Cullen and Cullen

[2007] FamCA 611

FAMILY COURT OF AUSTRALIA

CULLEN & CULLEN [2007] FamCA 611

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – Appeal against discretionary order – Shared parenting arrangements – Time spent with each parent - Appeal dismissed
FAMILY LAW - COSTS – Appellant to pay half the respondent’s costs of the appeal.

Family Law Act 1975 (Cth)

Family Law Amendment (Shared Parenting) Act 2006 (Cth)

AMS v AIF (1999) FLC 92-852
Bennett and Bennett (1991) FLC 92-191
De Winter v De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
T & N (2001) FMCAfam 222

APPELLANT: MR CULLEN

RESPONDENT: MS CULLEN

FILE NUMBER: BRM 5392 of 2005

APPEAL NUMBER: NA 23 of 2006

DATE DELIVERED: 22 June 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: May J

HEARING DATE: 22 August 2006

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 9 March 2007

LOWER COURT MNC: [2006] FMCAfam 50

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kent

SOLICITOR FOR THE APPELLANT: Rhonda Sheehy & Associates

COUNSEL FOR THE RESPONDENT: Mr Murphy SC

SOLICITOR FOR THE RESPONDENT: Barry & Nilsson

Orders

IT IS ORDERED BY CONSENT:

1. That the Easter holiday periods be shared between the parties as agreed, or in the event that agreement is not reached, that the children spend time with the father for the first half of the Easter school holidays in 2007 and each alternate year thereafter and for the second half in 2008 and each alternate year thereafter.

2. In the event that Father’s Day falls on a day where the children are residing with the mother, the children shall have contact with the father from 9:00am until 5:00pm on Father’s Day.

3. In the event that Mother’s Day falls on a day where the children are residing with the father, the children shall have contact with the mother from 9:00am until 5:00pm on Mother’s Day.

IT IS FURTHER ORDERED:

1. That the father’s application filed on 18 August 2006 to amend his grounds of appeal to include Ground 1(a) be allowed.

2. That the appeal be dismissed.

3. That the appellant pay one half of the respondent’s costs of the appeal to be assessed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Cullen and Cullen.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 23 of 2006
File Number: BRM 5392 of 2006

MR CULLEN

Appellant Father

And

MS CULLEN

Respondent Mother

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal by the father against orders made by Slack FM on 9 March 2006 in relation to future parenting arrangements. The father seeks orders which would enable the children, Master Cullen, born on … July 2001, and Miss Cullen, born on … November 2002, to increase the time spent with him should the appeal be allowed. In the alternative, the father seeks orders that the children reside with the father and that the mother have contact with the children as agreed between the parties or as ordered by the court.

2. The father also asked for other orders including that he be entitled to spend Father’s Day with the children and to spend half of the Easter Queensland School holidays with the children. In relation to those matters, the parties were able to agree.

3. The effect of his Honour’s orders was that the children would live with the mother and spend time with the father. The father works as a mechanic on an eight day rotational basis, alternating four days on and four days off. The matters raised on appeal relate to the time the children have with their father outside school holidays. The trial Judge ordered that the father spend time with the children:

   “(3)(b) During school terms for the middle 2 consecutive nights of each of the father’s rostered days off ….”

4. I mention that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under section 94AAA (3) of the Family Law Act 1975 (“the Act”).

5. It should also be recorded that this matter came before the trial Judge prior to the introduction of the Family Law Amendment (Shared Parenting) Act 2006 (“the amending Act”) on 1 July 2006; consequently, the amending Act was not considered at the hearing of the matter at first instance.

6. An application was filed by the father’s solicitor on 18 August 2006 asking that the father be granted leave at the hearing of the appeal to include a further ground of appeal:

   1(a) The Learned Federal Magistrate erred in proceeding on the basis that the Orders were provided for contact on “four nights per fortnight” when in fact the Orders provided for less contact than that.

7. There was no objection from the respondent to leave being granted.

8. The appeal proceeded on grounds 1, 1A, 2 and 3, grounds 4 and 5 were abandoned.

BACKGROUND

1. The background facts as found by the Federal Magistrate are not controversial.

2. The parties commenced living together in August 1998, were married in October 1999 and separated in August 2004. At the time of their separation the parties lived in the matrimonial home located in an outer northern suburb of Brisbane in Queensland. After the separation, the mother moved with the children to a second suburb north of Brisbane, and was residing in a third suburb north east of Brisbane at the time of the hearing.

3. Since separation the mother has received Centrelink benefits and has some employment as a fitness consultant. As previously stated, the father works as a mechanic.

4. At the time of the separation the children were aged 3 years and 18 months. The time the father spent with the children was initially during the whole of the four day period of recreational leave in the eight day rotation. His time was reduced to three days in September 2004 by the mother and further reduced by her in June 2005 to two days per week and one overnight period on the days that the father was not working.

5. Jarrett FM ordered on 26 August 2005 that the children:

   “3.…reside with each parent on an eight (8) day rotational basis in accordance with the following arrangements:

   a)with the Father from 8.00am on Day 6 until 10.00am on the following Day 1;

   b)with the Mother from 10.00am on Day 1 until 8.00am on Day 6.

6. The Federal Magistrate also ordered on 26 August 2005 the preparation of a Family Report. The report of the Family Report writer was filed on 25 October 2005.

7. In April of 2005, the father commenced a relationship with Ms Timothy. Ms Timothy lives with the father during his four days of leave, and with her parents in an inner city suburb of Brisbane, Queensland, at all other times. Ms Timothy has a child, a son, born on 27 February 2004, who lives with her and accompanies her when the other children are with the father.

8. The mother has expressed a desire to move with the children to the Logan/Gold Coast area, which was an issue before the trial Judge, no orders were made in relation to where the children can live. The father intends to continue to reside in the former matrimonial home and to continue his work as a mechanic.

THE TRIAL JUDGE’S JUDGMENT

1. After referring to the relevant sections of the Act, the trial Judge isolated the matters of particular relevance by reference to s 68F(2) as it then was.

   “34.I consider the relevant issues for consideration in this particular matter insofar as they relate to the s.68F(2) factors are:

   a)The wishes and attachments of the children [s.68F(2)(a) and (b)];

   b)The likely consequences for the children in any change in their current parenting arrangements [s.68F(2)(c)];

   c)The capacity of the parents to parent the children and provide for their needs [s.68F(2)(e)];

   d)The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents, in particular, the capacity of the parents to communicate and promote the relationship between the children and the other parent [s.68F(2)(h)].”

2. His Honour then referred to the father’s proposal for shared parenting which was on an eight day rotational basis. The mother asked for an order being four nights and four days per four week cycle to coincide with the father’s rostered days off and non-school days.

3. Aware that the issue of shared parenting was significant in this case, the trial Judge referred to T & N [2001] FMCAfam 222 and the need to “…consider the advantages and disadvantages for the children of the father’s proposal and the mother’s proposal.” (para 37)

4. Under a heading "Summary” the trial Judge said:

   “51.Therefore I find, and intend to give weight to the fact that:

   a)the children have a primary attachment to their mother and she has been their predominant care provider and has been their closest attachment;

   b)the father has been an engaged parent and the children have a close and loving attachment to him;

   c)the children have an appropriate attachment to the father’s new partner and her son.”

5. Although the father articulated criticisms of the mother to the Family Report writer these were not maintained at the trial. Under a heading “Parenting Capacity” the trial Judge said:

   “66.In summary on this issue:

   a)I consider that the mother has demonstrated that she has appropriate parenting skills.  I consider that she has been predominantly responsible for the care of the children and the current state of development of the children must largely be attributed to her work and the commitment that she has made to them since their birth.

   b)I accept and find that the father has the capacity and commitment to provide for the needs of the children.”

6. After referring to the history of contact, including that until the mother’s unilateral decision the children had weekly contact with the father, the trial Judge found that the children “…are well used to having his involvement in their parenting and they are well used to his roster arrangements. The children are still relatively young”. (para 68)

7. In addition, the trial Judge found that despite the conflict between the parents the children appeared “…to have maintained their strong relationships with each of their parents…”. (para 70)

8. Under the heading “Likely Consequence of Any Change in the Parenting Arrangements,” the trial Judge made the following finding:

   “71. On this issue, I accept and find:

   a)That the children are used to parenting arrangements that involve them having contact with each of their parents each week;

   b)There are indications from both parents that the children were becoming unsettled with the arrangements during 2004 and 2005 although the cause of that unsettled behaviour is in dispute;

   c)The children have strong relationships with each of their parents and the indications are that they can make adjustments to changes such as changes in housing without significant consequences.”

9. Accurately it seems, his Honour summarised the positions of each of the parties including as follows:

   “73.The mother perceives the father and his current partner as being controlling and undermining her relationship with the children.  She perceives his application for shared care being adult focused rather than children focused and, indeed, regards the application as an attempt by him to reduce not only his children support obligations but also to place financial pressure on her.

   74.The father regards the mother as controlling of his relationship with the children and placing impediments in the way of his perception of the children’s need to have ongoing input and parenting from him.  The father regards the mother’s attitude to the parenting of the children as being non-inclusive of him.”

10. In relation to the parents’ attitude to parenting, his Honour made the following findings:

    “82.Notwithstanding her aggressiveness, I consider that she does acknowledge and recognise the value for the children in having a relationship with their father and I do not consider that there is any underlying motive to alienate the children from him.  She has largely complied with the contact orders that have been in place since August and the children apparently adjust to the transition between the households without significant difficulties save for changeovers.

    83.I have some doubt about the father’s capacity to promote the children’s relationship with their mother.

    84.My impression of him, from the witness box, was that he was a person with rigid views and an expectation that arrangements would be centred around him.

    85.Although I accept that he acknowledges the importance of the relationship between the children and their mother, I am not certain that the importance of that relationship would not be seconded to his own needs when he considered the circumstances so demanded.

    86.I consider that he tailored his evidence during the course of this matter to the course that best suited an outcome for him.  At the time of the family report, he was intent on applying for residence of the children and was prepared to be highly critical of the mother’s parenting. In the light of the family report and his perception that it recommends a shared care regime, his evidence is now tailored to achieving that outcome. 

    87.My perception of the father was that he had real difficulty acknowledging the contribution that he made to the dispute and conflict and I have real concerns about his capacity for the necessary compromise and cooperation that his proposals would involve.”

11. In relation to the parties ability to communicate, which was a key issue, his Honour made the following findings:

    “Communication

    88.Both parties acknowledge that the current relationship between them is poor and the level of conflict is high and overt (particularly at changeovers). They have arranged changeovers such that they do not come into contact with each other.

    89.The mother acknowledged in the course of cross-examination that she was prepared to continue to make an effort to ensure that things run smoothly in the future and the mother acknowledges that the continuing conflict had a deleterious impact upon her emotional health.

    90.The father acknowledges the conflict but says, as a result of the recommendations in the family report, the parties have jointly attended three counselling sessions and one mediation session and they are improving their communications and they are developing strategies to overcome the conflict issues (particularly in the presence of the children).  The father points to the fact that he has changed the handover routine for the children such that the parties and their respective partners do not come into contact with each other and the children now move freely between the households without significant problems.

    91.The parties are still some distance from a cooperative co-parenting arrangement.

    92.For example, there is no agreement yet between the parties as to which school the children will attend and from the indications that I had from the parties’ evidence, the parties have very different views as to the school the children will attend and that is likely to continue to be an issue.

    93.The parties have jointly attended a medical specialist for treatment of [Miss Cullen’s] skin complaint.  The father subsequently had concerns about whether the mother was appropriately following the specialist’s directions and he arranged for the specialist to contact the mother to confirm that she was properly treating [Miss Cullen] and complying with the doctor’s directions.  On the one hand, that would indicate that the father has the capacity to find appropriate strategies to communicate in an effective way with the mother.  On the other hand, it indicates that he did not consider that his relationship with the mother had reached a point where he could contact her and have a sensible and rational discussion about his concerns and receive reassurance that the mother was appropriately treating the children.

    94.The parties currently have a poor relationship and limited capacity for functional communication.  Whilst the parties have made some advances in terms of restoring functional communication and in building trust, the incapacity of either party to acknowledge and recognise the part they play in the dynamics of conflict between them indicates to me that it is likely that there will continue to be poor functional communication, distrust of the other parent and disputes over the management of the children.

    Proposals of the Parties

    95.The mother proposes to relocate to the Logan City/Gold Coast area so that she can be closer to her immediate family, namely her mother and other siblings.

    96.The father is not opposed to the mother’s move so long as it does not interfere with his proposal for the living arrangements for the children.  The father is critical of the mother’s lack of particularity as to her proposals for the children.  She does not, for example, identify the area in which she intends to reside; the schools at which the children will attend; or, the type of housing that she proposes to occupy.

    97.The mother says that she did not undertake any specific investigations in relation to her living circumstances because she felt it appropriate to await the outcome of this hearing.

    98.I was satisfied that the mother does have a desire to live closer to her mother so that she can receive additional support and assistance from close family members in the context of raising the children.

    
    

    I acknowledge, though, that since the separation the mother has made decisions to change arrangements for the children for other than child focussed reasons such as her flexing her muscles in June 2005 to reduce the father’s contact with the children. I also consider that the mother has felt under threat from the father in relation to her role with the children. I accept that in some respect the decision of the mother to relocate herself to the Logan area is another emotional response in her to put some distance between herself and the father. I do not accept that her entire motivation has been to thwart the father’s proposal for a shared regime of parenting for the children.

    99.I do not consider that I should place any impediment on the desire of the mother to relocate to be near her family. In doing so I have assumed that the driving distance will be no greater than one hour between the households. I have proceeded on the basis that the mother is likely to relocate herself to [an area more proximate to Brisbane].

    100.The father proposes to continue to reside in the former matrimonial home and there was no indication from him that he would move closer to the mother and children if they did relocate to [an area more proximate to Brisbane].

    101.The evidence is that it is approximately one hour’s driving time between the two.

    102.The father says on his proposal that there should be some discussion and agreement about the schools in which the children will attend and his initial thoughts, at least, were that the children should attend a school that was in between the parents.

    103.The mother would prefer that the children attend a school close to her.

    The Father’s Proposal

    104.The father’s proposal would involve a continuation of the arrangements for the children that have existed since August 2005.”

12. These findings are especially important in view of the father’s appeal in relation to reasons. It was not suggested in the submissions on appeal that any of these findings were not open to the learned Federal Magistrate.

13. After referring to the benefits of the father’s proposal, the trial Judge then said:

    “108.The disadvantages for the children are that they would have to make the transition between their respective parents’ households when there is no significant functional communication between the respective households.

    …

    110.As the children move into their primary school years, the need for practical ongoing cooperative co-parenting becomes more important as routines for homework, extra-curricular activities and the like, impact upon the management of the family household.”

1. Of the mother’s proposal, the trial Judge said:

   “112.The advantage for the children is that they will continue to receive significant parenting from their mother who, I have determined, has been their primary and predominant carer for much of their lives. Also, in my view it is in their interests to live predominantly in one local community.

   113.The disadvantages of the mother’s proposal are that:

   a)There would be a significant reduction in the time that they would have with their father. Since the separation they have been used to spending time with their father in each week.  The mother’s proposal as it stands involves them having only weekend time with their father and it is not guaranteed that that would be each fortnight.

   b)They will have less time with the child [of Ms Timothy] and it seems likely that he will become part of their sibling group.”

2. Finally after acknowledging that this is a “very difficult matter” (para 114), his Honour concluded that his reasons for not accepting the father’s proposals were as follows.

   “115.My reasons for not preferring the father’s proposals are as follows:

   a)I have found that the mother has provided a proper and appropriate level of caring for the children throughout their lives and she has been their predominant carer. I consider that it is in their interests that they continue to be in the predominant care of their mother.

   b)I have concerns about the father’s ability to make compromises and to have the necessary flexibility that is required for successful co-parenting. I acknowledge that the mother responds aggressively to perceived challenges to her parenting. That dynamic, in my view, does not provide the necessary foundation for successful co-parenting, particularly, when there are different dynamics in each household.

   c)There must inevitably be different parenting practices in each household. The children move from a household where they are parented by a single parent to a household where there are two carers and they have the added dynamic of another sibling. There must inevitably be differences in the parenting they receive and they would have to make the transition particularly during their important school years in circumstances where their parents do not communicate about issues for them in each other’s households.

   d)Whilst I acknowledge that the children do not appear to have been adversely affected by the arrangement that has been in place since August, there has, nevertheless, continued to be significant conflict between the parties; poor functional communication between the households; and, they agree that they have had difficulties when in direct contact with each other at changeovers due to the level of past conflict.

   e)From my observations of the parties’ personalities and the way that they interact, I do not consider they will be able to have sensible functional communication in the short to medium term.

   f)There is likely to be a significant geographical distance between the parties which will make the practical considerations during school terms more difficult to organise and in circumstances where there is not significant cooperative co-parenting, the problems associated with managing the week to week arrangements become more enhanced.

   g)        [The Family Report writer], in his opinion, said:

   “It would seem  that [Mr and Ms Cullen’s] unwillingness and inability to inclusively co-parent is the main impediment to [the children] having a physically and emotionally inclusive post-separation care experience and is a seminal factor in suggesting that one parent, by necessity, may need to be given residence”.

   I agree with that opinion.

   f)I do consider that the mother recognises the value of the children having a relationship with their father and will continue to support that relationship despite the difficulties of the past six months and I do not therefore consider that a reduction in time with their father will have significant consequences for the relationship with him.”

3. As already mentioned grounds six to ten inclusive were negotiated and consent orders agreed by the parties before the hearing. Grounds four and five were abandoned by the father, having been rectified by the trial Judge by way of the slip rule.

4. The remaining grounds are as follows including 1(a) as amended:

   (1)The learned Federal Magistrate erred in finding that it was in the best interests of the children to have less contact with their father than he had been enjoying since August 2005, in circumstances where, in particular:

   (a)The wife admitted, and the learned Federal Magistrate found, that the mother had no basis for complaint about the care the father provided and that the mother had unilaterally reduced the contact the father had been enjoying since August 2005, in circumstances where, in particular:

   (b)The learned Federal Magistrate had found that the children had adapted well to moving between the parties respective households despite likely differences in parenting practices in each household;

   (c)The learned Magistrate specifically found that the children were “well used to having [the father’s] involvement in their parenting”;

   (d)The learned Magistrate specifically found that the children are “well used to [the father’s] roster arrangements.”

   (1A)That the Appellant Father be granted leave at the Hearing of the Appeal to amend the Appellant Father’s grounds of Appeal to include Ground 1A, in particular: -

   (a)The Learned Federal Magistrate erred in proceedings on the basis that the Orders were provided for contact on “four nights per fortnight” when in fact the Orders provided for less contact than that.

   (2)The learned Federal Magistrate failed to consider, or in the alternative failed to sufficiently consider, the effect on the children of decreasing their father’s contact in particular in circumstances where the Federal Magistrate made a finding that the father had a significant history of caring for the children.

   (3)The learned Federal Magistrate erred in giving no, or in the alternative, no adequate, reasons for his ultimate finding that it was in the best interests of the children to have less contact to their father than he had been enjoying since August 2005.

APPELLATE PRINCIPLES

1. It is appropriate at this stage to identify the principles governing an appeal such as this from a discretionary judgment. The law in this respect is not in doubt.

2. It was clearly enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:

   It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

3. In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:

   The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.

4. Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing the Federal Magistrates discretionary decision consistent with these principles. If there is then, unless the result is plainly right notwithstanding an appellable error, per Gibbs J (as he then was) in De Winter v De Winter (1979) FLC 90-605 at 78,091, I am obliged to allow the appeal, set the orders aside and, if possible, substitute my own decision after considering the matter afresh, as was explained by Kirby J in AMS v AIF (1999) FLC 92-852, who said at 86-043:

   [A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved.  Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.

5. As the grounds of appeal attack his Honour’s reasons, it is appropriate that I refer to the following passage from the decision of the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266-267:

   Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

SUBMISSIONS ON BEHALF OF THE APPELLANT

1. The submissions were made in three areas. First, that the trial Judge made an error in relation to the amount of time ordered for contact between the father and children including that a mistake was made by him about the father’s work roster and how that should have translated into an order. Secondly, that there was an absence of reasons to support the orders made and in particular none to support a reduction in the contact as previously ordered. Third, that the learned Federal Magistrate could not have properly taken in to account the adverse consequences for the children.

2. In relation to the first submission it was noted that curiously, the Federal Magistrate ordered that the children spend one half of the holidays with their father which would include occasions when he would be at work and some of those days would be weekends and some week days. The eight day roster of the father’s work schedule bears no relationship to weekdays and weekends.

3. It seems that despite the mother’s Response to which the Federal Magistrate referred she made some concessions through counsel during the hearing. The Magistrate asked why the father could not have contact for four days in every fortnight to coincide with his days off and instructions were obtained from the mother that she would accept that but that it was not her preference, certainly it was her second preference (see transcript p 91). It is important to note that the question put by his Honour was “Why I simply wouldn’t order that the father have his contact in the four days that he has off each fortnight” (transcript p 91, line 11 & 12). Ms Carew then raised with the Federal Magistrate the difficulty of what this would mean in terms of the father’s roster. It does appear from the transcript that the Federal Magistrate did not remain confused about this issue for long, saying “I understood that he has four days work, four days off”. There was then some discussion between the Federal Magistrate and Ms Carew, who appeared as counsel for the father, who alerted the Federal Magistrate to the fact that the use of fortnights would not be appropriate. There was then further discussion about whether the proposal on behalf of the mother would mean every second roster. The Federal Magistrate then explained that he understood that the father’s roster meant that he had different days off. It is submitted that although the order says “…the middle 2 consecutive nights of each of the father’s rostered days off…” the Federal Magistrate appears to have thought that he was ordering “four days per fortnight”. It is accepted that the nature of the father’s eight day rolling roster is such that only in some fortnights could there be four nights contact however, it is also apparent that the Magistrate did not use the word fortnight in the orders.

4. In relation to the argument about reasons it is submitted that it was not apparent why the Federal Magistrate reduced the contact from the interim order. Further, why it was argued would two nights be better than three for the children. This submission was made particularly in the light of paragraph 53 of the Family Report writer’s report which is as follows:

   “(53)In the absence of support being located and described for Mr and Ms [Cullens’s] described concerns regarding each other’s personal and parenting functioning and in the context of the [Timothy-Cullens] relationship still being new and evolving, as well as historical factors, the recommendation would be made for [Ms Cullen] to assume residence and [Mr Cullen] to have contact, The report notes however, that there is an opportunity for [the children] to have a more inclusive care experience, prescribed by Court orders in the absence of adult goodwill, and would offer support for a child-focused rather than adult-timed outcome where the children have expansive contact such as is currently provided by Court order. Observations of [Mr and Ms Cullen] at the home visits suggests that both parents, and [Ms Timothy] if she can maintain more appropriate role boundaries, are able to offer [the children] experiences that will assist the children in their development. The recommendation is made that the parents share care and residence if it assessed that Court orders are able to prescribe a sufficiently functional co-parenting relationship for the parties.”

5. It is correct that the Magistrate apparently largely accepted the expert evidence of the Family Report writer and it seems that there was no cross examination of the Family Report writer about this part of his opinion. It was submitted that the reasons do not reveal why orders were not made providing that the parties share care and residence or at the least the regime of contact continue. It was submitted that it was particularly necessary for his Honour to provide those reasons when consideration is given to other factual findings made by him including:

   ·The agreed fact, and finding, that, for 12 weeks of the year, it was in the children’s best interests to spend even amounts of time with each of their parents whether their father was working or not and whether that contact embraced weekends or not;

   ·The finding that, in taking unilateral decisions to reduce the contact enjoyed by the father post separation, the mother was actuated, in part, by ill-will: the decisions were taken not in the children’s’ best interests but in order to “flex her muscles”[19]:

   ·The finding that the decision to relocate by the mother was, again motivated, at least in part, by ill-will;[20]

   ·The findings, in particular, that the children “are well used to [the father’s] involvement in their parenting and they are well used to his roster arrangements”[21];

   ·The finding that “the indications are that the children have strong relationships with each of their parents and the indications are that they can make adjustments to changes such as changes in housing without significant consequences”[22].

   [19] Reasons, par 78. And, also, “I acknowledge, though, that since separation the mother has made decisions to change arrangements for the children for other than child focussed reasons…:” Reasons, par 98

   [20]  The Magistrate found: “I do not accept that her entire motivation has been to thwart the father’s proposal for a shared regime of parenting for the children” [emphasis added] and was “another emotional response in her to put some distance between herself and the father” – Reasons par 98

   [21] Reasons, par 68

   [22]  Reasons, par 71

6. As to the third aspect of the appeal being adverse consequences for the children, it was submitted that the Federal Magistrate was wrong in reducing the amount of contact because it could not be demonstrated that it would have adverse consequences for the children. Reference was made to the reasons in paragraph 115(f). It was submitted that the reasons contained in paragraph 113 are inconsistent with the order that was made.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

1. Mr Kent submitted that there was no misunderstanding by the Federal Magistrate of the father’s roster or the effect of the order. Extensive references were made to the transcript which included that Exhibit 1 was provided early in the proceedings which demonstrated the father’s calendar for two months showing the day and night shifts that he worked. This exhibit was later expanded to include the months February to December 2006. Further that at transcript p 38 his Honour clarified with the father that of the four days that he works they do two days and two nights. It is however correct that later in the transcript being the part to which reference has already been made, there did seem to be some confusion for a time by the Federal Magistrate that he could order that the father have four days contact per fortnight. After some clarification by Ms Carew, counsel for the father, the Federal Magistrate then appreciated the four days on four days off roster (see transcript p 92 line 45). In addition, it seems that when his Honour gave his reasons the true position of the father was understood (see para 45).

2. In relation to the questions of adequacy of reasons reference was made to paragraph 67 and 69. It was submitted that it is quite clear from the whole of the judgment that his Honour considered the existing regime for contact and for the reasons expressed made the orders. As to the evidence of the Family Report writer, reference was made to the transcript at page 78 where the Family Report writer said:

   “Yes, I think I am trying to suggest there that it is difficulties that parties have in co-operating with each other in an inclusive or co-operative was: that is the impediment rather than anything in the father/children relationship or the mother/children relationship.”

   The Family Report writer was then asked:

   “So it seems to follow from that and what you say in paragraph 53 that but for that, you see the best outcome for these children would be a continuation of something like the current arrangement.

   In answer the Family Report writer said:

   “Yes, without necessarily suggesting that there is one option which is clearly better or superior to any other something where it is inclusive where the children have lots of regular contact with both, and not have any extended gaps in their relationship with either.”

3. In relation to the reasons argument it was submitted that there were sufficient reasons particularly when it is understood that in the appeal there is no challenge to any facts as found by the trial Judge or discussion of matters of principle.

4. Finally as to the question of the effect on the children, it was submitted that the learned Federal Magistrate had given careful consideration to this question as contained in paragraph 67 to 71 of his reasons. It is clear, it is submitted, that the trial Judge had some focus on the longer term issues in relation to the children including their attendance at school as he was entitled to do rather than simply considering past arrangements.

CONCLUSIONS

1. In a carefully constructed judgment, the trial Judge dealt with each of the proposals of the parties and acknowledged in paragraph 114 that this is a difficult matter.

2. The essence of the appellant’s argument is that the Federal Magistrate in ordering that it was in the best interests of the children to have less contact than that which they had previously enjoyed must have made an error in appreciating the husband’s roster and in any event his reasoning was deficient and further that such change was not in the children’s best interest. It was emphasised that in making such an order, the Federal Magistrate must have been confused about the father’s work arrangements.

3. The Federal Magistrate while he may have been uncertain in relation to the father’s work arrangements as it appears in the transcript at one point certainly appreciated them by the time he gave his reasons. Further, the orders do not make any reference to fortnights and provide for the middle two consecutive nights of each of the father’s rostered days off which is entirely clear. As to the question of reasons there can be no doubt as to why his Honour made these orders particularly by reference to what he said in relation to each parties proposal and then in paragraph 115.

4. Whilst it might be said that it is difficult to tell why two days is better than three that is the decision made by the Federal Magistrate and unless it can be demonstrated that there is some appellable error, this is an entirely discretionary judgment where careful reasons were provided and in the absence of an error the appeal should not be allowed. As I have already said, there is no discernible error in the trial Judges’ appreciation of the father’s work roster and otherwise proper reasons were given. In that case the appeal cannot be allowed.

5. The oldest child now attends school. That fact on its own may have brought some changes and the amendment to the Act may also have an impact on arrangements that are most suitable for these children. Of course, the amendments themselves do not provide for a change of circumstances. The orders made by the learned Federal Magistrate properly reflected the unchallenged facts before him at the time of his judgment and are entirely within his discretion.

COSTS

1. Although the appellant failed in the appeal in relation to the essential grounds it must also be observed that it was not until the morning of the hearing of the appeal that a number of important matters in relation to parenting which were also contained in the grounds of appeal were resolved by consent.

2. The Act provides that there must be circumstances which justify an order for costs. In this case the fact that the appellant was wholly unsuccessful in relation to the major grounds of the appeal is a significant factor. Taking in to account that part of the appeal was resolved by consent, it would be appropriate to order that the appellant pay one half of the respondent’s costs of the appeal to be assessed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate:     

Date:              22 June 2007