CKT & SCT

[2006] FamCA 403

[2006] FamCA 403

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                 Appeal No EA122 of 2005
AT SYDNEY  File No SYF2915 of 2004

BETWEEN:

CKT
Appellant Husband
- and -

SCT
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, COLEMAN & BOLAND JJ
DATE OF HEARING:                 2 May 2006
DATE OF JUDGMENT:             2 May 2006

APPEARANCES:  Ms Coulton of Counsel, instructed by Erina Legal, Fountain Corporate Suite 10, 4 Ilya Avenue, Erina, NSW 2250, appeared on behalf of the Appellant Husband.

Mr Watkins of Counsel, instructed by Felicio Law Firm, PO Box 3086, Erina NSW 2250, appeared on behalf of the Respondent Wife.

CKT and SCT

EA122 of 2005

CORAM:  KAY, COLEMAN & BOLAND JJ 

DATE OF HEARING:         2 May 2006

DATE OF JUDGMENT:     2 May 2006

Catchwords:           FAMILY LAW – CHILDREN – 3 year old child – long standing shared residence arrangement to move from 6 to 4 nights per fortnight once child starts school –   Whether trial judge erred in ordering that child spend no more than one continuous week with the father during school holidays until child of school age – Appeal against discretionary judgment – No error on the part of trial judge – Appeal dismissed.

KAY J: 

1. This is an appeal against orders that were made by Rose J on 16 September 2005 concerning parenting arrangements for a child, K, born 4 August 2002.  The parties agree that the orders made by the learned trial Judge are deficient in that there should be added to para.2(d) of the orders made the words:

"and the child reside with the wife for a period of 7 successive days commencing on the day immediately following the husband's 7 day periods of contact as provided for in this order."

Background

1. The parties married on 6 April 2002.  K, as I have already indicated, was born some four months later.  The parties resided together in the one home until 18 December 2004, a period of just over two and a half years although there was some dispute on the evidence as to whether they had lived separately and apart under the one roof for at least a year of that period. 

1. It is clear from the material that both parents were both significantly involved in the care of the child while they were living together, and indeed after the parties separated a shared caring arrangement was put into place, which was reflected in interim orders made that ultimately saw the child with the mother for four days a week and with the father for three days a week.  Those orders had been in place for several months prior to the matter being dealt with by the trial Judge.

1. It was the competing applications of the parties that each should be the resident parent with the other one to have alternate weekend contact and some part of school holidays.  By the time of the trial the father's position ameliorated in that he was content to have the shared parenting arrangement that was in place continue into the indefinite future.  The mother wanted it limited and cut down.

1. The trial Judge took the view that it was appropriate to continue the shared parenting arrangement until the child commenced school but that once the child commenced school in 2008 a more limited form of sharing should take place.  During school terms the child should be with the father on alternate weekends from Friday night through Monday morning and on the off week from Wednesday night through Thursday morning.  This would mean a reduction on a fortnightly basis of the child seeing the father from six nights a week down to four nights a week. 

1. It is against that reduction in time and a refusal of the trial Judge to increase the holiday periods pending the child commencing school from one week four times a year to some larger periods that this appeal is concerned about.  The father wishes to reinstate on a longer term basis the existing shared parenting arrangement. 

1. His Honour explained in his reasons for judgment the basis for adopting the view that he took.  It appears in effect at paras.81-83 of his Honour's reasons for judgment where he indicates:

"There will of course be a significant change of circumstances so far as the child is concerned in 2008 being the agreed year in which the child commences school.  It is notorious and not a matter upon which expert evidence is surely required, that a child will have new pressures to deal with in that situation.  The child will have to become accustomed to no longer being in the care of either parent during the day, the school environment, relating to teachers and other children and progressing with education and other activities.  Stability in the child's arrangements can only assist her in coping well with those changes in her life. 

In order to provide for the child having a stable routine, continuing her primary attachment with the wife and maintaining the opportunity for the beneficial significant attachment that she has with the husband, I will make orders which provide for the child to reside with the husband during school term on alternate weekends from Friday after school until the following Monday prior to the commencement of school.  In addition, I will make provision for mid-week overnight residence with the father in the week in which the weekend in his favour does not occur.  The result will be that the weekends with the husband will be for greater periods than currently applies and overnight periods during the week will be moved from Monday and instead commencing on Wednesday.  That will ensure that the child has an uninterrupted weekend period with each parent.  If that did not occur, then the husband would be the only parent with whom the child has an uninterrupted and potentially relaxing and enjoyable time at the end of each school week. 

I have also taken into account that the husband's insight into the child's emotional needs is more limited than the wife..."

1. His Honour made reference to his concern that the husband had threatened future litigation if he was not successful in the outcome of the proceedings that he desired.  His Honour went on to say:

"It should be obvious that there will be major changes in the child's life in terms of education and social pressures and activities commensurate with a growing child which will require from time to time a change of arrangements between the parties in terms of the child's care to ensure that those pressures and activities can be suitably met."

1. This is an appeal from a discretionary judgment.  It was urged upon us that his Honour should have accepted, without hesitation the recommendations of the Court counsellor that the current arrangements being the shared arrangement of four nights with the mother, three nights with the father, should continue, notwithstanding the child attending school, it being suggested that his Honour could not be satisfied that there would be a detrimental effect on the child if those circumstances were changed. 

1. I should say that there was no evidence from the counsellor of the likely detriment to the child in the event that the orders moved from six nights per fortnight down to four nights per fortnight as his Honour ultimately decided.  Indeed counsel for the father, when his Honour flagged in his discussion with the Court counsellor the possibility of a change once the child started school, did not avail himself of any opportunity to ask the counsellor whether there would be any detriment to the child in the reduction of the time with the father. Nor did counsel for the mother for that matter.

1. His Honour had indicated that the issue involving  a shared arrangement was one that was of concern to his Honour once the child started school because of his Honour's view of the need for stability and the inability of the parties to completely put aside the grievances that they had with each other's arrangement. 

1. The counsellor said that she was of the view that if the child was living in a shared arrangement from an early age and that was a stable arrangement and was working well, then going to school by itself should not actually create any extra problem.  His Honour asked whether there would be a need for cooperation and the counsellor agreed with that.  He asked whether it was significant when seeking to set up a continuing regime of sharing that was important that the parties would be able to relate to each other and if they could not relate to each other whether that would be detrimental.  The counsellor agreed with that. 

1. This was a discretionary judgment.  The Court can only interfere with a discretionary judgment if it is satisfied there is a relevant error of fact, an inappropriate application of the law or a clearly unjust result.  It  does not appear in my view that the result reached was outside the exercise of the trial Judge's discretion.  These are difficult issues about which value judgments are required and minds may differ. 

1. His Honour took the view that it was important that the child have a meaningful relationship with the father and that the father continued to be a very major player in the child's life.  He concluded that would best be achieved by allowing the father, once the child started school, equal time during the school holidays, and significant but not equal arrangement in the school term.  Whilst there would be many who would adopt the view that there were other possible outcomes to the proceedings that is not the test on an appeal.  It needs to be shown basically that his Honour has made an error that would require us to interfere.  In the circumstances I cannot see any such error. 

1. In relation to the smaller issue of the amount of holiday contact that should take place until the child starts school over the next year or so, there is an order for four one-week periods.  The counsellor had given evidence that it would be detrimental to the child to spend significantly larger periods away from the mother.  The child would grieve for the mother, would not have a proper perception of time and was primarily bonded to the mother. 

1. In light of that evidence I cannot be satisfied that the trial Judge was in error in determining that it would be detrimental to the child under the age of four years who was seeing her father virtually every week not to have periods of more than one week at a time in contact or residence arrangements during the school holiday periods.  In the circumstances, in my view, the appeal should be dismissed and the cross‑appeal allowed by consent.

COLEMAN J:

1. I agree with the outcome proposed by the presiding Judge and with the essential reasoning process which leads to that conclusion.  I would simply only add that the appellant in this case has not discharged the significant onus which was his, particularly having regard to how the test governing this appeal operates as explained in recent times by Gaudron J at paras.40 and 41 in the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172 and the explanation of those principles appearing in para.186(1) and (2) of the judgment of Kirby J in the same case. Otherwise I have nothing to add.

BOLAND J:

1. I agree with the reasons of the learned presiding Judge and Coleman J and I have nothing to add.

KAY J:

1. The formal orders of the Court will be

(1)   The appeal be dismissed;

(2)   By consent the cross-appeal be allowed;

(3)   Order 2(d) of the orders made by the Honourable  Justice Rose  on 16 September 2005 be varied by adding the words,

"and the child reside with the wife for a period of seven successive days, commencing on the day immediately following the husband's seven day periods of contact as provided for in this order."

1. There will be the order that the appellant pay the respondent's costs of the appeal as agreed and in default of agreement as assessed.

I certify that the 20 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate