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Magistrate Orders Opposed by the Appellant

Bonner & Chandler [2021] FedCFamC1A 81 (8 December 2021)

The magistrate made orders dismissing the appellant’s application for the appointment of a single expert witness as well as an interlocutory application for the children to regularly spend supervised time with the appellant.  The appellant contends that the magistrate fell into error by dismissing the application because the respondent parents jointly opposed the children spending any time with the appellant.  The Court, in adjudicating this dispute, assessed the importance of the respondent’s parental authority.

Facts:

The parties' relationship has deteriorated in recent years, apparently exacerbated by their conflicting interests in an intra-family dispute litigated before the State Administrative Tribunal.  The deterioration in relations between the appellant and the mother indirectly affected the children’s relationships with the appellant, as the children ceased seeing her in or about February 2018.  The appellant commenced proceedings before the Magistrates Court of Western Australia in March 2021 seeking orders compelling the respondents to ensure the children spend time with her.  The appellant’s application for interim orders was first listed on 14 April 2021, when stop-gap orders were made for the children to spend supervised time with appellant until her contested application could be properly heard on 3 August 2021. 

On 3 August 2021, the magistrate heard the appellant’s revised interim application for orders requiring the children to regularly spend supervised time with her.  The appellant expanded her application for interim relief to include the appointment of a single expert witness in the proceedings.  Judgment was reserved.  The magistrate orally pronounced orders and delivered reasons soon after on 12 August 2021, dismissing the appellant’s applications.

The appellant lodged an appeal pleading as grounds that the learned Magistrate erred in law by applying, or otherwise being materially affected by, the wrong principles in determining the appellant’s application to spend time with her grandchildren and that the learned Magistrate erred in dismissing the appellant’s application for the appointment of a single expert witness.  Ground 1 addresses the dismissal of the appellant’s application for parenting orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) and Ground 2 separately addresses the dismissal of the appellant’s application for the appointment of a single expert witness.

Issue:

Whether or not the appeal should be granted. 

Applicable law:

Family Law Act 1975 (Cth) Pt VII - pursuant to which the order dismissing the application is not a “judgment” amenable to appeal because it is not an operative judicial act which binds the parties’ rights and disposes of any justiciable cause between them. 
 
Family Law Act 1975 (Cth) s 60B - provides that in deciding whether to make a particular parenting order, I must treat the best interests of the children as the paramount consideration. 
 
Family Law Act 1975 (Cth) s 60CC - provides for additional considerations which require assessments of the matters there, listed by reference to the circumstances of the case. 
 
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 2836 - provides that although the dismissal order is not a parenting order, it still relates to a “child welfare matter” and so is not a “prescribed judgment” for which leave to appeal is required. 
 
Federal Proceedings (Costs) Act 1981 (Cth) s 9 - pursuant to which the appellant is granted a costs certificate. 
 
Federal Court and Federal Circuit and Family Court of Australia Regulations 2012 (Cth) reg 4.02
Aldridge & Keaton (2009) FLC 93-421[2009] FamCAFC 229 - affirmed that, in child-related proceedings, the parents of the subject children do not enjoy superiority over any other person who is keenly interested in the children’s welfare, though the status of parenthood does require careful consideration in the application of s 60CC of the Act because some factors pertain only to parents. 
 
Allesch v Maunz (2000) 203 CLR 172[2000] HCA 40 - provides that it is the appellant’s prerogative to adduce further evidence.
 
Cramer v Davies (1997) 72 ALJR 146 - pursuant to which the certificate is granted, as is one in favour of the respondents under s 6 of the statute, as the pre-conditions for the grant are satisfied.
 
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45[1968] HCA 91 - provides that the order dismissing that particular application is not a “judgment” amenable to appeal because it is not an operative judicial act which binds the parties’ rights and disposes of any justiciable cause between them under Pt VII of the Act.
 
Valentine & Lacerra & Anor (2013) FLC 93-539[2013] FamCAFC 53 - held that deciding that the respondents were entitled to make that decision as an incident of their parental responsibility for the children and strongly implied the legitimacy of their decision need not be scrutinised, much less countermanded improperly elevated the importance of the respondents’ parental authority over, and their responsibility for, the children in a way which was inconsistent with the law

Analysis:

The appealed order dismisses interlocutory applications and is itself interlocutory in nature. Nevertheless, leave to appeal is not needed to prosecute Ground 1.  Although the dismissal order is not a parenting order, it still relates to a “child welfare matter” and so is not a “prescribed judgment” for which leave to appeal is required. 

As to Ground 2, the dismissal of the appellant’s application for the appointment of a single expert witness was merely an order in the nature of a procedural ruling within the substantive proceedings.  The order dismissing that particular application is not a “judgment” amenable to appeal because it is not an operative judicial act which binds the parties’ rights and disposes of any justiciable cause between them under Pt VII of the Act.  

The essence of the magistrate’s findings were that the respondents have made a parental decision that they do not wish the children to spend time with their grandmother, and such decision falls under the umbrella of the exercise of parental responsibility.

The magistrate’s reasons reveal the appellant’s application was dismissed essentially because the respondents jointly opposed the children spending any time with the appellant.  The magistrate considered the respondents were entitled to make that decision as an incident of their parental responsibility for the children and strongly implied the legitimacy of their decision need not be scrutinised, much less countermanded. 

Conclusion:

The Court allowed the appeal in part.  Order 1 made on 12 August 2021 is set aside. 

The appellant’s application for order 13 contained within the “Minute of Interim Orders” filed on 30 July 2021; the appellant’s application contained within Annexure B to the Initiating Application filed on 2 March 2021; and the respondents’ application contained within Part A5 of the Response to Initiating Application filed on 10 May 2021 are remitted for re-hearing by a different judicial officer.  

The appellant’s applications for orders 1–12 and 14–16 contained within the “Minute of Interim Orders” filed on 30 July 2021 are dismissed.  The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

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