Doherty & Doherty
[2016] FamCAFC 182
•8 September 2016
FAMILY COURT OF AUSTRALIA
| DOHERTY & DOHERTY | [2016] FamCAFC 182 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders – Where final parenting orders made in 2012 – Where no relevant change in circumstances to warrant reconsideration of the child’s living arrangements – Where the primary judge “re-made” the 2012 orders with minor variations – Where the primary judge ordered that the parents have equal shared parental responsibility for discrete aspects of parental responsibility and for the mother to otherwise have sole parental responsibility – Whether an order for equal shared parental responsibility may be made in relation to an aspect of parental responsibility – Whether an order allocating equal shared parental responsibility for an aspect of parental responsibility triggers the application of s 65DAA of the Family Law Act 1975 (Cth) – Whether the primary judge erred in failing to apply s 65DAA – No error established – Appeal dismissed. FAMILY LAW – COSTS – Where the father was wholly unsuccessful – Where the circumstances justify an order for costs – Where mother in receipt of legal aid – Where financial consequences of father’s unmeritorious appeal should not be visited upon the legal aid authority – Father to pay the mother’s costs of the appeal in instalments. |
| Family Law Act 1975 (Cth): ss 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B, 65D, 65DAA, 65DAC, 117 |
| Banks & Banks (2015) FLC 93-637 Beckham & Desprez [2015] FamCAFC 247 Carriel & Lendrum (2015) FLC 93-640 Chappell & Chappell (2008) FLC 93-382 Doherty & Doherty (2014) FLC 93-571 Doherty & Doherty [2012] FMCAfam 1365 Goode and Goode (2006) FLC 93-286 Newlands v Newlands (2007) 37 Fam LR 103 Pavli v Beffa (2013) 48 Fam LR 677 Poisat & Poisat (2014) FLC 93-597 Prewett & Mann [2013] FamCAFC 130 Rice and Asplund (1979) FLC 90-725 SCVG & KLD (2014) FLC 93-582 |
| APPELLANT: | Mr Doherty |
| RESPONDENT: | Ms Doherty |
| FILE NUMBER: | BRC | 5443 | of | 2008 |
| APPEAL NUMBER: | NA | 46 | of | 2015 |
| DATE DELIVERED: | 8 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ryan & Kent JJ |
| HEARING DATE: | 5 February 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 June 2015 |
| LOWER COURT MNC: | [2015] FCCA 1907 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page QC |
| SOLICITOR FOR THE APPELLANT: | Emerson Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Streit |
| SOLICITOR FOR THE RESPONDENT: | Burchill & Horsey Lawyers |
Orders
The appeal be dismissed.
The father pay the mother’s costs of and incidental to the appeal in the amount of $9,386, subject to the provisions of Order 3 hereof.
The costs shall be paid by the father to the mother in six equal monthly instalments, the first payment of which is to be made within one month of the date of these orders. In default of payment by the due date, the entire balance will immediately fall due.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Doherty & Doherty has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 46 of 2015
File Number: BRC 5443 of 2008
| Mr Doherty |
Appellant
And
| Ms Doherty |
Respondent
REASONS FOR JUDGMENT
May & Ryan JJ
By Amended Notice of Appeal filed on 14 July 2015, Mr Doherty (“the father”) appeals against orders made by Judge Vasta on 18 June 2015 in parenting proceedings with Ms Doherty (“the mother”) relating to their daughter, who was nearly 10 years old at the conclusion of the trial (“the child”).
This was the second time the parties’ disputes about their daughter had proceeded to trial. The first resulted in final parenting orders pronounced on 14 December 2012 (Doherty & Doherty [2012] FMCAfam 1365). The effect of those orders was that the child would live with the mother and spend time with the father. Orders were also made in relation to parental responsibility.
An appeal by the father against the 2012 orders was unsuccessful (Doherty & Doherty (2014) FLC 93-571).
Not long after the appeal was dismissed the father commenced these proceedings. In broad terms, he sought to discharge the 2012 orders, he have sole parental responsibility, for the child to live with him and spend time with the mother during school holidays and on two weekends during school term.
The position adopted by the mother changed a number of times and by the time the hearing commenced before the primary judge, she proposed orders in relation to parental responsibility and where the child lives identical to those made in 2012, and otherwise minor variations to the 2012 orders concerning the child’s time with the father.
The hearing proceeded on the basis that the father needed to establish the existence of circumstances different to those in 2012 and which justified another hearing concerning the child’s living arrangements (Rice and Asplund (1979) FLC 90-725). The primary judge was not satisfied there was such a change of circumstances, however, so as to minimise the prospect of endless litigation, in the best interests of the child, “cosmetic” variations to the 2012 orders were made. To give effect to this conclusion, the 2012 orders were discharged and re-made but with the cosmetic changes incorporated into the new orders. The parties would thus be able to work from one set of orders rather than two. It is against these orders that the father appeals.
The mother sought to uphold the orders.
The grounds of appeal
At the commencement of the hearing, counsel for the father made an oral application to include additional grounds of appeal. The mother opposed this application and for reasons given at the time the application was refused.
The father had abandoned his challenge as to the change of circumstances issue and the appeal was pressed on the basis that the primary judge “…failed to measure the evidence against the principles set out in Part VII of the Family Law Act, the objects of the Part, the best interest principles, the presumption of equal shared parental responsibility, and failed to follow the steps required by the Act”. In oral submissions it was asserted that the primary judge erred:
·in having made an order for equal shared parental responsibility, he failed to apply s 65DAA of the Family Law Act 1975 (Cth) (“the Act”); and
·in “re-making” the 2012 orders but failing to adequately address s 60CC of the Act.
Equal shared parental responsibility and s 65DAA
It is appropriate to note that there was no challenge to the findings of fact of the primary judge.
This challenge is focused on Order 5 made by the primary judge which is set out below:
That subject to Orders 3 and 4 hereof, the mother and father have equal shared parental responsibility for the child in relation to the child’s name and any change of living arrangements that would make it significantly more difficult for the child to spend time with either parent.
Reference to Orders 3 and 4 is to an order (Order 3) that the mother have sole parental responsibility for the child (other than in relation to the matters referred to in Order 5) and an order (Order 4) that requires the mother to consult the father in relation to her exercise of sole parental responsibility for the matters covered by Order 3.
We observe that Order 5 of his Honour’s orders is similar to Order 2 of the December 2012 orders and, when Order 4 of these orders is taken into account, other than to remove the matter of religious observance from the 2012 order for equal shared parental responsibility, there is no difference in the conferral of parental responsibility by the 2012 orders and those made by his Honour. In circumstances where the father abandoned the “Rice and Asplund” challenge, we were tempted to dismiss this aspect of the appeal as an abuse of the Court’s process. However, because this challenge has practical importance concerning the formulation of orders and the circumstances in which s 65DAA is triggered, it will be addressed.
It is uncontroversial that, other than in relation to orders made by consent, if a parenting order provides or is to provide that parents are to have equal shared parental responsibility, s 65DAA (court to consider child spending equal time or substantial and significant time with each parent in certain circumstances) is triggered. Further, where equal time and substantial and significant time are in issue, a judge is required to consider whether an order for equal time or substantial and significant time is in the best interests of the child and reasonably practicable (Beckham & Desprez [2015] FamCAFC 247; SCVG & KLD (2014) FLC 93-582). Only if those propositions are answered in the negative, could the question of what outcome promotes the child’s best interests be treated, in effect, as at large (Goode and Goode (2006) FLC 93-286 at [65(8)]).
Counsel for the father argued that because by Order 5 the father is to have equal shared parental responsibility with the mother “in relation to the child’s name and any change of living arrangements that would make it significantly more difficult for the child to spend time with either parent”, s 65DAA was triggered and, notwithstanding there was no relevant change in circumstances, the primary judge was required to consider equal time and substantial and significant time.
This required consideration of:
·whether it is permissible for there to be an order for equal shared parental responsibility directed to an aspect of parental responsibility (as counsel for the father contended) or whether equal shared parental responsibility is an absolute concept and can only be ordered so as to confer every aspect of parental responsibility on two or more persons equally; and
·assuming an order can be made to discrete aspects of parental responsibility, whether an order for parents to have equal shared parental responsibility in relation to an aspect (but not every aspect) of parental responsibility, is sufficient to trigger s 65DAA (as counsel for the father contended).
The Full Court has thrice considered the first point and on each occasion has concluded that an order for equal shared parental responsibility may be made in relation to an aspect of parental responsibility. In this regard, it should be noted that the term “parental responsibility” is defined in s 61B of the Act and means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. The term “equal shared parental responsibility” is not defined in the Act.
At the hearing we indicated we understood Watts J had published a decision consistent with the argument advanced by the father. Unfortunately counsel for the father was unfamiliar with the decided cases (indeed provided none to support his argument) and our analysis is undertaken without having had the benefit of argument directed to the cases. In the event we located Pavli v Beffa (2013) 48 Fam LR 677 (“Pavli”), in which Watts J did indeed come to a different conclusion to that reached by the Full Court.
The issue was first discussed in Newlands v Newlands (2007) 37 Fam LR 103 (“Newlands”), per Bryant CJ, Finn and Boland JJ. In Newlands, the Full Court considered an appeal from an order for a parent to have sole parental responsibility in relation to education and otherwise that the parents have “joint parental responsibility”. At [86], the Full Court said “[t]he Act does not refer to ‘joint parental responsibility’ but rather to ‘parental responsibility’ and ‘equal shared parental responsibility’”. As the Full Court explained, having allocated one aspect of parental responsibility to the mother, the issue of how the remaining aspects of parental responsibility were to be allocated arose. Two possibilities were identified.
The first possibility was an order that the parties have equal shared parental responsibility for those remaining aspects of parental responsibility, which would require them to make decisions about the remaining major long-term issues jointly as required by s 65DAC (Newlands, [90]). In this respect, s 65DAC(1)(a) refers to “share[d] parental responsibility” and provides that the obligation to make decisions about major long-term issues “jointly” is triggered by an order that the parties are to share parental responsibility and which could, but need not be, an order for equal shared parental responsibility. It will be self-evident that an order for equal shared parental responsibility simpliciter has the effect that two or more persons (in Newlands’ case parents) are to share parental responsibility for a child and to which s 65DAC thus applies.
The second possibility was for there to be no order as to the remaining aspects of parental responsibility. By virtue of s 61C (each parent has parental responsibility subject to court orders) and s 61D (parenting orders and parental responsibility) this would mean that the parties were to share parental responsibility for the child and that the remaining aspects of parental responsibility would be exercised by the parents either jointly (major long-term issues (s 65DAC(2)) and otherwise independently (Newlands, [91]).
At [92] their Honours explained the effect of their decision as to parental responsibility thus:
In this case the trial Judge did not make either of these possible orders. She made an order for “joint parental responsibility” after giving the wife “sole parental responsibility” for education. As we said earlier, the Act does not speak of “joint parental responsibility”. It appears to us by not following the legislation, her Honour created uncertainty about the outcome. We cannot be certain that her Honour intended that parental responsibility (other than education) was to be shared equally and thus exercised jointly (that is, in consultation) or whether parental responsibility was to be exercised in accordance with s 61C and s 61D and exercised either jointly or independently.
It follows their Honours were satisfied it is permissible for an aspect of parental responsibility (including in relation to major long-term issues) to be allocated to one parent (or person) and, for the other aspects of parental responsibility to be the subject of an order for equal shared parental responsibility.
In Chappell & Chappell (2008) FLC 93-382 (“Chappell”) the Full Court, per Warnick, Boland and Thackray JJ, heard an appeal against an order that parents have equal shared parental responsibility but subject to an order that the mother have sole parental responsibility for the management of health and education issues. The Full Court was satisfied that the order was intended to confer on the mother at least some authority to make important decisions in relation to the child’s education and health. Reference was made to Newlands and in obvious support for that decision, the Full Court in Chappell pointed out the uncertainty that can be created when orders allocate parental responsibility using a form of words not known to the Act.
As their Honours explained (at [76]):
We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
This aspect of the appeal was allowed and although the Full Court decided to remit the proceedings, at [114], their Honours said:
... we may have considered it appropriate, given his Honour’s findings, for the parties to have equal shared parental responsibility for all major long-term issues save for issues relating to [the child’s] health and education and that the wife should have had responsibility for the latter.
This issue was also considered by the Full Court, per Ainslie-Wallace, Murphy and Tree JJ, in these parties’ first appeal, Doherty & Doherty (2014) FLC 93-571 (“Doherty”), albeit without reference to Newlands or Chappell. As we said earlier, the 2012 orders had the same effect (subject to religious observance) as the orders under consideration in this appeal. Namely, that the parties have equal shared parental responsibility for some major long-term decisions and that otherwise the mother have sole parental responsibility, in relation to which conditions concerning consultation and the like were attached. Counsel who then appeared for the father on the first appeal argued that the orders could not be construed as an order for equal shared parental responsibility.
The Full Court said:
42.To the extent that the challenge is based on asserted error other than adequacy of reasons, it appears to be based upon an assertion that the orders as made cannot sit with what s 61D and s 65DAC require. The first observation to be made is that s 65DAC is applicable not only when the presumption of equal shared parental responsibility applies or where, independent of that presumption, an order to that effect is made; it also applies whenever “2 or more persons are to share responsibility for a child” and where “the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to a child”. The section applies whether parental responsibility in respect of a long-term issue is shared equally or otherwise. Secondly, and importantly, the section’s use of the singular and the definition of “parenting order” in s 64B is each indicative of the fact that parental responsibility for some long term issues may be shared while others may not and, additionally, that parental responsibility for some issues might be shared equally while others are not shared equally or not shared at all. Finally, the fact that the presumption is rendered inapplicable or rebutted has an effect upon the process required by s 65DAA, but it does not affect the nature of the orders that can be made, including orders that attribute parental responsibility in respect of some of the “powers, duties, responsibilities and authority which, by law, parents have in relation to children” (s 61B).
43.It follows that, once the infelicity of language earlier referred to is excused, there is no error per se in her Honour ordering parental responsibility in respect of some aspects of parental responsibility to one parent and ordering equal shared parental responsibility in respect of other aspects of parental responsibility.
Thus in relation to the allocation of parental responsibility Chappell, Newlands and Doherty are on all fours.
In Pavli Watts J was asked to make orders by consent, which relevantly sought “[t]hat the parents have equal shared parental responsibility for the child … on condition that the mother shall consult with the father with regard to matters relating to parental responsibility of the child and if no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father of that decision in writing” ([2]). His Honour refused to make that order because “…of the way the words ‘equal shared parental responsibility’ are used in two important sections of the FLA, that expression should only be contained in orders that allocate parental responsibility in relation to making decisions for all, not just some, major long-term issues…” and “…if one party is empowered to make a final decision about any specific major long term issue, the adjective ‘shared’ should not be used to qualify the parental responsibility being allocated” ([4]).
After his Honour referred to Chappell and Newlands (Doherty was decided later) and the decision in both cases that an order for equal shared parental responsibility could be made in relation to specific, but not necessarily all, major long-term issues, he said at [25]:
With respect, if there can be “equal shared parental responsibility” for individual major long-term issues, then there is no difference between the terms “equal shared parental responsibility” and “shared parental responsibility”. The Parliament must be taken to have meant to have qualified in some way the term “shared parental responsibility” by the addition of the word “equal” in ss 61DA and 65DAA of the FLA...
Watts J went on to explain:
[28] The difficulty with the notion that an order for equal shared parental responsibility can be limited to a single major long-term issue can be demonstrated by considering an extreme example. Assume a court proposed to order that one parent is to have parental responsibility for all major long-term issues except for decisions about the child’s surname (for which parental responsibility is to be shared). It makes little sense within the scheme of Pt VII of the FLA to draft that order so that the parents have equal shared parental responsibility for decisions about the child’s surname. This is because:
(28.1) Such an order would trigger a need to consider equal time and if equal time is not ordered, further consider substantial and significant time in circumstances where one parent had parental responsibility in relation to changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
(28.2) While it might be argued that parental responsibility in relation to the child’s surname is “equal” as well as “shared”, the addition of the adjective “equal” in these circumstances is otiose and leads to confusion.
…
As we will now explain, we are not persuaded that the view expressed in Pavli should be preferred to that expressed in Chappell, Newlands and Doherty and the rationale provided in each for the conclusions reached. As we mentioned earlier, s 65DAA is solely concerned with the effect of an order for equal shared parental responsibility for the child made in favour of the child’s parents. It speaks in absolute terms and proceeds on the basis that in relation to parental responsibility, the child’s parents’ are in every respect equal. It is for this reason that the section requires consideration of whether the child spending equal time with each parent would be in the best interests of the child. On the other hand, s 65DAC speaks to the effect of an order that requires two or more persons (who may or may not be the child’s parents) to share parental responsibility and the exercise of which involves a decision about a major long-term issue. The provisions do different things. There is nothing contained in either provision (or indeed the definitions of parental responsibility and parenting order) that limits the allocation of equal shared parental responsibility to the equal conferral of every aspect of parental responsibility. In this respect Doherty is particularly persuasive. It follows that we agree that an order for equal shared parental responsibility may be made in relation to a discrete aspect of parental responsibility.
However, an order that a child’s parents have equal shared parental responsibility for some but not all aspects of parental responsibility, as we have just explained, would not trigger s 65DAA.
It follows that the primary judge was not required to apply s 65DAA and the challenges raised by this ground must fail.
Re-making the 2012 orders
The focus of this challenge is his Honour’s decision to re-make the 2012 orders rather than make the “cosmetic changes” by way of variation. In other words, that in discharging the orders and making new orders they were final in substance and required consideration of a number of sections of the Act.
There being no challenge to the “cosmetic changes” per se this argument is one of form and not substance. According to counsel for the father, the primary judge could only discharge, suspend or revive the earlier parenting order or part of an earlier parenting order (s 64B(1)(b)) and thus could not “re-make” the 2012 orders without reconsidering s 60CC of the Act and s 65DAA afresh. The argument is unpersuasive. Read in its entirety, s 64B is a definitional provision which provides that a parenting order is an order which deals with any of the matters listed in s 64B(2). The “re-made” orders can properly be categorised as variations of the 2012 order and to which s 64B(1)(b) applies.
His Honour’s reasons for the re-made and cosmetic orders are clear; [30], [39] and [41]. Stated simply, there was no relevant change in circumstances which could justify reconsideration of the substantive orders. However, consistent with the recommendations of the family consultant and the ongoing difficulties created for the child by the poor level of communication between the parties, some specificity to a number of orders was needed. In the circumstances nothing more needed to be said.
This challenge is not made out.
Conclusion and costs
None of the father’s challenges to his Honour’s orders has succeeded and the appeal will be dismissed.
As is customary, we sought submissions from the parties on the question of the costs of the appeal. The mother sought costs in the event that the appeal was unsuccessful in the amount of $9,386. The father does not challenge the quantum of costs sought but argued that an order for costs should not be made against him asserting there was merit in the appeal.
The question of costs is governed by s 117(1) of the Act which provides that each party to proceedings under the Act bear his or her own costs, unless the court is of the opinion that the circumstances justify the making of a costs order (s 117(2)). In determining what order (if any) should be made, the court must have regard to the factors in s 117(2A).
The father has been wholly unsuccessful, a factor which amounts to justifying circumstances. Both he and the mother have limited income. In relation to the father, he does not have the amount sought to hand and an instalment regime would be required in order to avoid significant hardship. Fortunately for her, the mother was able to obtain a grant of legal aid and any costs awarded against the father will ultimately reimburse the legal aid authority for costs incurred in facilitating the mother’s representation. We see no reason why the legal aid authority (tax payer) should carry the financial consequences of the father’s thoroughly unmeritorious appeal.
We will order that the father pays the mother’s costs in the amount sought, to be paid by equal monthly instalments over a period of six months and, in default of payment, the entire amount outstanding becomes due and payable.
Kent J
I have had the considerable advantage of reading in draft form the reasons for judgment of May and Ryan JJ. I agree that the father’s appeal ought be dismissed and I also agree with the costs orders proposed by their Honours.
I need not repeat what their Honours have comprehensively summarised about the history of these proceedings; the circumstances in which the subject parenting orders were made; and as to how the father’s challenges on appeal crystallised into the two central challenges to be dealt with.
“Equal shared parental responsibility” within the meaning of s 65DAA
Mr Page of Queen’s Counsel for the father argued on appeal that because the trial judge made an order that the parents have equal shared parental responsibility in respect of two aspects only of parental responsibility (the child’s name and any change of living arrangements impacting upon the child spending time with either parent), this was sufficient to activate s 65DAA of the Act. Section 65DAA mandates consideration by the court of a child spending equal time or substantial and significant time with each parent “if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child.” Thus counsel for the father contends that the trial judge erred in not undertaking the consideration mandated by s 65DAA.
The term “equal shared parental responsibility” appears in two sections only of the Act: s 61DA (presumption of equal shared parental responsibility when making parenting orders) and s 65DAA (court to consider child spending equal time or substantial and significant time with each parent in certain circumstances). There is no reason to suppose that the term does not have precisely the same meaning in both sections, given that commonality and the obvious interplay in operative effect of those sections.
In my judgment it is readily demonstrated as a matter of statutory construction that a parenting order which deals with parental responsibility, however expressed, but which does not have the effect of conferring on both parents an equal share of all (and hence each and every) of the duties, responsibilities and authority which, by law, parents have in relation to children:
a)Cannot be characterised as an order fulfilling the application of the s 61DA presumption; and
b)Is not a parenting order which provides that a child’s parents are to have “equal shared parental responsibility” within the meaning of s 65DAA.
This is demonstrated by reference to the definition of “parental responsibility” in s 61B of the Act; other relevant sections within Division 6 of Part VII dealing with parental responsibility; and s 64B(2) which specifies the matters with which a parenting order may deal.
The definition of “parental responsibility” in s 61B of the Act is exhaustive and self-contained. Section 61B provides:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
(Original emphasis)
Section 61C provides that each of the parents of a child has “parental responsibility” for the child, subject to any order of the court (s 61C(3)).
Section 61D provides:
(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
(Emphases added)
Section 64B(2)(c) provides that a parenting order may deal with the allocation of parental responsibility for a child; and subparagraph (i) of that section specifically provides that a parenting order may deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The consequences of these provisions relevant to the father’s argument are obvious. First, whilst s 61D(2) and s 64B(2)(i) confirm that there can be an “aspect” of parental responsibility dealt with by a parenting order, the definition of “parental responsibility” in s 61B embraces all aspects or component parts comprising what is meant by that term when it is used in Part VII of the Act, including in ss 61DA and 65DAA. Second, a parenting order confers parental responsibility for a child on a person only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child. Third, and as a corollary to the last, a parenting order may by its terms or effect “take away” or “diminish” any aspect of parental responsibility a parent might otherwise have.
It follows that if the effect of a parenting order is to confer upon one parent anything less than an equal share, with the other parent, of all aspects (and hence each and every aspect) of parental responsibility; or to “take away” or “diminish” any aspect of one parent’s parental responsibility for the child as compared with that of the other parent; it cannot sensibly be construed to be an order for “equal shared parental responsibility” within the meaning of that term when it is used in s 61DA and s 65DAA of the Act.
It could not sensibly be concluded that a court, in purportedly applying the s 61DA 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, meets that obligation by an order that the parents have equal shared parental responsibility for only one aspect, or some aspects (perhaps minor) of parental responsibility but not for “parental responsibility” as defined which incorporates all aspects of parental responsibility. For the same reason such an order would not be an order for “equal shared parental responsibility” within the meaning of s 65DAA.
There is thus no substance in the father’s contention that because the trial judge made an order for the parents to have equal shared parental responsibility for only two discrete aspects of parental responsibility, with the mother to have sole parental responsibility for all other aspects, that this constituted an order for “equal shared parental responsibility” within the meaning of s 65DAA of the Act. The trial judge did not make an order for equal shared parental responsibility within the meaning of s 65DAA and thus the trial judge was not bound to apply that section of the Act.
Section 60CC considerations
The balance of the father’s complaints on appeal have, as their common central contention, that the trial judge in making the orders he did, not by way of variation of the 2012 orders, but by “re-making” parenting orders, was bound to consider and address the s 60CC considerations. Counsel for the father submitted to the effect that if the trial judge had made orders confined to varying the 2012 orders it would not have been necessary for the trial judge to address the s 60CC considerations, but because the trial judge “re-made” parenting orders it was necessary for the trial judge to consider and address the s 60CC considerations. For reasons which will shortly be discussed, the distinction made by counsel is not one authorised by the Act.
In Carriel & Lendrum (2015) FLC 93-640 (“Carriel”) the Full Court of this Court held that when applying the principle in Rice and Asplund it is not necessary for a court to address in any detail, or even at all, the s 60CC considerations. Moreover, that case and other authorities referred to in it (particularly the Full Court in Poisat & Poisat (2014) FLC 93-597 (“Poisat”) and the references to other authorities in Poisat) render it extremely doubtful that when application of the principle in Rice and Asplund results in an order dismissing an application to vary or discharge an earlier parenting order, that such order is itself a “parenting order” within the meaning of s 64B(1) of the Act.
However, here the trial judge did not simply order the dismissal of the father’s application, but made parenting orders. The questions that then arise are, first, to what (if any) extent was the trial judge required to address the s 60CC considerations in making those orders? Second, did the trial judge err in an appellate sense by failing to address relevant s 60CC considerations to the extent required?
As a starting point in addressing these questions it must be acknowledged that the trial judge did not identify in his reasons for judgment the juridical source of power he relied upon to make the orders he made; nor indeed did the trial judge identify any legislative requirements that may have been relevant to, and were considered by him, in the exercise of that power. As that unfortunately leaves this Court to establish what the trial judge ought to have established by proper articulation in his reasons for judgment, that omission of itself does not enliven appellate intervention unless it be concluded that what the trial judge did reflects an error in application of legal principle.
Section 65D of the Act contains the source of power to make a “parenting order” as defined in s 64B. It would not seem to be open to doubt that the trial judge made “parenting orders” as defined. Section 65D(2) expresses the power to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. Section 65D(2) provides:
Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
Section 65D(2) makes no distinction between a parenting order which varies an earlier order only to a modest or minor extent, and one which substantially varies an earlier order. Whilst the trial judge referred to making “cosmetic” changes to the 2012 orders, and the differences between the orders the trial judge made and the 2012 orders can reasonably be characterised as relatively minor or modest, no such feature is embraced as a distinguishing feature by the express terms of s 65D(2).
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration and s 60CC mandates the matters to be considered by the court in determining a child’s best interests.
Thus it would seem to follow that the exercise of s 65D power to make any parenting order, including one which effects even modest changes to an earlier parenting order, necessarily entails the application of s 60CC. However, of critical importance to note here are the circumstances in which the s 60CC matters fell for consideration in the circumstances of this case, and the extent to which consideration of those matters was necessarily a part of the task the trial judge performed.
It is well settled that the nature and extent of the consideration of the mandatory statutory considerations depends upon the circumstances of the case, including the nature and breadth of the issues to be determined (see SCVG & KLD cited with approval in Poisat; and see also Banks & Banks (2015) FLC 93-637).
It is likewise well settled that the rule in Rice and Asplund and its application is itself a manifestation of the best interests principle enshrined in s 60CA (Prewett & Mann [2013] FamCAFC 130; Poisat and Carriel).
In Carriel the Full Court said (at [57]):
57.In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
In this case the trial judge identified (at [5] of the reasons) the seven specific topics or matters the father agitated as establishing a significant change in circumstances since the 2012 orders were made, as follows:
a)Physical abuse by the mother on [the child];
b)Neglect by the mother in her care of [the child];
c)A failure to share information;
d)A change of religion;
e)Poor school attendance;
f)Suicidal tendencies of the mother; and
g)Refusal to go to mediation.
To that list may be added the father’s contention, referred to in [6] of the reasons, “that there had been a total failure of” the 2012 orders.
It hardly need be said that the matters in (a), (b) and (f), in particular, as well as the father’s general contention that the 2012 orders had totally failed, are substantial or serious topics or matters he raised in agitating a case for change of circumstances.
The trial judge’s reasons reflect his consideration of, and findings about, each of the topics or matters referred to in turn. That process was informed by, not only the affidavit evidence of each parent, but the oral evidence given by them, and other witnesses, under cross-examination.
In addition it can be seen from the reasons for judgment that the trial judge considered in some detail, and made findings about, the expert family report obtained for the proceedings dealing as it did not only with the above matters but focusing significantly upon the views expressed by the child to the expert; and the expert’s opinions about those views.
Plainly, the trial judge’s consideration of, and findings about, the topics or matters agitated by the father and the matters the subject of expert evidence, including the views of the child, necessarily entailed consideration of relevant considerations expressed in s 60CC, as is reflected in the reasons for judgment of the trial judge.
No challenge was pursued by the father on this appeal to the effect that the trial judge erred in applying the principle in Rice and Asplund; that is in respect of the trial judge’s conclusion that the father had not made out a case demonstrating a significant change in circumstances since the 2012 orders.
The trial judge’s application of that principle can be seen to be a manifestation of the best interests principle in s 60CA. The application of the Rice and Asplund principle necessarily carries the corollary that the existing parenting orders currently meet the child’s best interests as reflected in those orders. In resolving to apply that principle the trial judge necessarily considered and resolved each of the topics or matters agitated by the father as well as relevant matters addressed in the expert report.
In those circumstances, the limited nature and extent of the variations identified by the trial judge as being required did not necessitate any greater elaboration by the trial judge, than that contained in the reasons for judgment of the trial judge in dealing with the Rice and Asplund issue, on the broad and multiple topics upon which the father agitated the issue of change in circumstances. In other words, the trial judge was not required to provide any greater elaboration than he did as to the relevant s 60CC considerations, in making parenting orders.
This conclusion is fortified by the observation that nowhere within any of the father’s grounds of appeal as pursued; his written summary of argument as pursued; or his Queen’s Counsel’s oral submissions in argument of the appeal; is there identification of a relevant s 60CC consideration, material to the parenting orders made (in circumstances where the principle in Rice and Asplund was applied) not absorbed either expressly or by necessary implication in the overall determination of the trial judge. The father thus does not establish that the trial judge erred by failing to consider a relevant s 60CC consideration in making the parenting orders the trial judge made disposing of the remaining issues to be determined once the principle in Rice and Asplund was to be applied.
There is thus no merit in the father’s complaints on appeal.
For these reasons the appeal ought be dismissed and I agree with the reasons of May and Ryan JJ for making the costs orders their Honours propose.
I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ryan & Kent JJ) delivered on 8 September 2016.
Associate:
Date: 8 September 2016
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