Dundas & Blake
[2013] FamCAFC 133
•3 September 2013
FAMILY COURT OF AUSTRALIA
| DUNDAS & BLAKE | [2013] FamCAFC 133 |
| FAMILY LAW – APPEAL – CHILDREN – PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY – whether it is necessary that there be “explicit and cogent reasons” as to why the mandatory presumption of equal shared parental responsibility should be rebutted, and whether the federal magistrate erred in rebutting the presumption in favour of the mother, with regard to the evidence before her Honour – discussion of the application of the presumption of equal shared parental responsibility under s 61DA(1) and the best interests test under s 61DA(4) – re-exercise of discretion for equal shared parental responsibility in light of insufficient evidence to rebut the presumption. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA |
| Collins & Collins (1985) FLC 91-603 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Fox v Percy (2003) 214 CLR 118 I & I (No 2) (1995) FLC 92-625 |
| APPELLANT: | Mr Dundas |
| RESPONDENT: | Ms Blake |
| FILE NUMBER: | SYC | 5596 | of | 2010 |
| APPEAL NUMBER: | EA | 26 | of | 2012 |
| DATE DELIVERED: | 3 September 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, May & Ainslie-Wallace JJ |
| HEARING DATE: | 3 December 2012 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 February 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 103 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Livingstone |
| SOLICITOR FOR THE APPELLANT: | Doolan Wagner & Callaghan |
| COUNSEL FOR THE RESPONDENT: | Mr Guterres |
| SOLICITOR FOR THE RESPONDENT: | Christopher Mackay |
Orders
The appeal be allowed.
Order 2 be discharged and in lieu thereof, a new Order 2 inserted to provide that the mother and father have equal shared parental responsibility for the child E born … March 2009.
There be a further order in the following terms, to be inserted after Order 16:
Order 16A
(a)Within 14 days of the date of these orders, the mother is to advise the father of the name of her treating psychologist and further advise the father of the name of her new treating psychologist if she changes the psychologist she sees.
(b)The mother is to provide to the father or his solicitor a quarterly written confirmation by the psychologist that she has complied with Order 15, and within 14 days of these orders, provide written confirmation that she has complied with Order 16.
The respondent mother be granted a costs certificate pursuant to the provisions of 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 mother in respect of the costs incurred by her in relation to the appeal.
The appellant father be granted a costs certificate pursuant to the provisions of 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 father in respect of the costs incurred by him in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dundas & Blake has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 26 of 2012
File Number: SYC 5596 of 2010
| Mr Dundas |
Appellant
And
| Ms Blake |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an appeal against the decision of Federal Magistrate Sexton (as her Honour then was) in a parenting dispute over the care arrangements for the child E, born March 2009 and who was 2 years and 10 months old at the time of the hearing before her Honour.
Prior to the making of final orders by her Honour on 6 February 2012, the parties looked after the child in accordance with interim consent orders made 11 October 2010 (varied by the trial judge on 28 February 2011 albeit not in any material way). The interim consent orders included an order for equal shared parental responsibility and a regime of shared care which provided for the child to live with the mother six days out of fourteen and with the father for the balance of that fourteen day period.
Following the hearing, her Honour made final orders, inter alia, that the mother have sole parental responsibility for the child on the condition that she advise the father of her intention to make any major decision relating to the child’s long term welfare, and that she consider the father’s views before making the decision. Her Honour further ordered that the mother was to ensure the child was under the care of one primary general practitioner, provide the father with the practitioner’s name and contact details, and authorise the general practitioner to speak to the father at any time about the child’s health.
For reasons which will be detailed below, the final orders departed from the shared care arrangement previously in place, which had included overnight time with both parents. The orders provided that the child live with the mother and spend Mondays and Wednesdays in each week from 9 am to 5.30 pm with the father, together with alternate Saturdays from 10 am to 4 pm. The regime incorporated an increase in time with the father once the child turned four, and then again when she commenced school.
Her Honour also ordered that:
(15)The Mother consult a psychologist fortnightly for a minimum of 2 years, and thereafter continue to attend upon the psychologist at a frequency recommended by the psychologist.
(16) The Mother provide her psychologist with a copy of these Orders and Reasons for Judgment and a copy of [the family consultant’s] report.
Grounds of Appeal
By an amended notice of appeal filed 6 December 2012, the father raised three grounds of appeal:
1.That the trial judge erred in finding that it is not in the child’s best interests for the parties to have equal shared parental responsibility.
2.Her Honour erred in making Orders 15 and 16 in a form which cannot be enforced.
3.Her Honour failed to have sufficient regard to the following matters concerning the Respondent mother’s abuse of alcohol:
3.1 The mother’s lack of candour in relation to her past treatment of alcohol;
3.2 The mother’s lack of candour in relation to her abuse of alcohol;
3.3 The deleterious effect upon [the child] of alcohol abuse by a primary carer.
The orders sought in the appeal, if successful, are:
1.That both parties have equal shared parental responsibility for the child [E] born … March 2009.
2.That the respondent pay the appellant’s costs of the appeal.
The nature of the relief sought in the notice of appeal is not entirely consistent with the grounds of appeal. That apparent inconsistency was addressed, however, in written and oral submissions.
In relation to Ground 1, it was submitted that if the ground was successful, the Full Court could re-exercise the discretion and make the order sought. In oral submissions, the appellant’s counsel acknowledged that s 65DAA(1) of the Family Law Act 1975 (Cth) (“the Act”) is engaged if a parenting order provides (or is to provide) that a child’s parents have equal shared parental responsibility for the child. However, counsel conceded that although the Full Court would need to consider s 65DAA(1) if it was to re-exercise discretion, her Honour had adequately addressed the issue of equal time, and rejected it as not being in the best interests of the child. For the purpose of Ground 1, at least, there was no challenge to that finding.
It was further submitted by the appellant’s counsel that, in so far as there was a requirement for the Full Court to consider substantial and significant time in
s 65DAA(2), her Honour’s orders were consistent with findings under this sub-section. Thus the appellant contended that for the purpose of re-exercising discretion to make an order for equal shared parental responsibility, the Full Court could make findings consistent with her Honour’s findings under
s 65DAA, and again, for the purposes of this ground, no adjustment to her Honour’s order in relation to time spent with the parents would be required.
As far as Ground 2 is concerned, the father’s written submissions propose at [12] that Orders 15 and 16 should have been supplemented by a further order:
The Mother is to provide to the father or his solicitor a quarterly written confirmation by the psychologist that she has complied with order 15 together with confirmation that order 16 was complied with on the initial visit.
As to Ground 3, the written submissions propose that if this ground is successful, the matter would have to be remitted for rehearing before a different judge (formerly, federal magistrate).
Background
The child E had been in the care of both of her parents under an approximately equal time arrangement since their separation when she was about 15 months old. At times, however, the child also experienced extended periods of separation from the mother and was regularly cared for by third parties.
Several incidents occurred which resulted in urgent orders being sought, but they are germane neither to the decision of the trial judge nor to the appeal.
By the time of the hearing, a significant issue had emerged. Mr L, family consultant and court-appointed expert, had prepared a family report which was admitted into evidence. The gravamen of the family consultant’s report was a recommendation that it was in the child’s best interests for her present care arrangements to be significantly altered as soon as possible. He reported that the child was exhibiting behaviours consistent with attachment insecurity. These included “prolonged distress on handover from one parent to the other parent; clinginess thereafter; distress on separation when commencing child care; nightmares … and aggressive attention-seeking behaviours” (family consultant’s report dated 24 August 2011 at [25]). The family consultant’s experience with the application of attachment theory was not challenged. He stated:
this is one of the most complex attachment histories that I have dealt with … there are many processes and events that, if true, would be inconsistent with the smooth development of secure attachment relationships …
(transcript 6 October 2011, p 9, lines 25 – 28)
In his view, the child should:
live primarily with one parent or the other … on the premise that the parent with whom [the child] primarily lives be able to reduce and amend their work hours, (as both have claimed to be able to do), in order to be more consistently and predictably available to her than either of them appears to be at the present time.
(family consultant’s report dated 24 August 2011 at [42])
Although the child was attached to both parents, her primary attachment was with her mother. This led the family report writer to suggest that, on balance, it would be in the child’s best interests if she lived with her mother:
in order to help restore [the child’s] sense of basic trust in the availability of parent figures and to enhance her emotional resilience, she needs to develop an enduring sense that her mother is and will be a constant and responsive presence in her life.
(family consultant’s report dated 24 August 2011 at [38])
There is no challenge on this appeal to the conclusions reached by the family consultant regarding the child’s primary attachment or the desirability of her spending the majority of time in the household of one parent. The family consultant’s opinion was that if the child lived primarily with the father, her yearning for a repaired relationship with her mother would not be satisfied.
The family consultant’s recommendations however, came with one caveat. That caveat was in relation to the mother’s admitted past episodes of depression and drinking. The family consultant considered that if the mother continued to be depressed and drinking to excess, she was likely to be neglecting the child’s fundamental needs. If this were the case, the child would need to live primarily with the father. The family consultant indicated, therefore, that the question for determination was whether the mother was a neglectful parent.
Although he was extensively cross-examined, particularly by the father’s counsel, the family consultant’s views did not change. Thus the focus of the factual dispute in the case was the effect of the mother’s depression and her issues with alcohol, and in particular whether those were ongoing, whether she had addressed her binge drinking problem, and whether the mother was vulnerable to relapse and consequential neglect of the child.
Federal Magistrate’s Reasons for Judgment
In the earlier paragraphs of the judgment, her Honour presages later discussion with an outline of the child’s distorted attachment behaviour (at [4]), and follows with a list of the qualifications of the family consultant, whose evidence underscores the judgment (at [5]). The family consultant’s evidence is examined at [33] to [42] and her Honour states that she accepts the family consultant’s observations and opinions.
The family consultant proffered a clinical opinion that the child had a disrupted attachment history and was “leaning out for love” from the mother (at [37]). As her Honour described it, the pattern of separation between the child and her mother would “totally contradict a child’s need for security and predictability and familiarity” (at [36]). The family consultant’s recommendations for “attachment repair” (at [39]) are set out at [38], with the core recommendation being that the mother have overnight care every night for 18 months, as the father can maintain a strong attachment with the child during daytime visits (at [39]).
Her Honour set out the child’s care arrangements since birth at [9] to [17], noting that the parties offered different perspectives on their level of involvement in the child’s care after the mother commenced work in
November 2009, with each party maintaining that they took primary responsibility for her. Her Honour found that the father had delegated part of the care of the child to his sister and nieces in order to accommodate his work schedule and travel demands (at [17]). At [18] to [26], her Honour detailed the history of litigation between the parties.
At [27], her Honour described the care arrangements that have been in place since 28 February 2011, which were similar to those previously in place since 11 October 2010. In essence, under both sets of orders, the child was spending half a week with one parent and the remainder of the week with the other.
Her Honour then set out the various proposals of the parties (at [29] to [32]).
Her Honour dealt with the allegations against the mother regarding her capacity to care for the child under the heading “Mother’s health” (at [43] to [62]). The mother acknowledged a difficult history with alcohol and depression but maintained that she was undertaking regular counselling and had abstained from alcohol in accordance with the extant parenting orders. The family consultant had indicated that it was the “quality” of the child’s attachments that was most important, and flagged, therefore, that the mother’s capacity to look after the child was paramount if she was to be the primary carer (at [41]). Her Honour explored whether the mother was a neglectful parent at [43] to [62], finding that while the mother had abused alcohol and experienced depression in the past, she had not neglected the child and was currently not depressed (at [62]). Her Honour also found, in accordance with the family consultant’s report, that the mother’s depression was likely to have affected her emotional availability to the child at times during the relationship, and was therefore likely to have adversely affected the quality of the child’s attachment to her.
Her Honour then turned to the legal principles governing her decision-making as to the child’s best interests, first examining each of the primary considerations under s 60CC(2) (at [66] to [73]) and then the additional considerations under s 60CC(3) of the Act (at [74] to [98]). Her Honour made factual findings in respect of each of the relevant considerations, including:
·the child’s relaxed and comfortable relationship with each parent (at [66])
·the father’s allegations of neglect by the mother, which her Honour did not find persuasive (at [71])
·the father’s history of keeping the child from the mother unnecessarily (at [78])
·the geographical distance between the parties (at [ 79], [95], [96])
·the child’s attachment distress (at [82])
·the practicalities of the parties’ respective working arrangements, as both have significant work commitments (at [84] – [88])
·both parties’ “demonstrated limited insight into [the child’s] developmental needs” (at [89] – [91]).
At [92], her Honour stated that:
The Mother raises no concerns of significance in relation to the Father’s capacity to care for [the child] physically and I am satisfied the Father provides [the child] with a wide range of stimulating child-focussed activities when she is with him including interesting excursions, outdoor exercise, dancing and cooking and socialising with other children. I find that the Father has taken a substantial role in looking after [the child’s] physical needs from a very young age, and is well capable of caring for her.
In concluding that it would not be in the child’s best interests for the parties to have equal shared parental responsibility, and thus rebutting the presumption in s 61DA, her Honour explained at [102] that:
These parties presently have extremely poor communication and little confidence in the other’s parenting capacity and I find no basis for optimism about improvement. The Father has made decisions which I have found demonstrate poor insight into the needs of young children. I find that the Mother has also shown a poor understanding of [the child’s] needs and has been unable to resist pressure from the Father when she has believed his decisions have been against [the child’s] best interests. I accept [Dr R’s] opinion that the Mother has passive/dependent traits in her personality which would make it difficult for the Mother to stand up for [the child] if the parties could not agree on a particular issue. I find that [the child] would be the likely loser if that were to occur. The Mother will therefore have sole parental responsibility.
While her Honour found that the mother should have sole parental responsibility, it was stipulated that the father must be kept informed about major decisions pertaining to the child, and that the mother must have regard to the father’s input into those decisions (at [102]).
Orders
The orders relevant to the appeal are set out below:
(1) All previous parenting Orders be discharged.
Parental responsibility
(2)Subject to Order (3), the Mother have sole parental responsibility for [E], born … March 2009 on condition that she advise the Father of her intention to make any major decision relating to [the child’s] long term welfare and that she consider the Father’s views before making the decision.
(3)The Mother ensure [the child] is under the care of one primary general practitioner and the Mother forthwith provide the Father with the general practitioner’s name and contact details, and authorise the practitioner to speak to the Father at any time about [the child’s] health.
Live with
(4)[The child] live with the Mother.
Time with Father
…
Support for the Mother
(15)The Mother consult a psychologist fortnightly for a minimum of 2 years, and thereafter continue to attend upon the psychologist at a frequency recommended by the psychologist.
(16)The Mother provide her psychologist with a copy of these Orders and Reasons for Judgment and a copy of [the family consultant’s] report.
…
Information sharing
(19)Each parent keep the other parent informed as soon as is reasonably practicable of any:
(a)Serious medical problems or illnesses suffered by [the child];
(b)Medication that has been prescribed for [the child] that needs to be taken while [the child] is in the care of the other parent; and
(c)Other significant matters relevant to the welfare of [the child].
(20)The Mother shall keep the Father informed at all times of the name and contact details of [the child’s] health practitioners including any specialist medical practitioner she consults with [the child], and the Mother shall provide those medical practitioners with a written authority to release information to the Father about [the child’s] attendance and/or medical treatment and/or medical advice as the Father may request from that practitioner.
Ground 1
By his amended notice of appeal filed 6 December 2012, the father’s first ground of appeal was “[t]hat the trial judge erred in finding that it is not in the child’s best interests for the parties to have equal shared parental responsibility”.
The father contended that the order for sole parental responsibility was too far reaching, given the limitations that her Honour herself imposed upon the order which would otherwise have entitled the mother to make all short and long term decisions for the child without reference to the father.
Her Honour explained her decision at [102]:
I have decided it is not in [the child’s] best interests at present for the parties to have equal shared parental responsibility for [the child], although the Mother will be required to keep the Father informed about all major long term decisions and to have regard to his input into those decisions.
(emphasis added)
In so far as it was her Honour’s view that the father should be able to have input into all major long-term decisions, the father contends that it appears her Honour was endeavouring to limit the otherwise comprehensive powers of the mother. The father argues that the intended limitation was ineffective, because all the mother is required to do is advise the father of her intention to make major decisions and consider the father’s views before making them. It was submitted that this was no curb at all to the autonomy given to the mother because the mother could simply consider the father’s views and then reject them all. It was submitted that if her Honour intended, as [102] would suggest, that the mother should have regard to the father’s input, the orders did not reflect any capacity for that intent to be achieved.
In addition, the father points to the fact that whilst the mother must keep him informed of certain medical matters (Orders 19 and 20), the orders do not promote the benefit to the child of enjoying her father’s presence at day care events or future school events. Information sharing is limited by Order 19 to serious medical issues, medication and “significant matters”. The practical effect, according to the father, is that “while being quite prescriptive in some areas”, the orders give to the mother “virtually … unadulterated authority” over “seemingly insignificant” activities “such as sports days, concerts etc” (appellant’s summary of argument filed 7 August 2012 at [7]).
Perhaps more importantly, the father contended that her Honour had failed to properly consider the presumption of equal shared parental responsibility as required by s 61DA. It is useful to set out the relevant paragraphs of s 61DA:
(1)When making a parenting order in relation to a child, the 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3) …
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
It was not contended that s 61DA(2) applied, and thus it is apparent that her Honour viewed the presumption arising from s 61DA(1) to have been “rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child” (s 61DA(4)).
In essence, the appellant contends that the evidence before her Honour about equal shared parental responsibility did not reach a level at which it could be reasonably said to have rebutted the presumption to be applied as a starting point in every parenting case.
As oral argument proceeded, it became apparent that there was also a procedural fairness issue. We will consider these matters together.
In view of the procedural fairness issue, it is important to set out the history of how the allocation of parental responsibility came to be an issue, equal shared parental responsibility having previously been the subject of agreement between the parties.
b)An initiating application for parenting orders was filed by the mother on 31 August 2010 in the Local Court. She did not seek any order concerning parental responsibility.
c)
The father filed an application in the Federal Magistrates Court on
3 September 2010 in which he sought that the father and mother have “equal shared responsibility for the care, welfare and development” of the child on both an interim and final basis.
d)On 6 September 2010, the mother filed an affidavit in response to the father and a short minute of orders sought by her. In her minute of orders sought, the mother sought on both an interim and permanent basis that she and the father have “shared parental responsibility” for the child.
e)When the matter came on for interim hearing before Altobelli FM (as he then was) on 11 October 2010, the parties reached agreement and made consent orders that “the mother and father have shared parental responsibility for the child”. Final property orders were also made on that date.
f)A new application by the father filed on 26 November seeking that he be permitted to travel overseas with the child reignited the conflict between the parties.
g)Over the period December 2010 to February 2011, various orders were made by Sexton FM including directions that the parties attend a conference with the family consultant.
h)The finalised family report was dated 24 August 2011 and the final hearing set down for 6 and 7 October 2011.
i)The father’s case outline dated 29 September 2011 set out the orders sought by him and the factors under s 60CC that the father felt were relevant. Relevantly, the father proposed an order that “[t]he father and mother have equal shared responsibility for the care, welfare and development of the child”. The mother filed an undated case outline sometime prior to the trial, but it was submitted by the father, without objection, that it was filed very close to the commencement of the trial. As the chronology refers to the release of the family report, relevantly, it must have been filed after the family report. As part of the case outline, the mother’s minute of proposed orders included, for the first time, an order that “[t]he mother shall have sole parental responsibility for [the child].” As will become apparent, little if any attention was paid by either party to this change in position by the mother.
In summary, then, the question of sole parental responsibility had never been in issue until the mother filed her proposed minute of orders shortly before the hearing. Each of the parties had previously sought orders for equal shared parental responsibility, each of the parties had consented to an order for equal shared parental responsibility and we emphasise again, neither party had mentioned to the family consultant at the time of preparation of his report that there was any issue about shared parental responsibility continuing.
The family consultant’s report, unsurprisingly, accepts as its premise a continuation of the status quo of equal shared parental responsibility, neither party at that stage having raised it as an issue. When listing in his report the issues in dispute, the family consultant does not include among those contentious issues that of ongoing equal shared parental responsibility.
The family consultant raised the question at [41] and said:
It is understood that neither parent is seeking sole parental responsibility. In this regard, whilst there does not seem to be sufficient reason for one or other parent to be granted sole parental responsibility, it is nevertheless noted that [the child] currently attends two different doctors. [The child’s] medical needs would be more consistently managed than they are at the present time, if she were to be mostly under the care of a primary doctor and both parents were in communication with that doctor. It is understood that this is not the case at the present time.
Other than by that comment, the family consultant did not suggest that orders for equal parental responsibility created a problem or were not in the best interests of the child.
In the summary of the mother’s case contained in the case outline, the only material that could be seen to be addressing the issue of equal shared parental responsibility is the following:
8. It is the mother’s case that she has been [the child’s] primary carer, that the father has a history of unilaterally preventing [the child] from having contact with the mother, occasionally in the face of orders of the court, that the [sic] is unable to personally to [sic] care for [the child] at times specified in orders, that the father has a hostile attitude towards the mother and her relationship with [the child], and that the parental relationship is one of significant conflict.
9. In those circumstances, the mother contends that the current orders are not in [the child’s] best interests and that they ought to be varied as sought.
However, those matters could equally be simply said to be addressing the orders sought by the mother that the child spend most of the time with the mother and less time with the father.
This issue had been embraced by the mother only a short time before the hearing, where it had not been a matter of contention in the past. Notwithstanding that the mother swore a second affidavit, filed on
6 September 2011, in support of the parenting orders sought, this affidavit does not address the question of equal shared parental responsibility. It would be reasonable to have expected the mother to have furnished a further affidavit detailing evidence on this new point.
A short opening by the father’s counsel did not highlight this as an issue.
Cross-examination of the family consultant, particularly by the father, was extensive, but given the family consultant’s report, which indicated that there should be a significant change to the previously joint arrangement in which the child had lived, the focus of cross-examination was on the parent with whom the child should henceforth predominantly live. Counsel for the father did not identify as an issue, nor ask the family consultant about, the mother’s application for sole parental responsibility, of which counsel appears to have been unaware. Perhaps more surprisingly, the mother’s counsel did not raise with the family consultant in cross-examination the issue of sole parental responsibility either. Nor, at the conclusion of the family consultant’s evidence, did her Honour ask any questions of him about this matter. The family consultant’s evidence on point remained exclusively as it was in the family report, being the paragraph which we have set out at [42].
Despite the issue of sole parental responsibility having been raised by the mother, there was no direct cross-examination of the father on this issue, nor was the suggestion put to him that the arrangement for joint parental responsibility which had been in place by agreement was not operating in the child’s best interests. We say “direct” because there was some cross-examination about the child’s medical care.
In her brief evidence-in-chief, the mother did not refer to this issue and counsel for the father did not cross-examine her about it. The father’s written closing submissions did not address the issue either.
In his oral submissions (transcript 11 November 2011, pp 250 – 261), the question of parental responsibility was not raised by counsel for the father nor by her Honour. Similarly, in the submissions by counsel for the mother (transcript 11 November 2011, pp 261 – 272), there was no discussion of nor reference to what order would be made in relation to parental responsibility. Relevantly, in our view, counsel said to her Honour: “Briefly in conclusion, your Honour, the orders proposed by the mother are entirely consistent with [the family consultant’s] recommendations … [t]hey have been based, taking into account [the family consultant’s] recommendations” (transcript 11 November 2011, p 268, lines 20 – 22).
That of course was not accurate. The family consultant had not recommended that the mother have sole parental responsibility. When he prepared his report, both parties were seeking equal shared parental responsibility. As we have previously set out at [42], the family consultant opined that the child’s “medical needs would be more consistently managed … if she were to be mostly under the care of a primary doctor and both parents were in communication with that doctor”.
That background then forms the context for [102] of her Honour’s reasons for judgment.
As counsel for the father submitted, there appear to be four bases on which her Honour reached her decision:
·The parties have poor communication and little confidence in the other’s parenting.
·There is no basis for optimism about improvement.
·The father has made decisions which her Honour found demonstrated poor insight into the needs of young children. The mother had also shown a poor understanding of the child’s needs, and been unable to resist pressure from the father when she believed his decisions to be against the child’s best interests.
·Her Honour accepted the psychiatrist’s evidence that the mother has passive-dependent personality traits that would make it difficult for her to stand up for the child if the parties could not agree on a particular issue. Her Honour concluded that the child would likely be the loser if that were to occur.
In our view, the difficulty with these findings, as submitted by the father, is that all of these matters had been features of the relationship between the parties both prior to and after their separation, and yet they themselves had sought and consented to an arrangement for equal shared parental responsibility. There was no cross-examination that poor communication had led to problems with long-term decision-making, and neither party suggested to the family consultant that this was the case. Consistent with her Honour’s own finding, both parties had at various times shown a deficiency of understanding regarding the child’s needs. Finally, the matter which her Honour refers to as arising from the psychiatrist’s opinion was never raised with either of the parties, nor, most importantly, with the family consultant, who had already opined that there did not seem to be sufficient reason for one or other parent to be granted sole parental responsibility.
Her Honour’s discretion in determining the question of parental responsibility was not at large. Her Honour’s discretion was circumscribed by s 61DA, which requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case, as we have already indicated at [34], her Honour was required under
s 61DA(4) to rebut the presumption “by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
In our view, her Honour was in error in making an order for sole parental responsibility. Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply. In our view, that level of satisfaction could not have been reached in this case. The factors that her Honour relied upon at [102] were factors that had been present throughout. Neither party addressed them in evidence-in-chief, nor was either party cross-examined about these factors. Importantly, the evidence that her Honour had from the family consultant was that there was nothing to justify rebuttal of the presumption. Section 61DA is a significant provision of the Act and it requires, in our view, significant attention in the evidence.
It is not, in our view, sufficient for her Honour to point to the parties having poor communication or little confidence in each other’s parenting capacity. Undoubtedly, the latter was a significant issue in the case, but nevertheless, the family consultant had found no basis to believe there should be a departure from equal shared parental responsibility. Her Honour does not indicate why she came to a different view.
Nor does her Honour indicate on what basis she found that it would be difficult for the mother to stand up for the child if the parties did not agree on a particular issue. No evidence was led on this point, and no one addressed it in any of the submissions.
In his submissions on appeal, counsel for the mother admitted that he had not addressed on it at first instance and accepted that proposals were different from those which were being put when the family consultant prepared his report. He also conceded that he had not cross-examined the family consultant on the issue and agreed that it was never highlighted to her Honour by anyone in the proceedings. However, he said that, not withstanding that it was not put and there was no cross-examination of the parties or family consultant, and nor was it addressed upon, her Honour’s findings could be justified on the evidence and it was clear what underpinned her conclusion.
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted. Given that no one gave any evidence about it, including the family consultant, we do not consider that her Honour could have reached a degree of satisfaction in regard to those facts that could properly have founded a rebuttal of the presumption.
We should also indicate that we are somewhat concerned by the fact that, no-one having raised the matter before her, her Honour did not herself raise with the parties the order she was contemplating and allow them the opportunity to make submissions about it. Although the notice of appeal did not contain a ground asserting a denial of natural justice or procedural fairness, the failure by her Honour to enable the parties to address her on the issue, and in particular on the matters that she herself relied upon, underscores the problem with the level of satisfaction that the evidence could have reached.
In our view, therefore, this ground must succeed. As we have previously indicated, counsel for the appellant father submitted that the Full Court could re-exercise the discretion because her Honour had engaged with the provisions of s 65DAA, notwithstanding that she had found the presumption of equal shared parental responsibility to be rebutted. There being no challenge to her Honour’s findings regarding equal time and equal and substantial time, the Full Court could, it was submitted, simply leave those orders in place and deal afresh with the question of equal shared parental responsibility.
As at least one of the other grounds, if successful, would result in a re-hearing, we will consider the two remaining grounds before determining whether or not to re-exercise on Ground 1.
Ground 2
The appellant father submitted that Orders 15 and 16 are unenforceable as they presently stand, as set out at [30] above. The father submits that for Orders 15 and 16 to be enforceable, it would require the incorporation of some form of reporting mechanism that would indicate whether or not the mother was complying with these orders. Her Honour dealt with these orders at [111], where she said:
I accept [Dr R’s] assessment that the Mother is likely to remain vulnerable to excessive alcohol use during her lifetime, and needs ongoing professional support. I find that the Mother has voluntarily sought professional help in the past and is currently under the care of a psychologist. In accordance with [Dr R’s] recommendation, supported by [the family consultant], I have ordered the Mother to continue to see her psychologist fortnightly for the next 2 years and thereafter at a frequency recommended by the psychologist.
Her Honour does not address how this order might be supervised. We accept that, on the face of it, it would be very difficult to enforce the order. This was acknowledged by counsel for the mother, who submitted that the lack of mechanisms for identifying the psychologist and confirming the mother’s attendance made it difficult for the order to be scrutinised and, if necessary, enforced – although counsel argued that it was not, strictly speaking, “unenforceable”. Counsel conceded that the Full Court could re-exercise discretion if the ground was upheld, so as to provide for a monitoring process. We agree that, as presently drafted, there is no supervisory aspect to the orders and it would be extremely difficult to have them enforced. Given the concessions made by the respondent, we propose to allow this ground and re-exercise the discretion to provide for some monitoring, as both parties concede is appropriate.
Ground 3
Ground 3 is as follows:
3. Her Honour failed to have sufficient regard to the following matters concerning the Respondent mother’s abuse of alcohol:
3.1The mother’s lack of candour in relation to her past treatment of alcohol;
3.2 The mother’s lack of candour in relation to her abuse of alcohol;
3.3 The deleterious effect upon [the child] of alcohol abuse by a primary carer.
Counsel for the father submitted that this ground goes to the heart of the decision and, if successful, would result in the Full Court ordering a re-hearing. It was apparent in discussion with the counsel for the father that it was conceded that her Honour did have regard to all of the matters raised. The contentions for the appellant father, however, were that, although there was no evidence that the mother was abusing alcohol at the time of trial or proximate to it, there was evidence that she had problems in the past and that she had been less than frank in her evidence about them. Thus, it was submitted, her Honour did not take seriously enough the past problems and the mother’s failure to adequately disclose them, and should therefore have been more concerned about the mother’s vulnerability to relapse.
Her Honour was well aware of the significant role played in this case by the mother’s consumption of alcohol and ability to care for the child as a result. Her Honour first dealt with it in her assessment of the evidence of the family consultant, at [38] – [41] of her reasons for judgment. At [41], her Honour said: “The question for determination is therefore whether the Mother is a neglectful parent”. This was in the context of her past depression and drinking to excess.
Under the heading “Mother’s health”, her Honour recorded at [43] that:
The Father’s counsel submits that the Mother “has an ongoing and very serious problem with alcohol”. He bases his submission on the fact that she has been admitted to hospital in the past to detoxify from alcohol, has not completely stopped drinking, and failed to fully disclose her past alcohol use in her affidavit, or at interview with [the family consultant]. Counsel submits that the Court should therefore find that [the child] is at risk in her Mother’s care.
(original emphasis)
It is obvious that her Honour was well aware of the contentions of the father and his allegations. Her Honour further detailed the father’s evidence at [47] and [48].
Her Honour details the mother’s responses at [49] to [51]. At [55], her Honour recounts the mother’s psychiatric history as outlined in a forensic psychiatric report prepared by Dr R, consultant psychiatrist. In this paragraph, her Honour traverses the mother’s treatment and episodes of binge drinking.
At [56], her Honour notes that, in the view of Dr R, the mother “has a vulnerability to alcohol abuse and ‘deserves to carry a lifelong vigilance towards alcohol consumption’” (original emphasis). Her Honour noted at [58] that Dr R’s expertise was not directly challenged by the father’s counsel, who did not require him for cross-examination. Dr R’s assessment of the mother’s mental state, including her lifelong vulnerability to alcohol, was therefore accepted by her Honour.
At [59] to [61], her Honour summarised her assessment of the evidence of both parties, leading to her conclusions at [62]. At [61], she said:
I find the Father’s evidence inconsistent and therefore inconclusive as to what he has physically observed the Mother drink or as to the amount the Mother was actually drinking. The Father does not seek orders providing for [the child’s] time with the Mother to be supervised. He seeks orders providing for [the child] to spend two nights a week with the Mother as well as half school holidays.
At [62], her Honour concluded:
I am satisfied that the Mother has abused alcohol in the past, including at times during her relationship with the Father, particularly around the time of separation in mid-2010. I am satisfied that her depression is likely to have affected her emotional availability to [the child] at times during the relationship and I agree with [the family consultant] that this is likely to have adversely affected the quality of [the child’s] attachment to her. However, I am not persuaded that the Mother has neglected [the child] as a result of alcohol abuse or depression, nor am I satisfied that the Mother is presently suffering from depression.
Her Honour returns the father’s allegations about the mother’s neglect of the child and at [71] says:
I am not persuaded the evidence supports a finding that the Mother has neglected [the child] or that [the child] is at risk of harm in the Mother’s care. I find it difficult to reconcile the Father’s contention that [the child] is at risk in the Mother’s care with the Father’s agreement in the past that she equally share [the child’s] care, and his proposal at trial for [the child] to spend two days and two nights a week in her care.
At [105], under the heading “Conclusion”, her Honour notes that:
[The family consultant] acknowledged the overriding need for [the child] to be safe, and advised the Court that if the Mother were found to neglect [the child], by drinking to excess, or otherwise, [the child] must live primarily with the Father. I am not persuaded the Mother has neglected [the child] or not kept her safe, though I accept [Dr R’s] assessment that the Mother has a vulnerability to alcohol and must be vigilant during her lifetime. I have therefore made an order to restrain the Mother from consuming any alcohol while [the child] is in her care and before she comes into her care.
Counsel for the father contended that her Honour did not engage with the issue of the mother’s non-disclosure, nor find when the abuse of alcohol had been resolved. We do not agree that this accurately reflects the evidence or her Honour’s findings, as we have stated them. We have recounted the passages in which her Honour dealt with the issue of the mother’s past problems with alcohol, and with depression, and her conclusions are encapsulated in [60] to [62] of the reasons for judgment.
60.The Father acknowledges that he has not directly observed the Mother drinking since separation and has never found the Mother drinking or smelling of alcohol at a changeover. The Father acknowledges that neither his sister nor his nieces have reported the Mother smelling of alcohol at changeovers with them and there has never been any complaint to him about the Mother’s presentation at [the child’s] day-care.
61.I find the Father’s evidence inconsistent and therefore inconclusive as to what he has physically observed the Mother drink or as to the amount the Mother was actually drinking. The Father does not seek orders providing for [the child’s] time with the Mother to be supervised. He seeks orders providing for [the child] to spend two nights a week with the Mother as well as half school holidays.
62.I am satisfied that the Mother has abused alcohol in the past, including at times during her relationship with the Father, particularly around the time of separation in mid-2010. I am satisfied that her depression is likely to have affected her emotional availability to [the child] at times during the relationship and I agree with [the family consultant] that this is likely to have adversely affected the quality of [the child’s] attachment to her. However, I am not persuaded that the Mother has neglected [the child] as a result of alcohol abuse or depression, nor am I satisfied that the Mother is presently suffering from depression.
Her Honour also relied upon the evidence of the family consultant, whose evidence is summarised at [29] of the respondent’s written submissions filed
24 August 2012:
Those findings are consistent with the evidence of the [family consultant:]
i. that the child’s presentation was not consistent neglect;
ii. that current behaviour was what needed to be considered and that there was the absence of evidence of current problems with alcohol use and associated problematic parenting behaviours;
iii. that if the underlying problem associated with alcohol use, such as depression, is being treated then past alcohol use assumes less significance;
iv. that there were no reports of concern from child care;
v. that in assessing the impact of alcohol use, regard would be had to collateral information including observed drinking behaviour;
vi. that the mother’s continued attendance upon a psychologist provided some a level of confidence.
(citations omitted)
In our view, it could not fairly be said that her Honour did not have adequate regard to the evidence and contentions of the father. Ultimately, resolving the factual dispute about the mother’s alcohol use and its impact on her parenting required her Honour to accept the version of one of the parties and reject the other, and she sets out her reasons for doing so. Central to her Honour’s determination was that she simply did not accept the father’s claims about the extent of the mother’s alcohol consumption and the alleged incidents of neglect. In contrast, the father conceded that his evidence that he observed the mother drinking excessively two to three nights per week in the latter part of 2010 was not correct as the parties were not cohabiting at the time. In addition, the father was unable to produce any witnesses to corroborate his claims about the mother’s alcohol consumption.
Her Honour also weighed up the fact that, not withstanding the father’s alleged concerns regarding the mother’s capacity to care for the child, he had consented to orders on 11 October 2010 providing for equal shared parental responsibility and equal time, and at no time had he sought that the mother’s time with the child be supervised.
Her Honour, in our view, is entitled to have regard to these matters in concluding that, where the parties were in dispute, she accepted the evidence of the mother in preference to that of the father.
Given the considerable amount of evidence before her Honour, the extensive cross-examination that occurred, and her Honour’s consequent findings, it, in our view, could not be said that there are any facts which demonstrate that her Honour’s conclusions were erroneous or that her decision was so glaringly improbable as to amount to appellable error (Fox v Percy (2003) 214 CLR 118, 128). Accordingly we find no merit in Ground 3.
Re-exercise of Discretion
Having determined that there is no merit in Ground 3, which is the only ground that would have required that the matter be remitted for rehearing, and given the concessions of counsel that it would be appropriate for us to do so, we propose to discharge Order 2 of the orders made on 6 February 2012 and re-exercise discretion. We will add to Orders 15 and 16 a provision which will give efficacy to these orders.
We have already set out in detail our concerns regarding her Honour’s allocation of sole parental responsibility. In various places in the reasons for judgment, her Honour accepted the recommendations of the family consultant. For example, at [107]:
I have therefore substantially implemented [the family consultant’s] recommendations, including [the child’s] need to live primarily with the Mother, to sleep in the Mother’s home each night for the next 18 months, and to be delivered and picked up by the Mother at the beginning and end of the day when she attends day care.
At [42], her Honour said: “I accept [the family consultant’s] observations and opinions”. Given her Honour’s reliance upon the family consultant’s evidence, and the failure by anyone at the hearing to enquire of the family consultant whether his views on equal shared parental responsibility had changed, there is not sufficient evidence to rebut the presumption that there should be an order for equal shared parental responsibility. It seems to us that Order 3 takes account of the matters about which the family consultant was concerned. We therefore propose to order that the parties have equal shared parental responsibility for the child.
In relation to Orders 15 and 16, we propose to make a further order, being Order 16A, in the following terms:
(a)Within 14 days of the date of these orders, the mother advise the father of the name of her treating psychologist and further advise the father of the name of her new treating psychologist if she changes the psychologist she sees.
(b)The mother is to provide to the father or his solicitor a quarterly written confirmation by the psychologist that she has complied with Order 15, and within 14 days of these orders, provide written confirmation that she has complied with Order 16.
Costs
The appellant conceded that if the appeal was dismissed, then he would pay the mother’s costs. He contended that if the appeal was allowed on a point of law, the Full Court should grant to both appellant and respondent costs certificates in relation to the appeal pursuant to ss 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”). If the appeal was allowed on another ground, the appellant submitted that the mother should contribute to his costs. The main basis on which the appeal has succeeded is a point of law in relation to the application of s 61DA, although other grounds relied upon by the father were unsuccessful.
Section 117(1) of the Act governs costs, subject, inter alia, to subsection (2), namely the existence of circumstances that justify the Court in departing from the position that each party pay their own costs. This statutory mandate applies equally to appeals before the Full Court as to first instance decisions.
The discretion conferred by s 117 is a broad one and the factors to which the Court is to have regard pursuant to s 117(2A) should not be read in a restrictive way: Collins & Collins (1985) FLC 91-603. Any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41]) but nevertheless, as an earlier Full Court said in I & I (No 2) (1995) FLC 92-625 at 82,277, the relevant matters in
s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.In relation to Ground 1, the father was successful but he was unsuccessful in his other grounds and in the circumstances we do not consider there should be any order for costs.
However, as the father was successful on a point of law, we propose to grant to each of the parties a cost certificate for their costs in relation to the appeal pursuant to ss 6 and 9 of the Costs Act.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Ainslie-Wallace JJ) delivered on 3 September 2013.
Associate:
Date: 3 September 2013
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