Dacia & Bennington
[2008] FamCAFC 135
•8 September 2008
FAMILY COURT OF AUSTRALIA
| DACIA & BENNINGTON | [2008] FamCAFC 135 |
| FAMILY LAW – APPEAL – From decision of Federal Magistrate – CHILDREN – ADEQUACY OF REASONS – Division 12A proceedings – Federal Magistrate found it was in best interests of child to live with mother – Federal Magistrate ordered child spend less time with mother upon commencing grade one in four years’ time – lack of reasons – whether Federal Magistrate considered s 60CC factors as they might exist in four years’ time – whether Federal Magistrate considered the relationship between child and child’s sibling. Appeal allowed – court declined to re-exercise discretion or remit for re-hearing – final order converted to interim order – liberty to both parties to apply not before twelve months prior to child commencing grade one – applicant to seek other party to attend alternative dispute resolution prior to commencing proceedings – Costs certificate for the appellant pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 – Costs certificate for the respondent pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 |
| Family Law Act 1975, s 60CC, s 69ZQ(1)(f) Federal Proceedings (Costs) Act 1981 |
| A v J (1995) FLC 92‑619 Bennett v Bennett (1991) FLC 92‑191 Gilshannon and Giles [2008] FamCAFC 31 Gronow& Gronow (1979) 144 CLR 513 Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378 King and Finneran (formerly King) (2001) FLC 93-079 Russell v Close (unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993) Rice and Asplund (1979) FLC 90-725 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 |
| APPELLANT: | Ms Dacia |
| RESPONDENT: | Mr Bennington |
| FILE NUMBER: | LEC | 210 | of | 2007 |
| APPEAL NUMBER: | NA | 19 | of | 2008 |
| DATE DELIVERED: | 8 September 2008 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Thackray and Benjamin JJ |
| HEARING DATE: | 7 August 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 February 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 350 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Hogan |
| SOLICITOR FOR THE APPELLANT: | Parker and Kissane |
| COUNSEL FOR THE RESPONDENT: | Mr Burridge |
| SOLICITOR FOR THE RESPONDENT: | Walters Solicitors |
Orders
That the appeal against the orders of Jarrett FM made on 15 February 2008 be allowed.
That paragraph 4 of the orders made on 15 February 2008 be discharged.
That paragraph 3 of the orders made on 15 February 2008 be varied by inserting at the commencement of the order the words “Until further order of the Court,”.
That each party have liberty to apply to the Court at first instance to vary order 3 of the orders made on 15 February 2008, as amended by these orders, with such liberty not to be exercised until 12 months prior to the date on which the child [P], born [in] November 2005, is expected to commence Grade 1.
That as a pre‑condition to either party seeking to exercise the liberty provided for in the previous order, that party shall use their best endeavours to ensure that the other party attends with them on a family dispute resolution practitioner or attend a Family Relationship Centre or some other alternative dispute resolution provider to assist with reaching agreement about any proposed change to order 3 of the orders made on 15 February 2008.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 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 the appellant in respect of the costs incurred by the appellant in relation to the appeal against the orders made on 15 February 2008.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 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 the respondent in respect of the costs incurred by the respondent in relation to the appeal against the orders made on 15 February 2008.
IT IS NOTED that publication of this judgment under the pseudonym Dacia and Bennington is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 19 of 2008
File Number: LEC 210 of 2007
| Ms Dacia |
Appellant
And
| Mr Bennington |
Respondent
REASONS FOR JUDGMENT
[P] was two years old when Federal Magistrate Jarrett made orders in February 2008 concerning the time he is to spend with each of his parents.
[P] was spending two days a week with his father at the time. The Federal Magistrate decided this should be increased immediately to six days a fortnight. He also ordered that [P’s] time with his father be further increased to ten days a fortnight when he starts Grade 1.
[P’s] mother has appealed that part of the orders which will come into effect when [P] commences Grade 1. [P’s] father wants the appeal to be dismissed.
Brief background
[P] was born [in] November 2005.
[P’s] parents commenced a relationship in February 2004. His Honour found that “they have never really lived together save perhaps for some short, sporadic periods”.
At the time of trial, the mother was living with her fiancé, [Mr R], with whom she had a relationship prior to commencing her relationship with [P’s] father.
The mother and [Mr R] have a child, [D], who was 6 years of age at the time of trial. They were living in [a town] (in northern New South Wales) in premises owned by [Mr R’s] mother.
The mother was not employed. [Mr R] was working six days a week, sometimes up to 12 hours a day.
The father was also residing in [the town] on what his Honour described as a “more or less permanent basis”, together with his new partner, [Ms G]. They have a child, [Z], who was about 7 months old at the time of trial.
The father was not working, but was intending to find work in [the town]. His Honour found that the father had “a predisposition towards being gainfully employed” and would be likely to find employment should he seek it. [Ms G] was not working.
At the time of trial, [P] was living with his father each week from 3.00 pm Friday to 3.00 pm Sunday pursuant to interim orders. The rest of the time he lived with the mother, [Mr R] and [D].
The father’s proposal at trial was that [P] should live predominantly with him and spend time with the mother from 3.00 pm Friday to 3.00 pm Sunday in one week and from 3.00 pm Thursday to 3.00 pm Friday in the following week. In the alternative, the father sought that [P] live with both parents equally. Initially, this was to be on the basis that [P] would spend part of each week with each parent but from the time he commenced kindergarten it was proposed the shared care arrangement be on a “week about basis”.
There was some issue concerning the way in which the mother had particularised the orders she was seeking; however, his Honour indicated that he was approaching the matter on the basis that her proposal was for [P] to live primarily with her and spend each alternate weekend with the father.
The matter proceeded to trial on 15 February 2008, following which his Honour gave an ex tempore judgment. The orders he made were in the following terms:
1.That all previous parenting orders in the matter be hereby discharged.
2.That except as otherwise provided for in these orders the parents shall have equal shared parental responsibility for the child [P] born [in] November 2005 (“the child”).
3.That until the child starts Grade 1 he shall live with the father and spend time with the mother from 3.00pm on Wednesday until 3.00pm on Sunday in the first week and from 3.00pm on Wednesday until 3.00pm on Friday in the second week of each fortnightly cycle commencing the week of Sunday 17 February 2008.
4.That upon the child commencing Grade 1 he shall live with the father and spend time with the mother on each alternate weekend commencing after the first complete week of school from after school Friday until before school Monday in the first week and from after school Thursday until before school Friday in the second week.
5.That upon the child commencing Grade 1 he shall spend the first half of the gazetted school holidays with the father in the first year and each [alternate] year thereafter and the second half of the gazetted school holidays with the mother in the first year and each alternate year thereafter.
…
9.That neither party consume illicit drugs or alcohol when the child is in their care.
…
11.That within twenty-four (24) hours of the date of this order, the mother and [Mr R] forthwith attend upon a General Practitioner to obtain a referral to a reputable pathologist in the local area for the purposes of undertaking supervised urine analysis testing for illicit drug and alcohol abuse. Such tests are to be verified by a certificate to include a temperature endorsement thereon, with a copy of the certificates so obtained to be forwarded to the solicitors for the father within twenty-four (24) hours of receipt of said certificate.
12.That the mother and [Mr R] undergo such supervised urine analysis testing as set out above as requested by the father through his solicitors, such requirement to be no greater than one (1) test every three (3) months, such tests to be completed within twenty‑four (24) hours of notification of such requirement.
13.That each party has liberty to apply.
…
The Federal Magistrate’s judgment
As no complaint has been made about his Honour’s analysis of the relevant legislative provisions, we will refer only to his findings of fact and the reasons he gave for his decision.
His Honour found that the mother was a long-term marijuana user. He recorded her statement to the family consultant that although she had reduced her use “significantly” after [P’s] birth, she continued to smoke five or six “cones” every second day.
His Honour noted the evidence of the family consultant that the mother’s marijuana use “had the potential to place the children at risk because she was either not physically available for the children or … emotionally available to them when she was “stoned” ”. He also noted the opinion of the family consultant that it was unlikely the mother would be able to cease using marijuana without therapeutic intervention. His Honour accepted the evidence of the family consultant and said he was not satisfied it was likely that the mother would refrain from marijuana use in the future.
His Honour found that [P] had a good relationship with both his mother and his father. He noted there was no evidence to indicate that the contact between [P] and his father had “been anything other than a positive experience for [P]”.
Although both parties acknowledged their relationship was characterised by episodes of violence, his Honour found this was not “as significant as some other issues in the case” and observed that both parties were of the view that they should have equal shared parental responsibility notwithstanding the violence. His Honour therefore found he was “not concerned about this issue in terms of [P’s] welfare”.
His Honour was, however, most concerned about the mother’s drug use and said (at paragraph 51):
There are risks for [P] in my view in the mother’s household presented by what I have found to be her drug use and the likelihood of her recommencing or perhaps continuing her drug use. She will be, in my view, inattentive to [P’s] needs, both physically and emotionally.
His Honour went on to refer to evidence which he said indicated that the mother had already been inattentive to [P’s] needs. He said this evidence tended to indicate “that there are some effects for [P] of the mother’s continued marijuana use and that she might not be as available physically or emotionally to [P] as she might otherwise be”.
Having considered further issues associated with the financial impact of the mother’s drug use, his Honour turned his attention to the relationships between [P] and the mother and other members of the mother’s household. In this regard, his Honour noted that “perhaps the single most important factor in the mother’s case … is that [P] has always lived with her”.
He went on to record that the family consultant had recommended an outcome similar to that being proposed by the mother at trial. He noted that she had come to that view because she thought it was of critical significance that [P] on had always lived with his mother, who was his primary attachment figure. The family consultant had also taken into account that [P] was attached to [Mr R] and to [Mr R’s] mother.
His Honour accepted the family consultant’s assessment of the strength of the relationship between [P] and his mother and between [P] and [Mr R]; however, he doubted her assessment of the strength of the relationship with [Mr R’s] mother.
His Honour also did not accept the family consultant’s assessment of the strength of the relationship between [P] and [D]. He found that her assessment was based upon “nothing other than assumption”. He said that although [D] had attended interviews for the purposes of the preparation of the family report, no observation had been made by the family consultant to provide a basis for her assessment of the relationship between the two boys.
His Honour went on to say:
63.That is not to say they do not have a relationship, they are after all half‑siblings, they live in the same household and I have no doubt they have spent considerable time together. It is probably fair to say that there is some attachment between the two.
His Honour then noted that he did not accept the view of the family consultant that “the risk of disrupting the mother’s primary attachment with [P] was not worth taking …” He said:
64.… I disagree with her for these reasons: first of all there was very little, if any, exploration by [the family consultant] of the mother’s drug use with the mother. Although the mother candidly told [the family consultant] about her drug use it was not explored in any fashion or in any meaningful fashion by her. It seems, with due respect to [the family consultant], to have been ignored. It seems also that perhaps [the family consultant] took the mother at face value when she said that she was going to abstain or at least commence a course of therapy, treatment or counselling designed to assist with her drug addiction. In my view [the family consultant] simply has not weighed in the balance in her assessment the risks for [P] presented by the mother's household and environment.
65.For those reasons I do not accept [the family consultant’s] assessment that it is in [P’s] best interests to remain living with his mother simply on the basis of the strength of the primary attachment. There are risks in disrupting that attachment. [The family consultant] identified the risks in her evidence. [P] might become more wary of adult relationships and that will affect him not only as a child but as an adult. He might not form an attachment with his father at all and he might not form an attachment with [Z]. He will grieve the loss of his significant attachment with his mother and the grief process may take some time to work through.
66.They are all possibilities for [P]. They were expressed by [the family consultant] without the benefit of, it seems to me, knowing that neither party makes complaint about the strength of the relationship now or the benefit of the contact that has been occurring between [P] and his father and so, doing the best that I can, it seems to me that whilst they are possibilities for this child, they are nothing more than possibilities.
67.I am firmly of the view that the detriments that flow from the mother’s drug use, even though she says she has stopped, are more than possibilities but are on the evidence probabilities. … Having regard to those detriments, it seems to me that something like the father’s proposal provides protection against those issues and is of greater benefit to [P] than the mother's proposals.
His Honour then went on to deal with other relevant factors referred to in s 60CC of the Family Law Act 1975 (“the Act”).
He found that the father had the capacity to meet [P’s] physical, emotional and intellectual needs. He said that although the father’s proposal to find full‑time employment meant “the lion’s share of child caring responsibilities” would be left to [Ms G], this was probably a good thing as working to support his family would make the father a “proper and appropriate role model for [P]”.
His Honour went on to make adverse findings concerning the mother’s “significant criminal history”. Although the history was described by his Honour as being of “minor offences”, he said that “her criminal history and her traffic history is extensive”. This led his Honour to conclude, along with her continued marijuana use, that the mother was likely to be “a poor role model for [P] in that respect”.
Having made all of these findings, his Honour then turned to give his reasons for his ultimate decision. We repeat them in full below:
76.Having regard to all of those matters, I am satisfied that a proposal which would see [P] living more time in his father's household than in his mother's household is in [P’s] best interests but there are some matters that need to be carefully considered. He is very young and she is his primary attachment figure.
77.The father's orders, insofar as he in the alternative proposes that there be something of a shared time between the households, reflects in my view a sensitivity to those issues; that is, [P’s] age and his attachment to his mother. It seems to me that those orders present an appropriate way of dealing with those issues provided one can be satisfied that the risks associated with the mother's drug use are either minimised or eliminated.
78.I need to make it clear that the view I have come to is not based solely on the mother's drug use, but the other matters to which I have referred: her attitude as a parent, and the other issues to which the evidence has drawn my attention and so, it might be the case that in six or 12 months' time the mother can demonstrate that she has dealt with her drug use but that of itself, in my view, will not answer some of the concerns that surround her household as I have already indicated.
79.Notwithstanding those comments, I think it appropriate to impose upon the mother and her partner, [Mr R], some random drug testing regime which they indicated during the course of the trial they would agree to, albeit in a slightly different context, but which I think in the context of the current findings is still appropriate.
80.Thus, until [P] commences school it is appropriate, it seems to me, for him to spend time with both of the parents as much as possible and provided his safety can be safeguarded by the mother abstaining from marijuana and providing evidence to the father to that effect.
81.Once he commences grade 1 however, it is appropriate, in my view, for some more stability to be introduced into his life and for him to live most of the time with his father and to spend alternate weekends and some time in the off week with his mother, that is, to spend some substantial and significant time with her.
His Honour then went on to pronounce his orders, the relevant parts of which have been set out earlier in these reasons.
The Grounds of Appeal
At the commencement of the hearing we gave leave to the mother to rely upon a further amended Notice of Appeal, the grounds of which were in the following terms:
1.His Honour erred in placing undue weight on the mother’s history of use of marijuana.
2.His Honour erred in placing insufficient weight on the fact of the mother and her partner obtaining urinalysis results showing an absence of cannabinoids.
3.His Honour erred in rejecting (at par 64 of the judgment) the view of the report writer, favourable to the mother, on the basis that the report writer did not explore adequately if at all the mother’s drug use.
4.His Honour erred in placing insufficient weight on the significance of the child’s relationship with his sibling [D].
5.His Honour erred in rejecting (at par 62 of the judgment) the report writer’s assessment of the strength of the relationship between the child [P] and his half sibling [D].
6.His Honour erred in placing undue emphasis on the hearsay evidence of the father as to how the mother presents the child to day care (par 52 of the judgment), and further erred in placing insufficient, if any, weight on the mother’s evidence in that regard.
7.His Honour erred in placing undue emphasis on the issue of the child’s alleged constipation (pars 53 & 54 of the judgment), in the absence of medical evidence of any particularity.
8.His Honour erred in placing undue emphasis on the mother’s criminal record (pars 72, 73, 74 & 75 of the judgment).
9.His Honour erred in making orders 3 & 4 by reason that they are contradictory in that order 4, which is to operate from the time the child is in Grade 1, is, on His Honour’s reasoning, to protect the child from the risk of the mother, yet for the period of more than two years between the date of the orders and the child commencing Grade 1, His Honour has ordered (order 3) that the child reside with the mother for a greater period.
Grounds 1 to 8 – matters of weight
Counsel for the mother, in her written submissions, identified Grounds 1 to 8 as amounting to assertions of error in the weight his Honour attributed to the various matters mentioned. Counsel acknowledged the difficulty inherent in appeals directed to matters of weight, but submitted that when regard was had to the entirety of the matters, his Honour erred in placing the weight he did upon the matters particularised. This was said to be so especially in light of his Honour’s conclusion that it was in [P’s] best interests for him to spend six nights in every fortnight living with the mother until he starts Grade 1.
The only specific proposition made in the written argument of counsel for the mother relating to these eight grounds was that his Honour should have considered the likely impact upon [P’s] relationship with his mother and [D] of the regime which was to commence when he started Grade 1. It was submitted his Honour had not done so, or, if he had, he failed to outline his process of reasoning and had therefore fallen into error.
In her oral submissions, counsel for the mother once again acknowledged the difficulties inherent in her argument, especially in light of the fact that no challenge had been made to paragraph 3 of his Honour’s orders. She nevertheless did not go as far as to formally abandon these grounds.
In our view, counsel for the mother was right not to press these grounds. Nothing that was advanced before us and nothing we have examined in the course of consideration of this appeal persuades us that his Honour placed undue weight on any of the matters about which complaint is made. Furthermore, as Stephen J said in Gronowv Gronow (1979) 144 CLR 513 at 519-520:
While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. 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.
Ground 9
This was the ground primarily relied upon by counsel for the mother.
The mother’s submissions
In her written submissions, counsel for the mother drew attention to the portion of his Honour’s judgment in which he said that a roughly equal shared care arrangement represented “an appropriate way of dealing with those issues provided one can be satisfied that the risks associated with the mother’s drug use are either minimised or eliminated”. Counsel submitted that in referring to “those issues”, his Honour had in mind that [P] was very young and that the mother was his primary attachment figure. In the context of the judgment, we agree this is what his Honour did have in mind.
Counsel for the mother went on to note that paragraphs 11 and 12 of his Honour’s orders were clearly designed to minimise or eliminate the risks associated with the mother’s drug use. She submitted that his Honour must have been satisfied that these orders were in the child’s best interests and would achieve the objective.
Counsel for the mother then submitted that the terms of paragraph 4 of his Honour’s orders (i.e. the provision requiring a further increase in the father’s time when [P] commenced Grade 1) were inconsistent with the conclusion he had reached that it was in [P’s] best interests that he live with the mother six nights per fortnight until he commenced Grade 1.
Counsel went on to assert that given the evidence of the father that [P] was “fed and is the right weight and has got a good house to live in [and] had been a reasonably happy kid”, it was incumbent upon his Honour to explain fully the basis for his conclusion that it was in [P’s] best interests that the time he spent with the mother be significantly reduced when he started Grade 1. It was submitted there was nothing in his Honour’s reasons to explain this part of his decision, save for the comments contained in paragraph 81 of the judgment that it was “appropriate” for some more “stability” to be introduced into [P’s] life.
It was further submitted that his Honour made no mention of the matters upon which he relied in coming to his conclusion that the father’s household would provide more “stability” for [P] than the mother’s household. It was also submitted that his Honour failed to consider the impact of paragraph 4 of his orders on [P’s] relationship with [D]; or if he did he failed to give any reasons about that matter. It was argued that “at its highest” his Honour’s reasons dealt with the relationship currently existing between the two boys but that nowhere did his Honour consider the impact upon [P] of a separation from his half brother some four years in the future.
During the course of oral submissions, we were advised by counsel for the mother (without demur) that [P] would not commence Grade 1 until 2012. Counsel expanded on her written submissions by asserting there was nothing in his Honour’s reasons to indicate that he gave any consideration to the s 60CC factors as they might exist in 2012. She suggested the reason for this was that there was no evidence on which his Honour could have made such an assessment.
Counsel for the mother also drew attention to the fact that [P’s] time with his mother would be reduced upon commencement of Grade 1 not only by the impact of paragraph 4 of the orders but also because [P] would be at school for part of the time he would otherwise have been with her. Counsel noted that his Honour’s intention was to provide greater stability; however, the effect of paragraph 4 of the orders was there would be less stability because [P’s] time with his mother would be reduced to four nights a fortnight at precisely the same time as he would experience a reduction in time with her as a result of commencing full‑time school.
The father’s submissions
Counsel for the father commenced his written argument in reply by saying:
Ground 9 complains that certain orders of the learned Magistrate are “contradictory”. This is an unusual ground of appeal but may be a complaint as to a perceived absence of logic or reason. If so, such a complaint is difficult to reconcile with a best interest test. It is not said that although the orders were contradictory, that the orders in question were not otherwise in the child’s best interests.
Dealing with the mother’s complaint that his Honour had not considered and outlined the likely impact of separation of [P] from [D], counsel for the father again noted that this was an argument concerning the adequacy of reasons notwithstanding that such had not been included as a ground in the Notice of Appeal. In any event, counsel observed that his Honour had discussed the sibling relationship and had rejected the family consultant’s assessment of the strength of that relationship.
Counsel went on to submit that in paragraphs 64 to 66 of his reasons, his Honour had considered the implications associated with the disruption of [P’s] attachments and it was submitted that in doing so “his Honour was also likely considering the implications for the siblings”. It was submitted that his Honour was not required to detail every factor or make explicit every finding and that it was to be inferred from his conclusion generally about attachment issues that “any disruption to a sibling attachment would be outweighed by the risk of the mother’s ongoing drug use”. It was submitted that such an inference was “appropriately clear” and reference was made to Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378, Bennett v Bennett (1991) FLC 92‑191 and A v J (1995) FLC 92‑619.
Counsel for the father further submitted that his Honour had been called upon to draw conclusions as to the likely future behaviour of the mother based on a number of facts as found by him. He submitted that those findings “then shaped the parenting orders as the child moved from early childhood to school” and that his Honour had not been concerned “so much with logic but the reality of the mother’s ongoing drug dependence … in the context of the various considerations under s.60CC including the desirability of the child having a meaningful relationship with both parents”.
Counsel went on to submit that his Honour was “not constrained when determining best interest only to make orders which consistently followed each other”. In support of this proposition counsel relied upon the decision of the Full Court in Russell v Close (unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993).
Counsel for the father next responded to the submissions concerning his Honour’s alleged failure to explain fully why a reduction in the time [P] spent with the mother once he started school was consistent with his best interests. Counsel noted that it had been argued on behalf of the mother that in light of the orders for the mother and [Mr R] to undergo drug testing, his Honour should have been satisfied that risks associated with the use of drugs would be minimised or eliminated. It was submitted on behalf of the father that at the centre of the mother’s argument were assumptions that:
the risks to the child are consistent over time and the child faces no different a risk whether the child is 2 years or of school age and that a reduction in the use of drugs would mean that the child would not be exposed to an unacceptable risk.
It was submitted that such assumptions were not supported by the evidence. It was noted that his Honour had detailed the current risks for [P] and that he had concluded that the father provided protection against such risks. Counsel for the father concluded that “his Honour was entitled to conclude that the lack of stability associated with the mother is likely to have a greater impact on the welfare of the child once he starts school” and he referred in particular to paragraph 81 of his Honour’s reasons.
In light of all these matters, it was submitted that no appealable error had been established in the exercise of a discretionary judgment.
Discussion
We accept there is substance in the submission made by counsel for the father that much of the mother’s argument relates to the adequacy of his Honour’s reasons, whereas Ground 9 only attacks alleged contradictions within the orders. We do not, however, consider this is fatal to the appeal. Counsel for the father properly identified the real gravamen of the complaint as being directed to a perceived absence of logic or reasons and we intend to deal with the ground on that basis.
We consider there is substance in the mother’s complaints. It is not clear to us why his Honour decided that increasing the time [P] spent with his father and decreasing the time he spent with his mother upon commencement of Grade 1 would result in him having “more stability … introduced into his life”, and a variety of reasons can be postulated.
It may be, for example, that his Honour was of the view that an (almost) shared care arrangement was inherently less stable than one where [P] spent primarily weekend and holiday time with his mother and that it would be best that such an arrangement ended when [P] started his formal education.
It is also possible his Honour considered that the lifestyle likely to be provided by the father (and [Ms G] if they were still together) would be more stable than the type of lifestyle that [P] would experience if he was to live half the time with his mother (and [Mr R] if they were still together).
Assuming one or other of these premises, it is also conceivable that his Honour was influenced by the fact that [P] was only 2 years of age at the time of trial and that the risks associated with disrupting his primary attachment with his mother (as found by his Honour) were such that it was necessary in his best interests to manage the transition into his father’s care in two stages – the first of which was to last for four years.
During the course of hearing before us, one member of the Bench suggested to counsel for the mother that “reading between the lines” of his Honour’s judgment, the matters to which we have referred in the previous paragraphs would have been the type of matters his Honour took into account. Counsel for the mother responded to this suggestion, in our view correctly, by saying that it was unsatisfactory in a matter as important as this to have to speculate about his Honour’s reasons by “reading between the lines”.
We therefore consider his Honour fell into error in failing to identify the basis upon which “more stability” would be introduced into [P’s] life as a result of the change in arrangements mandated by paragraph 4 of his orders in four years’ time.
We must add that we consider any attempt to predict what arrangement was most likely to provide “stability” as far in advance as 2012 was fraught with difficulty.
In coming to this view, we have in mind, for example, his Honour’s findings that:
• The parties themselves had never lived together “save perhaps for some short, sporadic periods”;
• Their relationship was characterised by violence;
• After the parties had commenced their relationship, and after they had separated, the father “travelled backward and forward between [the town] and Brisbane”;
• Whilst the father has now moved to [the town], he lives there only “on a more or less permanent basis”;
• Although the father has a partner who is described as “new”, they already have a 7 month old child;
• The father’s new partner had acknowledged to the family consultant that she had had “some hesitation” in taking [P] into her home – albeit her own child was only about one month old at the time and his Honour accepted that things “have moved on since then”; and
• The father had not been working, but proposed to do so on a full‑time basis and would therefore only be able to care for [P] by leaving the “lion’s share of child caring responsibilities” to his new partner, who already has a young child.
Conversely, the arrangement for joint parenting may be working so well for [P] that a diminution in time with his mother would not provide stability, even though he will be commencing school.
It is when the various future possibilities arising from a new and changed arrangement being implemented now are considered, that it becomes obvious his Honour could not have adequately predicted what arrangement would be in the best interests of [P] in four years’ time.
We accept, as was said by Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Co (supra) that the trial judge’s duty to state reasons for decision “does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding”. However, it is necessary that the essential ground or grounds upon which the decision rests should be articulated in order that the appeal court is able to ascertain the reasoning upon which the decision is based: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA; Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 per Gray J and Bennett v Bennett (1991) FLC 92-191.
We are not satisfied that his Honour adequately articulated the basis for his decision since we are unable to discern the process of reasoning he followed in making paragraph 4 of his orders and the various factors under s 60CC he relied upon.
We also consider there is substance in the submission that his Honour failed to consider the likely impact upon [P] of being removed in 2012 from the company of [D] for all but alternate weekends, one evening in the alternate week and half of school holidays. We accept that his Honour made findings in relation to the strength of attachment between [D] and [P] at the time of trial in that he found it was “probably fair to say that there is some attachment between the two”; however, his Honour did not go on to consider what might reasonably be anticipated to be increasing levels of attachment as the boys matured during the four years that will elapse before [P] starts Grade 1.
In coming to our decision, we have not overlooked the fact that his Honour was giving his reasons ex tempore. His Honour’s judgment was well structured and his clear exposition of the law did not attract complaint from either party. However, even with an ex tempore judgment, it is necessary that the parties and the appellate court can understand the process of reasoning by which the ultimate decision is reached and we have reluctantly concluded that his Honour did not achieve that objective in relation to paragraph 4 of his orders.
Re‑exercise of discretion
Counsel for the mother submitted that in the event the appeal succeeded the matter should not be remitted for further hearing but that paragraph 4 of the orders should simply be discharged. Counsel for the father submitted that the matter should be remitted and asserted that in the event of a rehearing a “body of evidence is likely to emerge” concerning what has happened since his Honour made his orders.
We do not consider it would be appropriate to remit the matter for rehearing. No challenge has been made to the orders relating to the present arrangements for [P]. Any evidence of events occurring since the time of trial would be unlikely to be of great assistance in assisting a trial judge to determine what would be the appropriate order to make in lieu of paragraph 4 of his Honour’s orders, which is the only order we propose to set aside.
Nor are we are not attracted to the proposition that we should simply discharge paragraph 4 of the orders altogether. Were we to do so, the father would arguably need to show changed circumstances prior to being able to seek any change to the existing shared care arrangement (Rice and Asplund (1979) FLC 90-725; King and Finneran (formerly King) (2001) FLC 93-079; Gilshannon and Giles [2008] FamCAFC 31). We do not consider that to be a satisfactory outcome given the adverse findings his Honour made concerning the mother. In light of his Honour’s findings, we do not consider any artificial obstacle should be placed in the way of an appropriate review of the existing arrangements at around the time [P] is due to commence Grade 1.
We consider the better course is to convert paragraph 3 of his Honour’s orders into an interim order and to give liberty to both parties to apply to vary the order, with such liberty not to be exercised until 12 months prior to [P] commencing Grade 1. This time schedule would permit an application to be determined prior to the time at which his Honour considered there should be some change in [P’s] living arrangements.
We note that the proceedings were conducted pursuant to the less adversarial processes prescribed by Division 12A of Part VII of the Act. Section 69ZQ(1)(f) provides that if the Court considers it appropriate the Court must encourage the parties to use family dispute resolution or family counselling. We consider that a pre‑condition of either party seeking to exercise the liberty to relist the matter for variation of paragraph 3 of the orders would be for that party to have used their best endeavours to ensure that the other party attends with them at a Family Relationship Centre or some other alternative dispute resolution provider in an effort to agree any changes in the existing arrangements.
Costs
Both counsel sought certificates pursuant to the Federal Proceedings (Costs) Act 1981 in the event that the appeal succeeded on a question of law. The appeal has succeeded on a question of law and we consider it is appropriate that certificates for this appeal be granted to both the mother and the father.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 8 September 2008
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