Boyce & Boyce
[2015] FamCAFC 60
•22 April 2015
FAMILY COURT OF AUSTRALIA
| BOYCE & BOYCE | [2015] FamCAFC 60 |
| FAMILY LAW – APPLICATION IN AN APPEAL – TRANSCRIPT – Where leave is granted for the appeal to be heard without the requirement to include all transcripts of the trial proceedings in the appeal books. FAMILY LAW – APPEAL – CHILDREN – Appeal of an order for sole parental responsibility – Where the trial judge made a finding of family violence – Pursuant to s 61DA(2), where a finding of family violence is made the presumption of equal shared parental responsibility does not apply – Where it is found that the parents are unable to communicate – Where the order for time a child would spend with the father is appealed – Where s 65DAA is not activated and the Court is to make such parenting orders as it thinks proper under s 65D – Where it is found that the trial judge’s Reasons for Judgment adequately support the conclusion reached – Appeal dismissed. |
| Family Law Act 1975 (Cth) |
| Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621 |
| APPELLANT: | Mr Boyce |
| RESPONDENT: | Ms Boyce |
| FILE NUMBER: | PAC | 5761 | of | 2010 |
| APPEAL NUMBER: | EA | 159 | of | 2013 |
| DATE DELIVERED: | 22 April 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ryan and Kent JJ |
| HEARING DATE: | 3 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 1689 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
On the application in an appeal filed 29 May 2014, leave be granted to the appellant to dispense with the requirement to include the transcript of 11 and 12 February 2013 and 1 July 2013 in the Appeal Books.
That the appeal be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boyce & Boyce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 159 of 2013
File Number: PAC 5761 of 2010
| Mr Boyce |
Appellant
And
| Ms Boyce |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Amended Notice of Appeal filed on 15 May 2014 (leave to amend was not opposed and was granted at the hearing of the appeal) Mr Boyce (“the father”) appeals from final parenting orders made by Judge Dunkley in the Federal Circuit Court on 25 October 2013.
By an Application in an Appeal filed on 29 May 2014 the father sought to have the appeal heard and determined without transcripts of the trial proceedings on 11 and 12 February 2013 and 1 July 2013. Ms Boyce (“the mother”) did not oppose that application and on the basis that we were satisfied that the appeal could be properly and appropriately heard and determined on this basis, the father’s application was granted, and we indicated that an order to that effect would be made. So that it is clear, transcripts were provided for 19, 20 and most of 21 June 2013.
The trial judge ordered that the mother have sole parental responsibility for the child Y born on in October 1996 and the child R born in June 2000 (Order (2)) and that the child Z spend time with the father:
a)Each alternate Saturday from 10.00 am to 5.00 pm;
b)At such other times and days as the parties agree (Order (5)).
Taken from his Amended Notice of Appeal and his written submissions filed in support the father, who represented himself on the appeal, centrally contends that the trial judge should have made an order for the parents to have equal shared parental responsibility for both children; and that the order for Z’s time with the father should have provided for more expansive time. However, at the hearing of the appeal, given that Y was then soon to turn eighteen (18) years of age, the father confirmed that he was no longer pursuing his appeal in relation to orders concerning Y.
The mother also was self-represented on the appeal. She did not file any written summary of argument but confirmed on the hearing before us that she opposed the appeal.
The Independent Children’s Lawyer appointed to independently represent the interests of the children in the proceedings did not participate in the appeal.
Brief background
The father (born in 1968) and the mother (born in 1972) married in 1993. Their oldest son, who ultimately was not the subject of these proceedings, was born in 1995; and as already noted Y was born in 1996 and Z in 2000. As at the date of the final orders made below Y was 17 years of age and Z was aged 13 years.
The parents separated on a final basis in September 2010. On 2 December 2010 the father instituted parenting proceedings in the then Federal Magistrates Court (as it then was) which proceeded to an interim hearing on 2 May 2011. The interim orders then made provided for the parents to have equal shared parental responsibility for all three children; for the two older children to live with each parent on a week about basis; and for the child Z to live with the mother and spend four overnight periods per fortnight with the father as well as half school holiday periods.
Notwithstanding those interim orders, in August 2012 the two older children ceased spending time with the father (the oldest child was then aged 17 years and Y was aged almost 16 years); and in September 2012 (when she was 12 years of age) so too did Z.
As at the time the trial commenced on 11 February 2013 Z had not spent time with the father since September 2012 except for one occasion on 27 November 2012 when the father collected her from school and spent some time that day with her.
It was uncontroversial that Z said she did not want to spend time with the father.
Grounds of appeal
The father did not seek to supplement his written summary of argument in support of the appeal with any oral argument. It is convenient to deal with grounds 1 and 2 (as amended before us) together as both of these grounds address challenges to the trial judge’s order that the mother have sole parental responsibility for the child Z and ground 2 was expressed to be advanced in the alternative to ground 1.
Ground 1: The trial judge erred in principle in determining that the respondent should have sole parental responsibility for the child Z
Ground 2: The trial judge erred in principle by failing to provide adequate Reasons for his decision in relation to parental responsibility
The trial judge identified early in his Reasons for Judgment, under the heading “Issues to be determined” as the first of three issues there identified “what order for parental responsibility is to be made”.
After outlining and summarising relevant evidence the trial judge addressed this issue at [122] to [131] of his Reasons as follows:
122.The mother raises the issue of the father having perpetrated verbal and psychological abuse upon her. The evidence fell short of proving this.
123.She sought to prove the father engaged in coercive and controlling family violence. The only evidence she lead [sic] about this was an incident recorded in paragraph 9 of her Affidavit. However, she has not frankly and accurately recorded this incident. She did not record she initiated telephone contact with the father. Neither did she record that she told the father of her location. Finally, she did not record that she told the father she was “thinking of driving under a truck”. In leaving out this detail the mother intentionally sought to mislead.
124.The father in going to her location and removing her keys from her car’s ignition, in the context of the above, acted in a reasonable way. In the above context his action is not an example of coercive and controlling family violence.
125.I cannot be satisfied, given the mothers [sic] inaccurate reporting of the above incident, that she is a reliable witness in any respect relating to allegations of family violence that are not otherwise corroborated.
126.Such corroboration is provided in Exhibit “V”. The father admits to the intake officer at … Hospital on 15 October 2009, “that he is very controlling. He does not let the wife out to do the shopping, has no access to their account. [The father] feels very insecure in their relationship…”.
127.I am therefore satisfied in the last 12 to 15 months of their relationship the father did become controlling of the mother.
128.The father is employed in a stressful occupation that is not without danger. I accept that on many occasions he came home from work stressed and exhibited verbal anger. Undoubtedly, this would have been distressing for the children and the mother. The children, especially [Y], in their reports to the Family Consultant articulate they had difficulties in coping with the father because of this. However, this behaviour falls short of being family violence focussed on the mother or the children.
129.Since separation, the parties have been unable to communicate. They do not talk to each other. Given [Z’s] age, 13 years, and her [medical condition], medical decisions that have important consequences need to be made for her. The parents are unable to jointly do this.
130.For the reasons set out above an order for the mother to have sole responsibility for [Z] will be made.
131.Given [Y’s] age (he turned 17 [in] October 2013) the issue of sole or joint parental responsibility is not so crucial. There may, however, have to be decisions made about his educational future and so, for the same reasons, the mother is to have sole parental responsibility for [Y].
Whilst it is clear that his Honour found the mother not to be a reliable witness “in any aspect relating to allegations of family violence that are not otherwise corroborated” (Reasons [125]) it is also clear that his Honour made a finding as to “such corroboration” in [126] of the Reasons. Read in context, [127] of the Reasons contains the relevant conclusion and finding reached by his Honour.
The father submits: “[f]or reasons which he articulated (Reasons [126]), the trial Judge was “satisfied that in the last 12 to 15 months of their relationship the (appellant) did become controlling” of the respondent (Reasons [127]) but that the controlling behaviour to which he then referred “falls short of being family violence focussed on the wife or the children” (Reasons [128]).”
We consider that this submission misconstrues the Reasons by transposing the conclusion expressed by his Honour in [128] of the Reasons when his Honour was addressing the topic there discussed to the earlier, and separate, topic addressed in [126] and [127] of the Reasons. That is, at [126] of the Reasons his Honour addresses the specific topic of control and the father’s admission to being “very controlling” of the wife; not allowing the wife “out to do the shopping” nor to have access to “their account”. Obviously enough, the conduct of the father addressed in [128] about the father coming home from work “stressed and exhibited verbal anger” is an entirely distinct topic. In short, the conclusion about that topic as expressed in the Reasons at [128] has no connection with the conduct and conclusion addressed in [126] and [127] respectively.
It is not correct, as the father’s written submissions assert, that the trial judge’s Reasons on the topic of family violence were confined “to paras 122 to 129” of the Reasons. Apart from the additional paragraphs set out above the trial judge returned to this topic at [157] and [159] of the Reasons as follows:
157.The father disclosed controlling behaviour towards the mother, as earlier referred to. His attempts to distinguish or explain away this behaviour does him no credit and raises concerns he has not fully dealt with this issue.
…
159.There are no existing family violence orders notwithstanding there was family violence during the relationship. (Emphasis added)
Plainly, his Honour made a finding of family violence by reference to the father’s own admission as to the nature of his own conduct, as set out in the Reasons at [126] and [127] and referred to in [159].
It is important to note then, particularly in light of the feature that there is a challenge to the adequacy of the trial judge’s Reasons, the relevant terms of s 61DA of the Family Law Act 1975 (Cth) (“the Act”) as follows:
61DAPresumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The effect of s 61DA(2) is that where a finding of family violence is made the presumption does not apply. That is, it is not the case that a finding of family violence only gives rise to a discretion to be exercised as to whether or not the presumption prescribed by the section is to be applied, rather, that finding of itself activates s 61DA(2) and by its operation the presumption does not apply.
It thus followed, as a matter of law, as a consequence of the findings the trial judge made as to family violence that the presumption did not apply because of s 61DA(2) and there was then no scope for s 61DA(4) to operate. That is, the presumption not applying by operation of s 61DA(2) there was no need to consider rebuttal of the presumption under s 61DA(4). The father’s associated challenge as to the adequacy of the trial judge’s Reasons fails for this reason. It is trite that critical to the need for, and to the requisite content of, reasons is the context and purpose of the judicial act performed. The trial judge was not exercising a discretion as to whether or not to apply the s 61DA presumption. As a matter of law the presumption did not apply.
The father’s written submissions proceed on the assumption that s 61DA(4) fell for consideration when, for the reasons outlined, it did not. Of course the fact that the presumption did not apply by operation of s 61DA(2) does not mean that an order for the parents to have equal shared parental responsibility could not be considered, or made, in the best interests of the children. We will therefore address the father’s challenges in that context.
The father submits:
It is submitted that the sole reason for the trial judge’s decision with respect to parental responsibility was the inability of the parties to communicate, which was not a statutory basis for not applying the presumption, or rebutting its operation if it did apply…
The trial judge dealt with the topic of the inability of the parents to communicate in a number of paragraphs of the Reasons as follows:
45.He (a reference to the father) agreed with the proposition, put to him during cross examination by the mother’s Counsel, that “communication between [the mother] and you has broken down completely”. The father then said “I can’t talk to [the mother] and she doesn’t talk to me”.
…
129.Since separation, the parties have been unable to communicate. They do not talk to each other. Given [Z’s] age, 13 years, and her [medical condition], medical decisions that have important consequences need to be made for her. The parents are unable to jointly do this.
130.For the reasons set out above an order for the mother to have sole responsibility for [Z] will be made.
131.Given [Y’s] age (he turned 17 [in] October 2013) the issue of sole or joint parental responsibility is not so crucial. There may, however, have to be decisions made about his educational future and so, for the same reasons, the mother is to have sole parental responsibility for [Y].
…
146.The parents, since separation, have not communicated about [Z] except when they agreed to implement a parenting plan, negotiated through mediation. Apart from that, they have not communicated with each other.
Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility. Subsection (3) specifies the requirements of each person sharing parental responsibility under a parenting order in the following terms:
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
As already noted the parents finally separated in September 2010, and the findings concerning the parents’ inability to communicate “since separation” are informed by that context.
Against the background of the s 65DAC(3) requirements, the findings the trial judge made as to the longstanding and complete inability of the parents to communicate; that in the context of Z’s medical condition there would be a need for “medical decisions that have important consequences” to be made for her and the parents “are unable to jointly do this” (Reasons [129]); the conclusion reached by the trial judge as to the mother having sole parental responsibility was inexorable.
Given these findings of fact specific to the issue of parental responsibility (which findings are not challenged on appeal) findings one way or the other about other s 60CC “best interest” considerations could not alter the conclusion reached by the trial judge, or the bases for that conclusion, as to the allocation of parental responsibility. It was therefore unnecessary for the trial judge to specifically traverse any of those considerations before expressing the conclusion that his Honour reached concerning the allocation of parental responsibility.
In summary, we reject the father’s submission that the trial judge’s determination of the issue of parental responsibility did not rely upon a finding of family violence. In having made a specific finding of family violence it followed, by operation of s 61DA(2) that the presumption did not apply. It was unnecessary for the trial judge to specifically articulate in the Reasons for Judgment the operation of s 61DA(2) given its operation as a matter of law upon the findings made. What was necessary was for the trial judge to state his conclusions upon the issue of family violence and that his Honour did.
Thus it is not the position, as the father’s written submissions contend, that his Honour failed to apply the presumption, when he ought to have applied it, or that his Honour rebutted the presumption, when he ought not have so done. The presumption did not apply.
His Honour articulated the reasons for his conclusion for the order made as to parental responsibility. The findings made to support that conclusion (which are not challenged on this appeal) adequately support the conclusion reached.
We find that no error attended his Honour’s determination of the issue of parental responsibility. We find that his Honour adequately explained his reasons for making the order his Honour made giving effect to that determination. We therefore find no merit in grounds 1 or 2.
It is convenient to deal with grounds 3 and 4 of the appeal together as both articulate challenges in relation to the trial judge’s determination of the order for the time Z was to spend with the father.
Ground 3: The trial judge’s decision in relation to the time the child Z would spend with the appellant was contrary to and unsupported by the trial judge’s finding of fact, and “plainly wrong”.
Ground 4: The trial judge erred in principle by failing to provide adequate reasons for his determination of the time which the child Z would spend with the appellant.
As his Honour did not propose to make a parenting order providing for the parents to have equal shared parental responsibility, s 65DAA was not activated and s 65D enabled the Court to make such parenting orders as thought proper. That is, his Honour was not bound to consider the respective considerations expressed in s 65DAA.
As is emphasised in the father’s written submissions the trial judge made several significant findings which were adverse to the mother concerning her malevolent conduct in undermining the relationship between Z and the father. (Reasons [147] to [150]).
However, the father’s submission that “… in the light of his adverse findings of fact with respect to the respondent, the trial Judge’s order rewarded the respondent for “extremely irresponsible” conduct, constituting “one of the worst examples of bad parenting” (Reasons [149])” (emphasis added) implies, wrongly, that notions of reward or punishment of a parent are relevant to, or an end to be achieved, in determining the parenting orders to be made.
The trial judge correctly identified that reward or punishment of a parent, as an end in itself, has no place in the determination of parenting orders when his Honour said (at [167] of the Reasons):
167.The father should not see these orders as being the Court approving of the mother’s bad parenting behaviour. It is not and does not. It does, however, recognise the tenuousness of the existing father/daughter relationship. Much effort, with professional assistance at the Keeping Contact Programme, will be necessary to maximise the potential to repair the father/daughter relationship.
Orders (9) and (10) of the orders made by the trial judge obliged both parents to engage with the Keeping Contact Programme and for the mother to ensure that Z attended all appointments made for the child within that program for as long as its convenor required.
As the Reasons of the trial judge reflect, there were a number of important dynamics in operation in determining the orders for Z’s time with the father.
As already noted, Z had ceased spending time with the father in September 2012. At [56] of the Reasons the trial judge recorded of the father’s evidence in cross-examination:
56.When answering questions from the Independent Children’s Lawyer, the father said “September 2012 was when my relationship with [Z] was becoming a bit more difficult because orders were being breached”. He said that at about this time [Z] started to talk to him about Court and began saying “I don’t have to follow the orders, they are only guides”. He said that she began to say “I don’t have to come. Mum has said”.
The family consultant Ms K interviewed Z three times in the period from 22 March 2011 to 12 October 2012 and Ms K’s Memorandum to the Court dated 18 April 2011; her family report released on 22 February 2012 and her family report dated 24 October 2012 were in evidence. The family consultant also gave oral evidence at the trial.
The trial judge made extensive references to the evidence of the family consultant in [98] to [121] of the Reasons, which references included these:
109.With respect to [Z’s] articulated views, the Consultant said during her cross-examination “I can’t say [Z’s] articulated views should be dismissed or were not her own views. Similarly, I cannot say that [Z’s] views were not manufactured by her mother”. When asked by the father “Does [Z] fully understand the implication of her views”? She answered “No”.
110.When answering a question about requiring [Z] to spend time with her father, the Consultant said “There are several possibilities. She might refuse. She might run away. She might go along with it. She might find it difficult. She might go well”. The Consultant thought the last possibility “of going well” was the least likely outcome.
111.The Consultant was “concerned about the father’s capacity to repair his relationship with [Z]”.
…
115.Ms [K] concluded, in her second report, with the following recommendation:
It is recommended that significant consideration be given to [Z’s] consistently articulated view that she felt considerable discomfort spending time in the care of her father (paragraph 51).
…
117.Ms [K] was of the view that concurrent engagement with the Keeping Contact programme with daytime periods of time between [Z] and the father with changeovers at a Contact Centre was a possible outcome given the length of time since [Z] had spent time with her father.
The trial judge recorded his acceptance of the family consultant’s opinion that “both parents have much to offer [Z]” (Reasons [134]) and found that Z “will benefit from a relationship with her father” (Reasons [135]).
In a clear reference to the family consultant’s evidence, particularly including [110] of the Reasons as set out above as to the possible responses of Z to an order that she spend time with the father (contrary to the child’s expressed views) in terms as sought by the father, the trial judge made these findings:
165.[Z], at this time, is likely to be resistant to spending the significant and substantial periods of time with her father that he seeks. She has never lived in an equal time arrangement. Emotionally she could not cope with an equal time arrangement, nor could she emotionally cope with a significant and substantial time arrangement.
166.To order such periods run the significant risk of causing [Z] to be resistant or run away. A risk identified by the Family Consultant as being a real risk. If [Z] were to run away from her father this risks destroying any chance of a relationship between [Z] and her father.
167.The father should not see these orders as being the Court approving of the mother’s bad parenting behaviour. It is not and does not. It does, however, recognise the tenuousness of the existing father/daughter relationship. Much effort, with professional assistance at the Keeping Contact Programme, will be necessary to maximise the potential to repair the father/daughter relationship.
Having regard to the trial judge’s unchallenged findings of fact about Z’s desire not to spend a lot of time away from her mother (Reasons [142]); the fact that Z’s relationship with the father had become disrupted and in need of repair (Reasons [143]); the fact that Z had never met the father’s new partner nor her children who were living with the father and Z’s reaction to them was thus unknown (Reasons [145]); the trial judge focused upon orders for time that had the greatest possibility of success. At [152] of the Reasons the trial judge recorded:
152.The Independent Children’s Lawyer seeks orders for [Z] to spend time with her father. This will be a change from [Z’s] immediate experience. It will be a change not immediately welcomed by [Z]. The length of period proposed will not negatively impact [Z’s] close relationships with her mother. Such time will provide the highest possibility of the re-establishment of [Z’s] relationship with her father, and will give [Z] the opportunity to spend time with other members of the paternal family.
Thereafter, as already noted, the trial judge made the findings in [165] to [167] of the Reasons outlined above.
We are not persuaded that in exercising the discretion to determine orders for the time Z should spend with the father, the trial judge made any error enlivening appellate intervention. (House v The King (1936) 55 CLR 502; Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 627 per Kitto J; and CDJ v VAJ (1999) 197 CLR 172). His Honour carefully balanced Z’s need to have a relationship with the father against the risks concerning the child’s possible adverse response to an order for time taking into account the other relevant circumstances of the case as his Honour carefully identified and addressed. We consider that his Honour’s Reasons adequately illuminated the path by which his Honour reached his ultimate conclusion as to the orders for time made, in association with orders (9) and (10) earlier discussed.
We therefore find no merit in grounds 3 or 4 of the appeal.
As we find no merit in any of the grounds of appeal, the appeal is to be dismissed. Neither party sought any order as to costs upon the outcome of the appeal and it is appropriate to order that there be no order as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the Reasons for Judgment of the Honourable Full Court (Bryant CJ, Ryan and Kent JJ) delivered on 22 April 2015.
Associate:
Date: 22 April 2015
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