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Appellant Opposes Magistrate Orders for Equal Shared Parental Responsibility

Miley & Miley [2021] FedCFamC1A 62 (12 November 2021)

The Magistrate made orders providing for the appellant to return the child to Western Australia and for the parties to have equal shared parental responsibility. 

The appellant opposes the return of the child from Victoria to Western Australia. 

The appellant asserts that before his Honour made the order he did he did not make a finding that a substantial and significant time arrangement was reasonably practicable as he was obliged to do.  The Court, in deciding whether or not the appeal should be allowed, assessed the merits of the grounds interposed by the appellant. 

Facts:

The parties commenced a relationship in early 2012, and married in 2013.  The child, who was born in 2015, is currently aged 6 years.  The parties separated on 23 May 2017, and thereafter the child lived with the wife in Western Australia.  The husband spent very little time with the child post-separation owing to the parties’ acrimonious relationship.  In November 2020, the husband purchased a property in Western Australia intending to relocate back to Western Australia in around September 2021, after his two years of country service.  

On 7 January 2021, the wife relocated with the child to her sister’s residence in Victoria.  No prior notice was provided to the husband, and it was not until 22 January 2021 that the wife advised the husband that she had relocated with the child to Victoria.  

On 25 January 2021, the husband filed an Initiating Application in the Family Court of Western Australia seeking interim and final parenting orders.   The primary issue was the husband’s application seeking the child be returned to Western Australia, and the wife’s opposing application seeking the child be permitted to remain in Victoria. 

The Magistrate found in the husband’s favour, and the orders provide for the wife to return the child to Western Australia by 24 December 2021, for the parties to have equal shared parental responsibility for the child, for the child to live with the wife and spend time with the husband in Victoria (where the child is currently residing with the wife), with that time to increase following the child’s return to Western Australia.  By Amended Notice of Appeal filed on 8 September 2021, the wife appeals from interim parenting orders made by a family law Magistrate of the Magistrates Court of Western Australia on 25 June 2021.  The husband opposes the appeal.  The wife effectively seeks that the orders providing for the child’s return to Western Australia, and the orders providing for the child to spend time with the husband thereafter, be set aside, and the matter be remitted to another Magistrate for rehearing.

Issue:

Whether or not the primary judge erred in making its parenting orders. 

Applicable law:

Family Law Act 1975 (Cth) s 65DAA(2) - if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents, the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

s 65DAA(5)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(1)(c) - permits the Court to place conditions on the remitter of a matter after a successful appeal.

Federal Proceedings (Costs) Act 1981 (Cth) s 6s 8s 9 - provides the costs certificates appropriate for the Attorney-General to authorise payment to the parties. 
 
Agambar & Agambar [2021] FedCFamC1A 1 - relied upon by the Court in rejecting some of the wife’s reasons for relocating, that outcome is not precluded merely because those reasons were unchallenged. 
 
Barone & Barone [2012] FamCAFC 108 - where there does not need to be a separate section of the judgment addressing reasonable practicability, but the reasons for judgment need to reveal, expressly or even impliedly, that that question has been considered via reference to the matters identified in s 65DAA(5) of the Act as a separate question to the issue of best interests, and an affirmative answer given. 
 
DL v The Queen (2018) 266 CLR 1[2018] HCA 26 - provides that his Honour is neither obliged to accept those assertions, nor to deal with each of them in his reasons for judgment. 
 
Edwards v Noble (1971) 125 CLR 296[1971] HCA 54 - provides that insofar as his Honour’s finding can be considered a finding of fact, that finding was reasonably open on the evidence, and no complaint can be made that his Honour erred in making that finding. 
 
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 - the Court needs to “fashion” appropriate orders, and that a partial remitter would take away “the essence” of being able to weigh the facts in accordance with the principles herein.
 
Hamish & Brighton [2014] FamCAFC 242 - provides that it was not open to his Honour to conflate the issues of “best interests” and “reasonable practicability. 
 
Kopel & Ferro (2016) FLC 93-741[2016] FamCAFC 202provides that the Court has the power to place conditions on the remitter of a matter after a successful appeal.
 
MRR v GR (2010) 240 CLR 461[2010] HCA 4 - where the High Court said that each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  

Analysis:

As the first ground of her appeal, the wife asserts that before his Honour made the order he did he did not make a finding that a substantial and significant time arrangement was reasonably practicable as he was obliged to do.  The wife deposed matters as to her previous difficulties in finding suitable employment in Western Australia, the termination of her employment in Victoria if the child was ordered to return to [Western Australia], the need to find suitable accommodation in Western Australia, the need to break the lease of her accommodation in [Victoria], and her financial circumstances generally.  While his Honour included the affidavit of the wife in the list of documents he took into account, nowhere in his Honour’s reasons is there a specific consideration of whether the child spending substantial and significant time with each of the parties in Western Australia, is reasonably practicable.

There is no doubt that his Honour considered that the child spending substantial and significant time with each of the parties in Western Australia would be in the best interests of the child, and that finding is not challenged in this appeal, but that is only one of two questions that needs to be asked.  His Honour did consider and make findings that would be necessary if he was considering reasonable practicability, but it is not apparent that those findings were made in the context of a consideration of that issue.  

Conclusion:

The appeal is allowed in part.  Paragraphs 5, 8, 10, 11, 12 and 13 of the Order made on 2 July 2021 are to be set aside.  The interim parenting proceedings are to be remitted for a partial rehearing limited to the question of whether the child A spending substantial and significant time with each of the parties is reasonably practicable, and subject to the outcome of that rehearing, the making of appropriate orders taking into account the unchallenged findings of the presiding Magistrate.  The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).  The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).  The Court grants to the parties costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).  

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