Bunning and Bunning

[2007] FamCA 1283

FAMILY COURT OF AUSTRALIA

BUNNING & BUNNING [2007] FamCA 1283

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – With whom a child lives – Equal shared care week-about arrangement sought by father at trial – At trial the mother sought that the child live with her for nine days every fortnight with the balance to be spent with the father – Federal Magistrate gave orders as proposed by the mother – Whether findings of fact by the Federal Magistrate were either wrong, contrary to the evidence or against the weight of the evidence – Appellant argued that the Federal Magistrate did not properly assess and weigh the wishes of the child – Argued that Federal Magistrate wrongly drew inferences from a number of incidents in finding that the father had not fulfilled his responsibility as a parent to facilitate the mother spending time with and communicating with the child – Whether a failure to give adequate reasons

Family Law Act 1975 (Cth), s 117(2A)

G v H (1994) 181 CLR 387
Harrison and Woollard (1995) FLC 92-598
R and R: Children’s Wishes (2000) 25 Fam LR 712

APPELLANT: MR BUNNING

RESPONDENT: MRS BUNNING

FILE NUMBER: BRC 68 Of 2007

APPEAL NUMBER: NA 44 Of 2007

DATE DELIVERED: 1 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 16 October 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 26 July 2007

LOWER COURT MNC: [2007] FMCAfam 635

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hackett

SOLICITOR FOR THE APPELLANT: Evans & Company Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hamwood

SOLICITOR FOR THE RESPONDENT: SJP Law

Orders

1. That the appeal be dismissed.

2. That the husband pay the wife’s costs of an incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Warnick delivered this day will for all publication and reporting purposes be referred to as Bunning & Bunning.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 44 of 2007

File Number: BRC 68 of 2007

MR BUNNING

Appellant

And

MRS BUNNING

Respondent

REASONS FOR JUDGMENT

1. At the trial of issues about the parenting arrangements for their child [X], then nearly eight years of age, the father [Mr Bunning] sought an equal caring arrangement of week about.  The mother, [Mrs Bunning], sought that [X] live with her nine days out of each fortnight and with the father for the balance of that period.

2. On 26 June 2007, for reasons he gave ex tempore, Burnett FM outlined his intention to make orders as proposed by the mother.  The orders were ultimately made in chambers on 18 July 2007.  This is the father’s appeal against those orders.

3. There was agreement between counsel for each party that “except to the extent that the formal grounds are reflected in the outline of argument, they are abandoned by the appellant”.

4. Thus, the grounds became:

   16.… that the learned Magistrate’s discretion miscarried and that some of the learned Magistrate’s relevant findings of fact are either:-

   (a)   wrong, or

   (b)  contrary to the evidence which he has not had regard to in his Reasons for Judgment and does not appear to have rejected, or

   (c)  against the weight of the evidence.

   17.The learned Magistrate also failed to give adequate reasons on the basis articulated below.

5. I will return to the grounds of appeal after a short background.

Background

1. The father is 48 years of age, the mother 44 years of age.  The parties commenced a relationship in 1993 and married in April 1994.  [X] was born on …August 1999.  Separation occurred on 8 December 2006 when, without telling the father beforehand, the mother left the matrimonial home with [X].  However, as recorded by Mr [B], a social worker who prepared a Family Report in early February 2007, following the mother’s departure (the “fait accompli” as he described it):

   8.        … in light of the fait accompli there needed to be negotiations regarding arrangements for [X].  The upshot was an agreement dated 14 December 2006 whereby [X] was to spend time with his father around the Christmas period, and on an on-going basis in the New Year six nights per fortnight (refer APPENDIX 3).

   9.        [Mr Bunning] informs that within a short while of [X] coming to spend time with him, pursuant to the agreement of 14 December, [X] became very emotional and began pouring out how traumatic the separation had been, including [X] reportedly having to be forcibly dragged out of the house.  Over and above that [X] outlined a pattern of drink-driving and early morning consumption of alcohol on his mother’s part, which left the father with the inescapable conclusion that he needed to retain possession of his son.

   10.      There followed a series of supervised contacts at the insistence of the father with accompanying dramatic events such as the Police being called and [X] physically attacking his mother regarding her refusal to leave the two dogs with [X] at the marital home. …

2. The mother commenced proceedings in the Federal Magistrates Court in early January 2007.

3. On 12 March 2007 pending trial, a shared care arrangement was put in place based upon the report of Mr [B].

The grounds of appeal

1. Challenges to findings of fact

1. The primary allegations were:

   ·That the Magistrate did not properly assess and weigh the wishes of the child; and

   ·That in finding that the father had not fulfilled his responsibility as a parent to facilitate the mother spending time with the child and communicating with the child, the learned Magistrate wrongly drew inferences from a number of incidents.

2. A theme running through the challenges to findings by Burnett FM was that the learned Magistrate had before him the evidence of two social workers.  Mr [B] saw the parents and the child on various occasions and in varying circumstances in the last week or so of January 2007 and as seen, his report issued soon after.  Mr Hackett placed heavy emphasis on Mr [B]’s recommendation that there be “a shared care 50:50 arrangement” for [X].

3. A second report, dated 15 June 2007, was prepared by [Ms J], a social worker.  She recommended that the mother provide the bulk of [X]’s care, for nine days per fortnight.  Mr Hackett compared the time which Mr [B], from the face of his report, had spent with the family with that spent by Ms [J], the implication being that Mr [B]’s enquiry was far more extensive.

4. On numerous occasions in his written submissions, Mr Hackett pointed out that Mr [B] had not been required for cross-examination.  Further, Mr Hackett complained that “the reasons for judgment do not address the evidence contained in the [B] report at all”.  These submissions were clearly intended to support the argument that Burnett FM had overlooked the significance of Mr [B]’s opinions.  However, Mr Hackett stopped short of contending that the father’s case at trial had been that the report of Mr [B] and opinions he expressed therein ought be preferred to the report and other evidence of Ms [J].

5. Indeed, the circumstances in relation to the evidence of the social workers at trial seem clearly to have been much more in line with those described by Mr Hamwood, counsel for the mother at trial and on appeal.

6. That is, the recommendations of Mr [B] related to an interim arrangement and that, in Mr [B]’s words:

   60.A sufficiently lengthy interim period of six months or more ought to enable measurement of the efficacy of such an arrangement. …

7. Ms [J]’s report provided that review and was the up-to-date report, also directed to the longer term arrangements with which Burnett FM was concerned.  Ms [J] was required for cross-examination; Mr [B] was not.

8. There are other reasons why Mr Hackett’s argument loses strength.  Not only was Mr [B]’s recommendation an interim one, but also, rather than being one that saw a need for the father’s involvement with the child to be increased to equal to that of the mother, the recommendation came against the background earlier indicated, of the father retaining the child and endeavouring to severely restrict the mother’s involvement.  Therefore, Mr [B]’s recommendation was that the mother’s involvement be substantially increased.

9. Moreover, a perusal of Mr [B]’s report by no means supports the proposition that had the learned Magistrate relied upon it, this would have advantaged the father.

10. Pertinent observations by Mr [B] in relation to the father and which might also bear upon the weight that might have been given to the child’s wishes, include:

    57.What most concerns the writer in this matter is the dogmatic, relentless approach of the father which clearly could lead to the alienation of the mother within a very short time.  By his own narrative, the father has unduly involved [X] in adult issues, in a manner which stirs up his son against the mother.  Furthermore, the father has been promoting, inadvertently or otherwise, a sense of his [the father’s] omnipotence in matters relating to [X]. …

    58.The mother alleges that there has been a domination by the father within the marriage, within the family.  In light of the presentation of the parents over a two day period, it is fairly easy to accept the mother’s assertion. …

    …

    60.[X] has been invested with a lot of adult-like abilities and perceptions by his father. …

    62.… At the end of the day the father’s intractability may well be the key factor, but in the interim it is felt that [X] needs to be given the opportunity to live with both parents and potentially settle into a routine to which he can accommodate himself in the longer term.

11. Insofar as the submissions for the father rely upon the learned Magistrate’s treatment of the evidence of Mr [B], in my view no appealable error is established.

12. Turning more particularly to Burnett FM’s treatment of the wishes of the child, the learned Magistrate dealt with the topic “Views of the child” in one paragraph:

    16.The first of the additional considerations are any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child's views.  Again, in this case, having regard to the age of the child, the child is far too young, in my view, to be expressing any view which would be meaningful in the present context, and it is a matter that does not weigh in favour of either parties' application.

13. Mr Hackett asserted that an analysis of the evidence revealed that the view of the child was to spend equal time with his parents and that the last clause in paragraph 16, quoted above, was inconsistent with that evidence.  However, the sentence, taken as a whole, bears the interpretation that, because the child’s views were not meaningful, they did not weigh in favour of either party’s application.  Mr Hackett may have had this interpretation in mind when he conceded:

    22.This error on the part of the learned Magistrate may not be overly material in the scheme of this appeal, as, he did not find to the contrary, he merely declined to consider this evidence because of the age of the child. …

14. In any event, Mr Hamwood points out, correctly in my view, that in the paragraphs of Mr [B]’s report to which Mr Hackett referred (paragraphs 37-47) [X]’s wishes are not expressed in terms as put by Mr Hackett.  Mr [B] did not discuss the child’s wishes individually with the child.

15. Mr Hackett further submitted that, apart from the matters referred to in his written summary of argument, the learned Magistrate’s treatment of the child’s wishes was inadequate.  He referred to discussion by the Full Court of this Court in R and R: Children’s Wishes (2000) 25 Fam LR 712. He drew the court’s attention to reference in that discussion to what was said in Harrison and Woollard (1995) FLC 92-598 where Fogarty and Kay JJ said (at FLC 81,944):

    The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.  There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this court but across the wider spectrum of society generally.

16. The Court in R and R (supra) went on to say:

    44.It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.

17. However, their Honours continued:

    47.As we understand it, there was evidence (AB 353) which her Honour accepted that their expressed wishes were to live with the husband. However she took the view that those wishes should be tempered by what her Honour considered to be the entirely understandable reason that they wanted to spend more time with him, given the circumstances of their past separation from him. We think that this emerges clearly from the passage from her Honour's judgment containing the above quoted statement that appears earlier in these reasons and that it was perfectly open for her Honour to take this view on the evidence before her as hereafter appears.

18. While Burnett FM’s discussion of the wishes of the child is contained in but two sentences, if one looks to the evidence to see what else the Federal Magistrate might have been expected to discuss, one does not find anything which would have encouraged the giving of greater weight to those wishes than that which he accorded them.  Indeed, the evidence supports treating the wishes with caution.  Ms [J] pointed to the child’s acute consciousness of conflict.  The passages of Mr [B]’s evidence earlier quoted and, as shortly discussed, the findings of Burnett FM about the father undermining the mother’s stature in the eyes of the child, are all factors that tended to lessen the weight to be placed on the child’s wishes, and likely would have done so even was he of a more mature age.

19. I see no error in Burnett FM’s treatment of the child’s wishes.

20. Turning then to the series of findings that led the Federal Magistrate to the conclusion that the father had failed to facilitate the relationship between mother and child, Burnett FM said of these incidents that they:

    20.…suggested to me that there was some attempt by the father to undermine the mother’s authority and, if you like, her stature within the eyes of the child…

    and

    31.… lead me to conclude that, to some extent, the father has not fulfilled his responsibilities as a parent to facilitate the mother in her spending time with the child and communicating with the child. Whether, as I say, he did so intentionally or otherwise.  To my mind it is a matter that certainly favours the mother's application and would suggest that it would not be in the best interests of the child to have an equal time order made at this time.

21. Mr Hackett attacked the Federal Magistrate’s dealing with the evidence about the matters or incidents from which the learned Magistrate made the deductions quoted above.

22. An argument that ran across Mr Hackett’s attack in respect of more than one incident was that the father was not cross-examined about his version or explanation of the particular incidents.  However, as Mr Hackett himself points out in respect of a number of aspects of the incidents, contests of evidence were not resolved by findings.  The flaw in this argument is that the learned Magistrate recognised this, drawing his conclusions from areas of the evidence that did not require resolution of conflicting material.

23. A second argument that was common to the attack in respect of more than one incident was that the Federal Magistrate should have drawn a particular conclusion from it.  Of course, for such an argument to succeed the particular conclusion must be the only one to have been drawn.

24. In relation to the “BMX bike incident”, the learned Magistrate said:

    21.For instance, in relation to the BMX bike, the evidence broadly was that the mother provided the child with a BMX bike, and it would seem that shortly after that, [X] returned home to tell his father that he had received the bike and a little after that an e-mail message was sent to the mother, attaching a photocopy of an article out of a local newspaper entitled "Town Mourns its Little Champion" which was an article about a child who was killed in a mini-bike tragedy at a show.

    22.It was noted by the mother that when [X] came back to the house after that event, he showed no interest in his motorcycle.  Now, [X] has said to have referred to having seen the article that his father sent to the mother and is reported to have said to the mother words to the effect of, "You can get killed on a mini-bike."  It suggests to me that the father's involvement in that particular event is a matter which was brought by him to the child's attention and it was in relation to a matter which, obviously concerned the mother, and went beyond simply expressing a view about care that needed to be taken, but rather went to undermining, to some extent, an issue that was of some significance between the mother and son, particularly in relation to the motorcycle and, clearly, interfered with her capacity to spend time in a meaningful way with her son in relation to a matter that was of common interest, and also impacted upon communication in that regard.

25. Mr Hackett suggested that the incident:

    …should only have been viewed as the means by which the father sought to educate both the mother and child on the dangers of not using safety gear.

26. As Brennan and McHugh JJ said in G v H (1994) 181 CLR 387 at 390:

    …An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence on some other fact or facts.  The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. …

27. Even had it been open to Burnett FM to view the incident in that way, as long as it was also open to the learned Magistrate to view the incident as he did, and I am satisfied that it was, no appealable error has occurred.

28. As to the “Horse incident”, Burnett FM said:

    23.The next matter I mention was the matter of a horse.  Again, another matter which I think impacted upon the mother's capacity to spend time and concerning which the father could have facilitated the spending time with the mother in relation to these matters, bearing in mind that these are matters that arose during the course, or in the lead-up to this trial.

    24.The mother, in this instance, sought to arrange for a horse which would become something in the nature of a pet, however, it seems, and again it is challenged, it was related by the mother in her evidence that [X] appeared to be fairly excited about the idea of having the animal.  She heard [X] on the phone to his father.  She said that [X] was really excited about telling his father about the horses.  She then heard [X] say - and of course this is all a one way conversation because she is listening to [X] on the telephone - "Why not?"  And subsequently:

    “What do you mean, we don't know what our plans are?  I know what my plan is and that I'm staying here.”

    25.And instead she noted [X] came away from the phone being disappointed saying:

    “Dad says that we can't have horses.”

    The inference being, as it came out later in evidence, that one could not have horses because there was no certainty that the child was going to remain living in at least the vicinity of the horses in question.

    26.Again, that conduct suggested to me, on the part of the father, that there was an attempt, whether it be intentional or otherwise, to undermine to some extent the enjoyment of spending time by the mother and communicating by the mother with the child.  It struck me, again, that those two matters particularly, indicated that there was a failure on the father's part to facilitate the mother's development of her relationship with the child.

1. Again, it seems to me that the inference was available.  The learned Magistrate was not drawing the inference from each individual incident in isolation from the other evidence.  In this case there was considerable evidence about the father’s approach to the child’s relationship with the mother.

2. As to the incident described as “Alcohol use by the mother” the learned Magistrate said:

   27.The other, or the third matter which I refer to is a matter of the alcohol.  This matter, again, without rehearsing all the facts in great detail, is another instance where it seemed to me that the father sought unnecessarily to undermine the mother.  I say that particularly in this case because alcohol was an issue in this case until the trial.  The essence of it being - and there were a number of affidavits directed to this effect, that the mother had an alcohol problem.  Of course when the trial came on and the matter was to be examined at trial, the issue evaporated and it was no longer prosecuted in the sense that the affidavit material suggested it would be.

   28.What I found particularly odd is this:  is that the child, [X], would have any idea at the age of seven or thereabouts as to what the smell of alcohol was.  I must say that it struck me as unusual that a seven year old could, for instance, make an assertion as he is reported to have said, that his mother smelt of alcohol or, for instance, that he said of an orange juice drink that it tastes like alcohol. 

   29.The mother, in her affidavit, for instance, says that she was challenged by the child on one occasion that the orange juice that she was drinking was said to taste like alcohol.  The mother said she assured him that it was orange juice and poured him another glass while he watched.  He drank the glass and said that it tastes like alcohol too, to which she then said he decided that it must be a particular brand of orange juice.

   30.But all up, to my mind, it was a very puzzling piece of evidence before the Court.  Seven-year-olds I think generally have no appreciation of the smell of alcohol and the smell of alcohol, as we know, or those of us who have had experience drinking.  Additionally I think it is one of those things, at least in the Australian community, are fairly well understood, is the smell of alcohol varies depending upon the nature of the alcohol that is consumed.  Wine smells different to beer, it smells different to rum, it smells different to whisky.  So it is a curious thing for a seven-year-old to make an observation that orange juice smells like alcohol, or that he would have been aware of alcohol unless his father had given rise to the issue.  That leads to the other assertion that is made.  That is, that the mother exhibited the indicia of being intoxicated.  It struck me as a trifle odd that a seven-year-old could relate the indicia of intoxication that, for instance, one would commonly hear from practising in the Courts.

3. Mr Hackett correctly submitted that there was no evidence before the learned Magistrate that permitted findings of fact about the capacity of seven-year-olds to identify the smell of alcohol or the indicia of alcohol consumption. However, that is not strictly what the Federal Magistrate did.  Rather he used some impressions he held to gauge the likely genesis of behaviour by the child as described by the father and the mother to reach his significant conclusion that “his father had given rise to the issue.”

4. In my view, that finding was open to the learned Magistrate.  Alternatively, I conclude that, whether or not the Federal Magistrate came to the conclusion he did in respect of this particular incident, would have made no difference to the conclusion that the father had made “some attempt … to undermine the mother’s authority and …her stature within the eyes of the child.”

5. As to the “Christmas incident, Burnett FM said:

   32.The other incident which I wanted to comment upon in this context also was the Christmas incident.  I wanted to separate that for a particular reason.  The Christmas incident occurred at a time when the father had the child living with him.  For reasons that will be developed shortly, when I examine some of the statements made by Ms [J], the Christmas incident was, again, another troubling incident.   In my view on that occasion the father sought to, I will not say abuse, but certainly to over-reach, in terms of his position as the parent, with the control of the child in terms of the way in which the other parent was able to facilitate and her enjoying the spending time in communicating with the child.

   33.I have to say that the view I formed, and although I accept that there is some dispute between the parties, it was not the subject of any cross-examination and there is some dispute on the papers at the margins about the way in which things occurred,  but broadly, I have to say, that it struck me as being, to some extent, trifling and almost demeaning in the way in which Christmas tended to be spent on this particular occasion, in the driveway effectively, because of the over-bearing attitude of the father in relation to the way in which the mother was to enjoy that particular occasion with the child, [X].

6. Mr Hackett’s primary submission about the above reasons was that there was factual dispute untested by cross-examination and therefore it was not open to the Federal Magistrate to select “one side of the story” and use it against the father.  But as seen, Burnett FM accepted:

   …that there is some dispute between the parties, it was not the subject of any cross-examination and there is some dispute on the papers at the margins about the way in which things occurred. …

7. Mr Hackett also referred to a passage in the husband’s affidavit filed 31 May 2007 but in my view nothing in that paragraph prevented the learned Magistrate drawing from the other evidence the broad conclusion expressed.

8. Apart from the incidents discussed, Mr Hackett also challenged the Federal Magistrate’s findings about “Competing parenting styles” and the “Father’s controlling personality”.  Mr Hackett submitted:

   49.      The parents did have different parenting styles.  That is not in dispute.

   …

   56.      There is no doubt that there was a substantial body of evidence to the effect that the father had a strong or controlling personality.

9. Mr Hackett then argued that notwithstanding that evidence, Mr [B] recommended equal time.  I have dealt with any argument based on Mr [B]’s evidence.

10. Otherwise, in respect of the question of different parenting styles, Mr Hackett referred to evidence from supporting witnesses in the father’s case, of favourable views of his parenting and to the absence of comment about these witnesses by the Federal Magistrate.  Not every piece of evidence must be mentioned in reasons.  The depositions in question were not of the nature that called for mention.

11. As to the Federal Magistrate’s conclusions about the father’s controlling personality, Mr Hackett challenged the Federal Magistrate’s use of observations made and conclusions drawn by Ms [J] of and from a particular incident.  About this incident, Burnett FM said:

    55.Ms [J] made the observation that at the time, or following the completion of the interview or thereabouts, it was the end of [X]'s week at his father's home and he was due to transfer into his mother's care at about 2.30.  She made the observation that he, being [X], wanted to go home after the assessment with his mother, and she said:

    “The father was insistent that [X] was to drive back to the [Coast] with him.  The mother had assumed that [X] was going to go back with her.  She noted that when the father refused to allow this [X] became upset and clung to his mother refusing to leave her and pleading with his father to change his mind.”

    She noted:

    “The mother appeared trapped between her own disappointment and the need to sort out something to settle [X].  She vacillated between trying to reason with the father about what she saw as his unfair and unexpected stance and attempting to encourage [X] to go with dad, saying she would collect him as soon as she arrived home.”

    Ms [J] made the observation that it was apparent to her that the mother had no feeling that this would be an issue at the assessment.  I should say that it was obvious that the father had thought so because he had taken legal advice beforehand.

    56.For his part Ms [J] noted:

    “The father spoke over the top of the mother directing her to do what he required and “act responsibly”.  He said it was not safe for [X] to be in the car whilst she was doing distance driving.  He said he'd checked it out with his solicitor because he had pre-empted trouble and it was all settled that [X] would need to go home with him.  In the end the matter was resolved in the father's favour.”

    57.I have to say one would expect that if anybody was ever going to be on their best behaviour and, if you like, to use the colloquialism, putting their best foot forward, it would have been on the occasion when they were in the presence of the family reporter who had been engaged to prepare a report in relation to future parenting orders.

    58.As I say, it is a matter that gave me considerable insight into the personality of the respondent father and, I have to say, it did not leave me feeling particularly enamoured of his capacity to do that which the Act requires him to do, and that is particularly to facilitate the other parent in participating and making decisions about long term issues, spending time with and communicating with the child and, in my view, demonstrated a negative attitude to the child in terms of his parenting responsibilities.

12. Mr Hackett submits that both Ms [J] and Burnett FM overlooked the fact that the court order in place entitled the father to insist on the course that he did.  As well, Mr Hackett argues, there was evidence of the father’s concern at the risks of weariness involved in the mother driving long distances.  That the learned Magistrate did not mention either of these aspects constituted a failure of reasons, Mr Hackett argued.

13. In short, this is another instance in which the inferences that the learned Magistrate drew from the evidence were available.

14. It is clear from the reference to the father having sought legal advice that both Ms [J] and the learned Magistrate had the terms of the operative orders in mind.  Similarly, the father’s “rationale”, that is, his idea that it was not safe for [X] to be in the mother’s car while driving distances is referred to by Ms [J] in a passage quoted by Burnett FM.

15. I discern no appealable error in the Federal Magistrate’s dealing with the evidence of this incident.

16. Finally, as to these complaints, Mr Hackett argued that even if the learned Magistrate was entitled to draw the conclusions he did about, for example, the father’s controlling personality or parenting style, such conclusions had no relevance to a choice between a nine/five fortnightly arrangement and a seven/seven fortnightly arrangement.  In my view, this submission ignores the link between those findings and other conclusions critical to the ultimate decision.  These include:

    40.But it was really, despite that, that the report writer concluded that (and here she was dealing there very much with the child and the parents) the mother's approach to parenting was stronger and more grounded than the father's approach.  It seems to me, that having regard to that sort of evidence, it really is a case where the prospect of the father, or the father's attitude toward the child in that sense, in the sense of his notion of routine, is one which I think is not in his best interests, and to that end the likely effect of any change in the orders, again, militates in favour of something that is less than equal shared time.

    …

    46.…The allegation broadly made is that the father is a controlling individual and that it is his controlling personality that has been the cause of most of the difficulties and is an issue that needs to be considered in terms of the parenting orders that should be made in the case.

    …

    48.Now, it seemed, and it was for instance taken up with the father at trial when he was cross-examination on a number of proposals that were put forward in terms of parenting orders, that there was indeed displayed by him, what could be described as a controlling characteristic.  There was, for instance, a desire on the part of the father to really call the shots as best he could in terms of all sorts of matters, albeit they might only be matters of detail. …

    …

    62.As I say, the overall theme of this section came back to the question of routine and how routine was to be established.  It seems to clear from the report of Ms [J] that spending equal time between two households is not a matter which is going to encourage routine in this case and overall it seemed, having regard to all the matters that I am required to consider, under s.60CC an equal time order is not appropriate, at least in the short term.

Failure to give adequate reasons

1. Apart from suggested failures to give adequate reasons arising as a necessary corollary of the alleged errors so far discussed (none of which have been established), Mr Hackett argued the following points.

2. He submitted that the learned Magistrate, in confining himself to considering nine/five out of fourteen days did not consider any other sharing arrangement, such as eight/six, and therefore was in error.  In his written submissions, Mr Hackett put the argument slightly differently:

   65.The learned Magistrate stated that the competing proposals were each 9/5 out of 14 days, when in fact they were 9/5 and 7/7 as he had earlier recorded in his reasons.

   66.This error of fact clearly affected the way in which the learned Magistrate continued to approach the hearing and dispute and his ultimate judgment.

3. I think there is no substantial doubt that Burnett FM was well aware of the parties’ proposals at trial.  He said:

   4.I should say, just for the record, that the application in its terms was amended from the original application made, particularly on the part of the father, by reason of the original application made by him for relocation which in part appeared to be premised on a nine/five arrangement, or at least an arrangement that involved he being the residential parent.  When it came to trial the father contended for an equal time arrangement, but I have not lost sight of the fact that there was in fact in the papers an acknowledgement by him of a nine/five arrangement as being suitable, and in fact being the preferred option.

   …

   7.… The real question in this case is simply a question of who, if either of the parties should be the principal residential parent, and if not an equal shared arrangement, what orders should be made in relation to spending time with.

   …

   65.In this case the proposals put forward are essentially a nine/five out of 14 living with, spending time with arrangement.  No issues of practicality arise and so I am really only confined to considering that arrangement, although I am permitted, of course, to look at any other arrangements which I think are appropriate, but I am minded to confine myself to the nine/five arrangement which is, I should say by way of an aside, where the parties started when the application commenced with each party maintaining a nine/five in their respective favour.

4. In my view, there is no reason to think that Burnett FM was confused about the parties’ respective positions.  In paragraph 65 of his reasons he was simply indicating why no issues of practicality arose and why he saw no point in addressing other proposals.  It was open to him not to consider other positions in the absence of proposals.

5. Mr Hackett also argued that the learned Magistrate erred in his consideration of whether or not he should order that the parties move to an equal shared care arrangement at a nominated time.  Again, Mr Hackett’s principle submission relied upon Mr [B]’s opinions.  Other than that, he pointed out that Ms [J] had opined that the parties could move towards an equal shared care arrangement in about 12 months.

6. The learned Magistrate said:

   69.The issue I see which perhaps requires resolution is whether I leave a nine/five split in place or whether I simply set up some sort of sunset framework which would bring a 50/50 equal spending time with arrangement into place at some future defined time, perhaps upon the receipt of a favourable report or at a further hearing.

   70.It seemed from Ms [J]’s report and evidence, that if the matter could not be resolved within 12 months then it never would be.  It was submitted on behalf of the mother that I should not make any orders into the future, I should simply leave the orders as they are sought by them with a view to the parties moving toward a 50/50 arrangement on a consensual basis.  The father also made submissions for a moving to a 50/50 arrangement.

   71.The question really became, or as I see it, becomes this:  does the Court need to predict the future or can it depend upon the parties to resolve it with a modicum of goodwill between them.  It struck me that there was significant scope for the development of goodwill.  This litigation, of course, has been hotly contested but despite the contest between the parties, it occurred to me, that there was a genuine desire by both the mother and the father in this case to advance the best interests of [X].

   …

   73.I am not persuaded that it is, in this case, appropriate to insert any sunset provision or to have the matter the subject of later review.  In part my decision in that regard is significantly affected by assessment of the character of both the mother and the father.  I think, as I said earlier, the incident which was reported by Ms [J], having occurred at her rooms on the afternoon of the report, provided me with a lot of insight into the quality of the character of the parties involved.

   74.I think that the submission made on behalf of the mother that to some extent it was, to take the colloquialism, give an inch and he will take a mile is probably a reasonable assessment of the relative strengths of the parties in the relationship.  It seems to me that although, as I say, I am satisfied that both parties are motivated by the very best of intentions for the child, [X], the power, if I can describe it as that, to move toward the 50/50 relationship at an appropriate time progressively over time, as these things will occur, is one that should best be in the hands of the mother, rather than in the hands of the father, and it is certainly not, I think, a case where the Court needs to intervene any further.

   75.I have no doubt that as the child grows up the parties will progress toward a 50/50 relationship.  The child is only seven, nearly eight years of age.  He is in grade 3 at school.  He is the only child of the parents who are in their mid to late forties.  They may not be aware of these things now but they will certainly become aware of these things in the future, that children of that age will start to attend birthday parties; they will start to attend sleepovers; they will play more sport; they will interact more broadly in the community and they will want to do all of these things without any regard to either of their parents.

   …

   77.In light of that, it seems to me pointless and, I think, in fact inappropriate for me to intervene at this time.  All I can say and recommend to the parents is that they listen to their child and, to some extent, they will have to work around him.

7. In my view, the course taken by Burnett FM was well open to him and was adequately explained.

Conclusion

1. As I have found no merit in the arguments on appeal, the appeal should be dismissed.

Costs

1. Costs are sought by the wife and in my view, having regard to the matters set out in s 117(2A) of the Family Law Act 1975 (Cth) among which the result of the appeal is the significant feature, the husband should pay her costs of the appeal.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate: 

Date:  1 November 2007