CRABMAN & CRABMAN
[2013] FamCAFC 104
FAMILY COURT OF AUSTRALIA
| CRABMAN & CRABMAN | [2013] FamCAFC 104 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders in relation to time spent with the parties’ three children, changeover location and the children’s school – Where the parties made consent orders narrowing the issues for the Federal Magistrate’s determination – Where the parties agreed to an order for equal shared parental responsibility – Where the Federal Magistrate informed the parties at the commencement of the hearing that she would not be considering making an order for equal time, which was the father’s application – Where the reasons for not considering an order for equal time, though not explained in the written reasons for judgment, were sound – Whether the Federal Magistrate complied with the legislative process following the making of an order for equal shared parental responsibility - Where the time ordered for the father to spend with the children was less than he was previously having with two of the three children – Where the time ordered could not be considered significant and substantial time – Where the Federal Magistrate did not follow the required legislative process in considering whether to make orders for substantial and significant time – Where no error has been established in relation to the orders made about changeover and choice of school – appeal allowed in part and applications remitted for rehearing. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for the Court to provide the transcript of first instance proceedings – where the transcript was available, was relatively short, and necessary for the father to conduct his case – application allowed and parties provided with copy of the transcript. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA |
| Andrews v Andrews (Re: Subpoena) (2007) 37 Fam LR 358 Bennett and Bennett (1991) FLC 92-191 Gronow v Gronow (1979) 144 CLR 513 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Taylor v Barker (2007) 37 Fam LR 461 Vines v Australian Securities and Investments Commission (2007) 62 ACSR 1 |
| APPELLANT: | Mr Crabman |
| RESPONDENT: | Ms Crabman |
| FILE NUMBER: | BRC 10907 of 2011 |
| APPEAL NUMBER: | NA 6 of 2013 |
| DATE DELIVERED: | 3 July 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 28 May 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 January 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 53 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
The application in an appeal filed 8 April 2013 is allowed.
The appeal is allowed in part.
Paragraph 2 of the orders made by Federal Magistrate Turner (as her Honour then was) on 23 January 2013 be set aside.
The father’s amended application filed 28 December 2011 and the mother’s response filed 30 January 2012 be remitted for rehearing by a Judge of the Federal Circuit Court other than Judge Turner.
There be no order as to costs.
Each party be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the re-hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crabman & Crabman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 6 of 2013
File Number: BRC 10907 of 2011
| Mr Crabman |
Appellant
And
| Ms Crabman |
Respondent
REASONS FOR JUDGMENT
By notice of appeal filed on 19 February 2013 the father appeals against parenting orders made on 23 January 2013 by Federal Magistrate Turner
(as she then was). The father and the respondent mother have three children, a boy aged nearly seven, and two girls aged five and 18 months old at the time of trial.
On 20 December 2012, the day of the trial, consent orders were made in relation to some of the issues. Those orders provided for the parents to have equal shared parental responsibility, for the children to live with the mother, and to spend holiday time and special occasions with the father. The father does not appeal from these orders.
It is clear from the transcript that the parties reached this agreement after considerable urging from the Federal Magistrate, who made it plain that she did not intend to make an order for equal time. The father’s application was for equal time in relation to the older two children, but in relation to the younger child, for several nights per week increasing to equal time by age five.
The 23 January 2013 orders were made by the Federal Magistrate after the contested hearing and provided a fortnightly arrangement for the father’s time with all the children, two nights in one week and one night the second week. It was also ordered that the two older children attend School H until such time as agreement between the parties could be reached as to a change, and that the youngest child attend a day care facility in close proximity to the school attended by the older two children. Orders were also made in relation to changeover location. The father appeals all of the orders made on
23 January 2013.
The orders sought should the appeal be allowed are that the January orders be set aside and the matter remitted for an expedited rehearing. In the alternative it is asked that I re-exercise the trial judge’s discretion. The father seeks a three week cycle arrangement increasing the time he spends with the children, and orders that the children attend the School S and the mother undertake a Parenting Orders Programme. Both parties were self-represented at the trial and in the appeal hearing before me.
On 8 April 2013 the father filed an application in an appeal seeking that the Court provide to each party a copy of the transcript of proceedings before the Federal Magistrate on 20 December 2012. The father said he cannot afford the transcript as he is a full-time student receiving Centrelink payments and owes a significant debt pursuant to a Magistrates Court order.
In the affidavit in support of the application the father said he believes the appeal will be successful based on an alleged failure of the Federal Magistrate to follow the legislative pathway, which he says will be demonstrated by the transcript.
The mother’s submitted that she believes the transcript will show a different interpretation of the events, orders and reasons (paragraph 10).
I am hearing this appeal as a single judge pursuant to a direction issued by the Chief Justice under s 94AAA(3) on 26 March 2013.
Application for Court to provide Transcript
As the Full Court held in Andrews v Andrews (Re: Subpoena) (2007) 37 Fam LR 358:
18.There is no provision in the Family Law Act or in the Family Law Regulations 1984 (Cth) or the Family Law Rules which requires or even empowers the Court to provide transcript to an appellant free of charge for the purpose of inclusion in the appeal books. Indeed, as will be seen, the relevant provisions of the Rules are to the contrary and place the obligation to obtain transcript on the appellant (or in some cases, a cross-appellant):
It has been suggested that notwithstanding a lack of power pursuant to the Act or the Rules, the Court does have control over its own processes and the power to dispense with or waive strict compliance with rules if such a course is in the interests of justice (see the observations of Kirby J at paragraphs 7 to 9 in WJD v TEK (1998) 72 ALJR 1323).
Only in unusual circumstances will the Court depart from the usual rule and provide a transcript free of charge to a litigant for the purposes of an appeal. Examples of such circumstances may include where a transcript in electronic form has already been prepared, or where the reasons for judgment demonstrate that the trial judge had the advantage of a transcript (Fortnum & Fortnum (No.2) [2008] FamCAFC 73).
In this case the transcript was available, it was relatively short and necessary for the father to conduct his case. It was also apparent that on some occasions what the father hoped it would reveal were not the case. Consequently, the application was allowed and access to the transcript was given to each party at the commencement of the hearing.
Background
The relevant background to the parties’ dispute is set out by the Federal Magistrate at paragraphs 1 to 16 of her Honour’s reasons for judgment.
The orders sought by the father in his case outline filed on 27 November 2011 were for the children to spend time with him based on an initial three week cycle arrangement (total seven nights). He sought that a shared care week about arrangement, what the Act refers to as “equal time”, be commenced from
30 July 2014.
On 20 December 2011 at the hearing before the Federal Magistrate however, following her Honour’s indication that she would not make orders for equal time, the father handed up a revised proposal. He sought a fortnightly arrangement whereby the children spend from after school Friday to before school Monday in the first week and from after school Thursday until Saturday morning in the second week. This was a total of five nights per fortnight.
By her case outline filed on 28 November 2011 the mother sought a fortnightly arrangement whereby the children spend time with the father from after school Friday to Sunday afternoon in the first week, and from after school Thursday to before school Friday in the second week. This was a total of three nights per fortnight.
At the time of the trial interim orders were in place for the father’s time with the children. Pursuant to orders made on 22 June 2012 the two older children were spending time with the father five nights per fortnight. Pursuant to consent orders made on 30 November 2012 the youngest child was spending time with the father three nights and three days per fortnight. The final orders made by the Federal Magistrate therefore reduced his time with the older children and increased the time with the youngest child.
Reasons of the Trial Judge
The Federal Magistrate clearly identified the issues her Honour considered required determination at the outset of the reasons for judgment. The four issues were: what time should weekly times with the father conclude, where should changeover occur, what school should the elder two children attend in 2013 and what day care should the youngest child attend in 2013. The question of when should weekly times conclude involved a consideration, in effect, of how many nights the children should have with the father.
The Federal Magistrate identified the material and legislative provisions to which she had had regard. Her Honour referred to Part VII and specifically
ss 60B and 60CC of the Family Law Act 1975 (Cth) (“the Act”).
Turning to the first question, the Federal Magistrate detailed the parties’ competing proposals for the time the children should spend with the father and then considered the mother’s reasons for opposing the father’s proposed times.
The mother sought an earlier return time in week one because the father had previously been late delivering the children to school or day care. Further, she wanted all the children together at her home on a Sunday evening to prepare for the week ahead, especially as the middle child was about to begin school. In relation to week two, the mother sought an earlier return time so as to allow the children a whole weekend with her.
As the father complains about specific findings leading to the Federal Magistrate’s determination of this issue it is as well to set out part of the reasons in full:
30.I find in respect to week 1 that it is in the best interests of the children that time conclude at 4.00pm Sunday based on the following:-
a)I accept the mother’s evidence that on previous occasions when the father had the children staying with him until the Monday that at his request the children were returned to the mother on the Sunday;
b)A Sunday afternoon changeover will enable the mother to prepare all three children for the week ahead and will enable the children to return to the set routine in their primary household;
c)The evidence supports that the father has struggled in the past to get [child N] to school on time or at all. A Sunday changeover will eliminate the likelihood of this occurring again;
d)Conclusion of time on the Sunday will still enable the children to spend significant weekend time with the father, his partner and her children and with his extended family;
e)I give weight to the view expressed by the report writer in her email dated 28 June 2012 to the parties (Exhibit “A”) that return of the children on a Sunday is preferable so as to avoid an early morning start on the Monday.
31.I find in respect to week 2 that it is in the best interests of the children that time conclude on the Friday based on the following:-
a)The children should be given the opportunity to spend a full weekend with the mother, just as they do with the father, and a 10am changeover on a Saturday does not allow this to occur;
b)I give weight to the recommendation of the report writer at [155(d)] that time in the second week conclude on the Friday morning;
c)For the Friday, the time should increase from 8.00am Friday to 4.00pm should Friday be a non school day.
As to the changeover location the Federal Magistrate acknowledged the parties’ proposals. The father sought that where possible the changeover occur at school and otherwise he collect the children from the mother’s residence at the commencement of time and she collect them from his residence at the end of time. The mother objected only to the father dropping the children at school at the end of time because of his apparent history of late or non-delivery to school.
It is necessary to set out the Federal Magistrate’s conclusions leading to the making of the orders:
34.I suspect the parties have not fully considered the implications of the orders being sought because there are only two children in school, with [child S] being at home every day except Monday when she attends day care.
35.To then order that any changeover occur to and from school is impracticable unless [child S] is attending a day care facility on the same days near the area.
36.Until such time as that occurs, I find that it is in the best interest of the children for the father to collect the children from the mother’s residence at the commencement of spend time with periods and for the mother to collect the children from the father’s residence at the conclusion.
37.This will cause the mother a level of inconvenience on the Friday morning in the week 2 period but the mother will then be assured that the children will get to school on time.
38.However once [child S] is attending day care or school on Thursday and Friday then I find that it is in the children’s best interests for handover to occur where possible at the school and day care.
39.Whilst I acknowledge the mother’s concerns that the father will not get the children to school on time, I take heed of the father’s reassurance that now he is not working, that the late delivery or non delivery of the children to school will not occur again.
The husband appeals against the orders providing for the children to attend School H. No specific ground of appeal is directed to this order and no specific submissions were made in the summary of argument. However in the summary the father does complain generally about the Federal Magistrate’s failure to properly have regard to the mother’s previous unilateral decisions relating to schooling.
The Federal Magistrate understood each party’s reasons for preferring their proposed school.
In determining that the children should attend the mother’s preferred school, the Federal Magistrate gave the following reasons:
44.The mother lives at [C] with the maternal grandmother which I accept was the only residence available to her after separation.
45.Whilst the mother travelled to [J] for several weeks taking [child N] to and from [School J], this arrangement could not be maintained on a long term basis and the practical solution, although at the time the mother felt that it could not be discussed with the father, was for [child N] to attend a school in the area in which the mother lives.
46.The father chose to move to [Y] in late 2012.
47.There is nothing in the evidence that suggests that either party will be relocating from their respective areas in the near future.
48.According to the distance between [C] and [Y] is approximately 64 kilometres each way with travelling time of approximately 46 minutes.
49.The orders provide that travelling be shared.
50.The father has chosen [School S] on the basis that it is mid point between the two residences.
51.According to the distance between [Y] and [S] is 44 kilometres each way with travelling time of approximately 30 minutes to travel.
52.The distance between [C] and [Y] is 25 kilometres and takes 25 minutes to travel.
53.I find taking into account the evidence before me that it is in the children’s best interest to attend a school in the area in which they live, and as [child N] has just completed Grade 1 at [School H], then this is the school [child C and child N] are to attend in 2013.
54.My finding is based on the following:-
a)[N] has a strong connection with the school, having attended there since 2011, and having established strong friendships within the school;
b)[C] has established friendships within day care which will follow through to [School H] as three of her friends will be attending the same school;
c)It is beneficial for [N and C] to attend the same school and ultimately for [child S] to follow in her siblings footsteps when she commences school;
d)The school is in the area where the children live, which allows the children to make and maintain friendships in the area, and be actively involved in any after school activities or extra curricular activities;
e)To attend school a distance from their residence creates logistical problems for the children as travel is involved and spur of the moment decisions such as meeting a friend after school to play will be curtailed by the distance;
f)The mother intends to work in the same area as to where the children live and attend school which will provide support and security for the children;
g)Whilst the father will be spending three nights a fortnight with the children during school terms, this matter can be distinguished from those matters where the children are in a shared care or an equal shared care arrangement whereby a school at a mid point between the parties may be of benefit to all concerned;
h)Apart from being a mid point destination, neither party, nor the children have any connection to the [S] area;
i)To expect the primary parent to travel two hours a day to get to the children to and from school when there is a child under two who attends day care only one day a week is an unreasonable request;
j)Such travelling will be tiring for a child [S’s] age;
k)To expect the older children to travel one hour a day to and from school, when the local school is only a seven minute drive is not in the children’s best interests;
l)Whilst Naplan can be used as a general guide in school comparison, it is by no means indisputable evidence as to the suitability of a school to a particular child;
m)The report card for [child N] from [School H] for the second semester of 2012 (Exhibit “B”) is positive with [N] grading B (very good) for all but one topic that being a C (sound) for technology;
n)The father failed to provide any evidence to support that [School S] will provide a better education for the children than what can be provided for the children at [School H];
o)The father as he is not working and as his time with the children coincides with school days could use that as an opportunity to be more involved in the children’s school activities;
p)As to the father’s difficulties in obtaining information from [School H], this allegation was not supported by any evidence and as such no weight has been given to this issue;
q)As to the father’s allegation of “dead time” when travelling with the children, time in the car can be productive with conversations, game playing and music.
Finally the Federal Magistrate determined that, as the father sought that the youngest children attend a day care near to the older children’s school, the child would attend a day care near to School H.
In my view the Federal Magistrate made the decisions in relation to the four issues on practical and well-reasoned grounds, however as has been seen, an important aspect of the father’s appeal is the failure of the Federal Magistrate to make an order for equal time in the long term and substantial and significant time in the short term. As one complaint is that the Federal Magistrate failed to give reasons, it is important to appreciate the background and refer to the transcript in this respect (Transcript 20 December 2012, page 4-5):
HER HONOUR: …I can tell you now that I’m not going to make a long term order for shared care. And the reason for that is this: it is too early to know whether such an arrangement is going to work. There has to be baby steps taken in this matter in that there has to be a regime set up which is stuck to and an opportunity for both of you to heal so you can have some discussions in time to come as to whether time should increase and how that’s going to increase. So for you to propose that in 2014 I make an order shifting arrangements to shared care, I can indicate to you now I won’t entertain that sort of order, it’s just too early. And that’s very clear in the family report that it’s too early days to say whether or not a shared care arrangement is going to work. Doesn’t mean that in time to come one may not be put in place but if you may decide to put one in place or you might make an application to the court asking for one to be put in place and it might be an appropriate time to do so. But I’m telling you now that’s not an order I can consider today.
…I want you to have a look at how far you are apart, taking into account that I have indicated to you that I’m not going to make any orders for equal shared time down the track and I don’t know where you’re coming from in respect to the three weekly process because that’s not something which is support by the family report writer. I’ve heard you [the father] say in court now that you’re happy with the recommendations of the family report writer and your concern is that the time being offered by mum doesn’t reflect the same time that’s offered in those recommendations.
The family report writer’s recommendations as contained in her report dated 20 June 2012 were as follows:
RECOMMENDATIONS
(a)That the parents have jointly parental responsibility for [the children’s] long term welfare and needs
(b)That [the children] continue to live with the mother
(c)That [the two older children] spend time with and communicate with [the] father as agreed between the parents and if they fail to agree then as follows:
i. In Week 1, from 3:00pm Thursday until 4:00[pm] Sunday
ii. In Week 2, from 3:00pm Thursday until 9:00am Friday.
iii.For half of the [children’s] school holidays;
(d)That [the youngest child] spend time with her father as agreed between the parents and if they fail to agree then as follows:
i.In Week 1 from 4:00pm until 6:30pm Monday and Wednesday and from 9:00am Saturday until 4:00pm on Sunday
ii.In Week 2 from 4:00pm until 6:30pm Tuesday and from 3:00pm Thursday until 9:00am on Friday
Grounds of appeal
The father’s notice of appeal contains twelve grounds. In the summary of argument the grounds are conveniently grouped. The grounds assert that the Federal Magistrate erred by:
·
Grounds 1, 6, 8, 9: failing to follow the legislative pathway, in particular
ss 65DAA and 60CC; dismissing a shared care application before hearing oral evidence or submissions.
· Grounds 2, 3, 4: placing excessive weight on the findings in paragraph 30(a) (that the children were returned early to the mother on the father’s request), 30(c) (that the father has struggled to get the child N to school on time or at all), and 30(e) (alleging a “misapplication” of the report writer’s view in email Exhibit A).
· Grounds 5, 7: refusing to accept or place proper weight on the orders proposed by the father for the children’s time spent to be with him and in so doing showed bias; not ordering minimum substantial and significant time without reasons; placing weight on the mother’s oral evidence and failing to allow cross-examination to demonstrate that the mother had lied.
· Grounds 10, 12: placing excessive weight on the Report Writer’s recommendations; finding that mother’s proposed orders were in harmony with the family report recommendations; giving no weight to the views of the children in the family report.
Relevant Principles
This is an appeal from a discretionary decision. The appellate principles which govern review of such decisions are well settled, as set out in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513.
The father’s complaints relate to arguments about application of the legislative pathway under the Act, the weight assigned to certain findings and evidence, including expert evidence, the requirement to give reasons, and procedural fairness.
Whilst reference to a “legislative pathway” may properly describe what is required by certain sections within Part VII of the Act, any evaluation of an alleged failure to follow that pathway must ensure that form does not take precedence over what the Act substantively requires.
Section 60B(1) provides:
Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA provides that, “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”. This provision is repeated in
s 65DAA.
Section 61DA(1) provides:
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
In this case, it was agreed there should be an order for equal shared parental responsibility. Consequently the Federal Magistrate was obliged to consider the provisions of s 65DAA.
Section 65DAA provides that where equal shared parental responsibility is to be ordered, the Court must consider whether the child spending equal time with each parent would be in the best interests of the child, and whether spending equal time is reasonably practicable, and if so, consider making an order for equal time. If equal time is not ordered, then the Court must consider whether substantial and significant time is in the best interests of the child, whether it would be reasonably practicable, and if so, then consider making an order for substantial and significant time.
The High Court in MRR v GR (2010) 240 CLR 461 considered the provisions of s 65DAA (“Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances”) and explained (per French CJ, Gummow, Hayne, Kiefel and Bell JJ at 466):
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist (18). If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Section 65DAA (3) sets out specifically the meaning of “substantial and significant time”.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent…
Subsection 5 sets out the matters the Court must have regard to in determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time with each parent:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
As will later be explained more fully, her Honour did not consider equal time in the manner required and made orders, which fell short of substantial and significant time, without fulfilling the statutory conditions.
It is well settled 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 Taylor v Barker (2007) 37 Fam LR 461, Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115 at [38], and more recently Cox & Pedrana [2013] FamCAFC 48 and Sayer & Radcliffe [2012] FamCAFC 209).
The requirement to provide reasons for judgment is not in doubt (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW 247). The principles need not be set out at length. An appellate court must be able “to discern either expressly or by implication the path by which the result has been reached” (the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,267, following Sun Alliance Insurance Ltd v Massoud (1989) VR 8). The requirement to provide reasons extends to the treatment of expert evidence and the importance of clearly dealing with the matters in dispute between the parties.
The weight given to evidence is fundamentally an exercise of discretion by the trial judge. No more need be said in this case in relation to the family report other than that the proper treatment of expert opinion evidence was considered at length in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (as approved by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at page 604). The Federal Magistrate properly considered the report.
Arguments are regularly made by self-represented litigants in appeals in this Court about what is said to be procedural fairness or natural justice. In Vines v Australian Securities and Investments Commission (2007) 62 ACSR 1, Spigelman CJ considered the rules of natural justice. His Honour said at paragraph 59:
The appellant’s submissions rely on the application, in the circumstances of the proceedings, of the requirement of procedural fairness. The seriousness of the consequences of the orders sought and, in the event, visited upon the appellant, must inform the content of that requirement. Nevertheless, as is well established, procedural fairness does not involve a fixed body of rules to be applied in a formulaic manner. As Gleeson CJ said in R v Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 … at [37]:
… Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
Discussion
The Family Report
The family report was provided by Ms O on 20 June 2012 pursuant to an order made on 1 February 2012. It is important to note that the report was therefore six months old at the time of the hearing.
The report writer read the father’s amended initiating application and the mother’s response, as well as affidavits from both parties. At the time she interviewed the parties and the children, the father was seeking an equal shared care arrangement. The mother wanted the children to live with her and spend time with the father on weekends. The mother expressed concern to the report writer about the children being affected by the father’s then current working hours requiring him to leave home at 5:00am to drop the children at her home before travelling to work.
The report writer conducted individual interviews with both parents, and with each of the older two children. She observed the interactions between the father and mother respectively with the three children.
As the father’s grounds of appeal assert error in the Federal Magistrate’s treatment of the report writer’s evaluation and recommendations, it is as well to set out the relevant parts of the report here:
143.…In the report writer’s assessment, [the mother] is able to meet the physical and protective needs of the children. [The mother] has a genuine commitment to providing the children with freedom to develop and maintain a relationship with their father as demonstrated by ensuring [the youngest child] spent time with her father following her birth.
144.The report writer observed the affectionate and loving relationships the children enjoy with their father. Their interactions with [the father] demonstrate their close bonding.
…
146.The indications are that the children are settled in their mother’s primary care as they are so young and fully dependent on their mother for all her [sic] needs. In the report writer’s opinion, [the parents] do have the potential, in the future, to effectively manage a shared parenting arrangement if they were able to focus just on the future well-being of the children and not on the adult dispute. It is noted that the parents are still in the early stages of post separation and are learning to negotiate in their changed situations…
147.However, the parents appear to be continuing to function and communicate with a level of immaturity which is impacting on their overall ability to co-parent their children…both still appear to lack awareness and insight in relation to their children’s vulnerability and sensitivity to the adult conflict…the report writer has no concerns about the actual parenting of the children by either parent…
148.The parents’ current inability to co-parent the children indicates that a shared care arrangement would predictably be fraught with problems, which would significantly impact on the children’s overall emotional wellbeing. The report writer would not support a 50/50 shared care arrangement until [the parents] are able to demonstrate a high level of co-operation, and a civil level of communication.
149.It is the report writer’s assessment the factors outlined below preclude consideration of a 50/50 shared care arrangement at this stage:
(a) the current lack of co-parenting
(b) the communication difficulties between the parents
(c)the uncertainty that [the father] would be able to manage the children’s care arrangements given his work commitments at present and his absence from home the early hours of the morning each work day.
…
153.In the report writer’s assessment, [the mother] is able to provide for the needs of the children, but given the children’s ages, they are vulnerable to harm. Providing all the children with significant time with their father at this early stage in their lives would offer them the opportunity to develop equally significant relationships with both parents…
154.… It is the report writer’s opinion that the children’s parents have the capacity to sustain a shared care arrangement but only when they have overcome the obstacles outlined above in paragraph 149. It would be preferable if the parents were to continue to live within close proximity in the future to accommodate their working towards maximising the children’s time with each parent.
Exhibit A is also relevant to the report writer’s evidence and the father’s grounds of appeal. In response to an email from the mother seeking further explanation as to the reasons for her recommendations about time to be spent with the father, the report writer replied (on 27 June 2012): “…I recommended that the children return on a Sunday due to the travel at 5am which I do not think is good for the children…”.
The only material change in circumstances since the making of the report was that the father was no longer working hours which required him to leave home at 5:00am.
It is apparent from the report writer’s evidence that her consideration of the father’s work start time commitments was relevant to both her evaluation about shared care arrangements and also the end time in week one. Her recommendation that changeovers occur at 9:00am on Fridays did not appear in fact to accord with his then working start time, but poses no problem with the father’s circumstances at the time of trial and now.
It a reasonable to infer from the report writer’s evidence that if the father was not in employment which required him to leave home with the children at 5:00am, then she may have recommended the week one time end on Monday morning rather than Sunday afternoon. Those were not the circumstances as at the time of the trial, and in any event the Federal Magistrate was still not required to follow the report writer’s inferred recommendation. Her Honour provided comprehensive reasons for her decision that time cease on Sunday afternoon rather than Monday morning.
More importantly, in my view however, the report writer indicated that the children would be able to develop equally significant relationships with both parents if they were to live with the mother and spend “significant” time with the father. The writer made specific recommendations (set out at paragraph 32 above) about the timing and duration of the father’s time with the children.
It is clear when comparing the terms of those specific recommendations and the orders made by the Federal Magistrate that a difference in the amount and amount of weekend and weekday time has been ordered by the Federal Magistrate. The primary difference is the ordering of one less weeknight than that recommended by the report writer. This in effect reduced the father’s time with the children during the school week, to Friday afternoon to Sunday afternoon in the first week and Thursday afternoon to Friday morning in the second week, with changeovers to occur at the mother’s residence rather than the children’s schools, until such time as the youngest child attended day care on Thursday and Friday.
The father submitted that the orders prevented him from meaningful involvement in the children’s school activities and routine. This was a reference to the provisions of s 65DAA and the Court’s obligation to consider whether significant and substantial time was in the best interests of the child and reasonably practicable.
Conclusion
The issues for the Federal Magistrate’s determination appeared to be narrow, reduced by the making of consent orders on the first day of the trial.
It is unfortunate that her Honour did not include some of the reasoning she articulated at the hearing as to her decision not to consider equal time, or even what could be regarded as substantial and significant time during school terms. The reasoning behind the decision not to order equal time was no doubt based on the family report and is set out in the transcript, where her Honour said she would not consider such an order.
While the legislation requires the Court to consider making orders for equal or substantial and significant time where orders for equal shared parental responsibility will be made, that consideration is limited by two important factors: the best interests of the child and reasonable practicability. This is clear from the decision of the High Court in MRR to which reference has been made. As the High Court emphasised s 65DAA is concerned with the reality of the situation.
As to best interests, s 60CC(3)(e) provides that the Court must consider the difficulty and expense of children spending time with and communicating with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The importance of practical considerations and the requirement to make findings in this regard relevant to the consideration of orders for equal or substantial and significant time was emphasised by the High Court in MRR, as outlined above.
The difficulty presented in this case is that the Federal Magistrate did not follow that process. The father was not given an opportunity to make submissions having been told that the Federal Magistrate had already rejected his application in that respect. Having declined, no doubt on the basis of sound reasoning, to order equal time, her Honour was still obliged to consider whether orders for substantial and significant time were in the best interests of the children and reasonably practicable. There is an absence of reasons in this regard.
Simply because the orders made by the Federal Magistrate dealing with the four issues appear to be correct on the evidence, does not mean that when principles are properly applied a different result might not be arrived at in relation to the time the father is to spend with the children. In addition, the orders made do not provide substantial and significant time, especially when regard is had to the length of time spent and the changeover location not being at school. It is not apparent from the reasons how her Honour considered
s 65DAA(2).
The appeal should succeed in part. The father has not persuaded me that the orders in relation to the place for changeover and choice of the children’s school and day care attract appellate intervention.
I have considered whether it is possible to re-exercise in this case. Given the young ages of the children there will have no doubt been some relevant changes in circumstances since the writing of the family report and the making of the orders. Any redetermination of the parties’ applications must be based on consideration of the facts and circumstances as they now stand, for which evidence is required. Accordingly, with some regret it is necessary that the matter be remitted for rehearing by a Judge of the Federal Circuit Court.
Costs
Both parties appeared in person for themselves at the appeal hearing. In the event that the appeal was to be allowed on the basis of an error of law by the Federal Magistrate as has been established, both parties sought costs certificate for the rehearing.
In these circumstances the appropriate order is that there be no order as to costs as between the parties, and that the parties be granted a costs certificate for the rehearing pursuant to s8 of the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 3 July 2013.
Associate:
Date: 3 July 2013
0
12
0