COBB & SIMONS
[2011] FamCAFC 78
•2 March 2011
FAMILY COURT OF AUSTRALIA
| COBB & SIMONS | [2011] FamCAFC 78 |
| FAMILY LAW - APPEAL – Appeal against parenting orders made by a Federal Magistrate – Adequacy of reasons – Where reasons were inadequate – Appeal allowed and rehearing ordered |
| Bennett and Bennett (1991) FLC 92-191 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
| Family Law Act 1975 (Cth) ss 60CC & s 65DAA Federal Proceedings (Costs) Act1981 (Cth) |
| APPELLANT: | Ms Cobb |
| RESPONDENT: | Mr Simons |
| FILE NUMBER: | SA | 59 | of | 2010 |
| APPEAL NUMBER: | DGC | 1390 | of | 2007 |
| DATE DELIVERED: | 2 March 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Coleman, Ainslie-Wallace, Murphy JJ |
| HEARING DATE: | 2 March 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 July 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 792 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr O’Connell |
| SOLICITOR FOR THE APPELLANT: | Bayside Solicitors |
| THE RESPONDENT: | Self represented |
Orders
That the appeal be allowed.
That the proceedings be re-heard by a Federal Magistrate other than Federal Magistrate Whelan.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions 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 her in relation to the appeal.
That the Court grants to the respondent father 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.
That the Court grants to the appellant wife and the respondent husband 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 rehearing of the application.
IT IS NOTED that publication of this judgment under the pseudonym Cobb & Simons 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 MELBOURNE |
Appeal Number: SA 59 of 2010
File Number: DGC 1390 OF 2007
| Ms Cobb |
Appellant
And
| Mr Simons |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
COLEMAN J (AINSLIE-WALLACE & MURPHY JJ AGREEING):
This is an appeal by Ms Cobb (“the mother”) against orders made in parenting proceedings between the mother and Mr Simons (“the father”). The orders in question were made by Federal Magistrate Whelan on 30 July 2010. The mother’s Notice of Appeal was filed on 26 August 2010.
The orders of the Federal Magistrate which give rise to the mother’s appeal in substance provided that the child of the former relationship of the parties, D, who was born in December 1999, primarily reside with the father and spend time with the mother on the basis set out in the learned Federal Magistrate’s Orders.
The case before the Federal Magistrate was that the child would either primarily reside with the father in Victoria, as he sought, or continue to primarily reside with the mother in Tasmania, as she sought.
In lieu of the orders of the Federal Magistrate, the mother sought that the child, D, primarily reside with her and spend time with the father on the basis defined by her in her Notice of Appeal.
Before this Court it has been common ground that if the mother’s appeal was successful, there would necessarily be a retrial before a Federal Magistrate other than the Federal Magistrate who decided the proceedings which give rise to this appeal.
On 11 February 2011 the mother filed an application seeking leave to adduce further evidence in the appeal pursuant to section 93A of the Family Law Act1975 (Cth) (“the Act”). In support of that application the mother filed an affidavit sworn on that day.
On 18 February 2011, the father filed a response to the mother’s section 93A application opposing leave to adduce further evidence in the appeal. He also filed an affidavit before us. The father confirmed, as was to be expected, that whilst he opposed the mother’s section 93A application, if the Court were disposed to receive the mother’s further evidence, it also receive his further evidence.
As is not in doubt, if the primary appeal is successful without reference to the further evidence application, this Court need not trouble itself with that further evidence. That being so, we proceed to consider the primary appeal. That further evidence, together with any other further evidence upon which either party wishes to rely, would be likely to be evidence at the retrial which would occur as a result of the appeal succeeding.
Background
Some background to the appeal is hopefully instructive. The following matters of background find expression in the Federal Magistrate’s Reasons for Judgment. I do not perceive them to be controversial.
As noted earlier, the proceedings before her Honour related to the one child, D, of the previous relationship of the parties, who was at the time of her Honour’s judgment, about 10 ½ years of age.
At the time of Judgment the father was 38 years of age, and lived with his wife in M, in the State of Victoria. He was in employment. His wife was then not in employment because of family responsibilities.
The mother was aged 36 at the date of her Honour’s Judgment, and was residing at N, in the state of Tasmania. She was then unemployed. The child, D, was primarily residing with her. The mother, in addition to the child D, had in her residence the child C, her son of a relationship with a Mr F. The child C was then 12 years of age. The mother was pregnant with the second child of her relationship with Mr F at the date of judgment in the Court below. As emerges from the further evidence, and is not capable of being controversial for present purposes in any event, earlier this year the mother was delivered of a child as a result of that pregnancy. The mother also had a son by another relationship, not being the relationship she once had with the father, W, who was 18 years of age.
The parties commenced cohabitation in 1995, separated in 1999, reconciled in 2000, separated again in 2003, and had a further short reconciliation in 2006.
The litigation between them has now been extant for a period in excess of a decade. There have been a number of previous orders of the court. It is not instructive to refer in detail to them, save to record that the practical effect of those orders has essentially been that the child D has primarily lived with the mother in recent years.
The Federal Magistrate concluded that the child D’s best interests would be served by her residing primarily with her father and his wife, and spending time with the mother on the basis her orders provided. That was predicated, as noted earlier, on the father and his wife residing in Victoria, and the mother residing in Tasmania.
Grounds of Appeal
Without wishing to be unduly critical, Ground A of the Notice of Appeal is not in the form that one would readily recognise a ground of appeal as such. In fairness, it can and probably should be seen as particularising what we have considered to be the real issue for determination in this appeal. That is the challenge raised by Ground B which reads: “Her Honour has failed to give adequate reasons”. For reasons which will become apparent, I will proceed to deal first with Ground B.
Ground B was the subject of written submissions by Counsel for the mother, the crux of which was that, having regard to the authorities which were set out in a list of authorities provided by Counsel for the mother; the learned Federal Magistrate’s Reasons for Judgment were inadequate in law.
In his written material, the father did not engage with that challenge. He dealt in some detail with the aspects of Ground A, but did not address the Reasons challenge. Though articulate, intelligent and undoubtedly having a good grasp of the facts of the case and a number of the substantive issues, not surprisingly, the father was, when the appeal commenced to be heard, less than conversant with the challenge to the adequacy of reasons or the law governing such challenges.
The Court endeavoured to explain to the father what that challenge involved, and afforded him a short time in order to address the challenge as well as he could. For reasons which will become apparent, it is not surprising that the father could do little more in response to the written submissions of Counsel for the mother as to the adequacy of the learned Federal Magistrate’s Reasons for Judgment, than to urge upon the Court that the learned Federal Magistrate had covered the basics of everything the law required her Honour to set out in her judgment.
The law which governs Reasons challenges such as the present challenge is not in doubt and does not need to be extensively restated. Rather than leave the record in that regard dependent solely upon the Court’s attempts to explain the principles to the father earlier this morning, I quote briefly from two of the numerous usual authorities, if I may use that expression, in relation to Reasons challenges. I perceive there to be no inconsistency between any of the authorities which are, from time to time, referred to in this context.
In a New South Wales Court of Appeal decision, McHugh J, later of the High Court but then a Judge of Appeal in the Supreme Court of New South Wales, said in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280:
If an obligation to give reasons for a decision exists its discharge does not
require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46
SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential
ground or grounds upon which the decision rests should be articulated. …His Honour further said (at 280):
Moreover, I agree with the statement by Mahoney JA in Housing
Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related “to the function to be served by the giving of reasons”. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.Where there is such an appeal, and this is a case of that kind, I perceive, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal if the Reasons for Judgment are inadequate.
In Bennett and Bennett (1991) FLC 92-191, a Full Court of this Court, adopted the principles in relation to adequacy of Reasons which emerged from a number of decisions, primarily of the New South Wales Supreme Court, including the judgment of McHugh J in Soulemezis. I need not say other than that in Bennett this Court stressed, by reference to the earlier authorities, that there are three reasons at least which the requirement of Reasons for Judgment served. They were: first, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge’s decision; second, to further judicial accountability and; third, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future. For present purposes, the first of those objectives is probably most relevant.
As the Court explained to the father, and as the authorities made clear, it is not the length or brevity of a judgment which is critical. What is critical is that the parties or, as has happened here, an appeal court called upon to review the judgment in order to determine its correctness or otherwise, can understand or discern with reasonable clarity, why the case was decided the way it was. As was suggested to the father, the brevity of a judgment does not mean that it cannot adequately reveal the reasoning process which has led to the outcome reached. Nor does it follow that a very lengthy judgment will of necessity satisfy that requirement.
I am reluctantly led to conclude that the learned Federal Magistrate’s Reasons for Judgment in this case were, regrettably, inadequate in a number of respects which I will shortly suggest. So saying, I am mindful of the enormous pressure of the judicial workload of Federal Magistrates and the pressure on Federal Magistrates to expeditiously decide cases before them. I am also mindful of the reality that, if this Court upholds a Reasons challenge in circumstances such as those emerging in this case, it does not follow that this Court is persuaded that the result was necessarily wrong.
As was suggested to the father earlier this morning, once a Reasons challenge is upheld, unless it is demonstrably apparent that no other outcome could have resulted from the trial, the appellant is entitled to succeed on the appeal. In my view, it could not be said that this case could not have been decided differently. That is not the same as suggesting, which I do not, that it ought to have been decided differently. It is, I think logical, that if the Reasons for a decision are inadequate, then an appeal court is placed in a position where it will rarely be able to determine the correctness or otherwise of the decision of the court below.
The areas in respect of which I am regrettably led to conclude that her Honour’s Reasons for Judgment inadequately revealed the reasoning process which led to the decision she reached relate to four broad areas. In isolation none of those four areas would necessarily be fatal to her Honour’s decision, but in my view that is their cumulative effect.
Her Honour recorded, in some detail early in her judgment under the heading “The evidence”, the factual controversies which emerged from the affidavits of the parties and the agitation of that affidavit evidence. With respect to her Honour, regrettably, whilst recording the competing versions of facts relevant to the exercise of her discretion, there is an absence of findings with respect to those matters. Perusal of her Honour’s outline of the evidence reveals, with respect to the parties’ evidence, quite substantial disputed issues of fact. That is to say, there were issues of fact, the resolution of which would have assumed significance when applying the provisions of Part VII of the Act, which govern the proceedings to the facts as found. Not surprisingly, perhaps having not made the findings of fact with respect to those significant disputed issues, her Honour was somewhat constrained when addressing the provisions of Part VII.
The second area in respect of which, for my part, I find her Honour’s Reasons for Judgment less than adequately articulated, is in the context of s 60CC, and the factors considered by her with respect to that section. There was undoubtedly a cataloguing of relevant s 60CC provisions and, in most instances, conclusions. Perhaps because, at least in part because of the absence of findings of fact with respect to disputed issues raised by the parties, there is, however, an absence of exposition of why those conclusions were reached. In other respects, some of the section 60CC conclusions articulated by her Honour seem to me, in the absence of further explanation than one finds in the Reasons, not to be readily supportable by or, in some instances, reconcilable with, evidence which appears to have been accepted in earlier paragraphs of the Judgment.
The third area in which, with respect to the learned Federal Magistrate, I find her reasoning process less than adequately revealed, relates to the undoubtedly difficult issue of s 65DAA of the Act. As the decision of the High Court in MRR v GR (2010) 240 CLR 461; (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424 (the Reasons for which were delivered by the High Court some months prior to this decision) confirms, whatever a court concludes with respect to s 65DAA, with great respect to her Honour, rather more is required than one finds at paragraph 56 of her Reasons for Judgment.
Finally, the learned Federal Magistrate considered, “What is in [the child D]’s best interest”, at paragraphs 57 to 60 of her Reasons for Judgment. Whilst her Honour indicated, to some extent inferentially, why the father’s proposal was considered more conducive to the child D’s best interests than that of the mother, there is an unfortunate absence of discussion of some significant aspects of the evidence which was before her Honour.
Earlier in her Reasons for Judgment, the learned Federal Magistrate had referred to the evidence of Ms B, a consultant psychologist who provided a Report in support of the mother’s case. That discussion is found at paragraph 21 of the Reasons for Judgment. Whilst her Honour there did not express any conclusion as to her acceptance of Ms B’s expert opinion evidence or its likely significance within the context of s 60CC, her Honour recorded Ms B’s conclusion that “the mother was able to cope very well as a parent when she did not have any contact with the father”.
Having regard, however, to what her Honour later said at paragraph 48 about Ms B, and the reasons why her Honour said what she said, the absence of reference to Ms B’s evidence in paragraphs 57 to 60 inclusive of her Honour’s Reasons for Judgment would not, in my view, advance the Reasons challenge.
I do not consider that the same benign view can be taken, however, of the evidence of Ms I. Ms I prepared a Family Report for the Court. Her Honour referred to that evidence at paragraphs 22 to 27 of her Reasons for Judgment. Ms I expressed a number of opinions critical of the mother’s parenting capacity and her Honour appears to have accepted that evidence, although, with respect to her, it is not ultimately clear that that was necessarily the case. Significantly, at paragraph 26, against the background of the numerous and varied criticisms of the mother’s parenting capacity which Ms I had recorded, in her evidence, her Honour quoted her as saying that, “without compelling reasons to the contrary, it was in the child’s best interest to remain where she was at this time rather than cause her life further disruption by having to relocate back to Victoria and change schools yet again.”
As suggested to the father during the course of discussion earlier this morning, her Honour was not obliged to accept that expert opinion evidence. She was not bound by it. It was for her Honour to decide, having regard to the evidence before her and the relevant statutory provisions, what was in the child D’s best interests. But, with respect to her Honour, the failure to engage in any way with what was clearly a counter-indicator of a change of primary carer for the child D from the mother to the father, does, in my view, put her Judgment in the unfortunate position that it fails to adequately reveal the reasoning process which led her Honour to decide as she did. This defect is perhaps even more so having regard to her Honour’s apparent acceptance of those parts of Ms I’s evidence which were favourable to the father.
In those circumstances I am, as I have said, regrettably of the view that the appeal is entitled to succeed. I reiterate that so concluding does not involve concluding that the decision was ultimately wrong. I am not persuaded that the mother’s prima facie entitlement to success on the appeal should be denied her on the basis that no other result could have been reached. This, on such findings of fact as the Court has, must have been a fairly finely balanced contest.
In those circumstances I would allow the appeal. It would, if that were the view of the Court or the majority of the Court, be unnecessary to consider the further application which we have suggested be heard after, and only if, the appeal were unsuccessful.
The order of the Court will be that the appeal is allowed and that there be a re-hearing before a Federal Magistrate other than Whelan FM.
I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace and Murphy JJ) delivered on 2 March 2011.
Associate:
Date: 07.04.11
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