Cubbin & Cutler
[2018] FamCAFC 84
•3 May 2018
FAMILY COURT OF AUSTRALIA
| CUBBIN & CUTLER AND ANOR | [2018] FamCAFC 84 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Father appeals orders for the children to live with the mother and spend substantial time with him, seeking instead that the children live with him and spend significant time with the mother – Independent Children’s Lawyer supports the appeal and also cross-appeals the orders – Held primary judge gave adequate reasons for decision and reached conclusions independently by relying on evidence before him – No substantive error established – Orders relating to the parties attending mediation and therapy were not sufficiently raised with the parties – Orders relating to the father’s time with the children uncertain – Appeal allowed in part – Specific issues remitted, preferably to be heard by the primary judge – Father to pay the mother’s costs in fixed sum – Costs certificates issued to the father and the Independent Children’s Lawyer for the rehearing. |
| Family Law Act 1975 (Cth) s 69ZX(3) |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
| APPELLANT: | Mr Cubbin |
| RESPONDENT: | Ms Cutler |
| INDEPENDENT CHILDREN’S LAWYER/ CROSS-APPELLANT: | Ms Carmen |
| FILE NUMBER: | CAC | 2061 | of | 2010 |
| APPEAL NUMBER: | EA | 72 | of | 2017 |
| DATE DELIVERED: | 3 May 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 1 November 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 May 2017 |
| LOWER COURT MNC: | [2017] FCCA 915 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Givney |
| SOLICITOR FOR THE APPELLANT: | Walsh & Blair |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Sydney CBD Legal Agents |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER/ CROSS-APPELLANT | Mr Jackson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER/ CROSS-APPELLANT: | Bowral Legal |
Orders
The appeal be allowed in part.
Orders 10, 11, 12, 13, 14 and 18 made by Judge Neville on 31 May 2017 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for consideration of orders to be made in substitution for Orders 10 to 14 and definition of the time the appellant is to spend with the children pursuant to Orders 3 and 4 made by Judge Neville on 31 May 2017.
The remitted proceedings be heard by Judge Neville if practicable.
The appellant pay the respondent’s costs fixed at $4,160 within 28 days.
The Court grants to the appellant and the cross-appellant costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates 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 appellant and the cross-appellant in respect of the costs incurred by them in relation to the rehearing.
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 Cubbin & Cutler and Anor 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: CAC 2061 of 2010
File Number: EA 72 of 2017
| Mr Cubbin |
Appellant
And
| Ms Cutler |
Respondent
And
| Independent Children’s Lawyer |
Cross-Appellant
REASONS FOR JUDGMENT
The father has appealed orders Judge Neville made on 31 May 2017 providing for the mother and father to share parental responsibility and for their children to live with the mother and spend five nights a fortnight and half the school holidays with the father.
The Independent Children’s Lawyer (“ICL”) supports the father’s appeal, although electing also to file a cross-appeal. The father and the ICL argue that orders should have been made for the children to reside with the father and for him to have sole parental responsibility.
The mother opposes both the appeal and cross-appeal, but accepts there are some aspects of his Honour’s decision which require revisiting.
Background
The proceedings concern the parties’ two children, X, born in 2009, and Y, born in 2010. The two children have always lived with the mother and with their many half-siblings.[1]
[1]The mother has seven surviving children (aged 10 to 23 years) from previous relationships.
The mother and father never cohabited, but had a relationship from 2007 until 2010. Thereafter, they have been engaged in a “long-running, torridly contested” dispute about the children (reasons at [1]).
The father claimed the mother did not facilitate his relationship with the children. While he and the ICL sought a change of residence, they nevertheless proposed that the children spend substantial unsupervised time with the mother. The mother said she did facilitate the children’s relationship with the father, while maintaining she had a responsibility to believe them when they claim that the father sexually molests them.[2]
[2]Nothing has ever come from the investigations of these allegations.
His Honour found that notwithstanding the children “speak not infrequently about being [sexually] abused by their Father” they have a close relationship, despite there being an “almost non-existent co‑parenting relationship between the parents”. His Honour also found the family had “multi-faceted problems” but concluded that the father’s proposed “solution” was “rather simplistic”, being in fact “no solution at all”. Indeed, his Honour noted that the ICL had conceded “that a change of residence is not the remedy to the problem” (at [3] – [4]).
The Grounds of Appeal
There were 10 grounds in the father’s amended Notice of Appeal.
Grounds 1 and 4 – inadequacy of reasons
We will deal with these two grounds together, since they both relate to the adequacy of the reasons given by the primary judge.
Ground 1 contends that the judge “failed to consider and/or give reasons or adequate reasons” in relation to five specific s 60CC factors, while Ground 4 asserts that his Honour “failed to provide a pathway in his reasons that enables an understanding and appreciation of his ultimate conclusion”.
The reasons were lengthy, extending to 125 pages. Indeed, his Honour described his judgment as “tediously long” and “wearisomely long” (at [2] and [269]). While we are respectfully inclined to agree, the reasons nevertheless expose the path by which his Honour reached his decision.
The primary judge set out at [224] what he found to be the most significant of the father’s contentions. We are not persuaded that he failed to consider these, even if he did not address them by reference to s 60CC. It was not obligatory to do so since the only obligation on a judge in dealing with the s 60CC factors is to “consider” them.
It is erroneous to suggest, as Ground 1 does, that there is an obligation to give reasons about each s 60CC factor. The duty to give reasons does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. The obligation requires only articulation of the essential basis upon which the decision was reached so that the parties (and the appeal court) can understand the reasoning and so that justice can be seen to have been done: Housing Commission of NSW v Tatmar PastoralCo Pty Ltd [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Bennett and Bennett (1991) FLC 92-191; SCVG & KLD (2014) FLC 93‑582; and Banks & Banks (2015) FLC 93-637.
While his Honour’s reasons continued on for another 120 pages, the decision was adequately explained in these two early paragraphs:
15.… It is very much (but not exclusively so) because of the centrality of the children’s relationships with their siblings that ultimately leads the Court in making Orders for the children to continue to live with their Mother and to spend regular time with their Father. Such Orders are consistent with (a) the earlier Orders of Judge Harman in 2014, (b) the 2015 Family Report of [the Family Consultant] (Exhibit A), and (c) [the Family Consultant’s] oral evidence at trial.
16.Further, the additional Orders of the Court seek to address “the problem” to which Counsel for the ICL alluded but which no one addressed directly. That “problem”, rather than any consequences that flow from it which were really what was addressed by the Father and the ICL, is multi-faceted. It relates to and requires the parties to be assisted to co-parent so that these children can maintain their currently good and happy relationship with both parents, and their siblings. A change in residence as proposed by the Father (who said he was not really ready for such a change) and the ICL (who said that such a course would not fix the problem) (a) will not address the more fundamental issues and (b) would very likely exacerbate them. A change in residence, in my view, in the light of the very long history of the matter and in view of all the evidence, is not in the best interests of the children.
As these findings were sufficient to explain the decision, we find no merit in Grounds 1 and 4. However, his Honour’s reasons were rounded out by all that he later said, including in these important paragraphs:
281.In my view, it was extremely curious – and much more besides – why no one made submissions about this genuinely positive aspect of the children’s good and close relationship with both parents. Again by way of observation only, it may have been that the proponents of a change in residence did not do so because of the awkward questions surrounding why and how such a disruption as proposed would actually benefit the children in circumstances where they are, perhaps surprisingly, generally doing well (at school and otherwise) and they continue to have such loving relationships with all around them.
…
283.In my view, this family and these children need assistance, not more disruption. A change in residence is not going to address the more fundamental problems of the poor co-parenting relationship. Some basics, it seems to me, which I am not aware have ever been tried, should be pursued. For example, not only must there be some genuine effort by all to engage, longer term, in family therapy. Also, the parents should have a regular, monthly mediated meeting to discuss up-coming parenting matters for the children. Both parents need to ensure that all notices from the school are received by each of them – electronically. These basic things should have been canvassed long before all this never-ending and tortuous litigation.
Ground 2 – being bound by the conclusion of the Family Consultant
This ground proceeds on an assumption that the primary judge had “formed the view that he was bound by the conclusion of the Family Consultant”.
This assumption was said to find foundation in [6] and [8] of the reasons where his Honour said:
6.And for reasons not explained, neither Counsel for the Father, nor for the ICL, addressed at all the clear and consistent evidence and recommendations of the Family Consultant, who did not recommend any change in residence of the children from the Mother to the Father, and repeatedly confirmed that a change in residence was not what she recommended. Rather, the Family Consultant’s evidence and recommendations were rather selectively used, while the primary issue of change in residence, at least in relation to the Family Consultant’s evidence, was rather carefully avoided by the Father and the ICL.
…
8.The highly experienced Family Consultant does not support a change in residence for the children.
(Footnote omitted)
We accept the mother’s submission that there is nothing here to suggest that his Honour considered that the Family Consultant’s opinion was in any way determinative of the outcome. His Honour was doing no more, at [6] than pointing out an absence of submissions about important parts of the evidence and commenting upon selective parts of that evidence informing the submissions and, at [8] stating a fact.
We are satisfied that his Honour reached his conclusion independently by relying on all of the evidence, including that of the Family Consultant. While his Honour placed weight on the Family Consultant’s recommendation, he was entitled to do so. And we would have found it surprising had he not recorded that his conclusion was consistent with that proposed by the Family Consultant (at [15]).
There is therefore no merit in this ground.
Ground 3 – failure to consider effect on one of the children
This ground asserts error by the primary judge in failing to “properly consider or even comprehend the likely effect on X of the Mother’s failure to protect the child from a view that her Father was continually molesting her”.
This complaint fails to acknowledge that the father was proposing that the mother continue to have substantial unsupervised time with the children and that they would therefore continue to be exposed to the conduct alleged by the father, even if there was a change of residence.
More importantly though, the complaint also overlooks the following findings, none of which were effectively challenged on appeal:
299.Given that the children plainly love their Father, and equally love spending time with him (as the Family Consultant reported), it is extremely difficult to accept the submission, particularly of the ICL, to the effect that the children remaining in the primary care of the Mother poses a risk to the children of the Mother [continuing] to speak ill and disparagingly of the Father. As earlier noted, if that were the case, it patently has not achieved such a terrible state for the children. Indeed, if the “risk” was being played out, their clearly close relationship with the Father speaks eloquently and simply that even if were true, it is of no effect. And there is the Mother’s consistent and clear evidence that she does not speak about the Father at all in her household. The case of “risk” as argued by the ICL, is not made out; it did not refer at all to the evidence of the Family Consultant which refuted it.
His Honour dealt with the question of the children’s views of their father’s alleged behaviour by ordering that they should have “family therapy”, which was “to include assistance … regarding their beliefs concerning the Father”. His Honour also made clear that the mother must be “very diligent” in ensuring that there “are no inappropriate discussions with or by the children (or the siblings) relating to the Father” in her household and that such discussions are “not to be tolerated” (at [292]). An order was also made restraining both parents “from saying unkind or unpleasant things about the other parent to any of the children, in their presence, or allowing any other person to do so”.
In our view this was an appropriate response to a very difficult problem, and we therefore find no merit in this ground of appeal.
Ground 5 – accepting the judgment of Judge Harman
This ground asserts error by the primary judge in:
… [accepting] Judge Harman’s observations of the children’s relationship with their siblings in circumstances where Judge Harman’s Judgment was not an exhibit in the proceedings and there was no evidence of expert evidence in the proceedings before Judge Harman which enabled Judge Harman to make the observations.
The primary judge did refer to observations made by Judge Harman at an earlier stage of the litigation and recited some of his findings. However, there was no error in doing so given that his Honour found on the basis of the evidence before him that Judge Harman’s comments “still echo or reflect many of the current and ongoing concerns or issues between the parties” and “remain apposite today” (at [12] and [15]).
Furthermore, there was nothing to suggest that the primary judge failed to bring an independent mind to the issue by simply adopting conclusions reached by someone else. In any event, it is plain to us that the reasons of Judge Harman were not relied upon by the primary judge as a basis for making findings but were used merely by his Honour as a device to assist in explaining his own findings.
Although Judge Harman’s reasons were not made an exhibit, counsel for the father agreed with the primary judge that those reasons were “part of the history”. He made this concession in response to his Honour’s comment that the reasons could be received as “a public document … a judgment of the court” under s 157 of the Evidence Act 1995 (Cth).[3] We note also that the primary judge and counsel for the ICL asked questions of the father by reference to Judge Harman’s reasons, and that his Honour was at pains to ensure that copies of the reasons were available to the parties and counsel (transcript, 3 December 2015, pp 4, 35, 52, 53 and 77).
[3]Reference might also have been made to s 69ZX(3) of the Family Law Act 1975 (Cth).
There is no merit in this ground of appeal.
Ground 6 – failure to provide procedural fairness
This ground complains about a failure to provide procedural fairness before making Orders 10 to 14[4] which were in the following terms:
[4]The orders made differ from those set out at the commencement of the reasons. We were not provided with a transcript of the hearing on 31 May 2017 when the judgment was delivered, but it would appear that the proposed orders must have been reformulated in order to take account of matters to which his Honour referred at [303] et seq.
10.(a) The parties are to institute a regime of mediated consultation or “mediated parenting meeting” once per month, to discuss parenting issues in relation to the children. This regime of “mediated parenting meetings” is to continue for at least the next five (5) years;
(b) The parties are to notify the Court, in writing, within 28 days of the date of these Orders who the mediator will be. Any changes regarding who will conduct the mediation are also to be notified to the Court in writing within 14 days of any such change.
11.Every six months, each party is to provide the head of the Family Consultants at the Canberra Registry of the Court with a summary of the dates of and issues addressed at the monthly mediated parenting meeting.
12.The reports in Order 11 are to be provided to the Court for the next five years and are to be placed on the Court file by the Family Consultant.
13.The parties are to attend Family Therapy once a month for the next 12 months after the date of these Orders, which “therapy” is to include assistance for the children regarding their beliefs concerning the Father.
14.The parents are required to confirm with the Court, via the means outlined in Order 13, the following:
a.When and with whom the children will be attending to address these beliefs in relation to their Father; and
b.How long such a regime of assistance will take as recommended by the counsellor/therapist retained.
There is much we could say about this suite of orders. However, it is sufficient to record that it was common ground that the parties were denied the opportunity to make submissions about the practicability and logistics of the proposed five years of “mediated parenting meetings” and the associated orders. While we accept that his Honour recorded at [84] that the father had said “that some sort of professional counselling for both parties might assist, at least to get them both talking”, Orders 10 to 12 went well beyond what might have been contemplated and counsel for the mother properly did not seek to support them “as a realistic prospect for this family” (transcript, 1 November 2017, p 50).
Counsel for the mother submitted that Orders 13 and 14 fell into a different category in that they seek to address the issue concerning the children’s beliefs about the father. This issue was of central importance and we agree that it was appropriate for his Honour to seek to address it by ordering some form of therapy. However, there was no indication at the appeal hearing that the therapy had ever commenced and we note that the 12 month period referred to in Order 13 will shortly expire. There is also some lack of clarity in Orders 13 and 14, including whether the reference to “Order 13” in Order 14 was intended to be a reference to Order 12, which we propose to set aside.
In these circumstances, we propose to set aside Orders 13 and 14 on the basis that the details of the therapy can best be dealt with by the Federal Circuit Court at the same time as it is dealing with the orders to be made in substitution for Orders 10, 11 and 12, which will also be set aside.
Ground 7 – failure to provide certainty in the orders
The primary judge made these orders in relation to the father’s time with the children:
3. The children spend time with the Father 5 nights per fortnight.
4.The children shall spend half of each school holidays with each parent (the Court notes that the parties had agreed on this Order in the course of the Final Hearing).
Ground 7 complains that:
The Trial Judge erroneously failed to provide the parties with any certainty with respect to the Orders for the children’s time with the Father including failure to provide the times and days the Father is to have the children during school terms and school holiday periods particularly having regard to his Honour’s findings with respect to the parties’ lack of communication and a history of the [Mother’s] failure to communicate with the [Father].
Given all of his Honour’s findings about the relationship between the parents, we accept that the failure to provide clarity about the times the father was to have with the children constitutes error, especially given the detail contained in the proposed orders put to his Honour.
Again, counsel for the mother did not seek to defend the orders but proposed instead that the question of the precise times the father is to spend with the children should be remitted to the primary judge (assuming the parties remain unable to agree a regime for the father’s time). Counsel for the father agreed with this, and we will so order.
Ground 8 – failure to consider provision of a safe home
This ground was difficult to follow, but during argument counsel for the father accepted that the proposition was that “his Honour ignored evidence that the children were not safe” in the mother’s care (transcript, 1 November 2017, p 15 – 16).
Once again, this complaint fails to come to grips with the fact that the father’s proposal was for the children to continue to spend significant unsupervised time with the mother, including half of all holidays, which he would presumably not have proposed if the children were not going to be safe.
Nothing advanced in support of this ground persuaded us that there was any error in the approach taken by the primary judge in addressing the father’s concerns about the children’s safety.
Ground 9 – evidence of the mother’s impecuniosity
By this ground it is asserted that:
The Trial Judge failed when finding that the Mother was impecunious (thereby being excused for her behaviours) to have consideration at all to her failure to provide documentary evidence to support the contention and/or make her Husband available for cross-examination.
As best we understand the ground, the complaint is that his Honour accepted the mother’s claim that she was impecunious without requiring any corroborating evidence.
His Honour was aware that the mother had not provided corroboration about her financial position, but found that she was unaware she was required to do so (at [240]). In any event, we are unable to locate a finding that the mother was “impecunious”. On the contrary, his Honour recorded the mother’s evidence that “now that she has moved from [Property Q], she is out of debt, she can afford to rent, and she now has a good income” (at [240]).
We find no merit in this ground.
Ground 10 – failure to give reasons for the parental responsibility order
By this ground the father complains about the failure to give reasons for making an order for equal shared parental responsibility.
Counsel for the father conceded in oral submissions that he would not seek to challenge the order for shared parental responsibility in the event the substantive appeal failed. As the substantive appeal has failed, we do not need to consider this complaint further.
The cross-appeal by the ICL
For reasons given during the hearing, we propose only to address Ground 13 of the cross-appeal.
The complaint in Ground 13 is that:
The Trial Judge erred in not giving any weight to the evidence that the Father was to retire from paid employment in the very near future and his time commitments would not be as taxing in relation to the care and responsibility of being a caregiver of the children.
The primary judge did not overlook the evidence that the father planned to retire when he turned 60 (in March 2018), as that evidence was recorded at [74]. Noting that the trial concluded in 2016 and judgment was delivered in May 2017, it is not obvious to us why the primary judge should have placed any weight on the father’s retirement plans given the reasons his Honour provided for considering that the existing care regime was the one that best promoted the children’s interests.
We find no merit in this ground.
The outcome
The substantive complaints have failed but the appeal must nevertheless be allowed in part because of the merit in Grounds 6 and 7.
We have identified the issues that require reconsideration. We will remit those matters for reconsideration, desirably by Judge Neville who is familiar with the details of this somewhat problematic case.
Although there was no appeal against Order 18 by which the ICL was discharged, it was agreed that if we were to remit matters to the primary judge for determination, it would be appropriate also to set aside Order 18 as the ICL should be of assistance in dealing with outstanding issues relating to therapy/mediation for the parties and children.
Costs
Counsel for the father conceded that costs should follow the event if the appeal was unsuccessful, but made no submissions about what should occur if the appeal succeeded only on the ancillary or minor issues.
Counsel for the mother submitted that if the appeal succeeded only on the grounds relating to therapy and mediation, an order for costs should be made against the father, since these were issues that could have been resolved by a relisting before the primary judge rather than appealing.
The appeal having succeeded on only ancillary issues, most if not all of which could have been dealt with in a different way, we consider that the father should pay the mother’s costs.
The mother was in receipt of legal aid for the appeal. The costs sought were $4,160 (to cover both counsel and instructing solicitor). Counsel for the father understandably did not argue with the quantum.
No orders for costs were sought by or against the ICL. The ICL sought a costs certificate if the “appeal is substantially successful”, however it has not been substantially successful, and we will not grant a certificate.
The father and the ICL sought costs certificates for the rehearing. The mother also sought a certificate for the rehearing, but her counsel recognised the difficulty in that request given that the mother had not been represented at the trial. We consider it appropriate that the father and the ICL receive costs certificates for the rehearing.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Murphy JJ) delivered on 3 May 2018.
Associate:
Date: 3 May 2018
17