Appellant Opposes Interim Parenting Orders
Pascoe & Larsen [2022] FedCFamC1A 64 (13 May 2022)
The primary judge made interim parenting orders for the child to live with the respondent. The appellant filed an appeal alleging that the primary judge's reasons were inadequate. The Court, in adjudicating this dispute, relied upon the guidance provided in SS & AH.
Facts:
The parties commenced their relationship in 2015 and cohabited for approximately two years prior to their relationship ending in or about 2018. The appellant father has two children from a previous relationship aged 13 and 17. The latter resides with the appellant whilst the former resides with the appellant’s former partner and spends five nights per fortnight in the appellant’s care, together with half of the school holidays. The respondent mother is of Aboriginal descent and has one child from a previous relationship, aged 11, for whom she is the primary carer.
In May 2021, the respondent unilaterally relocated with the child from City C to City B. The child did not spend any time with the appellant between May and August 2021. In June 2021, the appellant filed an application in the Federal Circuit Court of Australia (as it then was) seeking interim orders for the child to be returned to live in the City A region and to spend time with him. The senior judicial registrar made orders for the child to live with each parent on a week about arrangement.
The primary judge determined that it was impracticable for the child to spend week about time with each parent if he rejected the appellant’s application for the child to be returned to live in the City A region. The primary judge noted the desirability of the child maintaining her connection to culture, as well as her right to do so in accordance with s 60CC(3)(h) of the Family Law Act 1975 (Cth) (“the Act”). The primary judge determined that this connection was best maintained by the child living with her mother, who is an Aboriginal woman of the D People.
On 13 August 2021, the respondent filed an application for review of the senior judicial registrar’s decision. On 3 December 2021, the father filed a Notice of Appeal against the orders of the primary judge and, on 15 December 2021, the father filed an Amended Notice of Appeal. The appellant asserts that the primary judge did not follow the statutory pathway and, as a result, did not discharge the statutory preconditions to enable him to make the orders, therefore erring at law.
Issues:
I. Whether or not the primary judge erred in rejecting appellant’s proposal for the child to be returned to the City A region.
II. Whether or not the primary judge's reasons were adequate.
Applicable law:
Family Law Act 1975 (Cth) s 61DA - provides that 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.
Family Law Act 1975 (Cth) s 65DAA(5) - requires a practical assessment of whether equal time parenting is feasible.
Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) - strengthened the language of the provisions in relation to the cultural needs of indigenous children.
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 - observed that relevant to that consideration may be the impact of a proposed order on a parent, including that parent’s ability to enter into a new relationship.
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 - where the Full Court made it clear that the principles adumbrated in Goode did not require a trial judge to engage in a ritualistic incantation of noting and addressing each and every consideration set out in s 60CC of the Act.
BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802 - provides that the standard to be applied, particularly in the context of a busy Court considering numerous interim applications, “is not a standard of perfection.”
Bolitho & Cohen (2005) FLC 93-224; [2005] FamCA 458 - the Full Court confirmed at [72] that the proper approach to be adopted in relocation cases.
Davis & Davis and Anor (2007) 38 Fam LR 671; [2007] FamCA 1149 - observed that the 2006 amendments imbued the notion of ‘connection’ with a stronger and more active meaning.
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1386 - provides that a common sense approach should be taken, having regard to the issues raised by the parties in the proceedings.
MRR v GR (2010) 240 CLR 461; [2010] HCA 4 - where the High Court considered the interrelationship between ss 61DA and 65DAA in the context of the Court’s obligation to regard the child’s best interests as the paramount consideration, pursuant to s 60CA of the Act.
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 - provides that it is important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion.
Sheldon & Weir [2011] FamCAFC 212 - provides that a child of Aboriginal heritage also has the right to ‘develop a positive appreciation of that culture’.
SS & AH [2010] FamCAFC 13 - provides that the intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.
U v U (2002) FLC 93-112; [2002] HCA 36 - provides that the burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting.
Analysis:
An examination of the primary judge’s reasons indicates that his Honour did take a common sense and practical approach in giving appropriate weight to relevant considerations. Most relevantly, where each parent wishes to continue living in a different city, the primary judge fulfilled his legislative responsibility of determining what orders are in the best interests of the child in the particular circumstances of this case. His approach was entirely consistent with authority. Honour states that it is important for the child to live with her mother “in order to maintain and promote her connection with her Aboriginal culture”, in circumstances where it was not disputed that the child is an Aboriginal child. His Honour’s consideration of that issue was entirely consistent with his obligation pursuant to s 60CC(3)(h) of the Act.
The adequacy of primary judge’s reasons must be considered in the current context, being an application for interim parenting orders. His Honour was required to exercise a broad discretion with a view to making such orders as he considered to be in the best interests of the child. His Honour’s approach and the reasons he provided were consistent with the guidance provided in SS & AH that “findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
Conclusion:
The Court dismissed the appeal. The respondent mother and the Independent Children’s Lawyer may, if they so choose, within 14 days, file and serve written submissions of no more than two (2) pages in support of an order for costs. In the event of the respondent mother and/or the Independent Children’s Lawyer filing submissions in support of an order for costs, the appellant father may, within a further 14 days, file and serve written submissions of no more than two (2) pages in reply.