C & M

[2005] FamCA 1300

[2005] FamCA 1300

FAMILY LAW ACT 1975

IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal No. NA 29 of 2005

File No. BRF 2038 of 2003

IN THE MATTER OF:

C

Appellant

- and -

M

Respondent

EX TEMPORE REASONS FOR JUDGMENT

BEFORE:Holden, May and Boland JJ

HEARD:4 November 2005

DATE OF JUDGMENT:     4 November 2005

APPEARANCES:     

Ms Hogan (instructed by Barry & Nilsson Lawyers, Level 21, 215 Adelaide Street, Brisbane QLD 4000) appeared on behalf of the Appellant.

Ms McMillan (instructed by Hopgood Ganim Lawyers, Level 8, Waterfront Place, 1 Eagle Street Brisbane QLD 4000) appeared on behalf of the Respondent.

APPEAL SUMMARY

MATTER:C and M

APPEAL NUMBER:  NA 29 of 2005

CORAM:Holden, May and Boland JJ

DATE OF HEARING:  4 November 2005

DATE OF JUDGMENT:  Ex tempore

CATCHWORDS:                

APPEAL – Children – contact – whether contact with father on each alternate Friday from 3.30 pm to 5.30 pm should extend beyond December 2006 – whether trial Judge failed to give adequate reasons for cessation of contact period when children commence school

TDS and DES [2005] FamCA 746

Merriman and Merriman (1993) FLC 92-422

Appeal allowed.

1. This is an appeal by the father, against Order 20(b) and (c) of orders made by Bell J on 12 April 2005.  Those orders deal with one period of the father's contact to the two children of the parties, R, who was born in October 1997, and C, born in July 2001. 

2. The father's amended notice of appeal was filed on 28 June 2005 and challenged the majority of the orders made by Bell J dealing with competing applications for property settlement under section 79 of the Family Law Act 1975 (Cth) (“the Act”). The parties have resolved all the issues the subject of the appeal except the question of whether contact, which the father presently exercises to R and C, each alternate Friday from 3.30 pm to 5.30 pm should extend beyond December 2006.

3. When I complete these reasons for judgment the presiding Judge, Holden J, will make orders by consent dealing with those aspects of the appeal.

4. The gravamen of the father's appeal is that the trial Judge failed to give adequate or any reasons, for his decision to make orders sought by the mother, for cessation of one period of contact once the children commence school. 

5. A brief background is contained, or can be found, in the trial Judge's reasons for judgment and the joint case document.  The parties commenced cohabitation in 1996, according to the husband and according to the wife, in March 1997.  They were married in March 1997 and separated in January 2003.  A decree nisi of dissolution of the marriage was pronounced in May 2004.

6. The mother ceased employment in September 1998 shortly prior to the birth of R and she thereafter engaged in home-making duties and the care of each of the children after their respective births.

7. After the parties separation the mother continued to reside with the children in the parties’ matrimonial home. 

8. In May 2003 the father commenced proceedings for interim and final parenting orders and for property settlement. 

9. In June 2003 the parties’ competing interim parenting applications were settled, partly by consent, and orders were made, including the order which is the subject of the present dispute between the parties, by Buckley J.

10. The trial Judge, in his reasons for judgment, set out matters relating to contact, in particular, at paragraph 19, 20 and 21 of his Honour's reasons.  At paragraph 19 he says:

    "It appears to me that, really, the matters in issue are those which are contained in the amended application for the father which was subsequently read on 31 March 2005, and they appear to me to be virtually agreed upon insofar as the Friday evening is concerned, the mother says, until 2007, even though she was initially in dispute about that, I think, 3.30pm to 5.30pm, she says leave it as it is."

11. It is submitted before us by counsel for the father, that his Honour failed to give adequate reasons or any reasons at all.  She referred us to the unreported decision in TDS and DES [2005] FamCA 746 and, in particular, paragraphs 34 and 35 of that judgment.

12. The necessity to provide adequate reasons is well established by authority.  The Full Court in Merriman and Merriman (1993) FLC 92-422 at 80,351 states as follows:

    “Following the decisions of the Full Court of this court in Bennett and Bennett (1991) FLC 92-191, Horsley and Horsley (1991) FLC 92-205 and Bonnici and Bonnici (1992) FLC 92-272 the principles governing the need for the giving of adequate reasons for the exercise of the discretion to alter interests in property under Section 79 of the Family Law Act are well established. For present purposes they are perhaps best expressed in the following passage from the judgment in Horsley (at page 78,401):

‘Counsel for the wife contended that the trial Judge did not give adequate or any reasons for his decision and that his failure to do so amounted to an error of law and additionally contended that his Honour’s discretion had miscarried. In Bennett and Bennett (1991) FLC 92-191 the Full Court considered a similar argument (also advanced in that case by the same counsel) and after referring to a number of authorities, including Pettitt v Dunkley (1971) 1 NSWLR 376, Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Public Service Board of NSW v Osmond (1986) 159 CLR 656; 63 ALR 559, Palmer v Clarke (1989) 19 NSWLR 158, referred to the judgment of the Full Court of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 and in particular to the passage in the principal judgment of Gray J where his Honour said:

‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-

(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b)     justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. 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.’

In Bennett’s case the Full Court went on to say:

‘It is unnecessary to decide, in this case, whether the inadequacy of her Honour’s reasons was itself an error of law requiring her decision to be set aside, in that we have already determined that the appeal should succeed on the merits. The weight of judicial authority, however, suggests that it might well amount to such an error. At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.

In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge’s discretion. In general, the appellate court should be able to discern either expressly or by implication the path by which the result has been reached.’

The court concluded on this topic:

‘The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.”

1. I am satisfied, from reading his Honour's reasons for judgment and the authorities in relation to giving adequate reasons, that the trial Judge failed to give adequate or any reasons at all.  In those circumstances the appeal, in relation to the order in contention, must succeed.

2. We have been asked that we should re-exercise the discretion. In the re-exercise of our discretion, counsel for both parties have agreed extensive reasons are not required, and we may be give short form reasons for judgment as now provided in the Act and Family Law Rules 2004.

3. The issue is a very a narrow one.  I am satisfied that the evidence of the father, which is set out in paragraphs 93 to 98 of his Affidavit, suggests that he has a good relationship with the children and that they have been enjoying contact with him.  The mother's reasons for seeking the cessation of this contact do not appear to me to be ones which are generally in the children's best interests when they do have a good relationship with, and can maintain a relationship with the father.

4. Accordingly, I find that it would be appropriate for the order as sought by the father for the continuation of the contact for a period of two hours on Friday evening, between 3.30 pm and 5.30 pm to continue beyond 2006.

5. HOLDEN J:  I agree with the reasons delivered by Boland J and have nothing to add.

6. MAY J:  I agree that the appeal must be allowed.  I also agree with the reasons provided by Boland J.

ORDERS

1. By consent that the appeal by the husband, as contained in Notice of Appeal NA 29 of 2005, against the Orders (with respect to property settlement) made on the 12^th day of April 2005 by the Honourable Justice Bell be allowed in relation to Order 6.

2. By consent that Order 6 of the Orders of the Honourable Justice Bell dated the 12^th day of April 2005 be varied and that the following Order be made in substitution:

   “6.That within three (3) months of the date of these orders the husband pay to the wife the amount of $115,000.”

3. By consent that Order 9 of the Orders of the Honourable Justice Bell be set aside and that the following Order be made in substitution:

   “9.That pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s interest in the QSuper superannuation fund, the wife shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount, at the operative, in the sum of $115,000 and that there be a corresponding reduction to the entitlement the husband would have had in the QSuper superannuation fund but for this order.”

4. By consent that Order 10 of the Orders of the Honourable Justice Bell made on the 12^th day of April be varied by deleting the words “from the date of these orders” and substituting with the words “from today’s date”.

5. By consent that the appeal by the husband, as contained in Notice of Appeal NA 29 of 2005, against Orders 20(f) and 20(i) (with respect to children’s issues) made on the 12^th day of April 2005 by the Honourable Justice Bell be dismissed.

6. That the appeal by the husband, as contained in Notice of Appeal NA 29 of 2005, against Order 20(c) (with respect to children’s issues) made on the 12^th day of April 2005 by the Honourable Justice Bell be allowed.

7. That Order 20(c) of the orders of the Honourable Justice Bell made on the 12^th day of April be varied by deleting the words “until 31 December 2006, and”.

8. That the both parties’ applications for costs certificates be dismissed.

9. By consent that the parties bear their own costs of and incidental to this appeal.

I certify that the preceding 18 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.



Associate