Allen and Green
[2010] FamCAFC 14
•9 February 2010
FAMILY COURT OF AUSTRALIA
| ALLEN & GREEN | [2010] FamCAFC 14 |
| FAMILY LAW - APPEAL – PARENTING ORDERS – INTERIM ORDERS – PROCEDURAL FAIRNESS – Whether the Federal Magistrate erred in relying on material not tendered in the proceedings – Where the material was not “common knowledge” under s 144 of the Evidence Act 1995 (Cth) – Where the parties’ attention was not drawn to the material – Where the Federal Magistrate had the benefit of reports and oral evidence of the single expert – Where the Federal Magistrate’s treatment of the material was not background to the issue to be determined – Where the father did not have the opportunity to address the material – Appealable error established. FAMILY LAW - APPEAL – PARENTING ORDERS – INTERIM ORDERS – Whether the Federal Magistrate erred in failing to provide adequate reasons as to why the father’s time with the younger child was reduced – Whether the Federal Magistrate erred in failing to provide adequate reasons for the finding that the children were not coping with the overnight time spent with the father – Where the reasons were delivered ex tempore – Where the Federal Magistrate set out each of the relevant s 60CC factors – Where the Federal Magistrate carefully recorded the evidence of both parties – Whether the Federal Magistrate erred in failing to provide adequate reasons for departure from recommendations from the expert – Whether the Federal Magistrate erred in failing to accord adequate weight to the evidence of the expert – Where the parties’ evidence was untested – Where the expert’s opinion required careful consideration – Where the Federal Magistrate’s reasoning was influenced in part by her reliance on the material – Where the Federal Magistrate’s reasons may technically be considered inadequate because of flawed reliance on material – Where there was dispute as to the extent of the children’s anxiety – Appealable error established. FAMILY LAW - APPEAL – PARENTING ORDERS – INTERIM ORDERS – Whether the Federal Magistrate erred in failing to give “real meaning’ to the intent of s 65DAA(2) of the Family Law Act 1975 – Where there was no challenge to the mother retaining sole parental responsibility – Where the parties had narrowly defined the issue to be determined by the Federal Magistrate – Where the Federal Magistrate identified the parties’ proposal and issues in dispute – Where the Federal Magistrate’s orders provided for the father to spend substantial and significant time with the children – No appealable error. FAMILY LAW - COSTS – Where both parties sought costs certificates – Where appropriate for parties for be grated certificates for the appeal and any re-hearing – Costs certificates granted. |
| Evidence Act 1995 (Cth) – s 144 Family Law Act 1975 (Cth) – s 60CC, s 65DAA Federal Proceedings (Costs) Act 1981 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Odgers, S, Uniform Evidence Law (8th ed, 2009) at 756 |
| APPELLANT: | Mr Allen |
| RESPONDENT: | Ms Green |
| FILE NUMBER: | SYC | 575 | of | 2008 |
| APPEAL NUMBER: | EA | 61 | of | 2009 |
| DATE DELIVERED: | 9 February 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 28 October 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 April 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 355 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Watts McCray |
| COUNSEL FOR THE RESPONDENT: | Ms Knox |
| SOLICITOR FOR THE RESPONDENT: | Peter Blackwell & Associates |
Orders
The appeal is allowed.
Subject to Order 3 of these orders, Orders 9 and 11 of the orders of Federal Magistrate Sexton made 15 April 2009 be set aside.
Order 2 hereof be stayed until the matter is relisted before a Federal Magistrate.
The matter is remitted for rehearing in the Federal Magistrates Court, Sydney Registry.
The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
IT IS NOTED that publication of this judgment under the pseudonym Allen & Green is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 61 of 2009
File Number: SYC 575 of 2008
| Mr Allen |
Appellant
And
| Ms Green |
Respondent
REASONS FOR JUDGMENT
Introduction
In April 2009 competing parenting applications by Mr Allen and Ms Green concerning their two young children, A then aged 4, and O aged 3, were listed for final hearing before Federal Magistrate Sexton. The trial had been set down for two days, but the parties’ counsel advised the Federal Magistrate on the first day allocated for the hearing that the matter could not be completed within the time allocated. New dates for the final hearing were scheduled for four days in April 2010.
The parties then asked the Federal Magistrate to determine, on an interim basis, arrangements for the children until the trial. The learned Federal Magistrate made the interim orders sought by the mother, which orders had the effect of reducing the time the father had been spending with the children by one night. This is the father’s appeal against the Federal Magistrate’s interim orders.
This appeal was heard by me as a single Judge pursuant to a direction given by Chief Justice Bryant under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Background
The Federal Magistrate’s ex tempore reasons understandably include only brief historical material. I have therefore had recourse to relevant non-controversial facts from the appeal book.
The father was born in October 1969 and was aged 39 at the date of the hearing.
The mother was born in April 1970 and was aged almost 39 at the date of the hearing.
The parties commenced cohabitation in 2000 and they were married in December 2003. They separated in November 2007 at which time the mother moved from the former matrimonial home in the northern suburbs of Sydney to the central coast of New South Wales.
In October 2004 the parties’ elder child A was born.
In February 2006 the parties’ younger child O was born.
The father commenced proceedings in February 2008 in the Federal Magistrates Court, and interim parenting orders were made by Federal Magistrate Lindsay on 7 August 2008. The interim orders provided for the mother to have sole parental responsibility for the children. The orders further provided that the children live with the mother and spend time with the father each Monday and Thursday from 10.00 am to 5.00 pm for a period of four weeks, and then for gradually increasing periods of time until they were spending time with him each weekend from 6.00 pm Friday to 6.00 pm Sunday.
Each of the parties is an accountant. At the date of the hearing the mother was employed on a casual basis, and the father, who had been retrenched from his previous employment in August 2007, expressed an intention obtain part-time work and move to the central coast. The father had use of his family’s holiday home on the central coast for the periods the children spent time with him.
At the hearing Sexton FM granted leave to the mother’s counsel to make an oral application to vary the interim orders then in force. The mother sought orders that the children spend time with the father each alternate weekend from Friday evening until Sunday evening, and overnight one night in the other week. While the father agreed to a change from every weekend to alternate weekends, he sought that the children continue to spend four nights each fortnight with him. In short, that the children spend two midweek nights with him in the alternate week.
The Federal Magistrate had the benefit of two reports which had been prepared by Dr T, child psychiatrist, on the basis there was to be a final hearing of the parenting issues. Dr T gave oral evidence and was cross-examined by counsel for both parties.
Grounds of Appeal
The Notice of Appeal contains five grounds of appeal. The appellant’s solicitor argued ground 3 as her primary challenge to the Federal Magistrate’s orders. That ground asserted a denial of natural justice to the father by the Federal Magistrate relying on material, which had not been tendered in the proceedings, without making it known to the parties she intended to do so, thus denying the father the opportunity to make submissions about the material, or to adduce other material.
The father’s solicitor then addressed grounds 1 and 4 (these grounds respectively asserted that the Federal Magistrate’s reasons were inadequate, and that she had mistaken the evidence of the single expert, Dr T). As to the remaining grounds, the solicitor for the father essentially relied on her written outline of argument. The latter grounds sought to impugn the Federal Magistrate’s orders on the basis that she made factual errors, and failed to give “real meaning” to the legislative intent of s 65DAA of the Act.
I propose to consider the grounds in the same order as argued by the father’s solicitor.
The Natural Justice/Procedural Fairness Ground (ground 3)
That the Learned Federal Magistrate erred in relying on material not before her and without giving an opportunity for the parties to know the material relied upon and to answer it.
The gravamen of this ground is, as outlined above, that the Federal Magistrate’s reference to, and reliance on, material not tendered before her in the proceedings, was procedurally unfair to the father, and a denial of natural justice to him.
The conduct of the matter before the Federal Magistrate and her treatment of the material in her reasons
In order to assess this ground it is necessary to examine the way the matter proceeded before the Federal Magistrate, and how the Federal Magistrate treated the “research” material in her reasons.
With the parties’ agreement, and as is the general practice with an interim parenting application, the matter proceeded with the parties’ material being dealt with “on the papers” without cross-examination of either party or their witnesses. However, as I have already noted, Dr T gave evidence and was cross-examined by counsel for both parties.
Examination of the transcript reveals the only reference to any “research” material occurred during the cross-examination of Dr T. The extract of the relevant portion of the transcript, set out below, reveals the reference was non specific as to any particular report:
But, if it turns out that the wife’s evidence is eventually accepted and this - the behaviour that she says is going on, goes on for a further year, then there is a considerable risk of damage to the children than the wife’s position of holding it back a bit? ---Well, its hard to know how much risk there would be. With – there could be more risk, yes
All right. Because with – you’re aware of the studies such as the Macintosh and the Chisholm study?---You mean the one about ---
Shared - in relation to shared -- -?---Shared parenting.
--- parenting? As in ---? ---High conflict families?
Yes, in high conflict families?---Yes.
Well, if the wife’s evidence is ultimately accepted, then this is a family in which there is actually quite a bit of conflict; isn’t it?---It’s probably a – it’s probably not a high - what I’d put on the scale – I’m unfortunately used to a high-conflict one, but it’s a moderate conflict, I would say, and it - and it could easily be a level of conflict whereas I’ve indicated at the end of the report, that - that really the orders are - a shared-care arrangement really isn’t – isn’t going to work.
But the upshot of - like the upshot of the - and I understand that the Chisholm report - Macintosh and Chisholm report was in relation to slightly older children, four and over and the two - they were the two studies, four and over, and the school-range children, but the upshot of that was that children in shared care in high conflict families and the other indicia of parents not getting on and one parent not having confidence in the abilities of the other, there was a considerable increase in the anxiety levels of children; wasn’t it?---But what you’re asking me about though is to apply that - in a sense is to apply the findings of that to a situation where you say, ‘Well, should you make it four or three?’ and I – that’s not what those studies are about.
The husband’s complaint is particularly directed to paragraphs 42 to 44 of the Federal Magistrate’s reasons. In those paragraphs the Federal Magistrate said:
42.Preliminary findings of recent research published by Dr Jennifer McIntosh and Professor Richard Chisholm, a former Judge of the Family Court of Australia, suggest that young children will suffer negative consequences if they are required to spend equal or substantial time with each parent, when their parents are in continuing conflict.
43.Ms Alison Tucker, an experienced psychologist from Adelaide, also gave a paper at the 2008 National Family Law Conference. Her paper concerned ‘the imperative that children’s development is not compromised.’ She says ‘a significant, if not the greatest, risk factor beyond direct psychological or physical harm to that development is enduring stress.’ Ms Tucker says children are at risk of enduring stress if the post separation parenting arrangements are too demanding for them. She says:
The more developmentally cautious approach is to ensure that very young children have consistency of care. ....What can be in conveying this cautious approach to parents is that it means that very young children have one primary home base, particularly at night. Many parents place a unique meaning on their children staying overnight. While this is understandable on the basis of their (the parents) needs, night time is a particularly developmentally vulnerable time for many young children...
Do not place too many developmental demands on them. If in doubt, be cautious. In the absence of effective co-parenting communication, be very cautious.
44.I have regard to these warnings. (footnotes omitted; my emphasis)
In a footnote to paragraph 42, the Federal Magistrate referred to pages 4 to 5 of a paper by Dr Jennifer McIntosh and Professor Richard Chisholm (Dr Jennifer McIntosh and Professor Richard Chisholm ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research’ (2007) 20 (1) Australian Family Lawyer). Pages 4 and 5 of that paper includes the following:
Part of the developmental conundrum posed for young children of divorce is this: their attachment formation is likely to be poorly affected (or to become ‘disorganised’ in theoretical terms) when that infant does not have a continuous experience of reliable care with either parent. Shared care arrangements that involve frequent moves from one parent to another can, inadvertently, bring about this experience. Frequent transitions of care and absences from each parent necessarily interrupt the infant’s experience of care with each parent, especially their relationship with a primary carer when there has been one. This brings about potential developmental difficulties for infants, particularly those with parents who remain acrimonious and struggle to facilitate a smooth transition for the infant. It is well documented that conflict between parents has an adverse impact on their ability to parent sensitively, and inter-parental conflict brings a higher likelihood of harsh styles of discipline and diminished emotional responses, which are parenting behaviours associated ultimately with the child’s emotional insecurity and social withdrawal.
For older children, and particularly adolescents, the primacy of attachment diminishes with advancing years, enabling the older child to tolerate longer periods of time away from a caregiver, and to consolidate and make good use of bonds of dependence with others. Yet when children of any age make frequent transitions between warring parents who are unable to conceal their feelings in the presence of the child, children then begin to use considerable energy to ensure their own comfort and emotional safety in each environment, actively and constantly monitoring the ‘emotional weather’ they encounter in each parent’s home.
Through this developmental lens, it is relatively easy to see how, in the two studies presented here, the risks added up for these children of high conflict-ridden families who lived in shared care arrangements. Further, although the new data described above relate to outcomes for children over four years of age, there are important developmental reasons, sketched above, to be cautious about the recommendation of substantially shared care for children under four. Indeed we hope we have shown in this section why caution becomes more urgent in the case of the infant and the young child of high conflict divorce. (footnotes omitted; original emphasis)
The Federal Magistrate again referred to the latter material at paragraph 57 of her reasons. There she said:
The children are young. [A] is only four, and [O] only three. They have had to adjust to the separation of their parents at a very young age. I have regard to the Chisholm & McIntosh research I referred to earlier about the impact on children when parents are in conflict and substantial time arrangements are in place, as in this case. As already noted, I am unable to make orders for the parties to be absent at all changeovers, so regrettably the children will continue to experience some exposure to tension between the parties, from which [Dr T] believes they need protection. (my emphasis)
As I will shortly explain by reference to authority, it is appropriate, rather than reading these paragraphs in isolation, to have regard to whether or not the matters discussed in the judgment affected the Federal Magistrate’s reasoning process leading to her ultimate orders. That requires a overview of the totality of the reasons. The examination of the reasons is also relevant to the other challenges to Sexton FM’s orders identified above.
The Federal Magistrate’s reasons
Having set out brief background material, and the basis on which the proceedings were conducted, the Federal Magistrate noted the question for the Court was whether there should be a reduction in the children’s time with the father by one night per fortnight and how their time with the father should be arranged in the non-weekend contact week.
The Federal Magistrate explained the mother asserted the children, particularly the elder child, were struggling with the current arrangements which provided for two consecutive nights with the father each week.
In paragraph 10 of her reasons, the Federal Magistrate summarised the mother’s evidence of her observation of the children after the commencement of the overnight regime in October 2008.
At paragraph 11 of her reasons, the Federal Magistrate recorded the mother’s complaints about difficulties in communication between the parents. She went on to note that the father conceded when overnight time commenced the elder child was initially clingy, however, that he now asserted his communication with the mother had improved.
The Federal Magistrate then turned to discuss the initial report prepared by Dr T (in June 2008) and referred to his second report in which he set out the mother’s statements to him at interview about the father’s behaviour towards her, the elder child’s behaviour at changeovers and of bed-wetting by the elder child after several months of being dry at night.
The Federal Magistrate also referred to the father’s statement to Dr T that the elder child had settled after some initial distress and the younger child disclosed no transitional problems. The father also reported to Dr T that the elder child started to bed wet in December (about the time of commencement of overnight time spent with the father) and that her enuresis had continued until very recently.
The Federal Magistrate went on to record the mother’s assertion to Dr T that the elder child became “very clingy [to her]” at changeover periods. At paragraph 20 the Federal Magistrate recorded:
[Dr T] has no confidence on the evidence before him that a reduction in the children’s nights with the father will assist the children, and found no reason to recommend a reduction in time. When asked directly if he believed it a safer option for the children to reduce the amount of time they spent with the father, [Dr T] said he was unable to say that on the evidence available to him. He agreed with Ms Knox [the mother’s counsel] that it was possible the children were being damaged by the amount of time being spent with the father, but he would not draw that conclusion on the material before him. He agreed that if a child suffered persistent anxiety, then this could lead to more pervasive anxiety.
The Federal Magistrate went on to note Dr T’s opinion that there was some improvement in the older child’s behaviour since he had prepared his first report in mid-2008, although she was shown to still demonstrate some anxiety in his rooms when the mother left and the father’s interview commenced. The Federal Magistrate explained that Dr T found the elder child exhibited anxiety which he would rate as moderate to low, an improvement from when he first saw her, when he rated her anxiety at a moderate to high level.
At paragraph 23 the Federal Magistrate recorded:
[Dr T] further says:
It is probable that [A’s] clinging behaviour on the day of the assessment as well as her bed wetting are also an indicator that conflict is still alive, possibly more along the lines that the mother says than the father.
The Federal Magistrate went on, at paragraph 25, to record Dr T’s opinion that the elder child’s anxiety could be best reduced by having a third party involved at changeovers.
The Federal Magistrate then dealt with the statutory considerations in s 60CC(3). In dealing with the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent, the Federal Magistrate referred to Dr T’s evidence to the effect that the father may be behaving inappropriately and may be denigrating the mother in front of the children.
The Federal Magistrate then dealt with the likely effect of any change in the children’s circumstances in paragraphs 38 to 44 of her reasons. At paragraphs 40 and 41 the Federal Magistrate set out her findings on the evidence before she turned to the articles, the subject of complaint. She made the following findings:
I accept [Dr T’s] view that there remains tension between the parties, which is likely to be affecting [A] in particular at changeover and which increases the mother’s anxiety at changeover. I also accept [Dr T’s] view that this is not a case involving the highest level of acrimony and distrust the Court sometimes sees. However, I do have regard to the poor communication between the parties, acknowledged to some extent by the father, and highlighted by the mother, and its impact on the children.
Until October last year, the children spent all overnights with the mother. Since November 2008, they have been spending two consecutive nights with their father away from their mother each week. It is common ground that [A] has been exhibiting symptoms of distress, even six months after the introduction of overnight, and it is the mother’s case that [O] too is showing some signs of stress on the phone during visits and on his return from visits.
The Federal Magistrate then proceeded to discuss the two articles the subject of this ground and set out earlier in these reasons (paragraphs 42-44).
Under the heading “Conclusion” the Federal Magistrate summarised the submissions of counsel for each of the parties, and then turned again to Dr T’s latest report. Her Honour set out, at paragraph 53, an extract from Dr T’s report. It is useful for reasons I will explain when discussing ground 1 that I repeat that extract:
The matter which concerns me most is whether [Mr A] has sought to portray his attitude towards the mother in much more positive terms than it actually is. If he still snipes at the mother and conveys critical attitudes to the children which unsettle [A] in particular, then probably better for the children to establish a more secure base in their mother’s home and spend the bulk of their school and structured time with the mother and divide the balance between the two parties – such as alternate weekends and one night in the off week. (original emphasis)
At paragraph 55 of her reasons, the Federal Magistrate said she was concerned about the children’s continuing symptoms of anxiety and distress six months after overnight time was introduced and, in particular, the symptoms exhibited by the elder child. She again referred to the elder child’s enuresis and detailed the mother’s evidence of the children’s physical symptoms. The Federal Magistrate found:
…it noteworthy that there was nothing in the mother’s presentation to [Dr T] that suggested to him that she was exaggerating or being untruthful in her reporting to him of her observations of the impact of the present arrangements on each child. (paragraph 55)
The Federal Magistrate concluded, at paragraph 56, that she accepted Dr T’s view that the children enjoyed their time with the father but significantly found she was not persuaded “they are presently coping with four nights with him a fortnight”.
At paragraph 57, the Federal Magistrate said:
The children are young. [A] is only four, and [O] only three. They have had to adjust to the separation of their parents at a very young age. I have regard to the Chisholm & McIntosh research I referred to earlier about the impact on children when parents are in conflict and substantial time arrangements are in place, as in this case. As already noted, I am unable to make orders for the parties to be absent at all changeovers, so regrettably the children will continue to experience some exposure to tension between the parties, from which [Dr T] believes they need protection. (my emphasis)
At paragraph 58, the Federal Magistrate said:
The mother is proposing a reduction in only one night in the off week. I accept [counsel for the mother’s] submission that given the material before the Court as to how the children are presently coping, the Court should take steps to at least try to reduce any distress they are experiencing.
The Federal Magistrate acknowledged Dr T’s view that a reduction of one night may make no difference, and concluded she was not persuaded there would be any detriment to the children’s relationship with the father in the reduction of one night a fortnight. On balance she was persuaded “a reduction in one night might assist the children to cope better with the movement between the two households”.
Having determined that the orders were only for a 12 month period the Federal Magistrate concluded “a reduction in time is likely to better promote the children’s interests at this stage” (paragraph 59).
Relevant law
The requirement that parties be afforded procedural fairness is a well established principle recognised in the general law. The principle and the exceptions to it are succinctly explained by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145:
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board, in these terms:
‘There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’
That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. (footnote omitted)
In her written outline the father’s solicitor submitted that no notice was given by the Federal Magistrate under s 144(4) of the Evidence Act 1995 (Cth) to the parties that she intended to rely on the material referred to in her reasons. Section 144 of the Evidence Act 1995 (Cth) provides:
144 Matters of common knowledge
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2)The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
Having regard to the authorities as to what constitutes “common knowledge” I do not consider that the article about the research findings and the extract from Ms Tucker’s paper referred to by the Federal Magistrate could fall within the description of “common knowledge” (see Odgers, S, Uniform Evidence Law (8th ed, 2009) at 756; Butterworths, Cross on Evidence Australian Edition, vol 1 (121-10-09) at [3160]) and thus be admitted as part of the evidence before her. In any event, it is not in dispute that the Federal Magistrate did not draw the attention of the parties to the articles, and there was no evidence at all before her or reference to Ms Tucker’s paper.
Counsel for the mother sought to rely on the statements in Mitchell & Mitchell (1995) FLC 92-601 at 81,996 as justifying the approach adopted by the Federal Magistrate. In Mitchell (where the issue was whether the wife’s spousal maintenance application had been incorrectly dismissed by the trial Judge) the Full Court referring to a Canadian decision said:
The majority judgment delivered by L’Heureux-Dube J recorded a range of studies and commentaries concerning the general economic impact of divorce upon women. Her Honour said at 393-4:—
‘Based upon the studies which I have cited earlier in these reasons, the general economic impact of divorce on women is a phenomenon, the existence of which cannot reasonably be questioned and should be amenable to judicial notice. More extensive social science data are also appearing. Such studies are beginning to provide reasonable assessments of some of the disadvantages incurred and advantages conferred post-divorce (see, for example, the study by Kerr [ An Economic Model to Assist in the Determination of Spousal Support, Paper prepared for the Department of Justice and Status of Women Canada, 1992]). While quantification will remain difficult and fact- related in each particular case, judicial notice should be taken of such studies, subject to other expert evidence which may bear on them, as background information at the very least.
(...)
In all events, whether judicial notice of the circumstances generally encountered by spouses at the dissolution of marriage is to be part of the trial process or whether such circumstances merely provide the necessary background information, it is important that judges be aware of the social reality in which support decisions are experienced when engaging in the examination of the objectives of the Act.’
We agree with these general propositions. Like Canada, Australia has a body of research indicating that mothers who are the primary carers of dependent children inevitably drop out of the paid work-force and consequently suffer financial deprivation which is exacerbated by marriage breakdown: see the Australian Institute of Family Studies publications, McDonald (Ed.) (1986) Settling Up: Property and Income Distribution on Divorce in Australia; Funder Harrison and Weston (1993) Settling Down: Pathways of Parents After Divorce. In our view there are significant advantages to the Court being able to take judicial notice of research concerning the economic consequence of marriage and its dissolution.
We also agree with the caution contained in Moge against judicial notice being perceived as a substitute for evidence in the particular case. In this regard, we note that in Patsalou and Patsalou (1995) FLC ¶92-580; 18 Fam LR 426, the Full Court approved of the trial Judge making reference in her reasons for judgment to relevant literature — in that case, on the subject of the effect of inter-spousal violence upon children. The Full Court rejected a complaint that the parties should have been invited to make submissions on this body of research. As we see it, the trial Judge in that case effectively took judicial notice of the research as a form of “background information” within which to then construe the evidence on the record. We recommend a similar approach in spousal maintenance cases. (my emphasis)
I note that the decision in Mitchell was handed down prior to the commencement of the operation of the Evidence Act which came into effect on 18 April 1995. Further, it is clear that the statements of the Full Court recognised that appropriate research material could be properly referred to as background to a matter before the Court, but not in substitution for relevant evidence.
The question of material, which could not be said to fall within the category of matters in respect of which “judicial notice” may be taken, was discussed by the Full Court in Lamereaux & Noirot (2008) FLC 93-364. As that discussion usefully summarises the relevant principles I set out paragraphs 52-55 of that judgment:
52.At the hearing counsel for the father referred in general terms to the principles espoused in common law authorities which discuss the limits on use by judicial officers of material which could not fall within the “judicial notice” provisions of the Evidence Act. Subsequently counsel directed us to three such authorities. It is appropriate we now consider relevant authorities including those authorities to which we were referred.
53.In the Marriage of Dean (1988) 94 FLR 32 at 37 the Full Court (Fogarty, Strauss and McCall JJ) discussed the use by the trial Judge, in determining the goodwill of a company, of a capitalisation rate, based on reference to a text, rather than expert evidence. The Full Court considered that the evidence relied on by the trial Judge was not such that it could fall into the scope of judicial knowledge, but rather was a matter for expert evidence. Their Honours referred to the basis for the objection to a judge referring a text book, without informing either party of his intention to do so, and quoted the following passage from Byrne, D M and Heydon, J D, Cross on Evidence, 3rd Australian ed, Butterworths, 1986 at page 101:
When the Judge [sic] undertakes such a reference to works of authority, either pursuant to the statutory provision or at common law, he is not entitled to inform himself of any contentious matter without giving the parties the opportunity to controvert or comment upon the work to which reference is being [semble: has been] made.
(We note Butterworths, Cross on Evidence, vol 1 (at 24-02-08) now includes a similar passage at [3035].)
54.Thereafter their Honours cited with approval the discussion by Bray CJ in Cavanett v Chambers [1968] SASR 97 where a Magistrate informed himself about the effect of a blood alcohol reading on the ability of the defendant to drive. Bray CJ said at 101:
It is one thing to use the section [s 64 of the Evidence Act 1929] for the purpose of discovering or verifying objective facts or figures about which there can be no real dispute, such as historical or geographical data of an uncontroversial nature or mathematical tables of life expectancy or interest calculations. Cf. Arnold v Norris (1936) SASR 287, though even there I think the principle of Chambers v Sampson (Unreported. Supreme Court of South Australia, 14th March 1966) should be observed and the parties should be given notice of the Court’s intention and an opportunity to be heard on the result of its researches. It is quite another thing for the tribunal of its own motion to seek to inform itself out of court on a question of fact or opinion vital to the issue and by no means free from controversy. This is, of course, doubly objectionable if done without the parties having any opportunity to state their views on the specific authorities consulted. But in my view, even if they are offered this opportunity, the Court should not embark on such investigations except by consent. It would be preposterous to suppose, for example, that in a claim for damages or workmen’s compensation where divergent medical opinions have been expressed by expert witnesses on each side, the Court should be at liberty without consent to pursue independent inquiries of its own on the point through medical journals or text books not referred to by the witnesses.
55.Other authorities reaffirm the requirements of natural justice namely that parties be given an opportunity to controvert or comment on any contentious matter (see Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 23 FCR 38 at 47-48, Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR 492; Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300; British Thompson Houston Company Limited v British Insulated and Helsby Cables Limited [1924] 2 Ch 160 and Butterworths, Cross on Evidence, vol 1 (at 24-02-08), [33525]).
It is relevant to note that that Division 12A of Part VII the Act introduced as part of the major legislative changes in 2006 includes provisions which facilitate a judicial officer having access to relevant evidence to determine a parenting case. Helpful provisions are s 69ZX(1)(d) and s 69ZX(3) of the Act.
In this particular case the Federal Magistrate had the benefit of evidence from an expert child psychiatrist.
Further, parties before the Court or an independent children’s lawyer can properly seek to adduce relevant peer reviewed research to assist the Court. (see McCall & Clark (2009) FLC 93-405 at paragraph 126).
Discussion
The father’s central complaint is directed to an asserted lack of procedural fairness. It is not controversial that neither party had referred to the two specific articles the subject of the complaint, or that the father was denied the opportunity to make submissions on those articles. No attempt was made by the mother’s counsel to provide the article by Professor Chisholm and Dr McIntosh to which she alluded in her cross-examination to Dr T for him to comment on its relevance to specific circumstances in this case, or to tender that article. The paper by Ms Tucker was sourced by the Federal Magistrate without reference to either party. In these circumstances a careful scrutiny of the Federal Magistrate’s reasons is necessary to discern whether she treated the material to which she referred as a “background” to the proceedings before her, or whether her decision rested on this material, as well as the evidence adduced before her, and was integral to her exercise of discretion.
It must also be borne in mind in this case the Federal Magistrate had the benefit of comprehensive and considered reports of a very well qualified expert, as well as his oral evidence which was specific to the children about whom she had to make a decision.
If the material merely gave background to the Federal Magistrate’s decision or was extraneous to her decision, then notwithstanding she did not draw the parties’ attention to the material such a process would not constitute appealable error. Similarly, the appeal will fail if notwithstanding the failure to afford procedural fairness, a new trial would not produce a different result. To consider these propositions it is necessary to have regard to how the Federal Magistrate treated the material in the context of her reasons. In so doing I have regard to the fact that the reasons were delivered ex tempore the morning after Federal Magistrate heard final submissions. I also take into account that reasons in respect of an interim parenting decision need not be lengthy (see Goode & Goode (2006) FLC 93-286 at paragraph 74) provided the path of reasoning leading to orders is discernible.
An overall reading of the Federal Magistrate’s reasons discloses that her crucial findings were those made under s 60CC(3)(d). It was in her discussion of the effect on the children of separation from either parent that the Federal Magistrate set out Ms Tucker’s opinion on overnight stays for young children (as were these children) and of the need to be very cautious in making such arrangements in situations where there was “the absence of effective co-parenting”. Her Honour said she had “regard to” Ms Tucker’s warnings.
The Federal Magistrate repeated again at paragraph 57 of her reasons that she had regard to the “Chisholm & McIntosh research” she had referred to earlier, and determined notwithstanding the expert opinion of Dr T she would “err on the side of caution” and reduce the time the children spent with the father.
I do not consider that the Federal Magistrate’s treatment of the material can be regarded as background to the issue she was required to determine. The reasons disclose she took into account Ms Tucker’s opinion that a cautious approach should be adopted in making overnight arrangements for young children in situations where there was an absence of cooperative parenting. This determination was made notwithstanding the firm opinions expressed by Dr T. I will refer to Dr T’s opinion and recommendations in more detail later in these reasons. The Federal Magistrate’s further reference under the heading “Conclusion”, in paragraph 57, to the report of the research conducted by Professor Chisholm and Dr McIntosh in their article published in the Australian Family Lawyer was again expressed as material “to which she had regard” in reaching her decision.
The father did not have the opportunity to address the material on which the Federal Magistrate relied. That absence of procedural fairness discloses appealable error.
Further, I cannot be satisfied that if the proceedings were reheard, without the adducing of the material the subject of the complaint, that the result would be the same.
Reasons Grounds and Evidence of Dr T (grounds 1 and 4)
Ground 1:
That the Learned Magistrate erred in failing to provide adequate reasons
Ground 4:
That the Learned Magistrate mistook the evidence, particularly the expert evidence by [Dr T]
The father’s submissions challenging the Federal Magistrate’s orders on the basis of lack of adequate reasons assert:
· the reasons do not disclose why the father’s time with the younger child should be reduced;
· the reasons fail to explain why the Federal Magistrate was persuaded the children were not coping with four nights per fortnight with the father;
· the reasons fail to sufficiently acknowledge the opinions proffered by Dr T that a reduction in time would not assist the children; and
· that the Federal Magistrate failed to acknowledge or take into account Dr T’s view that the elder child’s anxiety could be reduced by the parties not attending changeover together and making orders accordingly.
The submissions in respect of ground 4, which asserts the Federal Magistrate mistook the evidence of Dr T, in reality are expressed as an assertion that the Federal Magistrate failed to give adequate weight to his evidence, rather than demonstrating she mistook the evidence (father’s submissions paragraph 31).
Relevant law
The need to give adequate reasons for a decision is not in doubt. McHugh JA, as he then was, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 said at 279:
…without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as ‘a necessary incident of the judicial process’ because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
(See also Bennett & Bennett (1991) FLC 92-191).
However, it is also important to bear in mind that “an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons” (AMS v AIF (1999) 199 CLR 160 at 795 per Kirby J).That comment has particular resonance in respect of reasons in an interim parenting case when reasons are given ex tempore shortly after the conclusion of the evidence and submissions.
Discussion
I have already summarised the Federal Magistrate’s ex tempore reasons. The arguments of the husband’s solicitor when distilled were, in effect, that the Federal Magistrate’s reasons did not adequately explain why she departed from Dr T’s recommendations, and that her failure to give adequate weight to his opinion meant that the result arrived at was plainly wrong. The subsidiary complaints that the reasons did not adequately explain why contact for the younger child was reduced, or explain the reasons for changeover order made can be disposed of shortly. I will deal with these subsidiary complaints before turning to the principle challenges enunciated by these grounds - the asserted lack of adequate reasons for departing from Dr T’s recommendation and the lack of weight afforded to his evidence.
There can be no issue that the evidence, particularly the mother’s evidence before the Federal Magistrate, focused on the elder child’s behaviour after the introduction of overnight time with the father on two consecutive evenings rather than the effect of the regime on the younger child.
However the Federal Magistrate did not focus exclusively on the elder child. The Federal Magistrate recorded that the mother’s evidence was that both children had been upset when left at pre-school, that both children had exhibited distress in their phone calls to her when in the care of the father and the younger child had told the mother on the phone on 14 February 2009 that he missed her and wanted her. She also recorded the mother’s evidence that the children were difficult to settle on return to her, and that she reported the younger child getting up and saying he was scared, and wanted the mother to sleep with him.
The Federal Magistrate appropriately acknowledged Dr T’s view that the younger child appeared reasonably robust, and that the expert found no evidence of either child missing the mother when with the father.
Although the Federal Magistrate in her reasons set out each of the relevant s 60CC factors and recorded the evidence relevant to each of them, she made no individual findings on non-controversial matters under those sub-sections, rather she simply recorded the evidence, particularly that of Dr T, except when she came to consider s 60CC(3)(d). At that point in her reasons the Federal Magistrate did make findings. That course is understandable when regard is had to the narrow basis on which the parties’ counsel focused the issue to be determined – either one overnight or two nights each alternate week.
The Federal Magistrate accepted Dr T’s evidence that the tension between the parties was likely to be affecting the elder child, and increasing the mother’s anxiety at changeover. She also accepted his evidence that the case was not one involving the high level of conflict unfortunately seen by her from time to time. She did find or “have regard to” poor communication between the parties. That finding it appears was made on the basis it was not an issue totally in dispute between the parties.
In discussing the asserted failure of the Federal Magistrate to explain why she determined the younger child should also have his time with the father reduced it is pertinent to observe that neither party advocated a proposal by which the children spent differing time with the father in their orders sought or submissions made in support of those orders. While the Federal Magistrate could have made such an order, after giving the parties appropriate notice she was contemplating such a course, it must also be remembered that neither party put such a proposition to Dr T to obtain his expert view on such a proposal. In these circumstances I am satisfied at a limited interim hearing it was unnecessary for the Federal Magistrate to give detailed consideration to this proposal which was not before her.
The Federal Magistrate’s reasons disclose she carefully recorded the evidence of both parties about the behaviour of each of the children in respect of changeovers, during and after time with the father, as well as Dr T’s observations. The Federal Magistrate referred to Dr T’s most recent report in which he expressed concern that the father may be minimising his attitude and conduct in respect of the mother. The reasons disclose it was this possibility and the evidence of the elder child’s bed-wetting and other behaviour, together with the cautious approach recommended in Ms Tucker’s paper, and the article about the research by Professor Chisholm and Dr McIntosh which lead to the Federal Magistrate’s conclusion the time with the father should be reduced for both children.
The Federal Magistrate also recorded Dr T’s evidence that the anxiety shown by the elder child could be reduced by avoidance of conflict at changeovers. The Federal Magistrate dealt with the changeover issue as best she could given the lack of nomination by either party of a suitable third party to effect changeovers, and made orders for changeover at pre-school or at a McDonald’s restaurant. The reasons in respect of this issue are clearly discernible and no appealable error is disclosed.
I turn now to consider whether the Federal Magistrate adequately explained why she departed from the recommendations made by Dr T.
It must be borne in mind that while a court will give significant weight to the opinion of an expert, the ultimate decision after weighing all the evidence is that of the judicial officer hearing the case (see Hall & Hall (1979) FLC 90-713 at 78,819). Caution however must be exercised in departing from an expert’s opinion in factual circumstances such as pertained in this case. The parties’ evidence was untested, and the Federal Magistrate was unable to make findings on controversial issues. She did not have the benefit of seeing the parties or their witness give evidence. The expert is a very experienced child psychiatrist and he had seen the parties and the children on two occasions, and prepared an up to date report for what was anticipated to be the final hearing. His evidence was subject to rigorous cross-examination, and he answered questions posed to him by the Federal Magistrate. In these circumstances, his opinion required careful consideration, and close analysis in the reasons if there was to be a departure from it.
While the Federal Magistrate carefully recorded:
· the father’s submissions as to why the existing regime should continue; and
· that Dr T could find no justification for reducing the time the father was spending with the children;
she placed emphasis on Dr T’s comments in his final report where he expressed concern about the father perhaps minimising his attitude to, and conduct in respect of the mother, and the regime which would be appropriate if that was the case.
Dr T’s recommendations in his report were clear. He opined that a period of four days with the father was about the minimum time the father should spend with the children. In response to a question posed by the father’s counsel he agreed that he did not, on the material before him, recommend a reduction of four nights per fortnight with the father to three nights per fortnight (transcript, 14 April 2009, p 25).
Having regard to the assumption put to him by the Federal Magistrate that she may find the elder child had symptoms of anxiety and was emotionally struggling, Dr T opined that reducing the overnight time “probably wouldn’t produce any discernible difference at all” (transcript, 14 April 2009, p 29). Dr T had earlier expressed the opinion to the Federal Magistrate that he thought the elder child was settling down and that her bed-wetting would settle down, in contrast to increasing or to her developing other physiological systems if her anxiety was not abating (transcript, 14 April 2009, p 27). Dr T did, after further propositions were put to him by the Federal Magistrate, express the view that he could not be sure how much stress the elder child had experienced had come from the father, neither could he be sure how much a reduction in time would do for the mother’s anxiety. Ultimately Dr T said that he was unable to “give any sort of … informed opinion about [these two matters]”. At the conclusion of his evidence the following question was posed to him by the Federal Magistrate:
And, if I did for this 12 month period, we’d know whether things are the same or not the same or she’s settled completely or she’s managing very well or she’s saying, “I really want to see more of dad” or I don’t know what will be happening in 12 months’ time, but I suppose I’m saying at least there will be some change which might alleviate her anxiety, it might not, as you say. But you can’t really assist me either way with that?---No, your Honour, I’m afraid not. (transcript, 14 April 2009, p 30)
The Federal Magistrate appropriately allowed each party’s counsel to clarify with Dr T anything arising from her questioning. Dr T then gave the following evidence:
You don’t think she would be missing her mum?---No, I don’t – I don’t – I don’t think – no, I mean I think that she may think her mum is missing her and her mother’s not – you know, how is her mother? That’s often the sort of thing that children like this – of this age think about, particularly children who have this sort of separation problems which, at least on the father’s account, seem to settle down as soon as – as soon as the separation – as soon as the transition is over. The anxiety that’s highest on their mind is often what – the well-being of the other parent. (transcript, 14 April 2009, p 33)
The uncontested evidence which the Federal Magistrate could rely on was that the elder child had, after the commencement of overnight contact for two consecutive nights each week, started bed-wetting having been dry at night for about six months. The Federal Magistrate was also able to find that the elder child had shown some distress at handovers, but whether such distress was continuing was a matter in dispute between the parties.
The expert evidence, considered as a whole, supported a continuation of the orders which had been in place since 2008 and which had progressed to include two overnight periods each week. Dr T made most appropriate concessions before the Federal Magistrate, including those recorded above.
Ultimately the Federal Magistrate’s reasons for rejecting the “no change position” which Dr T predominantly recommended appears to have been based on Dr T’s concern that the father may have been portraying an “attitude towards [the mother] in much more positive terms than it actually is” and her finding that the children were not presently coping. While the Federal Magistrate was correct to have regard to concerns expressed by Dr T it is relevant to note that his recommendation was, in those circumstances, that the father should have a three night alternate weekend and one overnight earlier in the following week with the children. In other words, four nights a fortnight. (Report of Dr T, 8 April 2009, p 16).
The Federal Magistrate was asked to determine on limited uncontroversial evidence the difficult question of whether the existing interim orders should be varied slightly to ensure orders in the children’s best interests until a final hearing. While the Federal Magistrate’s findings in paragraph 58 of her reasons disclose she accepted the mother’s evidence about the children’s behaviour on their return from their father’s care, it appears that her reliance on the article by Professor Chisholm and Dr McIntosh and Ms Tucker’s paper was instrumental to, or played a part in, her rejection of the recommendations of Dr T. I am unable otherwise to discern from her reasons why, on the uncontested evidence before her, that evidence taken at its highest resulted in a rejection of the expert evidence, particularly as the expert was well aware of the older child’s regression in respect of bed-wetting.
I accept the Federal Magistrate did give reasons why she departed from Dr T’s recommendations, but as her reasoning was influenced by her reliance in part on the untested material the reasons may “technically” be considered inadequate.
In departing from Dr T’s recommendations it appears that the Federal Magistrate did not consider that the effect of the orders she made did not reduce the number of changeovers the children were experiencing and it was the changeovers and the mother’s anxiety at these events which were considered by the expert to be the underlying cause of the children’s anxiety.
Nothing to which I was directed in the written or oral submissions of the father’s solicitor demonstrated any mistake of fact by the Federal Magistrate in her recording of Dr T’s evidence, and the ground as pleaded is not established. However, no objection was raised by the mother’s counsel to the basis on which the ground was in fact argued, and I have accordingly considered it as a challenge to weight.
Insofar as the submissions relate to weight given to Dr T’s evidence, appealable error will only be established if on the facts the decision is “unreasonable” or “plainly unjust”. In the circumstances of this case where the evidence was untested, the question of the extent of children’s anxiety disputed, and Dr T was in the unique position of having interviewed the parties and prepared two reports, his expert opinion assumed great significance. It should have been afforded very considerable weight, and not lightly departed from without cogent reasons.
I have already found the Federal Magistrate took into account in reaching her decision extraneous material in the form of the report of research material and Ms Tucker’s paper. That error no doubt lead to her affording less weight to the evidence of Dr T than she otherwise would have done. I am satisfied in these circumstances that her Honour’s discretion miscarried.
Other Grounds (Grounds 2 and 5)
Ground 2 - Failure to follow legislative intent in s 65DAA
That the Learned Federal Magistrate failed to give real meaning to the legislative intent of s 65DAA(2)
The gravamen of the complaint in respect of this ground is that the Federal Magistrate failed to give proper consideration to the father being involved in the children’s daily routine.
The father’s solicitor properly acknowledged that the father had not sought to challenge the interim order that the mother have sole parental responsibility for the children, and as a consequence, automatic “triggering” of consideration of the matters contained s 65DAA did not arise. Rather the challenge was directed to an asserted failure to follow part of the suggested guideline referred to in paragraph 82 of Goode & Goode. At paragraph 82(j) and (k) the Full Court said:
In an interim case that would involve the following:
…
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
There is no controversy that the parties themselves defined the narrow issue they asked the Federal Magistrate to determine on an interim basis. There was no challenge by the father to the mother retaining sole parental responsibility or that he should, on an interim basis, have the children with him for more than four nights each fortnight.
The Federal Magistrate identified correctly the parties’ proposals, and the issues in dispute. She considered the evidence relevant to factors under s 60CC(2) and (3) and discussed and made findings about the particularly relevant factor s 60CC(3)(d). The orders ultimately made provide for the children to spend substantial and significant time with the father (as defined in s 63DA(3)). I am satisfied there is no merit to this ground.
Ground 5 - Making of Factual Findings
That the Learned Federal Magistrate fundamentally misunderstood the nature of her role in an interim hearing in that she inter alia effectively made findings which were not open to her at that interim hearing.
The father’s solicitor, at paragraph 36 of her written submissions, asserted that the Federal Magistrate made the following errors of fact which were relevant to her determination:
36.1Her finding that the children are not presently coping with four (4) nights with [the Father] a fortnight (Judgment paragraph 56).
36.2Her ultimate preference for the evidence of the Mother over that of the Father in respect of the question of distress suffered by [A] in spending overnight periods with the Father.
The father’s solicitor submitted that the Federal Magistrate also made findings of fact in respect of the behaviour of the children and made, and asked “[Dr T] to make, various assumptions which it was not open to her on the evidence to make” (father’s written submissions paragraph 38).
I accept there was uncontroverted evidence that the Federal Magistrate could rely on, namely that the elder child had commenced bed-wetting at night after the introduction of the two night overnight contact, and there was some uncontroverted evidence of the child being upset at changeovers although the father asserted this behaviour had abated. The Federal Magistrate could rely on these findings.
The Federal Magistrate appears against authority to have given weight to the evidence of the mother over that of the father in respect of the competing assertions of the elder child’s reactions, or substantial lack thereof, associated with time spent with the father, where that evidence was in conflict.
Insofar as it is asserted Dr T was asked to make assumptions, I am satisfied no confusion was created by the assumptions put to Dr T when the Federal Magistrate asked her questions. The dialogue between the bench and Dr T discloses he was very aware the mother’s (and the father’s) evidence had not been tested or established on the balance of probabilities, and his answers appropriately recognised the matters he was asked to assume.
Conclusion
At the conclusion of her submissions counsel for the father submitted that in the event I found appealable error that I should re-determine the matter on the evidence which was before the Federal Magistrate. The mother’s counsel did not support this course. She submitted because of the time which had elapsed since the making of the order reducing the father’s overnight time, and other changed circumstances in the lives of these young children, there would have to be a re-hearing. I accept that submission.
This matter has had a most unfortunate history with one interim hearing in respect of parenting issues in 2008, the requirement for the final hearing to be adjourned because of an inadequate estimate of time for that hearing when the matter was listed. This latter circumstance resulted in the oral application before Sexton FM. Although the appeal was file May 2009 it was not listed for hearing until the end of October 2009. I regret that I have not been in a position to deliver these reasons more promptly due to other sitting commitments and the Christmas holiday period.
The reality is that it is now approximately ten months since the making of the orders the subject of appeal. I could not appropriately re-determine this matter without the parties having the opportunity to file updating material. In circumstances where final hearing dates have been allocated in April 2010 the practical solution must be that the parties should devote their resources to the final hearing when the Federal Magistrate will have the ability to hear all the evidence and see the parties in the witness box to arrive at a decision which is in the best interests of these children. In expressing this view I note that the elder child will be six in October 2010 so that any arrangements for her will need to be made in light of her commencement of full time school
Costs
At the conclusion of the hearing I sought submissions on costs. Both parties submitted if I found an error of law that they should be granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the re-hearing. I am satisfied in this case that the appeal should be allowed by reason of an error of law. I am further satisfied that there should be no departure from s 117(1) of the Act. In these circumstances the criteria for the granting of a certificate are satisfied, and I propose to so order. In granting the certificate for a re-hearing such a certificate should be limited to a rehearing of the interim application if that in fact occurs.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 9 February 2010
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