· 2021-12-22T16:59:32+0000 · 750 posts

Maternal Uncle Appeals Judgment by Primary Judge

Christie & Galipo [2021] FedCFamC1A 88 (17 December 2021)

The children’s parents are deceased. The primary judge found that it was in the children’s best interests to live with the paternal grandparents. The maternal uncle appealed from such discretionary judgment. The Court, in assessing whether or not the primary judge erred, considered the judge's reliance on the capacity of the paternal grandparents to care for the children.

Facts:

In early 2020, the three children, then aged six years, four years and two months, were in a motor vehicle with their parents and paternal grandparents (“the paternal grandparents”). There was an accident. The parents died. The paternal grandparents proposed they would return to Country A and the children would live with them there. The maternal uncle (“the uncle”) proposed that the children would remain in Australia with him, his wife (“the aunt”) and their child (“the cousin”), who is around the same age as the eldest child.

On 5 August 2021, the primary judge found that it was in the children’s best interests to live with the paternal grandparents, for the paternal grandparents to have parental responsibility and permission for them to return to Country A with the children. By an Amended Notice of Appeal filed 20 September 2021, the uncle appeals against those orders. The paternal grandparents oppose the appeal. Consistently with her position at trial, the Independent Children’s Lawyer (“ICL”) submits the appeal should be allowed.

The paternal grandmother, aged 68, had come to Australia in October 2019 and the paternal grandfather, aged 71, was living in the home of the deceased parents at the time of the motor-vehicle accident. On 14 January 2020, the Family Court of Western Australia made interim orders in favour of the paternal grandparents for parental responsibility and the children to live with them. On 17 February 2020 the uncle filed a Response to Application for Final Orders.

The primary judge noted that the ICL part way through the uncle’s case and before evidence was given by the single expert, filed a detailed Minute of Order which primarily proposed that the uncle have sole parental responsibility for the children and that they live with him. The ICL did not alter the orders she sought after the evidence of the expert witnesses. At the commencement of final submissions, the uncle abandoned his form of orders and adopted those of the ICL.

Issue:

Whether or not the primary judge failed to give adequate reasons for his judgment.

Applicable law:

Family Law Act 1975 (Cth) s 60CC - provides the primary considerations in determining what is in the child's best interests.

Family Law Act 1975 (Cth) s 68LA - provides that the ICL must form an independent view based on the evidence of what is in the best interests of the child and act in what the ICL believes to be the best interests of the child.

Family Law Act 1975 (Cth) s 117 - permits an order as to costs to be made which the court considers just, if the circumstances described in s 117(2A) justify it in doing so, and costs orders may be made against both a party to a proceedings and a non-party.

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 - provides that reasons will be inadequate if an appeal court is unable to ascertain the reasoning upon which a decision is based or justice is not seen to be done.

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 - the High Court said that a parenting order made under s 65D [of the Family Law Act 1975 (Cth)] involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations.

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 - where it was held that the evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges.

De Roma v De Roma (2013) 49 Fam LR 226; [2013] FamCA 566 - where the history of the case law and the legislative history which led to the enactment in 2003 of s 117(5) of the Act are discussed in detail.

Dean & Susskind [2012] FamCA 897 - where Forrest J (agreeing with Murphy J in Knibbs) expressed the view that apprehended partiality, objectively assessed, may not be sufficient to give rise to the discharge of an ICL.

Galipo & Anor and Christie [2021] FCWA 148 - relied upon by the ICL in maintaining a position against the paternal grandparents even after recommendations in both family reports by the single expert; having the advantage of the primary judge’s reasons and the reasons of O’Brien J in his stay judgment.

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 - emphasised that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

House v The King (1936) 55 CLR 499; [1936] HCA 40 - the plurality said that it is not enough that judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.

Knibbs & Knibbs [2009] FamCA 840 - discussed the circumstances in which an application for the discharge of an ICL might be contemplated.

Lenova & Lenova (Costs) [2011] FamCAFC 141 - held that in an appropriate case an order can be made against an impecunious party.

Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253 - provides that the primary judge had an obligation to give proper, genuine and realistic consideration to matters in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 - held that on appeal, the uncle is bound by the conduct of his case.

Pagliarella and Pagliarella (No. 3) (1994) FLC 92-460; [1994] FamCA 16 - provided that in considering whether an order [for costs] should be made against the Commission, the Court should have regard to the public interest in not having Legal Aid Commissions at risk of becoming liable for costs so as to diminish the funds available for the purpose which they were established nor to cause them to act with such caution that indigent persons involved in litigation may be prejudiced by assistance being refused.

Re P (a child) (1993) FLC 92-376; [1993] FamCA 40 - held that the ICL should be treated as “analogous to a ‘party’” to the proceedings.

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 - provides that a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony.

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 - provides that the reasons should enable the parties to identify the basis of the judge’s decision and the extent to which their arguments have been understood and accepted or rejected.

Sawyer & Sawyer [2015] FamCA 982 - observed that whilst the Court always expects high standards of competence from those lawyers charged with the onerous responsibility of independently representing children in parenting proceedings, human fragility may mean that those high standards of competence are not always met.

Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 - provided that reasons will be inadequate if an appeal court is unable to ascertain the reasoning upon which a decision is based or justice is not seen to be done.

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 - held that reasons need not be “lengthy or elaborate in order to be adequate”.

U v U (2002) 211 CLR 238; [2002] HCA 36 - held that the primary judge was not confined by the lack of an application in the form proposed by the uncle and the ICL and the Court could have made such orders on its own motion.

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 - provides that a judge’s reasons are not required to mention every fact or argument relied upon by the losing party as relevant to an issue.

Zeng & Lam [2017] FamCA 66 - held that the effect of s 117(5) is that the ICL is to be treated as being unfunded and an impecunious party whether the ICL is seeking an order for costs or opposing one.

Analysis:

A number of the uncle’s grounds of appeal complain that the primary judge failed to “adequately consider” and “provide adequate reasons” about particular parts of the evidence. However, the primary judge considered documents which occupy approximately 1,340 pages. In addition, the primary judge heard evidence over 12 days which has been incorporated into 1,129 pages of transcript. The ICL and the uncle did not specify any orders for ancillary matters in the event that orders were made that the children live with the paternal grandparents. Senior counsel for the uncle conceded that the uncle had made no submission to the primary judge in respect of the form of the then proposed Orders 7–14. Had that happened, the primary judge would have had an opportunity to deal with any asserted concern.

The focus of the submissions in the appeal was that the primary judge, having knowledge of the reference to stress in the hospital discharge summary, ought to have concluded that the parenting capacity of the paternal grandparents was compromised. However, in circumstances where the single expert conducted a home visit the day after the date on the hospital record, and observed no sign that stress was impacting upon the care being provided to the subject children, the single note in the hospital record could not and was not accorded significant weight by the primary judge.

It was submitted that the primary judge did comment on the possible long term effects of breaking the primary attachment between the children and the paternal grandparents, she did not specifically comment upon the possible death or incapacity in the long term of one or both the paternal grandparents. However, in a difficult situation the primary judge needed to make the order which would meet the children’s needs in the short to medium term. There was no evidence to support the contention that either paternal grandparent was suffering from a life threatening illness and in those circumstances her Honour’s reasoning about with whom the children should live was sound. Lastly, the ICL is to be treated as being unfunded and an impecunious party. Jurisdiction to exercise costs against the ICL should be exercised cautiously so as not to impede the ICL in the conduct of his or her duties.

Conclusion:

Both the uncle and the ICL were wholly unsuccessful in their core applications relating to with whom the children would live, parental responsibility and opposing international relocation. The Court dismissed the appeal. The paternal grandparents’ application for costs of the appeal and the Independent Children’s Lawyer’s application for costs in respect of the costs application on the appeal are likewise dismissed.

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