Appeal on grounds of Errors of Law
FLAST CASE STUDY BRIEF -
CASE : Janos & Alton
CITATION:  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
#ConsentOrders made (Note good example of consent orders within Judgement).
#COSTS & 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) :
(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
#relocation 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  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  and ; Adamson & Adamson  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  and  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.