Walters and Hanson - [2017] FamCAFC 176

FAMILY COURT OF AUSTRALIA

WALTERS & HANSON

[2017] FamCAFC 176

FAMILY LAW – APPEAL – COSTS – Where the parties requested that the Full Court make orders by consent – Where the Full Court set aside the orders of the primary judge – Where the parties each seek certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the challenges the subject of the Notice of Appeal raise questions of procedural fairness – Where there is merit in those challenges – Costs certificates ordered.

Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Mr Walters

RESPONDENT:

Ms Hanson

FILE NUMBER:

BRC

2219

2016

APPEAL NUMBER:

2016

DATE DELIVERED:

24 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ryan, Aldridge & Forrest JJ

HEARING DATE:

24 August 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 December 2016

LOWER COURT MNC:

[2016] FCCA 3448

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Galloway

SOLICITOR FOR THE APPELLANT:

John Monteath & Associates

COUNSEL FOR THE RESPONDENT:

Mr Andrew & Ms Christie

SOLICITOR FOR THE RESPONDENT:

Highland Ferguson Lawyers

Orders By Consent

The appeal be allowed.
That the orders of Judge Coates made 1 December 2016 be set aside.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children child [A] born … 2009 and child [B] born … 2011 (“the children”).
That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)       They shall inform the other parent about the decision to be made;
(b)       They shall consult with each other on terms that they agree; and
(c)       They shall make a genuine effort to come to a joint decision.
That notwithstanding the provision of Order 4:
(a)The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her; and
(b)The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
That except as otherwise ordered or agreed, the children are to live with the Mother.
That the children are to spend time with and/or communicate with the Father as agreed between the parents and if they fail to agree then as follows:
(a)Commencing 3 December 2016, each alternate week from after school (3.00 pm) Friday until before school (9.00 am) the following Monday, to continue fortnightly thereafter;
(b)For one half of the Easter, June/July and September/October school holiday periods each year being:
(i)The first half in odd numbered years; and
(ii)The second half in even numbered years;
(c)For one half of the Christmas/New Year school holiday periods each year being:-
(i)In 2017/2018 year and each alternate year thereafter, weeks 2, 3 and 6;
(ii)In 2018/2109 year and each alternate year thereafter, weeks 1, 4 and 5.
(d)Order 7(a) shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences, determined as if the sequence had not been interrupted;
(e) On the birthday of either child:
(i)If a school day, from 3.00 pm until 6.00 pm; and
(ii)If a non school day, from 1.00 pm until 6.00 pm;
(f)From 2018 and onwards, on the Father’s Day weekend from after school (3:00pm) Friday until before school (9:00am) the following Monday.
(g)The Father’s time under 7(a) shall be extended to include any pupil free day and/or public holiday which may occur on the Friday or the Monday of his scheduled weekend.
(h)On the telephone at such times as the children reasonably request but otherwise between 4.00 pm and 6.00 pm on each Wednesday and in relation to such communication the Mother shall:
(i)Ensure that the children are available to receive the telephone call;
(ii)Arrange for the children to telephone the Father on the following night if, for any unforeseen circumstance, the children miss the telephone call from the Father; and
(iii)Ensure that the children have privacy during the conversation.
That except as otherwise ordered, the Father shall collect the children from and return the children to school and/or kindy (where appropriate).
That if the children are not attending school, the children shall be collected by the Father from the Mother at the Coles carpark Suburb A at the commencement at 3.00 pm and the Father shall return the children to the Mother at Coles carpark Suburb A at the conclusion.
That each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.
That for the purposes of these Orders, the school holiday time shall commence:
(a)If the Father’s time falls in the first half of the holidays, from 3pm on the day the school term finishes and conclude at 3.00 pm the following Friday, or if the holidays are less than 2 weeks, then 3.00 pm on the day calculated to be half of the holidays;
(b)If the Father’s time falls in the second half of the holidays, from 3.00 pm on the second Friday of the holiday period, or if the holidays are less than 2 weeks, then 3.00 pm on the day calculated to represent half of the holidays. Contact shall end at 3.00 pm the Friday before the school term commences; and
(c)School holidays shall be deemed to commence at close of school (3.00 pm) on the day the school term finishes and conclude at 3.00 pm on the Friday before the children return to school.
That the parents authorise, by this Order, the schools/kindy/extracurricular organisations attended by the children to give each parent information about the children’s educational progress and other school related and extracurricular activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parents cost). Each parent shall be free to attend at the children’s school and extracurricular activities.
That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b) Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
That in the event the children are in the care of the Father on Mother’s Day weekend, then the Father’s time otherwise under these orders is suspended for that weekend.
That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential address and contact telephone numbers;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
That the Court allocate, pursuant to s.90MT(4) of the Family Law Act 1975, a base amount of $30,000 (Thirty thousand dollars) to the Appellant out of the Respondent’s interest in her Q Super Superannuation Fund (“the Fund”).
That in accordance with s 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable from the Respondent’s interest in the Fund, the Trustee of the Fund, Q Super shall pay to the Appellant an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $30,000 and that there be a corresponding reduction in the entitlement that the Respondent would have in the Fund but for these Orders.
That the operative date for Orders 16 and 17 be four (4) business days from the date a sealed copy of these Orders are served on the Trustee of the Fund.
That these Orders bind the Trustee of the Fund.
That unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any money due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all real and other property (including choses-in-action) and the credit balance of any bank and/or building society and/or credit union accounts in the possession of such party as at this date;
(b)Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)All insurance policies to become the sole property of the beneficiary named therein; and
(d)Each party be solely liable for and indemnify the other against any current or future liability including the liabilities encumbering any item of property or real property to which that party is entitled pursuant to these orders.

IT IS FURTHER ORDERED:

Stay the operation of orders 16, 17, 18 and 19 for 21 days from the date of these orders.
Within 7 days the solicitor for the appellant shall give the Trustee of Q Super Superannuation Fund written notice of the proposed splitting order contained in Exhibit A tendered in this appeal.
The Trustee of Q Super has liberty to apply to be heard against this court making the splitting order which liberty expires 21 days from today.
Within 14 days the solicitor for the appellant is to file an affidavit of compliance with Order 20.
That the court grants to the appellant Father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the court, would be appropriate for the Attorney General to authorise a payment under that Act to the Mother in respect of the costs incurred by her in relation to the appeal.
That the court grants to the respondent Mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the court, would be appropriate for the Attorney General to authorise a payment under that Act to the Father in respect of the costs incurred by him in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walters & Hanson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 93 of 2016
File Number: BRC 2219 of 2016

Mr Walters

Appellant

And

Ms Hanson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

Before the court today is an appeal by Mr Walters (“the father”) against parenting, property and costs orders made by Judge Coates on 1 December 2016. The orders were made by his Honour on what he described as an undefended basis. However, the judgment makes clear that his Honour took into account in relation to the parenting orders some brief submissions made by the father on that occasion. That is the extent, it would seem, of the regard his Honour had to the evidence filed by the father and the submissions he made and sought to make in relation to the parenting and property orders.
Central to the appeal presented by the father is what was said to be a denial of procedural fairness by his Honour. Unfortunately it must be said that the transcript of the proceedings adequately demonstrates the concerns raised in the Notice of Appeal about the denial of procedural fairness. It was regrettable and I have had no difficulty accepting the proposition advanced by the father that the trial proceedings substantially departed from proper process. The appeal has been allowed accordingly.
The respondent is not responsible for the denial of procedural fairness to the father and the parties’ agreement that no party should pay the other party’s costs of the appeal is appropriate in these circumstances. Otherwise, the conditions for a certificate have been met.
In these circumstances and, particularly having regard to the parties’ modest financial circumstances, I am more than satisfied that each of them should have a certificate for the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) and would order accordingly.

Aldridge J

I agree.

Forrest J

I agree.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Forrest JJ) delivered on 24 August 2017.

Associate:

Date: 29 August 2017