DE SILVA & ROGERS
[2011] FamCAFC 131
•17 June 2011
FAMILY COURT OF AUSTRALIA
| DE SILVA & ROGERS | [2011] FamCAFC 131 |
| FAMILY LAW - APPEAL – INSUFFICIENT REASONS – whether the Federal Magistrate failed to provide adequate reasons for an order that the father not be physically absent from the presence of the child for more than 30 minutes – no merit found in this ground of appeal. FAMILY LAW - APPEAL – EVIDENCE – whether the Federal Magistrate erred in giving undue weight to the findings of the family consultant – where findings related to the observations of the child with the father and the paternal grandparents – no merit found in this ground of appeal. FAMILY LAW - APPEAL – PARENTING – whether the Federal Magistrate erred in finding that regular time spent with the child would negatively impact on the father’s employment – whether the Federal Magistrate erred in taking into account the father’s depression when ordering a delay in the child spending overnight time with the father – such findings were open to the Federal Magistrate on the evidence – no merits found in these grounds of appeal. FAMILY LAW - APPEAL – PARENTING – equal time – whether the Federal Magistrate erred in finding that equal time was not appropriate on the basis of the conflict between the parents – where conflict was allegedly engendered by the mother – the Federal Magistrate exercised discretion appropriately and did not err in examining the conflict between the parties. FAMILY LAW - APPEAL – ORDERS – whether the Federal Magistrate erred in failing to order that the mother provide her address to the father and notify him of any change of address in the future – the father did not seek such an order before the Federal Magistrate – no merit found in this ground of appeal. |
| Family Law Act 1975 (Cth) ss 60CC(3), 65DAA(3) and 65DAA(5) |
| Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 Bennett and Bennett (1991) FLC 92-191 at 78,266 and 78,267 Wen & Thom [2010] FamCAFC 81 Johnson v Johnson (No 3) (2000) FLC 93-041 at [13] Hall and Hall (1979) FLC 90-713 at 78,819 Kennedy & Kennedy [2010] FamCAFC 195 Malak and Mairie [2010] FamCAFC 170 Friscioni and Friscioni [2010] FamCAFC 108 |
| APPELLANT: | Mr De Silva |
| RESPONDENT: | Ms Rogers |
| FILE NUMBER: | PAC | 5187 | of | 2008 |
| APPEAL NUMBER: | EA | 104 | of | 2009 |
| DATE DELIVERED: | 17 June 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Strickland and Watts JJ |
| HEARING DATE: | 12 November 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 824 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Friedlander |
| SOLICITOR FOR THE APPELLANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | N/A |
Orders
The appeal be dismissed.
There be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym De Silva & Rogers 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 SYDNEY |
Appeal Number: EA 104 of 2009
File Number: PAC 5187 of 2008
| Mr De Silva |
Appellant
And
| Ms Rogers |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr De Silva (“the father”) against parenting orders made by Federal Magistrate Lindsay on 18 August 2009 in proceedings between the father and Ms Rogers (“the mother”). The orders relate to the parties’ only child V (“the child”) born in August 2006 who was aged 3 years at the time the orders were made.
In summary, the Federal Magistrate’s orders provided for the parties to have equal shared parental responsibility and for the child to live with the mother. The orders also provided a graduated regime for the child to spend increasing time with the father, culminating in the child spending time with the father upon her commencement at school on alternate weekends from 9:30am Friday until 4:30pm Sunday during school terms, each Tuesday from 3:30pm until 7:00pm, for half of school holidays and on special occasions. It was a condition of the father’s time with the child that he not be physically absent from the presence of the child for more than 30 minutes. The father was to complete a course in child development, and the mother a course in co-operative parenting. Both parties were restrained from moving their residence from the Sydney metropolitan area without the consent of the other or a court order.
The mother did not participate in the appeal. We were informed that there were difficulties serving her with the father’s Notice of Appeal and her solicitors filed a Notice of Ceasing to Act on 3 February 2010. She was advised by the Appeal Registry of the hearing date and the need for her to file a summary of argument. We were also informed that the Appeal Registry has been unable to contact the mother by letter, email or telephone. She did not file a summary of argument and did not attend at the hearing.
Background
At the time of the trial before the Federal Magistrate the mother was aged 42 years and the father was aged 41 years.
The parties met in 2000 when the father lived in Melbourne and the mother in Sydney. Shortly after they met the mother moved to Melbourne and in October 2000 the parties commenced living together at the father’s home.
In November 2005 the mother became pregnant with the parties’ child. Shortly thereafter the mother made arrangements to return to Sydney. She obtained employment with a government department and moved to Sydney in January 2006.
As referred to above the parties’ child was born in August 2006.
The father subsequently sold his home in Victoria and purchased a home at C in Sydney in October 2006. Both parties’ names were placed on the title to the property.
In January 2007 an incident occurred at the C property. On this occasion the father threw a laptop to the floor whilst the mother and child were in the home. The mother called the police in relation to the incident and the father was charged with malicious damage, to which charge he pleaded guilty. The mother subsequently obtained an Apprehended Violence Order (“AVO”) against the father.
Following the incident, the mother remained living at the C property and she also invited her mother and brother to reside there with her.
In late 2007 the parties took steps to have the terms of the AVO modified and in January 2008 the father moved back into the C property with the mother and the child. The AVO expired in February 2008.
On 16 March 2008 the parties finally separated. The mother moved out of the C property with the child.
In May 2008 the mother sought a further AVO against the father. The application was ultimately dismissed by the Local Court in July 2008.
In October 2008 the mother moved house without informing the father, moving into a home owned by her new partner, Mr M. Following the move the mother refused to provide the father with time with the child. At the time of trial the mother remained living with Mr M and she was pregnant with their child.
The father commenced proceedings for parenting orders in the Federal Magistrates Court in October 2008.
On 5 December 2008 an interim order was made by consent which was still in operation at the time of the trial. That order provided, inter alia, for the child to live with the mother and spend time with the father each Saturday and, from April 2009, on Tuesday afternoons. It was a condition of the father’s time that he not be physically absent from the presence of the child for more than 30 minutes, except in an emergency.
The trial was heard by Federal Magistrate Lindsay in Parramatta on 22 May and 18 June 2009. The parties gave evidence and were cross-examined on
22 May 2009. The Federal Magistrate then made an order on this date for a Family Report to be prepared (an order for a Family Report had earlier been refused) and the matter was adjourned to 18 June 2009. The Federal Magistrate delivered reasons for judgment and made final orders on 18 August 2009.
The father filed a Notice of Appeal on 15 September 2009.
Reasons for judgment of the Federal Magistrate
We propose to only provide here a brief summary of the Federal Magistrate’s reasons for judgment. We will refer to the reasons more fully in our discussion of the grounds of appeal below.
The Federal Magistrate recorded that the dispute before his Honour was focused on the time that the child was to spend with the father. The Federal Magistrate noted that the mother’s application underwent “significant transformation” as the trial progressed. In summary, the mother proposed that the child start spending overnight time with the father in eighteen months time, when the child was approximately 4 and half years old. The father’s proposed orders would have seen the child commence overnight time with him at the end of 2009, before moving to two nights per week in a further 12 months time and graduating to an equal time arrangement by the end of 2011.
After summarising the orders sought by the parties, the Federal Magistrate outlined a brief history of the parties and the proceedings, and then set out the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”).
In assessing the parties and their evidence, the Federal Magistrate had regard to the father’s health issues and alleged anger management problems.
The Federal Magistrate then addressed the father’s living arrangements and employment, before further considering the specific orders sought by each party.
His Honour then discussed the conduct of the parties and the level of conflict between them, which included the obtaining of AVOs by the mother against the father, the involvement of police, in particular following the incident in January 2007 when the father threw a laptop to the ground during an argument with the mother, and the mother moving house with the child without informing the father.
In the context of discussing the conflict between the parties, the Federal Magistrate recorded that the mother’s trial affidavit had implied the father may have hit the child in the back, however, the Federal Magistrate gained the impression that there was some degree of “cross-questioning” of the child by the mother and her partner when she returned from time with her father. His Honour noted that the child had sustained a “miscellany” of relatively serious accidental injuries whilst in the mother’s care.
The Federal Magistrate had no doubt that the mother was attentive and focused upon the best interests of her child but his Honour had a significant degree of reservation about the extent to which the mother could evaluate issues relating to the father’s relationship with the child in a way not contaminated by her hostility towards, and mistrust of, him.
The Federal Magistrate had regard to the evidence of the mother’s partner, Mr M, and considered the evidence of the family consultant in some detail. This will be addressed further in the context of the second ground of appeal. His Honour noted that he made an order for a family assessment following the mother’s oral evidence, over the father’s objection.
His Honour again recorded the “radical transformation” in the mother’s position during the trial, saying that he was “under no illusion” that the change in her attitude had been as a result of some reckoning of the likelihood of court outcomes and a greater awareness of the meaning of the relevant provisions of Part VII of the Act. His Honour did not think that she had had a change of heart in relation to the importance of the father’s relationship with the child, but nonetheless a change in the orders she sought was itself significant and to her credit. The Federal Magistrate commented that the mother had shown flexibility with respect to these matters which gave recognition to the need to promote a relationship between the child and the father and an ability to “accommodate the realities of the outcomes of proceedings.” His Honour noted that there was no such transformation on the part of the father, not even in light of the opinions of the family consultant.
His Honour recorded that although the mother initially sought to have sole parental responsibility, both parties ultimately sought orders for equal shared parental responsibility.
His Honour concluded that an order for the child to spend equal time with each parent was not in the child’s best interests. However, his Honour found it was in the best interests of the child and reasonably practicable for her to spend substantial and significant time with the father, “although the point at which the father’s time with the child will be capable of being formally characterised as having all of the features of that described in s.65DAA(3) is probably not reached until the child starts to spend overnight time with the father.”
The Federal Magistrate then considered how the orders would be framed to recognise the benefit of the child having a meaningful relationship with her father and for the orders to be implemented in practical terms, before addressing more closely the s 60CC(3) factors.
The Federal Magistrate ultimately was satisfied that the final position of the mother at the conclusion of the trial was a “measured and appropriate” response to the needs of the child. His Honour thought that it was appropriate for overnight time to commence in the school holiday period preceding the child commencing school. His Honour said that while this may be later than in the “ordinary run of cases”, his Honour considered there were features of this case that took it out of the ordinary. Pending the introduction of the overnight time, his Honour was also satisfied that the mother’s proposal for extended time each Saturday and Tuesday was appropriate, although his Honour determined that the time proposed on Tuesday should be more extensive.
Orders made on 18 August 2009
The Federal Magistrate made the following orders on 18 August 2009:
1. The parties have equal shared parental responsibility for the child [V] born [in] August 2006.
2. The said child live with the mother.
3. The said child spend time with the father as follows:
(a) until 22 November 2010:
(i)each Saturday from 9:30am until 4:30pm;
(ii)each Tuesday from 3:30pm until 7pm; and
(iii)at such other times as the parties may agree; and
(b) from 23 November 2010 until the said child starts school:
(i)on alternate weekends from 9:30am on Saturday until 9:30am on Sunday;
(ii)each Tuesday from 3:30pm until 7pm; and
(iii)at such other times as the parties may agree; and
(c)from when the said child starts school until after the July school holidays in 2012:
(i)on alternate weekends from 9:30am on Friday until 4:30pm on Sunday;
(ii)each Tuesday from 3:30pm until 7pm; and
(iii)at such other times as the parties may agree; and
(d) from the commencement of school in 2013 onwards:
(i)on alternate weekends from 9:30am on Friday until 4:30pm on Sunday during school terms;
(ii)each Tuesday from 3:30pm until 7pm;
(iii)for half school holidays, being the first half in even-numbered years and the second half in odd-numbered years;
(iv)from 3pm on Christmas Day until 1pm on Boxing Day in odd-numbered years;
(v)on Father’s Day from 9:30am until 4:30pm; and
(vi)at such other times as the parties may agree.
4. The father’s time with the said child is suspended as follows:
(a)on Mother’s Day from 9:30am until 4:30pm; and
(b)from the commencement of school in 2013, from 3pm on Christmas Eve until 3pm on Christmas Day in even-numbered years.
5. Changeovers occur as follows:
(a)at Centacare Contact Centre, [C] when that Centre is open; or otherwise
(b)at [Borders, C], except that on public holidays at [MacDonald’s, C].
6. The father and the mother be restrained and an injunction granted restraining each of them from physically disciplining the said child or allowing any other person to do so.
7. During the father’s time with the said child, the father not be physically absent from the presence of the said child for more than thirty (30) minutes, except in an emergency.
8. The father do all such things as may be reasonably required to facilitate his enrolment in and completion of a course in child development, with the details of such course to be as recommended by an appropriately qualified person employed by Centacare at [C], and the father is to do all such things as may be reasonably required to secure such recommendation within twenty-eight (28) days of the date of this Order.
9. The mother do all such things as may be reasonably required to facilitate her enrolment in and completion of a course in co-operative parenting, with the details of such course to be as recommended by an appropriately qualified person employed by Centacare at [C], and the mother is to do all such things as may be reasonably required to secure such recommendation within twenty-eight (28) days of the date of this Order.
10. The father and the mother be restrained and an injunction granted restraining each of them from moving his or her residence from the Sydney Metropolitan Area without the written consent of the other party or an order of the Court.
11. All applications do otherwise stand dismissed.
The father appeals orders 3 and 7.
Grounds of appeal
The father’s grounds of appeal as outlined in his Amended Notice of Appeal filed on 8 April 2010 are as follows:
1. That the learned Magistrate erred in ordering that the father, when spending time with the child, not be physically absent from the presence of the child for more than thirty minutes except in an emergency and did so without giving reasons.
2. The learned Magistrate erred in giving undue weight to the findings of the Family Reporter.
3. That the learned Magistrate erred in finding that regular time with the child would impact negatively on the father’s employment.
4. That the learned Magistrate erred in finding that, ultimately, shared care was not appropriate on the basis of the conflict between the parties, a conflict purposely engendered by the mother.
5. That the learned Magistrate erred in failing to order that the mother provide her address to the father and to notify him of any change in address in the future.
6. That the learned Magistrate erred in using the evidence of the father’s depression to inform his decision to delay the child spending overnight time with the father in spite of stating that he did not find the depressive condition impinged significantly on the father’s ability to care for the child.
7. That the learned magistrate erred in ordering at (3)(c) from when the said child starts school until after the July school holidays in 2012 and (3)(d) from the commencement of school in 2013 onwards.
The orders the father seeks on appeal are detailed parenting orders in the same terms as those sought in his Amended Initiating Application filed on 14 May 2010. At the appeal we clarified with the father’s counsel the orders sought in the event the appeal was allowed. Given the outcome of this appeal it is not necessary for us to refer to these orders in any detail, or at all.
Discussion
Ground 1
The interim orders made by consent on 5 December 2008 included a condition that during the father’s time with the child, he not be physically absent from the presence of the child for more than 30 minutes, except in an emergency. An order in the same terms was made by his Honour on a final basis (order 7), of which the father now complains. The father submits that he opposed any such order being made on a final basis and that it was inappropriate and unnecessary for such an order to have been made.
The Federal Magistrate recorded (at paragraph 49) that the father was resistant to a continued order requiring that he not be absent from the presence of the child for more than 30 minutes. His Honour noted that the father gave evidence that he did not expect to be absent from the child’s presence for more than 30 minutes, but that he was not prepared to consent to such an order. The Federal Magistrate observed that it became plain as the trial progressed that the mother’s motivation in seeking such an order was to “ensure that the child was not left in the unsupervised care of a paternal grandparent.”
In relation to the paternal grandparents, the Federal Magistrate recorded (at paragraph 70) that the paternal grandfather suffered from advanced Parkinson’s disease and was not promoted as a person suitable to supervise a child, although he still had something to offer the child in terms of a relationship of significance. His Honour noted that the mother and paternal grandmother did not get on well, which had informed the mother’s attitude to the grandmother spending time with the child. The mother claimed to be concerned that the paternal grandmother’s high blood pressure could cause her to have a dizzy spell and fall on the child. His Honour commented that this seemed
far-fetched.
It was submitted before us on appeal that the mother wanted to alienate the child from the paternal grandparents. Counsel for the father highlighted that both paternal grandparents had sworn affidavits and were present in court at the trial, but were not required for cross-examination by the mother.
The father complained that, apart from these references in the reasons, the Federal Magistrate gave no reasons for making an order on a final basis in terms of order 7.
There is an obligation upon a judicial officer to provide adequate reasons for his or her decision.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA said at 279 that:
without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In Bennett and Bennett (1991) FLC 92-191, the Full Court (Nicholson CJ, Simpson and Finn JJ) said at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.’
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
Their Honours continued at 78,267:
At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
Finally, as Coleman J recently observed in Wen & Thom [2010] FamCAFC 81:
57. As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
Although his Honour did not dwell for long on this issue in his reasons, we consider that it was an issue about which very little needed to be said. The order had been in operation since December 2008 and significantly it had been put in place by consent. There is no doubt that the reason for it was to avoid the child being left in the unsupervised care of a paternal grandparent.
His Honour clearly addressed the respective positions of the paternal grandparents in paragraph 70 of his reasons. His Honour observed that
“[n]o-one promotes [the father’s father] as a suitable person for the supervision of the child” because he is in the advanced stages of Parkinson’s Disease, and with the father’s mother, she and the mother do not get on well together as a result of the grandmother being abusive to the mother.
Thus, the path by which the result was arrived at is quite clear even if by implication. Given the history and background of the interim consent order his Honour was disposed to continue that order on a final basis.
We also observe that whereas the father’s counsel did cross-examine the mother as to her views concerning the paternal grandparents, and in final submissions put that they should be allowed to see the child without supervision, nowhere was it put to the Federal Magistrate that his Honour should not continue the specific order that is the subject of the appeal.
Accordingly, we find no merit in this ground of appeal.
Ground 2
In addressing this ground of appeal, it is necessary to set out in some detail the Federal Magistrate’s consideration of the family report prepared in this matter and the family consultant’s oral evidence. The order for the family assessment was made by the Federal Magistrate on 22 May 2009, following the evidence of the mother, and over the objection of the father.
His Honour found the most significant aspect of the report was the observations of the child with the father and then with his parents, which his Honour set out as follows:
36. The observation commenced with [V] and her father only. [V] was observed to immediately ask for her mother and repeated this behaviour throughout the entire play session. She repeated over and over “Mummy, Mummy” and “I want to see my Mummy”.
37. Mr [De Silva] was observed to be attempting to distract and comfort [V], trying to direct her attention to various toys and activities in the room. He suggested a toy and [V] would either look at it for 30 seconds to a minute or refuse and return to chanting for her mother. Mr [De Silva] was patient and reassured [V] that her mother would return soon. When speaking about [V]’s mother, his tone was appropriate and in no way conveyed animosity towards Ms [Rogers].
38. On two occasions, [V] stayed engaged in the play for a longer period, approximately five minutes, once at the doll’s house and another time at the sand tray. She was observed to climb into his lap at the doll’s house but immediately asked him to bring her mother by saying “I want my Mummy”. Mr [De Silva] was observed to be looking anxious and perplexed about what else he could try to soothe and distract [V]; however she could not be soothed.
39. Mr [De Silva] was patient and used a gentle tone and appeared to be doing everything physically possible to comfort [V]. It was noted however that his affect was flat and constricted and he did not use smiles, confident gestures or an excited tone to sooth and distract.
40. When the paternal grandparents entered the room they sat down on the couch. [V] looked up at her grandparents but did not smile or go over to them. [V] did not engage at all with her grandfather nor him with her. Mrs [De Silva] spoke kindly to [V] and attempted to engage in play at the sand tray. [V] showed her hand to father. It had sand on it. [V] smiled at this point and Mr [De Silva] was observed to say “that’s beautiful; we got a smile out of you”.
41. Despite the smile given by [V], she did not show any excitement during the observation and appeared distressed throughout, crying a little towards the end.
The Federal Magistrate noted at paragraph 87 of his reasons that “nothing emerged in cross-examination that in any way undermined the conclusion that [the family consultant] had reached in her report.”
His Honour noted the important conclusions of the family consultant that an equal time arrangement would not work for the child and was not in her best interests due to the “high degree of bitterness and conflict between the parties that had not abated with the passage of time.” The family consultant did not consider that either of the parties “had enough good will [sic] to foster the positive communication that would be required for an equal time arrangement to work.”
The Federal Magistrate recorded the family consultant’s observation that the child was not securely attached to the father, and this view informed her views in relation to overnight time. The family consultant had noted that research suggested that children needed to commence spending overnight time with a parent between the ages of 3 and 5 years or they would likely refuse to go. However, it was the family consultant’s view that if the problem in relation to a lack of secure attachment with the father continued, the child should not be obliged to go on overnight visits.
In the family consultant’s opinion, the solution to the “lack of secure attachment” was to focus on increasing the quality of the interactions between the father and the child, rather than the number of hours. The family consultant considered that this should be the father’s priority. The family consultant felt that the father’s depression could affect his parenting of the child in that it might make him unable to deal with certain circumstances of stress that might arise in relation to her care.
The Federal Magistrate noted the family consultant’s conclusion that the current arrangements should continue for approximately 12 to 18 months before any overnight time was introduced. She was of the view that the father would be helped by attending a parenting course.
The Federal Magistrate agreed with the family consultant’s observations as to the father’s “minimisation of his depressive difficulties” and of the mother’s “minimisation of the importance of the role of the father in the child’s life.”
The Federal Magistrate, when outlining his findings, again referred to the evidence of the family consultant (at paragraph 101). Importantly, his Honour found it was necessary to delay the introduction of overnight time “for the reasons advanced by the family consultant”. In relying on the recommendation made by the family consultant in this respect, the Federal Magistrate recognised the limitations of this evidence:
I have done my best to bear steadfastly in mind the fact that the interaction between the father and the child which the family consultant observed was a ‘one-off’ occasion. It was a snap-shot of the father’s relationship with the child at a particular point and the interaction occurred in an environment where relaxed interaction was not as likely as, say, in a play-ground or in the father’s own home or some more child-orientated location. The family consultant, herself, was aware of the caution that needed to be exercised from drawing too many conclusions from the one incident but her observations were stark and revealing.
At paragraph 109 of the reasons, when outlining his conclusion in relation to the time the child is to spend with the father, the Federal Magistrate said:
On the whole of the evidence that I heard and especially having regard to the evidence of the family consultant I thought that the final position of the mother at the conclusion of the trial was a measured and appropriate response to the needs of the child as they have become evident in the course of the trial. (Emphasis added)
The approach of the Federal Magistrate to the report and to the family consultant’s oral evidence was the subject of a number of challenges by the father.
Firstly, it was in effect submitted that the Federal Magistrate changed his mind as to the introduction of overnight time after receiving the family report, but before the family consultant was cross-examined. However, what in fact happened was that after the father’s cross-examination the Federal Magistrate made some preliminary comments stressing though that he had not yet heard all of the evidence and nor had he received the final submissions of the parties. Then, having read the report his Honour indicated that there was now a real issue about overnight time.
We find nothing wrong with this approach. A judicial officer is entitled to express a view as the hearing progresses and as the evidence unfolds (Johnson v Johnson (No 3) (2000) 201 CLR 488 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at paragraph 13). This does not indicate a blind acceptance of the contents of the Report.
Secondly, it was submitted that before the family consultant was cross-examined the Federal Magistrate was quoting her conclusions “as determining his findings”, and his Honour expressed “his impatience with the father for not also wholly endorsing the report.” However, this is not how we read the exchanges between the Federal Magistrate and counsel during the hearing. The Federal Magistrate was doing nothing more than testing the recommendations of the family consultant as was appropriate for his Honour to do. There was no suggestion of pre-judgment by his Honour, and nor are we persuaded that his Honour expressed impatience at the father.
The submissions of the father’s counsel with respect to these issues took significant liberties with the actual words used by his Honour.
We reject the submission that his Honour “accepted the Family Reporter’s conclusions wholly before she was cross-examined and did not exercise his critical reasoning with regard to the report.” We were not taken to anything that persuaded us that his Honour approached the report in any way that was other than entirely appropriate.
The father’s challenge then turned to his Honour’s treatment of the oral evidence of the family consultant in combination with the contents of the report.
Firstly, it was submitted that his Honour “accepted” the conclusions and views of the family consultant “without question”. In support of that proposition paragraph 95 of his Honour’s reasons was cited by counsel. That paragraph reads as follows:
The opinion Ms [D] expressed as to these matters was consistent with the view that I had formed of the parties from the evidence. I was not able to bring a therapeutic or counselling analysis to my views but Ms [D] articulated in a way which was, I thought, highly perceptive, the dynamic afoot in this matter. I especially agreed with her observations in relation to father’s minimisation of his depressive difficulties and of the mother’s minimisation of the importance of the role of the father in the child’s life.
We fail to see how that paragraph supports the proposition in any way. The comments in that paragraph seem to be entirely appropriate and consistent with what the authorities say as to the weight to be attached to a family report (Hall and Hall (1979) FLC 90-713, at 78,819, Kennedy and Kennedy [2010] FamCAFC 195, Malak and Mairie [2010] FamCAFC 170 and Friscioni and Friscioni [2010] FamCAFC 108). As the Full Court said in Hall:
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
Apart from this the father’s counsel was unable to take us to any part of the transcript or his Honour’s reasons where his Honour said in effect that he unreservedly accepted the conclusions and views of the family consultant. In these circumstances it concerns us that a legal practitioner would make this submission to us in the first place.
Secondly, it was submitted that despite the family consultant making certain concessions during cross-examination, the Federal Magistrate found as referred to in paragraph 54 above.
Again, we fail to see how his Honour erred in making this finding. The fact of the matter is that despite the concessions, the family consultant maintained her recommendations, and it was open to his Honour to accept the same after taking into account, as he did, all of the evidence that was before him.
The father’s counsel submitted in her written summary of argument that “the Federal Magistrate abdicated his responsibility and automatically accepted the Family Report and erred in placing undue weight on the findings of the Family Reporter.” However, during the hearing counsel indicated that the claim that in effect the Federal Magistrate delegated his authority to the family consultant was not the crux of the father’s challenge, but he still maintained that the Federal Magistrate accepted the recommendations of the family consultant “without question”. The concession in relation to the alleged delegation of authority was appropriate because we consider that there is no basis for making such a submission. In relation to the issue of acceptance of the recommendations, we do not consider it necessary to say anything more about this.
We find no merit in this ground of appeal.
Ground 3
The Federal Magistrate addressed in his reasons the father’s living arrangements and employment (at paragraph 48). His Honour recorded that the father lived in the C area of Sydney but worked in a northern suburb. The father’s hours of work were 9:00am to 4:30pm, although the Federal Magistrate noted that the father had a special arrangement in place on Tuesdays to enable him to collect the child from child care. The father caught public transport to and from work, but gave evidence before the Federal Magistrate that he would travel by car if the Court made the orders for time with the child that he sought.
The Federal Magistrate gained the impression at the end of the father’s evidence that the father’s continued employment in the northern suburb “would be put at some risk” by an order being made for him to spend time with the child as sought by him. The Federal Magistrate recorded that the father acknowledged in his evidence that it was unlikely he would find work in his field in the part of Sydney in which he lived. Ultimately, the Federal Magistrate concluded that the father having more regular or lengthy time with the child had the “potential to impact significantly” on the father’s employment, due to the distance he was required to commute.
It was submitted by counsel for the father that the Federal Magistrate erred in finding that if the father spent more time with the child, this would negatively impact on his employment. Counsel for the father submitted that it was always the father’s position that his employment and mode of travel to that employment was subservient to him spending time with the child, referring to the father’s evidence in cross-examination (Transcript, 22 May 2009). The father gave evidence that he only took his current job as it was important for him to obtain employment in Sydney as soon as possible so he could be near his daughter, and that he had said that he could seek employment elsewhere, although he had not made any enquiries as to this at the time of trial. (Transcript, 22 May 2009)
Counsel for the father contended that the Federal Magistrate took into account an irrelevant consideration, as the father’s first priority was his parenting responsibility, and it was inappropriate to make orders on the basis only of the father’s place of employment at that time.
As with any issue in dispute, it is necessary for the Federal Magistrate to weigh up and assess the evidence that is given and make a finding on the basis of that evidence. That is what the Federal Magistrate has done here, and we consider that his Honour’s finding was open to him on the evidence. Further, we do not accept the submission that the question of the father’s employment and his availability to care for the child was an irrelevant consideration in the exercise of his Honour’s undoubted discretion.
Again, we find no merit in this ground of appeal.
Ground 4
As explained by the father’s counsel in her oral submissions to us, the gravamen of this challenge is not that his Honour erred in taking the conflict between the parties into account in determining the division of care, but that his Honour failed to recognise that the conflict was engendered by the mother.
The Federal Magistrate addressed the conflict between the parties in some detail in his reasons, and in order to respond to the father’s specific complaint it is necessary for us to consider those reasons in some detail.
Firstly, his Honour addressed the mother’s actions in obtaining AVOs against the father. The Federal Magistrate said in this regard that the father was “highly affronted” and “deeply offended” by the mother’s actions and that the father was consequently deeply distrustful of the mother.
His Honour noted that the father preferred to be informed of matters involving the child’s needs and habits through a communication book, because he would “rather have a paper trail” when he dealt with the mother.
His Honour recorded (at paragraphs 53 to 55) that there were some orders sought by the mother that were not opposed by the father, namely, that each party be restrained from physically disciplining the child, in relation to where handovers were to take place, that the father would attend a parenting course (although his Honour noted this was not because he thought it would be of any benefit to him but rather was an “act of appeasement” to the mother) and that each party be restrained from removing the children from the Sydney area.
The Federal Magistrate specifically addressed the mother’s conduct, which his Honour found had a “high degree of peremptoriness”. His Honour was left with the impression that she was someone who “exhibited significant high-handiness” in the way she dealt with the father. His Honour was critical of her decision to move back to Sydney whilst pregnant with the parties’ child (at paragraph 58) commenting that the significant impact of her move on the father did not seem to have been an issue that mattered to the mother.
His Honour also addressed the incident that occurred between the parties in January 2007. His Honour said that he was not in a position to make any specific findings regarding the incident, but commented that the father’s reaction was inappropriate and must have been frightening for the mother and the child. His Honour noted there was no history of violence, that such incidents were isolated, and that the parties’ relationship had subsisted for 6 years in Melbourne.
His Honour found the mother’s actions in arranging for police intervention was “probably very unhelpful” and that this certainly “poisoned” the relationship between the parties. His Honour found there was an element of “manipulative behaviour” by the mother in involving the police.
In relation to the first AVO obtained by the mother, his Honour noted the father did not oppose the making of a final order, but his Honour did not accept the mother’s evidence that she sought the order because she was concerned that the Department of Children’s Services may have intervened to remove the child if she did not. His Honour found that that was “clearly never going to happen.”
The Federal Magistrate was also critical of the mother’s actions in, firstly, obtaining an AVO which prevented the father from accessing his own property, in, secondly, allowing her brother and mother to move into the home and in, thirdly, her actions in returning the father’s furniture to Victoria over his objections.
His Honour noted the mother had seen a psychologist following separation, but did not accept that the mother would have required therapeutic assistance following the incident in January 2007, as claimed by her.
The Federal Magistrate found the mother’s involvement of police following their final separation in 2008 was without any reasonable basis, noting an AVO was ultimately refused by the Court.
His Honour also recorded that the mother moved house in October 2008 without informing the father. The Federal Magistrate said that this action by the mother precipitated the bringing of proceedings, and his Honour was satisfied on the evidence that the father had no alternative but to do so.
The Federal Magistrate noted that the parties had been conducting handovers at a Borders bookshop before they commenced using the facility at Centacare, and that this venue was chosen due to the availability of CCTV recordings, which his Honour commented gave “some index of the approach they each bring to their interaction with the other.” The Federal Magistrate noted the mother had reservations about the father driving with the child, but did not have the same concerns about her own brother driving the child, despite he having been responsible for the death of another motorist.
According to the Federal Magistrate, the mother’s trial affidavit had implied the father may have hit the child in the back, however, the Federal Magistrate gained the impression that there was some degree of “cross-questioning” of the child by the mother and her partner when she returned from time with her father. His Honour noted that the child had sustained a “miscellany” of relatively serious accidental injuries whilst in the mother’s care.
The Federal Magistrate had no doubt that the mother was attentive and focused upon the best interests of her child but his Honour had a significant degree of reservation about the extent to which the mother could evaluate issues relating to the father’s relationship with the child in a way not contaminated by her hostility towards and mistrust of him.
The Federal Magistrate accepted there was some degree of truth in allegations that the child had nightmares preceding time spent with her father and was an unsettled sleeper, particularly when she returned from time with the father, however, there was a degree of exaggeration.
His Honour concluded (at paragraph 100) that an order for the child to spend equal time with each parent was not in the child’s best interests. His Honour also did not consider that the child spending equal time with each of her parents was reasonably practicable because of the matters referred to in s 65DAA(5)(b), (c) and (d) of the Act. His Honour found it was in the best interests of the child and reasonably practicable for her to spend substantial and significant time with the father, “although the point at which the father’s time with the child will be capable of being formally characterised as having all of the features of that described in s.65DAA(3) is probably not reached until the child starts to spend overnight time with the father.” To the extent that any delay in the commencement of overnight time represented a refusal to make an order for substantial and significant time, his Honour noted his finding that the introduction of substantial and significant time earlier than that provided for in these orders was not in the child’s best interests.
His Honour recognised that given the mother’s attitude, he needed to frame orders that recognised the benefit to the child of having a meaningful relationship with her father and for the orders to be implemented in practical terms. The Federal Magistrate took into account that the child had not at that stage developed a secure attachment to her father and also the father’s inability to recognise that not only had he suffered from depression for some time but had been treated for it. His Honour considered that there was therefore some risk to the child’s emotional safety in the supervision of the father.
Bearing in mind the magnitude of that risk, his Honour considered it important to delay the introduction of overnight time for the reasons advanced by the family consultant. In reaching this finding, his Honour took into account that the report of the family consultant was based on a “one off” observation, and thus was only a “snap-shot” of the father and child’s relationship. Nonetheless, his Honour considered her observations to be “stark and revealing.”
The Federal Magistrate found that the proposals the mother promoted at the commencement of the trial provided the opportunity for the establishment of a secure attachment “that the family consultant thought to be so significant.”
Addressing more closely the s 60CC(3) factors, his Honour was sceptical about the mother’s willingness to facilitate and encourage a close relationship between the child and the father but did not doubt her ability to do so.
The Federal Magistrate considered s 60CC(3)(f) to be of “manifest relevance”. His Honour concluded that the mother did not have the capacity at that time to provide for the emotional needs of the child relating to the opportunity to develop in a “natural and unhindered way” an affection for and attachment to the father and his family. His Honour also found that the father likewise had an incapacity for dealing with the child when distressed, although, to his credit, he had returned the child in the past when she had become distressed.
The Federal Magistrate found that both parents clearly loved their child and would take all necessary steps to accept their responsibilities as parents, save as it related to their “chronic inability” to communicate properly or develop a relationship of trust with the other. His Honour considered that this would be a significant matter affecting the emotional welfare and development of the child in future years (with reference to s 60CC(3)(i)).
The Federal Magistrate found that despite the incident in January 2007, family violence was not a salient feature of this child’s life and was not likely to be so.
The Federal Magistrate ultimately was satisfied that the final position of the mother at the conclusion of the trial was a “measured and appropriate” response to the needs of the child. His Honour thought that it was appropriate for overnight time to commence in the school holiday period preceding the child commencing school. His Honour said that while this may be later than in the “ordinary run of cases”, his Honour considered there were features of this case that took it out of the ordinary. Pending the introduction of the overnight time his Honour was also satisfied that the mother’s proposal for extended time each Saturday and Tuesday was appropriate, although his Honour determined that the time proposed on Tuesday should be more extensive.
It is quite apparent to us from this analysis of his Honour’s reasons, and in particular in relation to how his Honour dealt with the conflict between the parties, that his Honour was alive to the role that the mother played in that conflict. However, as his Honour identified, the father was not blameless and thus his Honour had to frame orders that were in the best interests of the child taking into account the conduct of both parties. We consider that in undertaking this task his Honour did so appropriately.
Ground 5
There is no mention in the Federal Magistrate’s reasons of the issue of the mother not wanting her address to be disclosed to the father.
The Federal Magistrate made an order restraining both parties from moving from the Sydney metropolitan area, however, it is submitted that if the father does not know where the mother lives, he cannot know whether the mother is complying with this order. Thus, it is suggested that an order for the mother to reveal her address was required to ensure compliance with, and the efficacy of, the injunction made by the Federal Magistrate. It is said the Federal Magistrate provided no reasons for failing to make such an order.
It is to be noted that the father did not seek an order in his Amended Initiating Application filed 14 May 2009 that the mother disclose her address, nor was any such order sought in his case outline document.
At paragraph 77 of the mother’s affidavit filed on 5 December 2008 the mother admitted that the father did not know where the child was living and that she did not wish the father to have her residential address. The mother repeated this at paragraph 84 of her affidavit filed on 18 May 2009.
When the mother was sworn in to give evidence at trial she indicated to the Court that she preferred that her address not be given in open court, saying only that it was in the local C area, but she was prepared to provide the address to the Federal Magistrate in writing. The following exchange took place (Transcript, 22 May 2009):
[MR MADDOX] What’s the reason that you don’t want to tell us your address?---We’ve had a history of apprehended violence orders. There are none in place at this time and I’d rather not be in a position of needing to seek further ones.
It’s a matter for your Honour.
FEDERAL MAGISTRATE: Look, I don’t need to see the address. I mean, I’ve heard what the witness has to say and no doubt that’s a matter that will be taken up in cross-examination but no, I don’t need to see the address.
The issue was further explored in cross-examination of the mother (Transcript, 22 May 2009):
MS FRIEDLANDER: That’s exactly what I am going to ask you now, Ms [Rogers]. Why won’t you allow your address to be known? --- Because there are no AVOs in place and I’m concerned that there will be further incidences [sic] and I don’t want my address known.
Normally people say, “I don’t want my address shown because there is an AVO in place.” There is no AVO in place at the moment?---Were there an AVO in place, I would feel safer about it being known where I do live.
I see. But you’re expecting further incidents are you?---I’m concerned, given the history, that there will be further incidences. [sic]
Does it occur to you that [V] is the father’s daughter?---Absolutely.
And that he should know where his daughter lives?---I don’t think he needs to know where she lives, as long as he know that she’s safe and – you know , I – I don’t have an issue with him knowing where she attends childcare or school or any of those other facts, but I do feel uncomfortable with him knowing where I live.
Further, in closing submissions the following was said (Transcript, 18 June 2009):
MS FRIEDLANDER: Well, your Honour, you see, all she really needs to do is change [the child’s] childcare and then the father will have no way of contacting her whatsoever.
…
MS FRIEDLANDER: … we ask that the mother keeps the father informed of her present whereabouts and the father does the same, and to give notice if she intends to move.
…
FEDERAL MAGISTRATE: So similar to the father’s orders, but you’re asking for her to reveal her present address.
MS FRIEDLANDER: That’s correct
It is somewhat difficult to criticise the Federal Magistrate for failing to make an order that was not sought in the father’s application nor in his case outline document. Certainly it was raised in the final address of the father’s counsel but at that point the evidence had closed and the mother had no opportunity to deal with it in any formal way because, to repeat, there had been no application made for such an order as part of the father’s case.
In any event, having been taken to the brief evidence given on this topic we are not persuaded that it was necessary for such an order to be made. Assertions by the father as to what the mother may or may not do in the future cannot be treated as fact. Accordingly, we find no merit in this ground of appeal.
Ground 6
In assessing the parties and their evidence, the Federal Magistrate had regard to the father’s health. The father suffers from irritable bowel syndrome (“IBS”) and gave evidence that he had been prescribed anti-depressants to treat the condition. The father denied before the Federal Magistrate that these anti-depressants were prescribed to treat any depression or mental health issues.
The Federal Magistrate discussed the issues of the father’s mental health and the evidence on this topic, recording that a psychiatrist had diagnosed the father with having a resistant depressive illness in 2001. The Federal Magistrate drew an inference from the father’s cross-examination that he had suffered from a form of depression, brought on by his condition of IBS. His Honour found by the end of the evidence that it was not open for him to accept the father’s contention that he had never been diagnosed as having any mental health issues. However, at paragraph 44, his Honour concluded that “ultimately” he did not think it was established that the father’s depressive condition “impinged significantly on his ability to care for the child.” His Honour found the father’s IBS had a more “direct effect upon his availability to supervise the child” but accepted that it was “generally manageable, although a significant frustration”.
The Federal Magistrate also addressed the father’s sessions with a doctor in relation to managing his anger problems. In this regard, the father said he only attended the doctor to satisfy the mother, not because he required such assistance.
The Federal Magistrate found that the issues of whether the father had been diagnosed with depression and whether he obtained assistance for an anger management problem highlighted a trait of the father’s personality or character which his Honour found could be described as “stubbornness”. The Federal Magistrate found the father gave every impression of being a person unwilling to modify his behaviour or views on account of what someone may put to him. He did not give the impression of being someone who would listen to anything that might be regarded as criticism. He noted the father had been apprehensive about the family assessment process and had instructed his counsel to resist the order made for the obtaining of such a report. The Federal Magistrate said that his apprehensions in this regard were well founded given what would emerge from the observations of him.
At paragraph 92, in the context of discussing the family consultant’s report, the Federal Magistrate said that “[h]is depression could affect his parenting of the child in that it might make him unable to deal with certain circumstances of stress that might arise in relation to her care.” At paragraph 95, the Federal Magistrate agreed with the family consultant’s observation that the father had minimised his “depressive difficulties”.
Counsel for the father submitted that the Federal Magistrate’s comments at paragraph 92 in relation to the effect the father’s depression could have on his parenting capacity were inconsistent with his earlier comments at paragraph 44 that he did not think the father’s condition significantly impinged on his ability to care for the child. Counsel also referred to the Federal Magistrate’s comments at paragraph 101 to highlight the alleged inconsistency in the Federal Magistrate’s reasons on this topic:
101.… The fact that the child has not to this point of her life developed a secure attachment with him, (which was described by the family consultant) taken together with his inability to recognise that not only has he suffered from depression for some time but has been treated for it, means that there is some risk of the child not experiencing emotional safety in the supervision of the father. Bearing in mind the magnitude of that risk as revealed in the evidence, it is important, in my view, to delay the introduction of overnight time for the reasons advanced by the family consultant.
We do not accept that there is any inconsistency in his Honour’s reasons. To say that it has not been established that the father’s depressive condition will impinge significantly on his ability to care does not exclude the possibility or the risk that it could affect his parenting in certain circumstances of stress. Thus his Honour did not err in taking into account the husband’s depressive condition as he did, and there is no merit in this ground of appeal.
Ground 7
Finally, by this ground the father complains about the form of the orders, in particular orders 3(c) and (d). To repeat, those orders provide:
3. The said child spend time with the father as follows:
…
(c)from when the said child starts school until after the July school holidays in 2012:
(i)on alternate weekends from 9:30am on Friday until 4:30pm on Sunday;
(ii)each Tuesday from 3:30pm until 7pm; and
(iii)at such other times as the parties may agree; and
(d) from the commencement of school in 2013 onwards:
(i)on alternate weekends from 9:30am on Friday until 4:30pm on Sunday during school terms;
(ii)each Tuesday from 3:30pm until 7pm;
(iii)for half school holidays, being the first half in even-numbered years and the second half in odd-numbered years;
(iv)from 3pm on Christmas Day until 1pm on Boxing Day in odd-numbered years;
(v)on Father’s Day from 9:30am until 4:30pm; and
(vi)at such other times as the parties may agree.
It was submitted on behalf of the father that the wording of these paragraphs means that the orders do not cover the period from after the July 2012 school holidays until the commencement of school in 2013.
We do not accept that there is any merit in this complaint. We consider that it is clear from the wording of the orders, and in particular the use of the term “after” in order 3(c), that order 3(c) was to operate from after the July 2012 school holidays until order 3(d) came into operation, namely the commencement of school in 2013.
Conclusion
We have found no merit in the grounds of appeal and accordingly the appeal will be dismissed.
Costs
At the conclusion of the hearing before us submissions were sought from the father in relation to the costs of the appeal.
In the event the appeal was successful, the father sought a costs certificate.
As we noted earlier, the mother did not attend at the appeal hearing nor did she participate at any stage of the appeal process or file any documents. In those circumstances, it is unlikely she has incurred any legal costs in relation to the appeal. Thus no order will be made as to costs.
I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
(Faulks DCJ, Strickland and Watts JJ) delivered on 17 June 2011.
Associate:
Date: 17 June 2011
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