Carlson and Carlson
[2016] FamCAFC 196
•14 September 2016
FAMILY COURT OF AUSTRALIA
| CARLSON & CARLSON | [2016] FamCAFC 196 |
| FAMILY LAW – APPEAL – CHILDREN – Where interim parenting orders provided that the mother have sole parental responsibility, except with respect to education where parental responsibility was to be equally shared – Where the primary judge found it was not appropriate for the presumption of equal shared parental responsibility in s 61DA of the Family Law Act 1975 (Cth) to apply – Where that finding was open on the evidence – Where the appeal raises no issue of principle – No merit to the appeal – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA, 94AAA(7) Banks & Banks (2015) FLC 93-637 |
| APPELLANT: | Mr Carlson |
| RESPONDENT: | Ms Carlson |
| FILE NUMBER: | NCC | 1538 | of | 2015 |
| APPEAL NUMBER: | EA | 147 | of | 2015 |
| DATE DELIVERED: | 14 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Cronin JJ |
| HEARING DATE: | 14 September 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 August 2015 |
| LOWER COURT MNC: | [2015] FamCA 708 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Othen |
| SOLICITOR FOR THE APPELLANT: | Mark Graham Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Rankin Ellison Lawyers |
Orders
That the appeal be dismissed.
That the appellant pay the respondent’s costs of and incidental to the appeal within twenty-eight (28) days of agreement or assessment.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlson & Carlson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 147 of 2015
File Number: NCC 1538 of 2015
| Mr Carlson |
Appellant
And
| Ms Carlson |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Aldridge J
This appeal raises no issue of principle and I propose to give reasons in short form (see s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”)).
Mr Carlson (“the father”) and Ms Carlson (“the mother”) are engaged in parenting and property proceedings in the Family Court of Australia. Cleary J was asked to make interim parenting orders in relation to the parties’ two boys, who were born in 2002 and 2004. In an ex tempore decision given on 12 August 2015, two days after the hearing, her Honour made orders for the mother to have sole parenting responsibility for the children save as to their education in respect of which the parental responsibility was to be equally shared. The children were to live with the mother and spend two days with the father each alternate weekend.
The father appeals against those orders, asserting that orders should have been made for him to have sole parental responsibility and that the children live with him.
The primary judge commenced her reasons by referring to s 61DA of the Act and to the presumption in favour of equal shared parental responsibility. That presumption does not apply to interim orders if the court considers it inappropriate. At the outset, her Honour indicated that this was such a case. The reasons for doing so clearly emerge from the passages which followed dealing with both the issue of parental responsibility and with whom the children were to live.
The parties separated under the one roof following an incident in December 2014 but both continued to live in the matrimonial home.
The primary judge recorded that the incident left the children, as they told the family consultant, “afraid”, “worried about their mother” and “fearful of being hurt themselves by their father, embarrassed in front of their friends and family” (at [17]). Her Honour found the children were adversely affected by the conflict.
The conflict flared when the father said he would burn down the mother’s workplace. The mother took the children and went to live in Melbourne, and the children lost contact with their father.
The primary judge recorded that both children expressed “clear, strong views” to the family consultant that they wished to live with their mother but spend time with the father and that, given their age, their views “could hardly be disregarded” (at [24]).
Her Honour found that the mother had “undoubtedly” been the children’s primary carer throughout their lives (at [24]).
Noting that communication between the parties had “fallen down entirely” (at [26]), her Honour found that the children should live with the mother.
After finding that the parties agreed only on the need for the children to continue at their present schools, the primary judge continued:
28.Parental responsibility for that area can be shared, but in all other areas the necessary communication, consultation and compromise is unlikely to be possible in the present state of flux over where children should live, anger over their removal, dispute over financial matters, in addition to the impact of serious past allegations being raised as present concerns.
It follows from what I have just said that the primary judge did give reasons as to why it was inappropriate for the presumption in favour of equal shared parental responsibility to apply. These are the findings to which I have just referred. The findings made by her Honour were open on the evidence. Thus I consider that grounds 2 and 4 of the appeal have not been made out.
It also follows that I consider that her Honour correctly applied the relevant provisions of Part VII and that ground 1 also fails. It was submitted in this respect that the primary judge did not properly evaluate the father’s proposal or deal with all of the relevant s 60CC issues. The difficulty with this submission is that these matters were not raised, or were not adequately raised, by the father in submissions to the primary judge. I consider that the primary judge considered the issues that were before her (Banks & Banks (2015) FLC 93-637 at [48]-[49]). It is relevant to point out that even on this appeal, the father has not identified the appropriate orders that would give effect to his assertion that the children should spend substantial and significant time with him.
There is no need for a trial judge slavishly to recite all of the sections of Part VII that could apply. Her Honour clearly had regard to relevant considerations under s 60CC of the Act that could be considered on the evidence at an interim hearing.
It is clear from the primary judge’s reasons that her Honour acted under s 61DA(3) of the Act and found that, on this interim hearing, it was not appropriate to apply the presumption in favour of equal shared parental responsibility. Her Honour did not find the presumption to be rebutted because of findings of family violence (s 61DA(2)). There were no findings of family violence. Thus, ground 3 of the grounds of appeal, which asserts error because the evidence could not support a finding of family violence and that there was an erroneous application of s 61DA(2), is entirely misconceived.
I do not consider that s 61DA(3) was applied in a broad and exclusionary way: see Treloar & Nepean (2009) FLC 93-417 at [60]. Her Honour directed herself to the evidence central to the parties’ cases as to the risk of abuse and violence. That evidence was relied on for two purposes; namely, to show that the mother lacked parenting capacity in removing the children to Victoria, and to demonstrate that there was an unacceptable risk of harm. No such risk of harm was found to be established, but the evidence as to the cause of the removal of the children to Melbourne was contested. Thus, no finding on an interim basis could be made.
Her Honour turned her attention to the conflict between the parties and considered those in [28] of her reasons, which has been set out above. In light of her Honour’s findings, her Honour was perfectly entitled to make the orders that she made. It was submitted that her Honour should have made no orders as to parental responsibility, and simply should have permitted s 61C to continue to apply. Given that neither party sought such a solution, and given the conflict found by her Honour, that submission cannot be accepted.
The primary judge had to consider the mother’s proposal that any time the children spend with the father be supervised. The mother relied upon the father having been charged with and acquitted, on two separate occasions, of sexually assaulting a child. She also relied on evidence from a number of witnesses who deposed to other alleged inappropriate conduct of the father. The father denied these allegations.
Her Honour found that, to the extent findings could be made at an interim hearing, the evidence established that the father posed no unacceptable risk of harm to the children. She continued:
35.There is also a risk of emotional abuse of the children if they are closely supervised, particularly in a contact centre.
36.Children of 13 and 11 years of age would quickly realise that the adults in their lives regarded the father as a risk to them and this is a particularly vulnerable moment for them because of their lives having been considerably disrupted by recent events.
In my opinion, these paragraphs constitute the primary judge’s reasons for not ordering supervision. The reasons were that there was no unacceptable risk of harm posed by the father and that supervision would indicate to the children that the father is a risk to them.
These findings are in favour of the father and unsupervised time. Ground 5 misstates the findings and is misconceived.
Further, I reject the father’s submission that the primary judge relied on the charges laid against the father to rebut the presumption of equal shared parental responsibility under s 61DA(2) of the Act. Her Honour did not rely on that subsection. In any event, her Honour expressly said that the evidence could have no further significance than the acquittals. Whilst her Honour did return to the allegations that was in the course of referring to the mother’s concerns and other matters in finding that “communication, consultation and compromise is unlikely” (at [28]).
It was submitted that her Honour’s orders effected an abrupt change in the children’s lives and were made on a lack of evidence and untested evidence. It was submitted that the orders did not provide for school holiday time with the father.
There was going to be an abrupt and significant change in the children’s lives whether the mother’s or the father’s proposed orders were made. Each set of orders proposed that the children live with them and spend time with the other parent.
As I have said, the findings of the primary judge, which were available to her on the evidence, amply supported the orders that were made.
As to the lack of orders as to school holiday time, it is important to note that the father proposed no orders to be considered in the event the children were to live with the mother. The father’s submissions as to what time the children should spend with the father in the event that orders were made for them to live with the mother were simply that there be an “order for substantial and significant time”.
The primary judge was well aware of the children’s needs and views and of the conflict between the parties. Her Honour said:
38.It is essential that the father stay away from the mother and the children, other than in accordance with the Orders given recent events, but it would be appropriate for them to be collected from their schools by the father and for a friend or family member or well-known friend to deliver them home to the mother on Sunday evening.
Having regard to the failure of the father to propose orders for school holiday time, the conflict between the parties, the restraining orders, the children’s views and, importantly, the fact that there were interim orders, her Honour was not obliged to make an order for holiday time. Thus, I consider that grounds 6 and 7 have not been made out.
Her Honour was well aware that the mother took the children to Melbourne. There was some dispute between the parties as to why she did so and, quite properly on an interim hearing, the primary judge made no finding as to that. It follows that there could be no finding, at that stage, as to whether the mother’s unilateral actions were justified. Clearly, there was a high degree of conflict, but her Honour was focussed on determining the parenting arrangements that would be in the children’s best interests in the future. Ground 8 has not been established.
Ground 9 was framed, in part, as a summary of all of the earlier grounds. It was also submitted that her Honour failed “to sequentially assess the relevant section 60CC factors” which rendered the judgment “unreliable and unsafe”.
There is no such obligation and the primary judge properly took into account the relevant s 60CC factors in respect of which findings could be made on an interim basis.
In my opinion, the appeal should be dismissed.
I note that an Application in an Appeal to adduce further evidence was withdrawn.
Ryan J
I agree with the reasons given by Aldridge J and the orders proposed by him. The only matter I would respectfully point out is that the order sought by the father as to parental responsibility was not an order for him to have sole parental responsibility, but was an order that the parties have equal shared parental responsibility. That does not alter in any way the approach that should be taken to this appeal. The point quite simply is, as Aldridge J has pointed out, that neither party sought that s 61C of the Act operate pending the trial.
Cronin J
I agree with the orders proposed by Aldridge J and with the reasons that his Honour has given, save as to what Ryan J has otherwise observed, and I agree with her on those observations.
Ryan J
The orders of the court will be that the appeal be dismissed and that the appellant pay the respondent’s costs of and incidental to the appeal, as agreed or assessed, within 28 days of that agreement or assessment.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Cronin JJ) delivered on 14 September 2016.
Associate:
Date: 10 October 2016
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