Daniels and Barber (No.2)
[2017] FCCA 457
•20 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DANIELS & BARBER (No.2) | [2017] FCCA 457 |
| Catchwords: FAMILY LAW – Parenting – reconstitution of court allegedly for the purpose of “clarifying” an aspect of a ruling made the day earlier – in reality, the reconstitution was called by the wife so that she could advocate equal time, a point not pressed on the earlier hearing – whether such an approach was disingenuous – orders made the day earlier confirmed – proceeding transferred to the Family Court of Australia. |
| Legislation: Family Law Act 1975 (Cth), s.60CC Federal Circuit Court Rules 2001 (Cth), r.16 |
| Cases cited: Banks & Banks (2015) FLC 93–637 |
| Applicant: | MS DANIELS |
| Respondent: | MR BARBER |
| File Number: | MLC 11303 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 17 February 2017 |
| Date of Last Submission: | 17 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 20 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P O’Shannessy |
| Solicitors for the Applicant: | Mills Oakley Lawyers |
| Counsel for the Respondent: | Mr J Salamanca |
| Solicitors for the Respondent: | Kennedy Partners |
ORDERS
The orders made on 16 February 2017 remain in full force and effect.
IT IS NOTED that publication of this judgment under the pseudonym Daniels & Barber (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11303 of 2016
| MS DANIELS |
Applicant
And
| MR BARBER |
Respondent
REASONS FOR JUDGMENT
Following a half day’s debate on 16 February 2017 I delivered
ex temporereasons for judgment in relation to the single issue on which the parties asked me rule, namely, whether the living arrangements for the children as proposed by the respondent husband Mr Barber (“the husband”) or those as proposed by the applicant wife Ms Daniels (“the applicant wife”) should be ordered.
In the course of ruling in favour of the husband I referred to passages of transcript that had previously indicated to me, and which were a substantial ground pressed by Mr Salamanca of counsel for the husband, that the s.11F consultant, Dr D, favoured the children having equal time with each parent. Elsewhere in the transcript, Dr D expressed a preference for the husband having more time with the children than the wife.
My ex tempore reasons, delivered at 4.15 p.m. on 16 February 2017, were reported at [2017] FCCA 454.
In response to an urgent request for me to reconvene, made by Mr P O’Shannessy of counsel for the wife, at around 1.00 p.m. on 17 February 2017 I reconstituted the court at 2.15 p.m. on that day to hear what I was told was an urgent application. Before going to the matter Mr O’Shannessy raised, let me address a point that logically must be canvassed earlier in time than the substantive matter the wife wanted to ventilate.
The orders pronounced on 16 February 2017 had the effect of implementing the parenting regime urged by the husband. That regime was to last from the date of my order until the trial of this proceeding. I ordered the trial to take place before a judge of the Family Court of Australia by reason of the fact that the heavy burdens currently exerted on my docket meant that a trial of this proceeding estimated to last up to five days, as was the estimate in this case, could not be accommodated before mid-2018.
At 4.15 p.m. on 16 February 2017, I initialled the minute prepared by Mr Salamanca. The minute had not been formalised into a form of order signed by me. In parlance well-known in other jurisdictions, to that point the order had not been “passed and entered” nor had it been “authenticated” and so, for the purposes of the Federal Circuit Court of Australia Rules 2001 (Cth) (“the Rules”), the order had not been made within the meaning of rule 16. For the relevance of that phenomenon, my observations in Stone & Clifford (No. 2)[1] are apposite. So, when at 2.15 p.m. on 17 February 2017 Mr O’Shannessy invited me to reconsider something, there was no reason in law or as a matter of procedure that prevented me from doing so.
[1] [2016] FCCA 3311.
Mr Salamanca alluded to the wife re-agitating the same matter for a second time following my ruling on 16 February 2017 before on a point previously made, so he argued. Initially, it seemed to me the wife was not so much agitating a point on which I had already ruled but rather, that she was genuinely seeking a better understanding of my ruling based on what appeared to be a finding in favour of the husband premised, so she said, on a fact (Dr D’s conclusion) that the transcript did not bear out. Ultimately, Mr O’Shannessy articulated the wife’s position that indicated to me that the wife was in reality seeking to have a second attempt at revisiting the orders I previously made against her. Mr O’Shannessy argued that the wife should have equal time with the children. Unsurprisingly, Mr Salamanca forcefully opposed that new position adopted by the wife, submitting that the wife’s position was disingenuous (his words) and that the point contended for by the wife had been expressly disavowed the day earlier.
It was readily apparent to me that the wife was in fact seeking to put submissions before me at 2.15 p.m. on 17 February 2017 that were quite different to her submissions on 16 February 2017. Whether she was being disingenuous in doing that, I cannot say. But I detected an approach by the wife on 17 February 2017 that appeared to have absorbed a great deal of the matters exchanged in debate between
Mr O’Shannessy and me on 16 February 2017. I also detected that the wife was not so much seeking “clarification” of any reasons given the day earlier as she was seeking a revisiting of the issue with modified submissions, this time in respect of equal time, a proposition she had expressly disavowed the day earlier.
That may or may not have amounted to the wife acting disingenuously – I prefer not to say. But it did cause me to examine whether I was wrong in relying on the passage and at page 11 of the transcript of the psychologist’s evidence[2] when concluding that the children ought to spend time with the husband in accordance with the proposal advanced by the husband. It seemed to me that my conclusion was correct. Let me state why.
[2] Extract of transcript of proceedings of 12 December 2016.
It is true that the psychologist took the view that each parent was focused towards the children and that each parent was, in fact, a good parent. I accept that without reservation. Equally, it is true that the psychologist said in his evidence that equal time was appropriate for each parent. But in my view, other factors pointed to the husband having more time with the children than the wife. It is important to catalogue them.
Not in any particular order, the psychologist referred to the wife’s emotional frailties, in particular her suffering from panic attacks. According to the material filed, and of course I recognise that this was hotly disputed, the wife suffered from panic attacks and had done so since 2014. On one construction of the evidence, her behaviour exhibited symptoms consistent with an hysterical reaction. The evidence revealed that the wife behaved in a manner that may have exposed the children to risk by reason of the fact that the wife’s reaction to seemingly inconsequential day to day events was peculiar. While disputed at a factual level, Mr Salamanca took me to an incident in late November 2016 when the parents met at the children’s school and the wife became hysterical, threatening to call the police, accusing the husband of abducting the children.
Mr O’Shannessy took me to a body of medical evidence that indicated that the wife’s current behaviour was now stable and that any risks associated with her past behaviour had passed. Mr O’Shannessy urged me to look favourably upon that medical evidence.
Mr Salamanca contended that a point arose about whether the wife even referred in her evidence about an episode in (country omitted) during which the wife allegedly suffered from a sustained panic attack. He said I should look cautiously upon the wife’s evidence about that incident and generally, about the medical evidence concerning the wife’s emotional fabric.
The evidence concerning the wife’s emotional state was disputed. I accept that. However, I realise that at the trial of this proceeding that issue will need to be examined in considerable detail and at length.
Conversely, the husband did not bring with him a corresponding amount of complexity. To the contrary. The evidence in relation to the husband revealed that he was a devoted father, that his children loved him and that they were secure and happy in his care. The same could not be said about the wife.
Mr Salamanca also referred to the wife’s unwillingness to communicate with the husband. The psychologist mentioned in his evidence how the wife refused to be in the same room as the husband, something the psychologist found particularly concerning.
True, the psychologist’s initial overall theme was equal time. But I am no more required to order that than I am required to abide the wishes of one parent over the wishes of the other.
On top of that, the children have lived with the husband, happily, for some little time. The conferral of equal time or a regime in accordance with the wife’s proposal of 16 February 2017 would have the effect of significantly altering that. In my view that was not in the best interests of the children.
In debate, Mr O’Shannessy took me to a decision of the Full Court of the Family Court of Australia in Banks & Banks[3] in which the Full Court held that a judge in my shoes, hearing an interlocutory application, is not required to address in reasons for judgment each and every subsection of s.60CC of the Family Law Act 1975 (Cth) (“the Act”). The same point was made in a later decision of the Full Court of the Family Court of Australia in Carlson & Carlson.[4] In argument, neither counsel suggested I needed to refer to the precise requirements of each subsection of s.60CC of the Act. Each maintained that submission despite the fact that I referred the further hearing of this proceeding to the Family Court of Australia and, if either party was minded to appeal, each could raise the issue with the very court to which an appeal would be made in any event.
[3] (2015) FLC 93–637.
[4] [2016] FamCAFC 196.
For the reasons set out above, on 17 February 2017 I restated my decision to make orders in accordance with the husband’s proposal.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 20 March 2017
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