CONLON & CONLON
[2014] FamCAFC 43
•26 March 2014
FAMILY COURT OF AUSTRALIA
| CONLON & CONLON | [2014] FamCAFC 43 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – PARENTING ORDERS – Where there was insufficient evidence before the Federal Magistrate to justify the findings made as to the availability of the father’s parents and his partner to care for the child during the extensive periods when the father was unavailable to care for the child – Where the Federal Magistrate erred in uncritically accepting the recommendations of the family report writer when those recommendations were not factually soundly based – Where the Federal Magistrate erred in not adequately taking into account the child’s primary attachment with the mother and the mother’s availability to care for the child full time – Where the Federal Magistrate failed to address s 65DAA(2) of the Family Law Act 1975 (Cth) – Where the Federal Magistrate mistook the agreement between the parties as to the time the child was to spend with each party during the Christmas school holiday period – Appeal allowed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – Where the appellant sought an order for costs against respondent - Where the appeal has succeeded on points of law – Where there was no basis for an order for costs - Costs certificates issued to the parties for the appeal and the rehearing. |
Family Law Act 1975 (Cth) – s 60B, s 64B, s 60CA, s 60CC, s 65DAA
Federal Proceedings (Costs) Act 1981 (Cth)
Gronow v Gronow (1979) 144 CLR 513
MRR & GR (2010) 240 CLR 461
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
| APPELLANT: | Ms Conlon |
| RESPONDENT: | Mr Conlon |
| FILE NUMBER: | SOA 7 | of | 2013 |
| APPEAL NUMBER: | ADC 2160 | of | 2011 |
| DATE DELIVERED: | 26 March 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 30 July 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 January 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 22 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Lee |
| SOLICITOR FOR THE APPELLANT: | Ryans Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms West |
| SOLICITOR FOR THE RESPONDENT: | DeGaris Lawyers |
Orders
The appeal be allowed.
Orders 1, 2 and 6 of the orders made by Federal Magistrate Simpson on
18 January 2013 be set aside.The proceedings be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Simpson.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise payment under the Act to each of the parties in respect of the costs incurred by each of them in relation to the rehearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Conlon & Conlon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
|
Appeal Number: SOA 7 of 2013
File Number: ADC 2160 of 2011
| Ms Conlon |
Appellant
And
| Mr Conlon |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 15 February 2013 Ms Conlon (“the mother”) appeals parenting orders made by Federal Magistrate Simpson (as his Honour then was) on 18 January 2013.
The appeal is opposed by Mr Conlon (“the father”).
The orders appealed are that the child X (“the child”) born in September 2008 live with the father, that the child spend specified times with the mother, and the child spend alternate Christmas holiday periods with each party.
Relevant Factual Background
The mother was born in 1985 and lives in Town A, South Australia. The father was born in 1981, and lives about 20km from Town B, South Australia. The parties live about 70km apart.
The parties commenced their relationship in late 2006 and married in April 2007.
The parties separated in November 2010, and thereafter the child remained in the care of the mother. Subsequently the parties agreed that care of the child would be shared on a “week about” basis.
Both parties decided that this arrangement was not in the best interests of the child after he began to exhibit behavioural difficulties. As a result, the father filed his initiating application on 10 June 2011, and the mother filed her response on 10 August 2011.
On 8 August 2011 Federal Magistrate Kelly (as her Honour then was) made interim orders that the existing care arrangements remain in place until trial.
The matter came before Federal Magistrate Simpson on 20 and 21 February 2012 in Adelaide and Mt Gambier, and his Honour delivered his reasons for judgment and final orders on 18 January 2013.
Orders made by the Federal Magistrate
Relevantly, the Federal Magistrate made the following orders on 18 January 2013:
(1) The child, [X] born on … September 2008, do live with the father.
(2) The said child do spend time with the mother as follows:
(a)Each alternate weekend from 5.00pm Friday until 5.00pm Sunday extended to 5.00pm Monday in the event of a public holiday;
(b)For 10 days in the short school holidays as agreed;
(c)Notwithstanding any order to the contrary, the child shall spend time with the party who otherwise would not have the care for the child on the child’s birthday from 2.00pm (or after school if a school day) until 6.00pm;
(d)As otherwise provided for in these orders and in particular orders 6, 7, 8 and 9; and
(e)For such other time as the parties might agree.
In addition consent orders were made by his Honour including the following:
(3) That the parties do have equal shared parental responsibility for the child [X] born on … September 2008.
…
(6) For Christmas the child spend time with each parent as follows:-
(a)In 2012 and each alternate year thereafter for all of Christmas with the mother;
(b)In 2013 and each alternate year thereafter for all of Christmas with the father.
The mother appeals against orders 1, 2 and 6.
Reasons for Judgment delivered on 18 January 2013
The Federal Magistrate commenced his reasons for judgment by providing an outline of the documentary evidence before him. His Honour also outlined the competing applications by the parties, noting that each sought an order that the child live with them.
His Honour noted that the issues remaining in dispute were first, with whom the child should live, and secondly what the spend time arrangements with the other party should be. The Federal Magistrate noted that the parties had agreed on many other matters, and that these matters were to be reflected as consent orders in the orders made on 18 January 2013.
His Honour found that the subject child had a close and loving relationship with both parties, and no party made any serious allegations of abuse, neglect, drug or alcohol abuse, or domestic violence. Hence his Honour considered the issues before him were confined to “…the parties’ parenting skills and…the question of their ability to communicate with the other parent” [8].
The Federal Magistrate then recorded the matters raised by the father in his evidence.
The Federal Magistrate found that the father lives in a large farmhouse, that the child has ample room for play, and that the child has also formed close relationships with the neighbourhood children. His Honour noted that the father proposes to enrol the child in Kindergarten in Town B, where there is a “reputable” school and a swimming pool.
His Honour found that the father has good parenting skills, and has an “excellent relationship with the child” based on his evidence and the Family Assessment Report. The Federal Magistrate also found that the child seemed to have a good relationship with Ms O, the father’s new partner. Ms O started a relationship with the father in April/May 2011 and they commenced cohabitation in September 2011. Ms O is a financial professional by occupation and worked from home, and thus was “…home on a reasonably full time basis”.
Turning then to the evidence as to the father’s health issues, his Honour found that the father suffers from a genetic, incurable condition. The effects of the condition include a wasting of the muscles in the feet, hands, legs, arms and, in severe cases, the sufferer is wheelchair bound. The condition is progressively degenerative and the evidence of the father’s specialist was that the father would be unable to work after the age of 40.
His Honour then considered reports provided by Professor N, a professor of neurogenetics, and Dr E, an Orthopaedic Surgeon specialising in disorders of the foot and ankle.
His Honour highlighted the following from those reports:
a)The father’s condition was first noticed at age 12 and since then the disorder has gradually progressed to a point where it interferes with his usual occupation in that he cannot walk any great distance.
b)Professor N says that the father may require the increased assistance of disability aides in order to maintain the father’s ability to walk, and the likely outcome of the condition is that the father will no longer be able to undertake any manual task that requires the exertion of the muscles in his hands or feet [39]. Professor N also stated that effective treatment would involve regular assessments by a rehabilitation centre and “appropriate” management.
c)Dr E says “…at some stage in the future [the father] may not be able to continue with his current occupation”, however could not predict a time frame [42].
d)Dr E also said that the father may require surgery on his hands in the future and orthotics or special shoes for his feet.
His Honour accepted the father’s evidence regarding his medical condition was “extensive”, and that putting such evidence before the court demonstrates that he is “…frank, honest and open with the Court”. The Federal Magistrate found that the father’s condition may make caring for the child in the future difficult, however by that time the child would be in his teenage years. His Honour accepted that presently the father’s condition does not prevent him caring for the child, and found that, “[t]he father’s condition now and in the foreseeable future poses no impediment to him having the general care of the child for the amount of time that the father seeks.”.
The Federal Magistrate noted the criticisms from the mother regarding the father’s extensive and other work commitments; it was her case that the father does not spend enough time with the child and she suggested that the child had the most contact with Ms O and the paternal grandparents. His Honour did not accept this contention, finding that the “strong support network” was of benefit to the child. Further, his Honour found that the father spends “as much time as he can” with the child when he is in his care. His Honour found that when the father undertakes work commitments Ms O and the paternal grandparents provide the necessary care for the child and that on the evidence before his Honour the child has good relationships with all of them.
His Honour noted the recommendations of the Family Report writer that the child live with the father and spend time with the mother on alternate weekends, and for half of the school holidays. The Family Report also contained a recommendation that the mother be permitted to speak to the child on the telephone twice a week.
The Federal Magistrate then considered the law as it applies to parenting orders. His Honour had regard to s 64B of the Family Law Act 1975 (Cth) (“the Act”), and the principles set out in Part VII of the Act. His Honour noted the objects of the Part and the principles contained in s 60B of the Act, and that in deciding whether to make a particular parenting order, s 60CA of the Act requires the child’s best interests to be the paramount consideration.
In determining what is in the child’s best interests, his Honour first considered the primary considerations in s 60CC(2) of the Act and found that “…in this case it is highly desirable that the child have a meaningful relationship with both parties”. The Federal Magistrate said that he proposed “to make orders that ensure, so far as is possible, that the child’s relationship with each parent continues to mature for the benefit of the child”. His Honour found that there was no genuine risk that the child would be harmed by either party or be subject to abuse, neglect, or family violence whilst in either party’s care.
Secondly, his Honour turned to the additional considerations in s 60CC(3) of the Act. His Honour addressed these in turn as follows.
Section 60CC(3)(a) - His Honour placed no weight on the child’s view as he was too young.
Section 60CC(3)(b) - The Federal Magistrate found a good relationship with both parents, and said that “[t]he primary attachment is with the mother but the father has nevertheless played an important role in the child’s life from the beginning”. His Honour also found significant relationships with grandparents, specifically the paternal grandparents who live close to the father, and that the child enjoys their company. The Federal Magistrate found that the maternal grandmother lives close to the mother, and can look after the child if the mother has appointments to attend. His Honour found that the mother had no relatives (apart from the maternal grandmother) with whom the child might have regular contact. There was evidence regarding a cousin of the mother, Mr D, who resides some 300km from Town A but the father expressed concerns with the child being left alone with Mr D. His Honour found that it would be unlikely that the child would have a relationship with Mr D.
Section 60CC(3)(c) - His Honour found that both parents have been willing to spend time with the child and communicate with him. However, the Federal Magistrate stated that because of the child’s young age no major decisions about his life have yet arisen, and that the Federal Magistrate proposed to make orders that involved both parents in making decisions about major long term issues. The parties agreed that an order for equal shared parental responsibility should be made, and the Federal Magistrate inferred that this meant that any previous animosity between the parties can be put behind them and they would act maturely in discussing any decisions regarding the child.
Section 60CC(3)(d) - The Federal Magistrate noted that each proposal before the court involved a change in the child’s current routine and circumstances. Notwithstanding the finding of the primary attachment to the mother, the current week about arrangement (and holiday time) facilitated a finding by
his Honour that the child will be able to cope with any proposed change.
His Honour accepted the submission by the father’s counsel that the father has demonstrated an ability to meet the child’s emotional needs and that the father can assist the child to adjust to any change in arrangements quickly.
His Honour rejected a submission from counsel for the mother that there was “no sound basis articulated by Ms [C] (the family report writer) to support [her] limited time” recommendation. Bearing in mind that the Federal Magistrate found that the current week about basis did not affect the child, his Honour found that the child will be able to cope with only seeing the mother each alternate weekend during “term time”.
Section 60CC(3)(e) – The Federal Magistrate found that either proposal by each party does not create any additional expense or difficulty.
Section 60CC(3)(f) - His Honour accepted the submissions made by counsel for the father that “the father is very capable of meeting and providing for the child’s emotional, psychological and intellectual needs” but that “the mother has demonstrated a lack of understanding of the child’s emotional and developmental needs and an inability to respond appropriately to the child displaying distress” [65].
His Honour also agreed with the conclusion of the family report writer that the “…mother is emotionally immature and of an anxious disposition”. The Federal Magistrate noted particular criticisms of the mother by the family consultant at [67]-[68] of his Honour’s reasons suggesting that the mother places her own needs before those of the child.
Section 60CC(3)(g) – His Honour said that his comments made in relation to s 60CC(3)(f) are also applicable to this paragraph.
Section 60CC(3)(i) - His Honour outlined the submissions of counsel for each party and concluded as follows at [73]:
On the evidence before me, I believe that the father has made himself available for the child to the extent that he was able to bearing in mind his work commitments on each occasion that the child has been in his care. There are periods during the year when the father has heavier commitments with work namely in the periods from April – November. The father is to be complimented for his work ethic. This work ethic sets a good example for his son. In my view, on all the evidence that is before me, the father’s attitude to the child and to the responsibilities of parenthood exhibited by the father, are far superior to those of the mother.
His Honour found that the balance of the additional considerations were inapplicable.
Finally, the Federal Magistrate considered what order should be made in relation to spending time with the child on his birthday. The Federal Magistrate did not make the order sought by the parties, instead making an order that:
…the child shall spend time with the party who otherwise would not have the care of the child on the child’s birthday from 2.00pm (or after school if a school day) until 6.00pm. This will allow a reasonable amount of time for the party who otherwise would not have the care of the child to celebrate the child’s birthday and, perhaps, have a meal together. It will not unduly interfere with the other parent’s time with the child as there will still be early morning and late evening contact with the child.
Grounds Of Appeal
By Notice of Appeal filed 15 February 2013 the mother agitates the following grounds of appeal:
1. The Learned Federal Magistrate erred in not properly or adequately considering the child’s primary attachment was with the appellant (the child’s mother).
2. The Learned Federal Magistrate erred in failing to draw an adverse inference from the respondent’s failure to call his parents and his new partner.
3. The Learned Federal Magistrate erred in failing to make any findings regarding the conduct of the family assessment report writer during the assessment process, particularly in circumstances where the report writer indicated that she found the appellant and her solicitor’s conduct “highly offensive” even prior to the interview process and had put the appellant in the position and expense of having to file an application in a case to direct the report writer (which [sic] application was successful).
4. The Learned Federal Magistrate erred in making findings about the appellant that were entirely consistent with the family report writer’s view about the appellant in circumstances where the report was tainted by the report writer’s conceded negative views about the appellant and her legal representative.
5. The Learned Federal Magistrate erred in accepting the family assessment report in circumstances where it was clearly deficient as to the enquiries made by the family assessment report writer of the parties and their families, especially in relation to the parties’ availability to personally care for the child personally.
6. The Learned Federal Magistrate erred in making a finding that the respondent’s partner was available to care for the child even if the respondent was unavailable.
7. The Learned Federal Magistrate erred in failing to make any findings that the family assessment report writer failed to interview the respondent’s partner and inadequately interviewed the respondent’s parents as to their role in caring for the child.
8. The Learned Federal Magistrate erred in accepting the family assessment report that also failed to take into account the significant issue of the child’s care arrangement in each household.
9. The Learned Federal Magistrate erred in making orders that did not provide the appellant with significant or substantial time with the child, despite evidence of the report writer that indicated that more frequent weekend time could be considered.
10. The Learned Federal Magistrate erred in making orders purportedly by consent with respect to Christmas school holidays that have the effect of a child of tender years spending six weeks away from the other parent. It was agreed between the parties that they would have alternate year Christmas Eve and Christmas Day provisions, however otherwise share the holiday period equally.
11. The Learned Federal Magistrate erred in giving undue weight to the benefit of the respondent’s employment, in circumstances where the evidence was clear that there are likely to be six months of the year that the respondent may be unavailable to care for the child for extended periods.
12. The Learned Federal Magistrate erred in failing to give sufficient weight to the evidence regarding the respondent’s physical condition in circumstances where his illness was determined to be severe and will in due course physically incapacitate the respondent, and erred in finding that the respondent would not be incapacitated before the child was able to care for himself.
13. The Learned Federal Magistrate erred in giving no weight as to the appellant’s availability to be primarily available for the care of the child.
14. Such further or other grounds as may be supplied by counsel prior to the hearing of this appeal.
Orders Sought
The mother seeks the following orders in her Notice of Appeal filed 15 February 2013.
1. That the appeal be allowed.
2. That paragraphs 1, 2 and 6 of the orders made by Federal Magistrate Simpson on 18th January 2013 be quashed.
3. That in lieu of paragraphs 1, 2 and 6 of the said orders of the Federal Magistrate, that there be orders that:
3.1.The child [X] born … September 2008 do live with the mother.
3.2.The said child do spend time with the father as follows:
3.2.1.During South Australian school terms, three weekends out of four from 5.00 pm on the Friday until 5.00 pm on the Sunday (extended to 5.00 pm on the Monday if the Monday is a public holiday;
3.2.2.One half of all South Australian school holiday periods;
3.2.3.At such further or other times as provided for in these orders, and in paragraphs 7, 8 and 9 of the orders made by the Federal Magistrate;
3.2.4.At such further or other times as agreed between the parties.
3.3.That in respect of the period from 10.00 am on 24th December until 10.00 am on 26th December in every year, the following special arrangements apply in lieu of the other arrangements provided for in these orders:
3.3.1.In 2013 and each alternate year thereafter – the said child spend time with the mother from 10.00 am on 24th December until 10.00 am on 25th December and then spend and then spend time with the father from 10.00 am on 25th December until 10.00 am on 26th December;
3.3.2.In every intervening year – the said child spend time with the father from 10.00 am on 24th December until 10.00 am on 25th December and then spend time with the mother from 10.00 am on 25th December until 10.00 am on 26th December ;
3.4.Notwithstanding any other order to the contrary, the said child spend time with the party who other does not have the care of the child on the child’s birthday form 2.00 pm (or after school if a school day) until 6.00 pm.
3.5.There be conditions of the father spending time with the child that:
3.5.1.The husband be personally present during such time;
3.5.2.That the husband not allow the child to be exposed to agricultural chemicals or to be present during the spraying of agricultural chemicals;
3.5.3.That the husband not consume alcohol during such time or for 12 hours prior to the commencement of such time.
4. That the respondent do pay the appellant’s costs of and incidental to the appeal.
5. That the appellant have a certificate for her costs pursuant to the Federal Proceedings (Costs) Act 1981.
6. Such further order or orders as this Honourable Court deems fit.
Discussion
In her written summary of argument the mother’s counsel addressed Grounds 1, 2, 5, 6, 7, 8, 11, and 13 together, and then Grounds 3 and 4 also together, with Grounds 9, 10 and 12 each addressed discretely. I am not persuaded as to the appropriateness of these groupings, and I propose to address Grounds 3, 4, 5, 6, 7, and 8 together, and Grounds 1, 11, 12 and 13 also together. Grounds 2 and 9 will need to be considered separately. Ground 14 does not require any discussion, and Ground 10 is conceded.
Grounds 3, 4, 5, 6, 7, and 8
These grounds relate to the family report writer and her report. The central complaint is that the report should not have been relied upon by the Federal Magistrate in making findings about the mother because it was “tainted” by the report writer’s “negative views about the [mother] and her legal representative” (Ground 4).
This complaint springs from comments made by the report writer when being cross-examined about her initial decision not to interview the maternal grandparents. Apparently the mother’s solicitor sought that this be done, but the report writer refused saying in effect that who she interviewed was a matter for her. When asked about this in cross-examination, she responded that, “… it’s not usually policy that Reg 7s get told what to do by solicitors” (Transcript 10.2.12, page 44, line 12). Then, she was asked whether that was “offensive” to her, and she answered:
Yes, it was very offensive to me and it’s not – it’s not what we do.
(Transcript 10.2.12, page 44, lines 14-15)
The mother was obliged to make an application to another Federal Magistrate to obtain an order that the report writer interview the maternal grandparents, and that is what ultimately occurred.
The alleged errors by the Federal Magistrate were first, not making any findings about the conduct of the report writer in his reasons for judgment (Ground 3), and secondly, making findings about the mother consistent with the report writer’s view of the mother. In relation to the latter complaint, it is said that the “anxiety” of the mother recorded by the report writer was caused by the approach of the writer, and was not her natural state.
The obvious problem for the mother in making these complaints is that there was no application to the Federal Magistrate to have the report writer removed and a different report writer prepare the Family Report. The mother chose to leave Ms C in place, and when the report was not in her favour, submit through her counsel that Ms C was biased towards her. It was then up to his Honour to decide what he should do about that, and plainly because his Honour accepted the recommendations of the report writer he rejected the allegation of bias.
It might be said that it would have been appropriate for his Honour to refer to this in his reasons specifically, but it is not the case that a trial judge is “required to mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, per Gleeson CJ at 62).
In these circumstances I am not persuaded that “the Federal Magistrate erred in failing to make any findings regarding the conduct of the family assessment report writer during the assessment process”.
However, I am not of the same view in relation to the complaint that is made that the Federal Magistrate should not have accepted the recommendations of the report writer because of the lack of evidence before him and the failure by the report writer to adequately justify her opinions.
It is said that the report writer failed to make necessary enquiries “of the parties and their families as to their roles in caring for the child and their availability to care for the child”, and thus there was no, or no sufficient evidence as to these issues before the court on which his Honour could act.
It was the mother’s case that the father spent little time with the child when he was in his care, and his work and other commitments were such that the child was left with his parents (and his partner) for significant periods of time. As to this his Honour found as follows:
44.Some criticism is made by the mother about the father’s involvement with the child when he is in his care. She says that because of the father’s work and other commitments, he does not spend enough time with the child. It is suggested that the contact is primarily between the child and the father’s partner Ms [O], or the paternal grandparents, who live on a farm nearby. I do not agree. The fact that the father has a strong support network nearby provided for his wife and family is a good thing. I have no doubt that the father will spend as much time as he can with the child when the child is in his care. On the occasions that the father’s work prevents him from looking after the child, I am confident that the father’s partner, Ms [O], and the paternal grandparents will provide the necessary care. On the evidence before me, it appears that the child has very good relationships with all of these people.
I find that there is merit in this aspect of the mother’s appeal. It is beyond doubt that there was no evidence before his Honour from the father’s parents or from his partner; none of them filed an affidavit, and none were called to give evidence at the trial. Further, although the paternal grandparents attended at the interview the report writer had with the father, it is apparent from the report that they were asked very few questions about the time they care for the child and their availability to continue to do so. The most they said was that since the father’s partner had come on the scene the child was only with them “two days a week”.
I hasten to explain that the issue the mother is raising is not a complaint as such about the care that the father’s parents provide to the child, but the fact of the father not being available to care for the child for significant periods of time, and there being no evidence from the parents as to the extent of those occasions or their ability to continue into the future (for example see transcript 21.2.12, page 64, line 11 to page 65 line 4).
That is the issue in relation to the father’s partner as well, but with her it is also about the lack of evidence as to the actual care that she provides given that she only commenced to live with the father in September 2011.
Importantly the father’s new partner was not spoken to by the report writer. Although she attended the interview and observation session, there was still nothing said by her as to what she does for the child in the absence of the father. Further, and to repeat, she had only commenced living with the father in mid-September 2011 and there was no objective evidence that any relationship, let alone a “very good relationship”, as found by his Honour, had developed either by the time of the family assessment or the commencement of the trial. There are comments made by the report writer in her Report as to her observations of the interaction between the child and the father and his parents, and it is possible to interpret those comments as applying also to the interaction between the child and the father’s partner, but in my view that is drawing a long bow, and in any event I am not persuaded that there was sufficient that arose from that brief observation which would justify the findings made by
his Honour.
In these circumstances I find that there was nothing before his Honour which would justify his findings at [44]. This is important because there was no question that the father was unable to care for the child for lengthy periods of time (as he had significant employment commitments for six months of each year when he was working six to seven days each week) and the time the child was left in the care of the father’s parents and his partner.
This error by his Honour is compounded when it is appreciated that prior to the hearing it was common ground that the child had his primary attachment with his mother, and she was available to care for him full-time.
Thus in summary, although there is no merit in Grounds 3 and 4, I find merit in Grounds 5, 6, 7 and 8.
Grounds 1, 11, 12 and 13
These grounds are essentially weight challenges, and the difficulties confronting an appellant in succeeding in such challenges are well known. For example, in Gronow v Gronow (1979) 144 CLR 513, Stephen J said at
519-520:
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.
As to Ground 11 I must confess that although it is suggested that undue weight was given to “the benefit of the [father’s] employment” I had difficulty in understanding what the complaint in fact was. It seems though that the complaint stems from what his Honour said at [73] of his reasons for judgment, namely that:
…The father is to be complimented for his work ethic. This work ethic sets a good example for his son.
The suggested error is that the more important issue is that his work prevented him from caring for the child for significant periods of time and caused him to leave the child with his parents and his partner; that, it is said, is not in the child’s best interests.
As explained above, this is a complaint that has merit when it is viewed in the context of the absence of fulsome evidence from the father’s parents and of any evidence from the father’s partner as to the times when the father leaves the child with them, and as to their availability to continue to care for the child into the future, as well as a lack of evidence as to the care provided by the father’s partner.
This then leads into Grounds 1 and 13.
The simple proposition is that the alternative proposals confronting his Honour were to place the child with the father who works six to seven days each week for six months in each year, and who has to rely on his parents and his partner to care for the child, or to place the child with the mother with whom the child had a primary attachment, and who was available full time.
It is apparent to me that his Honour has erred in the exercise of his discretion here. He has relied almost exclusively on the report and recommendations of the family report writer in making his findings, but it is plain that his Honour should have looked far more critically at that evidence, and its bases. As has been demonstrated, there are flaws in the approach taken by the report writer, and she was too ready to make assumptions and not always base her opinions on a sound factual platform.
Further, and specifically in relation to Ground 1, his Honour attempted to address the fact that the child’s primary attachment was with the mother (something I note that Ms C failed to address at all in her report) by suggesting that in some way that was overborne by the arrangement that the parties had put in place for the care of the child (at [62] of the reasons for judgment). Now, it is entirely unclear on what evidence his Honour based that conclusion. It certainly was not in the report of Ms C, and his Honour did not identify any other source in his reasons for judgment.
Ms C was cross-examined about this by the mother’s counsel as follows:
MS LEE: … In light of that I firstly would like to ask you some questions about primary attachment. Firstly, can you tell the court – and probably more for the benefit of the parents than other parties here – what primary attachment is to a child and when it’s most relevant?--- The primary attachment is usually to the mother but not always. So the primary attachment of the child is to the parent who does the most care-giving in a meaningful manner. …
(Transcript 10.2.12, page 15 line 47 – page 16 line 5)
And further:
MS LEE: In relation to primary attachment can you tell the court and more for the benefit of the parents what happens when that is interrupted?---Well, when the – problems can occur in the child’s development when the child’s attachment to the primary attachment figure, which does not always mean the primary carer, is – I’m not quite sure what the words is – is skewed in any way and these difficulties can last through into the child’s life – right into adulthood and they can be mental health problems; they can be behavioural problems; they can be relationship problems; they can – or they can be all of those things.
MS LEE: Ms [C], can you tell the court what is likely to immediately happen to a child who is about three, three and a half, in relation to an interruption of primary attachment? What sort of behaviour will they display?---They’re probably likely to be distressed; probably likely to be confused, I would think.
MS LEE: Clingy?---Perhaps clingy. Yes.
MS LEE: Easily upset?---Possibly.
MS LEE: Hard to settle?---Sorry?
MS LEE: Hard to settle?---That could be. Yes.
MS LEE: Perhaps, they might demonstrate self-harm behaviour?---Some children do do the head-banging thing but in terms of what we know is self-harming I think that comes later.
MS LEE: And what about in relation to, perhaps, aggressive behaviour and defiant behaviour?---Yes. Some children can feel quite angry and frustrated if they don’t understand what’ going on and are likely to react in aggressive ways.
MS LEE: And that’s highly likely with small children under the age of five, isn’t it, if that’s the case?---Yes, It’s more likely to happen with children who don’t have a good vocabulary and I’m not able to speak about how ….
MS LEE: And you wouldn’t consider [the child] a child old enough to articulate clearly how he feels, would you?---No, not at all.
(Transcript 10.2.12, page 16, line 36 – page 17, line 25)
His Honour failed to refer to this evidence at all in his reasons for judgment, and it is apparent from his comments at [62] of those reasons that his Honour failed to appreciate the significance of this issue.
Thus, it can be seen that there is not only “disagreement on matters of weight”, and I find that Grounds 1, 11 and 13 have merit.
However, in relation to Ground 12 I do not consider that that ground has any merit. His Honour had ample evidence before him as to the father’s medical condition and its effect on him physically, including expert evidence, and
his Honour addressed these issues at length in his reasons for judgment. I have not been taken to anything in those reasons, or in the transcript of the hearing, that persuades me that his Honour was “plainly wrong” in his findings at [42] and [43]:
42.The father’s condition may, at some time in the future, make it difficult for him to properly care for a young child. I expect that, by then, the child will be a teenager or older. The father’s condition does not at this stage prevent him from caring for the child. The father is still capable of driving and carrying out the usual physical activities needed for the care of a young child. The father’s condition now and in the foreseeable future poses no impediment to him having the general care of the child for the amount of time that the father seeks.
43.The father says that by the time his condition becomes severe, he expects that the child will be of an age where he can primarily look after himself. I believe the father’s expectation to be justified on the basis of evidence given and the medical opinions provided.
Ground 2
I find that this ground has no merit.
The plain fact of the matter is that his Honour was not asked to draw an adverse inference from the fact that the father’s parents and his new partner were not called to give evidence, and thus his Honour cannot be criticised for failing to do so.
In counsel’s final submission to his Honour, the highest that this issue was put was to say that the father had an opportunity to call his mother, his father, and his partner. However, it was not taken any further.
Ground 9
At the commencement of the hearing before his Honour the orders sought by the mother (apart from what was contained in the orders sought to be made by consent) was that the child live with her and spend time with the father during school terms for three weekends out of every four from 5:00pm on the Friday until 5:00pm on the Sunday, and for one half of all school holiday periods. The father sought that the child live with him and spend time with the mother each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday (or until 5:00pm on Monday if that day is a Public Holiday) and for 10 days in the short school holiday periods. This latter proposal was in accordance with the recommendations of the family report writer.
There was no specific proposal by the mother as to the time to be spent in the event that the child live with the father, but her counsel put to Ms C in cross-examination that more frequent weekend time could be considered for the mother than was contained in her recommendation, and that proposition was accepted by Ms C. That cross-examination was as follows:
MS ANNELLS: You also recommend that [the child] spend time with
Mrs [Conlon], his mother on alternating weekends from 5 pm Friday to 5 pm Sunday. Is there any particular reason why you recommended alternating weekends?---Well, when else could she see him?MS ANNELLS: What would your opinion be in respect to, for example, [the child] spending three out of four weekends with the mother?---That would be possible, yes. Yes.
MS ANNELLS: Do you think - - -?---I don’t have an objection to that. Yes.
MS ANNELLS: Do you think it would be preferable?---I would think probably two out of three would be better perhaps than three out of four. I have to say that I think one of the difficult things in this matter is the distance between the parents and that if they were to live closer together then different arrangements would be more easily made.
MS ANNELLS: If they were to live closer together - - -?---Yes.
MS ANNELLS: - - - would you be expecting that, for example, mid-week time might be a possibility?---Well, depending on how close they are, but as [the child] got older, if, for example, the mother was able to get him to school, it might go from Thursday night to Monday morning, for example, on alternate weekends.
(Transcript 10.2.12, page 8, line 41 – page 9, line 13)
On the basis of this cross-examination, the mother’s counsel submitted to his Honour that “no sound basis was articulated by Ms [C] to support such limited time” as two nights each fortnight.
His Honour, in his reasons for judgment, after referring to s 64B, s 60B and
s 60CA of the Act and addressing the primary and additional considerations in
s 60CC(2) and (3) of the Act concluded that it was in the best interests of the child to make the orders sought by the father. In so finding his Honour did not refer at all to the evidence given in cross-examination by Ms C, but he did record the submissions made by the counsel for the mother. His Honour addressed this issue in his consideration of s 60CC(2)(d) of the Act in the context of determining what outcome was in the best interests of the child. His Honour said this:
62.Each of the proposals before the Court involve change in the child’s current routine and circumstances. Although the primary attachment of the child was with the mother, the parties have for some considerable time had a week about arrangement for the care of the child. In these circumstances, and not forgetting holiday time, I believe the child will be able to cope with either of the proposals put forward by the parties. I agree with the submission put by counsel for the father that the father has demonstrated an ability to meet the child’s emotional needs and that the father will be able to assist the child to adjust to changes in his routine as soon as possible.
63.Counsel for the mother submits that although; “Ms [C] has recommended that the child spend only two nights per fortnight with the mother”, there is no sound basis articulated by Ms [C] to support such limited time. Bearing in mind that the child has not been adversely affected by the week about arrangement that the parties have implemented, I believe that the child will be able to cope with only seeing the mother each alternate weekend during term time.
I emphasise that these reasons, and the decision made by his Honour to reduce the time the child spends with the mother to two nights each fortnight was in the context of the child up to that time spending week about with each of his parents, the child having his primary attachment with his mother, and the mother being available full-time to care for the child (compared with the lack of availability of the father).
As can be seen in the other grounds of appeal, it is put by the mother’s counsel that there was no evidence presented to his Honour that would justify a finding that “the child will be able to cope with only seeing the mother each alternate weekend during term time”. Indeed, his Honour at [63] appears to justify this finding on the basis that “the child has not been adversely affected by the week about arrangement that the parties have implemented”. However, it is difficult to follow that logic given that the very reason the parties were litigating before his Honour was the child having difficulty with the shared care arrangement and exhibiting behavioural problems in adjusting in each household after handover.
I am persuaded that in this respect his Honour has erred.
It may be that that has occurred because, although his Honour considered the primary and additional considerations, his Honour failed to address s 65DAA of the Act, and that in itself is a fatal error which must lead to this appeal being allowed. That section relevantly provides as follows:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
…
Here the parties agreed that there should be an order for equal shared parental responsibility, and on that basis it was incumbent on the Federal Magistrate to apply s 65DAA (MRR & GR (2010) 240 CLR 461).
It was common ground, and indeed the reason for litigation, that it was not in the child’s best interests for there to be equal time in the sense of week and week about, and thus his Honour cannot be criticised for failing to address
s 65DAA(1), but it was absolutely necessary for his Honour to address
s 65DAA(2), and he clearly failed to do that.
I also note that the parties cannot be blamed for that oversight: both parties raised the applicability of this section in their written case outlines and indeed the mother’s outline referred to it in the context of submitting that only two nights each fortnight with her was not in the child’s best interests.
In these circumstances there is obvious merit in this ground of appeal.
Ground 10
To repeat, this is a ground that was in effect conceded by the mother. In simple terms his Honour mistook what the parties had agreed. The agreement was that they would alternate the Christmas period (comprising Christmas Eve and Christmas Day) and share the balance of the holiday period equally, and not alternate the entire holiday period.
In order to correct this error, the appeal should be allowed to this extent, and Order 6 set aside. Further, given the parties are ad idem about this I would have been able to re-exercise the discretion and make the order that the parties sought, but unfortunately the parties did not see fit to provide me with a Minute of that Order, and therefore I am not able to take that course.
Conclusion
I have found merit in Grounds 1, 5, 6, 7, 8, 9, 10 and, 13, but particularly Ground 9. As a result, the appeal must be allowed, and Orders 1, 2 and 6 set aside.
The next question is whether I am able to re-exercise the discretion or whether the proceedings should be remitted for rehearing. Given that the circumstances of the parties and the child would have almost certainly changed, I do not consider that I am able to re-exercise the discretion. Indeed, despite the orders sought in the Notice of Appeal by the mother, during the hearing both counsel conceded that in the event of the appeal being allowed, the proceedings would need to be remitted for rehearing, and that is what I propose to do.
Costs
At the conclusion of the hearing I sought submissions as to costs depending on the outcome.
In the event the appeal was successful the mother sought an order for costs against the father, but if no costs order was made then she sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and for the rehearing.
As to the father, his counsel opposed any order for costs and sought costs certificates if the appeal was successful.
No basis was put to me by the mother’s counsel as to why an order for costs should be made, and I am not persuaded that there should be such an order. However, the appeal has succeeded on questions of law, and thus it is appropriate that both parties have the certificates that they sought.
I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 26 March 2014.
Associate:
Date: 26 March 2014
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