, and subject to the application of the principle rule of evidence as set out in s.56 of the Evidence Act 1995 being the relevance of the material contained therein.
17.A substantial volume of material filed in the proceedings would appear to have little relevance, direct or otherwise, to the future care and welfare arrangements for [X]. However, the material that is filed does not, to the extent that it may not be seen, perceived, or conceded as relevant, prejudice either party as the same applies on both sides of the ledger.
Thus, we reject the claims made in paragraphs a., b., d., and e. of this ground of appeal.
With paragraph c., that is answered by paragraph 14 of his Honour’s reasons, and in any event, as the respondents’ counsel pointed out the father was given the opportunity to lead any oral evidence he wished to meet material filed on behalf of the respondents. Accordingly, there can be no issue of a lack of procedural fairness.
That then leaves the second complaint highlighted in the father’s written submissions and raised in paragraph f. of the ground of appeal.
We were taken to that part of the transcript where the Federal Magistrate referred to the father’s explanation for the failure to file affidavit evidence from the two school teachers as “nonsense”, and the father’s senior counsel made the unhelpful submission that “it was not”.
Apart from that, the father’s senior counsel makes the submission that “[t]he FM was unduly influenced by the cross examination of the father”, and raises again the suggestion that the onus at all times was on the respondents to justify why orders should be made that “interfere with the responsibilities of the father as sole parent”. This is unpersuasive. There is no apparent relevance of the latter submission to this ground of appeal, and it was open to the
Federal Magistrate to take the view that he did of the cross-examination of the father. It evidenced an hostility to the maternal family and an attitude that their role in the child’s life was of low priority and an interference.
We agree with the written submission of counsel for the respondents that:
There is nothing in the transcript or judgment to suggest that the court formed an adverse view of the father through him not having responded to the material filed on behalf of the maternal family.
We find no merit in this ground of appeal.
Conclusion
We have found merit in Ground 5 of the grounds of appeal, and accordingly the appeal should be allowed in part, and the relevant orders made by the
Federal Magistrate set aside. Those orders are 14, 15 and 16, but we note that order 14 not only restrained the father, but also the maternal aunt and the grandmother from removing the child from Australia, and of course orders 15 and 16 are orders that follow on from order 14. There was no cross-appeal by the respondents against these orders insofar as they related to them, but regardless of that the father in his appeal sought that these orders be set aside in their entirety. Thus, and given our finding as to the failure by the
Federal Magistrate to address at all whether the best interests of the child require these orders to be made, whether they relate to the father or the respondents, we will wholly set them aside.
The question then becomes whether this aspect of the proceedings should be remitted to the Federal Magistrates Court for rehearing by a Federal Magistrate other than Federal Magistrate Harman, or whether we can re-exercise the discretion. We are firmly of the view that this issue should be remitted for rehearing. That was the primary position of senior counsel for the father, and significantly, counsel for the respondents indicated that she would want to lead further evidence if we determined to re-exercise the discretion. That evidence is likely to be controversial, and as is well known, the Full Court is not well placed to hear and determine such evidence. However, to be clear, it is only the aspect of what orders should be made in respect of overseas travel by the child which is to be remitted to the Federal Magistrates Court for rehearing.
Costs
At the conclusion of the hearing we received submissions as to costs depending on the result of the appeal.
After much discussion, in the event the appeal was successful, the father’s senior counsel altered his position and did not seek an order for costs against the respondents or the Independent Children’s Lawyer, and instead sought costs certificates under the Federal Proceedings (Costs) Act1981 (Cth) (“the Costs Act”) for both the appeal and any rehearing.
Counsel for the respondents and counsel for the Independent Children’s Lawyer joined in that application.
In the circumstances of this case we consider that no order for costs is warranted in favour of the father, but given the appeal has succeeded in part on a question of law, we propose to grant costs certificates to the father and the respondents for both the appeal and the rehearing. However, as to the application for costs certificates by the Independent Children’s Lawyer, as a result of the decision of the Full Court (Finn, Strickland and Johnson JJ) in Yates & Yates (Independent Children’s Lawyer - Costs) [2012] FamCAFC 219, delivered on 21 December 2012 after reserving our decision in this appeal, we consider that if that application is still pursued by the Independent Children’s Lawyer, the Independent Children’s Lawyer should be given the opportunity to make written submissions in support of that application.
The effect of the decision in Yates & Yates is that where a Legal Aid Commission, or an employee of such a Commission, is the Independent Children’s Lawyer, then s 14(1)(e) of the Costs Act prevents this Court granting costs certificates to the Independent Children’s Lawyer. Here, it is apparent that the Independent Children’s Lawyer is Legal Aid NSW and thus, prima facie at least, no costs certificates can be granted.
In the event that the Independent Children’s Lawyer determines to pursue the application and make written submissions, those submissions should also be served on the other parties, but given this matter only affects the Independent Children’s Lawyer it is unnecessary for those parties to make any submissions.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Coleman & Strickland JJ) delivered on 9 April 2013.
Associate:
Date: 9 April 2013
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