Daniels & Jennings - [2008] FamCAFC 94

FAMILY COURT OF AUSTRALIA

DANIELS & JENNINGS

[2008] FamCAFC 94

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – With whom a child spends time – Child’s views – Interim parenting orders provided the time that the children were to spend with their father – Mother appealed – Appeal conceded by father in relation to the older daughter aged 15 – Whether the order that provided for the younger daughter, nearly 12, to spend week-about with the father should also be set aside – Whether the Federal Magistrate followed the approach mandated by s 65DAA and Goode & Goode – Whether the Federal Magistrate failed to give any or sufficient consideration to the views of the children – Whether the Federal Magistrate failed to give any or sufficient consideration to the evidence of the family consultant regarding the anticipated psychological and/or emotional harm to the children of orders compelling them to live with the father – Appeal consented to in part – Appeal allowed in part – Matter remitted to Federal Magistrate for further consideration

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Application to adduce further evidence – Application dismissed

FAMILY LAW - APPEAL – From decision of Federal Magistrate – Costs of the appeal – Costs certificates granted but not for rehearing

Family Law Act 1975 (Cth), s 60CC, s 65DAA
Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 9

Goode & Goode [2006] FamCA 1346

APPELLANT:

MS DANIELS

RESPONDENT:

MR JENNINGS

APPEAL NUMBER:

2008

FILE NUMBER:

BRC

14482

2007

DATE DELIVERED:

4 July 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

27 June 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 March 2008

LOWER COURT MNC:

[2008] FMCAfam 558

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Foley

SOLICITOR FOR THE APPLICANT:

McMillan Kelly & Thomas Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr P B Walsh

SOLICITOR FOR THE RESPONDENT:

Springfield Legal Service

Orders

That, by consent, insofar as order 2 of the orders of Spelleken FM made on 7 March 2008 relates to the time that the child [B Jennings] born [in 1993] spends with the father:
(a)the appeal be allowed; and
(b)that part of the order be set aside.
That the application to adduce further evidence in support of the appeal be dismissed.
That the appeal against the balance of order 2 be allowed.
That the issue of interim parenting orders in respect of the child [C Jennings] born [in 1996] be remitted to Spelleken FM for further consideration.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 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 mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the respondent father in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Daniels & Jennings is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 29 of 2008
File Number: BRC 14482 of 2007

MS DANIELS

Appellant

And

MR JENNINGS

Respondent

REASONS FOR JUDGMENT

The interim parenting order of Federal Magistrate Spelleken under appeal provides for the time that each of the two daughters of Mr Jennings and Ms Daniels are to spend with their father.
In light of developments post-order, Mr Walsh, solicitor for the father, concedes that the appeal should succeed insofar as it challenges the order for B, now 15 years of age, to spend time from after school on Friday to before school the following Wednesday, in each alternate week, with the father. The remaining question is whether the order that provides for C, now nearly 12 years of age, to spend week-about with the father, should also be set aside.
Of itself, variation of the order with regard to the older daughter provides some impetus for a reconsideration of the order with regard to the younger child. Even if the appeal was to be dismissed, that reconsideration might well occur by way of an application for variation. Thus, the appeal has lost some purpose. However, in the end, I have concluded that the appeal should be allowed, on the basis that, though Spelleken FM identified all relevant factors relating to the question she posed for herself, she wrongly framed that question.
In the first paragraph of her reasons for the order under appeal, Spelleken FM nominated that her decision was “…about what, if any, changes should be made at the moment to the time the girls spend with the father prior to a Legal Aid conference and the preparation of a family report.” As I will explain, there is a real prospect that that approach amounted to an error of principle.
An application to adduce further evidence in support of the appeal has diminished in significance because of the concession with regard to the order relating to B but, as will be later explained, Mr Foley, counsel for the mother, endeavoured to make some use of it.
The issue of parenting orders first came before Spelleken FM on 19 February 2008. However, as the learned Magistrate observed in her reasons:
2.…the mother, father and children have been involved in litigation in relation to these issues for some years. …
The Federal Magistrate adjourned the matter until 28 February 2008 and made orders that on that date would enable her to receive an oral report from a family consultant.
Notwithstanding the long history of litigation, under a parenting plan from about December 2005, the children lived with each parent week-about, Friday to Friday, until 19 December 2007. However, as a result of an incident in the father’s home at that time, the children were collected by the mother from the father’s home and the arrangement for the children to spend week-about with the father broke down. Indeed, the children spent no time with the father between then and the first court date before Spelleken FM.
The mother’s case before Spelleken FM was:
That the children do not want to spend time with the father, that they are scared of him and that he has yelled and sworn at them.
Spelleken FM found:
10.Ms [M], in her oral report, certainly referred to the children having had an adverse reaction to their father’s new relationship. …
In her reasons, the learned Federal Magistrate referred herself to the decision of the Full Court in Goode & Goode [2006] FamCA 1346. Apparently in recognition of that decision, she said that the first step was to identify the competing proposals of the parties and that she must then identify the issues in dispute, followed by a consideration of the relevant parts of s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
The learned Magistrate said:
15.I have also taken into account that this is an interim hearing and that the living arrangements that were in place for the children until

19 December last year had been in place for about two years. In that regard, I would have thought that Mr Walsh may have argued that there was a preliminary question to be decided here before the Court embarked on a hearing about varying the living arrangements for the children, however the “Rice v Asplund test” was not raised. In any event having heard from Ms [M] it seems that this is an appropriate matter for the Court to consider whether the current arrangements need to be changed in the children’s best interests.
16.Turning then to the relevant parts of s.60CC and firstly the primary considerations referred to in s.60CC(2)(a) the benefit to the children of having a meaningful relationship with their parents, despite what the mother says about a fracturing in the relationship between the children and the father, it was certainly Ms [M]’s opinion, which I accept, and from the subpoena documents from the children’s school it seems clear that it is important for the girls to have a meaningful relationship with each of their parents. This is a primary consideration and therefore significant but it is also in my view the most significant of the matters that I need to take into account at this time in determining the arrangements for the girls between now and a further hearing of the matter.
17.In that regard, although I accept that any interim Orders I make now will not decide the final Order I make, I am concerned that if I was to make the Orders proposed by the mother and significantly reduce the time the girls spend with their father, that this could have a significant impact for the girls and their relationship with the father. It also seems to me that by making those Orders I would be sending a message to the children that the Court thought it was appropriate for them to be spending far less time with the father.
The Federal Magistrate then turned to the second of the primary considerations, namely the need to protect the children from physical or psychological harm or abuse but was satisfied that the children were not at risk of harm in their father’s care. She did find that the children needed to be protected from the ongoing conflict between their parents.
In considering the children’s wishes and what the family consultant said of them, the learned Federal Magistrate said:
20.I am prepared to place some weight on Ms [M]’s comments in relation to [B] and her wishes given her age and the level of her stress that Ms [M] explained, however I am not prepared to place the same weight on Ms [M]’s comments about [C]. Ms [M] did not say that [C] was getting stressed to the same extent as her older sister.
Spelleken FM then said that she had regard to “the documents from the children’s school” and concluded:
21.… Those documents suggest to me that there is a possibility that although [C], and to an extent [B], may be telling their mother and others that they do not want to spend time with their father, they, but particularly [C], may in fact be happy to spend time with him.
And she later said:
26.I am therefore also concerned that if the Court was to make the Order proposed by the mother it might be sending her the wrong message as to what the Court expects of her. The mother should be left in no doubt that it is important for the children to have a meaningful relationship with the father. I am concerned that if I was to significantly reduce the time the children spend with their father until the final hearing, given her attitude to the children having a relationship with their father that it could be dire for that relationship.
27.In relation to the impact on the children of any change to their arrangements, I am also concerned that if I was to make the Orders as proposed by the mother now, it may be very difficult for the children to then adjust to another arrangement after a final hearing if I made a decision for example to put back in place anything like the equal shared arrangement that was in place for them prior to 19 December 2007.
With regard to the differential orders that she ultimately made for each of the children, in the penultimate paragraph of her reasons, Spelleken FM said:
29.… Although I accept Ms [M] raised some concerns about such an Order, I am not satisfied that it was to the extent that it should prevent me at this time, at least trying different arrangements for the girls. In this regard I have also taken into account the difference in their ages and development.
As to why the learned Magistrate’s approach was, on its face, wrong, Order 4 of the orders made by Spelleken FM (not an order under appeal) provided that the mother and father “have equal shared parental responsibility for the children”. Thus, the application of s 65DAA of the Act was triggered and the Federal Magistrate was obliged to consider “equal time” and “substantial and significant time”. As the Full Court said in Goode & Goode (supra):
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. (emphasis added)
73.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
74.We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.
In my view, in framing the essential question for herself as whether “…any changes should be made to the current arrangements for the children” the learned Federal Magistrate did not expressly follow the approach mandated by the Act and described in the passages just quoted from Goode and Goode (supra).
In relation to an exchange during the hearing about the real question to be decided, during which Spelleken FM expressed her views in terms similar to the way she framed that question in the judgment, Mr Foley very fairly conceded that the learned Federal Magistrate might have been using “judicial shorthand”, in other words, while mindful of the “long” route required by the Act, only speaking of the “real” question to which that route would ultimately lead. I have considered whether such a conclusion might be open with regard to the judgment. I cannot exclude that possibility, but that is not enough to deny merit to the appeal. I would, in my view, need to be satisfied that, by implication, the shorthand approach described was that taken by the Federal Magistrate. Possibility does not equate to implication, particularly when another possibility, namely error of principle, is an at least equally available implication.
Mr Foley did not actually argue error of principle quite as I have found it. He raised the matter of the starting point chosen by Spelleken FM, namely whether there ought be change from pre-existing arrangements, in arguing that the learned Federal Magistrate may thereby have unduly narrowed her enquiry, thus giving insufficient weight to the children’s wishes. Questioned by me as to whether that argument fell within the grounds of appeal, Mr Foley suggested that it did, under ground 2. There were only three grounds of appeal. Ground 1 related to the failure to give adequate reasons, but was abandoned. Ground 2 asserted a failure to give any or sufficient consideration to the views of the children and ground 3 that the learned Federal Magistrate failed to give any or sufficient consideration to the evidence of the family consultant regarding the anticipated psychological and/or emotional harm to the children of orders compelling them to live with the father.
I accept that the argument put by Mr Foley arguably fitted within ground 2 and Mr Walsh made no complaint that it did not.
As I indicated at the outset, in my respectful view, once she had posed for herself the commencement point of her enquiry, all of the learned Federal Magistrate’s reasoning was cogent. Indeed, had the correct enquiry been conducted, this reasoning may have resulted in the same orders. However, I am satisfied that in framing the enquiry in terms of whether any change to the “status quo” was advisable, Spelleken FM made an error of principle.
The further evidence put forward by Mr Foley comprised two short affidavits by the mother. She deposed that, since the interim orders were made, B had “flatly refused” to visit her father despite the mother’s best efforts to encourage her do to so. However, she also deposed:
6.[C] has spent time with her father in accordance with the order. She has said to me that she does not want to go and she misses her sisters, [B] and [L].
The second affidavit of the mother deposed to B more recently spending an overnight with the father after an argument with the mother, but otherwise refusing to spend more time with the father.
Notwithstanding the concession in relation to the order with regard to B, and that most of the further evidence related to that child, Mr Foley pressed the receipt by me of the further evidence. He argued that it demonstrated that the Federal Magistrate was wrong with regard to the order relating to B and therefore more likely to be wrong with regard to the treatment of C’s wishes and the order relating to her. I think the decision, either way, regarding the further evidence unlikely to be of significance to the outcome of the appeal. However, I do not accept that the possible significance of it indicated by Mr Foley is sufficient reason for its receipt and therefore do not accept it. In any event, with regard to C, it would tend to show that the orders were right, rather than wrong.

Remission or re-exercise

I think the change in circumstances which, if left unexamined, would see the younger child spending week about with the father, likely without at all the anticipated company of her older sister, ought be re-examined. This may involve the family consultant further and require evidence about C’s current views. In the circumstances, in my view the matter must be remitted.
Because of the interim nature of the enquiry at this time and the history of hearings before Spelleken FM, I remit the matter to her. If either party raises any issues about Spelleken FM conducting further hearings in the matter, the learned Federal Magistrate is of course at liberty to make decisions about that.

Costs/Costs Certificates

Mr Foley indicated that the mother would not seek a costs order in respect of the appeal so far as it related to the order about B. He also said that the mother was in receipt of legal aid. But both parties sought certificates if the appeal was allowed. In my view, it is appropriate for the grant of certificates for the appeal, but not for the rehearing. I say this for two reasons: whether or not there is a rehearing depends substantially on the attitudes that the parties take to the issues that may arise and, as I indicated earlier, it was likely that, irrespective of the result of the appeal, if the parties were not willing to resolve their issues, a further court hearing would be required in any event.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 4 July 2008