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Salah & Salah [2016] FamCAFC 100; (17 June 2016)

Last Updated: 3 March 2017

FAMILY COURT OF AUSTRALIA

SALAH & SALAH

FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders – Where the trial judge failed to give sufficient weight to issues of family violence and failed to have regard to and apply s 61DA(3) of the Family Law Act 1975 (Cth) – Where interim parenting orders providing for the respondent’s time with the children to be supervised had been made by consent shortly before the interim hearing – Where the trial judge made interim orders removing the need for supervision – Whether the trial judge erred in failing to give adequate reasons – Appeal allowed.

FAMILY LAW – APPEAL – COSTS – Costs certificates – Where the trial judge made material errors of law – Where it is appropriate to order a costs certificate to both parties – Costs certificates granted.


APPELLANT:
Ms Salah

RESPONDENT:
Mr Salah

FILE NUMBER:
PAC
2786
of
2015

APPEAL NUMBER:
EA
152
of
2015

DATE DELIVERED:
17 June 2016

PLACE DELIVERED:
Brisbane

PLACE HEARD:
Sydney

JUDGMENT OF:
May, Ainslie-Wallace & Cronin JJ

HEARING DATE:
8 December 2015

LOWER COURT JURISDICTION:
Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:
13 August 2015

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:
Mr Richardson SC

SOLICITOR FOR THE APPELLANT:
Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:
Mr Millar

SOLICITOR FOR THE RESPONDENT:
Swaab Attorneys


ORDERS

(1) The appeal be allowed.
(2) The orders made on 13 August 2015 are set aside and the matter is remitted for rehearing by a judge other than Judge Dunkley.

IT IS ORDERED UNTIL FURTHER ORDER:

(3) That the mother be authorised to make urgent health decisions concerning [the child A] provided the mother will immediately contact the father to inform him upon becoming aware of any health issue and, where appropriate, will consult with the father regarding any such issue and if no agreement is reached between the mother and father the mother shall make the final decision and advise the father of the decision about any such issue.
(4) That the children live with the mother.
(5) That the father spend time with [C] and [B] at all times as may be agreed in writing (including by text message or email), but failing agreement, as follows:
(6) That the father spend time with [A] at all times as may be agreed in writing (including by text message or email), but failing agreement, as follows:
(7) That without admissions the parties agree that either one of the children’s paternal grandparents and/or the paternal aunt...will be present during the father’s time with the children and will assist/facilitate the changeovers between the parties.
(8) That the children spend time with the Father from 10.00am to 5.00pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
(9) That the children spend time with the Mother from 10.00am to 5.00pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended.
(10) That the children spend equal time with the Mother and the Father on each of the children’s birthdays, at times to be agreed between the Mother and the Father, and failing agreement, the children shall spend time with the Father from 4:00pm until 7:00pm on those birthdays and the Mother at all other times on those days; and that any provision of time under this order that is inconsistent with this paragraph be suspended.

(Specific issues)

(11) That each party is hereby authorised to obtain from the children’s daycare/preschool/school all notices, letters, school reports and invitations and to attend functions, parent/teacher interviews or other activities to which parents are invited.
(12) That the mother and father each be at liberty to telephone the children and to receive telephone calls from the children at least once per day between 4pm and 6pm when the children are in the other parent’s care.
(13) That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
(14) That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the children.
(15) That the parties encourage and not undermine each child’s relationship with the other party.
(16) That [C] and [B] may continue to attend upon their treating psychologist for such future appointments as are recommended by their GP provided the mother must inform the father of the appointments and confirm his availability to attend such appointments, and both the mother and the father be entitled to attend and/or facilitate the children’s attendance at such appointments.
(17) That each of the parties be restrained from using physical discipline on the children and shall use their best endeavours from permitting any third party to do so.

Airport Watch List

(18) That neither party remove the children from their current school/daycare or from the current extra-curricular activities without the other’s consent.
(19) That until further order each party, [MR SALAH] born ... 1985 and [MS SALAH] born ... 1987, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child/children [C] born [in] 2011, [B] born [in] 2012 and [A] born [in] 2013 from the Commonwealth of Australia;
(20) AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.
(21) That the parties undergo a post-separation parenting course forthwith.
(22) That the father deliver and deposit the passports to the court forthwith.

IT IS FURTHER ORDERED:

(23) The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal against the interim parenting orders made on 13 August 2015.
(24) The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal against the interim parenting orders made on 13 August 2015.
(25) The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the re-hearing ordered.


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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY



Appeal Number: EA 152 of 2015
File Number: PAC 2786 of 2015

Ms Salah

Appellant

And

Mr Salah

Respondent


REASONS FOR JUDGMENT

  1. This appeal concerns how disputed and untested allegations of family violence were treated in interim parenting proceedings.
  2. By her Amended Notice of Appeal filed 17 November 2015, Ms Salah (“the mother”) appeals against interim parenting orders made by a Federal Circuit Court Judge on 13 August 2015.
  3. At the time of the hearing of the matter there were in place consent orders made the previous month, 8 July 2015. The order of particular significance, to the hearing before the judge and now on appeal is:
    1. That without admissions the parties agree that either one of the children’s paternal grandparents and/or the paternal aunt ... will be present during the father’s time with the children and will assist/facilitate the changeovers between the parties.
  4. After a contested interim hearing at which significant allegations of family violence were made by the mother against the father, the court discharged the consent orders and further interim parenting orders were made. The mother seeks that should the appeal succeed, the trial judge’s orders be set aside and the orders of 8 July 2015 be re-made pending re-hearing.
  5. Mr Salah (“the father”) opposes the appeal.
  6. The orders relevant to this appeal made by the trial judge were:

1. The parenting orders made on 8 January 2015 are discharged.

  1. Then, as interim orders:
    1. The mother shall have sole parental responsibility for [A] born ... 2013.
    2. The mother shall give timely advice to the father of all decisions she makes regarding [A’s] medical treatment and as much notice as possible as to all of [A’s] medical appointments so as to enable the father’s attendance at those appointments if he so elects.

4. [The child A] shall live with his mother.

  1. There then followed orders which governed the various times that A was to spend time with his father. His Honour made orders relating to the two older children ordering that they spend time with the father, such time to include alternate weekends overnight. His Honour ordered that:
    1. The parties shall have equal shared parental responsibility for [C] and [B].

7. [C] and [B] shall live with the mother.

  1. As can be seen there was no provision for the presence of other adults during the father’s time with the children.

BACKGROUND

  1. The background facts are largely uncontroversial.
  2. There are three children of the parties’ relationship. C is aged five, B is aged four and A is aged three. There is no doubt that A has significant health and developmental problems.
  3. The parents married in 2010 and separated in 2015. Since separation, the children have lived predominantly with the mother.
  4. The mother filed an application for parenting and property orders on 12 June 2015 and the father responded on 27 July 2015. In between those dates, the parties agreed on an interim parenting arrangement and the trial judge made those orders in chambers on 8 July 2015.

THE 8 JULY 2015 ORDERS

  1. The orders began with notations only one of which we need address. It reads:
    1. The respondent father has been provided with the applicants’ application and evidence and consider [sic] that these orders are in the best interest of the children.
  2. The consent orders relevantly provide:
    1. That the mother be authorised to make urgent health decisions concerning [A] provided the mother will immediately contact the father to inform him upon becoming aware of any health issue and, where appropriate, will consult with the father regarding any such issue and if no agreement is reached between the mother and father the mother shall make the final decision and advise the father of the decision about any such issue.

2. That the children live with the mother.

  1. That the father spend time with [C] and [B] at all times as may be agreed in writing (including by text message or email), but failing agreement, as follows:

...

  1. That the father spend time with [A] at all times as may be agreed in writing (including by text message or email), but failing agreement, as follows:

...

  1. That without admissions the parties agree that either one of the children’s paternal grandparents and/or the paternal aunt...will be present during the father’s time with the children and will assist/facilitate the changeovers between the parties.

...

  1. That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the children.
  2. That the parties encourage and not undermine each child’s relationship with the other party.
  3. That [C] and [B] may continue to attend upon their treating psychologist for such future appointments as are recommended by their GP provided the mother must inform the father of the appointments and confirm his availability to attend such appointments, and both mother and the father be entitled to attend and/or facilitate the children’s attendance at such appointments.
  4. That each of the parties be restrained from using physical discipline on the children and shall use their best endeavours from permitting any third party to do so.
  5. Order 5 of the July consent orders was described by the father’s counsel as a “notation”, the assertion underlying that submission being that, notwithstanding the father had agreed to the presence of his family members when spending time with the children, it was made without admission as to its necessity and therefore did not have the same effect as an order. We reject that submission. Order 5 contained an enforceable obligation and one recognised as falling within the definition of a parenting order in s 64B of the Family Law Act 1975 (Cth) (“the Act”). The addition of the words “the parties agree” and “without admission” do not detract from or modify the obligation.

THE HEARING BEFORE THE TRIAL JUDGE

  1. There were two main issues before the trial judge.

Family violence

  1. The mother made allegations of family violence against the father. He in turn made allegations against the mother. The trial judge acknowledged a distinction in the nature of the allegations by referring to those of the mother in the following words:
    1. The mother alleges significant family violence of a coercive and controlling nature being perpetrated on her by the father at times in the presence of the children.

32. The father denies any physical violence.

33. He concedes at times heated arguments on infrequent occasions.

(emphasis added)

  1. The allegations of the mother concerned a range of behaviour from verbal and emotional abuse to physical abuse in the form of punching her and damaging her property, some of which was said to be in the presence of the children. The father conceded that he had yelled during an argument on occasion but denied ever being physically violent. The father alleged that the parties’ verbal disputes escalated when the mother refused to stop arguing, and he said that she made false allegations against him. He alleged the mother yelled at him and hit him in front of the children, as well as being physically violent to the children when she was frustrated.

Supervision or monitoring of the children’s time with the father

  1. The second issue was the mother’s concern as to the capacity of the father to care for the children on his own. Her concerns were said to arise from her assertions of family violence and, in relation to A, his fragile physical condition. It was uncontroversial that A has epilepsy and a developmental delay. The child A experiences daily seizures and has poor eyesight. He has ongoing extensive medical consultations.
  2. The mother had been the parent predominantly responsible for A’s care.
  3. The mother’s concerns regarding the need for supervision of the father’s time with the children, in addition to allegations of family violence, was based on her opinion as to his capacity to care appropriately for their basic needs such as cooking and bathing. For the child A, she had deeper concerns about the father’s ability to meet medical care needs. In her affidavit filed 12 June 2015, she said:
    1. ...The children have not spent such a long period away from me. They are very young and are primarily attached to me. They will be upset at being away from me overnight for two nights, particularly given the break down in the marriage and the conflict that they have been witnessing.
    2. I do not want [A] to stay overnight until and unless I can be confident that he is able to deal with separation from me and that the Respondent and his parents are capable of caring for his medical needs.
    3. I am also very concerned that the Respondent and his parents will continue to ask the children questions that are inappropriate, confronting and frightening and that they will criticise me to the children.
    4. The Respondent is not capable of caring for the children without his parents or family in attendance. He has not cooked, washed or bathed the children. I carried out all these duties.
  4. Paragraph 5 of the July consent orders was said by the mother to have been required by her expressions of concern as to the father’s parental capacity and her allegations of family violence. The father maintained that he was forced to agree to the monitoring order in paragraph 5 without which, he would not have been able to spend time with the children.

THE REASONS OF THE TRIAL JUDGE

  1. His Honour discussed the allegations under the heading; “Other Asserted Evidence – subject to conjecture”. Thereafter, from [31] his Honour set out the mother’s allegations. His Honour said:
    1. The mother alleges significant family violence of a coercive and controlling nature being perpetrated on her by the father at times in the presence of the children.

32. The father denies any physical violence.

33. He concedes at times heated arguments on infrequent occasions.

  1. The mother sought through the police and [sic] Apprehended Violence Order. This application was dismissed.

...

  1. On 7 June 2015, there was an incident whereby the children came into the father’s care and the police became involved. It seems the police imposed a regime on the parents that day regulating their time with the children. The circumstances giving rise to this incident are not agreed, although the police involvement is conceded.
  2. His Honour summarised the parties’ positions as the father wanting time with all of the children absent any requirement he be in the presence of any other adult (at [47]) and the mother seeking continuation of the 8 July consent orders with the time the children spend with the father to be supervised rather than to be in the presence of another adult (at [52]).
  3. His Honour, under the heading “Determination” returned to the allegations and said:
    1. The evidence lead [sic] as to alleged family violence made by each parent is not capable of sustaining a finding at this interim stage of proceedings. In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.
    2. The additional benefit for the older children arising from equal shared parental responsibility is that those children’s involvement with any counsellor will need to be consensual and thereby reportable to both parents.

...

  1. Findings with respect to whether either party perpetrated family violence cannot be made at this interim stage given the conflicted evidence. The civil standard of proof is met by neither.
  2. As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out. It is not needed for the purpose of section 60CC (2)(b).
  3. His Honour observed that neither party sought an order for equal time nor had the children experienced that kind of living arrangement.
  4. The trial judge at [69] referred to the evidence as “conflicted” and then found that the civil standard of proof had not been met. In our view, apart from applying an incorrect test, such a finding should not have been made as the legislation does not require it.

THE APPEAL

  1. By the Amended Notice of Appeal filed 17 November 2015, the mother contends three broad challenges to his Honour’s orders. The first asserts errors of principle in considering the issues of family violence, secondly, that his Honour failed to take into account relevant facts and, as a result, his discretion miscarried and thirdly that his Honour failed to give adequate reasons for his determination.

Error of principle in considering the issues of family violence

  1. Although under the rubric of this ground, the mother contends that his Honour made a number of discrete errors, counsel for the mother focussed the argument, both written and oral on several but not all of them. We propose to do the same. It was thus argued that his Honour:
    1. Erred in his consideration of the family violence issues;
    2. Failed to have regard to s 61DA(3) of the Act; and
    1. Failed to follow the legislative pathway in his determination of the interim issues.
  2. Senior counsel for the mother described the way in which the trial judge dealt with the family violence question as having “neutralised” the effect of the Act. Having been confronted with the assertion, the trial judge was obliged to deal with it within the confines of an interim hearing.
  3. Whilst both parties had made allegations of family violence, and we are not to be understood as saying that one is more persuasive than the other, in this case, the father was not seeking that the children live with him whereas the mother was seeking restrictions on the father’s time and the presence of other adults.
  4. Before turning further to the arguments of counsel for the mother, it is of assistance to set out the relevant statutory provisions, in particular, s 61DA which provides for the presumption of equal shared parental responsibility and, it is to be recalled that his Honour made such an order only in relation to C and B. It is also important to consider the section relevant to interim hearings.
  5. Section 61DA is as follows:

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

....

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

  1. Section 61DA and in particular, subsection (3), was discussed in Treloar & Nepean [2009] FamCAFC 206; (2009) FLC 93-417 (Coleman, May & Dawe JJ) where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode [2006] FamCAFC 1346; (2006) FLC 93-286 (at 83,750). The following paragraph from Goode (supra) was emphasised in the decision of Treloar:
    1. The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. ...
  2. Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA(3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.
  3. It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to “the usual pathway as highlighted in Goode & Goode [2006] FamCAFC 1346; (2006) FLC 93-286”. A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):
    1. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
  4. In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
    1. ...that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
  5. The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.
  6. In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
    1. ...Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
  7. The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or “conjecture”) and not to “simply ignore an assertion because its accuracy has been put in issue” (see SS v AH).
  8. The difficulty in this case, and one clearly identified by counsel on the appeal, is that his Honour, after correctly observing at [58] that he could not, at that point, make findings on the disputed allegations, continued and said; “...In circumstances of conjecture given no other evidence. The presumption for equal shared [parental] responsibility is still applicable.” Simply put, his Honour having determined that he could not make any findings, ignored the allegations and found the presumption of equal shared parental responsibility applied.
  9. His Honour’s comment “given no other evidence” suggests that his Honour required corroboration or objective support for the mother’s allegations in proof of them. To so suggest is an error. Family violence often takes place in private in circumstances where no corroboration is available.
  10. Further, his Honour’s erroneous treatment of the issue is further demonstrated at [69] where he repeats, again incorrectly, that findings cannot be made as to whether either party perpetrated family violence at an interim stage given conflicted evidence and said; “The civil standard of proof is met by neither”.
  11. His Honour’s reference to the civil standard of proof is not only incorrect but entirely inapt in the context of, as he had said, disputed allegations of significant family violence raised in interim proceedings.
  12. His Honour was in error in, in effect, failing to pay any heed to allegations which he had earlier regarded as “significant” and in failing to consider those allegations in the context of an interim hearing.
  13. In view of the allegations made by the mother and as this was an interim hearing, the trial judge should have applied s 61DA(3) and given reasons for not applying the presumption (such as he was unable to make any findings and could therefore neither apply nor rebut the presumption) but his Honour said that the presumption applied. In part, it was the application of the presumption which triggered well known obligations within the Act, and that led to his discretion being exercised in error.
  14. The challenge to his Honour’s approach to the resolution of the issues of family violence is made out.

Failure to take into account relevant facts

  1. This second challenge to his Honour’s orders contends that his Honour:
  2. There was some argument as to what was the mother’s proposal before the trial judge.
  3. On appeal, counsel for the father pointed to the transcript of the hearing before his Honour and submitted that the mother had departed from her desire to have the father’s time with the children monitored by his family.
  4. The trial judge set out his understanding of the father’s position at [47] and the mother’s position at [47]. His Honour said:
    1. In summary, the father wants time with all of the children absent any requirement he be in the presence of any other adult.

...

  1. The mother seeks a continuation of the orders made 8 July 2015, with the time with orders for the father’s time with the children to be “supervised” rather than in the “presence of”.
  2. It was submitted for the mother that while her position at trial was that the requirement for the children’s time with the father be in the presence of another adult be changed to that time being supervised, at the conclusion of the hearing the mother’s position was that the July orders should be maintained without change. The following exchange makes this clear:

His Honour: ... And the interim parenting orders that your client agitates for are those ones in her initiating application?

Mr Gould: They’re superseded, really, your Honour, by the orders of 8 July.

His Honour: So she wants a retention of those orders

Mr Gould: Retention of those orders, your Honour.

(Transcript 6 August 2015, p. 17, l. 39 – 46)

  1. While not exactly as his Honour noted at [47], nothing in the result turns on this discrepancy.
  2. The trial judge returned to the allegations of family violence when considering whether to order there be some form of supervision or presence of another adult when the children spent time with the father. At [70], after his Honour considered the times in the past the children had spent time with the father, said:
    1. As such and for the same reasons the need for the father’s time with the children to be either in the “presence of” or “supervised by” another adult is not made out. It is not needed for the purpose of section 60CC (2)(b).
  3. It is clear that the “same reasons” to which his Honour there referred are those to which he referred at [69] that findings could not be made “given the conflicted evidence. The civil standard of proof is met by neither”. That is, there is no reason for the time with the children be monitored because the disputed allegations had not been proven to the civil standard.
  4. Section 60CC(2)(b) provides that in determining the best interests of a child, as a primary consideration, the court must consider:

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

  1. Clearly then his Honour found not only that the allegations of family violence had not been proven but that there was no risk of family violence necessary to be considered at the interim hearing. We accept the submission of counsel for the mother, that in making the orders he did, and in rejecting the mother’s argument that the father’s time be monitored consistent with his concessions just a month before, his Honour in effect, ignored the allegations of family violence. To do so was to perpetuate the error which has already been established.
  2. Senior counsel for the mother submitted that his Honour failed to give sufficient weight to the orders as reflecting a concession by the father that, inter alia, the requirement that another relative be present was in the best interests of the children as the preamble to those orders asserted. Further, it was argued that his Honour failed to take into account those orders, to which both parties agreed made very shortly before the hearing.
  3. His Honour said of the consent orders:
    1. Between the date of filing of the Initiating Application and the date of interim hearing, the parties delivered to Chambers a minute of interim parenting orders which was made into orders by consent pending further order on 8 July 2015.
    2. Neither Counsel for either party sought to assert at the interim hearing on 6 August that the Court was precluded from making different interim parenting orders to those made by consent in Chambers o [sic] 8 July 2015 by application of the so called “rule” in Rice v Asplund.
    3. The interim parenting orders fall to be made by consideration of the usual legislative pathway as highlighted in Goode v Goode subject to apply [sic] the “paramountcy principal [sic]” and considering the relevant sections of the Family Law Act.

(footnotes omitted)

  1. His Honour’s reasons reveal that he gave no consideration to either of these matters. His Honour gave no reasons why he effected a change of the position earlier agreed by the parties nor that he considered the father’s concession in Order 5 of those consent orders in any way. Further it was argued, and we accept, that in setting out the terms of the earlier orders, his Honour made no mention of the notation in which the father agreed that the following orders were in the best interests of the children.
  2. The facts and circumstances of the making of the recent consent orders, while not determinative of the issue were, in our view important factual background to the issues before his Honour and were worthy of consideration by him. That his Honour did not consider them is, in our view an error.
  3. The challenge is made out.

Adequacy of Reasons

  1. Senior counsel for the mother submitted that it was difficult to know why the trial judge arrived at the conclusion he did in rejecting the mother’s proposal for some form of supervision.
  2. The finding in relation to the presence of other adults must be seen to be a consequence of his Honour’s findings in [58], [69] and [70] to which we have already referred and while we have found his Honour’s approach to be erroneous, his findings in relation to the need for supervision or another adult to be present during the time the children spend with the father are consistent with but redolent of the same error. We accept the contention of counsel for the mother that:
    1. ...Whilst the Grounds above agitate from different perspectives, the fundamental error that permeates the entirety is His Honour’s approach to the case seized with the issues of family violence. ...
  3. Albeit the hearing was truncated, the trial judge was obliged to properly consider the relevant legislation to which we have referred. We are unsure why the mother’s proposal of some modest restriction on the father was rejected in circumstances where there should have been a cautious approach to the family violence allegations and the uncontroversial problems of the child A. In any event, it was incumbent upon his Honour to give reasons for the findings and the orders, and he did not. There was no indication which would allow the mother to understand why he rejected the mother’s proposal that the father’s time be spent in the presence of a relative.
  4. This challenge is established, and as the other grounds also have merit, the appeal will thus succeed.

DISPOSITION OF THE APPEAL

  1. It was common ground that if the appeal succeeded the matter would need to be remitted for re-hearing.
  2. In the Notice of Appeal, the mother sought that virtually all of the orders of the trial judge be set aside. That was confusing because some of the orders were not disputed and indeed favoured the mother’s position at trial.
  3. Senior counsel for the mother sensibly sought leave to amend that part of the Notice of Appeal to reflect a position that if successful, the parties’ agreed position encapsulated in the 8 July 2015 orders should stand until the ultimate trial of the proceedings. For the reasons that follow, that is a position we adopt.
  4. In the intervening period, the appropriate order to make is to set aside the orders of the trial judge and to the extent that there is any doubt about whether or not that enlivens the July orders, we consider that we should make them again. To ensure certainty pending any final determination, we will reiterate the orders of 8 July 2015 to which the parties consented despite time having passed since the orders of the trial judge.
  5. Counsel for the father asked that should the appeal be allowed the hearing of the interim application be expedited. We will recommend such expedition recognising that there has been some delay in delivering this judgment.

COSTS

  1. Both parties sought costs certificates for the appeal and the retrial if the appeal was successful.
  2. The appeal has succeeded because of an error of law made by the trial judge. It could not be said that either party had contributed in any way to the error. It is not appropriate that an inter partes costs order be made and thus it is appropriate that costs certificates for both the father and mother for the appeal and the re-hearing be granted pursuant to the provisions of the Federal Proceedings (Costs) Act 1975 (Cth).

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Cronin JJ) delivered on 17 June 2016.

Associate:

Date: 17 June 2016

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