Es and DS

FAMILY COURT OF AUSTRALIA

ES AND DS

[2006] FamCA 1271

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Adjournment – Whether the trial Judge erred in refusing to grant the wife’s application for an adjournment in interim parenting proceedings to allow the wife to seek a report from the child’s some-time “treating specialist” who was not the single expert appointed in the matter. FAMILY LAW – APPEAL – EVIDENCE – Admissibility – Whether trial Judge erred in refusing to admit into evidence a letter from the child’s some-time “treating specialist” previously rejected in earlier proceedings before a Registrar. FAMILY LAW – APPEAL – CHILDREN – Whether given the child’s autism and consequent special needs and the wife’s evidence that staying overnight with the father would cause the child distress the trial Judge was correct in rejecting the single expert’s revised recommendation that there should be no order for the child to spend overnight time with the father without further review – Full Court emphasised the discretionary nature of decisions as to the time a child is to spend with a parent and noted that decisions about the precise arrangements concerning the period of time spent could be said to be particularly discretionary and thus particularly immune from appellate interference. FAMILY LAW – APPEAL - ORDERS – Stay – Whether the trial Judge erred in refusing to stay the interim orders providing for the child to spend overnight time with the father. FAMILY LAW – APPEAL – COSTS – Whether the trial Judge’s costs order in favour of the husband in relation to the wife’s unsuccessful stay application should be amended to require that payment not be paid under the order until final determination of the parties’ final financial positions.
Clemett and Clemett (1981) FLC 91-013 APPELLANT:	ES
RESPONDENT:	DS
FILE NUMBER:	ADF 228 of 2005
APPEAL NUMBERS:	SA 61 of 2006; SA 63 of 2006

DATE DELIVERED:

9 November 2006

PLACE DELIVERED:	Canberra
JUDGMENT OF:	Bryant CJ, Finn and Boland JJ
HEARING DATE:	2 November 2006
LOWER COURT JURISDICTION:	Family Court of Australia
LOWER COURT JUDGMENT DATES:	29 September 2006; 12 October 2006

COUNSEL FOR THE APPELLANT: SOLICITOR FOR THE APPELLANT:	Mr Sansom with Mr Kearney Watts McCray Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Berman
SOLICITOR FOR THE RESPONDENT:	Robinson & Mason
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr McGinn Ann Bills & Associates

Orders

That the appeal against Orders numbered 35, 37 and 39 of the orders of 29 September 2006 and against Order 36 of the orders of 29 September 2006 (as amended by Order 2 of the orders of 12 October 2006) be dismissed.
That the appeal against Order 1 of the orders of 12 October 2006 be dismissed.
(a) That Order 5 of the orders of 12 October 2006 be amended by the addition of the following words at the end of the order:
“provided however that such costs not be payable until the determination (by agreement or court order) of the property settlement proceedings pending between the husband and the wife.”
(b)That the appeal against Order 5 of the orders of 12 October 2006 be otherwise dismissed.
That the wife pay the husband’s costs of and incidental to the appeals referred to in Orders 1, 2 and 3 of these orders, with such costs to be assessed under the Family Law Rules 2004 in default of agreement, but with such costs not to be payable until the determination (by agreement or court order) of the property settlement proceedings pending between the husband and the wife.
That the wife pay the costs of the Independent Children’s Lawyer of and incidental to the appeals referred to in Orders 1 and 2 of these orders with such costs to be assessed under the Family Law Rules 2004 in default of agreement, but with such costs not to be payable until the determination (by agreement or court order) of the property settlement proceedings pending between the husband and the wife.

FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: SA 61 of 2006; SA 63 of 2006

FILE NUMBER: ADF 228 of 2005

E S

Appellant Wife

And

D S

Respondent Husband

REASONS FOR JUDGMENT

These are appeals against orders made by Strickland J on 29 September 2006 and 12 October 2006 in proceedings between E S and D S to whom we will refer respectively as “the wife” or “the mother” and “the husband” or “the father”.
The orders of 29 September 2006 provided for the child of the parties’ marriage to spend time with the husband including overnight.
The orders of 12 October 2006 dismissed the wife’s application for a stay of the orders of 29 September 2006 and required her to pay the husband’s costs of the application for a stay.

the appeal against the parenting orders of 29 september 2006

The factual and procedural background to the proceedings on and orders of 29 September 2006

The background to the proceedings which came before Strickland J on 29 September 2006 is as follows.
The parties were married in 1994. Their only child, who was born in 1996 and is thus now aged ten, suffers from autism. According to Strickland J’s reasons (published in final form on 27 October 2006) for the orders made on 29 September 2006, the child’s “treating specialist” at various times has been a Dr A who is based in the United States of America.
The parties separated in January 2005. The child now lives with the wife in Adelaide and the husband lives overseas but he visits Adelaide to see the child.
It appears that proceedings in relation to both the child and financial matters were instituted by the wife within a month of separation. Since that time there have been a number of orders made providing for “contact” (as was the expression used in the Family Law Act 1975 (“the Act”) up until 30 June 2006) between the husband and the child, including overnight contact.
However as we understand it, there have only been three occasions since the parties separated when the child has stayed overnight with his father.
An order was made by a Registrar on 12 April 2005 providing for the appointment of “a child representative” (again being the expression then used in the legislation) and for the preparation of a family report by a psychologist, Ms H, directed to issues of residence and contact. By 29 September 2006 Ms H had provided three reports dated respectively 19 November 2005, 25 June 2006 and 13 August 2006.
Importantly for present purposes, in her report of 13 August 2006 Ms H referred to recent correspondence which she had had with Dr A, and as a result of which, she had reached the conclusion that when the child stayed overnight with the husband, it should be at the husband’s residence not at the wife’s residence which was also the child’s primary residence. The significant passages of Ms H’s report of 13 August 2006 are as follows:
Dr [A] noted that overnight stays were a challenge for children with autism and needed to be carefully implemented as they could yield a great deal of distress and disorientation….
…Further communication from Dr [A] on 31/7/06 revealed the need for regular contact for gradually increasing periods of duration. Dr [A] suggested this would commence with half day and then full day periods, then introducing overnight stays after 3 to 4 months for one night only…
…Dr [A] suggested a slow transition to increasing the periods of time that [the child] spent with his father, particularly with respect to introducing overnight stays and emphasised the importance of [the child] associating his mother with his primary home and his father with his “other home”. He perceived that [the child] staying overnight with his father in his primary residence would be confusing for him and this arrangement should discontinue, and future overnight stays should occur at [the father’s] residence.…
In an attempt to minimise any disruptions/anxiety for [the child] in already difficult circumstances, I now consider that the potential for [the child] to be confused by having overnight stays with his father at his mother’s home is something that has been overlooked to date. It is therefore suggested that future visits are planned according to Dr [A]’s recommendations, with a view to moving towards overnight visits at [the father’s] home over the coming months.
This requires that overnight stays at [the mother’s] residence discontinue and [the child] attends for daytime contact with his father at least over the next few visits with considerable periods of time spent at his father’s home during these visits to familiarise [the child] with this environment. It is my understanding that [the child] has already visited his father’s home on some occasions, but it is important that he spends increasing periods of time in that environment, i.e. having meals, pursuing preferred activities and that he has a number of his own belongings there. Visits should still include time on Friday after school to share any activity/meal, but returning home to sleep, followed by daytime contact on the Saturday and Sunday. Daytime visits might still include [the child] visiting his father’s home for breakfast on each day of the weekend, e.g. if handover was conducted around 9:30am. This arrangement is suggested over at least the next 3 visits (if visits continue on a three weekly cycle). In keeping with Dr [A]’s advice the presence of other family/therapists needs to be reduced during this period, apart from an ABA therapist being present prior to and following handover to assist in settling [the child] as required. After 3 or possibly 4 visits of this type overnight visits could be introduced on Saturday evenings at [the father’s] residence. This might commence for one night during the October school holidays, but only after [the child] has spent several day time visits with his father during the holiday period. Dependent on [the child’s] management of this visit, a further overnight stay might be considered on non consecutive days during the October school holiday period, but this would be dependent on how long [the father] planned to spend in Adelaide. Overnight stays for one night only are suggested until the December holidays, at which time consecutive overnight stays (commencing with 2 overnights) might then be reintroduced. As [the child] adapts to this arrangement overnight stays can be gradually extended. This is a more cautious approach than that previously advised, but it is more consistent with the suggestions proposed by Dr [A] to ensure that [the child] learns to associate each parent with their respective homes and that [the child] has the greatest opportunity to adapt with relative ease to staying with his father in a new environment….
As Strickland J recorded in paragraphs 4 to 11 of his judgment published on 27 October 2006, it was arranged at directions hearings before him on 14 and 23 August 2006, that the proceedings between the parties would be listed before him on 8 September 2006 for “case management purposes” and “if possible for the purpose of hearing the ongoing dispute about the time the child should spend with his father”. The listing date of 8 September 2006 was subsequently altered to 29 September 2006.
Again as his Honour recorded, the wife had filed an application on 1 September 2006. We note that in that application, which was given a return date of 29 September 2006, the wife sought that the husband’s application “to spend time overnight with [the child] not be dealt with until such time as Professor [A] recommends in writing the introduction of such an arrangement”.
On 1 September 2006 the husband had also filed an application but only apparently for procedural orders. An amended application was filed by him on 28 September 2006 seeking parenting orders including overnight time with the child.

The refusal to adjourn the proceedings on 29 September 2006

At the hearing on 29 September 2006, and after procedural matters had been dealt with, Counsel for the husband sought that his Honour should next (and ahead of a financial matter) deal with the husband’s application to spend time overnight with the child. This course was opposed by Counsel for the wife, first on the basis that the issue of overnight time should be left until the final hearing of the matter (which his Honour had earlier set for January 2007), and secondly, on the basis that if that issue was to proceed, an adjournment would be necessary to obtain a report from Dr A.
It will be useful to set out the submission made to his Honour by Counsel for the wife in support of this adjournment application as it well explains the issues which were before Strickland J on 29 September 2006 and which confront us on these appeals (Transcript: p11):
[COUNSEL FOR THE WIFE]: If we’re put in the position of having to run this today, I’d be seeking that those proceedings – that aspect of the proceedings – be adjourned so that we can get a report from Dr [A]. One thing which comes through from the report of Ms [H], to which reference was made on the last occasion, is that Ms [H] seems to have invariably over time had a view which generally favoured the arrangements for overnight contact which were then taking place but then, having spoken to Dr [A] – as she does indicate in her report – she indicates, as against herself, that she hadn’t considered certain matters by Dr [A] and changed her view 180 degrees.
In my respectful submission, this matter has been marked by a whole series of interim stopgap orders and that hasn’t served the best interests of the child. All Ms [H] says in the report is that there could be an extension of overnight contact. So, in the circumstances where the husband – although I hear what senior counsel says on his behalf – only files an application yesterday seeking this overnight contact – the amended application – my respectful submission is that, in the circumstances, given that Ms [H] says we should be following Dr [A], the court should enable the wife, through her solicitors, to get a report from Dr [A], who is apparently well respected by both parties and whose advice has been followed – he’s the treating expert – so that that position can be put before the court, other than through an outdated hearsay position to which Ms [H] reports back in early to mid-August. That’s our position, your Honour, in relation to that.
Following submissions from Counsel for the Independent Children’s Lawyer (at Transcript p13) and from the husband’s Counsel (at Transcript p20), both of whom opposed the adjournment sought by the wife, his Honour determined (at Transcript p22) that he would not grant such an adjournment, and accordingly would proceed to hear the husband’s application for overnight time with the child.
His Honour explained his reasons for refusing the adjournment in the following terms in his judgment published on 27 October 2006:
12.I determined that the applications for interim parenting orders be heard first and refused the application for an adjournment. I did so because:
12.1the then existing orders expired in approximately one weeks time;
12.2the Independent Children’s Lawyer strongly recommended that the hearing proceed in the interests of the child, and submitted that there was no basis for seeking a report from Dr [A] given the extensive work done by Ms [H] already and the fact that Dr [A] had expertise in relation to only one issue, albeit an important one;
12.3it was not at all clear to me from the submissions made on behalf of the wife what was proposed in relation to the use of any further report from Dr [A] given that he was not the single expert but Ms [H] was.
The wife’s first ground of appeal against the parenting orders ultimately made by his Honour on 29 September 2006 is directed to his Honour’s refusal to grant the adjournment which the wife had sought in order to obtain a report from Dr [A]. The principal matters relied on in support on this ground were that the adjournment should have been granted because the wife had not expected the issue of overnight time to be dealt with on 29 September 2006 and also because the husband had only filed his application for overnight time on 28 September 2006.
We consider that there can be no substance in this ground given the directions made by his Honour in August for a hearing of the overnight issue originally on 8 September 2006, and given also the terms of the wife’s own application filed on 1 September 2006. It is clear from the orders sought in that application, that the wife well appreciated that overnight time was what the husband was seeking.
In our opinion, it was well within his Honour’s discretion to refuse the adjournment for the reasons contained in paragraph 12 of his judgment published on 27 October 2006 and set out above.

The refusal to admit into evidence Dr A’s letter of 16 August 2006

Following his Honour’s refusal to grant the adjournment sought by the wife, her Counsel informed his Honour as to the evidence on which she relied in opposition to the husband’s application to have overnight time with the child. In this context, Counsel sought to put into evidence (at Transcript p23) a letter dated 16 August 2006 from Dr A addressed “To Whom it may Concern”.
Both Counsel for the husband and the Independent Children’s Lawyer opposed the letter being received into evidence for a range of reasons including the fact that it had been rejected in earlier proceedings before a Registrar.
Ultimately his Honour ruled (at transcript p32) that he would not receive the letter. He provided the following reasons for that ruling in his judgment published on 27 October 2006:
The wife sought to tender a letter/report from Dr [A] dated 16 August 2006. That was objected to by the husband and by the Independent Children’s Lawyer. I refused to accept this document and although I provided some brief remarks the wife’s counsel indicated that he did not require my reasons. I assumed that that was because of the time constraints on everyone that day.
The same document was also sought to be tendered on behalf of the wife before the Senior Registrar on 18 August 2006, and the Senior Registrar refused to accept it for much the same reasons as I did. It was not open to receive the report under the Family Law Rules, and in any event there was no indication of the basis on which the report had been obtained or what was said to the author to generate it, and in general terms it had little or no weight. Further, the wife’s counsel eventually conceded that this document did not address the report of Ms [H] of 13 August 2006 which was the most recent expert report before the Court.
The wife’s second ground of appeal against the parenting orders made on 29 September is directed to his Honour’s rejection of Dr A’s letter of 16 August 2006. The submissions made in support of this ground focused essentially on the provisions of the Family Law Rules 2004 concerning reports from treating doctors.
Little purpose would be served in our considering whether or not his Honour was correct in relation to the position of Dr A’s letter under the Rules. This is because it is unclear to us exactly to what provisions of the Rules his Honour was referring. Further, if he had in mind the provisions concerning “treating experts”, there appears to be some dispute as to whether Dr A is in fact a “treating” expert.
Rather it is sufficient that we can conclude that his Honour was correct in rejecting the letter. This is so because its contents were irrelevant given that the issue before his Honour was that of the child staying overnight with his father, and the letter made no reference to that issue. It would seem from the last sentence of paragraph 16 of his Honour’s judgment of 27 October 2006 that he also concluded that the letter was irrelevant – although perhaps for different reasons.

The decision to introduce overnight time with the husband

Shortly after his Honour’s rejection of Dr A’s letter, Ms H was called to be cross-examined. At the commencement of her cross-examination by Counsel for the wife, the letter from Dr A which had previously been rejected by his Honour, was shown to Ms H and became MFI “1” (see Transcript p36).
The following extracts from the cross-examination of Ms H by Counsel for the wife are important for present purposes:
[COUNSEL FOR THE WIFE]: In general terms, Ms [H], would you agree that in your last report – that is, 13 August 2006 – your views so far as the future recommendations you were making about [the child] took a considerable turn or change as a result of your correspondence with Dr [A]?---I think it just slowed it down. I acknowledge that I changed my mind about where the overnight contact should happen in response to Dr [A]’s email, where he said he thought it was imperative overnight contact not happen at [the wife’s] home, so I took his advice, yes. (Transcript p37)
…
When do you say it is, if at all, that contact should progress to overnight?---Well, there had been a plan that it could be trialled in the October school holidays, even if there had been ongoing frequent contact in the period since I’d written this report.
Yes, since 13 August?---That was what I was suggesting on 25 June. Yes, 13 August, I’m still saying that it could be trialled in October.
As I understand your evidence, you’ve now – only very recently perhaps – seen, by virtue of the wife’s affidavit filed 27 September of this year, the complaints she makes about [the child] commencing on 1 September of this year?---Yes.
If one were to accept the veracity of those, would you agree that there are some difficulties still existing in relation to the contact that the father is having as currently programmed?---Well, I don’t know that all of those behaviours described are necessarily due to contact. I haven’t had evidence that that’s been the cause from everyone I’ve spoken to when I completed the report. I see them more related to [the child’s] autism. (Transcript p40)
…
So there was, you would agree, a significant change in your position by virtue of this report of 13 August after this correspondence with Dr [A]. You’d agree?---Yes, and I point out that I overlooked the issue that Dr [A] really was very strongly saying in his email – was not having – having contact in two separate houses was very important, so that – and that’s why I changed my mind. I think that had been overlooked by me, and everybody else, because everybody – [the wife] strongly wanted it at her home.
The transition to going to his father’s – we’ve talked about that with Dr [A] – that was, was it not, subject to some months of successful contact taking place?---Yes, that’s what he would have planned, but I don’t think he understood how far we were into – I don’t know that he had an understanding of where the contact had actually progressed to, because I didn’t give him that information. I was only what he had in my – I don’t know who did. (Transcript p41 – 42)
…
I suppose ma’am, in a similar light, given the evidence you’ve given thus far about when you last saw [the child], you wouldn’t be in a position now to indicate with any degree of authority when overnight should start?---No, I haven’t seen him for a few months, so I don’t know what’s been happening.
And that would be a precondition, would it not – that is, you seeing him and reviewing him – before you’d recommend with any degree of certainty or optimism about overnight contact?---Well, I don’t think it’s just reviewing [the child]; it’s talking to a lot of people, yes.
I see, and you haven’t had the opportunity to do that?---I haven’t been asked to do it. (Transcript p42)
Then later at the conclusion of the cross-examination of Ms H by Counsel for the husband the following exchange occurred:
Correct me if I’m wrong, and putting that all together and doing the best I can, what has changed your mind, insofar as your mind has been changed, is that document that you were shown very recently setting out Dr [A]’s new position. Is that right?---And the allegations in relation to [the child] being so unsettled. I mean, in combination, those two things, yes.
But if you didn’t see and rely upon that new report, your position would have probably stayed the same, because you’ve already indicated that you don’t necessarily - - - ? ---That’s true, it would have, yes. (Transcript p50)
Following Ms H’s oral evidence, final submissions were made to his Honour. Through her Counsel the wife continued to oppose the child spending overnight time with the husband, and Counsel for the husband was not in a position to obtain instructions to depart from the husband’s formal application for overnight time of two consecutive nights.
Importantly, the position of the Independent Children’s Lawyer was that his Honour should not follow Ms H’s cautious approach of a further report (the interviews for which could not be done until December), but rather the submission of the Independent Children’s Lawyer was that overnight time should be introduced after three days of daytime visits commencing on 9 October 2006. (See Transcript 59 – 65).
Following final submissions, his Honour discharged the existing parenting orders and made the following orders providing for the child to stay overnight with the father immediately after two days of consecutive day-time periods:
(1)       The child spend time with the father as follows:
(a)       from 5:00pm until 8:00pm on Monday 9 October 2006;
(b)       from 11:00am until 7:00pm on Tuesday 10 October 2006;
(c)from 11:00am on Wednesday 11 October until 11:00am on Thursday 12 October;
(d)      from 5:00pm until 8:00pm on Friday 10 November 2006;
(e)from 11:00am on Saturday 11 November until 4:00pm on Sunday 12 November 2006;
(f)       thereafter each alternate weekend during the same times as follows:
(i) from 5:00pm until 8:00pm on the Friday:
(ii) from 11:00am on the Saturday until 4:00pm on the Sunday.
(2)The [child’s] overnight time with the father shall take place at the father’s premises….
(3)       All handovers shall take place at the mother’s home….
(4)[An] ABA therapist remain present for the first hour (or such longer period as may be agreed with the father) of the time [the child] spends with the father.
(5)The child communicate with the father by telephone or video conference (if available) at 5:00pm on Tuesday and Thursday of each week with the mother to facilitate such communication (or arrange for the child’s therapists to assist in that regard).
(6)The application for final orders in relation to children’s issues be adjourned to 22 January 2007 at 10:00am (allow four days) for hearing.
His Honour was only able to give brief reasons for these orders when he made them on 29 September, but he then expanded on them in his judgment published on 27 October 2006.
In that judgment his Honour explained Ms H’s revised position and he also explained why he proposed to accept the submissions of the Independent Children’s Lawyer and therefore to follow Ms H’s earlier recommendation rather than her revised position:
28.At the specific request of the wife, Ms [H] was made available for cross examination. Ms [H] confirmed that she had not seen the child since June this year, that she had read as best as she could in the time available the affidavits filed over the preceding few days, and in particular the affidavit of the wife filed on 27 September 2006 where the wife detailed her concerns about the child’s reaction to the time that he has spent with the husband pursuant to the orders of the Senior Registrar on 18 August 2006. Ms [H] also indicated that before giving evidence she had sighted the letter/report of Dr [A] that I had refused to admit, although it was marked for identification and because MFI1.
29.Ms [H] made it quite clear in her evidence that the concerns that the wife was raising in her most recent affidavit were in effect the same sort of concerns that she had raised before and which she, Ms [H], had found were not substantiated in her report of 25 June 2006 after speaking to members of the wife’s family and the support personnel. Further, Ms [H] said that it was far from clear that the alleged behaviour was caused by the time spent with the father or was more related to his autism. Indeed, her view that it was the latter.
30.During the course of her evidence Ms [H] indicated that primarily as a result of the cautious approach propounded by Dr [A], and because of what was in MFI1, she would now propose that there be a review of the child’s current position before time overnight was reintroduced.
31.The difficulty in relation to that is that the very document which Ms [H] has sighted and relied on for this purpose is not before me in evidence. Moreover, the very reasons why I refused to accept the document also make it unsafe and unwise for Ms [H] to rely on it. There was no indication as to how it originated and more importantly there was no indication as to what was put to Dr [A] to generate the report. Further, it apparently did not even address Ms [H]’s report of 13 August 2006. Indeed, for these reasons as well the Independent Children’s Lawyer submitted that despite the oral evidence of Ms [H] in this regard time overnight should still be introduced effectively in accordance with her earlier recommendations.
Having referred to Ms H’s evidence, his Honour then discussed the approach to be taken in interim parenting proceedings following the amendments made to the Act on 1 July this year (including the application of the principles in Cowling and Cowling (1998) FLC 92–801 under the amended legislation). No issue was pursued before us concerning his Honour’s observations concerning the changes to the legislation. His Honour concluded those observations with the following:
Thus, there is still the need to evaluate the relevant matters set out in the Act in order to determine what is in the best interests of this child. That of course is the paramount consideration (see Section 60CA) and Section 60CC now sets out the primary and additional considerations that the Court must take into account in determining that. The objects in Section 60B also need to be considered. However, it is always difficult to do that in a fullsome way in an interim hearing, and more particularly where like here neither the parties nor the Independent Children’s Lawyer made any detailed submissions on this topic. Thus, I propose to make some general comments.
The “general comments” made by his Honour were then as follows:
35.There is no evidence of any risk of harm to the child in now recommencing spending time overnight with the husband. However, it should be limited to one night and not two nights at this stage as proposed by the Independent Children’s Lawyer. There is still a need to proceed cautiously.
36.Despite the wife’s attempts to suggest otherwise, there is clear evidence that contact as it was previously know and now spending time with has generally proceeded well at least on the basis of all the enquiries and interview undertaken by Ms [H] for the purposes of her reports of 25 June 2006 and 13 August 2006. It is also quite apparent that the concerns raised by the wife did not have any independent support and indeed the opposite was the case as outlined by Ms [H] in those reports. Importantly, the alleged concerns did not affect Ms [H]’s recommendations.
37.This is a case were the husband has a close and loving relationship with the child …, and so does the wife. There is also no doubt that the husband has had a significant involvement in the care of [the child] in the past, and he is fully aware of his condition and what it entails and how to deal with it. He has done it all before and the wife does not have a monopoly on caring adequately and appropriately for [the child]. Prior to the separation the parties were both involved in caring for [the child]. They did not separate because of any issue about his care, they separated because of adult issues between them. It seems to me that both parties but more particularly the wife have now lost sight of the interests of the child in trying to gain the upper hand in their dispute.
38.In summary then, I do not consider that there is any risk of harm to the child in reintroducing overnight time. [The husband], is [the child’s] father and like the mother he loves him deeply. There is no evidence that the husband would not be able to care appropriately for [the child] and I am confident that he would not let any harm befall him. There is also a need to ensure and promote a meaningful relationship between [the child] and his father and I consider that the reintroduction of overnight time has an important role in that process.
All the remaining grounds of appeal against the parenting orders of 29 September 2006 are directed to his Honour’s decision that the child should spend time overnight with the husband. The essential submission made in support of these grounds was that given the child’s autism and consequent special needs and given the wife’s evidence that staying overnight with his father would cause distress and disorientation to the child, his Honour should have accepted Ms H’s cautious revised recommendation that there should be no overnight contact without a further review.
His Honour was, of course, not bound to accept the opinion of the expert, Ms H, provided he gave reasons for not doing so. His reasons for not accepting her revised recommendation, but rather accepting her earlier recommendation are set out in paragraphs 25 to 28 of his judgment of 27 October 2006 which we have quoted above. In our view, those reasons are clear and cogent.
As we have explained above, having reached his conclusions concerning Ms H’s evidence, his Honour then went on in paragraphs 35 to 38 of his judgment (which we have also quoted above) to consider the wife’s concerns and the risk of harm to the child if he spent time overnight with the husband. His Honour also considered the husband’s capacity to care for the child and the need to promote a meaningful relationship between the child and his father. It was, of course, entirely appropriate and proper for his Honour to consider all these matters.
A decision as to the time a child is to spend with a parent is of course a discretionary decision and the limitations on appellate interference with such a decision are well established. In our view, a decision as to the precise arrangements concerning the period which a child is to spend with a parent (for example, how much time and whether overnight time should be included) could be said to be particularly discretionary, and thus particularly immune from appellate interference.
That having been said, we would also observe that not only do we see no basis for interfering with his Honour’s decision in relation to overnight time, but when seen in the context of the dispute, we see it as having been an appropriate decision. We say this because there did not appear to be a dispute about whether overnight stays were appropriate, but only as to when they would re-commence, albeit at the father’s home rather than the mother’s. It would also have been very helpful to explore before the final hearing if the child could cope with spending nights with his father.

Conclusion in relation to the appeal against the parenting orders

We have thus concluded that there is no substance in any of the grounds of appeal directed to the parenting orders of 29 September 2006. Thus the appeal against those orders must be dismissed.

the appeal against the refusal to stay the parenting orders of 29 september 2006

On 5 October 2006 the wife filed a Notice of Appeal against the parenting orders made on 29 September 2006.
On 12 October 2006 an application was made to his Honour by the wife for a stay of the parenting orders, or at least of the order for overnight time, pending the determination of the appeal. The stay was opposed by the husband and also, significantly, by the Independent Children’s Lawyer.
His Honour ultimately refused the stay. The wife appealed that decision by a Notice of Appeal filed on 19 October 2006.
While that appeal against the refusal to grant a stay was pursued before us, given the fact that the substantive appeal was also being heard, and thus the failure to grant the stay was in effect moot, the arguments presented by Counsel for the appellant wife in oral argument focused mainly on the asserted failure of his Honour to apply correctly the principle in Clemett and Clemett (1981) FLC 91-013.
However, before considering the application of the principle in Clemett (supra) to this case, we mention that there was also a ground of appeal asserting that his Honour erred in refusing to receive a new affidavit from Dr A sworn on 11 October 2006. At the commencement of the hearing of the application for the stay before his Honour, Counsel for the wife endeavoured to rely on that new affidavit from Dr A. The affidavit was objected to on behalf of both the husband and the Independent Children’s Lawyer, and was rejected by his Honour.
To the extent his Honour’s rejection of the affidavit is challenged, that challenge could not succeed since, in our view, his Honour was entitled to reject material which would only re-agitate the issue which he had determined on 29 September 2006.
In his reasons delivered on 12 October 2006 for refusing the stay his Honour recorded that the wife relied on the decision of the Full Court in Clemett (supra), where Nygh J said at p76,175:
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.
Then in considering the application of Clemett (supra) to the present case his Honour said:
15.Returning to the case of CLEMETT. There the Full Court were very much concerned about the prospect of there being another change of custody depending on the result of the appeal. In other words if the stay was not granted then custody would change but if the appeal was successful then that would change again. [Counsel for the wife] says that that is the issue here, namely overnight time will commence if no stay is ordered but then will cease if the Full Court says that I was wrong in making such an order.
16.There is no doubt that in this case the prospect of change in the child's life is a significant matter because of his particular condition, and prima facie that ties in with what I have referred to earlier and identified as one of the factors which is sometimes said to be the strongest ground in granting a stay, namely, that to deny the stay may render a successful appeal nugatory. However, this is not a case where the relief would be rendered nugatory. For example, to refuse a stay will not make it impossible or impracticable to restore the situation presently existing. [Counsel for the husband] gave the example of where a stay is sought about the wife leaving the country with the child on a relocation. There the appeal would be rendered nugatory because the child would have already left the country. This is not such a case.
17.This is not a case where there is a change of “custody”. It is a case where the orders I have made provide for the child to spend time with his father both during daylight hours and overnight. I have determined that it is in the best interests of this child that he re-commence overnight time with his father now and I have determined that there is no risk of harm to the child arising from that.
18.There is nothing before me to change my view about that, and nor could there be, although the wife’s counsel seem to be suggesting otherwise. What the immediate future holds is that if I refuse the stay my order remains and overnight time will commence. If the Full Court determines that I was wrong, the only aspect of my orders that might change is that overnight time will not continue. In my view that prospect does not require a stay to be granted. The re-commencement of overnight time will be to the advantage of the child, and if the appeal is successful then although that will cease the child will continue to see the father during day time only. Clearly that will be a change, but in my view it is not such a change that requires a stay of my orders, and I propose to dismiss the application.

Before us it was submitted on behalf of the wife that while the principles enunciated in Clemett (supra) govern applications for stays of parenting orders, his Honour had misapplied those principles. It was also submitted that his Honour should have considered the wife’s proposal for daytime contact pending the appeal.
We do not accept that his Honour can be said to have misapplied the principles in Clemett (supra). The circumstances of every parenting case are different. A judge faced with an application for a stay of parenting orders pending an appeal must consider the particular circumstances of the case in question and determine whether or not a stay will be in the best interests of the particular child.
His Honour clearly determined that it would be in the interests of this child for the introduction of overnight visits with his father to proceed. This was not a case which involved a significant change in living arrangements as in Clemett (supra). Here the issue related solely to the time at which overnight stays at the father's residence should commence, and unlike the position in Clemett (supra), the fact that such stays should occur at some time was not in dispute.
Thus, we are not persuaded that his Honour’s discretion miscarried when he refused a stay of the introduction of the overnight arrangement. Accordingly the appeal against the refusal to stay the parenting orders must also be dismissed.

the appeal against the costs order in relation to the unsuccessful stay application

Following his Honour’s dismissal of the wife’s application for a stay, Counsel for the husband made an application for costs in relation to the unsuccessful stay application. In support of that application, Counsel relied on a range of matters, including the financial circumstances of the wife at least as they would be following the settlement of the parties’ financial proceedings (Transcript p44) and the wife’s lack of success in relation to the stay application (Transcript p 46).
The submissions made to his Honour on behalf of the wife in opposition to the costs application, were to the effect, at least as we read them, that his Honour should reserve the determination of the costs of the unsuccessful stay application until the trial when the financial position of the parties would be established. Importantly for present purposes, we note that that Counsel for the wife referred his Honour to the financial statement of the husband which disclosed a weekly income in excess of AUD $280,000.
Also importantly for present purposes, the concluding submission of Counsel for the husband to his Honour was as follows (Transcript p48):
[COUNSEL FOR THE HUSBAND]: …there is no question the husband has a higher income, although that is subject to the problems that were raise last time as to the problems with the [husband’s business]. We have no evidence before you in relation to that. If your Honour was troubled about the disparity in earning capacity, your Honour doesn’t need to be troubled about the wife’s financial capacity in the long run to pay for it.
If you Honour was otherwise minded to make an order, your Honour could make it not payable by the wife until such time as the finality of the proceedings, because clearly on any view whether she has got capacity now – which we say she does – the cost of these proceedings for her must have been enormous, your Honour, so she clearly could fund those. If I’m wrong about that, then your Honour could stay the execution of the order that your Honour makes until the final property hearing.
In his reasons for judgment of 12 October 2006 in relation to the costs application, his Honour said:
39.Any application for costs is governed by Section 117 of the Family Law Act and although of course under subsection (1) each party is to bear his or her own costs, as Section 117(2) says:
“If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs… as the court considers just.”
40.Section 117(2A) of the Act sets out the matters that I must have regard to in considering what order (if any) should be made.
41.In my view there are circumstances here that justify an order for costs in favour of the husband. I have referred already to the principal issue and that is that the husband was wholly successful or, to put it another way, the wife was wholly unsuccessful in her Form 2 Application seeking a stay, and in relation to the Form 2A Response of the husband, the husband was substantially successful.
…
43.In terms though of fixing an amount, as I indicated during submissions my view is always, if I can, to attempt to fix an amount. [Counsel for husband] is not in a position to put that amount to me today and indeed there is the opportunity on 3 November 2006 - which is a day which has been set aside to deal with primarily financial issues - to better address that aspect of this matter. Thus, what I propose to do is to make an order for costs, but adjourn the question of quantum to 3 November 2006.
The precise terms of the order made by His Honour in its engrossed form were:
That the wife pay to the husband the costs for today and of and incidental to the Form 2 Application filed by the wife on 5 October 2006 and the Form 2A Response filed by the husband on 10 October 2006 and I adjourn the question of the quantum of those costs to… 3 November 2006
In support of the wife’s appeal against this order for costs, the primary submission of her Counsel was that his Honour had failed to have regard to the financial circumstances of the parties and in particular to the disparity between the parties which exists because of the husband’s very substantial income.
It is clear from the transcript of the proceedings on 12 October 2006 that his Honour delivered his judgment in relation to the costs application very shortly after the submissions made by both Counsel concerning the financial circumstances of both parties including the husband’s income. Further, given his Honour’s reference in paragraph 40 of his reasons to the matters in s 117 (2A), we are not prepared to accept that his Honour can be said to have overlooked the relative financial circumstances of the parties including the husband’s significant income.
However, it does appear to us that his Honour has overlooked the submission made to him by Counsel for the husband to the effect that any costs which were to be paid by the wife, should not become payable until the determination of the property settlement proceedings between the parties, and indeed we understood Counsel for the husband to concede before us such an apparent oversight on the part of his Honour.
We accordingly consider it appropriate to allow the appeal against the costs order to the limited extent necessary to enable us to amend his Honour’s order to provide that it is only required to be satisfied at the time of final settlement of the property settlement proceedings between the parties.

costs of these appeals

At the conclusion of the hearing of these appeals we received submissions in relation to the costs incurred in relation to them.
In the event that the appeals were to fail, the husband sought that the wife should pay his costs. Counsel for the wife conceded that it would be difficult to defend a costs order in such circumstances.
Notwithstanding that we propose to interfere to a limited extent with his Honour’s order in relation to the costs, it must be accepted that the husband has been largely successful in defending the wife’s appeals. Having regard to that matter, and also to the financial circumstances of the parties, we consider that the circumstances justify the making of a costs order in favour of the husband. However, we would not require any payment to be made under such an order until the final determination of the property settlement proceedings between the parties.
The Independent Children’s Lawyer, who it will be recalled, opposed both the appeal against the parenting orders and the appeal against the refusal to stay those orders, also sought an order that the wife pay her costs in the event that the appeals failed.
We consider that the circumstances would justify the making of such an order given the lack of success of the appeals and the wife’s likely future capital position. Again, however, given the uncertainty of the wife’s present position as to income, the amount due under the order would not be payable until the completion of the property settlement proceedings between the husband and the wife.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate:

Date: 9 November 2006

[2006] FamCA 1271

9 November 2006

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