Full Court of Family Court Overturns Order for Section 11F Child Consultation

In Hart and Selwood [2016] FamCAFC 254 (2 December 2016), the Full Court of the Family Court heard an appeal against orders made by Justice Myers regarding parenting arrangements. The Appellant, Ms. Hart (the “Mother”), and the Respondent, Mr Selwood (the “Father”) were disputing the amount of time the couple (the “Parties”) spent with their 12-year-old son (the “Child”)>

 

Background

Wallace, Ryan, and Murphy JJ accepted that there had always been at least one point that the Parties agreed with—that the Child live with the Mother. At issue in the earlier hearings was the amount of time that the Child spend with the Father, both during school terms and holiday periods. The Father put forward his wish to continue seeing the Child in a 2015 hearing, for five nights in the fortnight, requesting further to see the Child for those days to be in a row, as opposed to the arrangement in which his time with the Child was broken up. The mother, on the other hand, desired to reduce the Father’s time with the Child to three nights each alternate weekend.

The Judge accepted the Mother’s evidence and made orders to provide the Child see the Father in line with the Mother’s wishes. Six months after these orders were made the father commenced proceedings in the Federal Circuit Court of Australia in order to re-examine the time with his children, requesting five nights a fortnight of contact with the Child.

The Mother attempted to dismiss the Father’s application and relied on a principle in Rice and Asplund (1979) FLC 90-725, arguing that it would not be in the best interests of the Child to reopen the parenting arrangements which an earlier Court had ruled upon.

The Parties accepted that the matter could be agreed upon as a preliminary matter and the proceedings were set for 8 July 2016. The Parties both filed their reasoning in affidavits. At the hearing, His Honour, Judge Myers, allowed legal representatives for the Father to make an oral application for an order due to Section 11F of the Family Law Act 1975 (Cth) (“the Act”). This Section facilitates the Parties and Child to attend an appointment with a family consultant with the view of assessing the views of all parties and what will be in the best interests of the child going forward. The Mother opposed this request, giving the reason that it would not be in the best interests of the Child for them to pursue further litigation, including attending a family consultant interview.

The Mother subsequently appealed the order for the Section 11F assessment.

Full Court of the Family Court

Their Honours analysed the primary judge’s decision to allow the Section 11F assessment. They summised that the presiding Justice had felt bound by the authority in Morton & Berry (2014) FLC 93-613. In that case, it was seen as necessary to obtain a report about the Child’s views. The Full Court was not, however, convinced that the primary judge had sufficiently outlined his reasons or made any analysis of the Morton & Berry case that would convince them of the necessity of the order.

Section 11F of the Act

The Full Court considered the following questions about Section 11F of the Act:

  1. Was the s 11F order a “decree” which is identified by s 4(1) of the Act?
  2. If yes, was the s 11F order an interlocutory order in relation to a “child welfare matter” as identified by Regulation 15A(2) of the Family Law Regulations (Cth)(“the Regulations)?
  3. If not a child welfare matter, had the Mother established a basis for a grant of leave to appeal?

If the s 11F order was not a decree as in s 4(1), the Mother would have no right of appeal. A decree is defined by the Act as an order dismissing an application or a refusal to make a decree or order. In two cases, Commonwealth v Mullane [1961] HCA 28 at 169 and Tallant & Kelsey (2016) FLC 93-742 the notion of a decree was relied on by legal representatives for the Appellant. The Father argued that s 11F was no more than a ruling on a point of law or consideration about “practice and procedure”.

The Full Court was, however, satisfied that s 11F was an order and therefore a decree to which Section 9AAA(1) would apply. This decision was based on the wording of s 11F, which included references to “making an order” and “phrases of that ilk”. Further, the Full Court cited that the s 11F order was entered into the records of the court under the Federal Court Rules 2001 (Cth). Finally, the order was a decree because non-compliance with the order or breaking this order could result in further litigation.

Child Welfare Matter

As a prescribed decree, leave to appeal was required to be established by the Mother. As the Full Court was satisfied that s 11F was a decree, their Honours considered whether this was a child welfare matter. For, under a child welfare matter, leave to appeal under Section 94AA(1) is accepted.

The Full Court was satisfied that attendance of a family consultant related to the “powers, responsibilities and authority” parents have in relation to children pursuant to the case of Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15 and accepted that this was a child welfare matter. The Bench thus accepted leave to appeal.

 Grounds of Appeal

The challenges brought up by the Mother were primarily whether the primary judge erred in making the s 11F order by failing to take into account relevant considerations. According to the Full Court, Justice Myers:

  1. would not consider the evidence of the Mother;
  2. did not consider the evidence in the Mother’s case;
  3. did not consider the reasons for judgment of Justice Coakes regarding the orders for parenting; and
  4. failed to consider whether the Child’s attendance for a Section 11F assessment was in the best interests of the Child.

Their Honours found that the primary judge did fail to take into account evidence in the Mother’s case and her argument that the court consider the best interests of the Child in line with Rice and Asplund.

Conclusion and Costs

The Full Court found that the primary judge had erred in making the decree of s 11F. Thus, their Honours cited that an appeal be allowed, the order set aside and the proceedings be returned to a Justice other than the primary Justice. The Full Court was not persuaded by the Father’s arguments regarding costs and following his wholly unsuccessful appearances, costs were to go to the Father pursuant to the Mother’s request.

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