Dicosta & Dicosta
[2008] FamCAFC 161
•29 October 2008
FAMILY COURT OF AUSTRALIA
| DICOSTA & DICOSTA | [2008] FamCAFC 161 |
| FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – with whom a child lives and spends time with – where Federal Magistrate’s orders provided for the children to live with the father five nights a fortnight – where father sought that children spend equal time with him – whether the Federal Magistrate erred in placing reliance on the “status quo” in light of the intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) – whether the Federal Magistrate erred in his application of the provisions of the Family Law Act 1975 (Cth), in particular s 65DAA – consideration of the fact that the trial judgment was delivered ex tempore – emphasised that parenting decisions are to be determined on their own facts having regard to the findings required by the legislation – no substance found in the appeal. FAMILY LAW - APPEAL – COSTS – no order for costs. |
| Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 61DB, 65DAA |
| Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Goode v Goode (2006) FLC 93-286 |
| APPELLANT: | Mr Dicosta |
| RESPONDENT: | Ms Dicosta |
| FILE NUMBER: | CAC | 343 | of | 2007 |
| APPEAL NUMBER: | EA | 104 | of | 2007 |
| DATE DELIVERED: | 29 October 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn, Coleman and Thackray JJ |
| HEARING DATE: | 18 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 August 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 714 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Tonkin |
| SOLICITOR FOR THE APPELLANT: | Phelps Reid Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Brzostowski SC |
| SOLICITOR FOR THE RESPONDENT: | Dobinson Davey Clifford Simpson |
Orders
That the appeal be dismissed.
That there be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Dicosta & Dicosta 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 CANBERRA |
Appeal Number: EA 104 of 2007
File Number: CAC 343 of 2007
| Mr Dicosta |
Appellant
And
| Ms Dicosta |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an appeal by the father of two children, now aged about seven and five, against orders made by Brewster FM on 4 September 2007 which provided that the children should live with the father from after school on Friday to the commencement of school on Monday on each alternate weekend and from after school on Wednesday to the commencement of school on Thursday in each week (that is, for five nights in fourteen) and for the balance of the time with their mother.
Prior to the separation of the parents in January 2007, the father had worked full-time in his own business. The mother had not engaged in outside employment and thus had been able to be the full-time carer for the children.
Following the parents’ separation, the children had remained with the mother who had apparently only permitted the father to see them each alternate weekend.
As a result of an application filed by the father on 2 March 2007, Brewster FM made interim orders on 26 March 2007 whereby the children were to live with the father from after school on Friday to the commencement of school on Monday on each alternate weekend and from after school on Wednesday to the commencement of school on Thursday in each week.
At a final hearing of the matter before his Honour on 16 August 2007, the mother sought the continuation of the interim orders while the father sought that the children live week about with each parent.
In the event his Honour continued on a final basis the arrangement put in place by his interim orders, being that in any fortnight the children spent five nights with the father and nine nights with the mother.
Issues raised by the appeal
In this appeal against those final orders the appellant father’s case, as summarised by his counsel, was that his Honour’s apparent reliance on the “status quo” in his reasons for judgment would mean that in a case where one parent had not had the opportunity prior to separation to be the primary parent, then he or she would be unable to assume such a role in the future, and that reliance on the status quo was now impermissible under Part VII of the Family Law Act 1975 (Cth) (“the Act”) as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the 2006 amending Act”).
The specific complaints contained in the father’s grounds of appeal were that his Honour:
·gave undue weight to the status quo that existed for the children prior to separation, notwithstanding “the legislative intent introduced by the 2006 Amendments of substantial involvement by both parents in their children’s lives”, and as such erred in the exercise of his discretion (Ground 1);
·erred when he relied on the status quo to displace or oust the legislative intent of the 2006 amendments, which require the court to properly consider parents sharing equally in the care of their children (Ground 2);
·gave insufficient reasons for his decision (Ground 3);
·failed to have proper regard to the provisions of s 60CA of the Act (Ground 4);
·failed to have proper regard to the provisions of s 60CC of the Act (Ground 5);
·gave a decision contrary to s 60B of the Act (Ground 6);
·failed to have proper regard to the provisions of s 65DAA of the Act (Ground 7).
The federal magistrate’s reasons for judgment
Against the background of these complaints by the father, we will now examine his Honour’s reasons for the orders which he made and which, it should be noted, were given ex tempore.
Having referred to the factual background (including the interim orders made on 26 March 2007 and to each parent’s application), his Honour then explained that he was required by s 60CA of the Act to regard the best interests of the children as the paramount consideration and that “the backdrop” to this exercise was s 60B which sets out the objects of the Act in so far as it deals with children and the principles underlying those objects.
His Honour observed that for the purposes of this case, “the most relevant object” was to be found in s 60B(1)(a) which refers to “ensuring that children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of those children”. Importantly, having regard to the sixth ground of appeal, his Honour then said (in paragraph 6 of his reasons) that he would “bear that object in mind”.
His Honour then further explained that s 60CC sets out the matters to which he was required to have regard when assessing what is in the children’s best interests, and that those matters are divided into primary and additional considerations.
As to the two primary considerations in s 60CC, his Honour explained that the second such consideration, being “the need to protect children from harm from being subjected or exposed to abuse, neglect or family violence”, had no application in this case. As to the first such consideration, being “the benefit to the children of having a meaningful relationship with both their parents”, his Honour said (in paragraph 8 of his reasons) that he was satisfied that the orders he proposed to make would “permit the children to have a meaningful relationship with their father”.
His Honour then examined each of the additional considerations contained in s 60CC(3). He found that certain of those considerations, being:
·the practical difficulty and expense of the children spending time and communicating with each parent (s 60CC(3)(e));
·the maturity, sex, lifestyle and background of the child (s 60CC(3)(g));
·any Aboriginal or Torres Strait background of the child (s 60CC(3)(h));
·family violence and family violence orders (s 60CC(3)(j) and (k)); and
·the preference for an order least likely to lead to further proceedings (s 60CC(3)(l)),
had no relevance or application in this case.
His Honour also found with respect to certain other additional considerations, being:
·the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s 60CC(3)(c));
·the capacity of each of the parents to provide for the children’s needs (s 60CC(3)(f)); and
·the attitude to the children, and to the responsibilities of parenthood demonstrated by each parent (s 60CC(3)(i) and also s 60CC(4)),
that there was, in effect, nothing to distinguish either parent in this case.
As to the additional consideration of the children’s views (s 60CC(3)), his Honour found that in the case of the older child, his views could only be given “very limited” weight, and that in the case of the younger child, “virtually no weight”.
It was only in relation to the two additional considerations of the nature of the children’s relationship with each parent (s 60CC(3)(b)) and the likely effect of any changes in the children’s circumstances (s 60CC(3)(d)), that his Honour can be seen as being able to draw any distinction between the parents when he said:
13. Paragraph (b) refers to the nature of the relationship of the children with each of the parents and with other persons including grandparents. I am satisfied that the children have a good relationship with both parents. Ms Styles [the family consultant] was inclined to think that their primary attachment was their mother, which is not be [sic] surprising. The parties adopted conventional roles during the marriage. The father was the breadwinner, working full-time in his … business and the mother did not engage in outside employment.
…
16.Paragraph (d) refers to the likely effect of any changes in the children's circumstances including the likely effect on them of any separation of either of their parents. The father's proposal for shared care would involve a change in the existing arrangement in that the children would spend two more days a fortnight with him and, in consequence, two less days a fortnight with their mother. Ms Styles was inclined to think that that sort of period away from their mother would not be in [K's] best interests. I accept, to a degree, the submissions made by counsel for the father that those conclusions were based on rather exiguous evidence but, nevertheless, I propose to take Ms Styles’ opinion into account. I also propose to take into account what I might call the “status quo argument”, that is, that the father's proposal would involve change in the arrangements that have continued since March this year. It would also involve, in effect, a change in the arrangements that have continued throughout these children's lives where their mother has been the primary carer.
His Honour then turned to s 61DA which, as he observed, recognises that when making a parenting order in relation to a child, a court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. His Honour then explained (in paragraph 26 of his reasons) that as the parties had agreed that there should be an order for equal shared parental responsibility, he would make such an order.
His Honour further explained that the significance of s 61DA is that “it brings into play s 65DAA”, and he went on to paraphrase s 65DAA(1) and (2) in the following way:
27. … Sub-section (1) of that section says that if a parenting order provides that a child’s parents are to have equal parental responsibility for a child, the Court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order for the child to spend equal time with each of the parents.
28. Sub-section (2) goes on to provide that if I do not make such an order I must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and whether that is practicable and, if it is, consider making an order to that effect.
Having observed that the existing interim arrangement and the arrangement sought by the mother “would satisfy sub-section (2)” (that is, the concept of “substantial and significant time”), his Honour turned to “sub-section (1)” and a consideration of “whether the children spending equal time with each of the parents is in the best interests of [the] children”.
His Honour then immediately said that he had concluded “that it would not be in their best interests” (that is, to spend equal time with each parent) and he went on to give the following reasons for this conclusion:
31.The first, but not of enormous significance, is the fact that Ms Styles recommends a continuation of the status quo. I give this limited weight for two reasons. First, as was submitted by counsel for the father, some of her conclusions as to the effect that such an arrangement would have on [K] are based on exiguous materials. Secondly she said in paragraph 7.7 of her report that she saw no “compelling reason” to change the status quo. The legal test as I apprehended it does not require any compelling reason to be shown before a change [to] the status quo can be made and so it is possible that her report is infected by that. Nevertheless, as I have said, I do give some weight to her assessment in relation to the possible affect [sic] on [K] of such an arrangement.
32.The second and more important matter is the fact that the arrangement whereby the mother is the primary parent and the father has a significant but lesser involvement with the children has been one which has existed throughout the children's lives. As I have said, the parties adopted a conventional arrangement during the marriage with the mother as the primary parent. I do not see sufficient reason to change this and, given that it has been the arrangement during the marriage and since March of this year, I consider it would be in the best interests of these children for that arrangement to continue.
His Honour then concluded that he did not propose to accede to the father’s application and that he would make orders in relation to the care of the children during school term as sought by the mother.
Finally his Honour explained the arrangements which he proposed to put in place for school holidays and what he termed “telephone contact”.
The amended legislation and the status quo: grounds 1 and 2
In seeking to establish that his Honour erred in determining this case – in which the only significant issue was the time that the children would spend with each parent – by relying on the “status quo”, counsel for the appellant father referred first to what his Honour said in paragraphs 16 and 32 of his reasons concerning the maintenance of the existing arrangements for the children. We have earlier set out those paragraphs and need not here repeat any part of them.
Counsel then directed her submissions to the case law relating to the so-called issue of “status quo” as it existed prior to the 2006 amending Act. We consider, with respect, that there is little value, at least in this case, in considering what may, or may not, have been the principles relevant to this issue prior to the 2006 amending Act. Nor do we consider that there is any value for present purposes in considering anything said by his Honour in his reasons for his interim orders made on 26 March 2007 and on which some reliance was placed before us by counsel for the appellant.
Following her analysis of the previous case law, counsel then moved to the position which now exists under the 2006 amending Act. She submitted that the weight which his Honour had attached to the existing arrangements for the children was contrary to the legislative intention of the 2006 amending Act – that intention being, in her submission, to move away from any reliance on the status quo, and to focus instead on the need for a meaningful relationship between a child and both of his or her parents.
Counsel further submitted that there was nothing in the legislation, as amended, which required any consideration of the status quo. Rather the emphasis was to the contrary as, she submitted, was illustrated by the insertion into the Act of s 60CC(4A) and s 61DB, which provide as follows:
s 60CC(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred (counsel’s emphasis).
s 61DB If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order (our emphasis).
However, we note in connection with s 61DB that that section is concerned only with “parental responsibility” which is defined in s 61B to mean:
… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
According to his Honour there was no disagreement in this case regarding the issue of parental responsibility; it was to be (as it apparently had been) equal shared parental responsibility.
Counsel for the appellant father also relied on the following passage from the decision of the Full Court in Goode & Goode (2006) FLC 93-286:
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.
We would also in this context draw attention to the following further passage from the decision in Goode & Goode (supra):
80.… Even absent the application of the presumption and thus the requirement to consider equal or substantial and significant time where it is not contrary to the child’s best interests and otherwise practicable, the addition of sub-section (a) to s 60B(1), which is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, is not necessarily consistent with a preference at an interim stage in favour of maintaining a status quo. That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in s 60CC(3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.
Although the decision in Goode & Goode (supra) was concerned with the determination of interim proceedings under the amended legislation, the above two passages are nonetheless of assistance in the present case for a number of reasons.
First, they support the submission of counsel for the appellant father that the emphasis or focus of the legislation is now clearly that both parents should have a meaningful involvement in a child’s life to the maximum extent consistent with the child’s best interests. In the present case, Brewster FM must be taken to have understood and endeavoured to apply this emphasis or focus given what he said in paragraphs 6 and 8 of his reasons (see paragraphs 11 and 13 above).
Secondly, these passages require that even at the interim stage, and obviously even more so at the final stage, there should be no automatic application of the “status quo”, but rather an application of the relevant sections of the Act, notably ss 60B, 60CC, 61DA and 65DAA. While in the present case his Honour ultimately decided to maintain the existing arrangements, it cannot seriously be contended that he did not apply those sections. We will return shortly to his application of s 65DAA and to the complaints raised in that regard by the appellant.
Thirdly, as is indicated by paragraph 80 of the decision in Goode & Goode (supra), and contrary to the submissions of counsel for the appellant (at least as we apprehended them), s 60CC(3)(d) with its reference to “the likely effect of any changes in the child’s circumstances including the likely effect of the child of any separation from [either parent]” must require that there still be some consideration of the existing arrangements for the child in question, and that some weight be given to the likely effect on the child of a change in those circumstances, including separation from a parent. In assessing the effect on the child of such a separation, the Court would need to have made findings under s 60CC(3)(b) concerning the nature of the relationship between the child and the parent.
In the present case, when considering that matter of the relationship between the children and their parents, his Honour, as he recorded in paragraph 13 of his reasons (see paragraph 17 above), had some evidence from the Family Consultant that the children’s primary attachment was to their mother. He can be read as accepting this evidence on the basis of the roles that each parent had played prior to separation.
When he came to consider s 60CC(3)(d) and the likely effect of a change in the arrangements for the children, his Honour was again prepared to accept the evidence of the Family Consultant (notwithstanding the reservations regarding the basis of that evidence expressed by counsel for the father) which was to the effect that it would not be in the younger child’s best interests to be away from her mother for a greater period of time.
In our view, his Honour was entitled to accept the Family Consultant’s evidence regarding these matters and to make the findings which he did in relation to the s 60CC(3) matters based on such evidence.
As his Honour explained in his reasons, it is on the basis of its findings in relation to the s 60CC matters that a Court determines what is in a child’s best interests. The child’s best interest is then the test or criterion to be used in the application of other sections of Part VII in the Act (including s 65DAA), and also in the determination of what should be the ultimate parenting order.
The federal magistrate’s application of s 65DAA: Ground 3
Ground 3 of the father’s Notice of Appeal asserts only that “his Honour gave insufficient reasons for his decision”. It was, however, clear from the submissions of counsel for the father that this ground was directed to his Honour’s application of s 65DAA and to an alleged failure on his part to provide reasons for refusing to make an order that the children spend equal time with each parent as sought by the father.
As we have earlier outlined (in paragraphs 18 and 19 above), having made his findings in relation to the s 60CC matters and having turned to s 61DA and the presumption of equal shared parental responsibility which was to apply in this case, his Honour explained that s 61DA “brings into play s 65DAA”.
His Honour then paraphrased the first two subsections of s 65DAA. In very brief summary, those sections require the court to consider first the option of the child spending equal time with each parent if that is in the child’s best interests and reasonably practicable, and if that first option is rejected, then the option of substantial and significant time with each parent if in the child’s best interests and reasonably practicable.
Having paraphrased the first two sub-sections of s 65DAA, his Honour then immediately observed that the existing arrangements for the children, which the mother sought to continue, “would satisfy sub-section (2)”, that is, the second option of substantial and significant time.
He then turned to “sub-section (1)” being the first option of equal time, saying:
30.… I am to consider whether the children spending equal time with each of the parents is in the best interests of those children. I have done so. I conclude that it would not be in their best interests. Put shortly, there are two reasons for this.
His Honour then set out his two reasons for his conclusion that equal time would not be in the children’s best interests in the two paragraphs which followed (and which we have set out in paragraph 21 above). At the end of the second of those paragraphs, he concluded that he would leave in place the existing arrangement, which three paragraphs earlier he had indicated amounted to substantial and significant time.
The essential complaints made by the father in relation to his Honour’s application of s 65DAA are that he did not in fact consider the option of equal time and/or that he rejected that option without giving sufficient reasons.
In considering these complaints it is important to bear in mind that his Honour’s judgment was delivered ex tempore. Indeed the transcript of the hearing before his Honour indicates that he delivered his judgment immediately following the conclusion of counsels’ final addresses.
It is not surprising that in a judgment delivered orally, his Honour, having explained the options required to be considered under the first two sub-sections of s 65DAA, would then make what could be regarded as no more than a passing observation to the effect that the existing arrangements, which the mother sought to continue, satisfied the description of substantial and significant time. Ideally his Honour should also have explained in that context that the father sought an equal time arrangement; but nothing turns on the fact that he did not do so.
More importantly, however, it must be recognised that it is not unusual, and in fact often occurs, in the context of an oral judgment, that the judicial officer will first announce his or her conclusion regarding a particular matter, or indeed regarding the whole case, before going on to give reasons for his or her conclusion.
This is exactly what his Honour did in paragraph 30 of his judgment in relation to the option of equal time, which he rejected as not being in the children’s best interests. He then went on in paragraphs 31 and 32 to give his reasons for rejecting the equal time option.
We point out here that having rejected equal time as not being in the children’s best interests, it was unnecessary for his Honour to consider whether such an option would be “reasonably practicable”.
As to the substance of his Honour’s reasons for rejecting an equal time arrangement, the first of those reasons which was contained in paragraph 31 and which related to the Family Consultant’s opinion that the status quo should continue, will be better understood if the paragraph from the Consultant’s report to which his Honour referred, is actually set out (which it was not in his Honour’s reasons). That paragraph from the Consultant’s report is as follows:
7.7In my opinion, [the mother’s] more relaxed style was meeting the children’s emotional needs well at this stage of their lives. She seemed in touch with their individual sensitivities. I saw no compelling reason to change the status quo. Judging from the limited information I had, I would surmise that [K] probably would not cope well with long blocks of time away from her mum at this young stage.
His Honour was correct to say that he would give the Consultant’s recommendation limited weight because of the limited material on which that recommendation was made and because of her reference to the need for a compelling reason to change the status quo. Nevertheless, in what was clearly a finely balanced case, his Honour was entitled to place some weight on the Consultant’s opinion as to the likely effect on the younger child of being separated from her mother for a week at a time. In our opinion, that was not an insignificant consideration, notwithstanding the qualified or speculative language of the last sentence of paragraph 7.7 of the Family Consultant’s report.
In relation to his Honour’s second reason for determining that an equal time arrangement would not be in the children’s best interests, it appears from paragraph 32 of his judgment that his Honour placed greater weight on his finding (made earlier in the context of the s 60CC matters) that the mother had up until that time been “the primary parent” for the children and that he considered that it was in the children’s best interests for this arrangement to continue.
We acknowledge that it was somewhat unfortunate that his Honour can be read as referring in paragraph 32 of his reasons to the need for a “sufficient reason to change” the existing arrangement, particularly given his earlier expressed reservation concerning the Consultant’s reference to “compelling reason to change the status quo”.
However, as we have already emphasised, this was an oral judgment given immediately at the end of the trial. It is only to be expected that his Honour’s language would not have been as precise as it would have been in a reserved written judgment. It must also be remembered that he was dealing with the relatively complex structure and language of the amended legislation, of which, it must be said, he can be seen overall to have a firm grasp.
Given the Consultant’s evidence regarding the possible impact on the younger child of a move to a week about arrangement, and given also the well recognised presumption in favour of the correctness of a discretionary judgment (Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621), we do not consider that our interference with his Honour’s decision would be justified simply on the basis of the manner in which he expressed his second reason for concluding that an equal time arrangement would not be in the children’s best interest.
The remaining grounds of appeal
The remaining grounds of appeal (Grounds 4 to 7) assert, in summary, that his Honour failed to have proper regard to ss 60CA, 60CC, 65DAA and that he gave a decision contrary to s 60B. Counsel for the appellant father addressed these grounds globally and relatively briefly. No doubt this was because the earlier grounds of appeal and the submissions in support of those earlier grounds had also been directed to the sections in question, particularly to s 60CC and s 65DAA.
Nothing put to us in support of the remaining grounds of appeal has established to our satisfaction that his Honour failed to have proper regard to, or to apply properly, the various sections of the Act which are the subject of those grounds.
Conclusion
For the reasons given, we have found no substance in the appeal. It must therefore be dismissed.
Finally, we would say that we do not accept the contention of counsel for the appellant father that the result arrived at in this case must mean that a parent who had not been the primary carer for the children prior to separation would never be able to assume such a role in the future. It cannot be emphasised too strongly that notwithstanding the provisions of the amended legislation, every case remains to be determined on its own facts having regard to the findings required to be made under that legislation.
Costs of the appeal
Having regard to the submissions made at the conclusion of the hearing before us in relation to the costs of the appeal, we are not persuaded that the circumstances would justify an order for costs as sought by the respondent mother.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 29 October 2008
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