BARNSLEY & GAYNOR
[2020] FamCAFC 267
•6 November 2020
FAMILY COURT OF AUSTRALIA
| BARNSLEY & GAYNOR | [2020] FamCAFC 267 |
| FAMILY LAW – APPEAL – PARENTING – Where the appellant father sought equal time – Reasonable practicability – Best interests of the child – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Adequacy of reasons – Decision of the primary judge not plainly wrong – No error in exercise of discretion – No error of fact or law established – Appeal dismissed – Costs ordered against the father in a fixed sum. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Evidence to be adduced only if appeal is allowed and the Full Court re‑exercises the discretion – Application dismissed. |
| Family Law Act 1975 (Cth) s 94(2A) |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Ulster & Viney (2016) FLC 93-722; [2016] FamCAFC 133 |
| APPELLANT: | Mr Barnsley |
| RESPONDENT: | Ms Gaynor |
| FILE NUMBER: | PAC | 2546 | of | 2016 |
| APPEAL NUMBER: | EAA | 3 | of | 2020 |
| DATE DELIVERED: | 6 November 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 19 October 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 November 2019 |
| LOWER COURT MNC: | [2019] FCCA 3811 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Dura |
| SOLICITOR FOR THE APPELLANT: | Mackellars Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Maurice |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
The Application in an Appeal to adduce further evidence filed on 2 June 2020 is dismissed.
The appeal against the orders made by a judge of the Federal Circuit Court on 29 November 2019 is dismissed.
The appellant father to pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of $10,962.44 within forty-two (42) days of the date these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barnsley & Gaynor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 3 of 2020
File Number: PAC 2546 of 2016
| Mr Barnsley |
Appellant
And
| Ms Gaynor |
Respondent
REASONS FOR JUDGMENT
On 29 November 2019 a judge of the Federal Circuit Court made final parenting orders in proceedings between Mr Barnsley (“the father”) and Ms Gaynor (“the mother”) in relation to the parties’ child X born in 2015 (“the child”).
His Honour’s orders provided for the parties to have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father. At the time of the hearing, the child, who had always lived with the mother, was spending one night in one week and two nights in the next week with the father. It seems that the parties have not lived together and the child has certainly not lived with them both.
At the hearing before the primary judge, the father sought an increase in that time, leading, “eventually” to equal time. The mother opposed equal time.
The primary judge made orders which increased the time spent between the child and the father to three days in one week and further time in the next week increasing to five days in each fortnight and, finally, at the commencement of the 2021 school year, the child will have equal time with the parents during school holidays. The primary judge also made orders for the child to spend time with the parties’ on special occasions including the child’s birthday, each of their birthdays, Father’s and Mother’s Day and Christmas.
The father appeals his Honour’s orders. The thrust of the appeal is that the primary judge erred in not making future orders for equal time when, it was said, he was in possession of evidence which would support those orders. It is to be understood that the father was not promoting a position where the primary judge would make an order for equal time to take effect immediately. Rather, he sought orders that would “eventually” lead to that position, at some point in the future.
The appeal
In these proceedings, under s 94(2A) of the Family Law Act 1975 (Cth), this Court is entitled to give its reasons in short form in the event that the appeal is to be dismissed and if, in the opinion of the Full Court, the appeal does not raise any question of general principle. As these conditions are fulfilled here, we propose to give reasons in short form.
Ground 1
It was argued that the primary judge failed to consider whether equal time would be in the best interests of the child or whether it would be reasonably practicable.
There was no argument that the primary judge was not acutely aware that the parties agreed that they should have equal shared parental responsibility nor indeed that it was the father’s position that “eventually” he sought a position of equal time.
The asserted error, it seems, is an absence in his Honour’s reasons of a passage or passages in which he concludes that equal time was not in the child’s best interests. That is indeed the case. However, it is abundantly clear from his Honour’s reasons why he considered equal time was not in the child’s best interests. His Honour said:
97.… I propose to make orders that fall short of equal time but certainly are a far greater and far more rapid progression than [the mother] proposes. I have used the expression “far more rapid” not to suggest that it will be particularly fast, but [the mother’s] proposals are exceedingly gradual…
(See too [162]–[164]).
The rejection of the father’s proposal by the primary judge could not give a clearer indication that he considered equal time was not in the child’s best interests.
To argue, as here, that without having specifically excluded equal time and having considered the practicality of that order, his Honour erred, is to promote form over substance. In Ulster & Viney (2016) FLC 93-722, the Full Court said:
127.… The focus of both ss 65DAA(1)(a) and (2)(a) is whether those styles of orders would be in the best interests of the children. Given this commonality of subject matter, where a judge in the position of the primary judge is astute to the obligation to consider s 65DAA and palpably does so, there will be no error merely because the answer to the question of what orders are in the best interests of the children is stated first. For, as the Full Court said in Starr & Duggan [2009] FamCAFC 115 at [38], it is logical (but not mandatory) to consider “best interests” first.
Having rejected equal time, there was no point in his Honour considering the practicalities of implementing a regime which he was not proposing to impose (MRR v GR (2010) 240 CLR 461 at [13]).
This ground is not made out.
Ground 2
Here, it is said that his Honour gave inadequate reasons for failing to make orders for equal time.
The reasons of the primary judge contain an extensive examination of the evidence, much of which, we observe, was uncontentious. Further, his Honour had the benefit of the opinion of a private Family Report writer, albeit given some 12 months before the hearing. His Honour’s reasons advert to the opinions of the Report Writer and acknowledge that they are somewhat limited by the passing of time (at [79] and [83]–[84]).
Again, this ground is another facet of what we perceive to be the “process” argument, that is, his Honour failed to provide an encapsulated consideration of equal time in order to reject it.
The requirement to give reasons is well known. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267; Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18). An essential part of any judgment is an explanation as to why one party’s case was preferred (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]).
We do not accept that his Honour’s reasons are inadequate and in our view they make it abundantly clear why he rejected equal time as being in the child’s best interests. The ground is not made out.
Ground 3
It was argued that the primary judge erred in not giving consideration to making orders to increase the child’s time with the father beyond the time when the child began school.
The primary judge was well aware that the orders he proposed to make were a significant change for the child, from three non-consecutive nights per fortnight, leading ultimately to five nights (at [133]–[134]). Equally, his Honour’s reasons demonstrate his understanding of the child’s “warm relationship” with the father and the desirability of maintaining it (at [150]). However, what is overwhelmingly apparent is his Honour’s clear focus on the child and his ability to cope with change.
His Honour at [134] considered that to move from one night at a time to seven might be beyond what the child could cope with.
His Honour said:
162.I make clear that I do not propose to make orders that project that far into the future and predict that it will be beneficial. The Court makes prospective decisions based upon assessing the arrangements in the past, gathering the history and applying the law to it. The Court is not bound to continue a status-quo or to continue arrangements simply because that is how they have been. They are of assistance, however, in understanding how one might move forward based upon the child’s lived experience.
163.The steps I propose to take will move this family to a nine/five arrangement fairly quickly, at least, from [the mother’s] perspective, fairly slowly, perhaps, from [the father’s]. But in taking those steps it will take [the child] through to the time that he starts school. I am conscious that the ability to predict arrangements for the future is already difficult. It need not be made more difficult by having a fourth, fifth, or sixth step as to how a progression might occur. The parents must be given some agency.
164.If they reach that point and arrangements are going well, one would hope they could engage, as [the mother] proposes with an order for dispute resolution, in a dialogue towards changing arrangements. If [the child] is receiving real benefit from an abundant practice of relationship with each of his parents, a more abundant practice might be even more advantageous. But they are matters that cannot be predicted today, two years ahead. Accordingly, I propose to make orders that will get through to [the child] commencing school.
Turning then to considering the avoidance of future proceedings, the primary judge said he was confident in predicting what might meet the child’s needs for the next 12 to 18 months, but not further (at [173]).
His Honour said:
174.… I do not propose to make orders that project too far into the future, although, I am conscious to make clear, in that regard, that I do not suggest that the submission put on behalf of [the father], as to an eventual move to equal time, is necessarily disadvantageous for [the child]. I am simply not satisfied, on the evidence presently available, that it is a step I could immediately take or take within a timeframe of ready prediction, 12 to 18 months.
175.To make orders that projected further would most likely lead to the institution of future proceedings…
Clearly then, the complaint that his Honour failed to give consideration to making orders which progressed beyond when the child commenced school cannot be made out. His Honour considered it and rejected it, as he was well entitled to do.
Ground 4
It was argued that the primary judge placed excessive weight on the mother’s anxiety or difficulty in accepting a regime in which the child had increased time with the father.
While the Family Report writer spoke about the mother’s concern if there was to be an increase in the child’s time with the father, a point to which his Honour adverted at [76], he nonetheless concluded that the mother will adjust and support the proposed graduated change (at [140]).
We do not accept that the mother’s perceived anxieties were in fact given excessive weight and this ground is not made out.
Ground 5
This ground complains that the primary judge erred in not acceding to the father’s proposal that the child spend each Christmas with him. Rather the primary judge ordered the parents to spend alternate Christmas days with the child.
The ground expresses itself to be an error of a failure to give reasons why his Honour ordered the child to spend alternate Christmas days with his parents.
His Honour foreshadowed the Christmas order at [113] and said he would “attempt to articulate” his reasons. What followed was his Honour’s consideration of the parents as being loving and supportive of the child and his intention to provide orders which will maintain the child’s meaningful relationship with each of them. One does not need to delve deeply into the reasons to understand that the primary judge was concerned to make orders to benefit the child. They are reason enough. In truth however, the ground appears to be a complaint that the primary judge did not make the order for which the father contended.
The orders reflect the exercise of his Honour’s discretion. A challenge will not succeed merely because the father was unsuccessful, the conclusion is not plainly wrong (Norbis v Norbis (1986) 161 CLR 513 at 539–540). This ground must fail.
Thus the appeal will be dismissed.
Application to adduce further evidence
On 2 June 2020 the father filed an Application in an Appeal to adduce further evidence. The documents were to be adduced only if the appeal is allowed and the Full Court re-exercises the discretion.
As the appeal is dismissed, this application too will be dismissed.
Costs
The mother sought an order for costs in the event that the appeal failed. Counsel for the father did not oppose an order for costs from being made. We will make that order in the sum sought of $10,962.44.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan &
Aldridge JJ) delivered on 6 November 2020.
Associate:
Date: 6 November 2020
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