CJM and LM

[2005] FamCA 1033

[2005] FamCA 1033  

JFCJMLM

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 49 of 2005
File No. NCM 3509 of 2004

IN THE MATTER OF:

CJM

Appellant/Father

- and -

LM

Respondent/Mother

REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN
HEARD:  11^th day of October 2005
JUDGMENT:  31^st day of October 2005

APPEARANCES:                 Mr Tregilgas of Counsel, (instructed by Steven T Parrott, Solicitors, Shop 10, 37 Ferodale Road, Medowie NSW  2318) appeared on behalf of the appellant father.

Mr Foster of Counsel, (instructed by PJ Wood & Associates, Solicitors, 25-35A Park Road, Hurstville NSW  2220) appeared on behalf of the respondent mother.

Name of Appeal  CJM & LM

Appeal Number  EA 49 of 2005

Date of Appeal Hearing                   11^th day of October 2005

Date of Judgment  31^st day of October 2005

Bench  Coleman J

Catchwords:Appeal against interim orders of Federal Magistrate providing for children to reside with respondent and contact with appellant.

No objection to late affidavits being relied upon by respondent at trial – correctly relied upon by his Honour – such affidavits crucial to determining best interests of the children.

The assertion that the Federal Magistrate erred in stating and applying the test with respect to risk as one of “unacceptable risk” instead of a test of “strong or overriding indications”, as set out in Cowling v Cowling (1998) FLC 801, unnecessary to determine as any misdirection would not have vitiated the exercise of his discretion as no risk was found to exist in any event.

Contention that his Honour erred in not finding that the children were in a “settled environment” when living with respondent  unnecessary to determine as such a finding would not have vitiated the exercise of his discretion - Federal Magistrate was aware of the time the children lived with the appellant and was entitled to order residence with the respondent.

Appeal dismissed.

Mother’s costs reserved – orders to facilitate costs submissions.

1. By Amended Notice of Appeal Dated 23 September 2005 the father appealed against orders made by a Federal Magistrate on 30 March 2005 in proceedings between himself and the mother.

2. In substance, the orders of 30 March 2005 provided that the children born 6 October 1999 and 12 May 2003 reside with the mother and have contact with the father to include each alternate weekend from 6pm Friday to 6pm Sunday and each Tuesday and Thursday from after school to 8pm and one half of school holiday periods. 

3. In lieu of those orders the father sought a series of orders vesting interim residence of the children in him with defined and supervised contact by the mother.  Sensibly, counsel for the father confirmed on the hearing of the appeal that, if successful, the father could not expect to persuade this Court to change the orders of 30 March 2005 on an interim basis having regard to the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172 but rather that the proceedings should be remitted for rehearing before a Federal Magistrate. The mother resisted the father’s appeal and sought to maintain the learned Federal Magistrate’s orders.

RELEVANT LAW

1. The law governing this appeal is not in doubt and does not require extensive re-statement.  In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-505:

   …although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.   

2. In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:

   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.

3. It is apparent from these authorities, and particularly the latter that the task which confronts the appellant father in these proceedings is of onerous proportions.

BACKGROUND

1. The background to the dispute, which emerges from the learned Federal Magistrate’s reasons for judgment, and is not controversial, is that the parties married in August 1998, first separated for a little over a month in August 2003, at which time the mother and the children resided at her parents’ residence, and separated again in December 2003, at which time the mother and the children again resided in her parents’ home.  

2. Cohabitation was resumed in May 2004, the parties finally separating in October 2004 at which time the mother was admitted to M Hospital for three nights after taking an overdose of sleeping tablets, whereafter she was admitted to the LP Hospital where she stayed for 12 nights. 

3. The children were cared for between October 2004 and 17 December 2004 by the father and his parents.  From 17 December 2004, as a consequence of the mother not returning the children to the father, the children again commenced to reside with the mother at the home of her parents in Sydney. 

10.  On 22 December 2004 the father filed his application for residence of the children.  On 24 February 2005 the learned Federal Magistrate ordered that the children have “continuous contact” with the father commencing 27 February 2005, the matter being adjourned part heard to 29 March 2005.  On 30 March 2005, following the hearing the previous day, the learned Federal Magistrate awarded interim residence of the children to the mother and made orders for contact as previously detailed.

THE FEDERAL MAGISTRATE’S REASONS FOR JUDGMENT

11.  Having recited the matters of history referred to above, the learned Federal Magistrate (paragraph 13-4) referred to the circumstances in which the matter was adjourned on 24 February 2005, they being “for the purpose of allowing the mother to present evidence to the Court concerning her psychological condition”, the father having “asserted that the condition of the mother was such that the children were at risk in her care and further that any contact the children had with her should be supervised”. 

12.  The learned Federal Magistrate noted that the proceedings were “interim” and that the “best interests of the children” were the “paramount consideration” (paragraph 15).  His Honour referred to s 68F(2) and to the absence of substantive distinction between “final as against interim proceedings”, suggesting that:

17. The difference is procedural with the Court in interim proceedings not determining the long term rights and obligations of the parties and their children.  The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children, pending the final determination of the matter. 

13.  His Honour sagely observed that as a consequence, the Court needed to “exercise considerable caution against being drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties” (paragraph 18).  As the transcript confirms, the proceedings before the learned Federal Magistrate were conducted without protest on the basis of affidavit evidence, there being no application to cross-examine the deponent of any affidavit sworn and relied upon in the proceedings.

14.  His Honour referred to the decision of the Full Court in Cowling v Cowling (1998) FLC 801 and to subsequent decisions noting that such decisions neither added nor detracted “anything to the principles of Cowling”.  His Honour further correctly observed that “each case must be decided on it own facts, having regard to the well established principles”.  At paragraph 20 the learned Federal Magistrate stated the law which he intended applying:

20. In Cowling the Court confirmed that in determining an interim residence application the best interests of the child are the paramount consideration.  These interests will normally be me[t] by ensuring stability in a child’s life pending a full hearing of all relevant issues.  Where at the date of the hearing the child is well settled in his or her environment that stability will usually be promoted by an order providing for a continuation of that arrangement unless there are overriding indications relevant to the child’s welfare to the contrary.  Such overriding indications would include convincing proof the child’s welfare would be really endangered by the child remaining in that environment.

15.  It was further observed that the Court was “entitled to place such weight upon the importance of retaining the child’s current living arrangements as it sees fit in the circumstances” (paragraph 21).  Reference was then made to the six subparagraphs of s 68F(2) (paragraph 22).  His Honour correctly observed that “when determining whether a child is living in a well settled environment the Court is not restricting itself to the particular physical environment in which the child is living or has lived”. 

16.  Against that background, the learned Federal Magistrate proceeded to “examine whether the children are living in a settled environment” (paragraph 24), using that term in the manner he had previously indicated.  The learned Federal Magistrate suggested that the wishes of the children “would carry no weight in these proceedings” (paragraph 25), a proposition sensibly not challenged in this appeal.  He further observed that there was “little evidence before the Court as to the arrangements for the day to day care of the children if they are to continue to reside with the father” (paragraph 26).  No part of this appeal involves any challenge to that finding, although it is clear that no part of the learned Federal Magistrate’s reasons involved findings of incapacity or inability to provide for the children on the part of the father. 

17.  His Honour accepted that the father “has played a role in the care of the children prior to the mother’s hospitalisation and such to an [sic] exclusion from the family home” but did not accept that the father was “the primary carer” (paragraph 29). That finding of fact has not been challenged nor, logically, has his Honour’s finding that “the mother has been the primary carer” (paragraph 30). 

18.  His Honour referred to the separation of the parties from December 2003 to May 2004 during which, on the only evidence before him, the “residence of the children” had been with the mother.   The mother’s proposal was found to involve the children “residing with their primary carer who is not working and who is available to care for the children throughout the day” albeit they would “not be residing in the former matrimonial home” (paragraph 32).  There is no challenge to those findings of fact, nor to the finding of fact that the mother’s proposed arrangements “would reflect the arrangements that were in place prior to the mother’s hospitalisation and exclusion from the family home” (paragraph 33). 

19.  The learned Federal Magistrate acknowledged that the children “have lived in the former matrimonial home for a substantial period of their lives” (paragraph 35) albeit that had been interrupted by the separation of the parties, and in particular by the separation from December 2003 to May 2004.  The father’s proposal was that the children would reside with him in the former matrimonial home.

20.  It is also apparent that his Honour acknowledged that the home “now occupied by the mother has never been the residence of the children” but that the residence was “in the same general geographical area and that the oldest child is able to continue at the same school currently attended” (paragraph 36).  None of these findings of fact has been challenged in this appeal.  Nor has the learned Federal Magistrate’s findings of fact that:

38. … the mother has been the primary carer of the children other than for the period that she was in hospital and other than for the period when excluded from the family home.  I also accept that the children have an appropriate relationship with the father and that he played more then [sic] a minor role in the care of the children. 

21.  The impact on the children’s “primary care relationship” with their mother of an order for interim residence in favour of the father was considered (paragraph 40), as were the implications of the children continuing to reside with the mother.  There is no suggestion that the learned Federal Magistrate was other than accurate in relation to such matters. 

22.  For the reasons which he had thus given, the learned Federal Magistrate was:

43. … satisfied that the main constant in the children’s lives up until the exclusion of the mother from the former matrimonial home was the mother as the primary carer of the children.  The actual residence of the children, or the former matrimonial home, was interrupted by the separations of the parties, but in any case is of lesser importance given the age of the children. 

There is no challenge to those findings of fact in this appeal. 

23.  His Honour thus concluded that “the settled environment for the children is constituted by residence with the mother” (paragraph 44).  He then considered:

45. … whether there are welfare considerations sufficient for the Court to interfere with the arrangements which would otherwise be in place to reflect the conclusion reached as to settled environment.

24.  Predictably, attention was then focused on the mother’s admission to M Hospital in October 2004 and the consequences of her doing so as a result of having “taken an overdose of sleeping tablets and also at one point lacerated her wrist” (paragraph 46).  Reference was also made to “an allegation of excessive use of alcohol”.  His Honour observed that there was “no evidence that she has ever constituted a risk to the children, that she has behaved inappropriately towards of [sic] that she has been unable to care for them” (paragraph 48).  These findings of fact have not been challenged in this appeal. 

25.  Reference was made to the medical evidence of Dr PW, the mother’s consultant psychiatrist and Dr SV, her “treating GP” (paragraph 49).  His Honour found it to be “clear from that evidence” that there was “not an unacceptable risk to the children in being cared for by her and that her state does not approach that required to disturb the arrangement otherwise to be ordered by the Court” (paragraph 50).  His Honour thus ordered that the children reside with the mother on an interim basis.

THE GROUNDS OF APPEAL

26.  In a cogent Summary of Argument, counsel for the father, who was not his counsel in the lower Court, articulated three challenges to the learned Federal Magistrate’s decision.  The first was:

That the learned Magistrate made an error of law or acted upon the wrong principle when contrary to his orders of 25 February 2005 and Section 64 of the Federal Magistrates Act and Rule 15.01 of the Federal Magistrates Court Rules (see also 11.02 and 11.03 of the Family Law Rules) he allowed the mother to read in her case the following affidavits filed out of time:

·Affidavit of the Mother filed 17 March 2005.

·Affidavit of AC filed 17 March 2005.

·Affidavit of BR filed 23 March 2005.

·Affidavit of Dr SV filed 23 March 2005.

·Affidavit of Dr PW filed 29 March 2005.

27.  A number of submissions were made in support of the challenge thus raised.  The thrust however of the challenge is encapsulated in the following propositions:

27.      Despite what the Full Court of the Family Court of Australia wrote in C v C (1995) 20 FamLR 24 especially at pages 30, 31 and 36 such affidavits should have been rejected for these reasons.

(a)    there was a breach of natural justice as the late filing of these affidavits by the mother did not allow the father to file ‘answering affidavits”.

(b)   As the learned Magistrate correctly identified in his reasons, at paragraph 20 ‘in determining an interim residence application the best interests of the child are the paramount consideration.’ See also in the marriage of C (1998) 22 FamLR 776 at paragraph 20. The relevant children were not a party to the proceedings. Nor were they represented by a separate representative. Their interests were to be protected and articulated by the adversarial system. See M v M (1988) 12 FamLR 606 at p.610 line 15 and U v U (2002) 29 FamLR 74 at paragraphs 80 and 171 and 172. See also ZP v PS (1994) 17 FamLR 600 at page 604, CDJ v VAJ (1998) 23 FamLR 755 at paragraphs 87 and 88 and Northern Territory of Australia v GPAO (1999) 24 FamLR 253 at paragraphs 63 and 77. Reading such late affidavits offends the best interests of the children.

28.  The first point can be shortly and decisively disposed of.  There was no objection to the late affidavits being relied upon by the mother before the learned Federal Magistrate.  Nor was there any doubt that the mother was seeking to rely upon such affidavits.  Indeed, as the transcript makes clear, from the outset of the proceedings counsel then appearing for the father directed the learned Federal Magistrate’s attention to the affidavits and did so in a manner inconsistent with there being any objection to the affidavits being relied upon. 

29.  To the extent that the father may have been prejudiced by the lateness of the affidavits, not a word was said on his behalf by counsel then appearing to that effect.  No application for adjournment was ever made.  No application to cross-examine the deponents of the late affidavits was made, nor was any objection taken to any parts of the affidavits.  With all due respect to counsel for the father on the hearing of the appeal, the task set him by his predecessor in pursuing this challenge was of impossible magnitude.  In the circumstances which prevailed in the lower court, the learned Magistrate would have erred had he not had regard to the affidavits now complained of, particularly those of the two medical practitioners, Dr PW and Dr SV.  As the learned Federal Magistrate’s reasons for judgment make clear, that evidence assumed considerable, if not decisive significance in the exercise of his discretion.

30.  So far as the second aspect of this challenge is concerned, the portions of the authorities referred to are rather more supportive of the approach taken by the learned Federal Magistrate than that asserted to have been the approach he ought to have adopted.  There is no issue that the paramount consideration in the proceedings before the learned Federal Magistrate was the welfare of the children.  The capacity of their primary carer to continue to safely and competently care for the children was, in the circumstance of this case, crucial to determining what, on the limited material available to the Court, was in the children’s best interests.  For the learned Federal Magistrate to have excluded the evidence would have been for him to relinquish the opportunity to have regard to the only expert and remotely independent evidence available.  His enquiry concerning the best interests of the children would have been severely adversely impacted as a consequence. 

31.  In circumstances where no denial of natural justice inter partes has occurred, it is difficult to see on what basis a Court could or should be criticised for having regard to unchallenged evidence of experts which impacts upon the welfare of the children.  This limb of the challenge contained in ground 1 is accordingly also devoid of merit.

32.  Ground 2 provided:

That the learned Magistrate made an error of law or acted upon the wrong principle when he stated and applied to the facts of the case the relevant law as to “strong or overriding indications”.

33.  To the extent that any criticism of the learned Federal Magistrate was founded upon the Federal Magistrate’s statement on 29 March (referred to in paragraph 31 of the Summary of Argument of the father), reading:

Can I say this to assist the parties, subject to submissions, on the evidence before me, I do not believe that I could conclude there is an unacceptable risk to the children by being with the mother.  I could not conclude, referring to the principles in cases such as Cowling that the psychological state of the mother is such that the Court could be satisfied there is convincing proof that the welfare of the children would be really endangered by residing with her.

So on the evidence now before me, the mother’s capacity to parent the children and the possible endangerment for the children is removed from my mind in the equation.  I would not, from the present state of the evidence, except, as was pressed upon me on the last occasion, I would not accept that the mother’s residence with the children at her parents’ home in Sydney forms any type of status quo and I think that’s probably all the issues I can isolate.  The question as to what was the status quo is still up in the air I think.

such criticism is without substance insofar as it is suggested that the learned Federal Magistrate was there expressing any concluded view. 

34.  It is to be remembered that the proceedings were adjourned part heard from 25 February 2005 to 29 March 2005, inter alia, to enable the mother to file medical evidence.  As is apparent from the balance of the submissions in support of this ground, the thrust of this ground is that the learned Federal Magistrate ultimately misdirected himself as to the test applicable to the proceedings, it being submitted:

… rhetorically how could the learned Magistrate exercise the judicial discretion reposed in him when the learned Magistrate applied the law to the found facts of the case when his very statement of that law was incorrect. (Father’s Summary of Argument, paragraph 46) 

35.  It was submitted on behalf of the father that the statements of the learned Federal Magistrate cited above, and in particular the reference to “an unacceptable risk to the children by being with the mother” was ultimately, and incorrectly, the test applied by the learned Federal Magistrate.  Reference was made to his Honour’s judgment (paragraph 20) wherein he said:

Where at the date of the hearing the child is well settled in his or her environment that stability will usually be promoted by an order providing for a continuation of that arrangement unless there are overriding indications relevant to the child’s welfare to the contrary. Such overriding indications would include convincing proof the child’s welfare would be really endangered by the child remaining in that environment. (Counsel’s emphasis)

36.  It was submitted that the principles governing the application before him were misstated by virtue of the repetition of the expression “unacceptable risk to the children in being cared for by her” which the learned Federal Magistrate had, on the resumption of the hearing on 29 March 2005, used when addressing the parties and their counsel. 

37.  It was further submitted that the terms of paragraph 50 of his Honour’s judgment confirmed that his Honour had in fact misdirected himself as to the principles governing the application before him.  That paragraph of the judgment read:

it is clear from the evidence and I accept that there is not an unacceptable risk to the children in being cared for by her and that her state does not approach that required to disturb the arrangement otherwise to be ordered by the Court. (Counsel’s emphasis)

38.  On behalf of the mother it was submitted that, read in context, the learned Federal Magistrate had not misdirected himself as to the principles governing the application before him and that, in essence, the reference to unacceptable risk rather than to the actual words used by the Full Court in Cowling or later authorities in which, without changing the thrust of the principle, the test was somewhat differently stated, was a distinction without a difference.

39.  If the learned Federal Magistrate proceeded on the basis that the mother should have interim residence unless there was an unacceptable risk for the children, rather than on the basis described in Cowling and the other authorities referred to in the submissions of counsel for the father, it is arguable that the party more likely to have been disadvantaged was the mother, the term “unacceptable risk” potentially involving a finding which may fall short of “strong or overriding indications” or which “would include but” not be “limited to convincing proof that the child’s welfare would be really endangered by his/her remaining” (Cowling, paragraph 22) with, in this case, their mother. 

40.  For reasons which will become apparent, this Court does not need to express a concluded view on that point, but, even if the learned Federal Magistrate did misdirect himself in relation to the question of “risk”, the Court is not persuaded that so doing vitiated the exercise of his discretion. 

41.  In reviewing the reasons for judgment of the learned Federal Magistrate, the Court has referred to the unchallenged findings of fact made by him.  Having determined, as it was open to him to do, that the mother had been the primary carer of the children and that the “settled environment”, using that term in the way his Honour did, favoured the mother, it became necessary for the learned Federal Magistrate to consider the question of the risk to the children were they to remain in the mother’s care on an interim basis. 

42.  As recorded earlier, the evidence of Doctors PW and SV was accepted by the learned Federal Magistrate, and was able to be accepted.  So doing meant that there was no “balancing of risk” involved in the learned Federal Magistrate’s exercise of discretion.  Acceptance of the doctors’ evidence created a situation in which the learned Federal Magistrate could find an absence of risk if the children were to continue to be cared for by their mother.  That being so, it was immaterial whether the test applied was “one of unacceptable risk” or “strong or overriding indications” of risk or “convincing proof” that the children’s welfare would “be really endangered” were they to continue to reside with their mother. 

43.  Having regard to the evidence before him, and the unchallenged findings of fact the learned Federal Magistrate made, no misdirection occurred by reason of his Honour’s use of the expression “unacceptable risk”.  It may be that his Honour, upon reflection, would have used the expressions, as he did earlier in his judgment, from Cowling but so doing would not, having regard to his findings of fact, have resulted in any different outcome of the proceedings.  The evidence before the learned Federal Magistrate entitled him to find an absence of risk if the children were to continue to reside with their mother.  Ground 2 thus lacks merit.

44.  Ground 3 asserted:

The learned Magistrate made an error of fact in that he failed to find that from at least May 2004 to separation October 2004 and separation October 2004 to December 2004, and 27 February 2005 to 30 March 2005, the children were living in a ‘settled environment’ with the father.

45.  The only finding of fact which, on the evidence before him, the learned Federal Magistrate could have made, and in fact did make, was that the children were residing with their father between the mother’s hospitalisation in October 2004 and 17 December 2004.  The learned Federal Magistrate was clearly aware that the children had been residing with their father at that time, and referred to it in his judgment.  His Honour was also clearly aware that, pursuant to orders made by him on 25 February 2005, for the following four weeks, the children had been residing with their father.  That was the only evidence before the learned Federal Magistrate as to periods in which the children had been residing with their father. 

46.  His Honour was not in this Court’s view obliged to find that the children were residing in a “settled environment” during the periods referred to above, although such a finding would have been open to him.  Even if the learned Federal Magistrate should have found that the children were residing in a “settled environment” with their father during the two short periods referred to, it was still open to the learned Federal Magistrate in the exercise of his discretion to have regard to the history of primary caring of the children which favoured the mother, and was not challenged in this appeal, and to the history of prior separations during which, it seems without opposition from the father, the children lived with and were cared for by the mother. 

47.  Thus, even if the learned Federal Magistrate should have found, which this Court is not persuaded he should, that the children were living in a “settled environment” with the father between October and December 2004 and for the month prior to the hearing on 29 March 2005, that would not have vitiated the exercise of his discretion to award interim residence of the children to the mother.  The learned Federal Magistrate was in no doubt as to where the children had been residing, at what times and with whom.  His reasons for judgment make this clear.  Nor did he fail in the exercise of his discretion to have regard to those matters.  It has not been established that his Honour erred in treating those periods in the manner in which he did.  This Ground thus lacks merit.

CONCLUSION

48.  No grounds having been made out, the appeal must be dismissed.

COSTS

49.  The mother’s counsel has sought an order for the costs of the appeal.  Given the nature of the appeal and subject to a consideration of relevant s 117(2) factors, the mother would appear to be in a strong position to secure an order for costs of the appeal against the father. Counsel for the father sought the opportunity to make further written submissions at the father’s risk as to costs once judgment in the appeal was delivered.  That opportunity will be provided.

ORDERS OF THE COURT

1. That the appeal be dismissed.

2. That the issue of the mother’s costs be reserved.

3. That the appellant father file and serve within 14 days submissions in opposition to the respondent mother’s application for costs of the appeal.

4. That within a further 14 days thereafter counsel for the respondent mother file and serve submissions in response to the submissions of counsel for the appellant father in relation to costs.

I certify that the preceding
49 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
 
Associate
Date: 31/10/2005