Egbert and Toohey
[2014] FCCA 1564
•25 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EGBERT & TOOHEY | [2014] FCCA 1564 |
| Catchwords: FAMILY LAW – Children – children’s best interests – father’s application for equal time – Family Consultant’s evidence and opinions – Makita principles. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| B & S [2004] FMCAfam 61 Champness & Hanson (2009) FLC 93-407 H and H (2003) FLC 93-168 Mulvany & Lane (2009) FLC 93-404 Sproat & Brimm [2013] FCCA 1823 |
| Applicant: | MS EGBERT |
| Respondent: | MR TOOHEY |
| File Number: | LNC 143 of 2012 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 1 and 2 April 2014 |
| Date of Last Submission: | 2 April 2014 |
| Delivered at: | Launceston |
| Delivered on: | 25 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Tesoriero |
| Solicitors for the Applicant: | Kay & Ruddle Lawyers |
| Counsel for the Respondent: | Mr P McVeity |
| Solicitors for the Respondent: | McVeity & Associates |
ORDERS
MR TOOHEY (“the father”) and MS EGBERT (“the mother”) have equal shared parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2007 (“the children”).
That the children live with the mother.
That the children spend time and communicate with the father as follows;
(a)each alternate weekend during school terms from the conclusion of school on Thursday until 7:30pm on Sunday, with such time to be extended to 7:30pm on Monday if the Monday is a non-school day;
(b)each Tuesday during school terms from the conclusion of school until 7:30pm;
(c)for half of all school holiday periods as agreed, but failing agreement on a weekly rotational basis with special occasions such as Christmas Eve, Christmas Day and Easter to be included on an annual rotational basis; and
(d)at such other times as may be agreed between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Egbert & Toohey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 143 of 2012
| MS EGBERT |
Applicant
And
| MR TOOHEY |
Respondent
REASONS FOR JUDGMENT
Introduction
MS EGBERT (“the mother”) filed an Initiating Application on 16 March 2012 seeking orders for division of property as a consequence of her de facto relationship with MR TOOHEY (“the father”). On 8 May 2012 the father filed a Response seeking orders in relation to the children of the relationship and property orders. The mother then filed a Reply on 4 September 2012 seeking orders in relation to their children.
When the matter came on for hearing on 1 April 2014, the parties had resolved their dispute in relation to property matters, and orders were subsequently made on 16 April 2014 by consent.[1] However, they had not resolved their differences in relation to the parenting orders that they were seeking, so a hearing took place on 1 and 2 April 2014.[2]
[1] The delay in making those Orders was caused by the need to provide procedural fairness to the trustee of a superannuation fund.
[2] I shall refer to those days as Day 1 and Day 2.
Brief background
The mother is 32 and lives at (omitted) in Tasmania. The father is aged 33 years and lives in (omitted), approximately 11 kilometres from where the mother lives.
Their relationship commenced in late 2001 and they started living together in early 2002. After a period of separation, the parties resumed cohabitation in mid-2003 and they finally separated in mid-2011.
There are two children of the relationship, X born (omitted) 2003 and Y born (omitted) 2007.
After the parties separated on a final basis, the children lived predominantly with their mother and spent alternate weekends with their father. In mid-2013 the parties agreed that the children should spend more time with their father and they started seeing him from after school on Thursday until Sunday evening each alternate week and on Tuesdays each week from after school until 7:00 pm. When necessary, the children attend after-school care or are looked after by the paternal grandmother until the father gets home from work shortly after 4:30 pm.
Since 2013 the children have also been spending half of their school holidays with their father.
The children’s grandparents on both sides live within relatively close proximity and the children have regular contact with them. There are other extended family members living on the North West Coast of Tasmania and the children have contact with them also.
Orders sought
At the start of the hearing, the mother was seeking orders as follows:
1. The parties share equal parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2007 (“the children”)
2. The children live with the mother
3. The children spend time and communicate with the father as follows;
a. Each alternate weekend from the conclusion of school Thursday until 7:30pm Sunday, such time extended to 7:30pm Monday in the event the Monday is a non-school day.
b. Each alternate Tuesday from the conclusion of school until 7:30pm.
c. For half of all school holiday periods by agreement.
d. At other times as agreed between the parties.
The orders sought by the father were:
1. That the parties have equal shared parental responsibility for … the children.
2. That the children live with each parent on a week about basis with the changeover in the children’s residential arrangements to take place after school each Thursday.
3. That if exchanges do not take place at school the father is to collect the children at the commencement of his time from the mother’s home and the mother shall collect the children from the father’s home at the commencement of her time.
4. Notwithstanding these orders:
4.1 The children spend time with the father in 2015 from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the mother from 3.00pm Christmas Day to 3.00pm Boxing Day each alternate year thereafter;
4.2 The children spend time with the father in 2014 from 3.00pm Christmas Day to 3.00pm Boxing Day and with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day and each alternate year thereafter;
4.3 The children spend time with the father in 2015 from 3.00pm Easter Saturday until 3.00pm Easter Sunday and with the mother from 3.00pm Easter Sunday until 3.00pm Easter Monday and each alternate year thereafter;
4.4 The children spend time with the father in 2014 from 3.00pm Easter Sunday until 3.00pm Easter Monday and with the mother from 3.00pm Easter Saturday until 3.00pm Easter Sunday and each alternate year thereafter;
4.5 That the parent with whom the children are not living with at the time spend time with the children on the children’s birthdays if on a school day from after school until 6.00pm and if on a non-school day then from 3.00pm to 7.00pm;
4.6 That the children be with the mother for Mother’s Day from 5.00pm on the Saturday preceding Mother’s Day until 5.00pm on Mother’s Day and with the father on Father’s Day from 5.00pm on the Saturday preceding Father’s Day until 5.00pm on Father’s Day.
Essentially, the mother wants the children to live predominantly with her and spend time with the father on a regular and frequent basis, whereas the father wants the children to live with each parent on a week and week about basis. As part of his proposal, the father would like the weekly cycle to commence on Thursdays because he has a rostered day off (“RDO”) every second Friday.
The evidence
I received into evidence affidavits by the mother, the father and the father’s mother. In addition, Senior Family Consultant Ms D (“the Family Consultant”) had provided a Family Report dated 27 March 2013 (“the Family Report”). Those four people also gave oral evidence.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[5]
[5] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [6]
[6] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[7]
[7] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section was amended in some respects by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 which apply only to proceedings instituted on or after 7 June 2012. In this matter the proceedings for parenting orders were commenced by the father when he filed his Response on 8 May 2012 so those amendments do not apply.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[8] The court must also take into account those of the “additional considerations” that are relevant.[9]
[8] Subsection 60CC(2)
[9] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. That debate may continue from time to time. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[10]
[10] See Mulvany & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[11] 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.[12]
[11] Section 61DA
[12] Subsection 61DA(4)
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[13]
[13] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[14]
[14] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[15] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[16] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of sub-section 65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a Court to consider making an order as described in sub-section 65DAA(1)(c).[17]
[15] MRR v GR (2010) FLC 93-424
[16] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[17] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[18]
[18] See TB & TC (2005) FLC 93-224
Discussion
In deciding what orders I should make, I will consider the relevant evidence in the light of the considerations under section 60CC of the Act.
Primary considerations
As mentioned above, the “primary considerations” are:
·the benefit to the children of having meaningful relationships with both parents; and
·the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In my view, I do not need to say much about either consideration; because it was generally agreed by both counsel that neither primary consideration required any particular attention. The mother’s counsel put it succinctly as follows:
There are no real allegations that anyone is at the risk of harming these children and in my submission the children currently have the benefit of a meaningful relationship with both of their parents.[19]
Relevant additional considerations
[19] Transcript: Day 2, commencing at the foot of page 117
The children’s views
At the time of the Family Report interviews, the children appeared to want to spend more time with their father. Very shortly after the Family Report was released, the mother made an offer to increase their time with him and that has continued in accordance with the Family Consultant’s recommendations since he accepted her offer.
Although the children are reported to have mentioned that equal time was “fair”, I conclude that they were repeating what their father had said to them. I shall refer to that further below, however, I note that the Family Consultant stated that when she saw them “they were of the age and stage where they wouldn’t have any real conception of what [equal time] would be like”.[20]
[20] Transcript: Day 1 at page 10
The relationships of the children with the parents and other people
It is clear that the children have warm and loving relationships with both parents.
The Family Consultant reported this about their relationships with their father:[21]
[The father] was observed to have a strong connection with his children. Y was very happy to be hugged up in his arms. She and X both appeared relaxed and happy in his care when seen together in the playroom.
[21] Paragraph 13 of the Family Report
She said this about their relationships with their mother:[22]
X and Y are close to their mother and she has been their primary attachment figure. It was apparent in her conversation with them in the playroom that she has the closer connection to them that comes from being very familiar with their lives and tending to their needs on a daily basis. She was very attuned to them.
[22] See paragraph 23
It is very pleasing to see that children have warm and loving relationships with their grandparents on both sides. In relation to that, I adopt what Treyvaud J said in Bright and Bright v Bright and Mackley,[23]:
Kay J, in a decision to which I was referred, of Stevens & Lee (1991) FLC 92-201, made remarks which are similar to those which others may have made and certainly which I have made on occasions.
His Honour was at pains there to point out, as I do now, that it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
[23] Bright and Bright v Bright and Mackley (1995) FLC 92-570 at page 81,658
In Stevens & Lee, Kay J had said:
For my own sociological part, I would say that the more loving, caring people this child can have contact with, the better for the child. The greater exposure the child can have to its biological links with its paternal grandparents, the better for the child, short and long-term.[24]
The willingness and ability of the parents to facilitate and encourage the children’s relationship with the other parent
[24] Stevens & Lee (1991) FLC 92-201 at page 78,385
The Family Consultant said this in the Family Report:
[The mother] wishes to protect the children by limiting their time with their father. She is not confident in his ability to care for them for longer periods than the current two nights per fortnight. She was critical of the father, for example that he frequently contacted her for advice about them.[25]
[25] At paragraph 24
I had some concerns that the mother may not have been very encouraging of the children’s relationships with their father when I first read that in the Family Report. However, it was heartening to read in the mother’s trial affidavit that she had offered to implement the Family Consultant’s recommendations about increasing the children’s time with their father shortly after she received the Family Report.
Having heard her evidence about that and other things in the witness box, I am confident that she does encourage the children’s relationships with their father and with his wider family.
Initially, I considered certain paragraphs in the father’s affidavit to suggest that he might not encourage the children’s relationships with their mother. I will refer below to paragraphs relating to an occasion when X had a nosebleed, but at this point I will simply say that the paragraphs that concerned me were probably unfortunate consequences of the adversarial format of our judicial system.
In general, I am satisfied that both parents are willing and able to facilitate and encourage the children’s relationships with the other parent.
The practical difficulty and expense of the children spending time with and/or communicating with a parent
As mentioned above, the parties live approximately 11 kilometres apart, so this is also not an issue of any significance.
The capacity to provide for the children’s needs
I have no doubt that each parent has a generally good capacity to provide the children’s physical and emotional needs. However, the evidence was that the mother is more available to care for the children than the father, particularly before school and more frequently after school.
The mother works on Mondays, Tuesdays, Wednesdays and Fridays from 9.00 am until between 3.30 and 4.30 pm. If she is not available when they arrive home on the bus from school, they are cared for by a neighbour or their maternal grandmother. However, that is generally less than once per week.[26]
[26] Transcript: Day 1 at pages 39 and 40
The father works Monday to Friday from 7.30 am until 4.30 pm, with every second Friday off as an RDO.[27] His care arrangements for the children are set out in his trial affidavit as follows:[28]
When the children are with me and I am at work I have the assistance of my parents who are retired who can look after the children before and after school if needed. My parents live only about 20 minutes drive from me. The children have previously attended after school care and I would continue that arrangement if I was unable to collect them from school. My parents would come to my home in the morning to supervise the children and to get them to school.
[27] Paragraph 5 of his trial affidavit
[28] Paragraph 25 of his trial affidavit
It was quite clear from the evidence of the father and his own mother that, because of the father’s work hours, he is heavily reliant upon others to ensure that the children get to school and are collected at the end of the school day. In the main, the father has relied upon his parents for assistance, but he has also relied upon a person with whom he admitted to being “friendly”. However, his evidence was that he had not re-partnered, so I assume that he has a girlfriend.[29]
[29] Transcript: Day 2 at page 84
The Family Consultant stated that the mother “works less than the father and is therefore less reliant on care arrangements before and after school than he would be…”[30] and that was clearly accepted by the father’s counsel in his closing submissions.[31]
[30] Family Report at paragraph 25
[31] Transcript: Day 2 at page 112
It must logically follow that the mother has a greater capacity than the father to provide for the children’s physical and emotional needs at those times before and after school. However, I mean no criticism of the father in saying that, it is simply an acknowledgement of the facts.
The attitudes of the parents to the children and parental responsibilities
The parties are both loving and responsible parents and this does not require further comment.
Any family violence involving the children or family member
The father’s counsel said quite clearly twice in his closing submissions that family violence is not an issue in this matter. Indeed, he stated almost immediately thereafter that he was disappointed and did not know why the affidavits of the father and his mother included paragraphs about an occasion when X had a nosebleed.[32] It seems to me that those paragraphs must only have been included to “score points” in our adversarial court system by suggesting that the mother was somehow the cause of the nosebleed (while not acknowledging that X had received medical treatment for nosebleeds in the past).
[32] Transcript: Day 2 at page 114
Unfortunately, the adversarial format of court proceedings often results in parties quite wrongly falling into the trap of unnecessarily attempting to score points in that way. That does not accord with the principles for conducting child-related proceedings as set out in section 69ZN of the Act. In my view, it is worth re-stating that one of those principles is that “the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties”.[33]
[33] See subsection 69ZN(6)
It is to the father’s credit that, at the end at least, he chose not to pursue that as an issue.
The likely effect of any change in the children’s circumstances
When questioned by the father’s counsel, the Family Consultant initially described the changes sought by the father to be “radically different” for the children. Questioned further, she appeared to concede that perhaps the word “radical” was too strong, but still stated that the changes would be “significant”.[34]
[34] Transcript: Day 1 at page 21
After more questioning she said this:
I think that is a significant difference to the father’s involvement. And I have spoken also about … it would be, in a sense, experimenting for the father to step up to the plate to have that equal arrangement whereby he would be equally responsible for their school routines and so on. I have spoken about the fact that the mother knows a lot more about their health issues and that she certainly is very attuned to X and his particular needs and the issues that he has had. And I’ve also spoken about the fact that the children are doing well with the current arrangement, and I think that needs to be given weight as well. So for all of those reasons, you know, I stand by my recommendation about the father having increased time. I don’t think that we can experiment with these children on the basis of the father wanting it to be equal and fair that he has the same amount of time. I mean, the other aspect of it all, of course, is that the parents don’t communicate very freely and easily with one another. Now, whether that would change if the court ordered equal time, I don’t know. It could be difficult for the children and for the parents.
I shall refer further below to whether the father’s desire to have the children on a week about basis is in their best interests.
Equal Shared Parental Responsibility
Both parties want an order for equal shared parental responsibility, and there are no contra-indications to the making of such an order. Certainly, the presumption referred to in paragraph 19 above is applicable, because there are no reasonable grounds to believe that either parent has engaged in child abuse or in family violence.
I will be making an order that the parents have equal shared parental responsibility for X and Y, so I must consider whether spending equal time with each of the parents is in their best interests and whether it is reasonably practicable. If I conclude that they should not spend equal time with their parents, I must consider whether it would be in their best interests to spend “substantial and significant time” with each parent.
Should there be equal time?
It was clearly the opinion of the Family Consultant (both in the Family Report and in her oral evidence) that it is not in the best interests of the children for them to live with each parent on a week about basis. She said this in the Family Report: [35]
Younger children can find week about or equal shared time disruptive. Often young children benefit more from going to school most days from one home yet having significant time with the other parent. It does not have to be equal time. These parents appear to have shielded their children from a lot of their difficulties since separation which is to the children's benefit. However the parents are mainly reliant on text messaging to communicate, the mother does not feel confident regarding the father, and there is not an easy ability to communicate about the children and their needs. Equal shared time is often chosen by separated families where both parents work full time and is more likely to be successful if the children are resilient, and if the parents are both committed to making such an arrangement work. However in this case, the mother does not want this arrangement or think it would be a good arrangement for the children, she works less than the father and is therefore less reliant on care arrangements before and after school than he would be and the children, though in some ways confident may not be resilient - X for example is a sensitive child who has experienced some bullying on the school bus and has been attending the Rainbows program and a counsellor at school.
[35] At paragraph 25
I also repeat what the Family Consultant said during her cross-examination as set out at paragraph 51 above.
The father’s counsel sought to reduce the significance or weight of the Family Consultant’s opinion in his closing submissions by relying very strongly upon what Heydon JA had said about expert evidence in Makita (Australia) Pty Ltd v Sprowles.[36] He referred me in particular to paragraph 85 of Makita:
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight
[36] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
I note that in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd,[37] Branson J said this about the statement of Heydon JA quoted above:[38]
The approach of Heydon JA as set out above is, as it seems to me, to be understood as a counsel of perfection. As a reading of his Honour’s reasons for judgment as a whole reveals, his Honour recognised that in the context of an actual trial, the issue of the admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined in the above paragraph.
[37] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
[38] At paragraph 7
In that same case, their Honours Weinberg and Dowsett JJ said this of what Heydon JA had said:[39]
The use of the phrase “strictly speaking” in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would be technically correct to rule, at the end of the trial, that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing. It would probably lead to further difficulties in the appellate process.
[39] At paragraph 87
It is important to keep in mind that the Makita decision was an appeal against a trial judge’s conclusion that a plaintiff had fallen on some stairs “because of the slipperiness of a tread on the stairs rather than because she simply lost her footing”. It is clear that without the opinion of one Professor Morton (who gave evidence for the plaintiff) “the trial judge would not have found the plaintiff fell because of the slipperiness of the stairs”.[40] It is also clear that Professor Morton attributed the plaintiff’s fall to the slipperiness of a stair, notwithstanding that it met the applicable Australian standard. In that regard, Powell JA said:
Professor Morton’s view would appear to be that meeting the standard laid down in AS 3661.1:1993 is not an adequate test of whether or not the surface of a floor is slip resistant and that the only way to determine whether or not a surface is, or is not, to be regarded as safe is by having regard to the coefficient of friction of the surface of the floor and the coefficient of friction of the type of sole actually, or likely to be, worn by those walking on the surface …[41]
[40] Makita at paragraph 3
[41] At paragraph 20
Without detracting from the very learned treatment given by both Powell JA and Heydon JA to “slip resistance” and “coefficients of friction”, I must admit that I am more attracted to the straightforward and common sense approach of Priestley JA, who very succinctly set out how he saw the issue in the case as follows:[42]
The plaintiff began work with the defendant on 16 January 1984. She suffered her fall on 30 June 1986. She walked up and down the stairs every working day. There were more than fourteen steps in the stairway. On the basis of a five day working week and four weeks annual holidays this means that she walked down over the step on which she fell at least 575 times. Absences may have reduced this number. Call it 500 and the point still seems to be irresistible. (Since all the steps seem to have been of the same composition, the relevant figure is probably at least 7000.) The plaintiff fell once. She gave no evidence that she had ever slipped. There was no evidence that any one else ever slipped. One fall in more than 500 uses of a step (or 7000 uses of all the steps in a stairway) is not evidence that the step (or the steps in the stairway) is (or are) slippery in any relevant use of the word. It is evidence of the opposite. The only conclusion, in my opinion, is that Professor Morton’s opinion about the slipperiness of the steps in the stairway was so clearly wrong that even his impressive qualifications could not rescue it.
[42] At paragraph 5
In this particular matter, there was no challenge to the Family Consultant’s qualifications, training or experience.[43] She is well qualified in the social sciences,[44] and has worked in her field since 1976. She has been employed by this Court and the Family Court of Australia since 2003 and is the Senior Family Consultant for Tasmania.
[43] See Transcript: Day 2 at page 104
[44] A Bachelor of Social Work (1976) and a Diploma of Social Welfare Law (1984)
In my view, it is important to keep in mind that the social sciences are not exact sciences like physics or chemistry, which allow for exact measurements and, when those measurements have been properly conducted, they also allow for accurate prediction. Courts and social scientists dealing with the “best interests of children” are not dealing with matters that can be measured exactly in the way that “coefficients of friction” may be measured. Further, it is clearly not possible for social scientists to always give exact predictions about how particular children will react or behave in particular circumstances. Consequently, opinions and forecasts must be general rather than particular, and can only refer to what may be likely rather than certain.
In this case, it is important to remember that the Family Consultant’s observations and opinions were only based upon perusals of documents on the court file prior to 21 March 2012 and interviews with the parents and the children on that day. Consequently, the Family Report is essentially a “snap-shot” in time and has its limitations. However, I agree with what my brother Judge Scarlett said about Family Reports in Sproat & Brimm:[45]
There is no magic in a Family Report or a Court Expert Report, but such a report is usually a most useful resource for a Court making parenting orders. It is the judge who must decide, having considered all the evidence (Hall & Hall[46]).
[45] Sproat & Brimm [2013] FCCA 1823 at paragraph 107
[46] Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
Having said that, the Family Report is the only independent evidence that is available to the Court in this matter, and that is essentially why it is “a most useful resource for a Court making parenting orders”.
It is also important to remember that section 69ZT of the Family Law Act 1975 applies in relation to parenting matters. That section provides that the provisions of the Evidence Act 1995 in relation to opinion evidence do not apply in child-related proceedings and the Court “may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying”.[47] In that very important respect, the law that I must apply differs from how torts law is applied to liability for persons falling down stairs.
[47] See subsection 69ZT(2)
I agree with the mother’s counsel that the 2006 amendments to the Family Law Act 1975 do not require me to “start with the assumption that a 50:50 arrangement is in the children’s best interests and work back from there” but rather, the law requires me to make a positive finding that it is in the best interests of the children before ordering a 50:50 arrangement.[48] I must also conclude that it is reasonably practicable to make such an order. [49]
[48] See Transcript: Day 2 at page 117
[49] MRR v GR (2010) FLC 93-424
One of the factors motivating the father in his application is that equal time is “fair”. He told the Family Consultant that,[50] and he conceded it when cross-examined by the mother’s counsel.[51] However, there is nothing in section 60CC of the Act that refers to fairness between the parties. I must do what I consider to be in the best interests of the children. That is my paramount concern, and if it is fair as between the parents, it is coincidental to the task that I must perform.
[50] Paragraph 11 of the Family Report
[51] See Transcript: Day 2 at page 72
The Family Consultant raised a number of concerns in relation to the children spending equal time with their parents, and they are set out at paragraph 51 above. Federal Magistrate Ryan (as she then was)[52] explored the issue of equal time in two cases decided before the enactment of the 2006 amendments to the Act – see H and H and B & S.[53] Many of the issues raised by her have been canvassed in other cases (and indeed, are covered by section 60CC) but I note that in this matter the Family Consultant made specific reference to the communication between the parties. I also note that the father could not recall when he last spoke directly to the mother about matters pertaining to the children’s welfare,[54] and further, his mother could not recall when she last spoke to the mother.[55] That does not bode well for an equal shared care arrangement, because a viable shared care arrangement usually requires a reasonable level of constructive communication.
[52] Now Justice Ryan of the Family Court of Australia
[53] H and H (2003) FLC 93-168 and B & S [2004] FMCAfam 61
[54] Transcript: Day 2 at page 83
[55] Transcript: Day 2 at page 95
In all the circumstances, I agree with the Family Consultant that the Court should not “experiment with these children on the basis of the father wanting it to be equal and fair that he has the same amount of time”.[56]
[56] See paragraph 51 above
Substantial and significant time
As mentioned above, if the court does not propose to order that the children are to spend equal time with each of the parents, then the court must consider whether it would be in the children’s best interests to spend “substantial and significant time” with each of the parents, and whether that is reasonably practicable.
These children are currently spending time with their father that is “substantial and significant” in accordance with the definition set out in the Act.[57] All the evidence suggests to me that the arrangement is working, so that implies that it is also reasonably practicable. In those circumstances, I consider it appropriate to make orders that are generally in accordance with those set out in the mother’s Case Outline. However, that Case Outline refers at paragraph 3(b) to “each alternate Tuesday”, whereas the father has been seeing the children every Tuesday. That must simply be an error in the drafting of the mother’s Case Outline, because she was not arguing for any reduction in time from the status quo that has existed since shortly after the Family Report was released.
[57] See subsection 65DAA(3)
The orders that I make are set out at the start of these Reasons.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Associate:
Date: 25 July 2014
[3] As set out in her Case Outline provided to the Court on 1 April 2014
[4] As set out in his Case Outline filed on 28 March 2014
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