Battista & Battista
[2024] FedCFamC1A 127
•6 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Battista & Battista [2024] FedCFamC1A 127
Appeal from: Battista & Battista (No 2) [2024] FedCFamC2F 268 Appeal number: NAA 67 of 2024 File number: PAC 3262 of 2021 Judgment of: CHRISTIE J Date of judgment: 6 August 2024 Catchwords: FAMILY LAW – APPEAL – Final parenting orders – No error in the application of s 65DAA of the Family Law Act 1975 – Where the reasons are adequate – No obligation to set out the basis upon which parenting arrangements which no party sought are rejected – Whether the primary judge had regard to an irrelevant matter – The content of cross-examination pursued by counsel – Where it was not an error to conclude that the content of the cross-examination itself reflected on the appellant – Where it was unremarkable that the primary judge observed that the nature and subject matter of the cross-examination underlined her conclusions about poor communication – Appeal dismissed – Costs ordered. Legislation: Family Law Act 1975 (Cth) s 65DAA
Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth)
Cases cited: Bennett and Bennett (1991) FLC 92-191
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Number of paragraphs: 42 Date of hearing: 24 July 2024 Place: Sydney Counsel for the Appellant: Mr Othen Solicitor for the Appellant: A B Mezzanotte Lawyers Counsel for the Respondent: Ms Petrie Solicitor for the Respondent: Urania Zafiris Solicitors ORDERS
NAA 67 of 2024
PAC 3262 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BATTISTA
Appellant
AND: MS BATTISTA
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
6 AUGUST 2024
THE COURT ORDERS THAT:
1.Appeal NAA 67 of 2024 is dismissed.
2.The Appellant pay the Respondent’s costs in the sum of $9,639.94.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Battista & Battista has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
The appeal lies from parenting orders made by a Judge of the Federal Circuit and Family Court of Australia (Division 2) on 1 March 2024.
The proceedings concerned parenting arrangements for the child X born 2020.
The father is the appellant in this appeal and was the applicant in the court below. The mother is the respondent in this appeal, as she was in the court below.
For the reasons which follow the appeal will be dismissed.
THE TRIAL
The final hearing concerned what time X should spend with each parent in circumstances where both parties sought a graduated regime culminating on the mother’s case with X spending time with the father on two nights per fortnight and two additional afternoons and on the father’s case in a week about arrangement.
X has been diagnosed with autism spectrum disorder (level 2) and global developmental delay requiring substantial support.
The primary judge noted the contents of a report by X’s developmental specialists which included a note that “the separation proceedings of the parents were characterised as ‘volatile and acrimonious’”.
The primary judge found:
66.X has a meaningful relationship with both of his parents, and strong attachments to each of them. While the Mother has been his primary care giver for the majority of his life, and is his primary attachment figure, he is nonetheless strongly attached to the Father.
(Footnote omitted)
And further:
108.Despite very helpful and detailed submissions by the parents’ respective counsel, the Court is not satisfied that either party’s proposal is in the child’s best interest. The Mother’s proposal does not allow for enough time between the child and his father and the Father’s proposal is far too ambitious and places too little emphasis on X’s special needs and capacity to cope with change, and his need for stability and routine.
THE APPEAL
The appellant appeals against orders 1 and 2 of the orders made 1 March 2024 which dealt with the time X would spend with each parent.
Ground 1
Ground 1 alleges error as follows:
That the Court when making orders of its own motion as to what spend time with arrangements were appropriate for the child, failed to make findings as a matter of jurisdictional fact that the orders it proposed were in the child’s best interests and reasonably practicable, contrary to the mandatory requirements of section 65DAA(2) of the Family Law Act 1975.
By Ground 1, the appellant effectively contends two separate errors – the first being that the primary judge did not, as she was obliged, find that the orders which she made were in the best interests of the child. The second purported error is a failure to apply s 65DAA(2) of the Family Law Act 1975 (Cth) (“the Act”). The effect, the appellant submits, was that the primary judge had failed to make the necessary findings to ground the exercise of her power. That submission is rejected for the reasons which follow.
I am not confident that I am clear about the basis on which the appellant submits that there was failure on the part of the primary judge to find the proposed orders were in the best interests of the child. The reasons, the appellant conceded, are tolerably clear. The appellant’s submissions focused on whether the primary judge had made an explicit finding about reasonable practicability arising out of the terms of s 65DAA(2), (3) and (5) of the Act and so too I will focus on that submission.
Section 65DAA(2) of the Act says:
(2) … if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
The requirement to consider the making of an order for substantial and significant time was amply met by the primary judge’s consideration of the proposals before the court.
Substantial and significant time is defined in s 65DAA(3) of the Act as follows:
(3)… 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.
In effect the mother’s proposal met the definition of substantial and significant time, as did the orders which the primary judge ultimately made.
The appellant’s central contention under this ground was that the primary judge had not, consistent with the dicta in MRR v GR (2010) 240 CLR 461(“MRR v GR”) made a separate and necessary determination about whether the orders to be made were reasonably practicable.
The passage cited was from [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
(Footnote omitted)
If the focus of the ground is on whether the primary judge considered the reasonable practicability of the orders which she ultimately made, then it is difficult to understand how the appellant contends equal time orders would have been reasonably practicable but something lesser would not. This much is conceded by the appellant at [7] of his Summary of Argument. The father’s case below was that significantly more time would also have been reasonably practicable and the mother’s position was not to oppose the extension of time on the grounds of reasonable practicability, save and except her contention that the parties’ communication was not equal to the task of substantially shared parenting. Other than that aspect, reasonable practicability was not in issue. The primary judge did address the parties’ communication issues in her reasons in satisfaction of the requirements of s 65DAA(5)(c). In those circumstances it was unnecessary for the primary judge to explicitly note the lack of any impediment to the exercise of her power. The primary judge well understood the imperative to find that the ultimate orders were reasonably practicable – that much is plain from her explicit reference to the relevant passage from MRR v GR at [63].
That the primary judge was considering orders which provided for “substantial and significant” time between X and the father was not in doubt. She was not obliged to use the phrase “substantial and significant” to enliven her power to make the orders. She was obliged to find that the proposed substantial and significant orders were both in the child’s best interests and reasonably practicable. No prescribed form of words was required – merely the evaluation and conclusion.
Accepting that s 65DAA requires the Court to consider certain matters, I am comfortably satisfied that in the context of this case the primary judge did indeed consider those matters which required resolution and accordingly had jurisdiction to hear and determine the parenting matter before her.
Ground 2
Ground 2 alleges “[t]hat the Court when making orders of its own motion as to what spend time with arrangements were appropriate failed to give any or adequate reasons for its decision.”
The ground, as is common, but unhelpful, alleged a lack of any reasons and seemingly, in the alternative, a lack of adequate reasons. The two propositions cannot stand together – either the appellant acknowledges that there were reasons (albeit inadequate) or contends that the primary judge did not provide reasons.
The primary judge said that the child needed a primary residence. This immediately ruled out equal time. It also precluded something approaching equal time. The primary judge concluded the mother’s proposal was inadequate. The reasons do not need to be comprehensive – they merely need to chart the pathway by which the judge reached the conclusion (Bennett and Bennett (1991) FLC 92-191). They are adequate.
On 12 January 2024 the single expert, Mr J, finalised an updated family report which was in evidence. The primary judge records (accurately) the recommendation of Mr J that X’s time with the father be graduated such that he ultimately spend three nights per fortnight in the care of the father. He is recorded to have maintained that opinion in cross- examination. The primary judge accepted that evidence.
Against that uncontroversial recommendation the primary judge’s findings at [105]–[110] set out the basis for the conclusion reached.
During argument it became clear that the submission was granular – what was being advanced was that the primary judge failed to give reasons for the specific formulation of “substantial and significant time” which she ultimately ordered. By that I understood the appellant to contend that the primary judge ought to have made plain why it was that she had considered and rejected the various permutations falling between that which the mother sought and that which the father sought. The submission is rejected. The primary judge was obliged to consider the parties’ proposals but, having rejected them, she was at large and provided that her conclusions were consistent with the evidence, and the pathway to her conclusion was plain, she was not obliged to set out the basis on which she had rejected arrangements which no party sought.
A related argument on behalf of the appellant posited that the primary judge was in error for not explicitly setting out the basis for the change from time occurring each week to time occurring on a fortnightly schedule. The basis for the change is clear from the content of the primary judge’s reasons at [106].
Ground 2 is without merit.
Ground 3
Ground 3 complains “[t]hat the Court in making orders of its own motion as to what spend time with arrangements were appropriate had regard to irrelevant matters such that the exercise of discretion miscarried.”
At [67]–[68] the primary judge said:
67.There was robust cross-examination of the Mother apropos her assertion in an email to the Father of 22 December 2023, where the Mother wrote to the Father “you will no doubt appreciate that I am his secure attachment”. The Mother conceded in her oral evidence that presently X also has a secure attachment to the Father.
68.Such robust cross-examination is an example of the Father’s need to prove himself important in X’s life. It is also an example of his rigidity and misguided focus on his own needs rather than those of his child. (Footnote omitted)
It is necessary to examine the cross-examination to evaluate the complaint that the primary judge, in reaching the view which she there expressed, had regard to an irrelevant matter.
The mother was being cross-examined by senior counsel for the father about the necessity (or otherwise) for X to have a call from his mother while in the care of the father. In answering the question the mother made reference to her reading and said:
…children may sense the absence of their secure attachment, or the primary carer, as a loss…
(Transcript 9 February 2024, p.146, lines 1–2)
Picking up on the mother’s use of the expression “secure attachment” senior counsel for the father asked her whether she viewed herself as X’s only “secure attachment”. Senior counsel also made reference to email communication between the parties in which the mother described herself as the child’s “secure attachment”. That email correspondence was annexed to the father’s affidavit and hence plainly considered relevant by him.
The relevant paragraph of the mother’s email read:
I am in no way suggesting that X has not developed a close relationship to you or your parents. It is vitally important that he does and I believe he has done so however you will no doubt appreciate that I am his secure attachment. This is not in dispute.
I do not accept that her Honour was in error to approach the pursuit of this issue as indicative of the father’s rigidity and lack of focus. True it is that the manner in which the cross- examination progressed was a matter for senior counsel but the content of the subject matter arose from the father’s position in the litigation and the consequent references to this in the reasons for judgment, when read with the conclusions about communication more generally, could not be regarded as irrelevant to the ultimate determination.
At [89] the primary judge said:
The cross-examination of the Mother was illuminating of the Father’s attitude to parenthood, his attitude towards the Mother, and his enthusiasm for laying the blame at the feet of the Mother for things he does not agree with or which, to his mind, have not been done in a manner that is consistent with what is best for X.
The Summary of Argument filed on behalf of the appellant contends that it is an error to conclude that counsel’s line of questioning is pursued at the explicit request of the party for whom he acts. Further, it follows that the primary judge is said to have taken into account an irrelevant matter when she concluded that the content of the cross-examination itself reflected on the appellant.
The primary judge set out a lengthy passage of cross-examination which arose from the mother’s decision not to take an earlier date for a medical procedure for X arising from a cancellation. As set out in her affidavit, the mother’s rationale for this decision was twofold – she was not available for the whole of the two week post-surgery period and she wished to have the advice of X’s allied health professional ahead of the surgery. The cross-examination questioned the mother’s decision given the father’s availability to care for X in the mother’s absence.
The primary judge did no more than observe that the focus of the father’s case highlighted, rather than alleviated, the Court’s concern that the parties were unable to communicate and reach consensus in a manner which furthers the interests of their child. Far from irrelevant, it was central to the primary judge’s conclusions.
The appellant was represented by senior counsel cross-examining from his instructions. It is unremarkable that the primary judge observed that the nature and subject matter of the cross- examination underlined her conclusions about poor communication. Ground 3 is not established.
COSTS
The respondent sought costs of the appeal on a party/party basis in accordance with a schedule filed in accordance with the Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth). Those costs total $9,639.94. The appellant has been wholly unsuccessful. It is appropriate that the respondent have her costs in the quantum sought.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 6 August 2024
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