Appeals

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Padbury & Wendon [2019] FamCAFC 41 (6 March 2019)

Mr Padbury appeals from orders for the settlement of property, dismissing his application for a stay plus costs.

The parties had begun living together in 2005 they then separated in 2016. Mr Padbury was a public servant; he began making contributions to his super fund in 1987. He became injured on duty, therefore he ended employment in 2014. He was successful in applying for the hurt on duty pension application.

The primary Judge observed the “value” of the fund was an independent issue to how the fund “might be treated,” or “contributions towards it assessed.” The approach to the valuation of the superannuation interest was in accordance with the Family Law (Superannuation) Regulations 2001 (Cth); this produced a calculation of $1,341,059. The parties’ net non-superannuation property was valued at $2,148,700, this means that of a total net property pool of some $3.5 million, a significant percentage included Mr Padbury’s hurt on duty pension.

The heart of the appeal claims that the primary judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension.” Furthermore, Mr Padbury contributed to the fund for 18 years before living with Ms Wendon, however, the trial reasons also incorrectly state for a period of “some six to seven years.”

Ms Wendon the respondent conceded the error, the matters the primary judge said required consideration did not receive it.

 

FACTS SUMMARY:

APPEAL – PROPERTY 

  • Appeal against property settlement orders including orders splitting Mr Padbury’s hurt on duty pension.
  • Heart of appeal the judge “erred in principle by failing to give proper, genuine and realistic consideration to the merits of the competing claims made in relation to the hurt on duty pension.
  • Errors of fact.

ISSUE:

Did the primary judge fail to consider the special features of the pension or the parties’ contributions to it?

HELD:

Appealable error established and appeal conceded. Orders made by consent in lieu of those under appeal. 

There were factual errors of the primary judge concerning the period during which the Mr Padbury contributed to his super fund before the start of the relationship. It was established Mr Padbury contributed to the fund for 18 years prior to living with Mrs Wendon, however, the trial reasons incorrectly state for a period of “some six to seven years” however, Mr Padbury raised this only on appeal and failed to raise this issue at trial.

Furthermore, the court states the arguments in relation to the superannuation ‘were at best cursory and misguided.’ The conduct in which the trial was commenced added to the faults apparent in the trial reasons. The primary judge still of course has a responsibility to tackle pertinent considerations, however, in light of the above the assistance offered to the judge was not sufficient with that task.

It was established the primary judge failed to attend to important relevant considerations; the court was satisfied with the basis for appeal.

Both parties then agreed on orders to be made in lieu of those made by the court below. The parties then applied for costs certificates for the appeal in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).

 

FACTS SUMMARY:

APPEAL – COSTS  

  • No orders for costs made.
  • Both parties applied for costs certificates.

ISSUE:

Should costs certificates be awarded to both parties due to the primary judge failure to focus on important relevant considerations?

HELD:

The manner of the trial contributed to errors. Applications for costs certificates rejected.

It was determined the manner in which the trial was commenced added to the faults apparent in the trial reasons. This went against the issuance of costs certificates significantly; furthermore, the parties are far from being financially disadvantaged.

 Relevant Legislation

Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law (Superannuation) Regulations 2001 (Cth)

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Skivington & Skivington [2019] FamCAFC 36 (11 March 2019)

The husband pursued parenting and property orders and the wife filed a response to that application.

The judge made an order directing the parties to attend mediation and the matter was adjourned for further directions. There were several adjournments that took place some of which the court motioned other times the parties requested for more time to mediate.

The orders by consent instructed the parties they must attend mediation before the next mention date and for there to be no further adjournments, if the husband and wife failed to prosecute their claim, the matter would be dismissed on the next occasion.

During the interim stages, the parties resolved the parenting issues and had agreed to a method of valuing the property. The judge was informed the parties expect on completion of mediation for the matter to be resolved.

The matter was adjourned again in chambers at the parties’ request because the expected mediation had not occurred. The matter returned before the judge where the parties again requested more time to complete the mediation process.

The Judge dismissed both the initiating application and response on the basis that the parties had failed to prosecute the matter.

The wife appealed those orders, and claims the orders were complied with and that both parties were attending the mediation process, however the mediation process was incomplete, due to the mediator’s other commitments. The husband also conceded the judges orders were erroneous.

FACTS SUMMARY:

  • The husband pursued parenting and property orders and the wife filed a response to that application.
  • Orders by consent instructed the parties that they must attend mediation before the next mention date and for there to be no further adjournments.
  • The judge was informed the parties expect on completion of mediation the matter to be resolved.
  • The parties again requested more time to complete the mediation process.
  • The mediation process was incomplete, due to the mediator’s other commitments
  • The Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter.
  • The wife is appealing; the husband concedes the orders were erroneous.

ISSUE:

Did the judge fail to comply with the requirements of Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth)?

HELD:

The appeal against the orders were allowed.The initiating application and response are remitted to the FCC for a rehearing with a different Judge. The court grants both parties a costs certificate.

In determining this matter Rule 13.12 of The Federal Circuit Court Rules 2001 (Cth) provides:

13.12 Dormant proceedings (1) If a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceeding, or a part of the proceeding, be dismissed. 

(2) The Court must not make an order under subrule (1) if: 

(a) there is a future listing for the proceeding or a part of the proceeding; or 

(b) an application in a case relating to the proceeding has not been determined; or 

(c) a party to the proceeding satisfies the Court that the proceeding, or part of the proceeding, should not be dismissed; or 

(d) the Court has not given the parties to the proceeding notice under subrule (3). 

(3) The Court must, at least 14 days before making the order, give each party to the proceeding written notice of the date and time when it will consider whether to make the order. 

(4) Notice under subrule (3) must be sent by post in an envelope marked with the Court's return address: 

(a) to each party's address for service; and 

(b) if a party has no address for service--to the party's last-known address. 

It was established the matter was not “dormant” for the parties had attended mediation in accordance with the order, although the mediation was incomplete, due to the mediator’s other commitments. Whilst the process may have been slow going it was still in motion, the parties had therefore “taken steps to advance the proceedings.”

Furthermore, the judge stated at [10] “no evidence was tendered or relied upon on the adjournment application to explain why orders had not been complied with” contrary to this, a transcript extract from the submissions made on the adjournment application at [1] was included in the judges reasons.

It was determined the judge had erred in failing to consider the actions of the parties that demonstrated they were in fact prosecuting the proceedings. The judge did not clarify why the partial settlement and the incomplete mediation process were inadequate to avoid the proceedings being rejected. 

 

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Mareet & Colbrooke [2019] FamCAFC 15 (7 February 2019)

The Mother and Father are parents to a baby born in 2018; The 5-month relationship that ended in September 2017. The parties resided in NT when they separated; the mother absconded from NT due to DV by the father. She moved back to NSW where her family resides. After awhile there, the mother relocated to QLD. The mother alleged she moved because the father was stalking her. The child had not been born when the mother relocated to QLD.

5 October 2018, it was in ordered the mother to return with the child to NSW and that she “temporarily” resides at her mother’s home. The Judge restricted the mother from leaving the town in NSW until further order.

The primary judge made orders and adjourned the proceedings until 29 November 2018 for a hearing.

The mother appeals these interim orders. The father has conceded the appeal.

Both parties seek costs certificates in relation to the appeal and any rehearing of the application.

FACTS SUMMARY:

  • Appeal from interim orders restraining the Motherfrom relocating.
  • The Father concedes the appeal.
  • The Mother contends there have been significant errors of law made with the orders.
  • The mother states the Judge failed to take into account relevant matters.
  • The mother contends the orders were made from unsupported evidence.
  • The mother asserts that despite a number of requests, the primary judge failed to deliver written reasons for her decision.
  • Cost certificates sought.

ISSUE:

  • Did her Honour erred in the decision to make relocation orders for the mother and child?

HELD:

Appeal granted. Orders of the primary judge set aside, matter remitted for hearing.

Cost certificates granted.

In determining if her Honour erred in the decision to make relocation orders for the mother and child, it was established the child’s residence was never in the ‘region’ in NSW. The mother moved to a town in QLD while pregnant in March 2018.

Whilst it is the courts power to grant this injunction, according to D and SV [2003] FamCA 280;  (2003) FLC 93-137 at [16]the making of such an injunction can be avoided if the court gives adequate consideration to alternate forms of access to children.

In this instance, her Honour failed to consider the father travelling to the town in QLD to see the child and the consideration of the mother’s older child who was enrolled at preschool in QLD.

Furthermore, the order took no account of the financial burden on the mother due to the relocation, which according to her Honour may only be short term.

Moreover, there was also no evidence before her Honour that the mother’s parents had the financial capacity or even the desire to financially assist the mother in relocating back, additionally, the mothers Grandmother stated that she could not accommodate them.

The Judge was unable to determine the reasons given by her Honour, however the Father has conceded the appeal so it was unnecessary to ‘unravel.’

The Judge was satisfied that her Honour’s orders present error that the appeal succeeded on an error of law.

 

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Hyams & Deller [2019] FamCAFC 18 (7 February 2019)

FACTS:

Parenting Appeal:

  • 26 October 2018, a notice of appeal was filed by the mother against parenting orders made on 2 October 2018.
  • The complaints relate to conduct by a previous solicitor.
  • The mother states that her lawyer acted without instructions in agreeing to the orders that the Judge made, and that flows over to the two orders, which were not made by consent.

Costs:

  • The father seeks costs on an indemnity basis for the appeal.
  • The mother opposes the application for indemnity costs; her reasoning is her financial situation. The mother obtains a benefit of $350 per week maternity allowance, a house property which has an equity of $100,000, no other major assets.
  • The father’s financial situation is he has equity of  $100,000 in a house property, and earns $1,000 per week in income.
  • The mother does not oppose an order for costs calculated on a party/party basis.

ISSUE:

Parenting:

  • Was there an error by the trial judge?
  • On what basis can the appeal proceed?

Costs:

  • Should indemnity costs be ordered?

HELD:

Parenting

Parenting Appeal dismissed.

The appeal should never have been brought forward as the complaints relate to conduct by a previous solicitor; there is no error by the trial judge, which would allow an appeal. However, the court states the mother has other avenues to pursue if so advised.

Costs

Indemnity costs ordered for the Mother to pay $2000.

The Father applied for the indemnity costs for the appeal for it was ‘doomed’ to fail and should never been brought forward. The court took into account the mother’s limited financial position, however  ‘impecuniosity is not a bar to a costs order being made when it is otherwise justified’(D & D (Costs) (No  2)(2010) FLC 93-435). The court was satisfied that exceptional circumstances were established in this case to warrant indemnity costs.

 

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FLAST CASE SUMMARY: Ryder & Donaldson 2018): Change of primary care giver appeal.

Ryder & Donaldson [2018] FamCAFC 260 (20 December 2018)

FACTS

  • The Mother appeals against parenting orders made on 14 November 2017 that awarded the father the primary care giver.
  • The mother and the father have one child, a son who was born in 2013.
  • Separation occurred when child was 13 months old, the child remained living with the Mother.
  • Consent orders for the child to spend time with the father were made, however the Mother did not always comply with the orders of visitation and refused lengthy periods of contact.
  • The mother refused visitations due to her believing the father had sexually abused the child and posed an unacceptable risk of sexual abuse.
  • The ICL did not attend the appeal although they were served, the ICL argued against changing the child’s primary carer of the mother in the primary proceedings.
  • However, the Family report writer specified the child would recuperate without long-lasting risk to his emotional and psychological growth by changing the primary care giver to the father, even though it will be ‘traumatic’ for the child and he will suffer ‘significant and acute loss’.

ISSUE:

Did the primary judge misinterpret the mother’s evidence in a critical and material way?

HELD:

Appeal dismissed and contribution of costs ordered for $7,575.87 in 60 days.

The primary judge was not satisfied that the father had sexually abused the child due to insufficient evidence, or that the child was “at risk of sexual abuse from the father (at [117]).

If the child remained with the mother, the relationship between the father and child would be non-existent and “will grow up believing his father has sexually molested him and he will be encouraged in this view” (at [155]) the court considered this an unacceptable risk to the child from the mother.

It was determined that it was in the child's best interest to have a relationship with both parents, changing primary carer would facilitate this whilst protecting the child from harm by the mothers views.

Orders were made for the child to live with the father and for him to have sole parental responsibility for the child.

For a period of six months, the child would spend time with the mother under supervision followed by unsupervised time.

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Danvers & Danvers [2018] FamCAFC 262 (21 December 2018)

FACTS

  • Final parenting orders made by consent in August 2016. 
  • The property settlement orders were made in June 2017, that included sale of the house both parties shared, with the division of property interests proceeds for 55%/45% in the husbands favour.
  • The husband appealed the property settlement orders and it was dismissed in December 2017.
  • The wife in May 2018 seeks orders for the removal of the husband from the property pursuant to the property orders made so she could sell the house. This submission included but is not limited to; the wife’s full control of the sale with engaging real-estate agents and listings, the husband to be abstained from entering the property or approaching the real-estate agents, for the net proceeds of the house sale to be held in the wife’s lawyers trust account until further order. The court granted this.
  • The husband then files an application in a case in June 2018 seeking a stay of the orders awaiting the outcome of his appeal for the May 2018 orders.
  • The judged dismissed the appeal for there was no appeal orders filed in relation to the May 2018 orders and the appeal period had expired.
  • The husband then files again an amended application in a case in July 2018. The husband sought an extensive list that included but is not limited to; the wife be declared a vexatious litigant, the wife be referred to the AFP for perjury, removal of the children from the airport watch list, separating siblings- to have one child reside with him and alternate the other child’s visitations, that he would have sole responsibility of the sale of the house.
  • This appeal was dismissed again on July 2018.
  • Then finally the husband sought parenting orders that already had been determined and filed an Application in a Case in relation to property orders he was seeking to re-litigate again December 2018.

ISSUE

  1. Was there apprehended bias against the husband?
  2. Was there procedural unfairness towards the husband?
  3. Did the trial Judge make a mistake with the fathers parenting matter that he tried to re-litigate?
  4. Did the judge make a mistake in relation to ordering costs to the husband to pay the wife when the wife’s solicitor failed to file a notice of address for service in relation to the family matters?

HELD

The appeal dismissed – no order as to costs.

The judge disproved the apprehended bias claim, ‘the issue of bias was not raised with his Honour at any stage during the hearing, and the husband cannot now raise it on appeal’ (Vakauta v Kelly). Moreover, It was established the wife’s lawyer not serving the Notice of Address of Service was a ‘hollow complaint’ given the situation. The father conceded in his argument that he couldn’t afford legal representation anyway, which cancelled out his argument of needing to know if the wife had legal representation so he may get legal representation too, the husband was always afforded the opportunity to have legal representation regardless. As a result, the husband did not demonstrate why the wife should be reprimanded for her lawyer’s actions that appeared for her.

Furthermore, It was established the judge did not afford the husband to make lengthy submissions, however it was evidently proven that the husband attempts to re-litigate the settled property orders was an abuse of process.

Moreover, there was no evidence for the claims the wife needs to be referred to the APF for her allegations of domestic violence and therefore also refused to proclaim her a vexatious litigant; the wife was the respondent not the applicant in the proceedings.

 Moving forward, the husband attempted to vary the parenting orders through the amended Application in Case July 2018 in relation to the property issues, instead he should of filed an Initiating Application to commence a new parenting case and attempted mediation first, which is a pre-requisite. The judge dismissed the application due to abuse of process of parenting matters. It was concluded there was no appealable error in the judge not assisting the husband with the understanding of the process of how to initiate parenting orders.

The husband appears to be confused and believes the wife’s lawyer are seeking costs themselves and is disputing this, however it is the wife who assumes costs and is seeking the costs from the husband.The wife had to occur an expense defending a pointless application in relation for the stay of orders may 2018, as no appeal was actually made by the husband, it could never of succeeded, there was no basis to complain of procedural unfairness.

There were various points made throughout this case where the husband fails to understand the process of timing the submissions and when to raise issues in court and in what application.

 

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Gilmot & Gilmot [2019] FamCAFC 10 (24 January 2019)

FACTS

  • On November 2018, the primary judge made various orders providing for the child of both parties to reside with the Mother in a specified suburb of NSW.
  • It was ordered the Mother could not relocate out of the specific suburb with the child without the fathers written consent or court order.
  • There was no such restriction that was sought by either of the parties.
  • Both parties seek that the geographical reference should be removed from order 3 and for the one in order 4 should be changed to “Sydney Metropolitan area”
  • Both parties also seek for correction of the time that specifies - Saturday 11.00 am until Sunday 1.00 pm, there is a mention to that being for a period of six hours.

ISSUE

  • Is there a lack of procedural fairness?
  • Is there an internal inconsistency in another order?

HELD

 Appeal allowed – Orders varied.

It was established there was a clear error of the words ‘for a period of six hours’ and the times that were provided.

Furthermore, it was determined there was a lack of procedural fairness for the orders on the restriction of relocating out of the suburb, this was not an issue raised by both parties, nor was it mentioned by the judge before making the orders.

Additionally it was determined that her honours reasons will be harmonised by removing the specific suburb of order 3 and varying the order 4 to state “Sydney Metropolitan area” for there was no reference to the specific suburb in them.

 

 

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Salaway & Clavell [2019] FamCAFC 6 (15 January 2019)

 

FACTS

  • Parenting orders regarding daughter, born in 2015.
  • May 2017 and June 2018, it was determined the child resides with the mother (this was agreed by both parties and the ICL) and, up until the hearing by the judge, supervised time with the father.
  • 19 Nov 2018 at the hearing, the father sought an order for unsupervised time.
  • The father states he spent approx 21 hours of supervised time with the child without any problems, it was agreed by all the child still resides with the mother.
  • The Family Report Writer endorsed that unsupervised time was now appropriate; this was in alignment with the ICL.
  • The Mother opposed the fathers application, allegations of risk of harm from the fathers history of substance abuse that may result in neglect of child, history of family violence (that has not yet been determined), limited time spent with the child alone.
  • The Judge made orders for unsupervised time; he accepted the mother’s submission of risk and balanced the risk factors versus the benefits of child spending unsupervised time with their father, the judge determined the risk could be managed.
  • The mother states verbally that she intends to file an Appeal of this judgement and has requested a stay be placed on the orders.
  • Judge grants the stay orders-pending appeal even though the mother has not yet filed a notice of appeal.
  • The mother files for appeal on 13 Dec 2018, seeking the Nov 2018 orders are set aside, this would make the 16 May 2017 and 21 June 2018 orders remain.
  • The mother’s view is the father may spend time with the child under supervision at the contact centre while the stay order is in place- this is in alignment with previous orders.
  • The father did not utilise the contact centre this time. He states he cannot afford the supervisor.
  • Father files for expedition of appeal 2 Jan 2019.
  • Father states there has been no contact between him and the child since the stay order were made.
  • The ICL supports this application for expedition. 
  • The Mother does not support or oppose expedition.

ISSUE

  • Should this application be given priority over other cases?

HELD

The circumstances of the appeal substantiate priority – Application granted.

It was determined the application in an appeal for expedition satisfied Section 94(2D)(j) of the Family Law Act 1975 (Cth) and section r 12.10A of the Family Law Rules 2004.

It was argued an expedited appeal might reduce the significant emotional upset on the child and that the current disruptions of the arrangements were affecting the child and fathers relationship,

At [22] 'On balance, it is the matters that go to the welfare of a young child and her ability to spend time with her father in accordance with orders which the primary judge was satisfied are in her best interests, and which are presently stayed, which tips the balance in favour of expedition.'

Furthermore, the mother did not support not oppose the expedition of appeal. This meant she did not state if there would be predjuice against her if the expedition were granted, it was established that it was in the mother’s best interest and that she was ready for the appeal to be brought forward if granted in any case.

 

 

 

 

 

 

 

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Kohl & Rennie [2019] FamCAFC 13 (29 January 2019)

 

FACTS:

  • Two children aged 8 & 9 years.
  • The father pursued orders for the children to live with him, and to have sole parental responsibility, additionally for him to be allowed to relocate overseas.
  • The mother contested the father’s application to relocate and pursued orders for the children to primarily reside with her.
  • On 28 November 2018, orders were created for equal shared parental responsibility for the children. The court granted the children to live with the father and spend time with the Mother.
  • The Father now appeals these final orders, and seeks expedition of his appeal.
  • In the fathers application, he asserts that he wishes to return to the country of his birth to be a greater part of his family and own ethnic community.
  • The father does not work due to injury, claims he is unhappy with his existing housing arrangements with his brother, even though the children have a good relationship with his brother.
  • The father states he struggles financially.
  • The father claims he is promised employment by his father when he moves back overseas, through his father’s position as head of a trust. 
  • Mother opposes the application.
  • ICL submitted there might be some features that may be relevant to expediting the case, however it was a matter for the court.

ISSUE:

Are there pertinent circumstances that trigger this case to be given precedence over other cases and to their possible detriment? 

HELD

Application dismissed.

The court determines there is nothing in the father’s affidavit that indicates there are circumstances that needs to be prioritised over other comparable cases pursuant to 12.10A of Family Law Rules.

The Judge then notes the appeal will be heard soon enough anyway, for appeals appear to be moving ‘quite quickly’.

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FLAST CASE STUDY BRIEF -   

CASE : Janos & Alton
CITATION: [2018] FamCAFC 209 (2 November 2018)

DETAILS : Where the respondent concedes error by the primary judge and where there was appealable error.  The Appeal was allowed and made (Note good example of consent orders within Judgement).

& COSTS CERTIFICATES – Whether costs certificates should be ordered.  The appeal succeeded upon questions of law and Costs certificates were ordered for both parties and the Independent Children’s Lawyer for the appeal and rehearing.

Key Issues (AT) :

COSTS 
(7) The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

(8) The Court grants to the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and the Independent Children’s Lawyer in respect of the costs incurred by the respondent and the Independent Children’s Lawyer in relation to the appeal.

(9) The Court grants to the appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred in relation to the rehearing.

(7) (7) Subject to these Orders (or agreement in writing between the parties) the Mother be restrained for a period of 2 years from the date of these Orders, being until 31 December 2019, from relocating outside a radius of 50 kilometres from CANBERRA.


VALID GROUNDS OF APPEAL

INVALID DELEGATION OF POWER
(1) The next challenge made by the appellant to order 19 is that the order delegated to a third party the right to determine whether or not the appellant should be permitted to relocate with the child. The appellant’s primary parenting application was for a final order that would permit the child to relocate from Canberra to the City B area of New South Wales. The primary judge did not make that determination. That decision was placed in the hands of “an accredited mediator (or other recognised professional)”. There is no definition in the orders nor an explanation in the reasons as to what this expression means. The primary judge had no knowledge of what such a person’s expertise, training or merit might be. The primary judge ceased to bear the major responsibility for the exercise of judicial power. The decision of the mediator was not to be the subject of any review. The primary judge has invalidly delegated the central decision in the parenting case to the discretion of a person not vested with the Commonwealth’s power to make orders in relation to children and this was an error of law (see Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84).

DISCRIMINATORY and UNFAIR
(11) Another challenge to order 19 is that order 19(d) is discriminatory and unfair to the appellant in that it permits the respondent to frustrate the precondition the mother is required to satisfy in order to be able to relocate the child. The father’s behaviour could cause an “interruption” and order 19(d) would require the 12 month period of monthly mediation sessions to recommence. The order that the primary judge made by way of a final order put in the hands of the respondent the ability to frustrate the appellant’s legitimate and legal desire and to prevent what ultimately was determined by the primary judge to be in the child’s best interest.

NOT PROVIDING REASONS FOR ORDER
(16) The appellant further challenges order 7 which restrains the mother from relocating outside a radius of 50 kilometres from Canberra for a period of two years. Whilst there is power to make such an order, the Full Court has observed that a proper exercise of that power is likely to be rare and at the extreme end of the discretionary range. Any such order needs to be supported by “strong and well-defined” reasons (see Sampson v Harnett (No. 10) (2007) FLC 93-350 at [58] and [83]; Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622). The primary judge erred in law in not providing any reasons as to why this order restraining the mother’s movement should be made.

FAILURE TO CONSIDER 
(17) Grounds 3, 4, 5, 6 and 7 of the appellant’s Notice of Appeal filed 15 January 2018 complain that the primary judge failed to consider and make orders in relation to the appellant’s applications that she be able to communicate with the child when he was in the care of the respondent; that she be able to spend time with the child on his birthday if otherwise in the care of the respondent; that the child spend time with the appellant on her own birthday when he would otherwise be in the respondent’s care and that the child spend time with the appellant at Christmas and Easter. The appellant also sought orders in relation to the child’s passport and in relation to the appellant travelling overseas with the child. The respondent concedes that the primary judge failed to consider and make orders in relation to these parenting applications made by the mother and concedes the primary judge failed to give any reasons as to why those orders should not be made. It was an error of law for the primary judge not to deal with these applications in his reasons and to not make orders one way or the other.

FAILED TO GIVE REASONS
(18) In respect of the property settlement order that the primary judge made at 1 to 5 of the orders, grounds 27 and 28 of the appellant’s Notice of Appeal challenge the primary judge’s conclusions about a number of balance sheet items and grounds 29 and 30 assert that the primary judge failed to give any or any adequate reasons as to how he assessed contributions and s 79(4)(d) – (g) considerations. The respondent at [20] and [21] of the respondent’s summary of argument concedes that the primary judge made the errors asserted by the appellant. I accept that the concessions were properly made and the errors asserted were errors of law.


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Sperm donation is testing what it means to be a legal parent, all the way to the High Court

Click here for the High Court Of Australia Transcript Proceedings: Masson v Parsons & Ors [2018] HCATrans 265 (14 December 2018)

January 30, 2019 6.11am AED

The family courts have historically treated legal parentage as a question of who has “begotten or borne” a child. But increasingly complex family situations created as a result of donor conception, surrogacy, IVF and DNA testing are sorely testing this biblical-sounding definition.

In 2019, the Australian High Court will be hearing the appeal concerning the legal parentage of a child born via sperm donation. This is a crucial opportunity for the court to reconsider the “begotten or borne” definition, and the emphasis currently placed on biology and how someone was conceived.

Some time this year, the High Court will be telling an 11-year-old girl (let’s call her Billie) who her legal parents are. By the age of 11, most of us have a pretty clear picture of who our parents are, and chances are, Billie does too. She and her younger sister live most of the time with their two mums (Susan and Margaret Parsons), and have regular time with their dad (Robert Masson) and his partner Greg.*

Why is this case significant?

Billie’s family is in the High Court because her mums want to re-locate to New Zealand, and her dad objects. Whether the Parsons family should be allowed to relocate is a parenting order decision, in which the best interests of Billie and her little sister must, under the Family Law Act, be paramount.

But because Australian family law puts a big emphasis on “the benefit to the child of a meaningful relationship with both parents” when deciding the best interests of the child, whether Robert is considered Billie’s legal parent will influence the outcome.

Billie’s case is significant because at its heart is a curly question: what does it mean to be a legal parent? Pull at this thread, and it unravels many other questions. What counts when judges are deciding a child’s legal parentage? Should the court consider the circumstances of the child’s conception, birth and genetic relatedness? Are the intentions of the people who helped bring the child into the world relevant? What about whether they have functioned as the child’s parents so far? And is the child’s perspective relevant?

Family law has struggled to keep up with developments in assisted reproduction, paternity testing and the increasing diversity of Australian families. Parentage issues arise not just as a result of assisted conception, such as in cases donor conception or surrogacy. Issues also arise when children are raised by a non-genetic parent for cultural reasons (such as in some Aboriginal or Torres Strait Islander families), or where a man has been raising a child who he later discovers is not his biological offspring.

Why is Australian parentage law so messy?

Australian parentage law is particularly complex because of uncertainty surrounding the way the federal Family Law Act interacts with state or territory laws.

There is, as one senior judge points out, “serious divergence of judicial opinion in this area” and the Family Law Act does not provide any clear answers.

The overall lack of flexibility for diverse families has led the Family Law Council to conclude the present framework does not “reflect the reality of parenting and family life for many children in Australia” and that comprehensive federal legislation that defines legal parentage across all circumstances is needed.

How can we clarify the law?

With such statutory complexity, the High Court may be limited in what it can do to clarify the law in Billie’s case. For decades, the Family Court has debated whether the provisions in the Family Law Act regulating legal parentage for children conceived via assisted reproduction exclusively define legal parentage for these children, or merely enlarge the category of people who can be determined a parent. Neither of these approaches, however, adequately respond to the bigger issue of how “parent” is defined.

When interpreting the term “parent” within the Family Law Act, judges have assumed the use of the term “both parents” means a child may have a maximum of two parents, each of whom has “begotten or borne” the child (unless an adoption order is in place, or a statutory exception applies).

 

This biological interpretation is at odds with understandings of the meaning of “parent” in other areas of law. For example, in migration law, the Full Federal Court held in 2010 that the word “parent” is not limited to biological parents. Rather, it “is used today to signify a social relationship to another person” often characterised by “intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own”.

In a number of other jurisdictions, including Canada’s British Columbia, children can have more than two legal parents, where that reflects the intentions of all the adults before conception.

Should children have a voice?

But something important is missing from this debate. At 11 and ten, Billie and her younger sister could probably tell the court a lot about who they regard and rely on as their parents. Their legal parentage forms a crucial part of their legal kinship identity, and therefore part of their personal identity. It affects their legal relationships not just with their legal parents, but with one another as siblings and with extended family.

Yet amendments to the Family Law Act in 2012 explicitly removed decisions surrounding legal parentage from “parenting orders” (ie, orders that state the parenting arrangements for a child, including matters such as who they live with and when). This means that when making decisions about a child’s parentage, the best interests of the child are not paramount and there is subsequently no requirement that the child’s views be considered.

When the trial judge first heard Billie’s case in the Family Court, she discussed the children’s understanding of their family in the basic sense of who the children called “mummy” and “daddy”.

Ultimately, however, the judge emphasised Robert’s genetic contribution, and his intention to be a father in deciding that he was a legal parent (and that Margaret, who had been present at Billie’s conception, and has been one of her primary care-giving parents from birth, was not).

Achieving a more child-centred model of legal parentage is likely to be a long process, requiring significant changes to legislation. How the High Court responds to this case, and the curly problems of legal parentage it raises, may help shape reform.


* This article uses the same pseudonyms used by the Family Court

Authors

  1. Lecturer in Law, La Trobe University

  2. Professor, Law School, La Trobe University

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Myra Moody
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FLASHBACK FRIDAY CASE: Bennett and Bennett [1990] FamCA 148 (4 December 1990)

Separation of siblings

Facts: The trial judge gave custody of the boy to the Father and custody of the girl to the Mother. The mother appealed this decision of separating the siblings against orders of Maxwell J.

Issue: On appeal the issue was whether separation of the siblings was in the best interest of the children.

Held: The court approved the appeal. The separation of both children so close together in age was a serious move, which could only be reasonable, in substantial circumstances. According to the facts, there was nothing in the evidence or in the trial Judges reasons that supported the substantial circumstances were evident.

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