Cox & Pedrana

[2013] FamCAFC 48

FAMILY COURT OF AUSTRALIA

COX & PEDRANA [2013] FamCAFC 48

FAMILY LAW – APPEAL – CHILDREN – where mother appeals from orders of trial Judge placing the child in the father’s care – where the trial Judge made an order that the father have sole parental responsibility for the child – where the trial Judge did not address the presumption contained in s 61DA of the Family Law Act 1975 (Cth) – where the reasons are insufficient to infer that the trial Judge had regard to the mandatory presumptions and considerations contained in Part VII regarding parental responsibility – where the trial Judge referred to the Full Court decision of Rosa & Rosa [2009] FamCAFC 81 but did not refer to the High Court decision of MRR v GR (2010) 240 CLR 461 which overturned the Full Court decision – whether his Honour erred in law – where his Honour erred by failing to address the presumption contained in s 61DA and erred in applying the Full Court decision in Rosa without having regard to the principles contained in the High Court decision which overturned it.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers & Managers Appointed) (2011) 244 CLR 1
CDJ v VAJ (1998) 197 CLR 172
Heaton & Heaton [2012] FamCAFC 139
Kuru v New South Wales (2008) 236 CLR 1
Maluka & Maluka (Costs) [2011] FamCAFC 187
MRR v GR (2010) 240 CLR 461
Re F(Children) [2012] EWCA Civ 828
Sayer & Radcliffe [2012] FamCAFC 209
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor v Barker (2007) 37 Fam LR 461
Yates & Yates (Independent Children's Lawyer – Costs) [2012] FamCAFC 219

APPELLANT: Ms Cox

RESPONDENT: Mr Pedrana

INDEPENDENT CHILDREN’S LAWYER: Schultz Toomey O’Brien

FILE NUMBER: BRC 7647 of 2007

APPEAL NUMBER: NA 78 of 2012

DATE DELIVERED: 27 March 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May, Ainslie-Wallace and Murphy JJ

HEARING DATE: 20 February 2013

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 30 August 2012

LOWER COURT MNC: [2012] FamCA 739

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Brasch

SOLICITOR FOR THE APPELLANT: D A Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Everingham Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr Thiele

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Schultz Toomey O’Brien

Orders

1. The appeal be allowed.

2. Subject to paragraph 7 of these orders, the orders of Bell J made 30 August 2012 be set aside.

3. The proceedings for parenting orders be remitted for re-hearing by a judge of the Family Court of Australia other than Bell J.

4. The Court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under the Costs Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.

5. The Court grants to each of the respondent father and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of section 6 of the Costs Act being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under the Costs Act to the respondent father and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.

6. The Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of section 8 of the Costs Act, being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under that Act to each party and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these Orders.

7. Pending the hearing of the new trial, and until further order, paragraphs 4 to 7, 10, 14, 15 and 18 of Justice Bell’s Orders made on 30 August 2012 shall continue to apply.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cox & Pedrana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 78 of 2012
File Number: BRC 7647 of 2007

Ms Cox

Appellant

And

Mr Pedrana

Respondent

REASONS FOR JUDGMENT

1. Parenting orders were made by Bell J after a trial which took place in three “phases” spanning, in total, an approximate twelve-month period.  The effect of his Honour’s orders was to change long-standing care arrangements in respect of a child, C who, by the end of the trial, was aged about seven years.   A result of his Honour’s orders was that C would live a significant distance from his mother.  As it transpired, the father remained living in a coastal community situated approximately three to four hours drive from where the mother lives.

2. At the time of his Honour’s orders, C had been living with his mother for about six and a half years since the parties separated in about 2006.  Consequent upon separation, C spent time with his father as agreed between the parties. The father continued to spend time with C as agreed between the parties until 4 September 2007 when orders were made by consent providing for unsupervised time between the father and C each third weekend. In accordance with those orders, the father was scheduled to spend unsupervised overnight time with C from February 2008.

3. The overnight time did not occur as a result of allegations made by the mother that the father posed an unacceptable risk of sexual harm to the child. On

   
   

   6 April 2008, further consent orders were made providing for time, supervised by the mother, between the father and C every third weekend. That arrangement prevailed until the orders of Bell J on 30 August 2012 placing C in the father’s care.

4. The mother has expressed a number of anxieties about the father spending time with C in the period since separation.  First, she expressed concerns about the asserted impact that the father’s (admitted) serious chronic illness would have on the child’s safety while with the father. However, after consulting with the father’s treating specialist, her concerns were sufficiently allayed such that the child continued to spend time with the father. As noted above, she later expressed concerns about the father representing a risk of sexual harm to C. 

5. The latter anxiety had its genesis in the father’s sister informing the mother that the father had what was described as an incestuous relationship with his sister and, in a troublingly similar vein, that she had maintained a sexual relationship of some sort with two of her other brothers.  The mother’s anxiety was further exacerbated by the father allegedly continuing to pay the wage of an employee (who was the brother of the father’s business partner) whilst he was in prison for sexual offences.

6. The mother’s concerns just outlined were, understandably it might be thought, the focus of the proceedings when they commenced before the trial Judge in

   
   

   July 2011. They pertained during the “second phase” of the hearing, which took place in November 2011.By that time, a number of experts had provided reports for the proceedings focussing upon the psychiatric health of the parties and also referring more broadly to the issue of any “risk” posed by the father.  There was relative unanimity among those experts that the father did not present a risk of harm to C.  Notwithstanding those opinions, the mother’s anxieties remained and she opposed the father having unsupervised time with C. 

7. However, consequent upon reading, in May 2012, a further report from an additional expert in the proceedings, Professor F, the mother’s position at the trial changed; she contended thereafter and, specifically, for the “third phase” of the trial in June 2012 that the father did not pose a risk of harm to C and that C should spend gradually increasing amounts of unsupervised time with his father, leading to overnight time.  That issue is referred to in the trial Judge’s reasons under the heading “The Mother’s Conversion”.  It assumed a central place in his Honour’s ultimate decision.

8. The mother appeals.  For the reasons which follow, the appeal should be allowed.

Error of Law

1. His Honour’s reasons do not, with respect, permit of a safe conclusion that his Honour applied the correct principles to the essential questions before him.  The conclusion in that respect derives from a number of parts of the reasons and the absence from them of a consideration of the mandatory provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. A particular difficulty is that the trial Judge turned to the issue headed “Parental Responsibility” as the last of the issues addressed in the reasons in respect of proposed parenting orders and said:

   111.On the 16 April 2008, an Order was made by consent wherein it was agreed between the parties inter alia that the Mother and the Father have equal shared parental responsibility for the child.  The Mother had been seeking an order that there be sole parental responsibility in her favour and the Father is also seeking an order for sole parental responsibility. Obviously there is the presumption for me to consider this and I have so considered it.  The Mother has resiled in her current proposal from seeking sole parental responsibility.

   112.I have always been of the view that joint parental responsibility becomes exceptionally difficult, if well nigh impossible, where the parties are unable to agree on even the smallest things.  I am of the view and maintain the view, that once the parties come to Court disputing whether the parties should have joint parental responsibility then that in itself is sufficient for me to consider, and with great difficulty, ordering, for example, in effect “ramming” joint parental responsibility down one or other of the parties’ throats. 

   113.In this case the difference between the parties has, since the inception of this case, been huge.  The Mother did not accept any of the protestations of the Father.  The Mother on frequent occasions has, in effect, denigrated and vilified the Father in many ways and I need not repeat them. 

   114.The Mother and the Father on the other hand indicate that notwithstanding this vast gap in the attitude of each of the parties to each other, there has been communication and co-operation in relation to contact.  Such co-operation is of course concerning where one of the experts, Mr [J], was of the view that if the contact which has taken place between the child and the Father has done very well, since it was on the Mother’s terms. 

   115.As a result of my Order that the child will be removed from the Mother’s care and placed into the Father’s possession … I would have thought that it was absolutely essential that the tyranny of distance which I have considered in questions of contact and in relation to the matter of Rosa v Rosa [2009] FamCAFC 81, are of importance in relation to sole and/or joint parental responsibility.  I am of the view that the child’s welfare requires that there be one person who is able to determine his future welfare and that would be the Father in these circumstances.  I order that the Father have the sole parental responsibility of the child. 

   (Italics added).

3. In our view, those passages from his Honour’s reasons, and in particular those parts highlighted, reveal the application of erroneous principles.  We cannot be satisfied that his Honour’s orders are not based on errors of law.

4. As in our view is only proper, we have had careful regard to the fact that his Honour is, with respect, a trial Judge of great experience. Counsel for the Respondent father submits as much in seeking to argue, in effect, that his Honour can be presumed to have known the law, and in particular the mandatory provisions of Part VII of the Act, and to have applied the relevant principles, even if, as was effectively conceded, the reasons did not articulate those matters.

5. That submission might be seen to have resonance in what was said by Lady Justice Black in Re F(Children) [2012] EWCA Civ 828 at [39]:

   …Experienced judges should be encouraged to set out robustly, and where appropriate relatively briefly, the reasons why they have come to particular decisions. It is well established that the judgment must explain sufficiently what the judge has found and the process of reasoning by which he arrived at his findings, but equally the reasoning should be read on the assumption that, unless he has demonstrated to the contrary, the judge knew how to perform his functions and which matters he should take into account. An appellate court has to resist the temptation to subject the judgment to a narrow textual analysis…

6. Notwithstanding those important matters, and the long and wide experience of the trial Judge, the matters about to be discussed run significantly deeper than what might be described as “a narrow textual analysis” and are central to the Court’s power to make parenting orders.  For reasons about to be discussed we do not consider it safe to infer the application of matters not at all referred to in his Honour’s reasons.

7. It will have been noted that his Honour said, (at [111]), “[o]bviously there is the presumption for me to consider … and I have so considered it”.   With great respect to his Honour, his Honour is not bound to consider “the presumption”, his Honour is, when making a parenting order, mandatorily bound to apply “the presumption” (that is, a presumption that it is in the best interests of the relevant child that his parents have equal shared parental responsibility – s 61DA).

8. The difference is neither semantic nor sophistry; as the decision in MRR v GR (2010) 240 CLR 461 (and, indeed, the Act) makes clear, when the presumption applies, the Court’s power to make parenting orders is conditioned upon the presumption of equal shared parental responsibility prescribed in s 61DA (s 65D; MRR at [20]). Section 65D provides relevantly:

   In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) … and this Division, make such parenting order as it thinks proper.

9. The application of the presumption has further consequences for the Court’s power to make parenting orders.  Unless the presumption is either rendered inapplicable (s 61DA(2)) or is rebutted (s 61DA(4)), its application further conditions the Court’s power by reason of the application of s 65DAA and its prescribed mandatory consideration of orders for equal or substantial and significant time.  The consideration of orders of those prescribed types requires, before the Court can exercise power to make an order of either type, the consideration of additional and separate questions, both of which must be answered  (see, s 65DAA(1)(a) and (b);  s 65DAA(2)(c) and (d); and, MRR at [13]).

10. Importantly, because the power to make parenting orders is conditioned upon s 61DA and, in turn, if the s 61DA presumption applies, s 65DAA, all of the relevant questions must be answered before proceeding to make parenting orders of a type other than equal time or substantial and significant time. As the High Court said in MRR (at [20]) in respect of the facts relevant before that Court:

    The orders made by his Honour did include one to the effect that if the mother did not live in Mount Isa, then the child should live with the father and the mother spend time with and communicate with the child at reasonable times to be agreed.  No reasons were given concerning the order. It may have been intended as an interim order, to cover the contingency that the mother did not remain in Mount Isa and make provision for what was to occur until further consideration could be given by the Court, having regard to the changed circumstances of the parties.  It could not be an order under s 65D [i.e. a “parenting order”], the statutory criteria not having been addressed. 

    (Italics added).

11. It is in the context of the Court’s power that sections 61DA(2) and (4) assume importance; they provide the only bases upon which the presumption can be, respectively, rendered inapplicable or rebutted. Accordingly, if the presumption is not to apply, relevant findings need to be made by reference to those sections (MRR at [7]). It is only if those relevant findings are made – and, as a result, the mandatory presumption does not apply or is rebutted – that the power to make parenting orders pursuant to s 65D is “at large” (albeit subject always to the best interests of the subject children being the paramount consideration – see s 60CA; s 65AA).

12. Other than referring to the terms of an earlier consent order, his Honour does not refer to “equal shared parental responsibility” and his Honour’s reasons otherwise refer to “joint parental responsibility”, a concept not found within Part VII or the Act more generally and, arguably, subsequent to the amendments to the Act in 2006, a concept different to “equal shared parental responsibility”. His Honour makes no reference to the role that “the presumption” plays in conditioning the Court’s power.

13. His Honour’s reasons do not refer to either of s 61DA(2) or (4), or, indeed, to s61DA at all. The reference by his Honour (at [112] of the reasons) to “…once the parties come to Court disputing whether the parties should have joint parental responsibility…” being “…of itself…” sufficient to not order “…joint parental responsibility…”, does not bear relation to the Act’s requirements. Nor, in our view, ought it be inferred that it does so where neither s 61DA(2) nor 61DA(4) is mentioned.

14. It would, of course, have been open to his Honour to find that, by reference, for example, to s 65DAC, the parties were incapable of doing that which is mandatorily required of them if they were to share parental responsibility and to find, by reference to appropriate factual findings, that as a result of those matters the presumption was rebutted in the child’s best interests (s 61DA(4)).  But that is not what his Honour did.

15. His Honour’s reasons quoted above contain (at [115]) a reference to “Rosa v Rosa [2009] FamCAFC 81” and appear to refer to that decision as having “…importance…” in relation to “…sole and/or joint parental responsibility…” Elsewhere, his Honour’s reasons contain the heading “Relocation and Rosa v Rosa [2009] FamCAFC 81”.  In a similar vein, his Honour uses the expression “…reasonably practicable…” (at reasons [74]) and does so by reference to “…the authority of Rosa…”:

    Further, since I am of the opinion that it is in the child’s best interests so that he may develop a meaningful relationship with his father, that he be removed from his mother’s possession.  I have to consider the fact that the Father is living in [North Queensland] and what will be the effect of relocation of [C] from [the Sunshine Coast] to [a significant distance away], naturally of course the authority of Rosa v Rosa [2009] FamCAFC 81 is raised in this case, and I would have to consider whether it is reasonably practicable for contact to take place between the Mother and the child subsequent to his relocation to [North Queensland].  The Father, I am quite satisfied will ensure that the child is adequately maintained and is adequately educated in [North Queensland].

    (Italics added).

16. The decision of this Court in Rosa (being the case to which his Honour had reference) was overturned by the High Court (see, MRR).  While some of the principles discussed by the Full Court in that case may remain applicable in light of the subsequent decision of the High Court, his Honour’s reference to asserted principles emerging from the former without mention of the latter, points to a significant concern as to whether the correct principles of law have been applied. That is all the more so because the decision of the High Court is directed, in large measure, to a consideration of the Family Court’s power to make parenting orders and his Honour makes no mention of the High Court’s discussion of Part VII of the Act and the effect of its mandatory provisions flowing from that important and authoritative decision of the High Court.

1. In summary, we have, with respect, given careful consideration to the reasons of a very experienced trial Judge and have attempted to read the reasons “…on the assumption that unless he has demonstrated to the contrary, the judge knew how to perform his functions and which matters he should take into account …”
   (see, Re F). But, we are unable to persuade ourselves that his Honour has applied the correct principles in arriving at the decision that he has.  The “assumption” is, in our respectful view, “demonstrated to the contrary” by reference to the matters earlier discussed.

2. Error of law is demonstrated and the appeal should succeed on that basis.

The Grounds of Appeal and The Appeal as Argued

1. As originally filed, the Notice of Appeal contains 18 grounds.  An Amended Notice of Appeal adds what purports to be one ground (referred to as “Amended Appeal Ground A”), but which in fact contains an additional eight sub-grounds.  No ground of appeal refers, in terms, to the error of law identified earlier in these reasons, although counsel for the appellant sought ultimately to argue that issue as part of a group of grounds which counsel referred to as “the pathway grounds” (specified as “Amended Appeal Ground A”, Grounds 10 and 11).

The “Pathway Grounds”

1. Amended Appeal Ground A contends (in sub-ground (b)) that his Honour “erred and acted upon wrong principle …[in that] … his Honour … [f]ailed to follow the legislative pathway provided in Part VII of the [Act].” As argued in the appellant’s written outline the contention is that “… contrary to the pathway required by the Act, His Honour had decided by at least Reasons #73/74 that the child’s residence was to change, and that was prior to his rather limited examination of s 60CC factors …” (italics in original).

2. This Court has said on many occasions that the failure by a trial Judge to consider the provisions of Part VII of the Act in a particular order does not, of itself, constitute appealable error (see, for example, Taylor v Barker (2007) 37 Fam LR 461, Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115 at [38], and more recently Heaton & Heaton [2012] FamCAFC 139 and Sayer & Radcliffe [2012] FamCAFC 209). A trial Judge is entitled, for example, to state at the outset the ultimate conclusion which he or she has reached provided the reasons thereafter reveal the process by which that conclusion is reached and provided that, in doing so, the Act’s mandatory dictates have been observed as the Act demands.

3. That said, because the Court’s power is conditioned upon the application of the s 61DA presumption, there might, logically, be a certain imperative in dealing with the s 61DA presumption and, perhaps, parental responsibility more generally, at an early stage. In the usual run of cases, then, it might be thought difficult to see how s 61DA can be addressed unless and until findings are made in respect of “abuse of the child” or “family violence” or “best interests” as might be relevant in a particular case. That logic has, we think, lent itself to statements to the effect that the issue of parental responsibility should be addressed first.

4. Whilst reference to a “legislative pathway” is, of course, an accurate descriptor of what individual sections within Part VII of the Act require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Part VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided. As developed, the appellant’s argument in respect of “the pathway” had significant reference to the decision of this Court in Sayer & Radcliffe [2012] FamCAFC 209. There, this Court made reference (at [49]) to a “legislative pathway”, and, at [50] held:

   The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.

5. As the reference to the discussion of the High Court’s decision in MRR in the succeeding paragraph of that judgment and the express eschewing of a particular order of consideration of the Part VII requirements within it makes clear, the reference by this Court in the passage just quoted to “commenc[ing] with the presumption of equal shared parental responsibility…” is not a prescription that this issue must be addressed first but, rather, an express recognition of the necessity for findings which firmly establish the bases upon which the Court is exercising its power to make parenting orders.

6. To the extent that Amended Appeal Ground A, in asserting that the trial Judge “… failed to follow the legislative pathway provided in Part VII of the Act”, refers to the error of law identified earlier in these reasons it should succeed.

7. To the extent that this same ground is indicative of error asserted in respect of the order in which his Honour dealt with the issues in the case, we are not persuaded of error.

The Remaining Grounds

1. In our view, it is not necessary to deal with the remaining grounds of appeal in any detail.  We are conscious, of course, of what the High Court said in cases such as Kuru v New South Wales (2008) 236 CLR 1 (“Kuru”) and more recently, for example, in Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers & Managers Appointed) (2011) 244 CLR 1. In Kuru the Court held (at [12]):

   …This Court has said on a number of occasions that, although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground …

   (footnote and citations omitted).

2. We have considered whether to deal with all grounds of appeal and have decided that, in the circumstances of this case, it is not necessary to do so.  A number of factors inform that decision. 

3. First, the errors of principle earlier identified are, in our respectful view, clear.  Secondly, the meaning of many grounds of appeal is obscure and the error which they assert is elusive.  It is by no means clear what is meant by, or what error is alleged in, for example, Amended Appeal Grounds A(f), (g) and (h) and Grounds 8, 16, 17 and 18.  To illustrate, Amended Appeal Ground A(f) and Ground 8 provide respectively:

   A:His Honour erred and acted upon wrong principle in elevating the mother’s belief system and consequent “risk” as the determining factor and thereby, or in addition to, His Honour

   …

   (f)       Erred in his application of “Rosa” …

   …

   8.The learned Trial Judge identified two issues in the case and failed thereafter to consider nor provide any or any adequate reasons as to whether or not the mother was capable of appropriately caring for the child despite her medical issues.

4. Thirdly, the appeal is from the exercise of a broad discretion and many grounds challenge merely the weight which his Honour attached (or did not attach) to specific parts of the evidence. Included among them are grounds which are clothed in the language of other error (for example a failure of reasoning) but which are, in truth, a challenge to weight.  Amended Appeal Grounds A(a) and A(c) and Grounds 1, 2, 7, 14 and 16 are examples. Grounds A(a) and 1 provide respectively:

   A.His Honour erred and acted upon wrong principle in elevating the mother’s belief system and consequent “risk” as the determining factor and thereby, or in addition to, His Honour:

   …

   (a)Failed to consider, weigh and assess evidence relevant to her beliefs.

   1.That the learned Trial Judge erred in that he failed to give any or any adequate reasons for the acceptance of the evidence of the Family Report Writer and the weight afforded by him to such evidence in circumstances where he had not seen the child or mother for 18 months.

   (Underlining in original).

5. Finally, taken together, the grounds constitute, in our view, an example of the “…narrow textual analysis…” of the trial Judge’s judgment to which Lady Justice Black referred in the passage earlier quoted.  Although frequently cited in this Court, Kirby J’s comments in CDJ v VAJ (1998) 197 CLR 172 are also apposite:

   186     A number of general propositions may be stated:

   1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal …

   2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of … the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions … that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions.  This is an inescapable feature of the nature of this jurisdiction.

   …

   10. A final consideration is pertinent, both to the approach that is proper to the Full Court reviewing the primary judge and to this Court reviewing a decision of the Full Court involving the evaluation of competing considerations and the exercise of a judicial discretion. Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision. This is true of the decision of the primary judge, expressing the combination of “main considerations” that led to his ultimate conclusion that the children should reside with one parent rather than another …

   (Footnotes omitted).

6. The adequacy of his Honour’s reasons is also challenged – for example in Amended Appeal Ground A(h) and Grounds 3, 6 and, it seems, at least in part, 16. Again, the grounds as expressed are difficult to understand.  An example is Ground 16:

   16.The learned Trial Judge erred in adopting the Independent Children’s Lawyer’s concern about the mother’s response to reading the report of Professor [F] and having adopted the Independent Children’s Lawyers [sic] concern, the learned Trial Judge then gave no or no adequate reasons as to how this impacted upon his assessment in relation to the mother’s change of position regarding the father’s risk to [the child].

7. Written submissions on behalf of the mother assert (at [22]) that “… His Honour fail[ed] to follow the legislative pathway, and fail[ed] to provide a chain of reasoning consistent with that pathway.  Instead, respectfully, his Honour determined as a first issue that the child’s residence would change, thereby tainting all that followed.” 

8. The trial Judge’s reasons are, respectfully, inadequate to the extent that they do not address the matters of principle earlier outlined.  Save to that extent, the challenges to his Honour’s reasons have no merit. 

9. In oral argument, counsel for the appellant raised a number of matters said to relate to his Honour erring by reason of failing to take account of relevant considerations.  Many of those contentions were, in fact, a challenge to the weight which his Honour attached – or, more accurately, did not attach – to aspects of the evidence.  We are not persuaded of error in any such respect.

10. One final matter might be mentioned.

11. It emerged as part of the argument on behalf of the appellant that the trial judge had unfortunately not set out in the reasons a description of the orders each party, including the Independent Children’s Lawyer (“ICL”), sought at the end of the trial. In addition, at paragraph 103 of the reasons, it seems that his Honour mistook the final position of counsel for the ICL or at least appreciated only part of the proposed orders.

12. In our view, in the ordinary course of events it is important that a trial judge at least summarise what is understood to be the orders each party asks the Court to make. This is important for a range of reasons, including that it can be seen that they are all understood by the judge and as outlining various options available on the evidence said to be in the best interests of the children.

13. In this case, the position of the ICL was that the child live with the father and that further reports be obtained from the experts, and if considered in his best interests, the child might be returned to the mother. The following is part of the lengthy written submissions:

    1.4The Independent Children’s Lawyer supports an Order that overcomes Rice v Asplund issues in the event that further psychiatric and family welfare reports do not report positively with respect to the mother managing her anxiety issues and otherwise addressing potential issues of enmeshment between herself and the child or that there is otherwise a risk of emotional harm to the child returning to the mother’s care. In the event of positive reports, the Independent Children’s Lawyer supports the return of [C] to live with his mother and Orders for the child to spend time with the father, in terms of the father’s proposed Minute of Order contained in paragraph 52 of his Affidavit filed 5 June, 2012.

14. The only order made by his Honour resembling such an approach was order 17:

    (17)Leave be given to the Independent Children’s Lawyer to apply to re-list the matter before the Honourable Justice Bell on two (2) weeks notice to all parties.

15. No reference was made in the reasons for the purpose of this order, other than a continuing role for the ICL in determining who should be the child’s counsellor (para 75) and the person to supervise time with the mother (para 103). It was also contended that there should be an order for equal shared parental responsibility.

16. It is impossible to gauge whether the outcome of the decision might have been different had his Honour made reference to the orders as asked by the ICL, and explained why he did not regard that option as being in the best interest of the child.

17. The judge was obliged to consider the submissions of the ICL especially in the very serious circumstances of this case and it is not possible to discern that he did so.

Re-exercise or Remitter?

1. Each of the parties accepted that, in the event that the appeal succeeded on an error of law, it would need to be remitted to the trial division of this Court, to be heard by a Judge other than Bell J.

2. It is appropriate to so order.

Costs

1. Submissions were sought from both the appellant and respondent in respect of the issue of costs.  Each sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).

2. The appeal has succeeded on a question of law. The respondent applies for a costs certificate. In all the circumstances of this case, we consider it appropriate to grant such a certificate to the respondent pursuant to s 6 of the Costs Act.

3. No submissions were made by the ICL (or either party) in respect of the decisions of this Court in Yates & Yates (Independent Children's Lawyer – Costs) [2012] FamCAFC 219 or Maluka & Maluka (Costs) [2011] FamCAFC 187. We note that the ICL is not an employee of Legal Aid (Queensland) and neither is her counsel. In the circumstances of this case it is appropriate that the ICL be granted a certificate in respect of the appeal.

4. Given the nature of the error and the circumstances otherwise applicable to this case, this is a matter in which we would make no order for costs (s 117(1) of the Act). In that event, the appellant applies for a certificate pursuant to s 9 of the Costs Act and we consider it appropriate to so order.

5. Each of the parties applies for a certificate pursuant to s 8 of the Costs Act in respect of the new trial. The circumstances of this case warrant each of the parties being granted such a certificate.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace and Murphy JJ) delivered on 27 March 2013.

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