Open PDF of Judgment - Family Court of Australia

FAMILY COURT OF AUSTRALIA
HAMISH & BRIGHTON
[2014] FamCAFC 234
FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CHILDREN –
RELOCATION – Where the primary challenge is to the spend time with orders and
an order restraining the appellant from changing the place of residence of the children
– Where the appeal is opposed – Where the trial judge failed to address s 65DAA of
the Family Law Act 1975 (Cth) – Where it is not possible to infer from the trial
judge’s findings that his Honour undertook the exercise required by s 65DAA(2) of
the Family Law Act 1975 (Cth) – Where the trial judge made findings as to the best
interests of the children but in the context of s 60CC and not in the context of s
65DAA(2)(c) of the Family Law Act 1975 (Cth) – Where the trial judge did not weigh
up the relative proposals of each of the parties – Where there was no consideration by
the trial judge under s 65DAA(2)(d) of the reasonable practicability of the proposals
of the parties – Where given what the High Court said in MRR v GRR (2010) 240
CLR 461 it is doubtful whether the trial judge had the power to make the orders that
he did – Where there is merit in the first four grounds of appeal – Appeal allowed –
Parenting proceedings remitted to the Family Court of Western Australia for rehearing
by a judge other than the trial judge.
FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – Where
the parties agree that each party should bear their own costs and that costs certificates
should issue for the appeal and for the rehearing – no order for costs – costs
certificates to issue.
Family Law Act 1975 (Cth) – ss 60CC, 65DAA(2), (3), (4), (5) and Part VII
Federal Proceedings (Costs) Act 1981 (Cth) – ss 6, 8 and 9
Collu & Rinaldo [2010] FamCAFC 53
MRR v GR (2010) 240 CLR 461
Nada & Nettle [2014] FamCAFC 123
Orpheus & Orpheus [2014] FamCAFC 70
SCVG & KLD (2014) FLC 93-582
APPELLANT:
Ms Hamish
RESPONDENT:
Mr Brighton
FILE NUMBER:
PTW
[2014] FamCAFC 242
1646
of
2013
Coversheet and Orders Page 1
APPEAL NUMBER:
WA
DATE DELIVERED:
17 December 2014
PLACE DELIVERED:
Adelaide
PLACE HEARD:
Perth
JUDGMENT OF:
Bryant CJ, May &
Strickland JJ
HEARING DATE:
29 October 2014
LOWER COURT JURISDICTION:
Family Court of Western
Australia
LOWER COURT JUDGMENT DATE:
4 March 2014
DATE OF LOWER COURT ORDERS:
24 January 2014
LOWER COURT MNC:
[2014] FCWA 14
8
of
2014
REPRESENTATION
THE APPELLANT:
In person
COUNSEL FOR THE RESPONDENT:
Mr Jones
SOLICITOR FOR THE RESPONDENT:
Paterson & Dowding
[2014] FamCAFC 242
Coversheet and Orders Page 2
ORDERS
(1)
The appeal be allowed.
(2)
Paragraphs 4, 5, 6, 7 and 16 of order 1 and order 2 made by Moncrieff J on
24 January 2014 be set aside, with this order to take effect upon the
commencement of the rehearing of the proceedings.
(3)
The parenting proceedings be remitted to the Family Court of Western
Australia for rehearing by a judge other than Moncrieff J.
(4)
There be no order as to costs.
(5)
The Court grants to the appellant mother 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 it would be appropriate for the
Attorney-General to authorise a payment under the Act to the appellant mother
in respect of the costs incurred by the appellant mother in relation to the appeal.
(6)
The Court grants to the respondent father 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 it would be appropriate for the
Attorney-General to authorise a payment under the Act to the respondent father
in respect of the costs incurred by the respondent father in relation to the
appeal.
(7)
The Court grants to each of the parties a costs certificate pursuant to the
provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a
certificate that in the opinion of the Court it would be appropriate for the
Attorney-General to authorise payment under the Act to each of the parties in
respect of the costs incurred by each of them in relation to the rehearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Hamish & Brighton has been approved by the Chief Justice pursuant to s 121(9)(g) of
the Family Law Act 1975 (Cth).
[2014] FamCAFC 242
Coversheet and Orders Page 3
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH
Appeal Number: WA 8 of 2014
File Number: PTW 1646 of 2013
Ms Hamish
Appellant
And
Mr Brighton
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.
By Amended Notice of Appeal filed on 8 September 2014, Ms Hamish (“the
mother”) appeals certain parenting orders made by Moncrieff J on 24 January
2014, and an order restraining the mother from changing the place of residence
of the two children of the relationship, A born in April 2005, and B born in
September 2011 (“the children”), from Perth to Town X, South Australia.
2.
The appeal is opposed by Mr Brighton (“the father”).
3.
In summary, the parenting orders made by his Honour provided for the parties
to have equal shared responsibility for making decisions about major long-term
issues in relation to the children and for the children to live with the mother,
together with detailed orders for the children to spend time with the father.
There was also the injunction referred to above.
4.
The challenge on appeal is primarily to the spend time with orders, and to the
injunction. The mother seeks that those orders be set aside and the matter be
remitted to the Family Court of Western Australia for rehearing by a judge
other than Moncrieff J.
BACKGROUND
5.
The father was aged 39 years at the time of trial. He holds an undergraduate
degree and is employed by a resources company.
6.
The mother was aged 45 years at the time of trial. She is a health professional,
however she was not employed at the time of trial.
[2014] FamCAFC 242
Reasons Page 1
7.
The parties met in late 1998, commenced cohabitation in January 2003, and
were married in January 2009.
8.
The parties lived in Western Australia for the majority of the marriage, save for
where the father’s working commitments required the family to move overseas
for a period of two years.
9.
The parties separated in mid to late 2012. After separation, the children lived
with the mother and spent time with the father.
10.
The parties agreed that they would have equal shared parental responsibility for
the children, and that the children would live with the mother. The issues that
then fell for determination by the trial judge were whether the mother would be
permitted to relocate the children to South Australia, and what orders would
then be put in place for the children to spend time with the father, or whether,
as the father sought, the mother be restrained from relocating with the children.
11.
Given the close proximity of the end of the school holidays to the hearing, his
Honour made the orders on 24 January 2014, and then delivered his reasons on
4 March 2014.
12.
The parties were able to resolve the property and spousal maintenance issues
by consent following the determination of the parenting dispute. The property
orders saw the mother retain the property in which she resided, subject to a
mortgage, a cash payment to the mother, and spousal maintenance to the
mother until the child B turned four years of age.
THE REASONS FOR JUDGMENT DELIVERED ON 4 MARCH 2014
13.
His Honour commenced his reasons for judgment by recording the relevant
background of the parties, the orders sought by each party, and the orders made
on 24 January 2014.
14.
Turning to issues of credit, the trial judge found that both parties were credible
witnesses, and there was “no reason to doubt the veracity of [their] evidence”
(at [18]).
15.
After setting out a detailed chronology (at [19]-[37]), his Honour recorded the
proposed arrangements for the children including the mother’s reasons for
wishing to relocate the children. These were described by his Honour as “child
focused”. The mother said that she could provide a higher “quality of life” for
the children in South Australia than she could in Perth, due to the proximity of
the mother’s family members in South Australia, who could provide emotional
and practical support (at [38], [40]). The mother claimed that her own morale
and emotional wellbeing would be “enhanced” if relocation was permitted, and
that would benefit the children; she felt “lonely and isolated” in Perth (at [39]).
16.
The mother said that house prices in Perth were high, and that she may not be
able to own her own home there. Conversely, owning a property in South
[2014] FamCAFC 242
Reasons Page 2
Australia was “achievable” combined with lower cost of living expenses (at
[41]). The mother also indicated that the South Australian government offered
a health professional re-training program that would provide her with a good
chance of obtaining employment.
17.
His Honour accepted that the mother’s reasons for wishing to relocate were
bona fide, noting that she did not need to show “compelling reasons” for
relocating (at [43]).
18.
The father opposed the relocation, and proposed that the children spend time
with him, with such time to increase as they matured. In opposing the
relocation proposal, the father submitted that it was not practicable should the
mother re-partner in South Australia, as her vacating her house and his use of
her car would no longer be tenable, which may result in further litigation.
19.
The father also rejected the mother’s assertion that he could easily find work in
South Australia, given that his employer did not offer transfer opportunities
there, and the only resources company in Town X offered opportunities which
he was not qualified to meet.
20.
Finally, the father submitted that the opportunities for the children would be
limited in South Australia compared to the activities they undertook in Perth
such as drama classes, and surf lifesaving.
21.
His Honour recorded that the child B suffered from several health conditions,
which was managed by her seeing orthopaedic specialists and physiotherapists.
22.
The trial judge then traversed the evidence relied upon by the parties (at [50][66]). Ultimately his Honour found that both parties had a loving and
supportive family network.
23.
Dr H was appointed as the single expert witness, and he provided a report to
the court. His Honour said this about Dr H’s evidence (at [71]):
In describing the mother, Dr [H] further stated that “to some degree she has
an unrealistic view of the impact her relocation would have upon [the
father’s] relationship with the children.” After hearing the mother’s
submissions, I agree with Dr [H]. The fractured time table proposed by the
mother would undoubtedly hinder the children’s relationship with the
father, who is indisputably a devoted parent.
24.
Turning to the law, the trial judge cited the remarks of Kirby J in U v U (2002)
211 CLR 238 at [159], referred to the High Court decision of AMS v AIF
(1999) 199 CLR 160 at [44], and subsequently the Full Court decision of Sayer
v Radcliffe (2013) 48 Fam LR 298. His Honour then said this (at [74]):
I am charged with determining not only what will be in the children’s best
interest in the long term but also what is in the immediate best interests of
the younger child, [B], given her young age, diagnosis and the potential
effect that relocation will have on her ability to develop a meaningful
[2014] FamCAFC 242
Reasons Page 3
relationship with an ardent father. As mentioned above, I must also
consider the mother’s “right” to move and the effect that restraining the
mother may have on her wellbeing and consequently, the children.
25.
His Honour set out sections from Part VII of the Family Law Act 1975 (Cth)
(“the Act”), namely s 60B (incorrectly cited by his Honour as s 66B) (the
objects of the legislation and the principles underlying them) and s 60CC (the
primary and additional considerations in determining the best interests of the
children).
26.
His Honour considered that both parties were “excellent parents”, and both had
“wonderful extended families”, and the issue was to either maintain the status
quo and restrict the mother’s freedom of movement, or allow the relocation
which would “unequivocally effect [sic] the singular relationships the father
enjoys with [the children]” (at [81]).
27.
His Honour then addressed seriatim the primary and the relevant additional
considerations in s 60CC of the Act and concluded that “the interests of the
children are better served by their remaining residing within the Perth
metropolitan area” (at [121]).
GROUNDS OF APPEAL
28.
In her Amended Notice of Appeal filed on 8 September 2014 the mother
agitates the following grounds of appeal:
1.
The learned Trial Judge erred by treating the mother’s application for
relocation as the primary issue for determination and by failing to
make parenting orders based on an evaluation of each party’s
proposal and in accordance with the prescribed legislative pathway
applicable to parenting cases, including relocation cases.
2.
His Honour erred in considering the children’s “best interests” in the
context of s 60CC of the Family Law Act 1975 but not in the context
of s 65DAA.
3.
His Honour erred in not considering whether an order would be
“reasonably practicable” in the context of s 65DAA, and failing to
adequately consider the practical, economic and emotional health
aspects associated with the mother residing in Perth.
4.
His Honour erred in failing to make concluded findings to answer the
mandatory questions in s 65DAA(2)(c) and (d).
5.
His Honour erred in failing to adequately consider, where the mother
is the undisputed primary caregiver, alternatives that might enable the
maintenance of a meaningful relationship between the father and the
children if they resided in [South Australia], even if that relationship
was less than “optimal”.
[2014] FamCAFC 242
Reasons Page 4
6.
[2014] FamCAFC 242
His Honour erred in the exercise of his discretion in relation to
s 60CC(3) considerations by:
a.
finding that it would be difficult for the father to establish a
meaningful relationship with the younger child [B] when the
evidence showed that a meaningful relationship already existed;
b.
attaching overriding significance to the benefit to the children of
a meaningful relationship with both parents, at the expense of
other important considerations.
c.
failing to consider adequately the possible or likely effects on
the mother’s parenting capacity if she were required to remain
in Perth, where the mother was already undergoing therapy for
situational anxiety and depression;
d.
failing to consider adequately the estrangement between the
mother and the paternal grandmother and its implications in
respect of:
(1)
the credibility, feasibility or even desirability of the
paternal grandmother’s newly introduced offer to provide
child-minding assistance to the mother as well as to the
father;
(2)
the emotional and psychological wellbeing of the children
e.
finding that the child [B’s] bonds with the paternal grandmother
and other paternal relatives would “undoubtedly deteriorate or
fail to be formed” – a finding which was contradicted by his
subsequent finding in relation to the child’s relationship with the
maternal grandparents;
f.
finding that he preferred the evidence of the paternal
grandmother over that of the mother in relation to child-minding
support provided by the paternal grandmother for the child [B],
when the paternal grandmother had offered no evidence to
contradict that of the mother on this issue.
g.
finding that that [sic] “the mother does not appear to have fully
considered the impact on the children of her proposed move”, a
finding which:
(1)
is not supported by the totality of evidence provided by the
mother;
(2)
implies that the mother was required to provide
“compelling reasons”.
Reasons Page 5
h.
failing to consider adequately the legitimate interests and desires
of the mother, as unchallenged primary caregiver.
7.
His Honour denied the mother, a self-represented litigant, procedural
fairness by severely restricting her ability to effectively cross-examine
members of the paternal family on the issues of negativity and
hostility towards herself, and the withdrawal of practical support by
the paternal grandmother.
8.
His Honour failed to give adequate reasons, in that he did not
consider, weigh and assess the evidence touching upon each of the
relevant matters, make findings on all those matters, and then indicate
to which of those matters he attached greater significance, and how all
the relevant matters balanced out.
9.
His Honour’s decision not to consider the evidence from [Ms P
Hamish] was unreasonable.
DISCUSSION
Grounds 1, 2, 3 and 4
29.
These grounds essentially complain that his Honour failed to address s 65DAA
of the Act.
30.
That Section relevantly provides as follows:
65DAA COURT TO CONSIDER CHILD SPENDING EQUAL TIME
OR SUBSTANTIAL AND SIGNIFICANT TIME WITH EACH
PARENT IN CERTAIN CIRCUMSTANCES
…
Substantial and significant time
(2)
… if:
(a)
a parenting order provides (or is to provide) that a child’s
parents are to have equal shared parental responsibility for the
child; and
(b)
the court does not make an order (or include a provision in the
order) for the child to spend equal time with each of the parents;
the court must:
[2014] FamCAFC 242
(c)
consider whether the child spending substantial and significant
time with each of the parents would be in the best interests of
the child; and
(d)
consider whether the child spending substantial and significant
time with each of the parents is reasonably practicable; and
Reasons Page 6
(e)
(3)
For the purposes of subsection (2), a child will be taken to spend
substantial and significant time with a parent only if:
(a)
(b)
(c)
(4)
if it is, consider making an order to provide (or including a
provision in the order) for the child to spend substantial and
significant time with each of the parents.
the time the child spends with the parent includes both:
(i)
days that fall on weekends and holidays; and
(ii)
days that do not fall on weekends or holidays; and
the time the child spends with the parent allows the parent to be
involved in:
(i)
the child’s daily routine; and
(ii)
occasions and events that are of particular significance to
the child; and
the time the child spends with the parent allows the child to be
involved in occasions and events that are of special significance
to the parent.
Subsection (3) does not limit the other matters to which a court can
have regard in determining whether the time a child spends with a
parent would be substantial and significant.
Reasonable Practicality
(5)
[2014] FamCAFC 242
In determining for the purposes of subsections (1) and (2) whether it
is reasonably practicable for a child to spend equal time, or substantial
and significant time, with each of the child’s parents, the court must
have regard to:
(a)
how far apart the parents live from each other; and
(b)
the parents’ current and future capacity to implement an
arrangement for the child spending equal time, or substantial
and significant time, with each of the parents; and
(c)
the parents’ current and future capacity to communicate with
each other and resolve difficulties that might arise in
implementing an arrangement of that kind; and
(d)
the impact that an arrangement of that kind would have on the
child; and
(e)
such other matters as the court considers relevant.
Reasons Page 7
31.
Here the pre-conditions to the application of sub-s (2) were plainly satisfied.
As his Honour records at [79], it had been agreed between the parties that they
were to have equal shared parental responsibility. Further, there was no
question of there being an order for the children to spend equal time with the
parents. Thus, the trial judge was obliged to apply s 65DAA(2).
32.
The importance of engaging with s 65DAA(2) is that in not doing so there is no
power in the court to make a parenting order. The High Court said this in MRR
v GR (2010) 240 CLR 461 at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to
consider both the question whether it is in the best interests of the child to
spend equal time with each of the parents (para (a)) and the question
whether it is reasonably practicable that the child spend equal time with
each of them (para (b)). It is only where both questions are answered in the
affirmative that consideration may be given, under para (c), to the making
of an order. The words with which para (c) commences (if it is) refer back
to the two preceding questions and make plain that the making of an order
can only be considered if the findings mentioned are made.
A
determination as a question of fact that it is reasonably practicable that
equal time be spent with each parent is a statutory condition which must be
fulfilled before the Court has power to make a parenting order of that kind.
It is a matter upon which power is conditioned much as it is where a
jurisdictional fact must be proved to exist. If such a finding cannot be
made, sub-ss (2)(a) and (b) require that the prospect of the child spending
substantial and significant time with each parent then be considered. That
sub-section follows the same structure as sub-s (1) and requires the same
questions concerning the child’s best interests and reasonable practicability
to be answered in the context of the child spending substantial and
significant time with each parent.
(Footnotes omitted)
33.
As can be seen that paragraph primarily addresses s 65DAA(1), but then
appropriately applies the same principle to s 65DAA(2).
34.
Nowhere in his Honour’s reasons is s 65DAA(2) mentioned, despite it being
the subject of written submissions by both parties, but more significantly, it is
not possible to even infer from his Honour’s findings that despite this omission,
his Honour undertook the exercise required by s 65DAA(2).
35.
Certainly, his Honour did consider and make findings as to the best interests of
the children, but he did so in the context of s 60CC of the Act, and it cannot be
said that he did so under s 65DAA(2)(c). It is of course not strictly necessary
to address the best interests of the children under s 60CC, and then repeat the
exercise when applying s 65DAA; indeed, often what is done is when applying
the latter section there is a reference back to what is said under s 60CC (see
[2014] FamCAFC 242
Reasons Page 8
Collu & Rinaldo [2010] FamCAFC 53 at [374]). However, not even that
methodology was adopted by his Honour here.
36.
Further, there is no consideration by his Honour under any rubric, let alone
s 65DAA(2)(d), of the reasonable practicability of the proposals of the parties.
We will return to this omission shortly.
37.
To take up the point earlier made, where a trial judge omits to refer specifically
to s 65DAA(2), and to then expressly apply that sub-section, it may still be
sufficient if it can be inferred from an examination of the reasons for judgment
as a whole that he or she has addressed the matters in s 65DAA(2). That is
plain from the decisions of the Full Court in SCVG & KLD (2014) FLC 93-582,
Orpheus & Orpheus [2014] FamCAFC 70, and Nada & Nettle [2014]
FamCAFC 123. However, to repeat, we are not persuaded that the necessary
inferences can be made from his Honour’s findings read holistically. Further,
as the mother submitted in her written summary of argument:
13. … There were no “factual and legal concessions” which could
“conclusively deal” with factors that the legislation required to be
considered. Issues relating to time, best interests and reasonable
practicability remained very much in contention.
38.
At [79] of the reasons for judgment his Honour said:
The Act also requires me to apply a presumption of equal shared parental
responsibility. This has already been appropriately agreed between the
parties and therefore it is unnecessary for me to comment on this further.
It is unclear to us precisely what his Honour meant in this passage. On one
view, it might appear to be confined to the facts as stated. That is to say that
the parties had agreed (because both sought such an order) that there would be
an order for equal shared parental responsibility, effectively applying the
presumption, and that there was no need to further consider whether such an
order should be made as there was no controversy. However, as indicated, the
proposal to provide for the parents to have equal shared parental responsibility
by the making of an order immediately engages s 65DAA of the Act. Given
that his Honour did not refer to that section at any stage, another interpretation
of [79] of the reasons for judgment is that his Honour misunderstood that the
making of an order for equal shared parental responsibility, whether by consent
or otherwise, no longer required him to engage with the provisions of s
65DAA. This uncertainty makes it difficult to know whether any real
consideration was given to the matters in s 65DAA, even if contained in
findings made under other sections of Part VII of the Act.
39.
In this case of course the controversy was over the question of substantial and
significant time. The father’s proposal was that the mother remain in Perth,
and that he continue to have substantial and significant time with the children.
[2014] FamCAFC 242
Reasons Page 9
The mother conceded that the orders he was enjoying, and the orders that he
proposed, were she to remain in Perth, constituted substantial and significant
time. However, the mother’s case was that she should be permitted to relocate
the children to South Australia, and that the orders that would be in place, if she
were permitted to go, both as sought by her and the father, would not provide
for substantial and significant time. Thus, as the mother submitted in her
summary of argument, this was a live issue for his Honour, and findings
needed to be made under s 65DAA(2) of the Act.
40.
On the question of whether the trial judge addressed “reasonable practicability”
counsel for the father conceded that in his Honour’s reasons for judgment he
only addressed the question of reasonable practicability at [45], [46], [63], [83],
[110], [112], [113], and [114]. Only two of these paragraphs ([63] and [112])
related to the circumstances of the mother, and the rest related to the father. It
also needs to be understood that these were matters that his Honour referred to
when setting out the husband’s proposed arrangements, identifying the
evidence before him, and assessing the best interests of the children by
reference to relevant factors in s 60CC; his Honour was not considering them
in the context of s 65DAA(2)(d) (and s 65DAA(5)).
41.
Further, in Ground 1 the mother asserts that his Honour failed to weigh up the
relative proposals of each of the parties, and it can be seen that when the
matters raised by the mother going to reasonable practicability are exposed,
they were not addressed by his Honour at all, and certainly not in the context of
s 65DAA(2)(d). The mother set out the various matters that his Honour should
have considered in complying with s 65DAA(5) in paragraph 18 of her written
summary or argument as follows:
…
•
The mother’s [unchallenged] evidence of situational anxiety and
depression, and consequent effects on her parenting capacity;
•
The mother’s evidence of much more affordable housing, and lower
living costs, in [South Australia];
•
The mother’s [unchallenged] evidence that it would be extremely
difficult if not impossible for her to retrain and resume her [health
professional] profession in Perth, but this was eminently feasible in
[South Australia];
•
The mother’s evidence that she would be forced to access day care
facilities in Perth, a prospect which concerned her greatly, whereas
she could access unlimited, free, best quality child-minding from
family members in [South Australia];
•
[His Honour’s] finding in relation to “the willingness and ability of
each of the child’s parents to facilitate, and encourage, a close and
[2014] FamCAFC 242
Reasons Page 10
continuing relationship between the child and the other parent”, which
was a positive finding in respect of the mother’s proposal;
42.
•
The mother’s evidence that she would not only have more time with
her children in [South Australia], but would have greater
opportunities for “one on one” time with each of her children;
•
[His Honour’s] own finding that the mother’s proposal would not
involve financial difficulty for the father, nor would there be any
problems with communication between the parents over issues
involving the children.
We accept this submission, and thus, given what the High Court has said in
MRR v GR, we doubt that the necessary findings providing the power to make
the orders which his Honour made were present. Accordingly we find that there
is merit in these grounds of appeal.
Grounds 5, 6, 7, 8, and 9
43.
Given that we have found merit in Grounds 1, 2, 3 and 4 we do not intend to
discuss the other grounds of appeal, save only to say that, without rejecting
completely the matters raised by the mother in support of them, we do not find
any of them, either collectively or individually, to constitute appealable error.
CONCLUSION
44.
Having found merit in Grounds 1, 2, 3 and 4, the appeal must be allowed and
certain of the orders made by his Honour set aside. Curiously, in Part E
paragraph 8 of the Amended Notice of Appeal the mother identified paragraphs
4, 5, 6, 7, 14(b), 16, 17, and 18 of order 1 as the orders appealed against, but in
the orders sought she only sought that paragraph 4 (the injunction) be set aside.
It is certainly necessary to set aside paragraph 4, but we also consider that
paragraphs 5, 6, 7, and 16 should be set aside because they are the parenting
orders that were made on the basis of the mother having to keep the children in
Perth. As a formality it is also appropriate to set aside order 2, namely that
“[t]he said proceedings otherwise be and are hereby dismissed”. There is no
basis though to set aside paragraphs 14(b), 17 or 18 of order 1.
45.
Further, in the absence of any findings in the context of s 65DAA(2) of the Act
to support the decision it is not open to this court to re-exercise the discretion
and the parenting proceedings will have to be remitted to the Family Court of
Western Australia for rehearing by a judge other than Moncrieff J. On that
basis it is appropriate to provide for the setting aside of the relevant orders to
take effect upon the commencement of that rehearing. That will avoid there
being a hiatus in the arrangements for the children pending the rehearing.
[2014] FamCAFC 242
Reasons Page 11
COSTS
46.
At the conclusion of the hearing we received submissions as to the question of
costs depending upon the result of the appeal. In the event that the appeal was
successful, both parties argued that each party should bear their own costs, but
that costs certificates should issue for the appeal and for the rehearing pursuant
to the Federal Proceedings (Costs) Act 1981 (Cth).
47.
We agree that there should be no order for costs but that it is appropriate for
costs certificates to issue as sought.
I certify that the preceding forty seven (47) paragraphs are a true copy of the
reasons for judgment of the Honourable Full Court (Bryant CJ, May and
Strickland JJ) delivered on 17 December 2014.
Legal Associate:
Date: 17 December 2014
[2014] FamCAFC 242
Reasons Page 12