Orders

That the appeal be allowed.

That Orders 1 to 20 inclusive and Order 26 of the orders made by Chief Federal Magistrate Pascoe on 1 September 2011 be set aside.

That the matter be remitted for re-hearing by a Federal Magistrate other than Chief Federal Magistrate Pascoe.

That, pending the re-determination of the proceedings, interim orders are made in the terms of Orders 1 to 20 of the orders of 1 September 2011.

That the costs of the appeal be reserved.

That written submissions in support of any application(s) for costs, including reserved costs be filed and served within fourteen (14) days, and

That written submissions in reply be filed and served within seven days.

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

REASONS FOR JUDGMENT

introduction

By Notice of Appeal filed on 29 September 2011, Mr Barone (“the father”) appealed against orders made by Chief Federal Magistrate Pascoe on 1 September 2011 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in parenting proceedings between the father and Ms Barone (“the mother”).

At the hearing of the appeal, Counsel for the father sought leave to file and rely upon amended grounds of appeal. Senior Counsel for the mother did not oppose that leave being granted. Accordingly, leave to amend was granted.

Order 2 of the orders made by the learned Chief Federal Magistrate on 1 September 2011 provided that the parties have “joint parental responsibility” for their two children. Order 3 of his Honour’s orders provided that the children reside with the mother except when they were spending time with the father pursuant to the Court’s orders.

The learned Chief Federal Magistrate’s Orders 4 and 6 made detailed provision for the time which the children were to spend with the father, and the circumstances in which such orders would be “suspended”.

Order 7 of the orders of the learned Chief Federal Magistrate was expressed to be “conditional upon the father living independently of the paternal family and not residing in premises occupied by them”.

The orders made by the learned Chief Federal Magistrate also stipulated in some detail the circumstances in which the parties’ children were permitted to be in contact with their paternal grandparents, the times during which that could occur, and restraints upon such occurrences (Orders 8, 9, 10 and 17).

His Honour’s orders restrained the father from doing certain things with respect to the children’s health or medical treatment (Orders 11 and 12) and provided that the “mother’s decision” would be “final” with respect to disagreements about the children’s schooling or future medical treatment (Order 25).

The learned Chief Federal Magistrate’s orders also provided that the mother could take the children from Australia, provided that she had given prior notice of her intention to do so to the father (Order 26).

Initially, the mother resisted the father’s appeal, and sought to maintain the orders of the learned Chief Federal Magistrate. However, by an “Addendum to Respondent Mother’s Summary of Argument” dated 21 June 2012, the mother conceded a number of the challenges to the trial judge’s decision articulated on behalf of the father.

Although there was an Independent Children’s Lawyer (“ICL”) at trial, with the consent of the parties, the ICL was excused from attending the hearing of the appeal.

background

The parties married in 2004 and separated in October 2009.

There were two children of the marriage, X born in December 2006, and Y born in November 2007. The children are currently aged 5 and 4 years respectively.

Subsequent to separation, and until interim orders were made on 27 October 2010, the children lived with the mother, and spent time with the father from 9:00am Saturday to 9:00am Monday in one week and 9:00am Sunday until 9:00am Tuesday in the following week. The interim orders of 27 October 2010 continued those arrangements, save that from that date the father’s time with the children was to occur away from the home of the paternal grandparents.

The interim orders of 27 October 2010 also limited the contact which the paternal grandparents were to have with the children to a maximum of one hour per week, which was to occur during the time the children spent with their father, one hour on Christmas Day and one hour on each of the children’s birthdays.

The proceedings were heard over a series of days in October 2010, February and April 2011.

The learned Chief Federal Magistrate’s orders provided, in essence, that the children spend time with the father each alternate weekend from after school on Friday until 5:00pm on Sunday, and in the following week, from after school on Thursday until 9:00am on Friday, and on other occasions, including holiday periods.

the father’s appeal

As noted earlier, shortly prior to the hearing of the appeal, the mother conceded the father’s challenges to a number of the orders made by the learned Chief Federal Magistrate.

Those orders provided:

The children shall spend time with the father as follows:

Each alternate weekend, from after school on Friday until 5.00pm on Sunday;

On the other week, from after school on Thursday until 9.00am on Friday;

From the commencement of the school year in 2015, for half of all school holidays, being the first half of holidays commencing in odd-numbered years and the second half of holidays commencing in even-numbered years;

…

19.The mother shall facilitate telephone contact between the children and the father from 5.00pm to 6.00pm each Tuesday.

…

26.The mother is permitted to take the children out of Australia provided the father has been notified of any travel plans including departure and return dates and flight details at least twenty-one (21) days prior to the date of departure.

It was further conceded that this Court could not properly re-exercise the decision of the learned Chief Federal Magistrate with respect to the matters dealt with by those orders. It was accordingly submitted by Senior Counsel for the mother that the issues which required re-hearing in the Federal Magistrates Court included:

The ambit of any rehearing and the terms and conditions upon which it should occur would include:

The amount of time during the week (excluding school holidays) that the Appellant should have with the children;

When half school holiday time with the Appellant should commence;

The amount of telephone time that each party should have with the children, when the children are in the other party’s care;

That the matter be remitted to the learned Chief Federal Magistrate or if he is not available another Federal Magistrate for rehearing of the above discrete issues on an urgent basis;

That the matter be remitted for hearing on the basis of the findings of fact made by the learned Chief Federal Magistrate in the Reasons for Judgment. [Addendum to Respondent Mother’s Summary of Argument dated 21 June 2012, par 8 (a) (b) (c)].

Counsel for the father accepted that this Court could not properly re-exercise the discretion of the learned Chief Federal Magistrate, but submitted that the issues requiring re-determination in the Federal Magistrates Court should not be restricted or constrained by orders of this Court, irrespective of the fate of contested challenges to those orders.

For a variety of reasons which he outlined, Counsel for the father submitted that the proceedings should be re-determined by a Federal Magistrate other than the learned Chief Federal Magistrate. Senior Counsel for the mother did not wish to be heard in opposition to that proposition.

Without necessarily concluding that it would be inappropriate for the learned Chief Federal Magistrate to re-hear the proceedings, whatever their scope, or on whatever basis, the interests of justice would probably be better served by the proceedings being re-determined by a Federal Magistrate who has had no previous involvement with them, and we will so order.

The issues requiring determination thus emerge as:

the father’s challenges to the decision of the learned Chief Federal Magistrate which have not been conceded; and

whether, and, if so what, constraints should be placed upon the Federal Magistrate re-determining the proceedings.

Although not the first challenge raised to the decision of the learned Chief Federal Magistrate, for reasons which will become apparent, we propose first considering Ground 2 of the father’s Amended Notice of Appeal.

That ground provided:

2.That His Honour erred in failing to have any evident regard to sections 61DA and 65DAA of the Family Law Act 1975 in determining that which was in the best interests of the children in these proceedings.

The submissions of Counsel for the father in support of this challenge were succinctly articulated in his written outline of argument, and no useful purpose is served by our paraphrasing those submissions. It was submitted by Counsel for the father that it had been “incumbent” upon his Honour to:

consider the differing applications of the parties as to the time to be spent by the children with the Appellant … on the basis of the other findings made;

have regard in some manner to the matters required to be considered pursuant to section 65DAA; and,

to disclose the path of reasoning leading to the Orders ultimately made as to the time to be spent by the children with the Appellant.

Counsel for the father submitted that, although the learned Chief Federal Magistrate had ordered that the parties have “joint parental responsibility” for the children (Order 2), it was reasonably apparent from his Reasons for Judgment that his Honour had intended to order equal shared parental responsibility pursuant to s 61DA of the Act.

Senior Counsel for the mother did not expressly concede that the learned Chief Federal Magistrate had intended to make an order for equal shared parental responsibility, but acknowledged that at least one paragraph (par 114) of his Reasons for Judgment supported the inference that his Honour had so intended.

In Newlands v Newlands (2007) 37 Fam LR 103 the Full Court said:

86.… The Act does not refer to “joint parental responsibility” but rather to “parental responsibility” and “equal shared parental responsibility”. The effect of s 61C which operates if no order is made by the court was extensively discussed in B & B: Family Law Reform Act 1995 … (1997) FLC 92-755 and further discussed in Goode, (above).

…

92.… the Act does not speak of “joint parental responsibility”. It appears to us by not following the legislation, her Honour created uncertainty about the outcome. We cannot be certain that her Honour intended that parental responsibility (other than education) was to be shared equally and thus exercised jointly (that is, in consultation) or whether parental responsibility was to be exercised in accordance with s 61C and s 61D and exercised either jointly or independently.

On balance, we are satisfied that the learned Chief Federal Magistrate intended to make an order for equal shared parental responsibility. The submissions of Senior Counsel then representing the father may, by use of the term “joint parental responsibility”, have contributed to the learned Chief Federal Magistrate’s use of a term which does not find expression in the Act. We do not understand Counsel for either party to suggest that the learned Chief Federal Magistrate’s failure to refer to equal shared parental responsibility absolved his Honour from the obligation to follow the legislative pathway created by s 65DAA of the Act. We accept that approach to be correct.

The findings of fact made by the learned Chief Federal Magistrate, which have not been challenged before us, were supportive of the presumption of equal shared parental responsibility applying. His Honour’s findings were also consistent with the presumption not being rebutted pursuant to s 61DA(4).

It was submitted by Counsel for the father that, as a matter of law, the learned Chief Federal Magistrate was obliged to have regard to the “legislative pathway” created by s 65DAA of the Act, and that his Honour had failed to do so. Such failure was submitted to have undermined the totality of the orders his Honour made.

The submissions of Counsel for the father in this regard asserted:

The time to be spent by the children with the Appellant was squarely raised for consideration by His Honour, including by:

the application of the Appellant that the children live with the parties “on the basis of shared equal time”, being ‘alternate weeks’ during school terms and for one half of school holiday periods [AB2:433];

the application of the Respondent that the children spend time with the Appellant inter alia on alternate weekends (from 5pm Friday to 5pm Sunday), on alternate Thursdays until 8pm and for half school holidays from 2015 [AB2:426];

the position of the Independent Children’s Lawyer [ICL] which largely accorded with that of the Respondent, save that in alternate weeks time was proposed on a Thursday overnight [AB2:462];

the Act, including section 65DAA which was required to be considered both as a consequence of the order made for joint parental responsibility and the terms [sic] Appellant’s application; and,

the variation effected by the Orders to the care arrangements which had been in place for the children since November 2009 and which the evidence suggested were working well [eg AB3:562-3].

Senior Counsel for the mother submitted that the learned Chief Federal Magistrate had “dealt with what he had to” with respect to s 65DAA, and that the absence of any express reference in his Honour’s reasons to the section, or its provisions, was not fatal to the overall outcome.

We accept that the learned Chief Federal Magistrate was not obliged to refer expressly to the provisions of s 65DAA, in order to comply with their requirements, provided that, in his reasons, the substance of the various matters there referred to, was considered. Without conceding the father’s challenge, Senior Counsel for the mother acknowledged that the learned Federal Magistrate’s reasons with respect to s 65DAA were not as detailed as they might have been.

The decision of the High Court in MRR v GR (2010) 240 CLR 461 leaves no scope for the uncertainty in relation to the necessity for judicial officers to follow the “legislative pathway” created by s 65DAA of the Act. The High Court there said:

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 (18). 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.

Having regard to the significance attaching to observance of the terms of s 65DAA, it is appropriate to record that the section provides:

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)  Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2) Subject to subsection (6), 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; and

the court must:

(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

(e) 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.

Section 65DAA(3) of the Act defines “substantial and significant time”. Section 65DAA(5) identifies the matters by reference to which “reasonable practicability” is determined. It is unnecessary and unhelpful for present purposes to set out those provisions in full in these reasons.

In the light of the High Court’s decision in MRR (supra), and accepting that the learned Chief Federal Magistrate intended to make an order for equal shared parental responsibility, his Honour was obliged to consider:

whether equal shared time would be in the children’s best interests and reasonably practicable, and, if not;

whether substantial and significant time would be in the children’s best interests and reasonably practicable.

Early in his Reasons for Judgment, the learned Chief Federal Magistrate recorded, accurately, that in final submissions the mother had sought “to have sole parental responsibility” for the children (par 2a).

Under the heading “Legal Principles” the learned Chief Federal Magistrate recorded:

60.The legal principles which govern this case are set out in Part VII of the Family Law Act 1975 (the Act). Most importantly, s.60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.

61.In determining the best interests of the child, the Court must consider the primary considerations, which are set out in s.60CC(2) together with those matters (‘additional considerations’) set out in s.60CC(3). Also of relevance are ss.60CC(4) and (4A) of the Act, which I have considered whilst addressing the matters set out in s.60CC(3).

As is not in doubt, his Honour did not there refer to the presumption of equal shared parental responsibility, or to s 65DAA of the Act.

Under the heading “Application of the law to the facts”, the learned Chief Federal Magistrate considered the “primary considerations” provided by s 60CC(2)(a). His Honour then considered “[t]he need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence” provided by s 60CC(2)(b). His Honour found that there was “no unacceptable risk of harm to the children from their mother” (par 79).

Although a number of findings critical of the father and paternal grandmother were recorded in his Reasons for Judgment, the learned Chief Federal Magistrate did not find that, by virtue of family violence, the presumption of equal shared parental responsibility did not apply. The “additional considerations” provided by s 60CC of the Act were then considered by the learned Chief Federal Magistrate. Under the heading “Conclusion”, the learned Chief Federal Magistrate recorded:

114.In light of all the evidence, I feel shared parental responsibility, with the restrictions I have imposed, is appropriate and in the best interests of the children, with the restrictions I have imposed.

With all due respect to the learned Chief Federal Magistrate, we are unable to accept that his Honour had regard to the mandatory provisions of s 65DAA of the Act. Whilst his Honour clearly considered “best interests”, and concluded as he did with respect to the time which the children should spend with each parent, we are unable to find in his reasons, either expressly or impliedly, any consideration of the reasonable practicability of either equal time being spent with both parents or, more importantly, having regard to his Honour’s findings of fact with respect to best interests, substantial and significant time being spent with both parents.

As the passage of the judgment of the High Court in MRR (supra) to which we have referred above makes clear, in the absence of consideration of, and the making of findings with respect to, the provisions of s 65DAA, the orders made by the learned Chief Federal Magistrate cannot stand.

The challenge to the exercise of jurisdiction having thus been successful, it follows in our view that the only order made by the learned Chief Federal Magistrate which would not be set aside is the order for “joint parental responsibility”, albeit, as we have earlier recorded, that is not a term which finds expression in the Act.

Given our conclusion, it is unnecessary to consider challenges agitated on behalf of the father to other orders made by the learned Chief Federal Magistrate. As is not in doubt in the light of the High Court’s decision in MRR (supra), only after considering, and rejecting, equal shared time or substantial and significant time could the learned Chief Federal Magistrate proceed to make the orders which he concluded to be in the children’s best interests. As is not in doubt, the orders challenged by the father were made as a consequence of his Honour’s conclusions with respect to best interests.

Our conclusion with respect to the challenge to Ground 2 has implications for the dispute in relation to the terms of the order remitting the proceedings for re-hearing. As none of the orders of the learned Chief Federal Magistrate can stand, the proceedings will be remitted for re-hearing, without any orders being made limiting the scope of the re-hearing in the Federal Magistrates Court. It was common ground before us that issues of the kind dealt with by order 26 of the orders of the learned Chief Federal Magistrate had not been raised by either party at trial, and are thus not strictly able to be remitted. However, as the parties are not necessarily bound by the orders then sought at the re-hearing of the proceedings, it is not appropriate for us to attempt to preclude either party from seeking different or additional orders at such re-hearing.

Our conclusion does not mean that the scope of the re-hearing need be as extensive as was the original trial of the proceedings. There are a number of reasons why that is so, the most significant being the potential operation of the provisions of s 69ZX of the Act, and the ability, if the parties wish to do so, of sensibly limiting the re-trial to the real issues which emerge from the judgment of the learned Chief Federal Magistrate.

Rather than create a situation where there are no orders in relation to the parenting of the children until the proceedings are re-determined, thus almost certainly leaving the parties having to seek an interim determination of those matters, we shall make interim orders in the terms of the final orders made by the learned Chief Federal Magistrate.

costs

It is appropriate, and not contentious, that the parties should have the opportunity to make submissions in relation to the costs of the appeal, including costs previously reserved in, or in relation to, the appeal. A timetable of fourteen days for primary, and seven days thereafter for responding, submissions would be sufficient for the purpose.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Coleman and May JJ) delivered on (25 July 2012).

Associate:

Date: 25 July 2012