Dorsey & Lamb
[2021] FedCFamC1A 94
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dorsey & Lamb [2021] FedCFamC1A 94
Appeal from: Lamb & Dorsey [2021] FCCA 1783 Appeal number(s): NOA 53 of 2021 File number(s): TVC 11 of 2020 Judgment of: ALDRIDGE J Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Adequacy of reasons – Primary judge’s reasons for judgment are inadequate – Appeal allowed – Matter remitted for rehearing – Costs certificates issued in respect of the appeal and rehearing. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Nominal Defendant v Kostic [2007] NSWCA 14
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 43 Date of hearing: 30 November 2021 Place: Sydney (via video link) Counsel for the Applicants: Mr Trevino QC Solicitor for the Applicants: Connolly Suthers Lawyers Counsel for the First Respondent: Mr Van der Weegen Solicitor for the First Respondent: Freedom Law The Second Respondent: Self-represented litigant Counsel for the Independent Children’s Lawyer: Ms Lawrence Solicitor for the Independent Children’s Lawyer: Keir Steele Waldon Lawyers ORDERS
NOA 53 of 2021
TVC 11 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR B DORSEY
First Appellant
MS DORSEY
Second Appellant
AND: MS LAMB
First Respondent
MR DORSEY
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
17 DEMCEBER 2021
THE COURT ORDERS THAT:
1.The appeal against the orders made on 4 August 2021 is allowed.
2.The matter be remitted for rehearing to the Federal Circuit and Family Court of Australia (Division 2) by a judge other than the primary judge.
3.The orders made on 4 August 2021 are set aside on and from the first mention of the remitted matter before a judge of the Federal Circuit and Family Court of Australia (Division 2), Orders 13 and 14 are to remain stayed until that time.
4.The Court grants to the appellants a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellants in respect of the costs incurred by the appellants in relation to the appeal.
5.The Court grants to the first respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.
6.The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
7.The Court grants to each of the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dorsey & Lamb has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is an appeal from parenting orders made by a judge of the Federal Circuit Court of Australia (as it was then known) on 4 August 2021. Effectively, there is but one ground of appeal which is that the reasons of the primary judge are inadequate. These reasons explain why I consider that this ground has been made out.
Ms Lamb (“the mother” and the first respondent in the appeal) and Mr Dorsey (“the father” and the second respondent in the appeal) are the parents of X (“the child”) who was born in 2012. The respondents separated in March 2015 and the child went to live with the mother and the father moved to City J.
The mother moved to Suburb CC with the child in November 2015 and commenced a new relationship, to which a child, L, was born in March 2016.
In March 2017 the mother, her new partner and both children moved to City D and the child commenced school there.
The mother separated from her new partner in August 2018 and, shortly after, on 2 September 2018, the mother contacted Ms Dorsey (“the paternal grandmother”) and asked her to care for the child for a period of time. The paternal grandmother and her husband, Mr B Dorsey (“the paternal grandfather”) are both the appellants.
The paternal grandmother travelled to Melbourne on 6 September 2018, collected the child and returned to her home in City F. Less than a fortnight later the mother herself left Victoria and returned to live with the maternal grandmother in Suburb CC.
The mother commenced proceedings on 2 November 2018 in relation to both of her children. On 11 December 2018, orders were made for the child to live with the paternal grandmother in City F and for L to live with her father, the mother’s former partner, in City D.
At an interim hearing on 3 October 2019, the mother made an interim application that both children live with her in Suburb TT. This led to the proceedings being split into separate matters for each child on 27 November 2019. At this time, the child was spending regular time with the mother in Suburb TT, which continued.
The father moved to City F on 14 October 2020 and begun living with the paternal grandparents and the child.
At the hearing, the mother contended that she should have sole parental responsibility for the child who was to live with her in City D. The child was to spend time with the father and the paternal grandparents in City F.
The father and the paternal grandparents maintained that the child should remain living with them in City F.
The primary judge therefore faced a difficult task determining what orders were in the best interests of the child because, whatever course was chosen, the outcome would have a very significant effect on the child.
The Independent Children’s Lawyer (“the ICL”), who had been appointed to represent the child’s interests, supported orders largely along the lines proposed by the mother. The ICL did not resile from that position on appeal, but nonetheless supported the appeal contending that the reasons were inadequate.
THE APPEAL
The obligation to give adequate reasons is well known. In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, the Full Court of the Family Court of Australia adopted the principles expounded in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, saying:
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. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
An essential part of any reasons for judgment is an explanation as to why one party’s case was preferred to the others. In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the Court of Appeal said:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations removed)
The Court must do more than simply refer to the various contentions and say that one is preferred (Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at [28]; Nominal Defendant v Kostic [2007] NSWCA 14 at [58]; Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116]).
In terms of parenting cases, the general principle that “the necessary content of reasons… depends on the context in which they are given” and that “the judgment needs to address only the contentious factual and legal matters which remain outstanding” (SCVG & KLD (2014) FLC 93-582 at [78]).
In this matter there were a number of matters in contention as will emerge from a discussion of his Honour’s reasons. It is necessary then to turn to those reasons.
His Honour undertook a general introduction at [1]–[10].
The parties’ contentions were summarised at [11]–[15]. From that it can be seen that there was a dispute as to:
·Whether the mother should have sole parental responsibility or whether it should be shared;
·Whether the child should live in City D with the mother or in City F with the paternal grandparents and the father; and
·Who should be responsible for the cost of travel.
At [16]–[20] the primary judge summarised the Family Report dated 21 October 2020 and set out a number of quotes from it. Apart from recording that in respect of paragraph 120 of the Family Report (which actually contained two comments) that “[the] comment” was “quite significant”, no finding was made. The primary judge did not say why he found the comment (whichever one he was referring to) to be significant.
The primary judge summarised paragraph 129 of the Family Report as follows:
18. …
129. The decisions for X at this juncture remain complex and costly whereby strengths and vulnerabilities are identified for him in the competing proposals of the parties.
His Honour continued:
19.In the final paragraph of her report (paragraph 130) the Family Consultant identifies an approach which could be in [the child’s] best interests if he is to be ordered to live with [the mother]. I have taken note of those recommendations in framing the orders which will be made.
20.In a number of the quoted paragraphs from the Family Reports set out above, not the whole of the paragraph written by the Family Consultant is included. I am comfortable that what is recorded above accurately presents the relevant content and the opinion or recommendation of the Report Writer.
21.Because three of the five parties in the hearing (counting the ICL) were self-representing, I have set out in more than usual detail the comments in the Family Report and the evidence which I recorded.
The mother’s evidence was summarised at [22]–[72], including her allegations of family violence, the father’s evidence at [73]–[112], the paternal grandfather’s evidence at [113]–[121], the paternal grandmother’s evidence at [122]–[162] and the father’s re-examination at [163]–[167].
Dr O, the child’s paediatrician gave evidence which was summarised at [168]–[180]. His Honour noted that Dr O considered that now, the child “looked settled and happy” (at [180]).
The evidence of Dr T, the mother’s psychiatrist was recorded at [181]–[184].
The oral evidence of the Family Consultant was summarised at [185]–[203] and that of the child’s psychologist at [204]–[212].
As far as can be determined, no findings were made in any of the above paragraphs save that at [128], having said that the mother did not allege the father raped her, his Honour found that the event was non-consensual sex. That finding is never referred to again. His Honour also found that when the mother handed the child to the paternal grandmother in September 2018, the mother “did not agree with [the child] being in [City F] for longer than 2-3 weeks” (at [214]). Again, that finding is not mentioned again and its significance, if any, remains unknown.
At [213]–[218] his Honour discussed the creditworthiness of each of the witnesses and found them all to be believable save for the father who he found to be “more argumentative and sometimes aggressive in replies to questions” (at [217]). Consequently, the primary judge said he would place less weight on his evidence.
His Honour did not identify any factual disputes to which these observations were relevant and did not make any findings based on them.
At [219]–[222] the primary judge discussed a case referred to by counsel for the mother which his Honour, apparently, found of little assistance.
The parties’ submissions and those of the ICL were summarised at [223]–[227].
It is apparent from that recitation that the key issues were the mother’s parenting capacity (it was described as a “leap of faith” to have the child live with her (at [225] and [228])) and the effect on the child, i.e. change of circumstances, in a move from the paternal grandparents care in City F, in which he had lived for the last three years, to City D. This led to the following:
COMMENTARY AND CONCLUSIONS
228.As referred to above in my recording of the submissions by the Father and [the paternal grandparents], their view is that it would be a leap of faith to change [the child’s] residence from City F to City D. They believe that the Mother’s parenting skills are untested, even if the evidence is that she has made significant progress since the dark days for her of 2018.
229.The expert evidence is that [the child] will benefit from living with his Mother and in fact, it may be a source of considerable emotional and psychological loss for him in the future if this does not occur.
230.The updated Family Report supports [the child] living with his Mother although it recognises that caution about an order changing residence, should be exercised. The report recommends support for [the child] during any transition period.
231.The Mother is seeing her daughter [L] regularly. She has had [the child] and [L] in her household during school holiday periods when [the child] has travelled to City D.
232.In my view, the recommendations of the Family Report Writer which are supported by the Mother’s psychologist and by the Independent Children’s Lawyer, should be put into effect.
233.It needs to be recognised that the Father and his parents have had a significant input into [the child’s] life, particularly in the last three years although in reality, longer than that. The Father was generous in assisting the Mother and being available for her calls, when she separated from [the mother’s former partner]. The Paternal Grandparents have been very generous in their support of [the child] since late 2018, notwithstanding that from the Mother’s point of view [the child] should not have been in City F for as long as he has. [The child’s] school arrangements and engagement with healthcare professionals have been arranged by the Grandparents and at their cost. Further, they have incurred considerable expense in arrangements for [the child] to spend holiday time with his Mother. The Father and the Grandparents should continue to be very important people in [the child’s] life.
234.My decision in this case has been difficult. I was assisted by all of the lawyers including by the orders proposed by the ICL. Nevertheless, the Grandparents have not been incorrect in referring to some uncertainty for [the child] with this substantial move.
235.In all of the circumstances and on the evidence presented, I find that it is in the best interests of [the child] that he live with his Mother, spend holiday time with his Father and Grandparents and communicate with them regularly.
There is no reference to any provision of the Family Law Act 1975 (Cth) (“the Act”), which, of itself, is not a difficulty, if the relevant provisions have been applied. As to the matters most obviously in dispute there was no written consideration of:
·The allegations of family violence, and what impact, if any, findings of family violence had on the outcome such as the rebuttal of the presumption in favour of equal shared parental responsibility (s 61DA of the Act);
·The weight to be given to the child’s views (as opposed to merely recording them) (s 60CC(3)(a) of the Act);
·The effect of a change in the child’s circumstances and the effect of separation from the father and the paternal grandparents (s 60CC(3)(d) of the Act);
·The practical difficulty and expense of the child spending time with either the mother in City D or the paternal grandparents and father in City F (s 60CC(3)(e) of the Act) noting that the primary judge did state the mother’s income at [63] but there was no discussion of its impact; and
·
The capacity of the mother to provide for the child’s emotional and other needs
(s 60CC(3)(f) of the Act).
His Honour did not explain why an order was made that the mother have sole parental responsibility for the child.
In his submissions, counsel for the mother submitted:
(1)It can be inferred that the primary judge preferred the mother’s evidence to the other parties’ evidence.
(a)That submission cannot succeed in the light of the observation that the evidence of the paternal grandparents was also believable.
(2)The mother’s evidence addressed the considerations in s 60CC of the Act so that in finding that her evidence believable, his Honour had undertaken the necessary considerations.
(a)This cannot be accepted because the primary judge’s obligation to identify matters to which weight must be given, cannot so easily be abrogated. I repeat that the evidence of all witnesses was found to be believable so the premise in the submission cannot be accepted. The only caveat was that less weight was to be given to the father’s evidence.
(3)Considerable weight was given to the Family Consultant’s evidence because she was “not shaken by cross-examination” (at [218]) and because the orders were consistent with the recommendations.
(a)It is for the judge, and not the Family Consultant, to decide the case and to give reasons explaining why the orders were made. The matters that were taken into account and given weight should be expressly identified and resort should not have to be to inference. One of the reasons for that is the reasoning process needs to be apparent to an appeals court so that it can be determined whether that process is beset by error.
(4)Finally, counsel for the mother embarked on a valiant attempt to demonstrate that, in reality, there was very little left in dispute at the end of the hearing.
(a)That submission is entirely at odds with the primary judge’s description of the case as difficult and complex and the brief summary of the parties’ contentions as identified by his Honour and the Family Consultant.
In short, the reasons do not explain why the orders were made and why the mother’s contentions were accepted and those of the paternal grandparents and the father were rejected. One may readily accept that the primary judge took many matters into account but, unless the matters to which significant weight was given are identified and the weight given to them explained, the recipient of the reasons and a court of appeal is entirely unable to say whether the evidence and the issue in the case were given proper consideration.
It follows that the reasons for judgment are inadequate and the appeal must be allowed.
Counsel for the mother urged me to re-exercise the discretion but that is a difficult course for an appeals court where there are no primary findings of fact. Of significance in this matter is that I have not seen any of the parties give evidence. This is not so much as to assess credit, but to better understand the people involved in the care of the child. It is to be recalled that in making a parenting decision, “advantages are likely to be real ones” and that “[p]erceptions, predictions and even intuition and guesswork can all play a part” (CDJ v VAJ (1998) 197 CLR 172 at [117] and [151]).
CONCLUSION AND COSTS
The proceedings will be remitted for rehearing.
I accept that a further hearing is not in anyone’s interests, particularly those of the child and that it will cause all the parties further expense. This is an unfortunate but inevitable outcome once error has been established.
As requested by the parties and the ICL there will be certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the paternal grandparents, the mother and the ICL, who all engaged lawyers, as the error identified is an error of law to which none of those parties contributed. There will be costs certificates for all parties for the rehearing.
The orders, save for those permitting the child’s move to City D, which have been stayed, were put into effect. The child has remained in City F. The orders therefore will be set aside and from the first mention of the matter in the Federal Circuit and Family Court of Australia (Division 2), with Orders 13 and 14 to remain stayed until that time.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 17 December 2021
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