Dylan & Dylan
[2008] FamCAFC 109
•23 July 2008
FAMILY COURT OF AUSTRALIA
| DYLAN & DYLAN | [2008] FamCAFC 109 |
| FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – Children’s wishes – At trial the father sought either equal or substantial and significant time with the children – At trial the mother’s position was that the then current arrangement of the children spending two nights each fortnight with the father should be increased to three – Trial Judge made orders which provided for an arrangement that fell between the proposals of the parties as to periodic time for the father to spend with the children – The trial Judge recognised that the order was contrary to the wishes of the children – Mother appealed – Whether the trial Judge failed to give sufficient weight to the children’s wishes – Whether the trial Judge failed to give adequate reasons for departing from those wishes – Whether the trial Judge drew incorrect conclusions in respect of those wishes – Whether the trial Judge failed to give sufficient weight to the evidence of the Family Report writer of the risk of harm to the children – Whether the trial Judge wrongly found that, if the orders were based on a miscalculation by him of the risk for the children, the consequences would fall on the father and not on the children – Whether the trial Judge found in accordance with his “conscience” without disclosing the basis upon which his conscience was informed or informed him – Whether the trial Judge wrongly found that the history of the father’s time with the children was irrelevant – Whether the trial Judge wrongly relied upon social science literature and one of the Articles of a United Nations Convention, when that material was not before him nor was it raised and thus the mother was deprived of the opportunity of addressing those matters – Appeal against parenting orders dismissed FAMILY LAW - APPEAL – From decision of Family Court Judge – Application to adduce further evidence in support of the appeal against parenting orders – Mother’s affidavit deposed that children dissatisfied with arrangements since the trial Judge made orders – Application dismissed FAMILY LAW - APPEAL – From decision of Family Court Judge – PROPERTY SETTLEMENT – Common ground on appeal that the judgment contained errors – No concession from the husband as to the consequence of those errors FAMILY LAW - APPEAL – From decision of Family Court Judge – Application to adduce further evidence in the event that the discretion under s 79 re-exercised on appeal – Application allowed for the purpose of deciding the proper course in respect of the resolution of the application for alteration of property interests – Appeal against property orders allowed – Remitted for rehearing |
| Family Law Act 1975 (Cth), Part VII, s 60CC, s 75(2), s 79 Federal Proceedings (Costs) Act 1981 (Cth) |
| G v H (1994) 181 CLR 387 | ||
| APPELLANT: | MS DYLAN | |
| RESPONDENT: | MR DYLAN |
| INDEPENDENT CHILDREN’S LAWYER: | LEGAL AID QUEENSLAND |
| APPEAL NUMBER: | NA | 62 | of | 2007 |
| FILE NUMBER: | BRF | 2433 | of | 2004 |
| DATE DELIVERED: | 23 July 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, May and Boland JJ |
| HEARING DATE: | 6 March 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 August 2007 |
| LOWER COURT MNC: | [2007] FamCA 842 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr B A Laurie |
| SOLICITOR FOR THE APPELLANT: | Habermann & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr M P Kent SC |
| SOLICITOR FOR THE RESPONDENT: | Barry & Nilsson |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Crawford |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
That the application filed 22 January 2008 for leave to adduce further evidence in the appeal, so far as it related to parenting orders, be dismissed.
That the appeal against the parenting orders made by Carmody J on 21 August 2007 be dismissed.
That the appeal against the orders for alteration of property interests made by Carmody J on 14 September 2007 be allowed.
That the orders of Carmody J made on 14 September 2007 be set aside.
That the application for alteration of property interests be remitted for rehearing by a judge other than Carmody J.
That there be no order as to costs in respect of the appeal against parenting orders.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 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 appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal against orders for alteration of property interests.
That the court grants to the respondent father a costs certificate pursuant to the provisions of section 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 respondent father in respect of the costs incurred by the respondent father in relation to the appeal against orders for alteration of property interests.
That the court grants to each of the appellant mother and the respondent father costs certificates pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise payments under that Act to each of the appellant mother and the respondent father in respect of the costs incurred by each in relation to the retrial of the application for alteration of property interests.
IT IS NOTED that publication of this judgment under the pseudonym Dylan & Dylan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 62 of 2007
File Number: BRF 2433 of 2004
| MS DYLAN |
Appellant
And
| MR DYLAN |
Respondent
REASONS FOR JUDGMENT
Some sublime articulations of legal principles and of the philosophies and policies underpinning them appear in cases in which the expression was not strictly necessary to the disposition of the particular cause. However, usually, the statements were closely connected with the essential legal points in the case and were made by appellate courts, with a responsibility for development and explication of the law.
A trial judge’s primary function is to decide the case before the court and explain the result, but from time to time a trial judge too might go beyond that task and do so to the great benefit of the law. However, a trial judge embarking upon discussion superfluous to the discharge of the primary role may provoke an appeal, based on the proposition that the irrelevant considerations may have influenced the final result.
That is one of the arguments in this appeal.
If such a judgment is to survive, the appeal court may well need to find that the discussion could not possibly be connected to the result. That finding may provoke the thought that the discussion in the trial judgment might have been better placed in a law journal.
This appeal is against orders of Justice Carmody in respect of parenting issues and property settlement between Mr and Ms Dylan, and it is the mother who appeals.
The parties have two children; R, 15 years old at the time of trial and B, 10½ years of age. At trial, the father sought either equal or substantial and significant time with the children, though, in the words of Carmody J in his judgment:
5.He acknowledges that the children are expressing negative views about spending any extra time with him but says that their attitude has to be seen in the light of past events and emerging relationships. …
The mother’s position was that the then current arrangement, of the children spending two nights each fortnight with the father, should be increased to three.
The orders made by Carmody J provided for an arrangement that fell between the proposals of the parties as to periodic time to be spent with the father, namely that the father spend time with the children from after school on Thursday until before school on Monday in each alternate week. The trial Judge recognised that the order was contrary to the wishes of the children.
There are ten grounds of appeal against the parenting orders (in amended grounds, for which we granted leave). All were dealt with together in the outline of argument of Mr Laurie, counsel who appeared for the mother, but nonetheless most have some individuality.
In short, the grounds may be reduced to eight points, which are that the trial Judge:
(i)failed to give sufficient weight to the children’s wishes;
(ii)failed to give adequate reasons for departing from those wishes;
(iii)drew incorrect conclusions in respect of those wishes;
(iv)failed to give sufficient weight to the evidence of the Family Report writer of the risk of harm to the children;
(v)wrongly found that, if the orders were based on a miscalculation by him of the risk for the children, the consequences would fall on the father and not on the children;
(vi)found in accordance with his “conscience”, without disclosing the basis upon which his conscience was informed or informed him;
(vii)wrongly found that the history of the father’s time with the children was irrelevant; and
(viii)wrongly relied upon social science literature and one of the Articles of a United Nations Convention, when that material was not “before his Honour” nor was it raised, and thus the mother was deprived of the opportunity of addressing those matters.
As to the appeal against the orders altering property interests, it is common ground that the judgment contained errors, though there is no concession from the husband as to the consequence of those errors. After dealing with the appeal against the parenting orders, we will return to the appeal against the property orders.
The mother also sought to put before us further evidence in support of the appeal against parenting orders and, in relation to the appeal against property orders, in the event that we re-exercised the discretion under s 79 of the Family Law Act 1975 (Cth) (“the Act”). The father opposed the receipt by us of any further evidence, putting forward a further deposition of his own to demonstrate that the mother’s material was contentious. We will deal with the issue of further evidence during discussion of the arguments on appeal.
The grounds of appeal also assert failure by the trial Judge either to consider applications by the mother for Departure from a Child Support Assessment and for spousal maintenance, or to transfer those applications to the Federal Magistrates Court. We are satisfied that the Departure application was not pursued at trial and that, upon Carmody J saying he would transfer the spousal maintenance proceedings to the Federal Magistrates Court, nothing further was said of it at trial. The property orders made by Carmody J included, as Order 13, “That all applications be removed from the list of cases awaiting finalisation”. In our view, we need not be further concerned with any applications for Departure in respect of Child Support, or spousal maintenance, as the parties may decide what to do about such matters in the light of the result of this appeal.
We return to the appeal against parenting orders.
Whether Carmody J failed to give sufficient weight to the children’s wishes
This argument derives from ground 1 which is:
[His Honour erred in that he:-]
1.Failed to give sufficient weight to the expressed wishes of each of the children including treating the children’s wishes as a mere factor in the determination of the best interests without giving them further significance and departing from them without good reason;
In the case at hand, the children’s wishes were conveyed through a Family Report.
Effectively, the argument here is that the trial Judge’s positive findings about the children’s wishes were so strong that they should not have been departed from. Thus, as Mr Laurie argues, it follows that they were given insufficient weight.
The positive findings that Carmody J made about the children’s wishes are sufficiently represented in those set out in the outline of argument for the mother, as follows:
a.“both children express a strong preference for the status quo” (para 170);
b.“the clear indications are that, at least in the short term, these children will be happier and more contented with the status quo” (para 222);
c.“ideally a residential order should be one with which the child is contented and reinforces feelings of security rather than the belief that they are “pawn(s) moved in a game between their separated parents”” (para 223);
d.“there is a widespread belief that the older the child, the more appropriate and likely it is for the judicial determination to reflect his or her views.” (para 229);
e.“it is clear that genuine and serious judicial consideration must be given to the wishes and stated preferences of a teenage child. Clear and cogent reasons for rejecting them should be given especially where, as here, the ICL submits for giving effect to them.” (para 238);
f.His Honour had “no reason to think that given the age and apparent maturity of these children and the consistency and strength of their expressed wishes that they are not genuinely held.” (para 247);
To assess whether Carmody J gave sufficient weight to the children’s views involves also consideration of the next question.
Whether Carmody J failed to give adequate reasons for departing from the children’s wishes
Carmody J’s explanation for the orders he made consists of a broad discussion of Part VII of the Act and relevant concepts, but also of his assessment of factors specific to the case.
As to matters of principle, in discussion under the heading “How much parenting time should these children spend with their father in their own best interests?” his Honour (further) explored the terms of relevant sections of Part VII of the Act. He said:
163.A plain and purposive reading of this provision leaves no doubt that substantial and significant time is not merely measured by quality and quantity but also by what it allows the parent and child to do together and when, during the week or year, it falls. Duration is also clearly important. The use of the word “involved” in pars (3)(b) and (c) is presumably deliberate. It refers back to the par 60B(1)(a) object which talks about a particular type of involvement; that is, an involvement in the child’s life that is both meaningful and to the maximum extent consistent with his or her best interests. It also must be enough to satisfy the adequate and proper (co- not sole) parenting object in par (c) of 64B(1) and it must be designed to help the child achieve his or her full potential as an adult.
164.Thus the time spent will not be “substantial and significant” within the meaning of the definition unless it includes days falling at different times of the week and during the year that allows the parent to be involved in both routine and important events to the child and vice versa.
165.The amount and kind of parenting time to be ordered also has to be tested against the principles stated in s 60B(2), especially the child’s right to know and be cared for by both parents and the independent but complementary right to spend time and communicate on a regular basis with both parents and, finally, again the joint sharing of parental duties in s 60B(2)(c).
166.Another important purpose parenting time is intended to serve under the Act is to ensure that non-resident parents have and avail themselves of the opportunity to fulfil their shared duties and the joint responsibility for the care, welfare and development of their children.
…
169.Even the additional best interests considerations in s 60CC(3) emphasise the role and function that parenting time plays in building and sustaining the parental relationship. …
In the same paragraph, his Honour applied his discussion of principle to the facts of the case before him. He continued:
169.…In my view neither the existing arrangements nor those being proposed by the mother meet the description of “substantial and significant” in the context of this case.
His Honour’s consideration of the children’s views in the case before him was as follows:
222.The clear indications are that, at least in the short term, these children would be happier and more contented with the status quo. This is a very important best interests factor particularly in a residence or relocation case.
…
238.It is clear that genuine and serious judicial consideration must be given to the wishes and stated preferences of a teenage child. Clear and cogent reasons for rejecting them should be given especially where, as here, the ICL submits for giving effect to them. [Footnote omitted] What is being sought, however, is just their views. They are not being asked to decide, sanction, veto or consent to an order.
…
247.I have no reason to think that given the age and apparent maturity of these children and the consistency and strength of their expressed views that they are not genuinely held. They are at least, in part reflective of the regrettable post separation events and may also project ongoing maternal anxieties, suspicions or even hostility but that does not mean that they should be dismissed, disregarded or devalued.
…
252.The capacity of the father to understand the effects of his previous behaviour is relevant. He will have to improve on his past error rate if he is ever going to build a robust strong and durable relationship with his children.
253.I find the mother’s ongoing negative views about the father have been a significant barrier to meaningful relationships being built and sustained with the children in the post-separation period.
254.However, I suspect that both parents have to bear much of the responsibility for the children’s current attitude towards the father. Each for different reasons appears to have temporarily lost sight of their children’s needs. Regrettably they did not see or ignored signs that the children were struggling emotionally. This resulted in a breakdown in communication and a rapid deterioration in their relationship with the father. The uncertainty created by the litigation has made it difficult for any reparation to the relationship between the children and the father.
Best interest findings and conclusions
255.The key question here is whether (despite what each of them may think or say they want) the expressed preference of each child for the status quo is really what they need in their overall best interests having regard to the s 60B objects and s 60CC primary and additional considerations; or, put another way, would “forcing them” to spend more time with their father than they currently do or say they want to, be likely to cause emotional distress and resentment and end up being a retrograde step in so far as their relationship with the father is concerned.
256.The children are expressing a strong preference for continuing to live primarily with the mother and spending no more time with the father than they currently do.
257.The weight to be given to them depends on their age and maturity, why and how strongly they are held and whether they truly reflect the child’s position.
258.The difference in ages of the children is normally both relevant and significant in giving weight to their expressed views. However, the children are of the same view here and the age based distinctions are overshadowed by gender issues. While the reasonable expectation of a boy verging on 16 might understandably be that his views would be acted on, by the Court and perhaps even be given greater weight than his younger sister’s, the precarious nature of the relationship between the father and both his children and, though subsequently abandoned, the unsubstantiated abuse allegations against the father by [B] and the mother’s response to them mean that whatever time [B] is ordered to spend with her father, [R] will inevitably accompany her either at his mother’s request or his own initiative “just in case”.
259.Thus, the children’s wishes can’t be separated any more than the children can. The amount of parenting time spent with the father will be virtually the same for both [R] and [B].
260.I have given the children’s views and stated preferences long and anxious consideration.
261.I don’t think the reasons for or causes of them really matter much. They had their genesis in the context of litigation and are likely to soften when it is over.
262.I have reluctantly reached the conclusion that they should not be acted upon but only because I do not think they are consistent with either the requirements of the law or their overall long term best interests.
263.My judgment and my conscience tell me that, despite what they themselves think or believe, the children should be spending more time with their father than they currently do. Indeed even the mother accepts as much.
264.I am mindful that this decision is contrary to the recommendations of the ICL, the family reporter and child psychiatrist but to my mind they were all overly influenced by stated views of children made in the context of litigation and did not give adequate weight to the family dynamics and background, the non-contact history and its cause and effects, the function of contact, the father’s long-term future role in their lives or the changes in the law. I thought they were also unduly concerned about what I thought, were highly speculative risks.
…
266.To my mind their solution to the perceived problem is likely to defeat the co-parenting and parenting objects of the Act. Nonetheless I have to ask myself the question- what if I’m wrong and they are right? What if the orders I have tentatively in mind do upset the children to the point that they have the unintended consequence of actually setting back the reconciliation process and further marginalising the father?
267.What’s the worst thing that can happen if the children spend more time then they want to with the father? If the father has overreached and miscalculated the risk he is willing to take with his ongoing relationship with his children then the burden of loss will lie where it falls- probably on him and hopefully not on the children.
…
280.I am acutely mindful of expecting or demanding too much of the children too quickly. In this regard their views and wishes provide a helpful indication of their limits even though they are not being fully acted on.
These passages, as well as directly bearing upon the question of adequacy of reasons, contain the genesis of the complaints in points (iii) to (v), to which we will shortly turn.
However, as to the two points addressed so far, namely the weight given to the children’s wishes and adequacy of reasons for departing from them, in our view it is clear that Carmody J:
·regarded the children’s wishes seriously and as entitled to significant weight; and
·explained why, keeping the best interests of the children as the paramount consideration, he proposed to make orders not reflecting those wishes.
We also think it appropriate, when assessing the adequacy of the trial Judge’s reasons for not following the wishes of the children, to bear in mind that the mother’s own proposal involved not following them.
We find no merit in the first two arguments.
Whether Carmody J drew incorrect conclusions in respect of the children’s wishes
The actual grounds of appeal that reduce to this point are grounds 5 and 6.
Ground 5 is:
[His Honour erred in that he:-]
5.Found that the reasons or causes for the children’s strongly expressed and genuinely held views did not “really matter much” and were likely to soften when the litigation was over, when there was no evidence to support such a finding
We repeat the findings called into question by this ground:
261.I don’t think the reasons for or causes of them [the children’s wishes] really matter much. They had their genesis in the context of litigation and are likely to soften when it is over.
His Honour’s conclusion that the causes of the children’s views did not really matter much is not illogical or unfounded. In paragraphs before and shortly after the one in question (258 and 264 previously quoted), Carmody J refers to matters such as the unsubstantiated abuse allegations and the mother’s responses to them and the family dynamics and background as bearing upon the children’s preferences. His Honour’s view that the causes of the children’s wishes did not really matter much was not to diminish the significance of those wishes, but merely to opine that the nature of the causes of them did not affect the weight to be given to them or affect the Court’s response to them. We are not satisfied that his Honour’s opinion was wrong.
As to Carmody J’s conclusion that the children’s views were likely to soften when the litigation was concluded, his Honour was entitled, if not obliged, to form an opinion about what would happen in respect of the children’s views in the future. We do not think such an assessment requires expert evidence. His Honour had evidence of the genesis of the children’s preferences and other matters referred to above, from which he could draw the inference.
As to challenges to factual conclusions, in G v H (1994) 181 CLR 387 at 390 Brennan and McHugh JJ said:
…An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. …
In Marsden and Winch (No.3) [2007] FamCA 1364, the Full Court of this Court said:
155. Findings of fact involve a weighing of the probabilities and are not made in a vacuum. As Gibbs CJ and Mason J said in Chamberlain v R.(No 2) (1984) 153 CLR 521 at 536, findings concerning a particular fact are made “not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence”.
We find no merit in ground 5.
Ground 6 is:
[His Honour erred in that he:-]
6.Found that to act upon the children’s strongly expressed and genuinely held views was contrary to the requirements of the law.
The passage, earlier quoted, that gives rise to this ground, is:
262.I have reluctantly reached the conclusion that they [the children’s wishes] should not be acted upon but only because I do not think they are consistent with either the requirements of the law or their overall long term best interests.
Though the two considerations the “requirements of the law” and “best interests” are expressed as if they were separate principles, of course they are not. The requirements of the law (Part VII of the Act) are that, in applications to which the Part applies, the best interests of the children are the paramount consideration.
But notwithstanding what is at the worst, an imprecise expression, there is no doubt that Carmody J correctly appreciated that the children’s best interests were “the law”, because, as already seen, elsewhere he expressly said so. The manner of expression likely results from his Honour’s approach of discussing the law somewhat in the abstract, and only then turning to the facts, in particular factors bearing on an assessment of the children’s best interests. However, there is no appealable error in that approach.
Whether Carmody J failed to give sufficient weight to the evidence of the Family Report writer of the risk of harm to the children
The term in question related to the predicted adverse impact on the children and their relationship with the father of an order contrary to their wishes.
As earlier seen, Carmody J said:
264.I am mindful that this decision is contrary to the recommendations of the ICL, the family reporter and child psychiatrist but to my mind they were all overly influenced by stated views of children made in the context of litigation and did not give adequate weight to the family dynamics and background, the non-contact history and its cause and effects, the function of contact, the father’s long-term future role in their lives or the changes in the law. I thought they were also unduly concerned about what I thought, were highly speculative risks.
We are satisfied that, on its face, such an assessment of the expert evidence was open to the trial Judge.
Again, we think it helpful in considering the weight that the trial Judge apparently gave to this issue, that the mother herself proposed an increase in time the children spend with the father from two nights a fortnight to three, and his Honour ordered four.
It is difficult to conceive that a judge could be definite about the impact of one arrangement as against the other.
We find no merit in this contention.
Mr Laurie also raised the trial Judge’s rejection of the expert’s recommendations in relation to the argument that Carmody J took extraneous materials into account. That contention will be discussed later.
Whether Carmody J wrongly found that, if the orders were based on a miscalculation by him of the risk for the children, the consequences would fall on the father and not on the children
The two paragraphs of Carmody J’s reasons with which this argument is concerned, set out earlier, but repeated here, are:
266.To my mind their solution to the perceived problem is likely to defeat the co-parenting and parenting objects of the Act. Nonetheless I have to ask myself the question- what if I’m wrong and they are right? What if the orders I have tentatively in mind do upset the children to the point that they have the unintended consequence of actually setting back the reconciliation process and further marginalising the father?
267.What’s the worst thing that can happen if the children spend more time then they want to with the father? If the father has overreached and miscalculated the risk he is willing to take with his ongoing relationship with his children then the burden of loss will lie where it falls- probably on him and hopefully not on the children.
Ground 8 asserts that the finding here challenged was not supported by evidence. Again, these findings are inferences or assessment about a likely, or possible, course. They are the result of logical progression. They may not be conclusions that every judge would draw, but we repeat what we earlier said in respect of such matters.
We find no merit in the argument.
Whether Carmody J found in accordance with his “conscience”, without disclosing the basis upon which his conscience was informed or informed him
This is an insubstantial argument. It picks up ground 7, which is:
[His Honour erred in that he:-]
7.Found that his Honour’s “conscience” informed him that despite what the children think or believe, they should be spending more time with their father, without disclosing the basis upon which his Honour’s “conscience” was either informed or informed him;
The sentence concerned is:
263.… My judgment and my conscience tell me that, despite what they themselves think or believe, the children should be spending more time with their father than they currently do.
In our opinion, the use of the term is equivalent to phrases such as “To my mind”, or “In my view”. It comes towards the end of detailed discussion of the legislation and factors relevant to the question that his Honour had to determine. We think the point “pernickety” and find no merit in it.
Whether Carmody J wrongly found that the history of the father’s time with the children was irrelevant
This argument derives from ground 9, which is:
[His Honour erred in that he:-]
9.Found that the history of the father’s time with the children prior to separation “missed the point” when such a consideration was relevant
Carmody J said:
276.The implication in the mother’s case that the father is now asking for more time with the children after separation than he ever wanted or took advantage of before totally misses the point. The family is separated. Everything has changed for ever. The family is divided into two households. Neither of them is more important than the other just because it has more family members in it than the other. The minority household is no less important in the children’s lives than he was before by virtue of that fact alone. Apart from anything else, he is now more available, both physically and emotionally, than he used to be because of his unemployment. This may be temporary but that is not a reason not to take advantage of it while it lasts. Even when he goes back to work, the reality of the situation is that the father, like the mother, now has to divide his time between professional and domestic commitments because of the separation. This, I’m satisfied, he will do as best he can even if he will sometimes fall short of expectations and have to ‘redeem’ himself from time to time. He is prone to laxity, selfishness, egoism and all the other inadequacies and failings that, to a greater or lesser extent, humans have in common. The right these children have, as Murphy SC pointed out in final submissions, is to a meaningful relationship and involvement of the parents they have not the ones they wish for. They are not entitled to perfect parents or to somebody else’s idea of a model father. For better or worse they are stuck with both their parents and all the court can do is to create circumstances to ensure that they have the best possible relationship with each of them they can consistently with their best interests.
Contrary to the assertion contained in this ground, the trial Judge did not find that the history of the father’s time with the children prior to separation was irrelevant. Indeed, his Honour had dealt with the mother’s case about this aspect earlier in his judgment:
251.There was some debate at the trial about the extent to which the husband was prepared for or temperamentally suited to equal or substantial and significant time with the children. Admittedly the father’s record with the children is not as good as the mothers but she has also had more opportunity and experience. Dominant maternal involvement during the marriage is not an argument against increasing paternal involvement after separation especially in light of the amendments. Mothers and fathers interact differently with their children in some ways but similarly in others. Lack of experience itself does not suggest disinterest or incompetence.
252.The capacity of the father to understand the effects of his previous behaviour is relevant. He will have to improve on his past error rate if he is ever going to build a robust strong and durable relationship with his children.
What Carmody J said “misses the point” was not the history of the father’s time with the children, but was an “implication” in the mother’s case that there was some disingenuity or “hurdle” in, or to, the father’s case, arising from the difference between what the father sought at trial in respect of time with the children and what he had spent with them in the past.
We see no error in his Honour’s treatment of this aspect of the case.
(viii) Whether Carmody J wrongly relied upon social science literature and one of the Articles of a United Nations Convention, when that material was not “before his Honour” nor it raised, and thus the mother was deprived of the opportunity of addressing those matters
The grounds relating to this argument are:
[His Honour erred in that he:-]
4.Took into consideration the provisions of Article 12 of the United Nations Convention on the Rights of the Child when such a consideration had not been advanced before his Honour nor had the wife been given an opportunity to address his Honour on that issue including his Honour’s reliance on the views expressed in Re: P (1992) 1 FLR 316;
10.Relied upon social science literature and the reports and comments thereon in determining what arrangements would be in the best interest of the children including paragraphs 105, 125-137, 145-147, 151, 175-186, 196, 197, 209, when that material was not before His Honour and the Appellant was deprived of the opportunity of addressing those matters.
To address the argument that extraneous matters may have wrongly influenced the trial Judge, it is necessary to consider the arrangement and content of his Honour’s reasons in some further detail.
Much of the history of events after the separation of the parties in August 2003 was effectively summarised by his Honour in his judgment as follows:
5.… It [the children’s negative views about extra time with the father] can’t be divorced from the lengthy periods of no contact and other relationship damage that [B’s] unsubstantiated and now abandoned sex abuse complained [sic] has caused.
6.The father claims that since separation the mother has acted with the intention or effect of weakening the children’s relationship with him. The timing of the abuse allegations, he says, give context and colour to the children’s current views and clearly show that the mother cynically encouraged or, at least, allowed a situation to develop in which the father was cut off from the family as if he was a dangerous parent when, in truth, he was not. The past, he says, cannot and should not be ignored when evaluating the strength or validity of the children’s views despite their age.
As to the position of the mother, his Honour said:
13.… Other considerations include the potentially counter-productive effect of forcing children of their age to spend more time with the father in the context of an already fragile relationship. The point pressed is that the likely benefits are outweighed by probable greater harm.
14.Any appreciable enlargement in the father’s overnight parenting time would, it is submitted, be too stressful for B because she is only just coping with the current arrangements and fails to have regard to the strength of her relationship and emotional dependence on the mother.
15.The mother’s own resistance to more contact is said to be an additional material factor. The mother portrays herself as being demonstrably pro-contact and, at least in more recent times, actively supportive of the children’s relationship with the father. She urges me to trust her instincts which are telling her to hasten slowly.
16.Other suggested obstacles to any additional staying over time with the father at this juncture are his alleged lack of child focus evidenced by a history of relegating the children’s interests to work commitments and the current uncertainty about where he will live and work.
17.The mother also claims that making the children spend more time with the father than they do now is likely to generate further litigation because the children may well refuse to comply with any additional time ordered against their wishes which may lead to contraventions and enforcement proceedings or variation applications.
18.The wife understandably, and not unreasonably, emphasises the importance of stability in the children’s lives, the need to have respect for their views and not to needlessly or unduly disrupt their settled routine in circumstances where everyone is still hurting and the repatriation of the father into the children’s lives is a work in progress.
19.The ICL is content with the amended proposal of the mother but considers that neither the husband’s preferred shared care arrangement nor his alternative 9:5 proposal is desirable. This position is taken because the children, especially [B], apparently have a closer relationship with the mother, their age and strongly resistant views, the tenuous nature of their relationship with the father and the shared opinion of the expert child psychiatrist, Dr [W], and family reporter, Ms [A], that the children are likely to “talk with their feet” if ordered to spend more time with the father. There are also concerns expressed about [B’s] reaction to being left alone in her father’s household or spending too much time in school care when she could just as easily be at home with her mother on the other side of town. Ultimately the ICL does not believe that the gains made to date should be jeopardised by taking the supposed risks associated with the father’s proposal but recommends the making of orders that allow more father time to evolve naturally. To do otherwise, the ICL suggests, would be meeting the father’s needs and interests at the expense of the childrens.
Carmody J also noted that the Independent Children’s Lawyer sought post-order family counselling if there was any substantial increase in time that the children would spend with the father.
After setting out the proposals of each parent and of the Independent Children’s Lawyer, Carmody J entered into a lengthy discussion of various aspects of the law relating to parenting applications.
The segments of that discussion and passages indicative of the discussion are:
Legislative policy and principles
21.The court’s discretionary power in s 65D to make such parenting order “as it thinks proper” is now governed by the 2006 shared parenting reforms which introduced the prima facie but rebuttable presumption of ‘equal shared parental responsibility’ (a term of indeterminate and undefined statutory meaning) in s 61DA but retained the mandatory obligation in s 60CA to regard the best interests of each child as the paramount consideration. [Footnotes omitted]
Later, his Honour referred to the presumption of equal shared parental responsibility. He said:
41.The value of the presumption as a chief operating principle has been questioned by me extracurially. In light of this and because of public warnings to the court about not taking a “business as usual” approach and failing to give full effect to the new amendments, it seems appropriate to say something about judicial independence and probity. [Footnotes omitted]
His Honour then embarked upon those topics, then upon his view of the presumption and from there, segued into observations of forces that may operate on separated persons, of which observations the following are examples:
54.Maternal attitudes toward parental involvement play a central gate keeping role in either facilitating or limiting opportunities for fathers to parent and develop close relationships with their children. The willingness of a father to provide financial support is seen as a sign of love and commitment without which he is deemed to have forfeited the rights of fatherhood. When fathers pay higher levels of support they are perceived to be more competent than fathers paying less support and there is less maternal reticence to contact.
…
57.Other parents will fail to maintain a meaningful relationship with their children following separation and divorce because of weak attachments or personality limitations associated with egoism and narcissism.
Carmody J then discussed “The best interests criteria” in paragraphs 58 to 85. This segment commenced:
58.The width of the discretion judges have in making child related decisions means that predictions, perceptions, assumptions and within reason even intuition and guesswork can all play a part in the reasoning process in the best interest exercise.
59.This is because best interests are really values not facts. They are not susceptible to scientific demonstration or conclusive proof. The same body of evidence may produce opposite but nonetheless reasonable conclusions from different judges. There is not always only one right answer. Informed and honest minds can genuinely disagree and yet neither be totally wrong nor completely right. Sometimes, the least worst situation may be the best available. Many cases are finely balanced with the only option being a choice between two or more imperfect alternatives.
In the course of this discussion his Honour considered the structure of s 60CC of the Act, in particular the dissection of factors into “primary” and “additional considerations.”
The next heading in the judgment is “Joint or Co-parenting” and discussion occupies paragraphs 86 to 100. His Honour explored the concept of “equally shared or dual (not joint) responsibility…”, during which he said:
94.Nonetheless, prescribing co-operation between separated or divorced couples is a bit like making road rules. Just because they are there doesn’t mean they’ll be obeyed. Stop signs don’t stop cars, drivers do. It is just as hard to see how the duty to consult and act jointly in deciding the school they go to, the subjects they do, the doctors they see, the surnames they use and so on is going to work in practice in every case of agreed or otherwise equal shared parenting given that it “takes two” and a good reason can always be found for not making arrangements work if you want to.
In respect of Carmody J’s treatment of other issues, to show that “extraneous” discussion did affect or may have affected the resolution of an issue, Mr Laurie, reasonably we think, poses the question, “Why else would the discussion have been included?”
Carmody J’s comments on the concept of equally shared parental responsibility demonstrate that other purposes may exist, because, as the next quote shows, there was no issue about parental responsibility:
95.All parties in this case agree that it would be in the children’s best interests for the court to exercise its power under s 65D to make a parenting order allocating equal shared parental responsibility for the children. The effect of this is to displace the pre-existing legal position under s 61C.
Shortly after his Honour moved to consider “Parenting time” using sub-headings “50:50 arrangements” and “Substantial and significant time”, extending from paragraphs 125 to 155.
The trial Judge then came to the topic “How much parenting time should these children spend with their father in their own best interests?” Parts of this discussion (paragraphs 156 to 169) critical to his Honour’s reasons for the orders, were earlier set out. His Honour then addressed “The Children’s views” (paragraphs 170-247), his treatment of them also summarised earlier.
In paragraphs 248 to 250 Carmody J addressed “The children’s relationships” and in paragraphs 251 to 254, some of which were also earlier set out, he discussed “Parents’ attitudes and capacities”. Then, as earlier seen, the trial Judge addressed under the heading the “Best interests findings and conclusions” the competing proposals and his assessment of orders he found to be in the best interests of the children, thus completing his reasons for the parenting orders.
Throughout his Honour’s reasons for the parenting orders references are footnoted. Sources identified range across journal articles on legal and social work topics, Explanatory Memoranda, published research results and case law. It is not always clear whether a statement in his Honour’s judgment is extracted from a source or from segments of his Honour’s synthesis of it.
Before turning to the more specific complaints about the trial Judge’s asserted use, or possible use, of extraneous materials, we note that Mr Laurie, firstly, did not argue that any statement of the law made by Carmody J was wrong. Secondly, he did not identify any instance in which extraneous material was directly cited by the trial Judge as support for a conclusion forming part of his reasons for any particular order made.
The first specific complaint about his Honour’s use of extraneous material and/or observations to which we turn is contained in ground 3, which is:
[His Honour erred in that he:-]
3.Found that “typically shared care occurs where children are of primary school age between 5 and 12 years” where there was no evidence before his Honour to support such a finding.
The first paragraph of Carmody J’s discussion of “50:50 arrangements” is:
125.Typically, shared care occurs where children are of primary school age between five and 12 years.
In following paragraphs, the trial Judge discusses a number of books and articles on the topic of shared parenting, however, the source of the statement challenged is not identified. We think that the bold inclusion in reasons of propositions such as this, undesirable.
However, the inclusion of this statement, as an appeal point for the mother, carries no weight. If acted upon, and it cannot be seen that it was, it must have worked in favour of the mother, not against her. As seen, the older child was 15 years old. Shared care was opposed by the mother and was not ordered.
There is no merit in this ground.
As to ground 4, asserting that Carmody J took into account Article 12 of the United Nations Convention on the Rights of the Child, his Honour mentioned the Convention in his discussion of “The Children’s Views”:
175.Replacing wishes with views is also consistent with the wording of Article 12 of the United Nations Convention on the Rights of the Child which was ratified by Australia in 1991 and sets out the human rights of children together with the standards required of governments to achieve them. [Footnote omitted]
176.Under the Convention children have a right not only to maintain a relationship and contact with both parents but to be heard. [Emphasis added]
His Honour then embarked on an exploration of the features of various modes by which children’s views might be communicated to a court. He said:
186.Ms. Rayner also identifies some major problems in providing advocacy for children through the separate representatives in the Family Court. The first concerns the mode of communication with the court through third party means, such as family reports and hearsay evidence of witness and experts.
187.A childs lawyer is not appointed and therefore cannot be removed by the children. Nor does the independent representative act on the subject child's instructions but on their own judgment of what is in the "best interests" of the children.
…
198.The orthodoxy in most modern common-law based jurisdictions is that it is better to rely on trained experts to interview and relay the views of children and to interpret their wishes and feelings rather than to conduct judicial interviews. However, thinking about this issue is gradually changing and the utility of judicial interviews is now being openly debated in Australia.
…
201.Without requiring or mandating it, the less adversarial child related proceedings lends itself to and encourages direct dialogue between the decision-maker and the child as the affected person.
…
203.Thorpe LJ, however, appeared to recognise that the methods and levels of investigation conventionally adopted in common law countries when trying issues of alienation may not meet international standards and wondered aloud whether judges should see children and, if so, what training should they receive and what level of involvement should a child have in private law proceedings.
…
206.I raised it as an option in this case but none of the parties was attracted to the idea. [Emphasis added]
207.There are some good reasons for avoiding it.
208.There are however two explicit benefits: hearing children at first hand and canvassing options with them. It might be particularly useful where there is no family report or the information in it is dated. It may also have therapeutic benefits to the children and in the right hands may assist in resolving the dispute without court order.
…
211.There are clear risks and due process concerns in judicial interviews, but like its civil and criminal counterparts, family law procedure is an evolutionary one. Nothing should be ruled automatically in or out. There needs to be enough flexibility in the system to ensure that the judge gets all the help he or she needs to find the best interests solution for the particular children concerned.
The essential argument for the mother is that, because the children’s wishes were communicated through a Family Report and because his Honour recorded comments about the limitations of that method, he may have placed less weight on the children’s wishes than had they been obtained, for example, in judicial interview. If so, injustice arose, because the question of the manner in which the children’s views had been ascertained was not agitated at trial.
We think the answer to this contention is that there is no sign that his Honour rejected the accuracy or strength of the children’s wishes. To the contrary, he recognised their “consistency and strength”. He gave them “long and anxious consideration”.
The argument also loses force if his Honour has, as we accept he has, adequately explained why he made orders contra to the children’s wishes.
We therefore conclude that his Honour’s dissertation on the topic of methods by which children’s views may be communicated to courts did not provide a reason for the result.
Finally, we mentioned earlier that Mr Laurie argued that the failure of the trial judge to follow the recommendations of the expert witness about risk of harm to the children had relevance to the contention about use of extraneous material. The proposition was that the rejection increased the likelihood that some reliance was placed on extraneous material.
Again, this argument loses weight when, as earlier seen, the trial Judge gave express reasons for not adopting the expert’s recommendations.
Further evidence relating to the appeal against parenting orders
In summary, in the proposed affidavit by the mother, she deposed that, since Carmody J’s orders, the children were dissatisfied with the arrangements. The older child was largely deciding what time he would spend with the father.
Mr Laurie submitted that the further evidence particularly related to the challenge to Carmody J’s conclusion that, if the orders were based on a miscalculation by him of the risk for the children, the consequences would fall on the father, not the children. Mr Laurie suggested that the further evidence showed otherwise.
As earlier indicated, Mr Kent, Senior Counsel for the husband, opposed the reception by us of this further evidence and to found a submission that the mother’s deposition was contentious he sought to place before us a deposition by the father, taking issue with most of what the mother said about the children’s dissatisfaction and about arrangements made by the father for them.
We do not intend to receive the further evidence relating to parenting issues for these reasons.
Firstly, we do not think that it demonstrates that the orders of Carmody J were wrong. Nor do we think that it demonstrates that the particular conclusion of Carmody J, to which Mr Laurie said the proposed evidence went, was wrong. Though the children may currently be exhibiting some difficulty with the orders about time to be spent with the father this does not mean that his Honour’s prediction about consequences falling on the father, may not yet materialise. Moreover, that particular prediction did not mean that his Honour was not alive to the prospect of the children being unhappy with his orders. As seen, he said:
222.The clear indications are that, at least in the short term, these children would be happier and more contented with the status quo. …
Secondly, we accept that the mother’s evidence is contentious.
Finally, if circumstances have changed since the orders under appeal, other avenues for reconsideration of the orders may be open.
Conclusion in respect of the appeal against parenting orders
The appeal against the parenting orders should be dismissed.
The appeal against property orders
Carmody J found that the gross assets were $1,296,785.00, liabilities were $263,800.00, and accordingly “net divisible agreed non-superannuation assets” were $1,032,985.00. His Honour assessed contributions as favouring the husband at 65 per cent, thus to the wife 35 per cent, but made an adjustment in favour of the wife of 10 per cent on account of s 75(2) factors. He recorded that, therefore, the husband was to receive $568,142.00 and the wife $464,483.00, the total of which approximates the net assets (falling $200.00 short).
Mr Kent concedes that the table of assets set out in Carmody J’s reasons is incorrect. To some extent, his Honour may have been misled by being given an incorrect document. Further, Mr Kent acknowledges that the table of assets set out in the outline of argument for the wife, is correct. Net assets according to that table are $990,661.40. However, that table includes superannuation of the husband, acquired post-separation, at $11,000.00. To put Mr Laurie’s table on the same basis as the table of the trial Judge requires the exclusion of the superannuation, so that net assets would be $979,661.40. The difference then between the table agreed for the purposes of the appeal and that determined by the trial Judge, is $53,013.60; that is, a little over five per cent less than the pool acted upon by Carmody J.
If this were the only error, whether it is of the magnitude that we ought only allow the appeal to the extent of carrying through into the orders the mathematical consequences of the error, or whether we ought reconsider other steps in the usual approach to the determination of a property settlement application, such as assessment of contributions, or perhaps more particularly here, adjustments to s 75(2) factors, is a question that might draw differing opinions. However, there are two other matters in respect of which there are concessions.
Under the heading “Step Two – the parties’ wealth and welfare contribution” Carmody J said:
314.The next major asset was $50,000 in shares which was about the same as it was at commencement. The husband’s $200,000 contribution to the former matrimonial home came from $150,000 in savings and a compensation payout of $50,000.
It is common ground that the matters referred to in that paragraph do not relate to the contentions or evidence of either party in this case.
In combination with the “asset pool” error, this aberration persuades us that we should either re-exercise the discretion and determine the s 79 application for ourselves, or remit it.
The other matter conceded was in respect of paragraph 315, where Carmody J said:
The [property at C] house was sold for $145,000 (a profit of $30,000).
Mr Kent concedes that these facts are wrong. However, in the context of numerous transactions and non-financial contributions, this error is perhaps of little moment.
Mr Kent also submitted that the errors occurred when the trial Judge was setting out “background” and did not form a base for his assessment of initial contributions or contributions during cohabitation. We are not satisfied that that is so, having regard to the heading, earlier described, to the section of the judgment under which the passages appear.
In the circumstances, it seems unnecessary to consider whether there is merit in the numerous other grounds of appeal, particularly those that asserted misstatements of principle in his Honour’s review of the law and those that challenged the exercise of discretion. However, if we sought to re-exercise it would be necessary to examine the grounds in relation to factual conclusions, to determine whether we are were able to establish a proper basis for that re-exercise.
The further evidence relating to the appeal against property orders
The affidavit of the wife deposed to “information” received or located after the trial, relating to the husband’s employment, rental income, superannuation, trust distributions and the value of real estate, all of which, she asserted, differed from that put before Carmody J.
Again, in response, Mr Kent points to the husband’s proferred deposition, in which the husband says that the wife’s information needs to be put in context, for example, deductions should be made from gross rental income, with the result that little has changed from the figures put before Carmody J. In all, he says, any differences would have had no real impact on the deliberations of the trial Judge. At the least, the husband’s further material demonstrates that the further evidence put forward by the wife, is contentious.
But the wife also seeks to give other “updating” evidence. This relates to medical needs, legal fees and the taking up by her of the role of full-time carer for her mother.
Conclusion
We receive the further evidence proferred by each party for the purpose of deciding the proper course in respect of the resolution of the application for alteration of property interests.
While it might be that ultimately, a court would consider all that the wife seeks to put forward is of little moment in s 79 proceedings, the information is in respect to factors relevant in such proceedings. We do not think we should deprive the wife of the opportunity of putting her evidence before a court, or deny the husband the opportunity of testing it. However, the consequence is, in our view, that the proceedings should be remitted for rehearing.
Costs
Despite the failure of the appeal in relation to parenting orders, having regard to the nature of the issues raised we consider the proper order is that there be no order as to costs in respect of the appeal against those orders.
As to the appeal against orders altering property interests, we think the grant of certificates to each party under the Federal Proceedings (Costs) Act 1981 (Cth), both in respect to the appeal and the retrial is the appropriate course.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 23 July 2008
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