Carr and Carr
[2012] FamCAFC 185
•14 November 2012
FAMILY COURT OF AUSTRALIA
| CARR & CARR | [2012] FamCAFC 185 |
| FAMILY LAW ─ APPEAL ─ CHILDREN ─ Appeal against interim orders of Federal Magistrate made in parenting proceedings ─ Whether the Federal Magistrate gave excessive or impermissible weight to what he perceived to be the “child’s presumed attachment to the former matrimonial home” ─ Where it was clear beyond doubt from the transcript of the interlocutory hearing, and the reasons for judgment of the Federal Magistrate, that his Honour was acutely aware that the critical issue was whether the child should continue to spend substantially equal time with both parents, albeit in different homes, or spend more time with the mother in the home in which the child had spent most of his life ─ Where in the absence of any evidence establishing that the Federal Magistrate could not reasonably have afforded the weight he did to the factors which led to his conclusion, the challenges to the Federal Magistrate’s decision fail ─ Where the Court was not persuaded, either by reference to the terms of the Family Consultant’s memorandum, or the learned Federal Magistrate’s reasons for judgment, that his Honour materially mistook or misunderstood what the Family Consultant had said, or not said, in her memorandum ─ No Appealable error demonstrated ─ Appeal dismissed. FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where given the hurdles to success of challenges, particularly in an interlocutory context where no evidence has been tested, or sought to be tested, the father was deemed to have persisted with his appeal notwithstanding that success with his appeal was problematic ─ Where the circumstances of this case justified the making of a costs order in favour of the mother. |
| Family Law Act 1975 (Cth) Part VII, ss 60CC, 65DAA, 65DAA(5), 117(2A) |
| Edwards v Noble (1971) 125 CLR 296 Gronow v Gronow (1979) 144 CLR 513 MRR v GR (2010) 240 CLR 461 |
| APPELLANT: | Mr Carr |
| RESPONDENT: | Ms Carr |
| FILE NUMBER: | PAC | 1406 | of | 2012 |
| APPEAL NUMBER: | EA | 93 | of | 2012 |
| DATE DELIVERED: | 14 November 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 12 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 June 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 578 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Gillies |
| SOLICITOR FOR THE APPELLANT: | Mahony Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Kennedy |
| SOLICITOR FOR THE RESPONDENT: | Bahlmann Burke Lawyers |
Orders
That the appeal be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carr & Carr has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 93 of 2012
File Number: PAC 1406 of 2012
| Mr Carr |
Appellant
And
| Ms Carr |
Respondent
REASONS FOR JUDGMENT
introduction
By Notice of Appeal filed 12 July 2012 Mr Carr (“the father”) appealed against interlocutory parenting orders made by Foster FM on 15 June 2012 in parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) between the father and Ms Carr (“the mother”).
The interlocutory orders of the Federal Magistrates Court provided that the parties have equal shared parental responsibility for their child A born in 2006, and is thus aged six years of age.
The orders provided that the child reside with the mother and spend time with the father during school term, on alternate weekends from after school Friday to 6:30 pm Sunday, from after school each Tuesday until the commencement of school Wednesday, and from after school each Thursday, and each alternate Friday until 6 pm.
In lieu of the orders of the Federal Magistrates Court, the father sought that, during school term, the child spend each alternate week from the conclusion of school Wednesday to 7 pm Sunday, and each alternate weekend from the conclusion of school Wednesday to 10 am Saturday morning.
The mother resisted the father’s appeal and sought to maintain the orders of the Federal Magistrates Court.
The proceedings await trial in the Federal Magistrates Court. Counsel for the parties informed the Court that the proceedings will next be before the Federal Magistrates Court in March 2013 for the release of an anticipated Family Report and allocation of trial dates.
background
The father is 44 years of age and the mother is 41 years of age. Both parties have tertiary qualifications.
The parties commenced cohabitation in about October 2000, married in 2002, and separated under the one roof from late 2011 or early 2012. The father vacated the premises in which the parties and their child had lived since 2007 in April 2012. Both parties contributed substantially to the care of the child prior to separation.
At the interim hearing, the father sought that the child spend substantially equal time with each parent. The mother sought orders in substantially the terms ordered by the learned Federal Magistrate, save in relation to the mid-week overnight time which his Honour ordered that the child spend with the father.
At the interim hearing neither parent raised serious allegations of inappropriate parenting on the part of the other party.
The parties attended a child dispute conference on 28 May 2012. The Family Consultant who conducted such conference produced a memorandum which was in evidence before the learned Federal Magistrate.
The Family Consultant’s memorandum recorded that it was agreed that both parents retain equal shared parental responsibility for their child but:
No agreement was able to be reached about [A’s] parenting arrangements in the interim or the long term. Both parents were encouraged to consider a compromise to their currently held positions, particularly in terms of possible interim arrangements. This is because, while the parents remain living separately under the same roof, it remains somewhat “hypothetical” as to how [A] will manage the inevitable changes that will be required when he is no longer living under the same roof as both parents. For young children in such circumstances, the optimal outcome is for an interim arrangement to be reached by the parents and for such an arrangement to be modified dependant upon the child’s adjustment to the changes.
The “Case Pathway Recommendations” of the Family Consultant recorded:
Referral to community based organisation: Ideally, this is a situation where it would be preferable for the parents to work with a community agency (such as Relationships Australia) to develop of [sic] parenting arrangement that is reviewed and monitored in accordance with [A’s] adjustment to changes in his care. (Original emphasis)
Having recounted a number of s 60CC(3) factors which did not materially favour either party’s proposals, the learned Federal Magistrate, under the heading: “The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living”, recorded:
58. This is a significant factor in considering interim orders to be made. The child will move from a situation of having both parents in his home to one where the Father will be absent from that home. The child is in a settled physical environment where no doubt he feels secure. A substantial dislocation of that environment calls for careful consideration.
His Honour further recorded:
60. The impact on the child of a significant physical dislocation, of the child from his well settled physical environment, as sought by the Father, and the more limited time with the Father, sought by the Mother, present issues that impact on the welfare of the child. The consultant urges caution and a more moderated approach to ease the child into what may be appropriate long term parenting arrangements. The child’s reaction to the physical separation of the parents is problematic and needs to be monitored carefully.
The other factors to which the learned Federal Magistrate then referred were not considered to materially advantage either party’s proposals. It is not seriously in doubt that the passages which were pivotal to the learned Federal Magistrate’s decision were those set out above.
the grounds of appeal
Ground 1
Ground 1 of the father’s Notice of Appeal provided:
1. The Honourable Federal Magistrate erred in his application of the principles of Goode v Goode.
Whilst it was conceded by Counsel for the father in oral submissions before this Court that the learned Federal Magistrate had not erred in principle in determining the interlocutory proceedings before him, it was submitted that his Honour had “failed to properly consider the question of equal time and in doing so failed to follow the legislative pathway”.
It was further submitted in support of this challenge that:
14. … in terms of the Section 60CC factors the learned Federal Magistrate failed to properly consider each of the relevant factors and apply them to the circumstances of this particular case.
As is readily apparent, and Counsel for the father, who was not his Counsel in the court below, readily acknowledged, the thrust of this general complaint is, in reality, articulated in the submission on behalf of the father that:
16. … where the learned Federal Magistrate placed significance on the child’s presumed attachment to the former matrimonial home that was not a relevant factor or a factor that should have been prioritised above the legislative presumption of the child spending equal time with each parent.
With respect to Counsel for the father, and accepting that so submitting must have been inadvertent, there is no legislative or other “presumption of the child spending equal time with each parent”.
Section 65DAA of the Act mandates that where an order for equal shared parental responsibility is made, as clearly was so in this case, the Court must consider (emphasis added) whether an order for equal shared parental time is in the best interests of the child and reasonably practicable, each of those matters being determined by reference to the relevant statutory provisions, most notably s 65DAA(5) (“reasonable practicability”) and s 60CC (“best interests”).
In oral submissions, Counsel for the father, sensibly, acknowledged that the “child’s presumed attachment to the former matrimonial home” was a “relevant factor”. Properly understood, and necessarily so in the context of this appeal, the substance of the challenge agitated pursuant to this ground is that the learned Federal Magistrate gave excessive or impermissible weight to what he perceived to be the “child’s presumed attachment to the former matrimonial home”.
In the light of Counsel for the father’s submissions, which, whatever their success, focussed on what is clearly the only possible avenue for appellate intervention, the substance of grounds 1 and 2 substantially overlaps. It is convenient and appropriate to deal with those two grounds in conjunction.
Ground 2
Ground 2 of the Notice of Appeal provided:
2. The Honourable Federal Magistrate erred in placing weight on the child’s ongoing residence in the family home.
In reality, it is in the context of the submissions in support of Ground 2 that the success or otherwise of the challenges articulated in grounds 1 and 2 falls to be determined. It was submitted on behalf of the father that:
18. From the outset of the hearing the learned Federal Magistrate indicated that he was concerned that the father’s proposal would remove the child “on an interlocutory basis from the home that the child has known since birth which is something that was crossing my mind ......”. (Footnote omitted)
Before turning to consider the transcript of the proceedings, it is appropriate to record that there was no cross-examination of either party or the Family Consultant before the learned Federal Magistrate, and that neither Counsel then appearing for the parties sought to do so.
In opening exchanges with Counsel for the parties, in the passage of transcript upon which Counsel for the father relied, his Honour said:
… If I could say this, Ms Christie, in relation to your client’s position. It concerns me that his proposal removes the child on an interlocutory basis from the home that the child has known since birth which is something that was crossing my mind, that was all.
Properly, Counsel for the father has not submitted that anything there said by the learned Federal Magistrate revealed any absence of impartiality. Having regard to the nature of the hearing before the learned Federal Magistrate, and the issues which were undoubtedly relevant to its determination, to the extent that, with respect to him, his Honour was doing more than stating the obvious, no significance should attach to his comments.
As Counsel for the father submitted, and the transcript confirms, Counsel then appearing for the father responded by saying:
I guess I should address that squarely by saying this, your Honour. That it’s fair to say that even prior to the amendments to the Act, Cowling, Solento and – surviving the amendments – Goode talk about continuity and stability being about the relationship between a child and his parents and not about bricks and mortar.
It was further submitted on behalf of the father:
20. The learned Federal Magistrate returned to the issue of the child remaining in the home. Variously describing it as a “home base” and remarking that if the orders contended for by the father were made the child would be living half his life “away from his own home”. (Footnotes omitted)
Counsel then appearing for the father said:
--- with both parents. Now, why – the child need not have a home base and if we follow the statutory pathway it is quite clear that parliament didn’t intend that that would be anything which was given any particular primacy ---
In the second passage of the transcript upon which Counsel for the father relied, the learned Federal Magistrate said:
... The father is moving out to premises unknown to the child and he suggests that the child should now live half his life away from his own home. That the wife in fact may acquire in a property – I don’t know.
Although it may not necessarily be the father’s contention that either of those statements was factually inaccurate, nothing to which the Court has been referred establishes that either of those statements of fact was erroneous.
The position of Counsel then appearing for the father in relation to the learned Federal Magistrate’s comment could not have been clearer, Ms Christie of Counsel saying:
Your Honour is giving undue weight to a piece of real estate in preference to the child having a proper amount of time with each parent.
In her closely reasoned submissions, Counsel for the father, at paragraph 21, referred to the pivotal paragraph in the learned Federal Magistrate’s reasons for judgment, paragraph 58, the terms of which have been recorded earlier in these reasons. Counsel for the father then submitted with respect to paragraph 56 of his Honour’s reasons that:
22. At this point in the judgment the Court had already found that “the child has strong and well settled relationships with both parents.” There is no real consideration in the judgment of the likely effect of the child’s separation from the father in the context of his “substantial involvement in the child’s life”. (Footnote omitted)
With respect to the ingenuity of this submission, for the learned Federal Magistrate to have said more than he did in relation to the “likely effect of the child’s separation from the father”, would have been in the absence of a sufficient, or perhaps any evidentiary foundation.
As the submissions of Counsel for the father assert, and as the learned Federal Magistrate accepted during the interlocutory hearing, and reiterated in his reasons for judgment, both parents have been substantially involved in the care of the child throughout his life. On any view of it, having lived substantially if not for the whole of his life in the same house, and with both parents, the future, in which the parents did not live together, or in the same house, would be new, and, unable to be known at the time of the learned Federal Magistrate’s decision.
It was then submitted on behalf of the father:
23. Rather than considering the effect on the child of seeing his father for significantly less time than had been the situation prior to separation and indeed since, the learned Federal Magistrate once again turned to what he termed the “physical dislocation of the child from his well settled physical environment”. (Footnote omitted)
To the extent that this submission asserts that the learned Federal Magistrate failed to consider the effect on the child of seeing his father less than he had in the past, it is clear beyond doubt from the transcript of the interlocutory hearing, and the reasons for judgment of the learned Federal Magistrate, that his Honour was acutely aware that the critical issue was whether the child should continue to spend substantially equal time with both parents, albeit in different homes, or spend more time with the mother in the home in which the child had spent most of his life.
With respect to Counsel for the father, the learned Federal Magistrate was obliged in this case to consider the “physical dislocation of the child from his well settled physical environment”. The weight which could have been given to those factors was liable to vary from judicial officer to judicial officer. In Gronow v Gronow (1979) 144 CLR 513 at 519-520 Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
Whatever weight was given to those considerations by the learned Federal Magistrate, it cannot be successfully asserted that his Honour did so in reliance upon any erroneous finding of fact.
The crux of these complaints was articulated in the submission that:
24. ... the learned Federal Magistrate erred in placing a greater significance of his inference that the child was quite connected with the home the parties had previously shared then [sic] the importance of the child’s relationship with the father.
With respect to Counsel for the father, whilst it might be convenient to the father to see it in such terms, a balanced reading of the learned Federal Magistrate’s reasons reveals that his Honour had not “prioritised bricks and mortar above the child’s relationship with one of his parents”.
The learned Federal Magistrate clearly recognised in his reasons for judgment that determining the interlocutory applications before him involved balancing the two issues to which this submission refers. Other judicial officers undertaking that balancing exercise may have reached the conclusion for which the father’s Counsel contended, but that is not the test for present purposes. As Barwick CJ in Edwards v Noble (1971) 125 CLR 296 at 304 said:
The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong.
In the absence of any evidence establishing that the learned Federal Magistrate could not reasonably have afforded the weight he did to the factors which led to his conclusion, these challenges fail.
A particular matter relied upon in support of these challenges related to the memorandum of the Family Consultant, in respect of which it was submitted:
26. Further, the learned Federal Magistrate confused the evidence of the Family Consultant where he found a cautious approach was to be adopted to the physical separation of the parents. In his reasons (paragraphs 60 and 74 of the judgment in particular) he appears to see the cautious approach as being more time in the former matrimonial home rather than ensuring that the child’s relationship with the father, by maintaining a regime very close to what had been occurring remained in place.
The Court has earlier referred to the relevant portions of the Family Consultant’s report. In the Court’s view, the report was equivocal in terms of the decision to be made by the learned Federal Magistrate, and perhaps more significant by virtue of what it did not record or recommend than anything contained in it, most of which could not have been factually controversial.
As observed earlier, no one, including the learned Federal Magistrate and the Family Consultant, could predict how the child would adjust to whatever orders the Court made, given the major change from living in a house with both his parents to living in that house with only one parent, and another house with his other parent.
In the paragraphs of the reasons for judgment of the learned Federal Magistrate to which Counsel for the father referred, his Honour recorded:
60. The impact on the child of a significant physical dislocation, of the child from his well settled physical environment, as sought by the Father, and the more limited time with the Father, sought by the Mother, present issues that impact on the welfare of the child. The consultant urges caution and a more moderated approach to ease the child into what may be appropriate long term parenting arrangements. The child’s reaction to the physical separation of the parents is problematic and needs to be monitored carefully.
…
74. This is not a consideration of substance save for the need to be sensitive to the child being subjected to any adverse psychological stressors arising from the parties physical separation and the time arrangements implemented thereafter.
With respect to the submissions of Counsel for the father, whilst it may be that the Family Consultant’s memorandum could have been interpreted in the way asserted by her, the Court is not persuaded, either by reference to the terms of the Family Consultant’s memorandum, or the learned Federal Magistrate’s reasons for judgment, that his Honour materially mistook or misunderstood what the Family Consultant had said, or not said, in her memorandum.
As suggested earlier, other conclusions may permissibly have been reached in reliance upon that evidence, but that does not demonstrate that the conclusion reached by the learned Federal Magistrate was not reasonably open to him.
Notwithstanding the energies of Counsel for the father, who has articulated everything which reasonably could have been in support of these grounds, the Court is not persuaded that they have merit.
The Court’s conclusions with respect to Grounds 1 and 2 largely suggest the conclusion the Court would reach with respect to Ground 3.
In deference to the submissions of Counsel for the father, the Court will however engage with Ground 3 to the extent that it has not inferentially already done so.
Ground 3
Ground 3 of the Notice of Appeal provided:
3. The Honourable Federal Magistrate erred in giving insufficient weight to the available evidence of the Family Consultant.
The crux of the submissions in support of this ground which have not previously been considered is:
30. The clear meaning of that is that [A’s] daily life was going to change because both parents would no longer be in the same household with him each day. That change had to be handled with some sensitivity to how a child of his age and background would cope with such a significant change. The family consultant notes (again at page 2) that the child has a “relatively secure relationship with each of his parents”. She does not seek to prioritise or make the issue of what parent is to remain in the former matrimonial home an issue in the determination of care arrangements for [A].
With respect to Counsel for the father, the fact that the Family Consultant did not “seek to prioritise” the outcome for which either parent contended is the matter of greater significance for present purposes.
The reality that the Family Consultant did not, to put it bluntly, give the benefit of the considerable weight which her opinion was likely to be afforded to the mother simply meant that, at trial and before this Court, Counsel for the mother could not rely upon that fact or circumstance as supporting the learned Federal Magistrate’s decision. The absence of support for the mother’s position was not support for the father’s submission.
The learned Federal Magistrate had to make a decision. As Counsel for the father correctly submitted, the expert opinion evidence was equivocal, save to the extent that it recorded, unsurprisingly, that how the child would cope with any determination by the Court would in the circumstances be “somewhat ‘hypothetical’”.
The Court is not persuaded that this ground has merit, either in conjunction with grounds 1 and 2 or in its own right.
Ground 4
Ground 4 of the Notice of Appeal provided:
3. The Honourable Federal Magistrate erred in the exercise of his discretion.
As earlier suggested, and as Counsel for the father sensibly acknowledged, if the challenges to which the Court has previously referred fail to find favour, this challenge must also fail.
Lest there be doubt about the matter however, the Court is satisfied that the learned Federal Magistrate did “consider” the matters which he was required to consider in the light of the decision of the High Court in MRR v GR (2010) 240 CLR 461.
In the circumstances of this case, there were, in reality, two competing factors, the balancing of which were ultimately likely to determine the outcome of the interlocutory proceedings. They have been referred to earlier in these reasons, but to reiterate, were the child’s ongoing residence with his mother in the only home he had ever known on the one hand and, the reality that so doing would mean that the child spent less time with the father than he ever previously had. The learned Federal Magistrate carefully considered those factors. Others doing so may have come to a different conclusion, but that is not the test.
For reasons which the Court has earlier articulated, the father has not demonstrated appealable error in relation to such considerations.
As Counsel for the father sensibly acknowledged, Grounds 5 and 6 did little more than reiterate the substance of earlier challenges. Neither ground could succeed in isolation.
conclusion
No ground of appeal having been made out, the appeal must fail.
costs
Unsurprisingly, Counsel for the mother sought an order for costs of the appeal pursuant to s 117(2A) of the Act, on the basis that, as has transpired, the appeal was wholly unsuccessful.
Counsel for the father opposed the making of an order for costs, albeit conceding, sensibly given the father’s earnings, that lack of capacity could not assist the father’s resistance to a costs order.
Counsel for the father valiantly sought to resist a costs order on the basis that, albeit not accepted, the submissions on his behalf raised issues of possible substance. There is a material distinction between submissions which have possible merit and those which, though devoid of possible merit, are cogently and skilfully agitated. This case falls into the latter category.
As is not in doubt, Counsel for the father skilfully agitated what were clearly the only possible bases for appellate intervention. Given the hurdles to success of such challenges, particularly in an interlocutory context where no evidence has been tested, or sought to be tested, the father is deemed to have persisted with his appeal notwithstanding that success with his appeal was problematic.
It is also relevant to the issue of costs to recall that, when the matter was set down, as is the Court’s invariable practice, the father was reminded of the costs risk attendant upon persisting with an interlocutory appeal which, if successful, could only result in the proceedings being remitted for re-determination on an interlocutory basis, the existing interlocutory orders remaining as, in effect, interim interlocutory orders, in circumstances where, in all probability, a final hearing would be available in the Federal Magistrates Court at about the same time as the re-hearing of the interlocutory proceedings might be expected to take place, or possibly even before that time.
The Court is comfortably satisfied that the circumstances of this case justify the making of a costs order.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 14 November 2012.
Associate:
Date: 14.11.2012
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