Cassidy & Cassidy
[2009] FamCAFC 125
•15 July 2009
FAMILY COURT OF AUSTRALIA
| CASSIDY & CASSIDY | [2009] FamCAFC 125 |
| FAMILY LAW - APPEAL – PARENTING ORDERS – PROCEDURAL FAIRNESS – Equal shared parental responsibility – Whether Federal Magistrate denied father procedural fairness in making an order for the mother to have sole parental responsibility – Where mother had not sought such an order – Where the Federal Magistrate determined that the presumption of equal shared parental responsibility was rebutted because of family violence and was not in the best interests of the children – Where there was sufficient notice that the Federal Magistrate was considering an order for sole parental responsibility – No denial of procedural fairness – Appealable error not established. FAMILY LAW - APPEAL – PARENTING ORDERS – PROCEDURAL FAIRNESS – Whether Federal Magistrate denied father procedural fairness in suspending time father spent with children during mid-term school holidays – Where neither party nor ICL formally sought orders for mid-term school holiday time – Where neither party nor ICL sought suspension of time father spent with children during holidays – Where Federal Magistrate did not raise suspension with either party’s counsel or the ICL – Merit in this ground. FAMILY LAW - APPEAL – PARENTING ORDERS – PROCEDURAL FAIRNESS –Whether the Federal Magistrate denied the father procedural fairness in relation to orders concerning the time the children spent with the father on Wednesday evenings – Where the mother’s proposal changed during the course of the hearing – Where the issue of limited time on Wednesday evenings was raised by the Federal Magistrate with the mother – Where father’s counsel had the opportunity to re-open cross-examination – Where father’s counsel had the opportunity to make submissions – No denial of procedural fairness – Appealable error not established. FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the Federal Magistrate gave adequate reasons for orders which reduced children’s time with father – Whether the Federal Magistrate erred in failing to properly assess the parties’ proposals – Whether the Federal Magistrate erred in failing to assess the impact of his orders in reducing the amount of time the children spent with the father – Where the Federal Magistrate did not discuss s 60CC(3)(d) in his reasons – Where a lack of adequate reasons – Appealable error established on this basis. FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the Federal Magistrate erred in weight given to certain evidence – No appealable error established. FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the Federal Magistrate erred in making adverse findings against the father – Where the Federal Magistrate made an incorrect recording as to the source of certain evidence – Where incorrect recording as to source of evidence did not vitiate exercise of discretion. FAMILY LAW - APPEAL – PROCEDURE – FUTURE CONDUCT OF PROCEEDINGS – Where matter will require rehearing of whole of parenting issues, including equal shared parental responsibility – Where s67ZX(3) applies. FAMILY LAW - APPEAL – COSTS – Appropriate to grant certificates under Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal and rehearing. |
| Family Law Act 1975 (Cth) – s 60B, s 60CC, s 61C, s 61D, s 61DA, s 65DAA, s 69ZX Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Federal Magistrates Act 1999 (Cth) – s 75 Federal Proceedings (Costs) Act 1981 (Cth) – s 6, s 8, s 9 |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 AMS v AIF (1999) 199 CLR 160 Bennett & Bennett (1991) FLC 92-191 Devries v Australian National Railways Commission (1993) 177 CLR 472 De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Hartnett & Sampson (Scope of Rehearing) [2009] FamCAFC 1 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Kioa v West (1985) 159 CLR 550 KPR & MRS [2007] FamCA 1334 Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23 McCall & Clark [2009] FamCAFC 92 Mead & Ward [2008] FMCAfam 2 Pettitt v Dunkley (1971) 1 NSWLR 376 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 U v U (2002) 211 CLR 238; (2002) FLC 93-112 Warren v Coombes (1979) 142 CLR 531 |
| APPELLANT: | Mr Cassidy |
| RESPONDENT: | Ms Cassidy |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
| FILE NUMBER: | SYC | 5446 | of | 2007 |
| APPEAL NUMBER: | EA | 130 | of | 2008 |
DATE DELIVERED: | 15 July 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 26 February 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 October 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1137 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Levy |
| SOLICITOR FOR THE APPELLANT: | Caldwell Martin Cox |
| COUNSEL FOR THE RESPONDENT: | Mr Henness |
| SOLICITOR FOR THE RESPONDENT: | Tiyce & Partners Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
Orders
That the appeal is allowed.
That subject to Order 3 of these orders, Orders 2, 3, 4, 5 and 15 of the orders of Federal Magistrate Lindsay made 17 October 2008 be set aside.
The orders made in Order 2 hereof be stayed until the matter is relisted before a Federal Magistrate.
That the matter is remitted for rehearing in the Federal Magistrates Court, Sydney Registry before a Federal Magistrate other than Federal Magistrate Lindsay.
That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties and the independent children’s lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
IT IS NOTED that publication of this judgment under the pseudonym Cassidy & Cassidy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 130 of 2008
File Number: SYC 5446 of 2007
| Mr Cassidy |
Appellant
And
| Ms Cassidy |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Cassidy and Ms Cassidy are the parents of three children who are aged 9, 6 and 4 years respectively.
Following the parties’ separation in 2007 parenting proceedings were commenced by the father in the Family Court, and in 2008, defended parenting proceedings conducted over three days were heard in June and July 2008 by Federal Magistrate Lindsay in the Federal Magistrates Court. On 17 October 2008 reasons for judgment and orders were made by Federal Magistrate Sexton on behalf of Federal Magistrate Lindsay, as is provided for in s 75(1)(a) and (b) of the Federal Magistrates Act1999 (Cth) (“the FMC Act”). This is the father’s appeal against certain of those orders.
The father’s grounds of appeal are contained in a Notice of Further Amended Appeal filed on 6 February 2009. In that document the father seeks to challenge Orders 2, 3, 4, 5, 6 and 15 of the orders made on 17 October 2008. Leave had not been granted to file a Further Amended Notice of Appeal. The mother’s counsel opposed the granting of leave to rely on the document. I granted leave and indicated that I would give reasons with these reasons.
The mother resisted the father’s appeal. The Independent Children’s Lawyer (“ICL”) also participated in the appeal. The ICL did not support the father’s appeal, but said that the ICL would not oppose an order for the parents to have equal shared parental responsibility, or for an order that the children spend mid‑week time with the father once a week from after school until the commencement of school the following day and that the children spend time with the father during school holidays. This ambiguity was clarified by counsel for the ICL advising me that the proposed orders had been included in her written submissions to indicate to the parties orders the ICL thought appropriate should the parties negotiate a settlement (or if there was a further hearing), rather than submitting I should allow the appeal, and make these orders in the re-exercise of my discretion.
The father relied on 12 grounds of appeal. Those grounds can be conveniently grouped into topics:
(i)it was asserted the Federal Magistrate erred in making an order for the mother to have sole parental responsibility for the children when neither party, nor the ICL, sought such order at the hearing;
(ii)it was asserted that the Federal Magistrate was in error in failing to provide for the children to spend time with the father during mid-term school holidays and time with both parents on Christmas Day. Integrally associated with this challenge, and the challenge to the sole parental responsibility order, was the assertion that the Federal Magistrate denied the father procedural fairness by not providing an opportunity to him to make submissions in respect of the orders actually made;
(iii)it was asserted that the Federal Magistrate had failed to assess the parties’ proposals, and impact of his orders (which significantly reduced the time the children spent with the father), or to give adequate reasons for so doing;
(iv)it was asserted the Federal Magistrate erred in the exercise of his discretion in:
-failing to give appropriate weight to the father’s evidence about the mother’s past behaviour;
-failing to give weight to the children spending overnight time with the father on Wednesday evenings;
(v)that the Federal Magistrate erred in making adverse findings as to the attitude of the paternal grandparents; and
(vi)that the Federal Magistrate made factual findings which were not open on the evidence.
The father sought, if the appeal was allowed, that the Federal Magistrate’s orders should be set aside, and the matter remitted for rehearing before another Federal Magistrate.
I propose to consider the grounds of appeal by first addressing what were described as “the procedural fairness grounds” identified by me in (i) and (ii) above and then the “proposals and reasons grounds” (iii above). I will then consider the remaining grounds, which essentially challenge the exercise of discretion by the Federal Magistrate. I will then briefly deal with the asserted factual errors, and whether any error, if found, vitiated his Honour’s discretion. These grounds were not vigorously pursued before me, which is readily understandable given the well established principles setting limits on appellate interference with an exercise of discretion.
The applications before the federal magistrate
The procedural fairness challenge brings into sharp focus the applications which were before the Federal Magistrate.
In his application for final orders, filed 2 August 2007, the father sought an order that the parties have equal shared parental responsibility for the care, welfare and development of the children.
In her response, filed 5 September 2007, the mother did not seek any order about parental responsibility but sought orders as follows:
1.That the children [O], born [in] July 2000, [T], born [in] February 2003, and [V], born [in] June 2005, live with the mother.
2.That the children spend time with the father every second weekend, from after school on Friday to before school on Monday.
3.That for the purpose of spending time with the children under Order 2, the father collect the children from the school or child care centre that the children are attending at the time.
4.That if a Friday or Monday that the father is to spend time with the children falls on a public holiday, changeover of the children will occur at [a family restaurant], at 3:00pm on a Friday and 9:00am on a Monday.
5.That the father is to personally supervise the children at all time when they spend time with him.
6.That the mother reside with the children at the family home [in the south-west suburbs].
The mother did not seek to amend her application or, at any time during the proceedings, provide the Federal Magistrate with a Minute of Order Sought.
At the opening of the hearing the mother’s counsel confirmed that the mother sought the orders in her response, but proposed in addition to the alternate weekend time with the father, that the children should live with or spend time with the father, after school each Wednesday until the commencement of school the following morning (transcript, 12 June 2008, pp 4-5). In his closing submissions, counsel for the mother submitted Wednesday evening time could be for a period of several hours rather than overnight.
At the conclusion of the hearing the father’s counsel handed up a document entitled “Amended Minute of Orders Sought by the Applicant Father”. The orders sought relevant to this appeal were Orders 1, 2 and 3. They are as follows:
1.That the mother and the father have equal shared parental responsibility for the children:
a) [O] born [in] July 2000
b) [T] born [in] February 2003
c) [V] born [in] June 2005.
2.That the children live with the mother as follows:
a) except for during the Christmas school holiday period, on a two week cycle as follows:
i) from after school/day care on the first Monday of the two week cycle until after school/day care on the following Wednesday;
ii) from after-school/daycare on the first Friday of the two week cycle until after school/daycare on the following Wednesday;
iii) in the event that a changeover pursuant to order 2(a)(i) or 2(a)(ii) is to occur on a day which is not a school day, then the changeover is to occur at 3.00 pm, unless otherwise agreed to by the parties;
iv) that the operation of the two week cycle referred to in order 2(a):
(a)commence on the second Monday following the date of these orders;
(b)be suspended during Christmas school holiday periods; and
(c)recommence on the first Monday after the commencement of each new school year from 2009.
b) during the Christmas school holiday period:
i) for the first half of each Christmas school holiday period commencing in 2008 and each alternate year there after;
ii) for the second half of each Christmas school holiday period commencing in 2009 and each alternate year thereafter;
iii) for the purposes of order 2(b), Christmas school holiday periods will:
(a)commence at 10:00 am on the first day following the last day of school year;
(b)end at 10:00 am on the day immediately before the first day of the following school year; and
(c)the first half of the Christmas school holiday period will end at 10:00 am on the day following the midpoint of the Christmas school holiday period.
3.That the children live with the father at all other times. (original emphasis)
In the outline of case document prepared by the ICL, counsel for the ICL flagged as an issue:
·whether the presumption of equal shared parental responsibility applied; and
·if the presumption was rebutted, whether the parents should nevertheless have equal shared parental responsibility.
The ICL provided a Short Minute of Orders Sought at the conclusion of the hearing. That minute did not deal with either parental responsibility, or the time to be spent by either parent with the children, but rather contained a number of proposed injunctive orders, and orders for the parties to attend counselling.
Lindsay FM’s orders discharge all previous parenting orders, and provide that the mother have sole parental responsibility for major long term issues in respect of the children, and that they live with her.
Order 4 of the orders provides that the children live with the father during school term time each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and on Wednesday evening from the conclusion of school until 7.30 pm (my emphasis).
Order 4(b) of the orders provides for the father to spend time with the children as follows:
b)during Christmas school holiday periods:
i) for the first half of each Christmas school holiday period commencing in 2008 and each alternate year thereafter;
ii) for the second half of each Christmas school holiday period commencing in 2009 and each alternate year thereafter; and
iii) for the purposes of paragraphs 4(b)(i) and (ii) of this Order, Christmas school holiday periods will:
A)commence at 10am on the first day following the last day of the school year;
B)end at 10am on the day immediately before the first day of the following school year; and
C)the first half of the Christmas school holiday period will end at 10am on the day following the mid-point of the Christmas school holiday period;
iv) SAVE AND EXCEPT that the said children will spend time with the father from 3pm on Christmas Eve until 3pm on Christmas Day in 2008 and each alternate year thereafter NOTING that the said children will spend time with the mother from 3pm on Christmas Eve until 3pm on Christmas Day in 2009 and each alternate year thereafter.
It is apparent, except for Order 4(b)(iv), that the orders actually made in relation to the Christmas school holiday period were as sought by the father in his amended minute of order sought.
The parties agreed before me that Order 4(b)(iv) was capable of amendment pursuant to the “slip rule” requiring only the transposition of the word “father” where appearing in line 1 of the order and transposition of the word “mother” for “father” in line 4 of the orders.
A Family Report prepared by Ms J, a Regulation 7 Family Consultant, recommended the parents share parental responsibility, that the children live with the mother and spend time with the father on a two week cycle, from 3.30 pm Wednesday to 9.00 am Friday morning and in week 2 from 3.30 pm Wednesday to 9.00 am Monday morning. Paragraph (E) of the Family Consultant’s recommendations was “[t]he above system to continue throughout the school holidays unless otherwise agreed by the parents”.
On page 11 of her report, the Family Consultant noted:
…Whilst both parents are supportive of joint parental responsibility and have requested shared parental responsibility on a 50/50 basis, they currently do not have sufficient communication mechanisms necessary to effectively operate their joint parental responsibility, without assistance.
She also recommended that the parties attend counselling/mediation at a community centre such as Relationships Australian to establish a workable form of parental communication and decision-making.
The procedural fairness challenge
(a) The equal shared parental responsibility challenge
The federal magistrate’s reasons for judgment – equal shared parental responsibility
In his reasons for judgment the Federal Magistrate referred to a brief history of the litigation between the parties, and at paragraphs 11 of his reasons, explained:
11.The father sought an order for equal shared parental responsibility. The mother opposed such an order. I should note that an order until further order for equal shared parental responsibility was one of the orders made by consent on 5 September 2007. (my emphasis)
After recording his understanding of the parties’ proposals, the Federal Magistrate referred to provisions of Pt VII of the Family Law Act1975 (Cth) (“the Act”) and set out the objects provision in s 60B(1) and the underlying principles in s 60B(2). The Federal Magistrate then set out the factors to be taken into account in determining a child’s best interests under s 60CC(2) and (3) (the primary and additional considerations). Thereafter the Federal Magistrate set out s 61DA(1) of the Act (the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility). He thereafter referred to the section which sets out the circumstances in which the presumption does not apply (s 61DA(2)), and the circumstances when the presumption may be rebutted (s 61DA(3), (4)).
In paragraph 21 of his reasons the Federal Magistrate referred to the judgment of Walters FM in Mills & Watson [2008] FMCAfam 2 at paragraphs 72 to 76.
From reading the structure of Lindsay FM’s judgment it is clear that he proposed adopting a structure for determining the parenting application as outlined by Walters FM in Mills & Watson.
The Federal Magistrate summarised his conclusions about whether the presumption of equal shared parental responsibility applied, or was rebutted as not being in the children’s best interests, in paragraphs 129 to 139 of his reasons after he had made extensive findings about the contested evidence.
The Federal Magistrate commenced his discussion by referring to the father’s counsel’s submissions about the policy considerations behind Pt VII of the Act, including the desirability of parents participating in day to day routine matters for their children.
However, the Federal Magistrate determined first, that he accepted the mother’s counsel’s submission that the presumption of equal shared parental responsibility was rebutted because of family violence, and secondly that the presumption should not apply as it was not in the best interests of the children (paragraph 126). Thereafter, the Federal Magistrate provided detailed reasons why he found such an order would not be in the best interests of the children. He explained:
…But enabling the father to participate in matters relating to the medical care of the children, for example, have been singularly unsuccessful since separation. The child [V’s] dental treatment was delayed for a significant period of time on account of the father’s unco-operativeness in dealing with the various alternatives that were put to him by the mother. (paragraph 129)
The Federal Magistrate then explained that he did not accept the submissions made on behalf of the father as to his abandonment of the use of a communication book, and set out his conclusion that the father had only resumed using such a book “because it was thought to be tactically sound”.
The Federal Magistrate then dealt with the ICL’s position that, notwithstanding there had been some family violence, she asserted that such violence was “not necessarily on-going” and was not a disqualifying factor.
At paragraph 132 of his reasons, the Federal Magistrate discussed the ICL’s submission relating to benefits which would flow to the children if both of their parents shared parental responsibility. The Federal Magistrate rejected this submission saying:
…However, I thought Ms Falloon was essentially putting the same position as Ms [J] had about this and that is she was exhorting the parents to find a way to communicate properly about these matters. My difficulty is that I do not think the father will pay any meaningful attention to that exhortation.
At paragraph 133 of his reasons, the Federal Magistrate detailed the factors which caused him to reject the submissions made on behalf of the ICL referring to the difficulties which had occurred in relation to the child V’s dental work, operative treatment for the child T, and the issue of a communication book, which the father had declined to use until shortly prior to the hearing.
Turning to the question of the father’s attitude, and whether he was able to change that attitude, the Federal Magistrate said:
…My difficulty, however, is that I do not think the deep-rooted and near-pathological antipathy he has towards the mother, in which he is encouraged by his parents, will dissolve very easily. I did not think that the positive developments between the June and July hearings would have occurred if the trial had not been resuming. (paragraph 133)
Then, at paragraph 134, the Federal Magistrate referred to a number of other significant aspects of the evidence which militated against an order for equal shared parental responsibility. These matters included the fact the father had not spoken to the mother for a period of four months, and an episode where the father had refused to accept V’s medicine at an occasion of handover. The Federal Magistrate concluded:
…This was behaviour that was highly provocative and profoundly revealing of the extent to which the apprehended violence order proceedings and related proceedings in the Local Court have coloured the father’s approach to parenting issues post-separation. (paragraph 135)
The Federal Magistrate then referred to the father’s refusal to participate in mediation or counselling on the basis he was fearful of his safety, and made a finding that this attitude of the father would not suggest that counselling or mediation would serve to improve the father’s attitude towards communication.
The Federal Magistrate, at paragraph 136, then referred to ongoing litigation, including an appeal by the paternal grandfather against an Apprehended Violence Order and unresolved property issues between the parties. He concluded that such an environment was “highly unlikely to lead to any improvement in the communication between the parties”.
At paragraphs 138 to 139, the Federal Magistrate set out his conclusions about the father’s application for an order for equal shared parental responsibility and explained why he was satisfied that such an order would not be in the best interests of the children. The Federal Magistrate’s findings at paragraph 138 are significant. They were as follows:
An order for equal shared parental responsibility will, in my view, lead to an intensification of the disputation between the parties. The inability of the parties to communicate properly is something that has been patently witnessed by the children on very many occasions and an order for equal shared parental responsibility would increase the number of occasions on which the children are likely to experience that.
Counsel’s submissions
Before discussing the submissions made by counsel on the topic of equal shared parental responsibility, it is necessary that I set out ground 12 as appearing in the Further Amended Notice of Appeal:
His Honour erred in making an Order for the mother to have sole parental responsibility for the children (original emphasis)
That ground does not, on its face, suggest a procedural fairness error. However, counsel for the father made it clear in his submissions that this ground, as well as ground 11 (which concerns lack of provision for mid term school holiday time to be spent with the father) was agitated on the basis that the Federal Magistrate had not afforded procedural fairness to the father before making an order that the mother have sole parental responsibility in circumstances where she had not sought such an order.
In his written submissions, dated 2 February 2009, (page 13) counsel for the father noted that the mother had not sought an order for sole parental responsibility, and that both the “counsellor” and the ICL’s lawyer had recommended the making of such an order.
The father’s counsel submitted that the Federal Magistrate did not, in the course of final submissions, indicate to counsel appearing for the ICL whether he was considering making an order for the mother to have sole parental responsibility.
Given the basis on which this ground was argued, I raised with counsel for the mother whether there was any procedural unfairness to the mother, but no such objection was pursued. Thus, I was satisfied there was no prejudice to the mother. I also took into account that the mother had had the benefit of the written submissions of the father’s counsel some time before the appeal in which the issue of lack of procedural fairness was squarely raised. It was on this basis I granted leave to rely on the Further Amended Notice of Appeal.
The challenges articulated in respect of this ground in counsel for the father’s written and oral submissions substantially focus on procedural fairness issues, it being submitted “that the Federal Magistrate [did] not raise with the father’s counsel in a straightforward and unequivocal way the prospect that he may be considering making an order for sole parental responsibility” (father’s submissions, p 13).
The second major complaint agitated in respect of this ground was that the Federal Magistrate’s reasons did not address “the valid point made by the father’s counsel that there was no evidence before the Court, in the context of the father having had almost equal time over the last 12 months, that the parties’ inability to communicate had adversely impacted upon the children” (father’s submissions, p 13).
The essential thrust of the submissions made by counsel for the mother was that there was no error in the exercise of discretion by the Federal Magistrate in refusing to make an order for equal shared parental responsibility.
In her submission, counsel for the ICL did not address the question of whether or not there was appealable error by the Federal Magistrate, but as I have already noted, counsel for the ICL said at page 5 of her submissions:
Summary of the ICL’s position as to Orders sought by the Appellant
1.The ICL would not oppose an order for the parents to have equal shared parental responsibility.
2.The ICL would not oppose an order for the children to spend midweek time with the father once a week from after school until the commencement of school the following day.
3.The ICL would not oppose an order for the children to spend time with the father during school term holidays.
4.The ICL submits that the orders otherwise sought by the father on appeal are not substantially different from the Orders made by His Honour. (ICL’s submissions, p 5) (original emphasis)
The law
The principles dealing with natural justice and procedural fairness have been discussed in a number of leading High Court decisions. Coleman J exercising the appellate jurisdiction of the Court in KPR & MRS [2007] FamCA 1334 at paragraphs 60 to 63 of his reasons set out extracts from a number of those authorities as follows:
60.In National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296 at 312 Gibbs CJ said:-
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
61. In Kioa v West (1985) 159 CLR 550 at 612 Brennan J said that:-
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.
62. In Allesch v Maunz (2000) 203 CLR 172 at 184 – 185 Kirby J said:-
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties. (footnotes omitted)
63.In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 the High Court (Mason, Wilson, Brennan, Deane & Dawson JJ) said:-
That general principle [entitlement to a fair trial] is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
The principles are also succinctly summarised in Kioa v West by Mason J at 582 where his Honour said:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: …
Discussion
Consent orders entered into by the parties on 5 September 2007, and again on 21 November 2007, provided that the parties have equal shared parental responsibility for the children. Although the Federal Magistrate recorded that the mother opposed the father having equal shared parental responsibility, no application or minute of order was filed by the mother seeking sole parental responsibility for the children, or that she have an order for any aspect of decision-making for major long term decisions for the children.
Major long term decisions are defined in s 4(1) of the Act as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
An examination of the transcript of the parties’ final submissions before the Federal Magistrate (transcript, 16 July 2008, pp 168-172) reveals little in-depth discussion about the question of equal shared parental responsibility.
However, examination of the transcript of the exchanges between the Federal Magistrate and counsel for the ICL is illuminating. The following dialogue occurred:
FEDERAL MAGISTRATE: Are you suggesting an order for equal shared parental responsibility?
MS FALLOON: Your Honour, yes. I note that the mother’s documents so are silent in that, on that issue. Also, that it was the evidence of Ms [J] that communication was critical to that process. That is the order that’s sought by the father, and, your Honour, there is clearly evidence of matters that fall within the definition of family violence in the Act. The ICL, your Honour, submits that that violence appears to have grown out of the particular dynamics of the relationship between the parents. It doesn’t appear to have been habitual; it doesn’t appear to be arising out of innate characteristics of either party. It hasn’t been regular in the sense of happening weekly, or when persons have been doing other things such as drinking alcohol, and it hasn’t been continual.
The benefits to the children of having both of their parents share in their parental responsibility would be a matter of perception that each of these people whom they clearly dearly love does have a role in determining what is to happen in their lives. The parents must, for the benefit of the children, work out a way to speak to each other about those matters. I appreciate that the evidence of Ms [J] is that well if they can’t do that then this can’t be done. My impression of the general thrust of the father’s evidence was that he would do that if it was necessary to fix things up. I am putting that clumsily and colloquially, but that he wasn’t totally opposed to being engaged in some counselling or mediation process. He wasn’t totally opposed to the resumption of the communication book, which has apparently happened anyway. He apparently had some misunderstanding as to - - - (transcript, 16 July 2008, p 161, lines 8-34)
Having discussed aspects of the evidence with counsel for the ICL, the further following exchange occurred:
FEDERAL MAGISTRATE: We had the mother’s evidence that the father hasn’t spoken with her for four months.
MS FALLOON: Your Honour, the issues, if we can just think about those matters which go to long term – long term issues in parental responsibility essentially are decisions about schooling, decisions about medical treatment, care, dental treatment and things such as surgery, things like [V’s] teeth problems, and I think perhaps religious education comes into that.
FEDERAL MAGISTRATE: Yes.
MS FALLOON: And they would be, I think, the broad categories. Those, just taken alone, those matters would not actually need the parents to speak to each other if they are otherwise communicating by email, which they appear to be able to do, and it may be that after these proceedings, perhaps with the benefit of hindsight, and with the assistance of some professionals if they are required to attend those people, that they will find a way to actually speak to each other again. I absolutely appreciate, with respect, your Honour - - -
FEDERAL MAGISTRATE: I am not optimistic about that.
MS FALLOON: Sorry?
FEDERAL MAGISTRATE: I am not optimistic about that.
MS FALLOON: No, but if that didn’t work, your Honour, I’m really, with respect, raising the question whether that necessarily absolutely rules out shared parenting if that means being both involved in decisions about those long term issues - - -
FEDERAL MAGISTRATE: Yes.
MS FALLOON: - - - for the simple reason the children will understand that both parents are participating in their lives in that way. And the difficulty is that there doesn’t seem to have been a proposal to the contrary from either party.
FEDERAL MAGISTRATE: No. (transcript 16 July 2008, pp 162-163, lines 42-49, 2-30)
This raises the question – was the Federal Magistrate in the circumstances of this case, where no order was sought by the mother for sole parental responsibility, or any particular aspect of parental responsibility and took no formal steps to contest the father’s position that there should be an order for equal shared responsibility, obliged to raise directly with the father’s counsel that he was contemplating making an order in favour of the mother for sole parental responsibility?
In U v U (2002) 211 CLR 238; (2002) FLC 93-112 Gummow and Callinan JJ considered, in their joint judgment, whether or not the trial Judge in a relocation case had erred in failing to consider the proposals of each of the parties and in making an order different to that sought by each of the parties. At paragraph 74 their Honours noted:
That the Court’s role may go beyond the mere choice between two or more proposals by the parties, appears expressly, for example, from the provisions of s 68L which empower the Court to make an order for separate representation of a child on the Court’s own initiative. Other sections of the Family Law Act which also, if in some instances rather broadly, define the issues, should be noted.
Their Honours thereafter referred to ss 60B, 61C and 61D (as then currently in force). At paragraph 80, their Honours said:
We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.
(I note that, prior to 2006, s 68F provided a list of factors to be taken into account in assessing the best interests of a child.)
In his separate judgment, Hayne J, in discussing competing proposals of parents in child-related proceedings, said at paragraph 171:
In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular “proposals” that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court’s inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact. (original emphasis)
Hayne J then, at paragraph 172, placed some qualification around his earlier statement saying:
That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)
The Family Consultant’s recommendation for an order of equal shared parental responsibility was qualified. Her recommendation of equal shared parental responsibility was dependent upon the parties attending mediation or counselling to improve their communication skills. Although the Federal Magistrate ultimately made an order for counselling, he said it was unlikely “to improve his [the father’s] attitude towards communication” (paragraph 135).
The exchange between the Federal Magistrate and counsel for the ICL clearly indicated that he had significant concerns about the appropriateness of an order for equal shared parental responsibility. Counsel for both parties had an opportunity to respond to the tentative views expressed by the Federal Magistrate at that point.
There is no doubt, having regard to the statements of the High Court in U & U, the Federal Magistrate, if he determined it was in the best interests of the children that the mother have sole parental responsibility, or responsibility for some aspects of parental responsibility, to make such an order even though it was not proposed by the mother.
The natural corollary of rejection of the father’s position is, that if the Federal Magistrate found the presumption of equal shared parental responsibility, as he did in paragraph 126 of this reasons, was rebutted, and in any event was not in the best interests of these children, for there to be an order for sole shared parental responsibility (or sole responsibility for some of the aspects of parental responsibility), in favour of the mother.
The matter of whether an order for parental responsibility should be made was squarely in issue. It was raised by counsel for the father with the Federal Magistrate in his closing submissions. The father’s counsel submitted:
If your Honour were minded to order that there ought not be shared parental responsibility, in my submission what that does is it shuts the father out from a real capacity to be involved in the care of these children because part of the care of these children involves decisions about those issues. (transcript, 16 July 2008, p 173, lines 11-14)
The Federal Magistrate responded to that submission as follows:
FEDERAL MAGISTRATE: You see, I must say that part of the difficulty, Mr Ladopoulos, is that – I mean no doubt there have been cases, it’s just I cannot recall one for a moment where I’ve seen on the one hand a parent seek equal shared parental responsibility and equal time, as it’s seven nights per fortnight your client is promoting, and on the other hand, tell me that his position is that the parties should not even communicate with each other through a communication book, which is really evidence that he had ceased using it because – I mean he gave his explanation which, to be candid with you, I don’t accept, that is he had any reasonably or honestly held belief as to the accuracy of what he was told by – if he was told it by a police officer.
But it is an unusual case to see equal time being promoted on the one hand, and on the other, a parent saying – asking me to accept that there should just be no communication between the parents at all, not even in the form of a communication book. I understand the submission you are putting to me, and you are putting it very clearly to me, but your client’s conduct makes it difficult for me to accept that submission. (transcript, 16 July 2008, p 174, lines 13-29)
However, the father’s counsel did not then submit the father should, in the alternate, retain discrete aspects of parental responsibility. It was open to him to put that position, in the alternate, to the Federal Magistrate.
It could not be said that the Federal Magistrate’s orders were made after “some roving inquiry … unfettered by any regard for the evidence led”. In this case the robust exchange between both counsel for the ICL and counsel for the father and the Federal Magistrate in final submissions should have alerted the father’s counsel to the prospect that the Federal Magistrate might be contemplating making an order that the mother have sole parental responsibility.
Although it would have been preferable for the Federal Magistrate to directly raise with the father’s counsel that he was contemplating making an order that the mother have sole parental responsibility (with the consequence the mother independently had responsibility for all major long term decisions affecting the children’s welfare), I am satisfied there was sufficient notice to the father, who was represented by experience counsel, to be alert to such a possibility and this overcame any procedural fairness challenge in respect of this order. Consequently, I find no merit in this proposed ground.
(b) Asserted error in failing to make provision for the children to spend half school holidays with the father
The second procedural fairness complaint was in respect of the Federal Magistrate’s treatment of school holidays, particularly mid-term school holidays, and failure to make an order for the children to spend time with the father on Christmas Day.
As I noted at the commencement of these reasons, the parties agreed that there was an accidental slip or error in the Federal Magistrate’s orders providing for Christmas Day time to be spent by the father with the children, and that this order could be amended pursuant to the “slip rule”. Accordingly, I do not propose to consider the matter further.
The father’s counsel pointed out that, in neither party’s proposal was it sought the time arrangements should be suspended during school holidays. Rather, he asserted that the Federal Magistrate had failed to take into account that the father had been spending time with the children during school holidays since the making of interim consent orders in September 2007, as further amended in November 2007. Those latter orders were an exhibit before the Federal Magistrate. The father’s counsel further submitted:
·there was no suggestion that school holiday time had not occurred;
·the mother raised no issue of any difficulty with school holiday contact in her submissions or by way of cross-examination of the father, nor did she make any complaint about school holidays to the Family Consultant;
·the mother’s view, as recorded by the Family Consultant, was that the equal time arrangements should continue through the school holidays; and
·the father’s proposal as put to the Federal Magistrate would have resulted in him having equal time with the children during school holidays.
The father’s counsel relied on what may be described as a “global” submission in his written submissions, both in respect of Christmas Day and mid-term school holidays, as follows:
It is submitted that, while his Honour has a wide discretion in making parenting orders, and, while his Honour was not bound by the proposals of either party in deciding what orders to make, nevertheless in circumstances where he was contemplating making an order different to the orders which were sought by either party and which were different to the current interim orders (about which neither had complained), it was incumbent upon his Honour to draw that fact to the parties [sic] attention and to invite that party to make submissions to his Honour on that subject. This his Honour did not do. (father’s submissions, p 4)
Not surprisingly, the mother’s counsel’s submissions noted that mid-term time was not sought by either party. Similar submissions are contained in the written submissions of the counsel for the ICL. I have already referred to the material in the ICL’s counsel’s submissions where she set out suggested orders under the heading “Summary of the ICL’s position as to Orders sought by the Appellant”. It is noted that the ICL would not oppose an order for the children to spend time with their father during school term holidays at a rehearing, or if the parties reached agreement to that effect.
As with the challenge to the ground relating to equal shared parental responsibility, it is necessary to consider how the case proceeded before the Federal Magistrate, particularly the orders eventually sought by the parties and made by him. This examination will consider the question of Wednesday evening time with the father, which is also subject of a separate ground of appeal.
I have already set out earlier in these reasons the orders sought by the father at the conclusion of the hearing. I note, as recorded by the Federal Magistrate, there were adjournments throughout the course of the proceedings to enable the parties to engage in settlement negotiations designed to reduce the areas in dispute between them. In some ways those discussions had the result of the orders being sought becoming a “moving feast” with the mother’s position changing somewhat throughout the proceedings, and particularly following questions addressed to her by the Federal Magistrate. Certainly examination of the transcript at several points during the hearing demonstrates confusion as to what each party was actually seeking by way of weekly time periods with the children. But at no time did either party formally ask the Federal Magistrate to make orders for mid-term holidays, nor did the ICL seek such an order. However, it is clear from paragraph 61 of the Federal Magistrate’s reasons that he was aware the children had been spending school holiday time with each parent as, in that paragraph, he refers to school holiday change-overs occurring in a shopping centre.
As the Federal Magistrate noted, at paragraph 9 of his reasons, only one child was attending school at the date of the hearing, the two younger children were attending kindergarten or day-care. The second child was to commence school in 2009, whilst the youngest child was only aged 3 years.
The Federal Magistrate did not in his reasons discuss school holiday contact at all. He did explain that the paries were a “very long way from concluding the legal proceedings available to them” and “[l]itigation will be continuing for some time”. But the issue now to be determined is whether the Federal Magistrate’s failure to make an order for the children to spend one half of mid-term school holiday periods with the father constitute appealable error. As I have already noted, neither party sought such an order, nor did the ICL recommend the making of such an order. The Family Consultant specifically recommended, in paragraph E of her recommendations, that the pattern of care for the children continue through school holiday periods unless otherwise agreed between the parents. Given the children’s ages and developmental needs that recommendation is readily understandable.
It is impossible from the Federal Magistrate’s reasons to discern why Order 4 of his orders was limited to school term time with this having the effect the children spend all mid-term school holidays with the mother. I accept that his focus was not drawn to the question of school holidays by either of the parties’ competing applications. It is unfortunate this was the case, and highlights the need for orders sought in an application (and a response) to be carefully drafted, and if different orders to those in an application or response are sought at the hearing for those amendments to be clearly articulated to the judicial officer. It is clearly preferable for any amendment to be made in writing in a Minute of Order sought. Notwithstanding the FMC Act mandates that proceedings should be conducted as informally as possible, the need for precision about the parenting orders sought is obvious in this busy court where a Federal Magistrate deals with many competing parenting applications on a regular basis.
I also note that as the Federal Magistrate found the presumption of equal shared parental responsibility was rebutted and, further, not in the children’s best interests, he was not required to consider making orders for substantial and significant time (which would include holidays s 65DAA(3)). Further, even if he had been required to make orders for substantial and significant time, the Christmas holiday period included in the orders satisfied that definition.
However, it is not clear to me whether the provision in Order 4 that time spent by the father with the children be limited to school term time (particularly when the two younger children were not attending school) is an accidental slip or omission, or whether the limitation was deliberately included in the order. If the latter is the case, I accept that neither party sought such a limitation in the orders they sought. There is no discussion anywhere in the judgment about why it would be in the children’s best interests for time spent with the father to be suspended during the whole of each mid-term school holiday period. The limitation was not raised by the Federal Magistrate with either party’s counsel or the ICL at the hearing. In these circumstances I accept the father was not afforded procedural fairness, and there is merit in this ground.
Asserted failure of the federal magistrate to assess the impact of his orders reducing the amount of time the children spent with the father
The third major challenge to the Federal Magistrate’s orders was the assertion that he had erred in failing to properly assess the paries’ proposals, and erred in failing to give consideration to the impact of his orders “providing for the children to have only limited time with the father upon the relationship of the father and the children”.
Counsel’s submissions
In his written submissions counsel for the father referred to the interim orders in place at date of the hearing which provided for the children to spend each weekend with the father from after school on Friday until before school on Monday – that is, the children spent three evenings every week with the father, or six nights per fortnight. It was asserted on behalf of the father that the effect of Lindsay FM’s orders was to reduce the father’s time with the children during school terms by half. Counsel for the father further noted that it was an undisputed fact the father was spending one half of all school holiday periods with the children at the date of the hearing.
Counsel for the father referred to the Family Report, noting the Family Consultant’s view that the father and the children had formed a strong relationship, and that, in the Family Consultant’s opinion, the children would not have trouble adjusting to extra time with the father on weekdays.
It was asserted by the father’s counsel, contrary to the findings of the Federal Magistrate, that the mother’s position was as described by her counsel at trial “crystal clear” namely that the children should spend time with the father each alternate weekend and overnight every Wednesday night (a total of five nights per fortnight) (father’s submissions, p 7).
Counsel for the father, in his oral submissions, submitted while the Federal Magistrate had identified at the commencement of his reasons the correct principles and a suitable approach to determining a parenting application, he had not followed through with the approach identified. The father’s counsel submitted that his Honour had identified the relevant provisions of Part VII including the objects and principles in s 60B (1) and (2), the two primary considerations in s 60CC(2), and proceeded to make findings about matters relevant to the additional considerations under s 60CC(3), but having made such findings, had failed to return to return to discuss the benefits of the children having a meaningful relationship with the father. Implicit in this submission was the assertion that the reduction in time wrought by the orders would or could deprive the children of a meaningful relationship with the father. He further asserted that whilst the Federal Magistrate had said he proposed to consider orders which would provide for substantial and significant time and whilst the orders made fell “technically” within the definition of “substantial and significant” time, they did not, in reality, do so.
By contrast, the mother’s counsel submitted the orders made by the Federal Magistrate were “consistent with the evidence placed before the court during the hearing”. The mother’s submissions were supported by the ICL who noted that the orders made fell within the definition of substantial and significant time in s 65DAA(3) of the Act.
The trial Judge’s discussion of the parties’ competing proposals, and his determination of the time issue
I have already referred to the general structure of the Federal Magistrate’s reasons.
The Federal Magistrate first considered the orders sought by the parties at paragraph 7 of his reasons where he said:
The orders sought by the parties under-went significant modification during the course of the proceedings. A singular aspect of the matter was the recommendation of the report writer for an arrangement whereby the children spent seven days per fortnight (not consecutive) with each of the parties. I say ‘singular’ because there was nothing in the history of the matter to the point of the report which indicated that such an arrangement was sought by either party or was conceivably workable. She made that recommendation because she thought the parties had reached an agreement to that effect. I will hereunder return to the impact this miscarried intention had upon the value of the evidence of the report writer.
The Federal Magistrate went on to summarise his understanding of the mother’s position at the end of trial, as well as the effect of the orders sought by the father. Given the father’s challenge to, firstly, the accuracy of the Federal Magistrate’s summary of the paries’ proposals, and, secondly, to the orders ultimately made which provide that the father spend time with the children each Wednesday from after school until 7.30 pm, but not overnight, I set out the relevant paragraphs in full:
8.At the end of the trial the mother was seeking an order which saw the children live with the father from the conclusion of school on the Friday to the commencement of school on the Monday in alternate weeks and on each Wednesday evening. Even that final position was modified in the closing address of her counsel to the point at which what was proposed on the Wednesday was several hours rather than an overnight period.
9.The father’s position at the end of the trial was that there would be a two-weekly cycle. One week would be from Wednesday after school to the commencement of school on Monday and in the second week from Wednesday evening until Friday afternoon. I will provide further detail hereunder in relation to my understanding of this proposal. It was complicated in the sense that only one child was of school age and the younger children were attending either kindergarten or day-care. Perhaps the most unambiguous way of expressing the father’s proposal with respect to the second week would be to say that it involved the mother’s time with the children resuming at the close of school/kindergarten/day-care on a Friday.
10.The father’s proposal, therefore, was that the children live with him for seven nights per fortnight.
The Wednesday overnight challenge
A careful reading of the transcript reveals that, at the commencement of the hearing on 12 June 2008, the Federal Magistrate had before him the Family Report. In her report, the Family Consultant recorded that the parties had agreed the interim orders, which saw the children spending each weekend with the father, and all weekday time with the mother, were “restrictive”. At paragraph 2(b) to (e) of her report, the Family Consultant noted the parties’ discussions about a shared parenting regime which involved the children spending alternate weekends with each parent, and their agreement as to a shared parenting regime.
At the commencement of the hearing there was discussion between the legal representatives, including counsel for the ICL as to the ambit of the dispute between the parties. After a short time for negotiations, counsel for the ICL advised the Federal Magistrate that agreement had not been reached, and the agreement referred to in the Family Report was not to be implemented. The Federal Magistrate was informed by counsel for the ICL that the mother sought the orders in her response with perhaps the addition of some time on a Wednesday (transcript, 12 June 2008, p 4), but the mother’s counsel advised her proposal included each Wednesday night overnight.
On the third day of the hearing (16 July 2008) counsel for the mother confirmed the amendment to her response in which she expanded the time that the father should spend with the children to include overnight each Wednesday. The mother was cross-examined as to why she rejected the father’s proposal that the children should stay with him on Thursdays and be returned to school, or her care, on Friday mornings. The mother rejected that proposal on the basis that it was not in the children’s best interests to be in day care, as was the father’s proposal, when she was available to care for the children.
After the Federal Magistrate asked for clarification of the parties’ proposals counsel for the mother said:
MR HENNESS: Your Honour, it is crystal clear what the mother’s position is. It is this; that the father spend time with the children from Friday after school to Monday morning each alternate weekend and then every weekday from Wednesday after school to Thursday morning. (transcript, 16 July 2008, p 121)
The Federal Magistrate then attempted to ascertain the father’s position in relation to the mother’s amended proposal. The father’s counsel indicated “[b]ut it is effectively the one day. It’s from Thursday morning through to Friday morning that’s in dispute” (transcript, 16 July 2008).
Also relevant to this challenge to the Federal Magistrate’s orders are parts of the mother’s cross-examination. During the mother’s cross-examination the Federal Magistrate asked the mother why she thought it was in the best interests of the children to spend Wednesday evenings of each week with their father. The mother replied:
Well it’s in the middle of the week which means homework’s not an issue in the middle of that time and it also gives a break during the week for the children to be able to have a flying visit with their dad if it was a long period of time. I know the children miss us both when they’re not with us. But also wouldn’t – like it would still allow continual speech therapy to be done with [T] on almost a daily basis.
All right. Look, you may not have understood my question. I mean I’m not so much interested in finding out why Wednesday’s the least - - -?---Least impracticable.
- - - least impracticable day but why should there be mid-week contact per se between the children and their father in your view?--- I think because the children need contact with both of us and that I know that I’ve had tears coming back saying: ‘I miss you mum’, and I can only assume that they say that to dad as well. And it would actually take it down to a small time in the week where they touch base with both of us basically. (transcript, 16 July 2008, pp 131-132)
At the conclusion of her cross-examination by the father’s counsel the Federal Magistrate asked the mother about mid-week time with the father as follows:
FEDERAL MAGISTRATE: Yes, thank you, just before you begin your cross-examination, can I just ask one more question? You spoke of the need for the children to see their father at some stage during the week?---Mm.
Would the interests or the needs of the children in that regard be met by them having, say, a meal with their father on an evening during the week?---That would be fantastic as well.
So you’re promoting an order which sees them spend overnight on a Wednesday with him?---Yes, but, you know, I thought that would be easier for them as well. Like, if it’s easier for them just to spend a meal, that would be, but you know, they would really appreciate that.
Which of those two alternatives, just looking at those two for the moment, which of those two alternatives, from your perspective, is the better for the children?---I think the kids would enjoy either at all, but just having some fun time with their dad without having to be hurried and rushed in the mornings to try and get him off to work and them off to school and everywhere else that they have to go might ease his stress as well as that. But, you know, I believe either would be really good, but I hadn’t thought of that other. (transcript, 16 July 2008, p 142)
In his final submissions the mother’s counsel addressed the question of mid-week time with the father as follows:
MR HENNESS: Thank you, your Honour, I’ll try and be brief. Your Honour, the mother’s position is, in a sense, each alternate weekend as from Friday afternoon through to the Monday morning. She did amend her application to include each Wednesday night after school through to the Thursday morning. In evidence she suggested, upon your Honour’s question, that it would be equally as good if that were a period for several hours during the Wednesday. Having had the discussion with my client, she’s indicated that at some stage that was in fact what was occurring. (transcript, 16 July 2008, p 168)
In his final submissions the father’s counsel addressed the issue of Wednesday overnight with the father as follows:
… It allows him to be involved in the routines of the children and not just the pleasant routines, but also those which might be considered the more onerous ones. Your Honour questioned the mother about whether the Wednesday night could be replaced by a dinner, some hours for a dinner, but in my submission, your Honour, that is not the same, for exactly that reason. Taking the children out for a dinner is in a sense having a few hours having a good time with the children and for them to have a good time with their father, but they need to know that their father is not there just for having a good time, but their father is also there to be responsible for them, to discipline them when they need to be disciplined, just as the mother does those things. If all of the onerous responsibilities were left to the mother, indeed, one might say that there is a risk of the children forming a view that their mother is the hard task master and, you know, fun is with Dad, so we’d like to be with Dad because he’s the fun person. It is a distorted view of reality.
And again, your Honour, for almost a year now, very close to a year, effectively what the children have been doing is having almost equal time with each of the parents, six nights with the father a fortnight, eight with the mother and during that time, the only thing that really arises out of that in terms of an enduring issue or shortcoming with that arrangement, is that [O] has said that she wants to have some weekend time with her mother, and the father accepts that, and indeed it is quite appropriate that the children ought to be able to have some weekend time with each parent. … (transcript, 16 July 2008, p 177)
Discussion
There are two discrete aspects to the challenge to the Federal Magistrate’s “time” orders. Insofar as it is asserted there was a lack of procedural fairness to the father in respect of the issue of time on Wednesday (overnight rather than for several hours) I am not satisfied that challenge is established for the following reasons:
·although the mother’s position changed during the trial the topic of limited time on Wednesday evenings, rather than overnight, was raised by the Federal Magistrate after the mother’s cross-examination. The Federal Magistrate afforded the father’s counsel an opportunity to reopen his cross-examination as a result of the questions he had asked but counsel did not take up the Federal Magistrate’s invitation (transcript, 16 July 2008, p 142); and
·the father’s counsel heard the submissions of the mother’s counsel and responded to them.
Impact of reduction of time
The second and substantive limb of the father’s complaint was that the Federal Magistrate failed to consider the impact of his orders on the children when the effect of the orders was to significantly reduce the children’s time with the father. Ancillary to this complaint was the submission that his Honour had not exposed, or sufficiently exposed, his reasoning for the orders ultimately made.
Principles – adequate reasons
The principles relevant to the giving of adequate reasons are well known and do not require elaboration (see Bennett & Bennett (1991) FLC 92-191, Pettitt v Dunkley (1971) 1 NSWLR 376, Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).
Relevant provisions of the Act
The amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) rest on what have been described as “twin pillars”. Those pillars are the two provisions in s 60CC(1) and (2) which are informed by the objects and principles in s 60B(1) and (2). Sections 60CC(1) and (2) provide:
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The Court must also, in determining a child’s best interests, consider the additional considerations in s 60CC(3).
Discussion
It is clear from an overall reading of the Federal Magistrate’s reasons that he carefully canvassed the evidence in the Family Consultant’s Family Report. Although the Federal Magistrate did not specifically refer to the provisions of s 60CC(3), and it would have been helpful if he did so, it is clear that the Federal Magistrate made findings, albeit not in the order set out below, or with reference to the relevant subsections of s 60CC(3), that:
·the eldest child’s view was that she wanted to spend weekend time with the mother but the father had not facilitated arrangements to put that into place (s 60CC(3)(a));
·the children had a good relationship with the father (s 60CC(3)(b));
·the father had a very low opinion of the mother’s parenting capacity (s 60CC(3)(c));
·the mother by reason of her part-time work was more available and had flexibility in her working arrangements to provide care for the children (s 60CC(3)(f));
·he was concerned that father was unable to deal with parenting matters without heavy reliance upon his family (s 60CC(3)(f));
·the inability of the parties to communicate militated against the proposition that equal time would be in the children’s best interests (s 60CC(3)(c) and (i));
·the father had behaved inappropriately at changeovers (s 60CC(3)(i));
·the father had not acted responsibly in the past by participating in matters relating to medical care of the children and in particular he had not facilitated appropriate dental care for V (s 60CC(3)(i)); and
·the father was subject to an AVO and had engaged in inappropriate conduct behaving in a “violent and intimidatory manner” (s 60CC(3)(j)).
His Honour did not, however, discuss s 60CC(3)(d). That subsection provides as follows:
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders made by the Federal Magistrate, save and except for mid-term holiday periods, enabled the father to spend time with the children every week albeit for less periods than those in place by reason of the interim orders. His Honour, having found the presumption of equal shared parental responsibility was rebutted, and should not be applied as it was not in the children’s best interests to do so, was not mandated by s 65DAA to consider an equal time proposal or a substantial and significant time regime. But the Federal Magistrate proceeded on the basis he should make orders for substantial and significant time. However, in assessing what was in the best interests of the children, the legislation mandated he consider the benefit to the children of a meaningful relationship with the father, and the need to protect the children from being subject to abuse, neglect or family violence.
The Full Court discussed what is meant by a meaningful relationship in McCall & Clark [2009] FamCAFC 92. After noting that the Act does not contain a definition of “meaningful”, and referring to cases in which s 60CC(2)(a) had been considered, the Full Court set out three possible interpretations of the section and then said, at paragraphs 119 to 122:
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120.We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
121.In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. (original emphasis)
At paragraph 112 of the Federal Magistrate’s reasons he recorded the submission of counsel for the ICL that it would be beneficial for the children to spend time with each of their parents. Paragraph 112 is as follows:
Ms Falloon said that the evidence made it plain that it was beneficial for the children to spend time with both of their parents and I accept that. She was satisfied with an order that saw the children spend substantial and significant time with the parent with whom they are not mainly living. This gave appropriate weight to the first of the primary considerations.
Although Federal Magistrate accepted that the children had a good relationship with the father, he discussed, at paragraph 114 to 120, the factors which he considered to be adverse to the father’s parenting capacity, which I have summarised in paragraph 105. Those matters appear to be the Federal Magistrate’s conclusions in respect of the additional considerations. This view is fortified by his Honour’s consideration of s 60CC(3)(l) in the immediately following paragraph (paragraph 121).
It is implicit in the Federal Magistrate’s acceptance of the submissions of counsel for the ICL that he recognised there was a good relationship with these very young children with the father, and that they should spend time with him. However, no where in his reasons does the Federal Magistrate explain why he determined a regime which significantly reduced the time the father had been spending with the children, including cessation of any mid-term school holiday time, would maintain and promote a meaningful relationship between the children and the father and was in their best interests. I have already noted that the Federal Magistrate failed to consider this issue, which he could have conveniently done under s 60CC(3)(d).
While on the evidence before the Federal Magistrate, it may well have been open to him to reach an ultimate conclusion that the reduced time to be spent by the father with the children was sufficient to ensure they had the benefit of a meaningful relationship with him, and because of adverse aspects of the father’s parenting capacity such orders were in their best interests, the reasons do not make this clear.
I have borne in mind in hearing this appeal that an appellate court should not uphold grounds based on an “overly critical, or pernickety” analysis of reasons (see AMS v AIF (1999) 199 CLR 160, per Kirby J at 211 [150]). That exhortation has resonance to some of the matters raised in this appeal, particularly as I will shortly discuss, the grounds asserting factual errors. But in this case, I am simply unable to discern from the Federal Magistrate’s reasoning, his consideration of the effect of the reduction in time the children would spend with the father, and the impact of that reduction, if any, on the children having the benefit of an ongoing meaningful relationship with the father. Thus I am satisfied there is merit in this challenge insofar as it is based on lack of adequate reasons.
The weight grounds
The submissions of counsel for the father on the “weight” grounds do not suggest that his Honour overlooked any relevant evidence. Rather, it is asserted the Federal Magistrate gave excessive weight to the poor relationship between the parties, and gave insufficient weight to the evidence favouring the father, and the recommendations of the Family Consultant.
As counsel for the father appropriately acknowledged in his oral submissions, the circumstances where an appellate court can overturn a discretionary judgment on matters of weight are extremely limited (see Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716). This was not one of those limited cases. I am not satisfied that the weight grounds are established.
Asserted factual errors
At the hearing of the appeal, ground 5 was not formally abandoned by the father’s counsel, but he made no submissions about it on the basis that the preceding challenges to the Federal Magistrate’s reasons were the predominant challenge to the orders ultimately made. For completeness I will deal briefly with this ground.
Ground 5 of the grounds of appeal asserts that the Federal Magistrate made adverse findings of a factual nature against the father which were not reasonably able to be made on the evidence. Four factual findings are identified in counsel for the father’s submissions:
1.That the father attributed the cause of his stroke to the behaviour of the mother.
2.The he held the belief that the mother was trying to kill him.
3.That the father prolonged the proceedings rather than negotiating a settlement for the purposes of ensuring that the children were in day care on Thursdays rather than with the mother.
4.That the father’s withholding of the communication book was not related to the advice given to him by the police as to a possible breach of the Apprehended Violence Order. (footnotes omitted)
The Federal Magistrate dealt with the evidence concerning the father’s stroke, and the mother’s assertion the father believed she was trying to kill him in paragraphs 35 and 49. In paragraph 48 of his reasons the Federal Magistrate set out his observations of the father. There can be no doubt the Federal Magistrate, who was in a unique position to do so, formed an adverse view of the father, and determined he was unable to believe parts of the father’s evidence (see Warren v Coombes (1979) 142 CLR 531, Jones v Hyde (1989) 63 ALJR 349 at 351-352; 85 ALR 23 at 27-28, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482 – 483). It is against this background that these complaints must be assessed.
In paragraph 35 of his reasons the Federal Magistrate said, referring to the father:
…He had had a stroke in 2006 which on the basis of his Affidavit material and the information provided to the report-writer (and confirmed with his evidence in the witness box) he attributed (with varying degrees of responsibility) to the behaviour of the mother. She alleged that for a period of time leading up to the separation he had consistently claimed that she was poisoning him. I accepted the mother’s evidence in that regard. (my emphasis)
The Federal Magistrate returned to the topic at paragraph 49 of his reasons where he referred to the mother’s evidence which he accepted. I accept that the father’s affidavit material does not make the assertion referred to by the Federal Magistrate in paragraph 35. But the assertions are contained in the mother’s affidavit filed 3 August 2007. In paragraph 49, after observing the demeanour of the father in the witness box during cross examination, the Federal Magistrate determined he accepted the evidence of the mother. That course was well open to him.
It must be remembered that a factual error must be one which vitiates the exercise of discretion in order to constitute appealable error (see De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605). I am not satisfied that the Federal Magistrate’s incorrect recording in paragraph 35 of the source of the evidence vitiated the exercise of his discretion.
The father’s complaint about the Federal Magistrate’s recording of various agreements between the parties which ultimately did not come to fruition was consistent at least with the evidence of the Family Consultant. Whilst the inference drawn by the Federal Magistrate in respect of the parties’ negotiations during the course of the hearing may not have been open to him, there was no dispute that the father’s case was that the children should be with him on a Thursday which would necessitate, because of his employment, their attendance at day-care, rather than remaining in the care of the mother. Accordingly the Federal Magistrate’s ultimate finding about the father’s attitude on the issue of the children being with him on Thursday was open on the evidence.
It is unnecessary that I say anything about the father’s final complaint about the communication book. His Honour’s rejection of the father’s evidence on that topic was consistent with his credit findings in paragraph 49 of his reasons. Likewise, it is unnecessary that I say anything about the Federal Magistrate’s preference for the mother’s evidence, rather than that of the paternal grandparents. His Honour’s findings about the grandparents’ attitude was a relevant factor under s 60CC(3)(m). Accordingly I find no merit in ground 5.
Other challenges
In his further amended Notice of Appeal the father challenges Order 6 of the orders made by the Federal Magistrate. Order 6 provides as follows:
The parties are restrained and an injunction is granted restraining each of them from permitting any relative or support person to be within one hundred (100) metres of the said children during handover.
No ground of appeal was addressed to this order. Accordingly I do not address this order.
Future conduct of the proceedings
Although the independent children’s lawyer indicated her position about appropriate orders for the children, she did not suggest that in the event the appeal succeeded in whole or part, I should re-exercise the discretion to make such orders. The position of the father was clear, in the event I found appealable error he sought the matter be remitted for rehearing.
I regret that the lack of reasons in respect to the substantive ground argued means it is impossible for me to re-exercise the discretion. Accordingly, the matter must be remitted for rehearing. Although the father has not succeeded in his challenge to the order for equal shared parental responsibility, it appears to me that the matter should be remitted for rehearing before a Federal Magistrate other than Federal Magistrate Lindsay. That being the case, having regard to the discussion in Hartnett & Sampson (Scope of Rehearing) [2009] FamCAFC 1 about whether a trial Judge conducting the rehearing of a matter can adopt the findings of the original trial Judge, I consider that the matter will require the rehearing of the whole of the parenting issues in dispute including the question of equal shared parental responsibility. Unlike the situation in Hartnett & Sampson however, I note s 69ZX(3) of the Act does apply in this case, and this provision may be utilised at the rehearing to reduce court time involved, and to limit the parties’ costs.
Costs
At the conclusion of the hearing I sought submissions from the parties in respect of the costs of the appeal. The parties and the ICL sought, in the event the appeal succeeded, that they should receive certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the rehearing. As I am satisfied the appeal should be allowed on the basis of error of law I propose to make orders for such certificates.
I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 15 July 2009
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