Simpson & Brockmann [2010] FamCAFC 37

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REASONS FOR JUDGMENT

This appeal raises again for consideration, the meaning of the term “by way of rehearing”, as descriptive of the nature of the appellate process in this court.

The particular question posed is whether, when deciding if a conclusion of the court below is right or wrong – as distinct from when re-exercising a discretion, after error has been found – the Full Court must apply the law at the time of deciding the appeal, not the law as it stood at the time of the decision appealed.

Much of the background to the appeal is neatly summarised in the reasons of Jarrett FM for the orders of 18 July 2008, which are the subject of the appeal:

1.This case concerns parenting arrangements for [B] (…now 10 years of age) and [S] (…now 11 years of age). [B’s] biological mother is the respondent, [Ms Brockmann] and [S’s] biological mother is the applicant, [Ms Simpson].

2.[Ms Simpson] and [Ms Brockmann] were in an intimate relationship. They lived together between early 1994 and April, 2003. Both children were born during that period. Both women used the services of an IVF clinic to become pregnant. The same sperm donor was used for each pregnancy. The identity of the donor is unknown.

…

15.…Upon separation in April, 2003 [Ms Brockmann] left the parties’ home in [northern New South Wales] with [B] and [Ms Simpson] stayed in that home with [S]. …

…

3.[Ms Simpson] and [Ms Brockmann] have fallen into dispute since their separation about the parenting arrangements that will best suit [their children]. There have been parenting orders between them in the past, but recently [Ms Brockmann] and [B] moved from where they lived in northern New South Wales to Sydney. That meant that the parenting orders that were then in place became unworkable and [Ms Simpson] instituted these proceedings.

The essential result of the orders that Jarrett FM made was that the child B continued to live with her mother, who was not required to move from Sydney, and the child S continued to live with his mother in Northern New South Wales. Each child was to spend some time in the household of the other child and that child’s mother.

It is Ms Simpson who appeals the orders and she seeks a rehearing of her application which, as it stood before Jarrett FM, he described as:

4.Primarily [Ms Simpson] asks for an order that [B] and [S] live with her in northern New South Wales and that they spend time with [Ms Brockmann] depending upon where it is that she is living from time to time. The proposed regime is not straightforward and is different for both children. She also has an alternative proposal in the event that the orders she primarily seeks are not made. …

In the amended Notice of Appeal there are twelve grounds, which in her Summary of Argument Ms Cotter-Moroz, counsel for Ms Simpson, groups into four categories. In the first category, counsel firstly contends that, even as the Family Law Act 1975 (Cth) (“the Act”) stood at the time of the Federal Magistrate’s orders (18 July 2008), each woman was a parent of the child of the other woman, though Jarrett FM, found to the contrary. The consequences, runs the argument, are that Jarrett FM, in considering what parenting orders to make, had been bound to apply the presumption of equal shared parental responsibility and then follow the “pathway” set out in Part VII of the Act, but that he did not do so.

The second contention in this category is that, from the commencement of the Family Law Amendment (Defacto Financial Matters and Other Measures) Act 2008 (“the Amending Act”), which was on 21 November 2008, four months after Jarrett FM’s orders, each woman is now the parent of the child of the other woman and, since an appeal to the Full Court of the Family Court is by way of rehearing, the correctness of the decision below must be assessed according to the law at the time the appeal is heard and thus, the decision of Jarrett FM can be seen to be wrong.

We intend to consider the second contention first. Indeed in her further outline of submissions, Ms Cotter-Moroz referred to the contention as the “Preliminary Issue” and oral argument was directed to it first.

Within the first category are other contentions of a more specific nature, which will be detailed and discussed later.

The remaining categories asserted that the Federal Magistrate’s decision was flawed because of:

Failure to consider relevant matters;

Failure to provide reasons;

Denial of procedural fairness.

Two grounds cross categories; Ground 1, which is relied on in both the first and third categories and Ground 4, which appears in both the first and fourth categories. Each argument will be considered. Ground 12, which asserts a wrong finding about why the case was re-opened, sits outside the four categories identified.

First category (Grounds 1, 2, 3 and 4)

(i)That this Court should, in considering the correctness of the Federal Magistrate’s application of the law, apply the law as it stands now, not as it was then

Ms Cotter-Moroz’s arguments are succinctly set out in her amended further outline as follows:

1.The appellant submits that the law which must be applied by this Honourable Court in determining this appeal is the law as contained in the Family Law Act 1975 (as amended), and in particular Parts X and VII as amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, which received Royal Assent on 21 November 2008 and Schedule 3A commenced on that day.

2.It is submitted that even in the absence (which is not conceded) of any other appellable error on the part of the Honourable Federal Magistrate this Honourable Court must apply the law referred to in paragraph 1 in determining whether there is substance in Ground 1 of the appeal.

3.In light of the High Court’s decision in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (especially per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [65]-[71]; per Callinan J at [612]-[613] about the nature of an appeal by way of rehearing) the appellant respectfully submits that the decision in Vanderhum & Doriemus [2007] FamCA 478 (esp the views expressed at para 91 re the distinction drawn and para 101 re impact of the amendments to Part VII) is plainly wrong and should not be followed.

4.It is further respectfully submitted in light of Ward that Vanderhum represents a misleading proposition of law about the nature of an appeal by way of rehearing by this Honourable Court.

5.In the event that this Honourable Court is not persuaded that the decision in Vanderhum & Doriemus is plainly wrong, the appellant submits that Vanderhum is clearly distinguishable. The appellant submits that item 9 of Schedule 3A of the Amending Act plainly manifests, in express terms, that s 60H of the Amending Act operates retrospectively to decisions (whether at first instance or on appeal) from 21 November 2008.

We deal with the retrospectivity point first. Item 9 of Schedule 3A of the Amending Act provides:

(1)  Subject to subsections (2) to (8), the amendments made by this Schedule apply in relation to a child born before, on or after the commencement of this item.

We accept readily that, consequently, if the same litigation between these parties as was determined by Jarrett FM, was determined now, the amended s 60H would apply. But that is the limit of any element of “retrospectivity”.

Nothing in the item indicates a legislative intention that a consequence of the Amending Act was to render wrong, applications of s 60H, (as it stood before amendment), in concluded litigation.

In Boral Windows and Ors v Industry Research & Development Board and Ors (1998) 83 FCR 215, Hill J said:

The applicable principles of interpretation

Senior Counsel for Gas Corp commenced his submissions with reference to the principles of statutory construction enunciated by Lindley LJ in Lauri v Renad [1892] 3 Ch 402 at 421 where his Lordship said:

“It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.”

A similar formulation of this principle is likewise to be found in a judgment of Bowen LJ in Reid v Reid (1886) 31 Ch D 402 at 408-409 where his Lordship said:

“We are dealing, it is true, with an Act which is in some sense and to some extent retrospective, and with a section that is to some degree retrospective. … Now the particular rule of construction which has been referred to, but which is valuable only when the words of an Act of Parliament are not plain, is … that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights. It seems to me that even in constructing an Act which is to a certain extent retrospective, and in construing a section which is to a certain extent retrospective, we ought nevertheless to bear in mind that maxim as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant.”

It may be conceded that there is an element of ambiguity in labelling a statute retrospective. The extent of that ambiguity is pointed up by Jordan CJ in Coleman v The Shell Company of Australia Ltd (1943) 45 SR (NSW) 27 at 30 and in the cases referred to in the joint judgment of McHugh and Gummow JJ in Commonwealth of Australia v ACI Operations Pty Ltd [1998] HCA 20 at 21. A distinction can be drawn between a statute which provided that as at a past date the law shall have been taken to be that which it was not and the creation by statute of further particular rights or liabilities with respect to past matters or transactions. Both are labelled retrospective in operation.

…

Retrospective legislation is somewhat distasteful. Retrospective legislation which takes away accrued rights is even more so. A construction not retrospective and a construction that does not operate in respect to vested rights will always be preferred if open. But ultimately this Court must give effect to the language which Parliament has used and the legislative purpose to which that language points. Not only does s 8 of the Acts Interpretation Act 1901 allow the possibility of a contrary intention but it also must be read subject to s 15AA of the same Act which directs the Court, looking at the question of construction as a whole, to adopt that construction which will further the parliamentary purpose.

In our view, there is no uncertainty about the degree to which the Amending Act operates retrospectively.

As seen from her further outline, Ms Cotter-Moroz’s submissions about the nature of an appeal to this court, by way of rehearing, places heavy reliance on seven paragraphs from the judgment of the majority in the High Court in Ward’s case. Those passages are:

3.The applicable law

65The first question is to determine the law which should have been applied by the Full Court. This included the 1998 Act and the Territory and State legislation authorised thereby.

66In the interval between the making of the determination by Lee J and that by the Full Court, the State had legislated in express reliance upon those provisions of Div 2B (ss 23E and 23I) allowing the State to legislate in respect of certain acts attributed to it so as to extinguish native title in the same way as was done under Div 2B for acts attributable to the Commonwealth. The legislation in question was enacted by way of amendment to the Titles Validation Act 1995 (WA). The Titles Validation Amendment Act 1999 (WA) commenced on 5 May 1999, before the Full Court reserved its judgment.

67The claimants in one of the appeals before the Full Court (No WG6294/1998) comprised numerous parties identified by the Full Court …, as “the Alligator appellants”. The Alligator appellants are now represented as the seventh respondents in Matter No P67. In the Full Court, the Alligator appellants, in their written submissions, had sought to invoke the Western Australian legislation which came into effect on 5 May 1999.

68In the Full court, Beaumont and von Doussa JJ dealt with those submissions as follows:

“It was contended that if native title had not already been extinguished in respect of a number of grants to particular appellants within the Alligator group, that Act would have the effect of validating the grants and confirming extinguishment. In light of the conclusions that we have reached as to extinguishment, the premise on which the alternative submissions are advanced does not arise.

However, it should be noted that a right of appeal to this Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is an appeal in the strict sense and not by way of rehearing. Accordingly, the Court must consider and apply the law as it stood at the date of the hearing at first instance, and not at the date of hearing of the appeal. If legislation which comes into force after the operative date of the determination affects native title in a way that contradicts the determination, power exists under s 13(1) of the NTA for the Court on application under s 61 to vary or revoke an approved determination.”

In the interval between the reservation and delivery of judgment, further changes to the Western Australian legislation came into effect. These changes were made by the Titles (Validation) and Native Title (Effect of Past Acts) Amendment Act 1999 (WA). The commencement date was 13 December 1999. The State legislation is now consolidated as the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (the State Validation Act).

69One reason for the Full Court declining to enter upon the significance for its decision of the legislation as relied upon by the Alligator appellants was found in earlier decisions of the Full Court respecting the nature of appeals within that Court.

70The provisions of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), in particular s 24, take a form which is in no relevant way different from the provisions of the Family Law Act 1975 (Cth) governing appeals to the Full Court of the Family Court of Australia. Those provisions were considered by this Court in CDJ v VAJ and in Allesch v Maunz. In CDJ, it was held that the Full Court of the Family Court was bound, on an appeal to that Court, to “decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal”. This understanding of the operation of those provisions was affirmed in Allesch.

71It follows that in the present litigation the Full Court erred in concluding that by reason of s 24 of the Federal Court Act account could not be taken of the State Validation Act. An appeal to the Full Court of the Federal Court is not an appeal in the strict sense and Duralla Pty Ltd v Plant and Petreski v Cargill should be overruled. As will later appear, the provisions of the State Validation Act do bear on the existence of native title, as do those of the Territory Validation Act, and, thus, each of the appeals to this Court must be allowed. (footnotes omitted)

Ward’s case involved determinations of native title claims in the Federal Court of Australia. On appeal from the decision at first instance, the Full Court of The Federal Court (Beaumont and von Doussa JJ, North J dissenting) allowed the appeals, set aside the orders of the trial judge and – importantly for the present discussion – substituted new determinations as to native title. [See State of Western Australia v Ward (2000) 99 FCR 316.]

The structure of the reasons of the majority in the Full Court of the Federal Court is not one in which their Honours dealt separately with whether grounds of appeal contained merit and, having found that one or more did, proceeded to re-determine the matter. Rather, as their Honours dealt with arguments that the trial judge had erred, in particular parts of his determination, their Honours formulated and expressed their own views of the correct result.

Their Honours’ reasons are lengthy, comprising some 679 paragraphs. Towards the end of their reasons, under the heading “(c)  Conclusions on the appeals” commencing at paragraph 554, their Honours say:

554.For the general reasons we have given in respect of the extinguishment issues that arise in relation to the Ord Project, we are of the opinion that in respect of the area covered by the Argyle Diamond Project also, all native title has been extinguished. …

555.These general considerations apart, we should also specifically consider the particular matters relied upon by the trial judge in coming to his conclusion that native title had not been extinguished:

…

574.For reasons similar to those we have given in respect of the Argyle lease, we have difficulty accepting his Honour’s analysis.

575.It will be convenient to consider the mining leases first.

Their Honours in the Full Court of the Federal Court then consider a series of “determinations” in a manner which, in our view, obviously includes re-determination. It is as part of this process that the passage quoted in the judgment of the majority in the High Court (paragraph 68 of the High Court judgment, set out earlier), and upon the High Court’s disapproval of which Ms Cotter-Moroz places such weight, appears. The more specific context is:

Titles Validation Amendment Act 1999 (WA)

659.The Alligator appellants …, sought to invoke the Titles Validation Amendment Act which was assented to and came into effect on 12 May 1999, after the trial judge delivered the judgment. …. It was contended that if native title had not already been extinguished in respect of a number of grants to particular appellants within the Alligator group, that Act would have the effect of validating the grants and confirming extinguishment. In light of the conclusions that we have reached as to extinguishment, the premise on which the alternative submissions are advanced does not arise. However, it should be noted that a right of appeal to this Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is an appeal in the strict sense and not by way of re-hearing. Accordingly, the Court must consider and apply the law as it stood at the date of the hearing at first instance, and not at the date of hearing of the appeal: Duralla Pty Ltd v Plant (1984) 2 FCR 342 and Petreski v Cargill (1987) 18 FCR 68. If legislation which comes into force after the operative date of the determination affects native title in a way that contradicts the determination, power exists under s 13(1) of the NTA for the Court on application under s 61 to vary or revoke an approved determination.

We return to Ms Cotter-Moroz’s submissions about the High Court’s reasoning in the appeal to that court in Ward. In particular, we pose the question whether, in referring to the law that the Full Court should have regarded as applicable, their Honours in the High Court were addressing the Full Court’s redetermination, rather than the Full Court’s examination of whether there was merit in the grounds of appeal. We consider the following passages point to the former, rather than the latter, situation.

In his submissions to the High Court, the Solicitor-General for the Commonwealth said:

Changes in the law and appeals: Where a change in the law occurs between trial and appeal, the initial question is whether the appeal is one strictu sensu [or] by way of rehearing. … In an appeal strictu sensu a change in the law at the date of the trial would not normally be taken into account. A problem arises when the intervening legislation is retrospective. If that legislation expressly provides that it shall apply to pending appeals the appellate court is bound to apply it. There has been indecisive discussion in a number of cases. The Full Court here was, pursuant to the NTA, making a fresh determination of native title rights and interests, rather than hearing an appeal in the strict sense, and so was obliged to apply the law as it stood that (sic) the time of that determination. (footnotes omitted, emphasis added)

The majority in the High Court summarised their reasons, in part, as follows:

P.Summary

467As is apparent from what has been said, the determination made by the Full Court should be set aside and the matters remitted to the Court for further consideration in accordance with the reasons of this Court. That being so, it is convenient to attempt to summarise some of the principal conclusions that we have reached.

468 …

1.Because what is claimed in the present matters are claims made under the NTA, for rights defined in the NTA, it is that statute which governs.

2.The NTA must be applied in the form in which it stands at the date of the determination by the Full Court. The State and Territory Validation Acts for which the NTA provides must, therefore, be considered. (footnotes omitted)

In our view, what the majority in the High Court was addressing in the discussion of the nature of an appeal to the Full Court of the Federal Court, was that, in any re-determination or re-exercise of discretion, the Full Court was to apply the law as it stood at the time of that re-determination or re-exercise.

Before turning to reconsider what this court said in Vanderhum and Doriemus (2007) FLC 93-324 and to consider what the High Court said on the application for special leave to appeal from that decision, as well as referring to some comments of this court touching upon the question under discussion, we return to the two High Court decisions mentioned in the passages quoted from Ward’s case, namely CDJ v VAJ (1998) 197 CLR 172 and Allesch v Maunz (2000) 203 CLR 172.

The passages in CDJ particularly mentioned by the majority in the High Court, were:

111.Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court’s jurisdiction is neither purely appellate nor purely original. In Attorney-General v Sillem, Lord Westbury LC pointed out that “[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below”. Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a “trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence”. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. (footnotes omitted, emphasis added)

From Allesch, their Honours in the High Court in Ward referred in particular to what Gaudron, McHugh, Gummow and Hayne JJ said (which so far as presently relevant) was:

The matter of the appeal to the Full Court

20.The nature of the appeal to the Full Court is to be discerned from s 93A(2) of the Family Law Act 1975 (Cth) (the Act), which was considered by this Court in CDJ v VAJ and in DJL v Central Authority and, also, from s 94 of the Act. Section 93A(2) provides that, subject to s 96, which is concerned with appeals from courts of summary jurisdiction:

“… in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, …

21.…And s 94(2) provides:

“Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate.”

22.The majority in CDJ v VAJ proceeded on the basis that an appeal under s 94(1) of the Act is an appeal by way of rehearing. That is undoubtedly correct. So much is to be discerned from the terms of s 93A(2), in particular its conferral of power to receive further evidence. That is not a power possessed by appellate courts whose jurisdiction is confined to appeals in the strict sense and whose function it is simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. And an appeal under s 94(1) is, as s 93A(2) indicates, to be distinguished from an appeal under s 96 which is a hearing de novo. (footnotes omitted, emphasis added)

In Allesch, Gaudron, McHugh Gummow and Hayne JJ also said:

23.For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. (footnotes omitted, emphasis added)

In our opinion, Ms Cotter-Moroz’s argument here incorrectly equates the hearing on appeal in this court, with an appeal de novo.

Further, while this court may receive further evidence and, in the light of that, find merit in a ground of appeal, nothing in the passages quoted from Ward, CDJ or Allesch supports the proposition that a change in the law between the orders appealed and the appeal, must produce success in the appeal. The final words in the last passage quoted from Allesch that “on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand” is directed to the powers of the appellate court, once merit has been found in a ground of appeal, to decide the application which had been determined at first instance.

Ms Cotter-Moroz’s argument is the same argument as was considered by the Full Court of this Court in Vanderhum and Doriemus, and there rejected.

In Vanderhum and Doriemus the trial judge had made parenting orders shortly before 1 July 2006, when the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 were to commence. The grounds of appeal, in particular ground 1, asserted that the trial judge should have taken into account the provisions of the amending legislation. At the hearing this assertion developed into an argument which the Full Court encapsulated as:

86.  That the decision of a trial judge may be rendered erroneous by a subsequent amendment to the Act.…

As set out in the reasons of the Court, the appellant relied upon the very passages from CDJ and Allesch & Maunz set out above, as well as a passage from the judgment of Dawson J in Harris v Caladine (1991) FLC 92-217 at 78,486. In respect of those arguments, the Full Court said:

92.The learned authors of Halsbury’s Laws of Australia suggest (at 385-500) that “There is a presumption that Parliament intends all statutes, except those which are declaratory, or related to matters of procedure, to operate prospectively and not retrospectively unless the language used plainly manifests in express terms or, by clear implication, a contrary intention. So unless a contrary intention is shown, a statute will not be construed as taking away or altering the incidents of accrued rights the title to which consists in facts or events which have occurred before its enactment.” (See also Acts Interpretation Act 1901 (Cth) s 5; Maxwell v Murphy (1957) 96 CLR 261 at 267; [1957] ALR 231; (1957) 31 ALJ 143 per Dixon CJ)]

93.Although not so crudely expressed, in reality, if successful, the challenge embodied in this ground means that the provisions of Part VII of the Act as they commenced on 1 July 2006 have retrospective effect on appeal to this Court but only prospective effect at first instance. We have been referred to nothing in the legislation to indicate an intention that the provisions of Part VII as they now are were intended to have such retrospective effect. On the contrary, the terms of the Family Law Amendment (Shared Parental Responsibility) Act 2006 contain clear indications that the amendments were not intended to have retrospective effect.

…

101.The “law” applied by the Family Court is that which is embodied in the provisions of the Family Law Act 1975. The authorities, and logic, leave little room for doubt that Part VII of the Act in its current form would govern either a re-exercise of discretion by this Court or a new trial before a single Judge of the Court in the event of the appeal succeeding. We are not persuaded however that Part VII of the Act in its current form governs the appeal itself. Part VII of the Act provides a legislative basis for the exercise of original jurisdiction with respect to the matters therein referred to. Part X of the Act confers jurisdiction on this Court with respect to appeals, including against decisions under Part VII at first instance. Nothing in either Part suggests that the amendments to Part VII of the Act impact or were intended to impact, upon Part X.

A similar point to that argued in Vanderhum came before a Full Court of this Court in the matter of Guinness & Guinness (2008) FLC 93-358. That Full Court said:

15.The amendment to the first Ground was made after we drew attention to the decision of the Full Court of this Court in Vanderhum and Doriemus (2007) FLC 93-324, which was then the subject of an application for special leave to appeal to the High Court. In Vanderhum the trial Judge had determined an application for parenting orders under the Family Law Act 1975 at a time when the Family Law Amendment (Shared Parental Responsibility) Act 2006 had passed through Parliament, but had not yet come into effect. The appellant in Vanderhum had argued that the trial Judge erred in failing to take into account the provisions of the amending legislation. The appellant also submitted that the Full Court of the Family Court must apply the provisions of the legislation in its amended form when determining challenges to the decision of a trial judge.

…

22.At the same time as we drew these matters to the attention of counsel, we also noted that the Full Court in Vanderhum had not been referred to a relevant authority which, at least on one view, could be seen as being in conflict with the views expressed in paragraph 91 of the judgment, which we have reproduced above. This was the decision of the High Court in Western Australia v Ward (2002) 213 CLR 1. The fact the Full Court had not been referred to a relevant authority might, as we pointed out, provide a basis for the Full Court to depart from its earlier view.

23.As the special leave application in Vanderhum was listed for hearing only a matter of days after this appeal was argued before us, we gave liberty to counsel to make further written submissions in relation to Ground 1 after the proceedings were finalised in the High Court. Counsel for the husband advised that in the event special leave to appeal was refused, he would accept that Vanderhum had been correctly decided and that there would be no substance in Ground 1.

24.On 14 December 2007, the High Court refused special leave in Vanderhum. In view of the concession made by counsel for the husband, there is no need for us to give further consideration to Ground 1.

The application for special leave to appeal in Vanderhum came before Gleeson CJ and Hayne J (SCVG & KLD [2007] HCATrans 799). The transcript discloses the following exchanges:

GLEESON CJ: Mr Walker, to what extent is your factual complaint about the evidence of [Professor Q] essential to your first ground of appeal, that is the ground that is the paragraph numbered 2 on page 113?

MR WALKER: It is essential.

HEYDON J: You say, do you, that your complaint about the court’s failure to take into account the new legislation cannot get off the ground until there is some independently established appealable error? If there is, then you say in conducting that part of the rehearing it should have taken into account the new legislation or – – –

MR WALKER: In relation to the Full Court approach to an exercise of discretion, yes.

HEYDON J: Thank you, but if there were no other error established, do you say that the new legislation does not apply in the Full Court?

MR WALKER: No, I do not say it as simply as that, but I accept that the first way in which we put the case, which is what the Full Court should have done had it detected the error it should have seen in [Professor Q’s] evidence, is for that of course error in the treatment of [Professor Q’s] evidence is essential to our argument. There is no doubt about that. It is a re-exercise of discretion. In an appeal by way of rehearing you do not get through the gate unless you have shown the error.

GLEESON CJ: So the Full Court would not have had to consider the amending legislation unless it found some error on the part of the primary judge?

And later:

GLEESON CJ: Putting to one side the criticism you make in your paragraph numbered 4 of the primary judge’s approach, it seems to be common ground and it seems to have been the approach of the Full Court too, that the amending legislation would only be applied by the Full Court if the Full Court found some error on the part of the primary judge.

While we think we should not over-read what was said on an application for special leave in relation to a point which the applicant was not seeking to agitate, there is certainly nothing that was said in the application for special leave to support Ms Cotter-Moroz’s arguments before us.

In our view, it follows that, notwithstanding that the appeal to this court is by way of rehearing, the appeal will succeed only if error is found in the making of the orders appealed. That involves the application of the law as it stood at the time the orders were made. Unless operation of a subsequent law is retrospective, application of the law at the time an appeal is determined only becomes appropriate if the appellate court, after finding error, substitutes its decision for the one appealed.

(ii)That, as the Act stood at 18 July 2008, each woman was a parent of the child of the other woman

As to this argument, at first instance, Jarrett FM said:

Standing

50.Neither party suggested that the other did not have standing under the Family Law Act 1975 to bring proceedings for parenting orders concerning the child that was not their biological child. Clearly they have such standing. Counsel for [Ms Brockmann] argued, however, that neither woman was, for the purposes of the Act, a parent of the child to whom they had not given birth. Only a biological parent of a child was a parent for the purposes of the Act. It was argued that there were significant consequences as to the approach to be taken by this Court if that was accepted. Counsel for [Ms Simpson] argued that they were clearly parents, and the Act, specifically ss.61DA and 65DAA, by implication if not expressly, were engaged in respect of both children and both women. (footnote omitted)

51.The term parent is not defined in the Act. Brown J’s oft cited judgment in Re Mark: An Application relating to Parental Responsibility (2003) FamCA 822 discusses that issue in a different context and is not directly relevant here.

52.I was taken to two cases by counsel for [Ms Brockmann] that do appear directly on point. The first is a decision of Brown FM in Hammond & Johnson [2006] FMCAfam 514. In that case the dispute was between two women that had been in a same sex relationship, one of whom had conceived the subject child through “assisted insemination”. Brown FM had little difficulty concluding, albeit on an interim basis, that the woman who had not given birth to the child was not a parent for the purposes of the Act of the child. His Honour found that s.60H of the Act was of no assistance as its terms did not operate to deem a non-biological member of a same sex couple as a parent for the purposes of the Act.

53.The second was a decision of Howard FM in McDonald & Lee [2008] FMCAfam 473. In that case the applicant father discovered shortly before the hearing that he was not, in fact, the biological father of the child the subject of the dispute. He nonetheless pressed his application. After referring to a passage from Family Law by Anthony Dickey QC, his Honour concluded that the applicant was not a parent of the subject child for the purposes of the Act.

54.Counsel for [Ms Simpson] drew my attention to the decision of Altobelli FM in B & B & Anor [2007] FMCAfam 246 wherein his Honour proceeded to consider an application for interim parenting orders between two women who had previously been in a relationship with each other on the basis that they were both parents for the purposes of the Act. His Honour did not consider the issue I am now called on to consider. His Honour’s reasons suggest that the issue was not raised and argued before him and he certainly makes no decision about the point.

55.I am not persuaded that the decisions of FM Brown or FM Howard are clearly wrong. The decision of FM Altobelli does not decide the issue. I should follow the decisions of other members of this Court unless I am satisfied that they are clearly wrong. I am satisfied that, for the purposes of the Act, [Ms Brockmann] is not [S’s] parent and [Ms Simpson] is not [B’s] parent for the purposes of the Act.

In her submissions, perhaps for reasons obvious from the terms of s 60H of the Act as it stood at 18 July 2008, Ms Cotter-Moroz does not rely upon s 60H to found her argument that at the time of the hearing before Jarrett FM, each party was a parent for the purposes of the Act in relation to the child born to the other woman. Rather, she argues firstly, from the “scheme” of Part VII and from certain “absences” in the Act. Secondly, she argues “from consequence” and from matters that might be described as “principles” or “values”.

Nonetheless, we think it useful to set out the terms of s 60H of the Act, as it stood as at 18 July 2008:

60H Children born as a result of artificial conception procedures

(1)If:

(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to a man; and

(b)either of the following paragraphs apply:

(i)the procedure was carried out with their consent;

(ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the man;

then, whether or not the child is biologically a child of the woman and of the man, the child is their child for the purposes of this Act.

(2)If:

(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;

then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.

(3)If:

(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;

then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.

(4)If a person lives with another person as the husband or wife of the firstmentioned person on a genuine domestic basis although not legally married to that person, subsection (1) applies in relation to them as if:

(a)they were married to each other; and

(b)neither person were married to any other person.

(5)For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.

…

In relation to the “scheme” of Part VII, Ms Cotter-Moroz argues that, the term “parent” not being defined in the Act, even if s 60H did not by its own terms result in both parties in this case being a parent of the child born to the other, there was nothing in the Act that restricted the meaning of “parent”, to biological parents. She submits that:

[T]he provisions, context and structure of Part VII enlarges rather than restricts the categories of people who may be regarded as a parent.

30Part VII appears to be based on the assumption that children have more than one parent and in fact have two parents.

To demonstrate that “assumption” she refers to the terms of s 60B, s 60CC, s 61C and s 65DA and writes:

33The effect of His Honour’s finding that neither woman is the parent of the child she did not bear, is that [B] and [S] (and children in their position, that is, children born into homo nuclear families where their parents are involved in a same-sex relationship, particularly lesbian relationships) only have one parent for the purposes of the Act. Such an interpretation is presumably not intended by Part VII of the Act which appears based on the assumption that children have more than one parent, and in fact have two parents.

34This would mean that, if Part VII of the Act is given a literal interpretation, as His Honour (implicitly) did, then many of its sections, including sub-sections under s 60CC which must be considered in determining the best interests of children, would have no application to [B] and [S] and children like them, in homo nuclear families. In fact a different legislative pathway (than is applicable to children born to parents in a traditional heterosexual family or who satisfy s 60H) would be followed in relation to these children. His Honour did in fact apply a different legislative pathway for these children and in doing so erred.

35To ensure that the provisions of Part VII, particularly those sub-sections under s 60CC which must be considered in determining the best interests of children, have application to [B] and [S] and children like them, in homo nuclear families, a purposive interpretation would have to be adopted. A purposive interpretation would permit the recognition of the familial and social reality for these children and ensure that the same “legislative pathway” (as outlined in Goode v Goode [2006] Fam CA 1346 [82]) is followed for all children to whom the Act applies (irrespective of whether their parents are a same-sex couple). Such an interpretation would also be consistent with Australia’s international treaty obligations particularly Articles 2, 3, 7, 8 and 18 of the United Nations Convention on the Rights of the Child (“CRC”): see generally chapter 3.5 of the Human Rights and Equal Opportunity Commission (“HEROC”) Same Sex: Same Entitlements Report.

36It is submitted that the Act, being a federal statute should be read, so far as its language permits, to ensure conformity with Australia’s treaty obligations: MIMIA v B [2004] HCA 20; 219 CLR 365: per Kirby J at [143] to [154].

37It is submitted that the proper approach to the statutory interpretation of Part VII thus raises significant matters of public interest and important principles of law relating to the whether the legislative pathway in Part VII which must be followed is different in its application to a child whose two parents are apparent (either because of biological connection or the operation of some presumption as to parenthood) compared with a child for whom the identity of only one parent is apparent (either because of biological connection or the operation of some presumption as to parenthood).

38A further question is raised by the fact that the structure of Part VII is based on the assumption that a child has more than one parent. Does this structure place upon the Court the onus to inquire into and determine the potential candidates for parenthood, in situations where the identity of only one parent is apparent, so that the Court must identify at least one other candidate for parenthood? It is respectfully submitted that it does. If it does, then what are the principles that would guide a Court undertaking this task? If it does not, then does it mean that those sections of Part VII that assume that a child has two parents do not apply?

We do not accept these submissions, in so far as they imply that there is any difficulty in the application of the provisions of Part VII, to a situation where the parties are a parent and a person other than a parent.

Such a suggestion was recently discussed at some length in Donnell & Dovey [2010] FamCAFC 15 where the Court said:

95.…In particular, the first of the “primary considerations” places a particular emphasis on the benefit to a child of having a meaningful relationsip with both parents.

96.The predecessor to s 60CC was s 68F(2). This now repealed subsection contained the list of matters the court was required to take into account in dealing with disputes concerning children. Although that list of factors contained some that referred only to parents, this did not seem to give rise to any particular difficulty. This was to change following the amendments made to the legislation in 2006. The amendments to Part VII placed a sharper focus on parents in the objects and principles underpinning them. They also provided what might appear to be a hierarchy in the importance to be attached to some of the factors. In particular, the first of the “primary considerations” places a particular emphasis on the benefit to a child of having a meaningful relationship with both parents.

97.There have now been a number of cases which have come before the Full Court involving a parent and a non-parent in which it has been asserted that the trial Judge or Magistrate erred because of an inconsistent approach taken in addressing the relevant factors. This has especially been so where although one of the parties is not a “parent” within the meaning of the Act, they have been regarded within the family as if they were a “parent”. The difficulty has also arisen in other cases where one of the parties has been the primary carer to the child and hence largely stood in the place of a “parent”. For an example of each of these types of cases see Mulvany & Lane (supra) and Hort & Verran (supra).

98.In both Mulvany & Lane and Hort & Verran an issue was raised on appeal arising out of the approach taken at first instance to the application of s 60CC(3)(c). It will be noted that this paragraph makes no reference to the willingness and ability of a non-parent party to facilitate, and encourage, a close and continuing relationship between the child and one or both of the child’s parents. Yet, in a case involving a non-parent (who may have played and seeks to play a significant role in a child’s life), it would seem essential to address that person’s willingness and ability to facilitate the relationship between the child and the child’s parent(s).

99.Anxious to address this factor, some judicial officers have treated the non-parent as a parent, or as if a parent, when addressing s 60CC(3)(c). In the present case, the Federal Magistrate expressly noted that this factor refers only to parents but said he proposed to consider the provision nevertheless.

100.While we accept this approach has the benefit of grouping findings in a way that provides an easy flow to the judgment, it has become apparent that it can also give rise to suggestions of error. The appearance of error can be avoided by a simple means when addressing factors such as ss 60CC(3)(c) and (e), which are referable only to a “parent”. To the extent that the subject matter is also relevant to a non-parent, discussion can be delayed until the point in the reasons where the judicial officer is addressing s 60CC(3)(m), which refers to “any other fact or circumstance that the court thinks is relevant”.

101.The suggested error in the present case, and in the earlier cases, arises out of the fact that having treated the non-parent as a parent, or as if a parent, for the purposes of discussion of s 60CC(3)(c), the judicial officer has not been willing to regard the non-parent as a person to whom s 60CC(2)(a) applies. It will be recalled that this is the paragraph which contains the first of the primary considerations, namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”.

102.In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. This is so because the paragraph refers only to “parents”, and there is no extended definition of that word – save for the one incorporating adoptive parents (and query the potential application of s 60H). However, that fact does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.

103.We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden and Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].

104.On our analysis, the various factors contained in ss 60CC(2) and (3) may be seen as a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another. Sensibly, the legislature has recognised that it cannot provide an exhaustive set of signposts as the destination is uncertain and the routes by which it may be reached are as infinite as the factual circumstances that present themselves in courtrooms every day.

…

110.Before moving from this ground, we should record that some of the remarks we have made concerning the application of s 60CC(2)(a) may seem at odds with statements made by May and Thackray JJ in their joint judgment in Mulvany & Lane (supra) and remarks made by Finn J in the same case.

111.May and Thackray JJ said:

75.… Whilst we accept the learned Federal Magistrate was right to conclude the father was not a “parent” within the meaning of the Act, we consider he erred in the way he allowed that conclusion to affect the process of reasoning by which he reached his decision.

…

78.In our view, his Honour was quite right to consider and make findings in relation to all of the relevant “additional considerations” in s 60CC(3), even though he acknowledged some had no application to the father because they relate only to a “parent”. However, for the sake of consistency it seems to us his Honour should have adopted the same approach when discussing s 60CC(2)(a). What occurred instead is that the father was treated as a “parent” for some purposes but not others.

112.…However, we do not regard May and Thackray JJ as saying that a non-parent must be treated as a “parent” for any of the provisions in s 60CC. They have clearly said the opposite in relation to the primary considerations in the portion of paragraph 75 quoted above.

113.The remarks made by May and Thackray JJ in Mulvany & Lane need to be considered in the particular factual context of that case. The party referred to as “the father” had always understood he was the biological father of the child. The child also understood that he was his biological father. The fact that “the father” was not a biological parent only came to light following testing in the period prior to the trial. The whereabouts of the biological father were unknown and the mother intended that “the father” would have an ongoing relationship with the child. In these circumstances the maintenance of the relationship between the child and “the father” was clearly a matter of considerable importance.

114.We understand May and Thackray JJ to have said no more than that in these factual circumstances it would have been appropriate for the Federal Magistrate to have discussed the importance of the child having a meaningful relationship with “the father”. This does not mean, however, that the benefit to the child of maintaining a relationship with “the father” in that case could be treated as being a “primary consideration”.

115.Our interpretation of their Honours’ decision is supported by what they said in paragraph 82 (emphasis added):

82.Such discussion, however, is ultimately unhelpful. It diverts attention away from the central enquiry, which is to determine the outcome that will be best for the child. Instead, it focuses attention on semantic issues about whether relevant matters should be discussed by reference to one s 60CC factor instead of another. In our view, provided his Honour gave due weight to all relevant factors, it would matter not whether he considered the child’s very important relationship with the father by reference to s 60CC(2)(a) or by reference to one of the additional considerations.

116.Whilst we are in general agreement with what May and Thackray JJ said in paragraph 82 of their judgment, we would add that if the maintenance of a relationship between the child and a non-parent is discussed by reference to s 60CC(2)(a) it should be made clear that the factor is not being treated as if it were a “primary consideration”. In fact, given the number of appeals coming before the Court related to this topic, we consider the safer course may be to delay discussion of that issue until the “additional considerations” are being addressed.

117.In dealing with this same issue, Finn J said in Mulvany & Lane:

5.I am prepared to accept (at least as presently advised) that his Honour was correct in concluding that the father was not a “parent” as that term is used in Part VII of the Act.

6.Having reached that conclusion, his Honour was not prepared to consider or treat the father as “a parent” for the purposes of s 60CC(2) (primary considerations in determining the child’s best interests) or of s 61DA (presumption of equal shared parental responsibility). Yet he was prepared to consider or treat the father as a parent for the purposes of s 60CC(3) (additional considerations in determining the child’s best interests), saying in this regard:

Because of the nature of the relationship between the [father] and the child I consider it appropriate in the special circumstances of this case to consider the relevant subsections within s.60CC(3).

7.Nowhere does his Honour explain why he adopted this apparently inconsistent approach to the father’s position under the various provisions of the legislation which he applied in determining this case. In my view this is a significant flaw in his Honour’s reasoning.

…

10.However, this argument overlooks what in my view is another significant flaw in his Honour’s reasoning, and that is, his approach to, and application of, s 60CC(2)(a). That paragraph provides that a primary consideration in determining what is in a child’s best interests is “the benefit to the child of having a meaningful relationship with both parents”.

11.His Honour determined (in paragraphs 20 and 21 of his reasons) that as the mother was the only parent “who is a party to the proceedings”, it would follow that the only primary consideration relevant in this case is the benefit of the child having a meaningful relationship with the mother. His Honour then went on to determine (in paragraphs 31-33 of his reasons) that the mother could only properly discharge her obligations as a parent if she was living in a country where she was happy and well settled, and that this could only be in Hong Kong. Therefore for the child to have a meaningful relationship with the mother, he would have to live with her in Hong Kong.

12.In my opinion, it was not open to his Honour to interpret s 60CC(2)(a) in the way in which he did, that is, in effect to hold that where a child only has one parent participating in the parenting proceedings, it will be a primary consideration in determining the child’s best interests, that the child have a meaningful relationship with that parent. The legislation does not say this. Indeed it could well be asked why, if his Honour was prepared to place an interpretation on s 60CC(2)(a) other than an interpretation clear on its plain words, did he not interpret the expression “parents” to include the father in this case?

…

15.It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent.

16.As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.

118.In view of what was said in paragraphs 15 and 16 of Finn J’s reasons, we do not necessarily think her Honour is saying that a non-parent, if treated as a parent for the purposes of the additional considerations, ought also be treated as a parent for the purposes of the primary consideration in s 60CC(2)(a), though the content of paragraph 6 and 7 of her reasons may lead to that conclusion. To the extent that Finn J may have come to that conclusion, we respectfully disagree.

119.It does occur to us, however, that what Finn J may have been saying in paragraph 12 is that, as a matter of statutory construction, s 60CC(2)(a) can never have application when one parent has died because in such circumstances it is not possible for the child to have “a meaningful relationship with both of the child’s parents”. Support for the suggestion that this is the way her Honour may have construed the provision can be found in what she said in paragraph 16.

120.This was not a construction urged on us by any counsel. We do note, however, that another experienced judge has taken a similar approach to that adopted by Finn J by suggesting that in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents “fall away”.

121.In Potts and Bims [2007] FamCA 394 at [8] Moore J discussed the statutory provisions in the context of a case involving both of the parents and the maternal grandparents. Her Honour concluded that to the extent the matters in ss 60CC(2) and (3) might be relevant, they could only be considered by reference to those factors that do not refer to parents, and in particular the catch-all provision of s 60CC(3)(m). We repeat below what Moore J said on this point:

The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind. For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)’. With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i). However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.

122.Another Full Court has recently discussed the issues that arise in cases in which the parties are a parent and a non-parent. In Aldridge & Keaton [[2009] FamCAFC 229] the Full Court quoted the passage we have recited from Potts and Bims and said (at [112]) that it “accurately encapsulates the relevant legal principles to be applied when determining a parenting application which involves a non-parent/s”.

Thus, we do not accept Ms Cotter-Moroz’s proposition, which we see as equivalent to that, because Part VII of the Act is unworkable or deficient in cases between a parent and a non-parent, somehow persons other than biological parents are to be found to be parents.

As to other arguments in relation to the Act as it stood at 18 July 2008, we have considered (as were asked to do) certain Articles of the United Nations Convention on the Rights of the Child and Chapter 3.5 of the Report, Same Sex: Same Entitlements, by the Human Rights and Equal Opportunity Commission.

Ms Cotter-Moroz further submits:

36.It is submitted that the Act, being a Federal Statute, should be read, so far as its language permits, to ensure conformity with Australia’s treaty obligations: MIMIA v B (2004) [HCA20]; 219 CLR 365: per Kirby J at [143] to [154].”

However, Ms Cotter-Moroz presents no argument seeking to demonstrate that anything in the Convention or the Report should have an influence on the interpretation of any of the provisions of Part VII of the Act. For ourselves, we see nothing in the Articles or Report to which Ms Cotter-Moroz refers, which supports her argument about the effect of s 60H, or the Act generally, as it stood at trial.

On another “tack”, as earlier seen, Ms Cotter-Moroz submits that Jarrett FM failed to give adequate reasons to support his findings that each party was not a parent of the child born to the other woman, and failed to undertake any meaningful analysis of the relevant sections of the Act. She submits that the learned Magistrate simply followed the erroneous decisions of Brown FM and Howard FM and that to the extent that the learned Magistrate found that the decision of Brown FM in Re: Mark An Application Relating to Parental Responsibilities (2003) FLC 93-173 was not directly relevant, his Honour was in error. However, these are not really arguments about the adequacy of reasons, but are about whether the conclusions in question were right or wrong.

We are not persuaded that Jarrett FM’s distinguishment of the decision in Re: Mark, which concerned the status of a sperm donor, a very different situation to that here, was wrong.

We therefore reject the contention that, as the Act stood at 18 July 2008, each woman was a parent of the child of the other woman.

Ms Cotter-Moroz raised, in oral submissions, the suggested effect on the finding of Jarrett FM as to the meaning of ‘parent’ in the Act, of the Status of Children Act 1996 (NSW). Particular attention was drawn to s 14(1A) of that Act. However, this section was only introduced on 22 September 2008, some months after the judgment appealed in this matter.

Given our reasons in relation to the law to be applied by this Court in addressing the grounds of appeal, we do not propose to say anything further about this submission.

(iii)That the learned Magistrate failed to follow the correct “legislative pathway” (Ground 2)

As to the correct “pathway”, the learned Magistrate said:

59.By reason of my determination that neither party in this case is the parent for the purposes of the Act of the child they did not bear, a consideration of the presumption of equal shared parental responsibility does not arise. That presumption applies only to parents.

60.Similarly, because the presumption does not apply and because there can be no order that the children’s parents have equal shared parental responsibility for them in this case, the matters that the court might be called on to consider by s.65DAA of the Act do not arise in this case.

61.That is not to say that the Court could not nonetheless make an order for equal shared parental responsibility as [Ms Simpson] seeks. Such an order must arise as a direct result of a consideration of the best interest principle and the matter relevant to that exercise, rather than by operation of the s.61DA presumption.

To a large extent this argument is premised on the success of the proposition that each woman was a parent of the child born to the other woman. In so far as that was a basis for it, the argument has been dealt with.

In so far as Ms Cotter-Moroz’s suggestions that Jarrett FM wrongly found that, under s 60CC(2)(a), each child’s relationship with the non-biological parent was not relevant, what his Honour found was not that each child’s relationship with the mother of the other child was not relevant but simply that, in its terms, because s 60CC(2)(a) referred to the relationship with a parent, that provision was not relevant. However, his Honour went on to consider the relationship between the child in each case and the mother of the other child.

(iv)That the Federal Magistrate erred in law in finding that the previous orders for joint responsibility had been earlier discharged (Ground 3)

(v)That the learned Magistrate erred in failing to make an order for equal shared parental responsibility (Ground 4)

We will discuss these two grounds together, as they are connected.

The finding challenged in the first of these arguments is contained in paragraph 37 of the Federal Magistrate’s reasons, as follows:

37.Whilst [Ms Brockmann] may not have been required to obtain [Ms Simpson’s] consent to changing [B’s] name (the previous orders for joint responsibility had been earlier discharged), it demonstrates an attitude towards [Ms Simpson’s] role in [B’s] life which is concerning. (emphasis added)

As to the “previous orders” Jarrett FM had earlier said:

9.The parties anticipated that there might be legal problems for them or the children if one or other of the parties was to pass away, or they were to separate. In an effort to avoid those problems they entered into consent parenting orders for each child soon after birth. The orders for [S] were made in the Local Court at Sydney on 4 September, 1997. They provide for [S] to reside with both [Ms Simpson] and [Ms Brockmann]. They further provide for the parties to have joint responsibility for [S’s] day to day and long term care, welfare and development. Orders in the same terms were made in respect of [B] on 25 September, 1998.

Ms Cotter-Moroz did not in relation to this or any of the arguments that follow, add orally to her written summaries. In the summary, Ms Cotter-Moroz sets out the history of the making of the Local Court orders and subsequent interim parenting orders made in the Federal Magistrates Court. She then draws attention specifically to the wording of the first order in the Final Consent Orders made in the Federal Magistrates Court on 15 April 2004. That order read:

“1. That all previous Orders made by this Honourable Court be discharged.”

Ms Cotter-Moroz ultimately submits that the reference to “this Honourable Court” meant that Federal Magistrates Court orders only were discharged, leaving the Local Court orders “on foot”.

In his written summary, Mr Kearney recognises that the orders made in the Federal Magistrates Court did not specifically address the Local Court orders but argues that:

40.The ‘status’ of the Local Court orders was no doubt an issue at trial and the Respondent gave evidence of it having been her understanding that such orders had been discharged…. The Appellant gave no evidence on the topic and the Respondent’s understanding, and any consequence of it, were not challenged.

…

42.It is submitted that:

42.1the effect of the series of subsequent orders pursuant to the Act was to discharge the Local Court orders and that the Appellant cannot seek to maintain part of those orders in circumstances where another part has been the subject of later order and, consequently, discharge; and,

42.2the effect of the unchallenged (and uncontradicted) evidence of the Respondent was that the Local Court orders were understood to have been discharged, and thus the substance and consequences of the Magistrate’s findings are sound in any event.

We think it unnecessary to decide for the purposes of this argument whether the history of subsequent orders in the Local Courts and in the Federal Magistrates Court discharged the orders for joint parental responsibility made in 1997 and 1998.

In the paragraphs preceding that containing the finding challenged, (paragraph 37 set out above) the learned Magistrate considered the actions of Ms Brockmann in changing B’s surname, in the context of whether those actions indicated anything about Ms Brockmann’s attitude to the maintenance of a relationship between B and Ms Simpson.

The conclusion which the Federal Magistrate drew was not against the party who appeals, Ms Simpson, but against Ms Brockmann, and was drawn notwithstanding that the Magistrate (incorrectly on the contention here considered) concluded that previous orders for joint responsibility had been earlier discharged.

Ms Brockmann had given evidence. She thought the order for joint responsibility had been discharged. Ms Simpson did not give evidence about what she thought or evidence designed to contradict what Ms Brockmann said of her view. It was Ms Brockmann’s view of the status of the joint responsibility order that was relevant to the learned Magistrate’s consideration at that point, not the actuality, but as seen, Jarrett FM drew a conclusion against Ms Brockmann.

We are not satisfied that, even if the Federal Magistrate’s view of the status of the order for joint responsibility was wrong, that that mistake in any way effected this aspect of his deliberations. It certainly did not work against Ms Simpson.

Within this heading, Ms Cotter-Moroz also argued that, insofar as Jarrett FM concluded that s 65DAA of the Act did not apply, he was wrong. That argument depends on the success of one of the earlier arguments, which, as seen, fail.

The answer to the question of whether or not the local court orders about parental responsibility had been discharged, might potentially have been relevant to the correct legislative pathway, including to the very question of whether or not Jarrett FM should make an order for equal shared parental responsibility.

However, his Honour’s reasons demonstrate that in either event he would have reached the same conclusion. He said:

108.I do not think on a consideration of the matters I have referred to above, that there should be an order for equal shared parental responsibility. Apart from the notion that in a practical sense it would be hard to implement with one party in Sydney and the other on the north coast, in 2004 the parties abandoned the notion that they should share parental responsibility for the children by the terms of the final orders agreed between them in their earlier litigation.

Insofar as, in her written submissions, Ms Cotter-Moroz attacks Jarrett FM’s finding that the parties had abandoned the notion that they should share parental responsibility, we consider such an argument beyond the particulars given in paragraph 4.1 of the Amended Notice of Appeal, which is directed to the “legislative pathway”.

In any event, we are not satisfied that the conclusion was not open.

Second category – Failure to consider relevant matters

(i)Erred in law in failing to consider the children’s views as to whom they regarded as their parents (Ground 6)

Ms Cotter-Moroz contends:

60Having regard to his finding that the parties say that both children regard both women as their mother…, both women have the status as a parent in the children’s eyes.

61His Honour ought have specifically considered this aspect of the children’s views in his consideration of s 60CC(3)(a) and/or s 60CC(3)(m) and erred in failing to do so.

62.It is submitted that the change in terminology from “wishes” to ‘views” introduced by the 2006 amendments to the Act facilitates a much broader scope to the matters that the Court must consider under this sub-section. This is supported by EM at [56] which states “…it is intended that “view’ will also capture a child’s perceptions and feelings. Further, the EM at [57] states that “Replacing references to a child’s “wishes” to a child’s ‘views” is also consistent with the wording of Article 12 of the CRC.”

There is no merit in this contention.

Jarrett FM discussed at some length the evidence about the children’s views. The children said nothing about whom they regarded as their parents. It was the parties who said that, at least in relation to when the parties were together, each child regarded each of the women as a mother. His Honour noted this in his reasons:

14.Both parties say that it was their perception that the children regard both women as their mother, although referred to them [by way of nicknames in the case of each party].

As to “Views expressed by the children”, Jarrett FM said:

67.It is clear from the evidence that both [B] and [S] are exceptional children. They are both highly intelligent – well beyond their chronological ages – and articulate. [S] is more reserved that [B] and as I pointed out above, suffers from Asperger’s Syndrome. [The report writer], who had the opportunity of meeting the children makes the following observations: …

His Honour then addressed what the report writer said of [B’s] views and about [S]. He concluded:

70.Both parties allege that [B] has expressed wishes to them about living with them. Indeed, it was initially [Ms Simpson’s] case that she has taken the stand that she has as an advocate for [B], who had told her that she wanted to live with her. Whether that is right, the statements to [the report writer] seem to be the most recent made by [B], and therefore perhaps more reliable. Given her age, however, I apply caution when assessing the weight to be given to them.

We see no error in his Honour’s treatment of this factor.

(ii)Erred in law in finding that no issues were raised (other than allegations of drug use) under s 66CC(3)(g) (semble s 60CC(3)(g)) (Ground 7)

This ground draws attention to what Jarrett FM said in the following two paragraphs:

Section 66CC(3)(g) The maturity, sex, lifestyle and background of the child or either of the child’s parents.

95.No issues were raised in this regard save for some allegations of drug use in the past by [Ms Simpson]. I note however that both women told [the report writer] of their drug use in the past. It is, on the evidence, no longer an issue.

96.Neither party made a submission that the fact that the parties had been in, and [Ms Brockmann] has re established a same-sex relationship was in any way relevant to the determinations needed in this case.

The only submissions Ms Cotter-Moroz makes are:

63[S’s] aspergers condition was specifically raised along with other characteristics of the children including their intelligence and very different personalities…

64The fact that the parties and the children had been part of a homo nuclear family was a significant matter and that there be a recognition of the familial and social reality for these children was clearly raised in submissions.

There is no merit in these propositions.

As seen a few paragraphs ago, his Honour recognised that each party said she perceived both children to regard both women as “mothers”. His Honour noted that S suffered from Aspergers Syndrome. Further, he considered all those factors set out in the following passages:

36.In my view, there are three other matters that support the observation that [Ms Brockmann] was not committed to facilitating and encouraging [B’s] relationship with [Ms Simpson]. …

…

63.On [Ms Simpson] primary proposal, [B’s] relationship with her mother is likely to be affected because she would no longer spend most of her time being parented by her as she has at least since separation. She would be removed from her primary carer, something [the report writer] did not think was wise. If [B] lived in northern New South Wales with [Ms Simpson], and [Ms Brockmann] continued to live in Sydney, I have a real doubt that a meaningful relationship, to the extent that it presently exists would continue. [The report writer] saw no reason to interfere with the nature of the extent of [B’s] relationship with her mother.

64.Thus, [Ms Brockmann’s] proposal has better implications for [B] having regard to this factor. Neither proposal would impact upon [S’s] relationship with his mother.

Section 60CC(2)(b) Protecting the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.

65.I have no concerns about the children in this regard in the care of either party. …

66.There are some concerns about [S’s] behaviour towards [B]. He has been diagnosed with a form of Asperger’s Syndrome. …

…

Section 60CC 3(b). The nature of the relationship of the children with each parent and other persons.

71.There is no evidence to indicate anything other than a good relationship exists between these children and each of the parties. As set out above, [the report writer’s] observations indicated that the children each had an easy and comfortable relationship with each adult.

72.The relationship between [B] and [S] appears a little problematical, and [S] is described as ambivalent towards [B]. [The report writer] offers some explanations for that appearance:

73.[Ms Brockmann] claims that [B] has good and enduring relationships with her sisters, her mother and her step father. …

Section 60CC(3)(c) The willingness of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.

74.For reasons that I have already expressed, I think there is some good reason to be concerned about [Ms Brockmann’s] desire to ensure that [B’s] relationship with [Ms Simpson] is maintained to any great degree. Having said that, I have no doubt that she would ensure that any orders for time between [B] and [Ms Simpson] would be honoured. I do not think that there will be much scope, however, for additional time not provided in the orders.

75.[Ms Simpson’s] primary proposal would see to it that [B’s] relationship with her was maintained. But it would be at the expense of her relationship with [Ms Brockmann] and that proposal is not supported by [the report writer].

Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation form parents.

76.[Ms Simpson] submits that if [B] continues to reside in Sydney, her time with she and [S] will be reduced and that will have a negative impact upon the quality of the relationship.

…

82.On balance, and having regard to [the report writer’s] evidence, I am satisfied that there are more likely to be negative impacts upon [B], specifically in her relationship with her mother, if she was removed from her primary care. A reduction in her time with [Ms Simpson], however, is not likely to have a significant impact upon her relationship with [Ms Simpson].

…

84.A reduction in the time between [B] and [S] was not seen by [the report writer] to be troublesome for either child, in light of the fractious relationship between them.

…

Section 60CC(3)(e) The practical difficulty and expense of children spending time with a parent.

86.[Ms Simpson] is on a limited income. It is unlikely that she will be able to fund frequent trips to Sydney for herself and [S] or to the north for [B].

…

88.The distance between the parties presents a difficult problem – as it always does in cases like these. …

…

Section 60CC(3)(f) The capacity of each parent to provide for the needs of the children including emotional and intellectual needs.

92.In this case there is no evidence to indicate that either party is unable to provide for the needs of the children. …

…

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant.

101.[Ms Brockmann’s] reasons for moving to Sydney are relevant. The concern her dissatisfaction with living in [the northern New South Wales area], [B’s] schooling and her dissatisfaction with the schools that [B] attended there, and the ability to secure a well paid position of employment that would not otherwise have been available to her on the north coast.

In our view the passages just quoted and those earlier quoted from Jarrett FM’s reasons show that his Honour considered all of the factors to which Ms Cotter-Moroz now points. In relation to his recognition of the “homo nuclear family” of which the children had been part, his Honour’s reasons indicate that he had that history clearly in mind.

(iii)Erred in law in failing to consider that the children lived as part of a homo nuclear family with two “mothers” (Ground 8)

Ms Cotter-Moroz further submits:

65It is submitted that His Honour ought to have and failed to recognise the familial and social reality for these children.

66His Honour ought to have specifically considered whether the fact that the children were conceived, raised and, with their “mothers”, formed an integral part of a homo nuclear family (and not in the traditional heterosexual family) their “mothers” were their parents for the purposes of those sections of Part VII which assume the existence of two parents.

67His Honour ought to have specifically considered these matter either pursuant to s60CC(3)(g) and/or 60CC(3)(m).

In our view, these arguments are essentially repetitive of previous contentions, in particular those in respect of the immediately preceding ground.

(iv)Erred at law in exercise of discretion in refusing to hear the Appellant’s Application for an Order pursuant to s65K (Ground 9)

At trial, the following occurred:

MS COTTER-MOROZ: The relevance is, your Honour, my client will be seeking an order pursuant to section 65K of the Act.

FEDERARL MAGISTRATE: You’ll have to refresh my memory?

MS COTTER-MOROZ: Well, your Honour, that’s an order that says that if a parenting order is made as to where a child or children shall live it doesn’t automatically mean that the other parent will be able to have the child live with them if the – I’ll term it residence parent – if the residence parent dies.

FEDERAL MAGISTRATE: Have you given notice of this application to the other side?

MR BASTON: No, your Honour.

FEDRAL MAGISTRATE: I’m not going to permit your client to pursue it if you haven’t given notice of it.

MS COTTER-MOROZ: This morning, your Honour, we gave him a copy of the orders that we’re seeking which had that amendment.

FEDERAL MAGISTRATE: That’s not notice. The question is irrelevant, ask your next one.

Ms Cotter-Moroz submits:

68[Ms Brockmann] has an aggressive form of ovarian cancer and having regard to [Ms Brockmann’s] health, [Ms Simpson’s] sought an Order pursuant to Section 65K of the Act. His Honour refused to entertain that Application simply on the basis that no formal notice had been given to the other party, prior to the hearing date. It is respectfully submitted that in exercising his discretion in this perfunctory and almost arbitrary manner, His Honour failed to consider relevant matters and as a result his discretion miscarried.

69It is submitted that consideration of this application, itself a parenting order, was a matter of significance particularly having regard to the health of the respondent; the concerns raised by the Appellant in her affidavit dated February 2008, filed in support of re-opening of the case; the history of the litigation between the parties concerning the children; and in view of His Honour’s (erroneous) conclusion that the joint responsibility Orders made by the Local Court had been discharged. (Appeal Book references omitted)

There is no formal order made in relation to this application. However, it was an oral application, but one made during cross-examination of Ms Brockmann, following reopening of the proceedings for a limited purpose. As such, a refusal to entertain the application would appear to be an interlocutory order, appellable only with leave.

Nothing raised by Ms Cotter-Moroz persuades us that his Honour erred in principle and/or that the refusal to entertain the application caused Ms Simpson substantial hardship.

Third category – Failure to provide reasons

(i)That Jarrett FM erred in law failing to evaluate Ms Simpson’s proposals for communication, access to information about the children and B’s surname (Ground 5)

Ms Cotter-Moroz submits:

51His Honour set out the orders sought by [Ms Simpson] …

52At the commencement of the hearing on 30 August 2007, His Honour was provided with the case outline document filed on behalf of [Ms Simpson] …

53His Honour failed to consider [Ms Simpson’s] proposals for:

(i) communication between the children and/or between the parties and the children…;

(ii) each party’s ability/liberty to access information from third party sources about the long term welfare, care and development of the children…;

(iii) the responsibility of each party to inform the other about information about the long term welfare, care and development of the children…; and

(iv) [B’s] surname….

In relation to these arguments, Mr Kearney submits:

In respect of ground 5 it is accepted that, save by inference, the Magistrate did not address specific reasons to the Appellant’s proposals in relation to “communication, access to information about the children and [B’s] surname”. It is not accepted, however, that such omission gives rise to any appellable error in circumstances where:

such matters were not the subject of any submission in opening to the Court (whether orally or in writing) …, save for the identification in the Appellant’s case outline of future communication between the parties as an issue to be determined;

such proposals were not the subject of cross-examination of either party or the Court expert, [the report writer];

such proposals were not the subject of submission in closing on behalf of either party, save to the extent that the Appellant raised complaint with the Respondent’s conduct in having changed [B’s] surname….

60.It is for the parties to define the issues to be pursued and determined by the Court. It is submitted that the Appellant cannot now be heard to complain as to issues addressed by the Magistrate in circumstances where the issues the subject of this ground of appeal were not pursued in any real sense at trial: Nolan and Ingram (1984) FLC 91-585 at 79,723; Metwally (No. 2) v University of Wollongong (1985) 60 ALR 68.

We accept Mr Kearney’s submissions.

(ii) Erred at law in exercise of his discretion in refusing to grant the adjournment application without giving any reasons for same and the Appellant be granted leave, if required, in relation to this ground (Ground 10)

This argument is closely connected with the argument that Jarett FM erred in refusing to hear the application for orders pursuant to s 65K of the Act. In her written summary, Ms Cotter-Moroz acknowledges this close connection and submits that the Federal Magistrate ought have properly considered whether an adjournment “would cure any prejudice” to Ms Brockmann. She further acknowledges that this refusal to grant an adjournment was interlocutory in nature and as such leave to appeal would be required.

In our view, the reasons for which the oral application was rejected are obvious. It raised new questions at a very late stage, on scant notice and was never adequately particularised. We think no formal reasons were necessary. Technically, if, as we consider he did, the learned Magistrate refused to entertain the oral application at all, there was no proceeding to adjourn.

Again we are not satisfied that in dealing with the oral application, Jarrett FM erred in principle, or that his decision caused Ms Simpson any substantial hardship.

Fourth category – Denial of procedural fairness

(i) Erred in relying on the unreported decision of Brown FM in H & J (2006) FMCAfam 514 in circumstances where the Appellant was not provided the opportunity of considering or making submissions concerning the relevance of this authority (Ground 11)

Ms Cotter-Moroz submits:

74In submissions, Counsel for the Respondent referred to the judgment of Howard FM in McDonald v Lee (2008) FMCA Fam 473. There is an exchange between His Honour and Counsel for the Respondent.

75… His Honour said: “..the principle is that you ordinarily don’t depart from a decision of another Federal Magistrate unless you are satisfied that it’s clearly wrong. There is no binding precedent as such.” His Honour relied on the unreported decision of Brown FM in H & J [2006] FMCA fam 514 … in finding that neither woman is a parent of the child that they did not bear. The Appellant was not provided with a copy of this decision nor was this decision raised during submissions by Counsel for the Respondent or by His Honour.

76In these circumstances, particularly having regard to His Honour’s comment and his reliance on this authority, it is respectfully submitted that the Appellant ought have been given the opportunity to consider and make submissions on the relevance of this authority prior to His Honour’s reliance on it on such a fundamental issue.

Mr Kearney submits:

62.It is submitted that it is not incumbent upon the Court to seek submissions from the parties as to each factor that may be considered by the Court in the course of the determination, particularly where such issue is one before the Court during the course of the trial. No procedural unfairness has arisen as contended by the Appellant.

63.Ground 11 is directed to the Magistrate’s reference to the decision in H & J [2006] FMCAfam 514. It is submitted that such judgment is, as is the usual practice, available on the internet site maintained by the Federal Magistrates Court and as such available to the parties to these proceedings. It is submitted that no unfairness justifying appellate interference arises in circumstances where:

63.1such judgment is available;

63.2in any event, the judgment serves merely to support rather than compel the conclusions arrived at by the Magistrate; and,

63.3the issue touched upon by the judgment was one live before the Court and the subject of unfettered submissions by the Appellant at trial.

We think there is considerable strength in Mr Kearney’s submissions. But, in any event, the single but complete answer to this argument is that the issue is one of pure law, and the appeal has provided Ms Simpson’s counsel the opportunity to make such submissions about H & J as she wishes.

Final Ground

Erred in the exercise of his discretion in finding that the matter was re-opened “by reason of the Respondent’s illness” when in fact the mater was re-opened on 3 bases (Ground 12)

This ground draws attention to the following part of Jarrett FM’s reasons:

49.By reason of [Ms Brockmann’s] illness [Ms Simpson] made application to reopen her case and call more evidence. That application was granted and on 4 March, 2008 further interim orders for time between [B] and [Ms Simpson] were made. (emphasis added)

Ms Cotter-Moroz submits the matter was re-opened on three bases being:

(i)the best interests of [B] given that the Respondent is in a new relationship;

(ii)the best interests of [B] given that the Respondent has been diagnosed with cancer and had undergone and was undergoing significant operative and medical treatment; and is in a new relationship s new relationship [sic]; and

(iii)the absence of any time spent between the children and the parties since the hearing.

And, that:

77His Honour erred in fact in finding that the matter was reopened “by reason of the Respondent’s illness”.

Mr Kearney responds:

65.It is submitted that this ground is of no substance, and the statement above of no consequence in any event, in circumstances where all three of the issues said to have been raised by the Appellant on the application were addressed by the Magistrate.

66.At paragraph 77 of the Appellant’s Summary, the Appellant states that three issues were raised on the re-opening, the first of which was “the best interests of [B] given that the Respondent is in a new relationship” – this issue was the subject of evidence by both parties on re-opening …, the subject of three confirmatory questions in cross-examination … and very limited submissions during which Counsel for the Appellant concedes that such issue “wasn’t a specific reason for reopening” ….

67.The Magistrate recorded both the facts relating to the relationship and the absence of evidence from the Respondent’s partner …. It is submitted that, it was neither incumbent upon the Magistrate to find that the re-opening was by reason of this matter nor of any consequence that he did not do so.

68.The second issue raised on the re-opening by the Appellant was the Respondent’s cancer diagnosis and this was the subject of the very statement the subject of this ground of appeal ….

69.The third issue said to have been raised on the re-opening and not the subject of specific finding by the Magistrate was “the absence of any time spent between the children and the parties since the hearing” … . It is clear that the Magistrate was seized of the history of the care arrangements for both children, including the periods when no contact had occurred, from the parties’ separation until the close of the evidence. … It is further apparent that the Magistrate made findings as to the lack of time between the children and other party in the course of the reasons … and, additionally, addressed such issue on the Appellant’s application by the Orders of 4 March 2008…

70.That the Magistrate did not refer to the issues as to the ‘absence of time’ in the statement the subject of this ground of appeal … is immaterial, even if it have been necessary for him to have done so (which is not conceded).

We accept Mr Kearney’s submissions.

Conclusion

As we have not found merit in any of the grounds of appeal, the appeal should be dismissed.

Costs

In the event, Mr Kearney seeks an order for costs. We have taken submissions relating to the fact of Ms Simpson’s legal aid and about her financial circumstances, which are very modest.

However, of the factors made relevant by the terms of s 117(2A) of the Act, we consider the nature of the proceeding and the result the telling matters. The appellant should pay the respondent’s costs.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 11 March 2010