Bartz and Manthey (No 2)
[2018] FamCAFC 140
•3 August 2018
FAMILY COURT OF AUSTRALIA
| BARTZ & MANTHEY (NO. 2) | [2018] FamCAFC 140 |
| FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Whether the orders are substantial and significant time pursuant to s 65DAA(3) – Consideration of s 65DAA(4) – Jurisdictional error not established – Obligation on judge to engage in an active intellectual evaluation of the controversy – Failure to have regard to relevant considerations – Appeal allowed. FAMILY LAW – APPEAL – COSTS – Costs certificates granted for the appeal and rehearing. |
| Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) Family Law Act 1975 (Cth) s 65DAA Federal Proceedings (Costs) Act 1981 (Cth) |
| Beckham & Desprez (2015) 55 Fam LR 310; [2015] FamCAFC 247 Carrascalao v Minister for Immigration (2017) 347 ALR 173; [2017] FCAFC 107 Eddington & Eddington (No. 2) (2007) FLC 93-349; [2007] FamCA 1299 Goode and Goode (2006) FLC 93-286; [2006] FamCA 819 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Ulster & Viney (2016) FLC 92-772; [2016] FamCAFC 133 |
| APPELLANT: | Ms Bartz |
| RESPONDENT: | Mr Manthey |
| FILE NUMBER: | CAC | 609 | of | 2016 |
| APPEAL NUMBER: | EAA | 57 | of | 2018 |
| DATE DELIVERED: | 3 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 25 June 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 April 2018 |
| LOWER COURT MNC: | [2018] FCCA 1305 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT | Mr Coleman SC |
| SOLICITOR FOR THE APPELLANT: | Campbell Paton & Taylor |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Walsh & Blair |
Orders
The appeal be allowed.
The Orders 4(a), (b) and (c) and 6 dated 12 April 2018 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for re-hearing.
There be no order as to costs.
The Court grants to the appellant 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 her in relation to the appeal.
The Court grants to the respondent 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 him in relation to the appeal.
The Court grants to the appellant and the respondent costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates 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 appellant and the respondent in respect of the costs incurred by them in relation to the rehearing.
Notation
The application in an appeal filed on 18 June 2018 by the father is withdrawn.
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 Bartz & Manthey (No. 2) 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 57 of 2018
File Number: CAC 609 of 2016
| Ms Bartz |
Appellant
And
| Mr Manthey |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed with leave at the commencement of this hearing, Ms Bartz (“the mother”) appeals against a selection of interim parenting orders made by Judge Neville on 12 April 2018. The orders relate to the parties’ only child, X (“the child”), who was born in December 2012.
The child was 22 months old when the parties separated, following which and by agreement, he remained in the primary care of his mother. She lives in Town B and the child’s father, Mr Manthey (“the father”) lives at Town A. The two towns are approximately 300 kilometres apart. Although the parties were able to agree that the child should spend time with the father, there have been disagreements about the magnitude and circumstances under which that time should take place. Unable to resolve those disagreements, on 18 April 2016 the father commenced proceedings in the Federal Circuit Court of Australia for parenting orders in relation to the child.
Stated broadly, the father proposed the parties have equal shared parental responsibility for the child, that the child live with the mother and that he have regular time overnight at Town A. Upon the child commencing school, which in 2016 was anticipated to be in 2018, the frequency of that time would increase to every third weekend and extend to include half school holidays. By her amended response filed on 14 September 2016, the mother proposed that she have sole parental responsibility in relation to the child’s education and health, agreed that the child lives with her and that he spends time with the father. However, she did not then feel she was in a position to say what those final arrangements would look like.
Thus, an expert’s report was obtained which was released to the parties on 15 December 2016 (“the 2016 report”). Relevantly for present purposes, on 21 December 2016 the primary judge made interim orders which provided that the child spend alternate weekends from 9.00 am Saturday until noon Monday with the father in Town A. This was the arrangement in operation immediately prior to the orders now under appeal.
Again, stated broadly, the effect of his Honour’s orders of 12 April 2018 was to discharge all prior parenting orders and, in relation to the child’s time with the father, to continue the alternate weekend arrangement, but having extended the period by approximately four hours, it would alternate between Town A and Town B. The focus of this appeal is in relation to the order which introduces time to occur in Town A.
It needs to be understood that this hotly contested dispute was determined within five months of the final hearing (September 2018) and a few weeks before the court expert was due to update her report. Furthermore, it is agreed that in the event that the appeal is allowed and the relevant orders are set aside, that issue (time at Town A) should be remitted to the Federal Circuit Court on the understanding that the opinion of the expert would be taken into account and, that given the proximity of the final hearing, it may be dealt with simultaneously.
Pursuant to s 94AAA(3) of the Family Law Act (1975) Cth (“the Act”) the Chief Justice directed that this appeal be determined by a single judge.
The father seeks to uphold the orders of the primary judge.
On 18 June 2018 the father filed an application in an appeal to adduce further evidence which was withdrawn at the hearing.
Grounds of Appeal
The mother raised two grounds of appeal by way of challenge to the orders, albeit the second comprised various interrelated sub-grounds. The grounds were numbered 7 and 8 in the mother’s amended notice of appeal, as a result of her withdrawing the previous six grounds. For ease in this appeal however, they will be identified as Grounds 1 and 2. As such, it is contended that:
([1]) The primary judge’s order was vitiated by jurisdictional error as the order was made in the absence of findings of the jurisdictional facts necessary to enliven the power to make such order.
([2]) The primary judge erred in principle by:
a)Failing to engage in an active intellectual evaluation of the competing proposals, and/or;
b)Failed to have regard to relevant considerations, and/or;
c)Failed to adequately reveal the reasoning process that led to his decision.
For Ground 1 to be made good, the orders under challenge must be orders for “substantial and significant time” as defined by s 65DAA(3) of the Act. Whether or not the orders could be characterised in this manner is controversial and thus, before Ground 1 is discussed, it is necessary that the orders be set out.
Orders as to time
It was ordered that, pending further order, the orders set out below would apply.
(4) The Child spend time with the Father as follows:
(a) Until the child starts school in 2018, in a four week cycle:
(i)In week 1, from Saturday at 9.30 am to Monday at 4.30 pm in [Town A]; and
(ii)In week 3, from Saturday at 9.00 am to Monday at 4.30 pm in [Town B].
(b) When the Child school starts in 2018, during school terms:
(i)Every third weekend, being at conclusion of weeks 1, 4 and 7, from Friday at 5.00 pm to Sunday at 4.30 pm,; and
(ii)During the first week of the Term 1, 2 and 3 school holidays from Monday at 9.30 am to Thursday at 4.30 pm.
(c) On special occasions as follows:
(i)During Christmas 2017, from 3.00 pm on Christmas Eve until 4.30 pm on 27 December 2017;
(ii)At Easter, from Easter Friday at 3.00 pm until Easter Sunday at 4.30 pm; and
(iii)As otherwise agreed between the parties from time to time.
…
(6) Unless otherwise agreed:
(a)Changeovers that are referred to in Order 3.a.ii, take place at the Mother's house at the commencement and conclusion of time; and
(b)The balance of changeovers occur at (…) McDonalds, (…).
(As per original)
For clarity, Order 6 is included because it too is under challenge in this appeal, albeit it does not bear upon the question of how the orders should be categorised.
Substantial and significant time (Ground 1)
There is no doubt that because the parties were to have equal shared parental responsibility for the child, s 65DAA of the Act was engaged and thus, there being no issue as to equal time, the primary judge was required to consider whether an order for substantial and significant time was in the best interests of the child and reasonably practicable. Only if either of those propositions was answered in the negative could the question of what outcome promotes the child’s best interests be treated in effect, at large (Goode and Goode (2006) FLC 93-286 at [65(8)]).
It is contended that the primary judge made orders for substantial and significant time which required affirmative findings in respect of each of the matters identified in s 65DAA(2)(a)(b) of the Act as a precondition to the exercise of power to make the orders under challenge (see MRR vGR (2010) 240 CLR 461). This statement of the governing law should be accepted (see Beckham & Desprez (2015) 55 Fam LR 310 at [24]).
It is common ground in the appeal, that if the order is for “substantial and significant time”, the primary judge failed to address the question of whether or not it was “reasonably practicable”, and therefore was precluded by s 65DAA(3)(c) of the Act from considering making the order he made, even if he ultimately considered (as he did) that it was in the child’s best interests.
As has already been mentioned, the phrase “substantial and significant time” is defined in s 65DAA(3) of the Act and is qualified by s 65DAA(4).
Section 65DAA(3) of the Act provides:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(Original emphasis)
Section 65DAA(4) of the Act further provides:
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
In Eddington & Eddington (No. 2) (2007) FLC 93-349, the Full Court determined the manner in which these provisions operate. The Full Court said (at 81,997):
54.It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3).
These provisions were also considered in Ulster & Viney (2016) FLC 93-772 in relation to which Ainslie-Wallace and Ryan JJ said (with Strickland J agreeing on the point):
88.Thus the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s 65DAA(3). The second requires the exercise of discretion in accordance with s 65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s 65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case (see Eddington (No 2) at [66]).
Although the primary judge made orders predicated on the child starting school in 2018, it was common ground before him that the child was not ready to start school in 2018 and he would start school in 2019. Thus, the relevant question becomes whether the combined effect of the balance of the operative orders, namely Orders 4(a) and 4(c) satisfy the mandatory aspects of the definition. It will be immediately apparent that the orders do not make specific provision for holiday time and prima facie offend s 65DAA(3)(a)(i). However, senior counsel for the mother argued that as on occasion there will be a public holiday on a Monday, s 65DAA(3)(a)(i) was satisfied. I agree. Thus, the qualitative elements of “substantial and significant time” as per s 65DAA(4) must be considered.
The practical effect of the orders is that the child will spend time with the father each alternate weekend (including Monday) and for no more than a couple of additional special occasions each year. Provision is made for telephone time but there is no provision for block periods of time, for example, to enjoy holidays, either at or away from home. In total the child could expect to spend no more than approximately 55 days a year with the father, something like 1/7th of his available time each year. Furthermore, it would be mere happenstance for the child to be involved in events such as family weddings, or christenings, mothers or father’s day, birthday, sporting events or concerts (see Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)). In short the nature and extent of the time the child would have with the father is insufficient to categorise the orders as being for substantial and significant time. It follows that the precondition for this challenge to be made good has not been established.
The primary judge’s reasons (Ground 2)
His Honour’s reasons comprise substantial extracts from the expert report which had been prepared in December 2016, lengthy recitation of the orders sought and the written submissions of the parties. Senior counsel for the mother’s submission that a judgment which does no more than recite tracts of evidence and submissions will be insufficient to establish that the judge actively engaged with the controversy is accepted (see Carrascalao v Minister for Immigration (2017) 347 ALR 173 at [45] and the cases cited therein).
It was common ground that the essence of the trial decision is as follows:
18.In my view, it is not unreasonable, in fact it is very reasonable to assume that as [the child] gets older, his capacity to cope with change, including being away from his Mother for relatively brief periods of time, will surely and steadily increase. Subject to the expert or updated report to which I have referred, while the Court cannot change matters of geography between the parties, at least not with any ease, it is more likely than not that [the child] growing up and his parents working out matters of communication and information are the basic keys to the resolution of this matter, both on a short-term basis and beyond.
19.Both parents clearly love [the child]. Both parents, in different ways, clearly have his best interests at heart. How much one parent may be over-anxious, and the other rather more robust, in their assessment of [the child] and his needs, and or of their own needs, the Court is unable to say or otherwise comment on at this juncture in the proceeding. Possible questions of possible hyper-vigilance (and other things) are for another day, relevant evidence and submissions.
20.Otherwise I accept and adopt generally the Father’s submissions.
21.Given the narrowness of the immediate contest, in my view it is unnecessary at this time to traverse the considerations relevant to both s.61DA and s.65DAA. It is the basic requirement for a Court to “quell the controversy before it.” A Court should not traverse matters that are not formally before it and or to risk wasting further resources. Moreover, here, no submissions were made by either party in relation to anything other than the immediate controversy of [the child] travelling to [Town A] and spending time with his Father at the Father’s residence at the farm in [Town A]. In any event, on the modest evidence before me there is little to rebut the presumption of equal shared parental responsibility under s.61DA.
22.Given how modest the Father’s proposals are, for a genuinely gradual change in [the child]’s time with him, and noting that there is no suggestion anyway of changing [the child’s] primary residence away from that of his Mother, in my view, the Orders proposed by the Father are in [the child’s] best interests on an interim basis. Such a course is based upon and supported by the only independent evidence before the Court as set out in the Family Report of Ms [S].
Paragraph 20 of the reasons invites the unanswered question as to why. In any event, it can be seen that at [21] the primary judge demonstrated that he was aware of the nature of the dispute as to the child’s time with the father. However, at [22] the judge disavowed any interest in the evidence adduced by the parties and decided the issue based upon the 2016 report. At that time, the report writer believed, as did the parties, that the child would be ready to commence school in 2018. However, the evidence adduced by each of the parties made it plain that they were now agreed that he was not mature enough to cope with school and their hopes for him expressed in 2016 would not come to pass. In other words, there was important evidence adduced at the hearing as to the child’s ability to cope with change which was at odds with his Honour’s statement at [18] and the expectation of the report writer propounded in 2016.
It is accepted that the primary judge did not engage with the central controversy in the case and the evidence. Thus he failed to have regard to relevant considerations. It is understood that the central issue was quite discrete and, as counsel for the father correctly pointed out, the level of engagement with it did not need to be extensive. Be that as it may be, there needed to be some consideration given to the competing proposals and the evidence adduced in relation thereto. Unfortunately there was not and Ground 2(b) has been made out.
In these circumstances, it is understood that the parties were agreed Grounds 2(a) and (c) need not be considered further.
Conclusion and costs
The mother has established appellate error as a consequence of which the appeal will be allowed and the orders set aside. The proceedings will be remitted for rehearing before a judge in the Federal Circuit Court. Given the mother’s concession that the only issue is the provision for time at Town A, it is understood that the father would continue to spend time with the child as provided for in the orders now set aside but not at Town A. Any misunderstanding about that can be addressed before the judge.
In the event the appeal was allowed, the parties agreed that this was not an appropriate matter in relation to which an adverse order for costs would be made and each of them requested certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal and any rehearing. The necessary preconditions for an order pursuant to that Act are satisfied and orders to that effect will be made.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 3 August 2018
Associate:
Date: 3 August 2018
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