Best & Best
[2021] FamCAFC 13
•11 February 2021
FAMILY COURT OF AUSTRALIA
Best & Best [2021] FamCAFC 13
Appeal from: Best & Best [2020] FCCA 628 Appeal number(s): EAA 47 of 2020 File number(s): PAC 5790 of 2015 Judgment of: AINSLIE-WALLACE, ALDRIDGE & WATTS JJ Date of judgment: 11 February 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Rebuttal of presumption of equal shared parental responsibility – Best interests of the child – Relocation – Restraint – Reasons given in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Decision of the primary judge not plainly wrong – Adequate reasons – Appeal dismissed – Appellant father to pay the respondent mother’s costs of the appeal. Legislation: Family Law Act 1975 (Cth) ss 60CC(3), 94AAA(7) Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Misfud v Campbell (1991) 21 NSWLR 725
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
Division: Appeal Division Number of paragraphs: 44 Date of hearing: 1 February 2021 Place: Sydney Counsel for the Appellant: Mr O’Brien Solicitor for the Appellant: Joseph Grassi & Associates Counsel for the Respondent: Mr Reeves Solicitor for the Respondent: Reid Legal Pty Ltd ORDERS
EAA 47 of 2020
PAC 5790 of 2015APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR BEST
Appellant
AND: MS BEST
Respondent
ORDER MADE BY:
AINSLIE-WALLACE, ALDRIDGE & WATTS JJ
DATE OF ORDER:
11 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The appeal against the orders of a judge of the Federal Circuit Court made on 20 March 2020 is dismissed.
2.The father pay the mother’s costs of and incidental to the appeal fixed in the sum of $5,896 within twenty-eight (28) days of the date of these orders.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & WATTS JJ:
On 20 March 2020 a judge of the Federal Circuit Court made final parenting orders in proceedings between Ms Best (“the mother”) and Mr Best (“the father”) in relation to X and Y (“the children”). Those orders include that the mother is to have sole parental responsibility for the children, who are to live with her and spend time with the father. By his Amended Notice of Appeal filed on 9 June 2020 the father appeals those orders.
BACKGROUND
To give context to the issues agitated on the appeal it is helpful to provide some background and history of the litigation taken from the evidence in the proceedings before the primary judge.
The parties commenced a relationship in November 2007 and were married in April 2010. There are two children of that relationship who are the subject of these proceedings. The mother had two children from a former relationship, J and A. Also living with the parties was B, the mother’s niece who was placed in the mother’s care in 2013 by the relevant child welfare authority when B was just seven weeks old. She has continued to live in the mother’s household.
In December 2015 the parties consented to final parenting orders which provided for them to have equal shared parental responsibility for the children, for the children to live with the mother and spend time with the father. From that time until May 2017, the children spent time with the father, each alternate weekend and generally one or two additional nights per fortnight.
In May 2017, without notice to or the consent of the father, the mother and children moved to live in an area south-east of Sydney which was some distance from the home in which she and the children had previously lived. The mother sold that property and apparently used the proceeds to purchase another house with her then partner.
On the father’s urgent application in July 2017, orders were made that the children be returned to within 5 kilometres of the boundary of Town C and in default of the mother and children returning, the children were to live with the father and spend time with the mother. The mother did not then return to Town C and accordingly the children moved to live with the father and spent time with the mother on each alternate weekend and in school holidays.
The mother returned to Town C in April 2019 and was, at the time of the hearing before the primary judge, living in rental accommodation in Town C.
Although on her return to Town C the mother sought that the children be returned to her care in accordance with the earlier orders of July 2017, that order was not made and the parties consented to a stay of those earlier orders in June 2019 pending the final hearing before the primary judge which was listed in November 2019. The children continued to reside with the father.
The primary judge’s orders in March 2020 had the effect of the children returning to live with the mother who was to have sole parental responsibility and for them to spend time with the father.
THE APPEAL
In these proceedings, under s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”), 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.
The Amended Notice of Appeal raised seven grounds of challenge to her Honour’s orders.
Grounds 3, 4, 6 and 7
Grounds 3, 4, and 6 challenge the primary judge’s exercise of discretion as to the weight of the evidence generally, the evidence that the children lived with the father from July 2017 onwards and the finding that the mother’s parenting capacity was superior to that of the father. Ground 7 contends that the primary judge erred in failing to properly evaluate the evidence against the factors set out in s 60CC(3) of the Act.
Counsel for the father addressed no oral submissions to these grounds but relied on the written submissions made in relation to them. In short it was argued that other, different findings ought to have flowed from the evidence before her Honour.
Challenges to the exercise of discretion by a primary judge face significant hurdles. It is not enough that an appeal court or another judge may have come to a different view of the evidence than that adopted by the primary judge. A challenge will not succeed merely because the father was unsuccessful if the conclusion is not plainly wrong. In Norbis v Norbis (1986) 161 CLR 513 at 539–540 Brennan J said:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s. 79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite, Asquith L.J. stated the rationale of an appellate court’s approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
(Footnote omitted)
While the conclusions for which the father contended may well have been open to the primary judge, they were not drawn and we are not persuaded that her Honour’s exercise of discretion was plainly wrong. These grounds must fail.
Ground 5
This ground contends that the primary judge failed to give adequate reasons to support her conclusion that it was in the children’s best interests for them to return to live with the mother.
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]).
However, as was pointed out by Samuels JA in Misfud v Campbell (1991) 21 NSWLR 725 at 728:
… [I]t is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.
Here, it was contended that there was, before her Honour, evidence that any relocation from Town C would have a detrimental impact on the children and there were concerns for the children’s wellbeing while in the mother’s household which, it was said, was not adequately addressed in the primary judge’s reasons. The written submissions also make brief reference to a number of incidents alleged by one of the children, X, to have occurred to him while in his mother’s household.
These contentions are not made out. Her Honour’s reasons refer to the incidents of which X complained, and on which the father relied, and her Honour carefully considered the evidence of both the father and the mother in relation to these incidents (at [37]–[46]).
The primary judge concluded at [96] that the evidence did not establish that the mother had been violent to X.
Equally, it was contended that her Honour failed to provide adequate reasons as to the “concerns as to the mother’s mental health” raised in the Family Report (father’s Summary of Argument filed 7 August 2020, paragraph 44).
The “concerns”, as submitted by the father, were expressed in the Family Report dated 19 November 2018, in this way:
65.[The mother] said that she has been seeing a psychologist… as she had had a “breakdown” due to the current parenting situation. She said that previously she was sick, with hives, and unable to sleep, but had not received any formal diagnosis. She said that she has also taken medication for this.
66.[The father] said that [the mother] has had undiagnosed depression, due to trauma from her upbringing, and issues dealing with her two older children. He said that this often made her dismissive of the children.
67.[The father] also said that [the mother] has a family history of mental illness, including the maternal uncle… who committed suicide, and [one of the mother’s children from a previous relationship], who had a psychosis for six months at one point.
…
131.[The father] expressed concern that [the mother’s] mental health may impact on her parenting. It is beyond the scope of this assessment to determine [the mother’s] mental state, however, [the children’s] suggestion that at times [the mother] does not engage with them at times when they are with her may suggest that her mood may interfere with her parenting, or it may be indicative that [the children] are in fact experiencing a greater than usual need for interaction with her, given their limited time with her. [B’s] reaction, in clinging to [the father], may also be an indication that her need for engagement with her parents is [not] fully met. [The mother] indicated that she has sought counselling and it would be recommended that she continue to seek support as needed or recommended by [a] health professional, to assist her with parenting [the children] under difficult circumstances.
First, it is apparent that the matters to which the submissions refer were not “concerns” expressed by the author of the Family Report but assertions made by the father in relation to the mother. Secondly, the author of the Family Report noted that “there does not appear to be any major safety concerns regarding the children in either parent’s household” (Family Report dated 19 November 2018, paragraph 129).
Finally the father’s position before the primary judge was that he and the mother should have equal shared parental responsibility, that the children live with him and spend blocks of time with the mother in a two week rotation, so whatever his concerns might have been, the orders he was seeking would have made it clear to the primary judge that they were insufficient to concern him for the time in which the children were living with the mother.
The complaint in this ground then is not about adequacy of reasons but about her Honour’s conclusions in relation to the evidence which did not support the father’s case. So much is made plain by the father’s submission that the “incidences of potential harm were not adequately addressed by the primary judge when considering potential risk to the children” (father’s Summary of Argument filed 7 August 2020, paragraph 43).
This ground is not made out.
Ground 1
This ground contends that the primary judge failed to give adequate reasons as to why the presumption in favour of equal shared parental responsibility did not apply in this matter, nor did she give adequate reasons as to why she ordered sole parental responsibility in the mother’s favour.
It was argued that the entirety of her Honour’s reasons on equal shared parental responsibility are to be found in three paragraphs of the judgment (at [100]–[102]).
This argument must be rejected.
Her Honour said:
100.This is a case of high parental conflict, so much so, that the parents are not able to effectively communicate about important issues regarding the children. While there is the capacity for electronic communication, in light of the evidence, the Court does not accept that such communication would allow effective joint decision making as required by s65DAC. In the circumstances of these children, joint decision making by their parents is contra-indicated.
101.In considering the evidence as a whole and the totality of the relevant factors, the Court finds that the children’s needs are best met by an order that they shall live with the mother and spend time with the father.
102.Given that the children will be living with the mother, it is in the children’s best interest[s] that the mother have sole parental responsibility for reasons explained earlier.
The primary judge at [13]–[14] properly states the effect of the statutory provisions applicable to equal shared parental responsibility.
Her Honour’s principal unchallenged findings were that the parties’ relationship was one of high parental conflict and parental communication would not allow effective joint decision making.
These findings must be read with the entirety of her Honour’s reasons where she sets out the factual findings underpinning those principal unchallenged findings (see for example [45], [52] [56], [70]–[72], [83], [88] and [91]).
It was next argued that her Honour failed to give adequate reasons for not ordering equal shared parental responsibility in light of her acceptance that the parties had, up to that time, communicated through electronic means. That submission too must be rejected because her Honour took the electronic communication into account and found that, given the intensity of the parental conflict, it did not provide for effective joint decision making (at [100]).
That conclusion was open to her Honour on the evidence.
There is no force in this ground.
Ground 2
This ground concerns Order 4 which says:
(4)The mother is restrained by injunction from changing the children’s residence from the [Town C] for a period of 12 months from the date of these Orders.
The ground contends that the primary judge erred in making an order that the mother could relocate the children’s residence from Town C and she further failed to give any reasons for, or proper consideration to, the best interests of the children on a relocation after 12 months.
Her Honour said as to the reason for the making of such an order:
103.There will be a restraint on the parties for a limited period from changing the general geographical area of the children’s residence. This will provide the children with much needed support from both parents and ensure that they feel that they are loved and cared for by both their mother and their father. It will also provide the children with the ability to spend time with the parent with whom they are not living, provided the parties can agree to some flexible arrangements for the children. It is more likely, that of the two parents, the mother would facilitate such flexible arrangements to meet the children’s needs.
In our view, the challenge posed by the father by casting Order 4 as a relocation order is misconceived. The order does not permit the mother to relocate the children from their present residence, but merely restrains the mother from taking that step for 12 months. Further, Order 4 must be read together with Order 6, which provides that the children are to spend alternate weekends during the school term with their father and Order 19, which provides that neither parent shall change the children’s place of residence without giving the other parent 42 days’ written notice of that intention. It was agreed that there was no evidence before her Honour that the mother did propose to move the children away from their present location, and, it could be argued that there was no need to make the injunction. However, Order 4 not being an order to relocate, none of the asserted errors of reasoning or principle apply.
This ground will fail.
CONCLUSION AND COSTS
Thus the appeal will be dismissed.
In the event that the appeal failed, the mother sought an order that the father pay her costs of and incidental to the appeal and that order was not opposed. Thus we will order the father to pay the mother’s costs fixed in the sum of $5,896.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Watts. Associate:
Dated: 11 February 2021
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