Coombe and Stone
[2011] FamCAFC 232
•9 December 2011
FAMILY COURT OF AUSTRALIA
| COOMBE & STONE | [2011] FamCAFC 232 |
| FAMILY LAW – APPEAL – Appeal from various parenting orders of a Family Law Magistrate concerning minor issues to do with the child – Whether his Honour erred by failing to give reasons for his decision concerning the time the child was to spend with each parent during the Christmas period – No appellable error found – Whether his Honour approached the issue of the baptism of the child on the basis of whether or not it was “necessary” – Although his Honour used the words “necessary” on two occasions he applied the correct legal test – Whether his Honour erred in determining that the child’s name should not be hyphenated to include the names of both parents – His Honour correctly summarised the legal principles and applied them to the facts of the case – No appellable error found – Appeal dismissed – Mother to pay the father’s costs. |
| A v J (1995) FLC 92-619 Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 Flanagan and Handcock (2001) FLC 93-074 House v The King (1936) 55 CLR 499 Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378 Sharman v Evans (1977-1978) 138 CLR 563 Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447 |
| APPELLANT: | Ms Coombe |
| RESPONDENT: | Mr Stone |
| FILE NUMBER: | PTW | 6238 | of | 2008 |
| APPEAL NUMBER: | WA | 14 | of | 2011 |
| DATE DELIVERED: | 9 December 2011 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 21 November 2011 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 28 March 2011 |
| LOWER COURT MNC: | Unreported, Magistrates Court of Western Australia, Kaeser AM, 28 March 2011 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Grasso |
| SOLICITOR FOR THE APPELLANT: | Millsteed Grasso |
| COUNSEL FOR THE RESPONDENT: | Ms Farmer |
| SOLICITOR FOR THE RESPONDENT: | Kim Wilson & Co |
Orders
The appeal be dismissed.
The wife pay the husband’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Coombe & Stone 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 PERTH |
Appeal Number: WA 14 of 2011
File Number: PTW 6238 of 2008
| Ms Coombe |
Appellant
And
| Mr Stone |
Respondent
REASONS FOR JUDGMENT
This appeal relates to three minor issues concerning C, the six year old daughter of the appellant mother and the respondent father.
By an Amended Notice of Appeal, filed 1 June 2011, the mother challenged orders made by Acting Magistrate Kaeser on 28 March 2011 concerning:
·whether the child should spend time with both parents each Christmas Day;
· whether the child should be baptised; and
·whether the child’s surname should be hyphenated to include the names of both parents.
Kaeser AM dealt with many other issues at trial. His decisions about those matters were either not challenged, or the challenges were abandoned.
Background
The mother and father were married in August 2004 and separated in October 2006. C, their only child, was born in December 2004. At the time of trial she was attending a Christian school where the mother is a trainee teacher.
C has lived with the mother since separation. Pursuant to orders made by Kaeser AM, she will spend time with the father from after school on Thursday until the start of school on Monday each alternate week, as well as during school holidays.
At the time of trial, the mother was living in the suburb F with her new partner. They were engaged to be married, and were expecting their first child together. Her partner’s 11 year old son regularly stays in their home.
The father was living in suburb R with his new partner at the time of trial. They too were expecting a child.
The Acting Magistrate found the parents’ homes were approximately 50 kilometres apart (a finding of potential relevance to travel on Christmas Day, although his Honour did not refer to this fact in that context).
Appellate principles
Counsel for the mother properly acknowledged that the decisions appealed all involved the exercise of judicial discretion.
The principles applicable to such appeals were explained in House v The King (1936) 55 CLR 499 at 504-505, and in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345, where Asquith LJ said:
…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
These principles were echoed in Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, where Kitto J said:
…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
The same message was delivered even more emphatically by Barwick CJ in Sharman v Evans (1977-1978) 138 CLR 563 at 565-566 when he said:
…the function of a court of appeal, in my opinion, is not to offer what in connection with another discipline would be called a “second opinion”. Such a court is strictly confined to the remedy of error in the trial or in the assessment of the trial Judge. It cannot be too strongly said that a mere difference of opinion as to what ought to have been the proper award…does not indicate error on the part of the trial Judge.
I think it is relevant to the decision of this appeal to remember that our system by which differences between citizens and, for that matter, between the state and the citizen are resolved in one of trial. It is not a system of resolution by appeal…I have said elsewhere, and I venture to repeat, that resolution of difference by trial rather than by appeal is of great public benefit. It tends to earlier finality and greater certainty than would be the case if cases were chiefly decided on appeal.
I approach this appeal with these guiding principles in mind.
Ground 1 – time sharing at Christmas
The orders made by Kaeser AM for Christmas relevantly provide that:
·in the 2011/12 summer holidays, and each alternate year thereafter, the child will spend a block period with her father from 11.00am on 24 December until 11.00am on 28 December, with the consequence that she will spend the whole of Christmas Day and Boxing Day with her father in those years.
·in the 2012/13 summer holidays, and each alternate year thereafter, the child will spend a block period with her mother from 9.00am on the first Monday of the holidays until 11.00am on 28 December, with the consequence that she will spend the whole of Christmas Day and Boxing Day with her mother in those years.
The mother’s position at trial was that she wanted the child to spend part of every Christmas Day with each of her parents. She proposed this would be achieved by the child spending time with her father:
·in 2011 and each alternate year thereafter from 5.00pm on 20 December until 3.00pm on Christmas Day.
·in 2012 and each alternate year thereafter from 3.00pm on Christmas Day until 11.00am on New Years Day.
The father’s position was that he wanted the child to spend uninterrupted time each Christmas Day with one of her parents. The orders made by the Acting Magistrate mirrored the father’s proposal (there was a slight departure for the first part of the Christmas school holidays, but that is not of any direct relevance to the contentious issue of where the child is to spend Christmas Day).
Ground 1 challenges the decision in the following terms:
1. His Honour the presiding Magistrate erred in law in ordering, in relation to Christmas contact, that the Christmas contact should alternate from year to year resulting in the child…not spending any time at all with one parent each Christmas year, in that the order is not in the best interests of the child by reason of the following:
(a)The aforesaid child…has not ever spent Christmas without contact with both parents since her birth (she now being 6 years of age)
(b) During the year when the child…would spend time with the father (because the father has stated he will be going down south for the Christmas holidays) the child would not be able to participate in the religious aspects of the day by attending church.
(c) The learned Magistrate failed to give sufficient or any consideration to the fact that the religious aspects of that day are important to the child, she having participated in religious aspects of the day during the previous years.
(d) The learned magistrate failed to give sufficient weight and consideration to the fact that the child…has been reared as a Christian, has been attending a Christian school or [sic] her life (even during her preschool years) and that the religious celebration of Christmas day is an important factor in the child's life on that once a year occasion.
(e) The learned magistrate failed to take into account that the father does not celebrate the religious aspects of Christmas Day and does not regard, (which the child does), that Christmas Day is celebrated as the birthday of Jesus.
(f)The learned magistrate failed to take into account or give sufficient weight to the fact that [the child’s] stepbrother…and the new sibling (to be born in October 2011) would not be able to, in each and every year, spend some of that important time together during Christmas day.
(g) The learned Trial Magistrate failed to give adequate reasons in relation to this issue.
It will be seen that subparagraphs (a) to (f) do no more than draw attention to a series of matters which, it is asserted, should have been considered by the Magistrate and which, if considered, should have led to the conclusion that it was in the child’s best interests for orders to be made for the Christmas period in the terms proposed by the mother.
Even had all of these matters been advanced at trial (which they were not) it is not in any way apparent why consideration of all of them would demonstrate that the decision of the Magistrate was clearly wrong. To the extent the matters were advanced at trial, it was not obligatory for his Honour to refer to them. This is because, as Gleeson CJ, McHugh and Gummow JJ said in Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447 at 465 [62]:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The complaint of real substance is that contained in subparagraph (g), namely that the Acting Magistrate failed to give any reasons at all for his decision. The fact his Honour failed to do so was conceded by counsel for the father; however, it was asserted, in effect, that it was unnecessary to give reasons because of the way the hearing on this issue had been conducted. In particular, reference was made to the facts that:
·there was no mention of the Christmas period in the mother’s trial affidavit;
·the father’s affidavit set out in detail (paragraphs 64 to 72) the reasons why he proposed the orders he did for Christmas;
·there was no cross-examination of the father on this issue;
·the father’s case had been put to the mother in cross-examination;
·counsel for the mother did not mention the issue in his closing address.
In opposing the appeal, counsel for the father referred to Bennett and Bennett (1991) FLC 92-191, which is often, properly, cited as explaining the obligation to give adequate reasons in matters involving children.
The following principles can be distilled from that judgment:
·the adequacy of reasons will depend upon the circumstances of the case;
·the adequacy of reasons must frequently be judged by reference to the issues raised by the parties at trial;
·in general, the appellate court should be able to discern either expressly or by implication the path by which the result has been reached;
·at the very least, the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
Whilst the giving of reasons is properly perceived as an incident of the judicial process, it is important to recall that the duty to state reasons for decision “does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding”: Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378 per Mahoney JA at 386.
This sentiment was echoed by the Full Court in A v J (1995) FLC 92-619 at 82,232, where it was said that it is “important to guard against too zealous an application of the requirement to give reasons”. In my view, this is particularly the case when a Magistrate is dealing with issues in parenting disputes that are properly characterised as minor, even if hotly contested.
It is important to record that Kaeser AM was presented with ten pages of proposed orders by the parents. The legislation governing parenting proceedings provides a sufficiently burdensome labyrinth for the judicial officer without there also being an expectation that reasons will be given for deciding each and every one of the squabbles the parents cannot resolve.
Counsel for the mother properly recognised all of these matters when he conceded in his submissions that “it is incorrect to allege that every small part of the decision must be supported by written reasons. That would be a nonsense”. However, he went on to submit that the sharing of Christmas Day was an issue of such importance that reasons should have been given.
The Acting Magistrate properly recorded (at paragraph 11) that “many of the proposed orders of the Father are not significantly disputed by the Mother”. He then set out a number of examples of such orders. Included in the list was reference to the fact that “different times and dates are sought around the Christmas period and during the Christmas holidays”. His Honour went on to say (at paragraph 12), “I do not intend to canvass each and every difference between the proposals of each party, but I have taken all the proposed orders into account”. Later (at paragraph 23), his Honour acknowledged that in making his orders he was obliged to treat the best interests of the child as the paramount consideration.
Given the failure of the mother to seek to advance her case at trial in relation to the sharing of Christmas Day, which was in strong contrast with the way the father actively sought to advance his case, it can be inferred the Acting Magistrate found the father’s case to be preferred for the reasons the father had given, and that he considered such an outcome was in the best interests of the child. It is not now open to the mother to seek to agitate this issue on appeal, relying on matters that were never put to the Acting Magistrate, not to mention relying on assertions of fact that were not in evidence at trial.
For these reasons this ground lacks merit.
Ground 2 – Baptism
By Ground 2 it is asserted:
2.His Honour the presiding Magistrate erred in law in ordering, in relation to baptism, that the child could not be baptised at the present time in that the order is not in the best interests of the child by reason of the following:
(a)The child…has attended a Christian kindergarten during all her kindergarten years.
(b) The child…has attended a Christian preschool during all her preschool years.
(b) The child is continuing now to attend a Christian school in her first year of formal schooling, namely, grade one.
(c) The child is a practising Christian who reads her own Bible every day and which she takes with her when she attends on the father for contact, by reason of the importance which has been placed and which she places on the Christian faith.
(d) The religious component of the child…education is an important part of her life and treated as such by the child, the school and family members.
(e) The learned magistrate, having found that the father expresses negative views about religion to the child, proceeded to find that the child should make up her mind about being baptised when she is older.
(f)The learned Trial Magistrate failed to give adequate reasons in this issue.
Reasons relevant to the baptism issue
Before coming to the part of his reasons in which he dealt with the baptism issue, Kaeser AM had recorded the agreement of the parents that there should be an order for equal shared parental responsibility. This might have been seen as a case of the triumph of hope over experience, given the number of disputes the parents were asking his Honour to determine. Amongst these was whether the child should remain at the local Christian school (“H School”) she had been attending, or move instead to another Christian school (“M School”), which she had previously attended, and which was closer to the father’s home. His Honour decided she should remain at H school, and he then discussed the proposal for the child to be baptised as a Christian (the proposed denomination was not specified).
In coming to his decision that the child should not be baptised at present, his Honour recorded the mother’s evidence that she was not a Christian when she and the father first enrolled the child at M School, but that she had “slowly taken on the Christian faith”. He noted that the mother had testified that she and the father had considered this issue when they first enrolled the child at school, but he did not record why she had not been baptised then.
His Honour then continued:
91.…[the mother] says it is now important that [the child] be baptised. [The child] is interested in the religious elements of the school and is asking about being baptised. The Mother considers it would help [the child] to fit in at school if she were baptised. She accepts that it is not compulsory and that if the court refuses to allow the baptism to occur, it would have no educational impact on [the child]. In my view it is not necessary for [the child] to be baptised in order to “fit in”.
92.The Father said that [M School] is “less religious” than [H School]. He considers the religious instruction at [H School] to be “over the top” and that [M School] does not push that issue on its students quite so much. He also says that a decision about baptism should be left until [the child] is older so she can have a proper input into that decision. His concern is about baptising (and therefore indoctrinating) her into a particular faith before she is able to decide for herself what religion (if any) she wishes to be a part of.
93.This fits in with his strongly stated position of being non-religious. He has probably made comments to [the child] about his views about religion which she has perceived negatively. [The child] has then raised these concerns with her mum and others. In my view, however this is not a cause for concern. It is a positive thing that [the child] is exposed to some different views about the topic. This will enable her to “make up her own mind” later in life. It is not however appropriate to actively discourage [the child’s] views about religion. She should be encouraged to express herself and openly talk about (and be supported in) her beliefs.
94.I consider that it is not necessary for [the child] to be baptised at this early stage. Given the conflict between the parents on this issue, and given her tender age, this process can be safely left to a later time.
Baptism - discussion
Although Ground 2 asserts an error of law, the manner in which the Acting Magistrate is said to have erred in law is not identified, save for the assertion in Ground 2(f) that his Honour “failed to give adequate reasons”.
Apart from the “reasons” complaint, the ground does nothing more than refer to evidence which, it is asserted, taken together, should have led his Honour to conclude it was in the child’s best interests to be baptised. This approach suffers from the same flaw I identified in dealing with Ground 1. It fails to demonstrate that his Honour’s decision was clearly wrong.
The reasons challenge also fails because, quite clearly, his Honour did give adequate reasons for his decision. His reasons addressed the arguments advanced by the mother in support of her application and indicated why he did not accept them.
It was only in the written submissions that counsel for the father identified what might arguably be an error of law, when he asserted that “his Honour seems to have approached this issue on the basis of whether the Baptism was necessary”.
It is true his Honour twice had resort to the concept of “necessity” when dealing with the baptism issue. First, he found it was not “necessary” for the child to be baptised in order to “fit in”. Second, in announcing his decision, he expressed the view that “it is not necessary for [the child] to be baptised at this early stage”.
The first reliance on “necessity” is not objectionable. The Acting Magistrate appears there to have been doing no more than rejecting the suggestion that it would assist the child to “fit in” at her school if she were to be baptised. This approach was open to him on the evidence.
The second reference to “necessity” is more problematic, as it appears in the paragraph in which his Honour makes his ultimate finding on the issue. Viewed in isolation, this might suggest that his Honour considered the relevant test was one of “necessity” rather than what is in the child’s best interests. However, examination of the totality of the reasons indicates that his Honour was well aware of the test he was required to apply. This is demonstrated by the very first paragraph of his reasons under the heading “Legal Principles”, where he said:
23.Children’s proceedings are governed by Part VII of the Family Law Act 1975. In deciding whether to make a parenting order, I must treat the best interests of the child as the paramount consideration.
In rejecting the submissions advanced on behalf of the mother, it should not be presumed I have accepted all of the submissions made on behalf of the father. Many of those submissions referred in detail to pieces of evidence which might have supported his Honour’s decision, but found no expression at all in his reasons. As they cannot be shown to have formed part of the reasoning process by which the decision was reached, they are of little or no assistance in determining whether the appellant has succeeded in demonstrating error in the approach actually adopted.
Ground 3 – proposed name change
By this ground it is asserted:
3. His Honour the presiding Magistrate erred in law in ordering that the child could not have the surname of the mother in addition to the surname of the father so as to have a composite name [“the father’s surname followed by a hyphen and the mother’s surname”] in that such order is not in the best interests of the child for the following factors:
(a) The child…maintains a good relationship with both parents, and her mother does foster the relationship between [the child] and her father.
(b) Both natural actual parents (the parties to this Appeal) of [the child] intend marrying their current partners and living with them on [sic] in a permanent relationship.
(c)Upon re-marrying, the mother will hyphenate her surname to [“the mother’s surname followed by a hyphen and the mother’s fiancée’s surname”], retaining a connection with her maiden name.
(cd) Both the mother and the father intend to have a child with their current partners- (the mother's child expected to be born in October 2011 and the father's child expected to be born in August 2011) and in the circumstances it is in the interests of [the child] to maintain the surname of both parents in the form [“the father’s surname followed by a hyphen and the mother’s surname”].
Reasons relevant to change of name
His Honour commenced his discussion of this issue by noting that it had been brought up “very late in the proceedings”. He also found that the issue did not appear to have been “considered very carefully” by the mother.
His Honour next set out the relevant legal principles by reference to Flanagan and Handcock (2001) FLC 93-074. He found that the principles to be applied were as follows:
a. The decision must be what is [sic] the child’s best interests;
b. Children should not be unnecessarily subjected to a confusion of identity;
c. The short and long term effects of a change (and of “no change”) must be considered.
d. The court must consider any embarrassment likely to be experienced if the child’s name is different to that of the parent with custody or control.
e. The court must consider the effect a change of name would have on the parent whose name the child bore.
f. The effect of frequent or random name changes must be considered.
No issue was taken with that concise summary of the relevant principles. His Honour then noted that the mother had acknowledged, in cross-examination, that she did not know whether she would retain her present surname or take her husband’s surname after they were married. His Honour commented that if the mother took her fiancée’s surname it would “defeat her argument that [the child] would need “[the mother’s surname]” as part of her surname”. He went on to say “the Mother might on that logic make a further application to change [the child’s] surname to something that would include [her partner’s surname] in order to identify with her if she changed her surname to [her partner’s surname]”. His Honour found that such a “further application would be inappropriate”.
His Honour next recorded the mother’s evidence that it was likely that any children that she and her partner had would take her partner’s surname.
His Honour continued
99.[The mother] proposed that [the child] have her name changed to “[the father’s surname followed by a hyphen and the mother’s surname]” or “[the mother’s surname followed by a hyphen and the father’s surname]”. She wants [the child] to identify with both her parents’ families by hyphenating her surname. She says [the child] has friends with hyphenated names and has asked why she couldn’t have two names. The Mother did however accept that [the child] was not suffering any adverse effects by not having “[the mother’s surname]” as part of her surname.
100.I consider that the evidence of [the child’s] desire to change her name is nothing more than a young child’s fleeting desire to be like some of her friends.
101.The Mother had not raised this issue of a change of name with the Father prior to bringing it before the Court. Her answer as to why is demonstrative – effectively that the parties cannot communicate well and she knew that his answer would be negative.
102.It was pointed out to the Mother in cross examination that the Court had already ordered on an interim basis that the parties have equal shared parental responsibility.
103.According to section 65DAC, the order to share parental responsibility means that the parties must consult each other in relation to any major long term issue. It means that the decision must be made jointly. This also provides that each parent must consult the other in relation to such issues and make a genuine effort to come to a joint decision. “Major long term issues” are defined in the act as including education and the child’s name.
104.The Mother clearly did not follow this path when considering the issue of a change to [the child’s] surname. Despite thinking she may not get a positive reaction she should have consulted the Father and must do so in the future.
105.[The child] identifies with her surname of [the father’s family] and clearly understands she is part of the [the mother’s family]. She does not need to change her surname to ensure she identifies with both her parents. She is not likely to suffer any embarrassment if she is not allowed to have her name changed. A change of name is likely to have an effect on the Father, although that is not reasonable as the proposed change would still include his name.
106.In my view it is not is [sic] [the child’s] best interests to change her surname.
Ground 3 – discussion of proposed name change
Once again, this ground amounts to nothing more than an assertion that the Magistrate should have reached a different decision, without identifying any error actually made in reaching the decision he did.
Although there was no “reasons” complaint contained in Ground 3, it was asserted on behalf of the mother that it was difficult to follow “the rational [sic] of the decision…there appears to be a dearth of explanation as to how His Honour came to the conclusion that it was not in the best interest of the child not to change the name”. Counsel for the mother argued, in effect, that rather than concentrating on the best interests of the child, his Honour had focused on the failure of the mother to discuss the issue with the father, and that the mother had only raised the issue very late in the proceedings.
In my view, there is nothing in his Honour’s reasons to suggest that the mother’s application was dismissed because of her failure to consult with the father about the name change. His Honour was merely drawing the parties’ attention, for future purposes, to the fact that the order for shared parental responsibility made it appropriate for such matters to be the subject of discussion prior to even more litigation being commenced.
Although his Honour did refer to the name change application having been made late in the proceedings, there is no indication that this fact influenced the outcome of the application. On the contrary, it is apparent his Honour made reference to this only in the context of finding that the application did not “appear to have been considered very carefully”.
The matters to which his Honour referred indicate that he was justified in coming to the conclusion that the application did not appear to have been considered very carefully. Nothing advanced on behalf of the mother persuaded me that his Honour erred, either in fact or in law, in reaching the decision that it was not in the child’s best interests for her name to be changed. His Honour correctly summarised the legal principles to be considered in such an application and then applied them to the facts.
Conclusion and costs
For the reasons given, I have found all of the mother’s complaints to be without merit. The appeal will therefore be dismissed.
The father sought costs in the event the appeal was dismissed. There are two primary reasons why I intend to order the mother to pay the father’s costs. First, she was entirely unsuccessful. Secondly, it was very properly conceded that the issues raised on appeal were “minor”. A party who chooses to agitate minor matters on appeal runs the risk they will be required to meet the costs they have forced the other party to incur.
I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 9 December 2011.
Associate:
Date: 9 December 2011
4
0