CLOSE & CLOSE
[2011] FamCAFC 20
•9 February 2011
FAMILY COURT OF AUSTRALIA
| CLOSE & CLOSE | [2011] FamCAFC 20 |
| FAMILY LAW - APPEAL – CHILDREN – With whom a child spends time - Interim orders – Where the trial Judge increased the amount of time the child spends with the father to a week about regime - Whether the trial Judge failed to provide adequate reasons for orders – Discretionary judgment - No appealable error established. FAMILY LAW - COSTS – Appellant ordered to pay the respondent’s costs of and incidental to the appeal. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Close |
| RESPONDENT: | Mr Close |
| FILE NUMBER: | SYC | 485 | of | 2010 |
| APPEAL NUMBER: | EA | 164 | of | 2010 | |
HEARING DATE: | 1 February 2011 | ||||
| DATE DELIVERED: | 9 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Ainslie-Wallace and Loughnan JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 November 2010 |
| LOWER COURT MNC: | [2010] FamCA 1022 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Todd |
| SOLICITOR FOR THE APPELLANT: | Craddock Murray Neumann Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Djekovic, Hearne & Walker |
Orders
Appeal dismissed.
Appellant to pay the Respondent’s costs of and incidental to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Close & Close is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 164 of 2010
File Number: SYD 485 of 2010
| Ms Close |
Appellant
And
| Mr Close |
Respondent
REASONS FOR JUDGMENT
This is an appeal against interim parenting orders made by Watts J on 17 November 2010.
The only ground of challenge to his Honour’s discretionary judgment asserts inadequacy of reasons for the orders.
The facts and competing positions of the parties are contained within his Honour’s judgment, are not challenged and need not be repeated at length by us. The appellant mother and respondent father are parents to a little boy, C, who was born in October 2006.
In January 2010 the father sought orders to define the periods of time that C spent with each parent. In March 2010 the parties consented to orders that the child spend 5 nights and 7 days each fortnight with his father and the balance of the time with the mother. The parties also agreed that the child would spend two weeks of school holiday time in each year with the father. The father’s parenting application was then stood over for a period of three months to enable the parties to evaluate the arrangement.
When the matter came before his Honour, the father’s application was for an increase in the time the child spent with him to enable him to live with him and the mother week about. The mother sought to reduce the time that the child was spending with the father so that the child would spend 4 nights and 6 days in each fortnight period with his father.
His Honour ordered that the child live with each parent for one week each fortnight. He also noted that it had been agreed between the parties that in January 2011 the child would spend time with his father for two, separate, seven day periods.
Evidence before the trial judge
As is usual on interim applications, no oral evidence was taken by his Honour. The mother and father both filed affidavits in which each set out the evidence supporting their respective positions. His Honour had the benefit of a Child Responsive Program Memorandum prepared by a family consultant who spoke to the parties in July 2010.
Of significance in this appeal was the mother’s evidence about the behaviour of the child and distress he displayed when he returned from seeing his father which, the mother said, demonstrated that he was not coping with the regime imposed by the March 2010 orders and that many of the observations that caused her concern about the regime occurred after the interview with the family consultant.
His Honour heard argument of counsel appearing for both parties and reserved his decision. The orders and reasons for judgment were published two days after the hearing.
Challenge to the decision
As we have indicated, the sole ground of appeal asserts that his Honour failed to give adequate reasons for the decision to increase the amount of time that the child spends with his father.
In mounting her application for a reduction in time spent between the father and the child, and in opposing the father’s application for an increase in time, the mother asserted that the child was not coping with the regime provided by the March 2010 orders and that it was in the child’s best interests that he not spend more than three nights away from her at a time.
His Honour was also required to consider whether an injunction made some time previously which restricted the father from taking the child to visit rural properties during the time they spent together, should be removed or otherwise recast.
The argument on the appeal was that in making the orders for increased time to be spent between the child and the father, his Honour failed to give reasons why, in the light of the mother’s expressed concerns about the child’s behaviour, he did not moderate the weight to be given to the opinion of the family consultant in reaching his decision and therefore fell into appealable error.
We find no error as asserted, as an analysis of his Honour’s reasons will demonstrate.
His Honour identified the issues to be determined and the competing positions of both parties at paragraphs 17 and 18 of the reasons. It was not argued that his Honour was in error in that identification of the issues, or that some alternative position was advanced by the parties or either of them during the hearing.
His Honour referred (at paragraphs 19 to 26) to the family consultant’s memorandum and the views expressed to her by each party and the opinion of the family consultant based on those interviews.
We note here that there was no challenge to the admission of the memorandum of the family consultant nor was any application made to call her for cross-examination. His Honour therefore had before him the unchallenged opinions of the family consultant as reflected in the memorandum.
At paragraph 27 his Honour said:
The mother reported concerns about [C’s] behaviour on his return from his father. The family consultant opined that these concerns were normal, particularly in the context of the child allegedly repeatedly saying that he wanted to live with his father.
His Honour dealt specifically (at paragraphs 28 to 30) with the incidents that gave rise to the mother’s concern for the child and that supported her assertion that he was not coping with the amount of time he spent with the father pursuant to the orders of March 2010.
Having identified the matters on which the mother relied to seek a reduction of time spent between the child and the father, his Honour turned to uncontroversial evidence that, in his view, was not necessarily consistent with the assertion that C was not coping with being away from the mother’s care for more than three nights at a time. Amongst those matters was the indication to his Honour, and to which the trial Judge referred in paragraph 15 of his reasons, that the mother and father had agreed that the child should spend two periods of seven days with the father in early 2011. His Honour also noted that the orders of March 2010 provided for equal shared parenting and that neither party sought to displace that order (at paragraph 31).
It is clear that his Honour was conscious of the issues in dispute. In the context of an interim hearing he identified the process of fact finding (at paragraph 14) and was entitled to place significant reliance on the unchallenged evidence of the family consultant.
At paragraph 34 of the reasons, his Honour identified the legal construct guiding his decision (the correctness of which was unchallenged).
His Honour set out the asserted communication difficulties between the parties and accepted the family consultant’s opinion as to the likely source of those problems.
Given there was no challenge to the exercise of his Honour’s discretion in making the orders he made, there is no reason to consider the issue of whether the child should spend equal time with each parent, other than to note that in paragraphs 38 and 39 of the judgment he articulated his reasons for that finding.
At paragraphs 40 and 41 his Honour identified the second issue of contention between the parties which was an asserted risk to the child if the father took him to farms where there was danger from contact with horses and farm machinery. To the extent that the articulated challenge extended to these findings, his Honour set out the position of the father (at paragraph 40), the mother (at paragraphs 42 to 47) and the opinion of the family consultant (at paragraph 41) and came to a conclusion (at paragraph 50).
The paragraphs to which we have referred, read in the context of the whole of his Honour’s reasons, enable the reader to discern his Honour’s reasoning process and why he came to his decision. We therefore find no substance in the appellant’s contention that his Honour failed to disclose sufficient reasons for his decision and thereby fell into error.
At the conclusion of the argument and at our invitation, counsel addressed us on the issue of costs. Counsel for the appellant conceded that if the appeal was unsuccessful, costs should follow the event. We therefore order that the appellant pay the respondent’s costs of and incidental to the appeal.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace and Loughnan JJ) delivered on 9 February 2011.
Legal Associate:
Date: 9 February 2011
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