CW & W

[2006] FamCA 387

[2006] FamCA 387

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA41 of 2005
AT SYDNEY  File No NCF963 of 2003

BETWEEN:

CW
Appellant Wife

- and -

W
Respondent Husband

REASONS FOR JUDGMENT

CORAM:  BRYANT CJ, FAULKS DCJ and MAY J
DATE OF HEARING:                25 October 2005
DATE OF JUDGMENT:            12 April 2006

APPEARANCES:  Mr M Broun QC appeared on behalf of the Appellant Wife

Mr Alexander of Counsel appeared on behalf of the Respondent Father

APPEAL SUMMARY

MATTER:CW and W

APPEAL NUMBER:  EA 41 of 2005

CORAM:Bryant CJ, Faulks DCJ, and May J

DATE OF HEARING:  25 October 2005

DATE OF JUDGMENT:  12 April 2006

CATCHWORDS:               FAMILY LAW – APPEALS – Application to adduce further evidence – Application not pursued because if the appeal was successful there would be required to be hearing de novo – Asserted  trial Judge incorrectly weighed certain matters – Asserted failure by trial Judge to make relevant findings of fact – Asserted failure by trial Judge to consider relevant matters – Asserted trial Judge erred in the exercise of discretion – “Intuitive Synthesis” considered – Appeal dismissed – Short reasons provided as appeal raises no matter of principle

Legislation:

Section 94(2A) Family Law Act 1975

Caselaw cited:

Gronow v Gronow (1979) FLC ¶90-716

Norbis v Norbis (1986) 161 CLR 513

Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1990) 160 ALR 588

R v R: Children’s Wishes (2000) FLC ¶93-000

Pavlic v R (1995) 5 TasR 186

Appeal dismissed
Wife to pay husband’s costs
Foreword

1. This was an appeal by the mother against orders of his Honour Justice Steele made on 16 March 2005.[1]  The orders provided for the two children of the relationship (being A, born in March 1999, and J, born in October 2001) to live each fortnight in an arrangement where they were primarily with their father but had contact with their mother from Wednesday in one week until the following Monday morning and after school on Friday until Saturday morning on the other week.  The orders also make provision for special occasion contact and for the children to spend half of the school holidays with each parent.  One of the orders also provided that the mother could choose for the children to be with her during the day during school holidays if the father was unable personally to be available for them. 

   [1] As amended under slip rule on 8 April 2005.

1. The father is about 50 years of age.  The mother is about 39 years of age.  She is [self employed].  She owns and developed a [business] in C [a town on the north coast of NSW].  She sold one half of that business some time ago but the partnership does not appear to have worked out that well.

1. The parties began to live together in late 1993, married in late 1994 and separated in April 2003.  There were property matters in dispute between the parties but these were heard separately and were not the subject of the appeal.

1. The grounds of appeal are set out in Endnote One.E^{ndnote 1}

1. The Appellant sought to adduce additional evidence.  Mr Broun QC initially indicated that he would pursue that application at the conclusion of the appeal hearing.  After discussion with the bench, he conceded that if the appeal was successful the matter would need to be remitted for re-hearing.

1. The grounds of appeal in this matter were in each case, as Mr Broun QC conceded during the course of submissions, related to what he asserted was the incorrect weight given to evidence before the court at first instance. The grounds of appeal raise no matter of principle and in accordance with the provisions of section 94(2A) of the Family Law Act1975 the Court in dismissing the appeal proposes to give short reasons only. 

1. Each of the appeal grounds related to the question of weight.  In this regard an appeal court must apply the following principles in relation to discretion of judgments. 

1. In Gronow v Gronow (1979) FLC 90-716 at 78,849, Stephen J stated that:

   “When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight:  it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial Judge.  Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial Judge can do, an appellate Court should be slow to overturn a primary Judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.”

2. In Norbis v Norbis (1986) 161 CLR 513 at 539 – 540, Brennan J referred to Bellenden (formerly Satterthwaite) v. Satterthwaite (1948) 1 All ER 343 at 345, in which Asquith LJ stated the rationale of an appellate court’s approach:

   “ ‘…It is, of course, not enough for the wife to establish that this court might, or would, have made a different order.  We are here concerned with a judicial discretion, and it is of the essence of such discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.’”

and stated:

“The ‘generous ambit’ within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.”

1. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 Kirby J said:

   “The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind.” (at 619)

1. Ultimately the determination of matters relating to children cannot be a mathematical or mechanical consideration of the weight of various considerations under section 68F(2).  It is an “intuitive synthesis” of all the matters adduced in evidence.

1. The phrase “intuitive synthesis” appears first in this court in R v R: Children's Wishes.[2]  It was applied to the analysis of the wishes of children and the relevant dicta from that case appear in Endnote2.Endnote 2

   [2] (2000) FLC ¶93-000

1. The concept is equally applicable to the process employed in the determination of the best interests of children generally.  There can be no mathematical calculation of the qualitative factors necessarily involved in the determination of what constitutes a child’s best interests.  It is the combination of the different aspects of the evidence with the judge’s observation and assessment of the parties and their synthesis in the light of the submissions of the parties or their counsel and the appropriate consideration of the law which produces the determination of the judge.

1. It should be pointed out that while the phrase “intuitive synthesis” is a convenient way of describing the process of determination of what constitutes the best interests of a child, this phrase should not be taken to import the jurisprudence and theoretical connotations associated with it in the law relating to sentencing.[3]  Nor should it be taken to suggest that the exercise of discretion is in any way an arbitrary one.

Findings of fact

[3] See for example, Pavlic v R (1995) 5 TasR 186 but we do resile from the principle expressed in that context: “The effect of the ‘intuitive synthesis’ method is that … [the result]…is determined by an assimilation of all the relevant factors, the exercise of a judgment and the pronouncement of a conclusion.” per Slicer J at 27.

1. At the commencement of his submissions to the Court, Mr Broun QC indicated that this was a judgment characterised by a failure on the part of the trial Judge to make appropriate findings of fact.  He was asked to nominate such matters and to indicate the findings of fact that could have been made which would have affected the judgment.  Mr Broun QC indicated he would return to this matter at the end of his submissions but did not do so. 

1. Mr Broun QC conceded in relation to each of the grounds of appeal that they were matters within the trial Judge’s discretion.  He submitted in each case that discretion had miscarried. He conceded however, in each case the discretion had miscarried because the trial Judge had failed to give the weight to the matters that Mr Broun QC submitted he should have. 

Ground One - The husband’s actions in removing the children at separation

1. Lest it be thought that we have overlooked a submission made by Mr Broun QC, we draw particular attention to the submission that the trial Judge failed to give sufficient weight to the fact that the father (the respondent) had clandestinely planned and executed a pre-emptive move in relation to the children at the time of separation.  He purchased a house in advance without notifying the appellant mother.  He moved with the children and then failed to disclose where he was for some time.  He then obtained orders in the Local Court and subsequently in the Family Court.  The force and effect of the later part of this plan was somewhat diminished by the fact that the orders made in the Family Court at least were orders made with the consent of the mother. 

1. Mr Broun QC asserted that this process was undertaken for the purpose of, and gave, the respondent a forensic advantage.  He maintained that this was a matter that should have been reflected more strongly in the judgment of his Honour Justice Steele and that there should be some warning sent by this Court that this sort of conduct would not be tolerated.

1. The conduct of the husband was by any measure inappropriate.  It appears that he acted with the advice of his lawyer and if that is so, that advice appears to have been both ill-conceived and misdirected.  This conduct was at best misguided and at worst deserving of the highest opprobrium. 

1. Nevertheless this was taken into account by the trial Judge and assessed.  It was assessed by the trial Judge in the light of the fact that by the time of the trial, significant time had elapsed since the events referred to and the trial Judge properly directed his attention to what, in the circumstances at that time, were the best interests of the children. 

1. Mr Broun QC asserted that these events may have constituted a factor to be taken into account under section 68(F)(2)(l).  He contended that they might properly have been considered as an indication of a lack of appreciation on the part of the father of his responsibility as a father.  However the trial Judge considered and weighed these matters particularly in the light of the comprehensive report supplied by the single expert Dr V.  That comprehensive report was not the subject of challenge and Dr V was not cross-examined.  His Honour was entitled to rely upon the report and did so. 

Ground Two

1. The second ground of appeal related to an asserted failure on the part of the trial Judge to take account of the change in the working behaviour of the mother following separation.  This was a factor taken into account by the trial Judge and complaint can only been made about the weight that the trial Judge gave to the matter.  In paragraph 88 the trial Judge said about the mother:

“88. She does however, seem to me to have been more focused [sic] on her business than the Children.  I think however, she may now be more willing to look at her parenting in a way which is more self critical, which may benefit the Children.  I believe the Children will benefit from spending extensive periods with her.” 

Ground Three

1. The third ground related to the failure on the part of the trial Judge (it was asserted) to take account of the impracticality that would be caused by the travelling time involved in the arrangements ordered.  The orders made by the trial Judge were not those sought by either the mother or the father and were more generous to the mother than those contemplated by the single expert, Dr V. 

1. The parties each refused to move or to compromise on issues relating to the children’s schooling and the necessary consequences of their respective positions on a number of factors, and their failure to be able to cooperate meant that his Honour’s choices were restricted.  Although there is no doubt the children are obliged, at least for the next eighteen months or thereabouts, to travel quite extensively, there was no evidence before the court to support the proposition that such travel would necessarily be damaging to the children and it was clear from his Honour’s judgment that he had contemplated the difficulties of travel and taken them into account. 

Ground Four

1. Ground four related to the fact that the Judge had, it was submitted, not properly taken account of the undesirability of the children spending “an undue amount of time with child carers”.  His Honour gave careful attention to the recommendations of the single expert.  He made provision in the orders themselves for the mother to be able to look after the children rather than having them in child care during school holiday periods when they might otherwise have been with their father.  Again Mr Broun QC conceded this was a matter of weight and again his Honour was not demonstrated to have erred except by failing to give the significance to the matter that Mr Broun QC sought should be given. 

Ground Five

1. The fifth ground was “that the trial judge erred in the exercise of his discretion by failing to place the children predominately in the care of the mother”.  This rolled-up ground of appeal was, as Mr Broun QC suggested, really the summation of those grounds that went before.  He argued that even if each of the preceding grounds was not in itself enough, in combination, they constituted a failure on the part of the judge properly to exercise his discretion.  Again this was conceded to be a question of weight and no failure on the part of the judge to properly take matters into account was demonstrated. 

1. Notwithstanding extensive examination of the transcript, the preparation of expensive appeal books and argument before us, ultimately the matter was not an appropriate one for appeal, and hence the appeal should be dismissed.

1. The respondent sought that if the appeal was dismissed, he should have the costs of the appeal.  In the light of our finding and the nature of our judgment it seems that this is an appropriate order to be made.

Orders

1. We make the following orders:

1.    That the appeal be dismissed.

2.    That the wife pay the husband's costs of and incidental to the appeal to be assessed pursuant to the Family Law Rules 2004 if not agreed.

I certify that the preceding 29 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate

Endnote 1

Grounds of Appeal (as per Notice of Appeal filed 13 April 2005)

1.That the Trial Judge erred by failing to give sufficient weight to the circumstances in which the husband took over the care of the children and maintained that position until the hearing.

2.That the Trial Judge gave undue emphasis to the Wife’s work in the pharmacy prior to the separation and insufficient weight to her reduction in work after the separation, without taking into account the extent of the Husband’s work in his practice both before and after separation.

3.That the Trial Judge erred in not taking into account sufficiently the impracticability that would be occasioned by the amount of travelling time involved in the Orders as made.

4.That in view of the age of the children and particularly the younger child and in view of the desirability of the children spending more time with their Mother as found by the Trial Judge, the Orders as made require the children to spend an undue amount of time with child carers.

5.That the Trial Judge erred in the exercise of his discretion by failing to place the children predominantly in the care of Mother.

6.

Endnote 2
R v. R: Children's Wishes (2000) FLC ¶93-000 per their Honours Nicholson CJ, Finn and Guest JJ at [54],

“However, while those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child's wishes. There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.”