Cottey & Backe (No 2)

[2020] FamCAFC 206

FAMILY COURT OF AUSTRALIA

COTTEY & BACKE (NO. 2) [2020] FamCAFC 206

FAMILY LAW – APPEAL – INTERIM PARENTING – Where the child lived with the mother and stepfather – Where mother passed away – Father retained the child – Stepfather’s application for return of child dismissed – Best interests of the child – No presumption in favour of a parent compared to another person – Separation of siblings – Stability of a well settled living arrangement – Child’s views – Inadequacy of reasons – Consideration of s 60CC factors – Appeal allowed – Orders set aside – Re‑exercise of discretion – Child to live with stepfather.

FAMILY LAW – APPEAL – COSTS – Costs certificate granted to the stepfather for the appeal – Where the father’s failure to seek the Court’s imprimatur before retaining the child and failure to concede the appeal weigh against the granting of a costs certificate.

Family Law Act 1975 (Cth) Pt VII, ss, 60CC, 62B, 65C, 65DA(2)

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Reform Act 1995 (Cth)

Federal Proceedings (Costs) Act 1981 (Cth) s 9

Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229
B and B: Family Law Reform Act1995 (1997) FLC 92-755; [1997] FamCA 33
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Carlson & Fluvium [2012] FamCA 32
D & F [2001] FamCA 382
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Morgan and Miles (2007) FLC 93-343; [2007] FamCA 1230
Parks & Farmer [2012] FamCAFC 12
Re Evelyn (1998) FLC 92-807; [1998] FamCA 55
Re Hodak (1993) FLC 92-421; [1993] FamCA 83
Re K (1994) FLC 92-461; [1994] FamCA 21
Rice v Miller (1993) FLC 92-415; [1993] FamCA 87
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Valentine & Lacerra and Anor (2013) FLC 93-539; [2013] FamCAFC 53
Whiteman & Newton [2013] FamCAFC 127

APPELLANT: Mr Cottey

RESPONDENT: Mr Backe

FILE NUMBER: DUC 217 of 2020

APPEAL NUMBER: EAA 84 of 2020

DATE DELIVERED: 21 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney (via video link)

JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE: 14 August 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 19 June 2020

LOWER COURT MNC: [2020] FCCA 1558

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Webb

SOLICITOR FOR THE APPELLANT: DLH Solicitors

COUNSEL FOR THE RESPONDENT: Mr Longworth

SOLICITOR FOR THE RESPONDENT: Flynns Solicitors

Orders

1. The appeal be allowed.

2. The Application in an Appeal to adduce further evidence filed 29 July 2020 be allowed in part.

3. The Response to an Application in an Appeal filed 7 August 2020 be allowed in part.

4. Orders 1, 2, 3 and 4 dated 19 June 2020 be set aside.

PENDING FURTHER ORDER, IT IS ORDERED

1. That Mr Cottey (“the stepfather”) and Mr Backe (“the father”) have equal shared parental responsibility for the child, X, born in 2012 (“the child”).

2. That the child live with the stepfather.

3. That the child spend time with the father by agreement and failing agreement as follows:

   (a)during the school term, commencing the first weekend of each school term, each alternate weekend from after school or 3.15 pm on the Friday until 4.00 pm on the Sunday;

   (b)during the school holidays at the conclusion of Terms 1, 2 and 3 commencing 2020 and each even numbered year thereafter from the conclusion of school on the final day of the school term until 4.00 pm eight (8) days later;

   (c)during the school holidays at the conclusion of Terms 1, 2 and 3 commencing 2021 and each odd numbered year thereafter from 4.00 pm on the eighth day of the school holiday period until the last day of the school holiday period;

   (d)for one half of the Christmas school holiday period at the conclusion of Term 4 in 2020 and each even numbered year thereafter from 4.00 pm on  the 22nd day of the school holiday period until the last day of the school holiday period, excluding the period from 9.00 am on 24 December to 6.00 pm on 26 December;

   (e)for one half of the Christmas school holiday period at the conclusion of Term 4 in 2021 and each odd numbered year thereafter from the conclusion of school on the final day of Term 4 for twenty-one (21) nights, excluding the period from 9.00 am on 24 December to 6.00 pm on 26 December;

   (f)commencing 2020 from 3.00 pm on 25 December to 6.00 pm on 26 December in each even numbered year;

   (g)commencing 2021 from 9.00 am on 24 December to 3.00 pm on 25 December in each odd numbered year;

   (h)Easter weekend in alternate years commencing 2022.

4. That the child spend time with the father to celebrate Father’s Day from after school on Friday immediately before Father’s Day until 4.00 pm on Father’s Day, commencing in 2020 and each even year thereafter.

5. That the child spend time with the stepfather to celebrate Father’s Day from after school on the Friday immediately before Father’s Day until 4.00 pm on Father’s Day, commencing in 2021 and each odd year thereafter.

6. That unless agreed between the parties in writing, changeover shall occur at the BP Service Station, Town K.

7. The outstanding application/response for interim orders be otherwise dismissed.

8. There be no order as to costs.

9. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 him in relation to this appeal.

IT IS NOTED THAT:

A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cottey & Backe (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 84 of 2020
File Number: DUC 217 of 2020

Mr Cottey

Appellant

And

Mr Backe

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Notice of Appeal filed 25 June 2020, Mr Cottey (“the stepfather”) appeals various interim parenting orders made on 19 June 2020.  The orders relate to X who was born in 2012 (“the child”).  Mr Backe (“the father”) is the child’s father and the respondent to the appeal.  From August 2013, the child lived with the stepfather and the child’s mother, Ms Cottey (“the mother”).  The child was living with them when the mother died in a motor vehicle accident in 2019.  Following the mother’s death, as he had beforehand, the child spent each alternate weekend and a portion of the school holidays with the father and his wife.  Those arrangements continued until April 2020 when, the father refused to return the child.

2. On the basis that the stepfather is a person concerned with the care, welfare or development of the child (s 65C of the Family Law Act 1975 (“the Act”)), he commenced proceedings in the Federal Circuit Court of Australia for the child’s return and related orders.  He proposed that the child live with him (and the child’s younger brother) and that the arrangements for alternate weekends and school holiday time with the father be reinstated.

3. The stepfather’s application failed and interim orders were made which provide that the child live with the father (Order 2) and spend time with the stepfather by agreement, and failing agreement, each alternate weekend and half of school holidays (Order 3).  The stepfather appeals against those and a number of related orders.  The father seeks to uphold the decision of the primary judge.

4. On appeal, the stepfather seeks that Orders 1–4 of the orders made on 19 June 2020 be set aside and that this Court re‑exercise the Court’s discretion.  The stepfather proposes that he and the father have equal shared parental responsibility for the child, the child live with him and failing agreement with the father about the arrangements as to time, that the child spends each alternate weekend and half school holidays with the father.  Although the father would prefer that the proceedings be remitted for rehearing, he anticipated that this Court was likely to re‑exercise.  To this end, on 29 July 2020, the father filed an application to adduce further evidence in the appeal, being five affidavits, which provide updated evidence concerning the child and provide an explanation for why more comprehensive evidence was not placed before the primary judge.  The father seeks orders identical to those under appeal.

5. By his Response filed on 7 August 2020, the stepfather opposes the admission of further evidence.  However, in the event that the father’s application is granted, the stepfather seeks that affidavits by him and his partner are also admitted.

Background

1. So as to provide context to the appeal, a brief factual background is required.

2. The father was born in 1985 and is 35 years of age.

3. The stepfather was born in 1986 and is 34 years of age.

4. The mother was born in 1991 and was 28 years of age when she died.

5. It seems that all parties hail from regional New South Wales and live in the Town D/Town A region.

6. The mother and father commenced living together in 2009.

7. The child was born in 2012.

8. In August 2013, the mother and father’s relationship ended and they separated.  Following their separation, the mother and child commenced living with the stepfather in Town C near Town D.  The stepfather is a labourer and works at Location P.  From when the stepfather and the mother started living together in August 2013, he worked full time and the mother stayed at home and cared for the family.

9. The child was 12 months of age when his parents separated and for quite some time thereafter, the father had little contact with the child.  In 2014, the mother and father attended mediation and they agreed on arrangements for child support and contact with the father.  However, the agreement was not formalised and never fully implemented.  In any event, the impasse was breached and thereafter, the child had some, albeit irregular time with the father.

10. It was 2015, when the child was about two and a half years of age, that he commenced spending regular time with the father.  Although from time to time there were disagreements and disruptions to the arrangements, from years before the mother passed away, the child was spending alternate weekends and half of school holidays with the father.

11. The father commenced a relationship with his wife, Ms B, in 2014.

12. In 2014, the mother and stepfather’s son, E, was born.  As the stepfather did, we will refer to E and the child collectively as “the boys”.

13. The stepfather and the mother married in 2017.

14. In 2018, the child started school at Town D Public School where he attended until the father retained him.

15. In October 2018, the mother commenced paid employment.  At some stage, E commenced preschool at a preschool where the stepfather’s sister, Ms H worked.  Ms H, her husband and their children enjoyed very close relationships with the mother, the stepfather and the boys.

16. On … 2019, the mother died.

17. The stepfather works an even rotating roster, which means he works blocks of night shifts from 7.00 pm to 7.00 am and blocks of day shifts from 7.00 am to 7.00 pm.  It also means that he does not work between 14 to 16 days each month and is able to be home with the children.  Self‑evidently, following the mother’s death, on work days, the stepfather needed help with the children before and after school and preschool.  Ms H and her family helped and, initially, the boys stayed with her at least three nights per week.  Both boys continued to attend school and preschool.

18. The stepfather then took long service leave and was at home with the boys from about September/October to mid‑December 2019.  He took a second tranche of long service leave, commencing 5 January 2020 until the start of the 2020 school year.

19. In the meantime, E’s godfather, Mr J moved back to Town D and moved into a caravan on the stepfather’s property.  Mr J works with the stepfather but in a different crew.  He assisted with the boys when the stepfather was at work and became “a supportive member of [that] family unit” (stepfather’s affidavit filed 26 May 2020, paragraph 49).

20. It is uncontroversial that the father did not contribute to the child’s financial support after the mother died.

21. It is the father’s evidence that following the mother’s death that:

    … I wanted [the child] to come and live with me straight away but [the stepfather] did not agree.  I agreed that [the child] could stay living [the stepfather] for a while, as I was persuaded that further disruption would not be good for [the child] at that time…

    (Father’s affidavit filed 4 June 2020, paragraph 12)

22. However, on 19 December 2019 the father’s solicitor wrote to the stepfather and informed him that the father wanted the child to live with him, and for those arrangements to be implemented in the forthcoming school holidays.  The solicitor wrote:

    …It is noted that our client consented to [the child] living with you for a period of time following the death of [the child’s mother] in …. We also note that [the child] is close to his [brother] and it has been important for the boys to be together over this difficult period of time.

    We note that [the child] has only spent alternate weekends with his father since the death of [the child’s] mother. Our client agreed to that arrangement in the short term, so that [the child] did not have further disruption in his life immediately following the loss of his mother.

    We are instructed that it has been agreed that [the child] shall spend Christmas with you and your family. [The child] is to be returned to his father on 28 December 2019.

    It is now time for [the child] to live with his father as the primary carer, as he is the child’s surviving biological parent.

    Our client believes that [the child] should however continue to have a close family relationship with you and [the child’s brother]. It intended that [the child] shall spend significant and meaningful time with you and [the child’s brother] in the future and the details of those arrangements can be negotiated in early 2020. It is clearly in [the child’s] best interests that he should have support from the extended family.

    Please use your best endeavours to ensure that this transition in [the child’s] life takes place in the least possible stressful manner…

    (Letter of the father’s solicitors dated 19 December 2019, Annexure “B1” to the father’s affidavit filed 4 June 2020) (As per the original)

23. The stepfather did not agree with the proposal and the parties then agreed that the existing arrangement would continue and advice would be obtained from a psychologist about the child’s needs.  From the father’s perspective, the advice would address “the best way for the transition to occur from [the child] living with his stepfather to living with his father” (letter of the father's solicitors dated 10 January 2020, Annexure “B12” to the father’s affidavit filed 4 June 2020).  Although an appointment was made with a psychologist, when the reason for the consultation was established, the practice informed the stepfather that they could not assist and the appointment was cancelled.  Given the shadow of potential family law proceedings, the parties were unable to find someone willing to assist.

24. E started kindergarten at Town D Public School in 2020.

25. In March 2020, the stepfather commenced a relationship with his now girlfriend, Ms G.  Ms G did not live with the stepfather but she provided some assistance with the boys when he was at work.

26. When the COVID-19 pandemic caused schools to close, the stepfather and Ms G devised a plan to keep the boys and her two sons (R who is seven years of age and P aged nine) safe.  Ms G and her children spent their days at the stepfather’s property and, with some involvement by the stepfather, she home schooled all four children.  Ms G and the stepfather maintained regular contact with Town D Public School, where her children also attend school, and the stepfather and Mr J did the shopping so as to keep all households operational and safe.

27. If there was any doubt that there was a serious disagreement about the father’s desire that the child lives with him, this is dispelled by a letter dated 4 March 2020 that the father’s solicitor wrote to the stepfather’s solicitor.  Albeit, the mere fact that for some months the parties had retained lawyers is illustrative of the point.  These matters are sufficient to reject the father’s submission that it was agreed that the child would inevitably live with the father.  In any event, on 4 March 2020, the father’s solicitor wrote:

    …We are instructed that neither your client or his sister have been initiating telephone calls on Tuesday and Thursday as set out in your letter.

    We note that the child should now have had his first appointment with the psychologist. Can you please advise when the child will be attending at the psychologist again and on how many further occasions in order for the psychologist to be in a position to properly provide a report.

    In relation to preparing the report for the parties it is required that a joint letter of instruction shall be forwarded to the psychologist setting out the matters to be addressed in the report on [the child] and the best way forward for the child. In this regard please now forward the draft joint letter of instruction for consideration. It is not for your client to unilaterally set out what is required from the psychologist.

    At this time our client does not agree to sign the Consent Orders which were drafted by your office some months ago.

    Our client agrees to continue the arrangement whereby [the child] spends alternate weekend[s] with our client, until such time as the report is provided by the psychologist.

    Should your client file an Initiating Application prior to receipt of the psychologist’s report, taking into account our client’s agreement as set out in the previous paragraph of this letter, then we would seek a costs order against your client, on the basis that filing such an Application would be premature in all the circumstances.

    Please confirm that you[r] client will continue to ensure that [the child] spends alternate weekends with our client, who is the father of the child. In addition telephone contact between the child and the father is to be facilitated on Tuesday and Thursday as previously agreed…

    (Letter of the father’s solicitors dated 4 March 2020, Annexure “C3” to the stepfather’s affidavit filed 26 May 2020) (Emphasis in original)

28. The child went to the father on 9 April 2020.  Notwithstanding the agreement and the father’s position that it was premature to commence proceedings, the father refused to return the child to the stepfather.

29. On 17 April 2020, the father’s solicitor informed the stepfather’s solicitor, that the child did not want to return to the stepfather and on 26 May 2020, the stepfather commenced these proceedings.

30. Town A, where the father and his extended family lives, is approximately 88 kilometres by road from Town D and is too far for the father to continue the child’s attendance at Town D Primary School.  Thus, the child was enrolled at Town A School from the start of Term 2, 2020.

1. The father works full time at Company Q as a labourer.  Ms B works two days a week and during the evenings.  On days she attends work, either the father’s mother or sister cares for the child before or after school.  They are part of the father’s large family network who all live nearby.

2. Although the father proposed that the child has alternate weekends with the stepfather, the stepfather did not agree and other than limited telephone contact, the child and stepfather did not have contact until the orders were made.  However, the father arranged for the child to spend a couple of hours with the stepfather’s sister and her family and on another occasion, with Ms G, her children and E.

3. The hearing took place on 5 June 2020 and on 19 June 2020, the primary judge delivered judgment.  As well as the parenting orders, the proceedings were adjourned to a date to be advised in March 2021 following the release of a Family Report (Order 13).

4. The stepfather appealed on 25 June 2020 and on 26 June 2020 he sought expedition of his appeal.  The application for expedition was opposed but on 15 July 2020 the appeal was expedited.

The reasons for judgment

1. The primary judge noted the circumscribed nature of interim hearings undertaken without cross‑examination and, by reference to oft cited authorities, acknowledged the constraints on fact finding where the fact in issue is contentious (Marvel v Marvel (2010) 43 Fam LR 348 at [120] (“Marvel”); Eaby & Speelman (2015) FLC 93-654 at [18]–[19]). Thus, the orders would be a temporary measure until the evidence could be tested at a final hearing. The primary judge extracted from Marvel the passage which says that “often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted” [120]. Otherwise, reference was made to the provisions of Part VII of the Act as to the factors which the court must consider in determining the best interests of the child and, when a recovery order is sought. No challenge is made to his Honour’s statement of the principles against which the applications would be decided; rather the question to be answered is whether the principles were correctly applied.

2. Under the heading “Agreed facts unless otherwise stated”, the primary judge summarised the evidence given by each of the parties.  None of the discussion under this heading identifies any factual controversies and it seems that statements to the effect “the stepfather asserts”, “the father asserts” are the findings of fact.  Stated broadly, in paragraphs [4] to [39], the primary judge provides a factual overview of the case consistent with paragraphs [6] and [38] of these reasons.

3. His Honour then turned to the application of s 60CC and it is the application of s 60CC(2)(a) of the Act where the findings upon which the judgment turns are found. His Honour said:

   49.The child would appear to have a meaningful relationship with the father, and it would appear that the child would benefit from a continuance of that relationship.

   50.The child, for some significant time now, has spent regular time with the father whilst remaining living in the primary care of the mother and the stepfather (and after the mother’s death, in the primary care of the stepfather).  Since about early April 2020, the child has been in the father’s primary care. Since then, the father asserts that the child has attended a new school, is making new friends, and is exposed to the company of extended members of the paternal family in Town A.

   51.Should the Court make the stepfather’s proposed recovery order, there is a real risk that the further and timely development of the child’s meaningful relationship with the father may be adversely compromised.

   52.The Court gives significant weight to this meaningful relationship primary consideration.

4. Under the rubric of s 60CC(2)(b) the primary judge considered whether “there is an unacceptable risk of psychological harm posed to the child remaining living in the father’s primary care” [54]; in particular, arising from separation from the stepfather and his brother.  His Honour noted the absence of expert evidence which suggested “there is a significant risk” to the child of psychological harm [58] to the child at separation from the stepfather and his brother.

5. His Honour continued:

   60.Should the Court make the father’s proposed interim parenting orders relating to the child living with him and spending time with the stepfather (that is, inter alia, alternative weekends with the stepfather (and thereby E)), there is a real prospect that the child’s positive relationship with the stepfather and E can be maintained.  Such time‑with orders would minimise the risk of the child experiencing emotional harm in relation to not living with the stepfather and E at this interim stage.

6. As to s 60CC(3), his Honour noted the child made statements for and against change but these did not warrant “significant weight” [62]. The child had positive relationships with the stepfather, his brother and the stepfather’s family and also with some members of the father’s family [63]. There was a real prospect that the child’s positive relationships with the stepfather and his brother could be maintained if the child lived with the father [66].

7. The fact that the father retained the child contrary to agreement between the parties was not significant [77] and “alleged historical family violence perpetrated by the father” [71] against the mother was contentious and could not be resolved.  However, the stepfather and the mother facilitated the child spending regular overnight time with the father for years with the inference being that his Honour was satisfied that they did not consider there was an unacceptable risk of exposure to family violence in the father’s care.

8. Thus, orders along the lines of those proposed by the father were in the best interest of the child [76].

The grounds of appeal

1. It needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only as to matters of weight by no means justifies a reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

2. The stepfather presented 12 grounds of appeal of which a number were interconnected and there was considerable overlap.  In reality, the grounds assert that the primary judge erred:

   ·by failing to provide adequate reasons that it is in the child’s best interests to live with the father and if the child lived with the stepfather there is a real risk that the child’s meaningful relationship with the father may be adversely compromised (Ground 1, 3, 7 and 8);

   ·in his Honour’s application of s 60CC(3)(d) of the Act and by failing to consider the effect on the child of changing his living arrangements (Grounds 2, 4 and 9); and

   ·by failing to give weight to the child’s relationship with his stepfather and his brother (Ground 5).

Were the reasons inadequate?

1. The grounds challenge the adequacy of the reasons for judgment as to the ultimate determination and the finding at [51] that the stepfather’s proposal posed a real risk to the further and timely development of the child’s meaningful relationship with the father, which may be adversely compromised.

2. The test for inadequacy of reasons is well known and reasons will be inadequate if:

   a)the appeal court is unable to ascertain the reasoning upon which the decision in based; or

   b)justice is not seen to be done (Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18).

3. There was no disagreement with the proposition that in a case such as this, the reasons for judgment may be brief.  Furthermore, whatever their length, the primary judge was obliged to explain why the stepfather’s case was rejected.  This required that his Honour analyse the effect on the child of the losses inherent in changing an almost life‑long living arrangement in favour of the arrangements put forward by the father.  Counsel for the father agreed this was the pivotal issue in the case.  For the father, it was contended that the recitation of the agreed facts demonstrates that the primary judge understood the magnitude of the changes to the child’s life caused by the orders.  However, this is a non sequitur and, in order to defeat this challenge, counsel needed to point to more than the mechanics of those changes and demonstrate how the primary judge reasoned that these changes were of little or no consequence and why they warranted lesser weight than those that weighed in favour of change.  It is in no way a criticism of counsel that he was unable to point to a reasoned analysis of the issue because there is none.

4. His Honour’s consideration of the issue goes no further than:

   66.Should the court make an interim parenting order that the child live with the father, and spend time with the stepfather in accordance with the interim parenting proposals of the father, there is a real prospect that the child’s positive relationship with the stepfather (and positive relationship with the child E) can be maintained…

5. More will be said about this issue under the challenge concerning the application of s 60CC(3)(d) of the Act but the assertion that his Honour’s reasons do not engage or explain why the stepfather’s case was rejected is accepted. Nor is an explanation provided for the conclusion at [51] concerning the negative impact on the child’s relationship with the father should the child return to live with the stepfather. On this issue, the evidence pointed in one direction; namely that the stepfather had honoured the initial agreement between the child’s parents and then between the parties and would continue to facilitate regular time between the child and the father.

6. Although the father complained about telephone communication, the stepfather’s explanation of ongoing telecommunication problems in the area dispelled the suggestion that somehow these difficulties hinted at his lack of regard for the father.

7. In a sense, this is mere speculation because the primary judge provides no reasons for the findings at [51]. As this is one of the pivotal findings upon which the judgment is based, the challenge to his Honour’s reasons is made good. Similarly, his Honour’s failure to explain the conclusion at [66] demonstrates that his Honour also failed to provide reasons for rejecting an essential integer of the stepfather’s case.

8. The question which then arises is, whether the reasons for judgment explain why it was in the best interests of the child to live with the father.  That question is answered at [49] and [52] and is that the father succeeded because he is the child’s sole surviving biological parent.

9. At least as far back as Rice v Miller (1993) FLC 92-415 (“Rice v Miller”), the Full Court made it clear that parenting (custody) disputes between a parent and a non‑parent must be decided solely on the basis of the child’s best interests.  There was no presumption in favour of the natural parent when determining custody or similar matters.  The fact of parenthood is a significant factor but does not “generate a preferential position in favour of the natural parent from which the Court commences its decision making process in the adjudication of custody disputes” (Rice v Miller at 80,240 quoting Re Hodak (1993) FLC 92-421 at 80,343).

10. Amendments to Part VII of the Act introduced by the Family Law Reform Act 1995 (Cth) preserved the best interests of the child as the paramount consideration to which “[a]ll other provisions in Part VII are subservient” (B and B: Family Law Reform Act1995 (1997) FLC 92-755 at 84,217). Hence, while the children had a right to be cared for by both parents, this was subject to the child’s best interests. Thus, notwithstanding that for the first time the Act contained a series of objects, including one emphasising a child’s right to know and be cared for by both parents and; a more extensive list of factors, some of which referred exclusively to parents, there was no presumption or preference in favour of a parent in a parenting/residence dispute as against a third party (Re Evelyn (1998) FLC 92-807 (“Re Evelyn”); D & F [2001] FamCA 382).

11. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) saw further changes made to Part VII which “placed greater emphasis on the role of both parents in the upbringing of their children” but still required that “all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant” (Aldridge & Keaton (2009) FLC 93-421 at [75] (“Aldridge & Keaton”).  In Aldridge & Keaton the Full Court questioned whether the 2006 amendments changed the principles in Rice v Miller and Re Evelyn set out earlier.  The combined effect of [74], [75] and [81] is that the question was answered in the negative.  The appeal was properly conducted on this basis (see also Maldera & Orbel (2014) FLC 93-602; Valentine & Lacerra and Anor (2013) FLC 93-539).

12. However, in the court below, the father’s case was presented on the basis of him being in a preferred position by reason of parenthood and the stepfather needing to establish a risk of harm to the child in order to dislodge that advantage.  The solicitor who appeared for the father explained his case thus:

    MS TOWNEND: … [W]e just believe that the child should live with the father and there’s no reason why he shouldn’t live with the father and that the father is, you know, a competent parent, available, loving, caring, can provide a good [sic] for the child, is putting in place all the sort of support measures, including counselling with the school.

    (Transcript 5 June 2020, p.15 lines 31–35)

13. We are unable to discern any reason for the outcome other than the primary judge decided that the child should live with the father because he is a parent.  Although his Honour does not expressly say so, when the reasons are considered as a whole, it is clear that the stepfather’s case was wrongly evaluated on the basis that he bore an onus to demonstrate disqualifying factors in the father to have the child returned to him.

14. These challenges have been established.

The effect of changing the child’s living arrangements

1. The gravamen of these grounds is that the primary judge erred in the approach taken to what the stepfather said was the importance of maintaining the child’s stable living arrangements with him pending a final hearing.  His Honour is said to have erred by placing weight on the absence of evidence from a psychologist that the child would suffer psychological harm if he moved to live with the father.  The point being, that as the child had been living in a well settled environment, with no evidence the child had been or was at risk of psychological harm arising therefrom, his Honour should have been concerned about the absence of evidence from a psychologist that wholesale changes to the child’s living arrangements would not compromise the child’s psychological or emotional wellbeing.

2. We agree with the stepfather that this issue engaged s 60CC(3)(d) and not s 60CC(2)(b). The contention was of risk of psychological harm arising from disruption of a well settled living arrangement and not from abuse, neglect or family violence to which s 60CC(2)(b) pertains. However, merely because the primary judge discussed the issue under the rubric of s 60CC(2)(b) rather than s 60CC(3)(d) does not amount to appellable error. So long as the primary judge understood this important integer of the stepfather’s case and dealt with the issue appropriately, it does not matter that it was discussed under a different, albeit closely related provision.

3. The case law is replete with discussion of the importance of stability and the need for careful attention being given in interim hearings to the effect of changing well settled arrangements.  For example, in Parks & Farmer [2012] FamCAFC 12, the Full Court said at [87]:

   We are unable to accept that in an interim hearing such as this, on incomplete and untested evidence, determining the child’s best interests in accordance with the provisions of Part VII would not, or should not be significantly influenced by questions of the comparative stability of the parties’ proposed arrangements for the child. As the authorities, and the terms of Part VII of the Act make clear, whilst the Court does not condone “unilateral relocations”, such actions are but one of the factors which, by reference to the provisions of Part VII, are relevant to determining the child’s best interests on an interim basis after a circumscribed hearing (see Goode & Goode (2006) FLC 93-286).

4. So too, in Whiteman & Newton [2013] FamCAFC 127, the Full Court observed at [33]:

   It need hardly be said that the Court would always take into account the stability of a well settled arrangement and that, where there is controversial evidence about the child’s needs, a decision may well be made to leave the child in that environment. However, in this case the child was not really in a well settled arrangement because she had been living with both her grandmother and mother. The judge also had the benefit of the doctor’s evidence about the child’s state which was compelling.

5. This was one of those cases “in which the child’s present stability [was] extremely relevant on an interim basis” (Morgan and Miles (2007) FLC 93-343 at [88]). In deciding that the issue warranted little or no weight, the primary judge overlooked compelling and it would appear, unchallenged evidence as to the quality of the child’s life with the stepfather and the losses for the child inherent in the orders made.

6. For example, the stepfather’s evidence that:

   ·“[The boys] share a room… and they do everything together if they are not at school” (stepfather’s affidavit filed 26 May 2020, paragraph 63);

   ·“[The child’s brother] was extremely excited about getting on the school bus and being at the same school with [the child] this year as he started kindergarten.  [The boys] both love playing together on their pushbikes and motorbikes, and with their trucks and monster trucks” (stepfather’s affidavit filed 26 May 2020, paragraph 66); and

   ·The child had lived with the stepfather in the same home from when he was about 12 months of age and was surrounded by “people who have always supported him, the school he loves with friends that he has built solid relationships with over the years and his younger brother” (stepfather’s affidavit filed 26 May 2020, paragraph 69).

7. Furthermore, evidence given by the stepfather’s sister that:

   7.I have always known [the stepfather] to be the most constant father figure in [the child’s] life. [The stepfather] treats [the child] as if he were his own son and does not show preferential treatment toward either of his children over the other. I have observed if [the stepfather] buys something for E he buys the same thing for [the child]. I have witnessed [the stepfather] spend equal time with the children and take them both with him when he goes places.

   8.[The child] has had a stable and happy home with [the stepfather], his late [mother] and [brother].

   9.[The stepfather] does enjoyable fatherly and family activities with the boys that include Motor bike riding, camping, fishing and bushwalks as well as everyday responsibilities such as homework and school activities. I know this because I can see that [the stepfather] enjoys these activities with the children.

   …

   17.[The child] enjoys attending Town D Public School. When [the child] would come to my home after school, he was usually excited to tell me about his day and what he had done at school. [The boys] travelled daily on the [school bus] together to and from school. [The child] received many good reports and merit certificates, which he would proudly show us all.

   …

   20.I have observed that [the child] loves his brother and have seen them play well together, displaying a lot of “rough and tumble” play and giggles often. They are very happy when they are together.

   (Affidavit of Ms H filed 3 June 2020)

1. Coupled with the stepfather’s evidence about the arrangements he put in place for the boys’ care following their mother’s death, the primary judge should have found that in the stepfather’s care, the child was well settled, his needs were well met and there was no risk to the child if those arrangements continued.  Furthermore, that changing those arrangements required consideration of the effect on a child who had already suffered profound loss, of further profound losses.  This was a larger question than whether the child’s relationship with his stepfather and brother would be maintained through alternate weekend and school holiday time and required the primary judge to examine the evidence which would enable him to determine whether the risks inherent in the wholesale change in the child’s circumstances were either inconsequential or significant but necessary.

2. As there was no evidence of risk to the child in his well settled environment, on the proper application of s 60CC(3)(d), his Honour needed to be satisfied that the risks arising from further profound losses were inconsequential. Not only did the primary judge fail to engage with that issue, the evidence would not have permitted that finding.

3. The challenges to the effect on changing the child’s circumstances are made out.

The importance of siblings

1. In respect to the relationship between a child and their sibling, in Carlson & Fluvium [2012] FamCA 32, Kent J accurately observed at [503]:

   … Many authorities of this court reflect the assumption that children will benefit from sibling relationships, and reflects the court’s reluctance to separate siblings unless this appears, in all the circumstances, to be in their best interests.

   (Footnote omitted)

2. The list of cases which support Kent J’s observation is long and for present purposes it is sufficient to mention Bennett and Bennett (1991) FLC 92-191, where the Full Court said at 78,265–78,266:

   …[I]n our opinion, the decision (contrary to the wishes of both parties) to separate two siblings so close together in age, and who had lived with their mother for so long, required a much more thorough examination of their wishes and not a mere reliance upon a questionable document.

   …

   In all the circumstances, we regard it as unsafe to allow her Honour’s decision to stand. We are satisfied for the reasons stated that her Honour made significant errors as to critical aspects of the evidence and its effect and above all that she had insufficient evidence before her as to the wishes of the children on the issue of separation. The separation of two children so close together in age who have lived together for so long is a most serious step which could only be justified in compelling circumstances…

3. Similar sentiments are found in Re K (1994) FLC 92-461 where while discussing the importance of appointing Independent Children’s Lawyers in certain matters, in relation to cases involving proposals that siblings be separated, the Full Court observed at 80,775:

   As the Full Court pointed out in Bennett and Bennett, supra, at p. 78,266, such a step is most serious from the point of view of the respective of children. That was a case where the trial Judge had made an order which had the effect of separating siblings and a separate representative was in fact appointed by the trial Judge but only at the conclusion of the hearing for the purpose of explaining the decision to the children. Although the decision on the appeal did not turn on the issue of the appointment of a separate representative, the Full Court was critical of the appointment having been made at that late stage. In our view, in such cases, a separate representative should be appointed at an early stage of the proceedings.

4. It is easy to understand why the court considers sibling relationships so carefully.  Experience informs that sibling relationships are likely to be lifelong.  In ordinary circumstances, they are children’s most uninterrupted relationships, even more so when the children’s parents separate.  Where children have always lived together, after parental separation, careful consideration must be given to the effect on the sibling relationships of the siblings being separated.  A decision to deny siblings the opportunity to continue to share developmental experiences by living together and to develop and maintain potentially lifelong ties is a most serious step.  It is particularly significant at an interim hearing when the court is unlikely to be able to assess how the siblings may cope with separation.  Where the court is confident that the period of separation is likely to be brief, the question may be less weighty.  However, where as in this case, the proceedings are adjourned for something like 12 months, the issue is important.

5. His Honour’s findings at [60] and [66] recorded above are insufficient to demonstrate that the sibling relationship received the attention it deserved. There is an obvious connection to the discussion of this issue under s 60CC(3)(d) and in the interest of brevity we need do no more than emphasise our remarks appearing at paragraphs [67]–[70] to establish the importance to this child of his relationship with his brother and their being able to continue to enjoy their lives together.

6. These challenges are made good.

Remitter or re-exercise

1. The question which arises is whether the interim parenting applications should be remitted for rehearing or we should re-exercise.  The father suggested that a remitted rehearing was preferable.  In circumstances where both parties had filed affidavits which brought the evidence up to date, we are unable to see any advantage for the child in a remitted hearing.  With its consequential stressors and, of course, additional legal expenses, a remitted rehearing is not in anyone’s interest.

2. In relation to the further evidence, only the solicitor’s affidavit will be rejected.  It recites matters already in evidence and otherwise bravely complains that the case was brought on in quick time.  One would have thought there might have been an explanation about why the father acted without the Court’s imprimatur.

3. Turning then to the interim applications, neither party sought an order for equal time and the dispute centred on the allocation of parental responsibility and whether the child should live primarily with the stepfather or the father.  Once those matters are determined, there is broad agreement that the child should spend time with the other party along the lines of the orders made in favour of the stepfather below.

4. In these circumstances, it is appropriate to decide with whom the child shall primarily live first.  As has already been established, the child has lived with the stepfather most of his life.  Living with the stepfather, the mother and E provided the child a happy home within which he was well settled and his needs were met.  The mother and stepfather structured their family in a manner that enabled the mother to stay at home with the child until he started school and with her being primarily responsible for his care.  The stepfather had a secondary but significant role in the child’s life and care.  He was a daily presence and, as his and his sister’s evidence established, the child and stepfather shared many interests and activities.  Theirs is a warm relationship, the significance of which grew upon the mother’s death.

5. It is clear that the stepfather, the child and his brother were profoundly affected by the mother’s death and all have struggled with her loss.  However, the stepfather was able to call on close family and friends who helped him manage the family’s transition to a single headed household.  The transition involved some disruption, which involved, for example, the boys spending time with the stepfather’s sister and her family.  No criticism should be made of the stepfather for seeking help with the boys during this period.  Indeed, it bodes well for the stepfather’s parenting capacity that he recognised he needed assistance and put proper arrangements for the boys in place.  It also speaks strongly to the stepfather and the boys being part of a wider family and friendship circle who care about them and are able to help when needed.

6. In the stepfather’s care, the child was settled, slowly adjusting to the loss of his mother, happy at school and, as the correspondence dated 19 December 2019 demonstrates, there is no issue that the boys were close.  Each boy grieved his mother’s loss in his own way and obtained solace from the other in that loss.  The risk involved in depriving each of them of the other’s comfort and support following the mother’s death is a very serious matter.

7. The father gives evidence that he no longer believes that the boys are close and, although he will ensure they have each alternate weekends and half school holidays together, he believes that the child has coped well with being separated from his brother.  We approach this evidence with considerable caution.  First, it is at odds with the evidence called in the stepfather’s case as to the quality and strength of the boys’ relationship up until when the father retained the child.  Secondly, it is at odds with the father’s statement on 19 December 2019 that the boys are close.

8. The father’s decision to break the agreement that the child would continue to reside with the stepfather pending assessment and not to return him, raises serious questions about his parenting capacity and his regard for the child’s relationship with his brother and stepfather.  The father’s actions were high handed and bespeak a somewhat proprietorial attitude toward the child and a lack of recognition of the child’s independent identity.  It raises a real question about his ability to recognise and evaluate the child’s relationship with his brother.  At this stage, the preponderance of evidence supports the notion that the boys are close and it is to their mutual benefit to be reunited in the one family.  This is a matter of real significance in the determination of the case.

9. The stepfather would re‑establish the child in the home he has lived in since he was a baby.  He would return to Town D Public School where he will pick up friendships established since kindergarten.  Although the stepfather will continue to work shift work, he has arrangements in place, which will see the children cared for by people that have known them for a long time.

10. In short, the stepfather would re‑establish the child in a well settled living arrangement that has, to date, served the child nicely.

11. Counsel for the father said significant weight should be given to the father having been able to settle the child in his home, a new school and amongst his paternal family.  Disrupting these settled arrangements, it was said, would only compound the problem caused by the father keeping the child in the first place.  Although it was acknowledged that the father should not have acted as he did, the fact that the child has been in the father’s care for four months should be afforded significant weight.

12. We agree that the changes made by the father to the child’s life are significant and have given anxious consideration to the submission that returning the child to the stepfather will create further instability for the child.  It will, but the effect of those changes are greatly ameliorated because the child would be returning to a settled environment of much greater longevity.  The COVID‑19 pandemic disrupted the child’s education and the father’s evidence is that face‑to‑face teaching at Town A School resumed in late May 2020 and the child only commenced school full time at Town A in June 2020.  With school holidays taken into account, the child has attended school at Town A for approximately two months.  Although he will have started to adjust to the new school, it is unlikely that he is as settled there, as he would be if he returned to Town D.

13. Returning the child to the stepfather will see him lose regular contact with his stepmother, neighbours and family at Town A that he enjoys.  Again, these relationships are unlikely to have the strength of attachment to those he has enjoyed under his stepfather’s aegis since he was a baby.

14. The reduction in the child’s time with the father is more significant.  The child loves his father and enjoys being with him.  Theirs is a strong relationship, which has developed throughout the period when the child lived with the stepfather and which, as has already been mentioned, we are confident the stepfather will continue to support.  Thus, in the stepfather’s care, the child will still have the benefits of a meaningful relationship with his father, as has been the situation for many years.

15. Both men are important role models for the child and the child sees each of them as a father figure; the stepfather is “Big Dad” and the father is “Little Dad”.  Names, which reflect size and not comparative importance to the child.  The fact that the child has lived most of his life with the stepfather as a pivotal role model, at this stage negates the father’s parenthood as warranting any weight.

16. The child’s views have not been established and there is evidence of him saying different things to different people about with whom he wants to live.  He is young and probably torn in his affection for his stepfather, his father and his brother.  His views are too uncertain to carry weight.

17. On balance, we are strongly satisfied that it is in the child’s best interests for him to return to the stepfather pending a final hearing.  As the stepfather will have primary responsibility for the child’s day-to-day care, he requires the authority to make necessary decisions for the child.  The stepfather proposed that he and the father have equal shared parental responsibility for the child, which will give proper recognition to them as the decision makers for the child and will enable necessary and timely decisions in his interests.

18. Both parties were content with the structure of orders for time designed by the primary judge.  In those circumstances, they will be reversed and applied in favour of the stepfather, with unchallenged minor amendments.

Conclusion and Costs

1. The father has established error, the appeal will be allowed, and orders made as set out earlier.  In those circumstances, the stepfather seeks his costs of $28,437.49 on the basis that the father has been wholly unsuccessful, which, it is submitted, amounts to both justifying circumstances and supports the order itself.

2. Although the father’s lack of success weighs in favour of an adverse order for costs, this appeal has succeeded in relation to the adequacy of reasons and the approach taken to the Act. We do not consider an order for costs is appropriate and the application for costs will be dismissed.

3. However, the conditions for certificates under the Federal Proceedings (Costs) Act 1981 (Cth) are met and it is appropriate that a certificate is given to the stepfather. The father’s failure to seek the Court’s imprimatur before he retained the child and to concede a compelling appeal, stand the way of his receiving a certificate as well.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 21 August 2020.

Associate:

Date:  21 August 2020