Helbig & Rowe [2012] FamCAFC 169; (24 October 2012)

Last Updated: 2 November 2012

FAMILY COURT OF AUSTRALIA

HELBIG & ROWE

[ 2012] FamCAFC 169

FAMILY LAW ─ APPEAL ─ Appeal against interim orders of Federal Magistrate made in parenting proceedings ─ Where both parties sought orders that the father’s time with the children, on an interlocutory basis, be supervised ─ Where the dispute was whether, as the mother sought, more formal independent supervision should be ordered or, as the father sought, whether supervision should be by a member of the father’s family, and the frequency and duration of time the father spent with the children ─ Nothing to which the Court was referred demonstrated that his Honour was in error in accepting the evidence of the people who the father wanted as supervisors, or erred in finding that they were appropriate supervisors of the father’s time with the children ─ Where neither the learned Federal Magistrate’s reasons for judgment, nor anything said by his Honour during the course of the proceedings to which the Court was referred established that anything but the most tentative, and carefully guarded observations were recorded by the learned Federal Magistrate ─ Not demonstrated that the learned Federal Magistrate erred in any relevant sense ─ Appellate intervention not enlivened ─ Appeal dismissed. FAMILY LAW ─ APPEAL ─ COSTS ─ Where it was conceded on behalf of the mother that if the appeal was unsuccessful she could not resist an order for costs ─ Where the appeal was unsuccessful ─ Order for costs made in favour of the father with execution of order stayed until determination of the financial proceedings between the parties.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Helbig

RESPONDENT:

Mr Rowe

FILE NUMBER:

PAC

5421

of

2010

APPEAL NUMBER:

EA

74

of

2012

DATE DELIVERED:

24 October 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

12 October 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

29 November 2011

LOWER COURT MNC:

[2011] FMCAfam 1532

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Druitt

SOLICITOR FOR THE APPELLANT:

Ian Harper & Co

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Pryor Tzannes & Wallis

ORDERS

(1) That the appeal be dismissed.
(2) That the mother pay the father’s costs of and incidental to the appeal as a agreed or assessed on a party and party basis and that execution of such order be stayed until determination of the financial proceedings between the parties.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 74 of 2012

File Number: PAC 5421 of 2010

Ms Helbig

Appellant

And

Mr Rowe

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Pursuant to an extension of time in which to do so, by Notice of Appeal filed 20 June 2012 Ms Helbig (“the mother”) appealed against interim orders made by Foster FM in parenting proceedings between herself and Mr Rowe (“the father”) on 29 November 2011.

BACKGROUND

2. For reasons which will become apparent, little background to the parenting proceedings requires articulation, or is likely to materially assist in determining this appeal.
3. The parenting proceedings in the Federal Magistrates Court related to the children of the former relationship of the parties, X born in 2005 and Y born in 2008.
4. The final hearing of the parenting proceedings commenced before the learned Federal Magistrate on 21 November 2011. At the conclusion of the two days allocated for the trial of the proceedings, it was common ground that, for a variety of reasons, a number of further days would be required to complete the trial. Without opposition from either party, the learned Federal Magistrate then determined the arrangements which were to apply for the parenting of the children pending the resumption and completion of the trial.
5. On an interlocutory basis, both parties sought that the father spend time with the children on a supervised basis, the dispute between the parties being, essentially, the definition of the periods of time, and the identity of the supervisor of them. The learned Federal Magistrate’s orders defined the father’s time with the children, and ordered that it be supervised by one or more of a number of members of the father’s family who were referred to in the learned Federal Magistrate’s orders, or such other person as the parties agreed.

THE APPEAL

6. Although the grounds articulated in the mother’s Notice of Appeal asserted a variety of appealable errors, neither they, nor the comprehensive submissions of Counsel for the mother in support of the grounds articulated the asserted connection between the learned Federal Magistrate’s asserted errors and the orders made by his Honour.
7. With respect to the draft person of the Notice of Appeal, no submissions advanced by the mother’s Counsel attempted to advance ground 4, a procedural fairness challenge, whilst the submissions with respect to ground 3, overlooked the reality that the mother had sought that the father’s time with the children be supervised on an interlocutory basis, and the learned Federal Magistrate’s orders provided for such supervision.
8. Having regard to the manner in which the mother’s Counsel sensibly conducted her appeal, it is apparent that, in the main, the submissions advanced in support of the grounds articulated in this appeal were ultimately more referable to the mother’s appeal against the learned Federal Magistrate’s subsequent refusal, on 23 May 2012, to recuse himself from further hearing the proceedings between the parties.
9. Without intending any disrespect to the submissions of Counsel for the mother in relation to the interlocutory parenting orders, even if the submissions advanced in support of the various complaints in Counsel’s outline of argument were accepted, that would not enliven appellate intervention, for reasons which will become apparent. It has not been suggested that the learned Federal Magistrate erroneously recorded the positions of each of the parties in relation to the interlocutory orders. Nor has it been suggested that the learned Federal Magistrate misunderstood what either party sought. It is apparent that each party sought that the father spends time with the children at different intervals and for different durations.
10. As noted earlier, both parties sought that the father’s time with the children, on an interlocutory basis, be supervised. The dispute in that regard is whether, as the mother sought, more formal independent supervision should be ordered or, as the father sought, whether supervision should be by a member of the father’s family, and the frequency and duration of time the father spent with the children.
11. As noted earlier, it was not until 20 June 2012, almost 7 months after the learned Federal Magistrate published his reasons for making the interlocutory orders on 29 November 2011 that the mother sought to challenge those orders.
12. With respect to the ingenuity of the submissions in support of ground 1 of the Notice of Appeal which provided:
    1. that the learned judicial officer erred in drawing conclusions of fact prior to hearing the mother’s evidence, the evidence of her witnesses and the evidence of the Special Expert Witness when the proceedings were part heard

neither the learned Federal Magistrate’s reasons for judgment, nor anything said by his Honour during the course of the proceedings to which the Court has been referred establishes that anything but the most tentative, and carefully guarded observations were recorded by the learned Federal Magistrate.

13. As is not in doubt from reading the affidavit material which was before the learned Federal Magistrate, the proceedings raised a number of highly controversial issues. The learned Federal Magistrate was in the invidious position. Being part heard in the final hearing of the parenting proceedings his Honour had to exercise caution with respect to findings of fact, or conclusions based upon them, given that the evidence was incomplete, and in some respects untested. Conversely, his Honour was required to adequately reveal the process of reasoning by which he reached his decision in relation to the interlocutory dispute, which neither party objected to his Honour resolving, being determined according to law.
14. With respect to Counsel for the mother, and without suggesting that the criticisms asserted with respect to the learned Federal Magistrate’s comments during the course of the proceedings or anything emerging from his reasons for judgment with respect to them involved a descent into the “pernickety”, the Court is not persuaded that, individually or cumulatively, the matters asserted in Counsel for the mother’s carefully articulated submissions, demonstrate that the learned Federal Magistrate erred in any relevant sense.
15. On the contrary, notwithstanding that his Honour had heard two days of the trial, his Honour scrupulously avoided attempting to make findings of fact, which were not then open to be made. The learned Federal Magistrate’s reasons for judgment are replete with statements recognising that the evidence remained incomplete and significantly untested. Diligently, and successfully in this Court’s view, his Honour avoided making findings which the state of the evidence precluded him from safely making.
16. At paragraphs 22-26 of the learned Federal Magistrate’s reasons for judgment, the people who the father wanted as supervisors were referred to by his Honour. Those people were not cross-examined, or if they were, the learned Federal Magistrate accepted their evidence. Nothing to which the Court has been referred demonstrates that his Honour was in error in accepting their evidence, or erred in finding that they were appropriate supervisors of the father’s time with the children.
17. In reality, for this appeal to have possible merit, it would be necessary for the mother to demonstrate that, in some way, the learned Federal Magistrate’s discretion miscarried with respect to either frequency or duration of time being spent by the father with the children, and/or the identity of the person or entities who would supervise such time. With respect to Counsel for the mother, even if accepted in their totality, the submissions do not establish that his Honour so erred.
18. Even if, contrary to this Court’s conclusions, the appeal should be found to have merit, allowing it would have no utility. The Court could not properly re-exercise the learned Federal Magistrate’s discretion. A further interim hearing would be an abuse of the processes of the Federal Magistrates Court in circumstances where a final hearing has begun.

COSTS

19. It was, sensibly in the Court’s view, conceded by Counsel for the mother that, if unsuccessful, the mother could not resist an order for costs in favour of the father, provided that execution of such order was stayed pending determination of proceedings for settlement of property between the parties. Counsel for the father resisted the latter contention with no great fervour.
20. The appropriate order to made is that the mother pay the father’s costs of and incidental to the appeal as agreed or assessed on a party and party basis, and that execution of such order be stayed until determination of the financial proceedings between the parties.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 24 October 2012.

Associate:

Date: 24.10.2012