F & M

[2006] FamCA 271

[2006] FamCA 271

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA  Appeal No. Appeal No. EA 106 of 2004

File No. CAM 2503 of 2001

BETWEEN:

F

Appellant Father

-and-

M

Respondent Mother

REASONS FOR JUDGMENT OF THE COURT

CORAM:  Finn J
DATE OF HEARING:         21 September 2005
DATE OF JUDGMENT:     19 April 2006

APPEARANCES:

The appellant father appeared on his own behalf.

Mr Farrar, solicitor (Farrar Gesini & Dunn; DX 5700 Canberra ACT), appeared on behalf of the respondent mother.

APPEAL SUMMARY

MATTER:  F and M
APPEAL NUMBER:  EA 106 of 2004
  (CAM 2503 of 2001) 
CORAM:  Finn J
DATE OF HEARING:  21 September 2005
DATE OF JUDGMENT:                   19 April 2006

CATCHWORDS:     

FAMILY LAW – APPEAL from FEDERAL MAGISTRATE – CONTACT – appeal by the father against orders made by Brewster FM on 15 September 2004 relating to contact between the father and the two children of the relationship.  While the majority of the father’s grounds of appeal relate to an assertion of bias on behalf of the Federal Magistrate and complaints regarding the conduct of the proceedings, the father also asserts that the Federal Magistrate erred in departing from the recommendations of an expert witness regarding contact – determined no substance in father’s grounds.     

Caselaw cited:

SS v KS [2006] FamCA 68

Legislation cited:

Family Law Act 1975 (Cth)

Appeal dismissed.

No order as to costs of the appeal.

Introduction

1. This is an appeal by the father against orders made by Brewster FM on 15 September 2004.  Those orders essentially concerned the arrangements for contact between the father and the two children of his relationship with their mother.  Those children are a daughter, L, born May 1999, and a son, R, born August 2000.  The orders of 15 September 2004 also dealt with other matters concerning the children.  But it will be more convenient to set out the orders after I have explained the factual and procedural background to this appeal.

2. I mention at this introductory stage that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).

Background

1. As I recorded in judgments delivered by me on 18 June 2003 (in relation to an earlier appeal by the father) and on 27 July 2005 (in relation to an application by the mother for security for costs of this appeal), Brewster FM had on 22 August 2002 made orders which permitted the mother to relocate the children’s residence from South Coast of New South Wales (where the father lives) to Sydney.  Those orders provided for contact between the father and the two children.  Further orders were made by Brewster FM in relation to the arrangements for contact between the father and the children on 13 September 2002, 9 December 2002 and 9 January 2003.  In the period between the orders of 22 August 2002 and 9 January 2003 each party filed an application (or applications) against the other alleging contravention of the orders.

2. It emerges from material before me for the purpose of this appeal that in late 2003 both children were interviewed by officers of the New South Wales Department of Community Services and of the New South Wales police force, and that at about that time contact ceased, or at least ceased for a time.  On 12 February 2004 the mother filed an application seeking that all contact between the father and the children be supervised.  On 4 February 2004 the mother had sworn an affidavit in support of an application for supervised contact.

3. On 27 April 2004 a psychologist, Dr S, who had prepared an “Order 30A” report in November 2001 in relation to these parties and their children, prepared an updated report.  I understand that this updated report was prepared pursuant to an order of Brewster FM.

4. Dr S concluded (among other things) that he did not see “any risk of physical or sexual abuse with either parent” but did express the view that “the unresolved conflict (between the parents) is highly distressing to the children and can have long-term developmental consequences”.  Dr S then proceeded to make the following recommendations:

   “1.I recommend that the father be given unsupervised contact as soon as possible and that there be clear court orders which do not allow the mother to suspend contact without exceptional circumstances (and later justified in court).  Since I think that the mother will use any justification to suspend contact I would ask that the court impose some penalty if this behaviour persists.

   2.Handovers have been distressing to the children, so I would favour longer periods with the father and less handovers.  I would recommend that both children spend all of the short school holidays with [the father] and half of the Christmas school holidays.  I do not favour contact in school terms unless there is an improvement in the children’s reactions to handovers.  This may be attempted, if there is an improvement, in 2005.

   3.I do not recommend phone calls except on the children’s birthdays and Father’s day (either from the father or mother during contact except on birthdays or father/ mothers day if during contact).

   4.I recommend that [the mother] have counselling about the pressure she is placing on the children.  I recommend that the counsellor be given a copy of this report in order to understand my concerns.

   5.I recommend that [the father] have a course of anger management, but that this not be a condition prior to contact or to maintaining contact.

   6.I recommend that both parents read C. Garrty and M. Baris, Caught in the middle: Protecting the children of high conflict divorce, Jossey Bass, San Francisco, 1994.  It would help both to understand that the children bear the long term cost of their unresolved conflict.”

5. On 28 June 2004 the matter came before Brewster FM apparently for directions.  Each party was represented by a solicitor.  His Honour made the orders and directions for the father to have one week’s school holiday contact in the then forthcoming school holidays, and for a final hearing of the contact dispute on 15 September 2004.

6. The exact terms of the orders and directions of 28 June 2004 were as follows:

   1. THAT this matter be listed for final hearing on 15 September 2004 at 10.00am.

   2.THAT the father file and serve any affidavits upon which he intends to rely by close of business on 11 August 2004.

   3.THAT the mother file and serve any affidavits upon which she intends to rely by close of business on 25 August 2004.

   4.THAT the father file and serve any affidavits in reply by close of business on 1 September 2004.

   5.THAT each party file and serve a chronology, a list of affidavits relied upon, and a Minute of Orders sought, if those Orders are different to those sought in that party’s application or response, by close of business on 1 September 2004.

   6.THAT subpoenas be returnable no later than 2 September 2004.

   7.THAT the applicant either pay the hearing fee or obtain an exemption with respect to that fee by 1 September 2004.

   8.THAT the father have contact with the children… from 12.00 noon on 4 July 2004 to 3.00pm on 11 July 2004.

   9.THAT the changeover for this contact is to be Moore’s Children’s Contact Service.  The father is to be responsible for the costs of these changeovers.

   10.THAT prior to contact commencing the father is to attend on Dr W for the purpose of being briefed as the [the daughter’s] regime in relation to asthma medication.

7. On or about 3 August 2004, a conference was arranged apparently by Legal Aid in order to attempt to settle the matter.  It would seem from the material before me that the father believed all issues between the parties were then settled at that conference, with the terms of the settlement being reduced to writing, signed by the parties and apparently filed with the Court.  However, no orders were ever made by the Court to give effect to the settlement apparently reached at the conference.

8. On 6 September 2004 the mother now represented by a new solicitor, Mr Farrar, filed an affidavit.  In that affidavit she stated that at the forthcoming hearing on 15 September 2004 (which had been provided for in Brewster FM’s orders of 28 June 2004) she would be seeking orders in terms of a Minute of Orders which was annexure A to her affidavit.  In her affidavit the mother also endeavoured to explain why she has not complied with the directions made on 28 June 2004 for the filing of affidavits, and she stated that it was her understanding that “substantial agreement has been reached” in relation to the orders sought by the parties save in relation to the matters which she described as:

   ·“End of term school holidays”;

   ·“Collection Point”; and

   ·“Asthma Medication”.

9. Also on 6 September 2004, an affidavit by the children’s general practitioner was filed in support of the mother’s case.  In his affidavit the doctor stated that the child, L, was “an asthmatic” and he explained the treatment which he has prescribed for L.

10. On 8 September 2004 there was a mention of the matter before Brewster FM at which, as shown by the transcript, the father appeared on his own behalf by telephone and the mother was represented by her new solicitor, Mr Farrar.  The transcript also indicates that the mention took place because his Honour had understood that the matter had resolved but then became unresolved.  His Honour therefore sought clarification of the position from Mr Farrar, who responded that there were three areas of disagreement (at least from the mother’s point of view).  Those three areas were then listed by Mr Farrar as being “end of term school holidays, collection point and the delivery of asthma medication”.  (It will be seen that they are the same issues as those which were set out in the mother’s affidavit filed 6 September 2004).

11. For his part the father informed his Honour that he believed that the matter had been resolved by the agreement signed on 3 August 2004.  His Honour endeavoured to explain to the father that the “ordinary rules of contract” do not apply to arrangements about contact, and that the mother was entitled to change her mind.  His Honour then confirmed that the matter would be heard on 15 September 2004 (as originally listed).

12. At the hearing on 15 September 2004 Mr Farrar again appeared for the mother and the father was represented by Ms Burgess, the solicitor who had represented him at the hearing before Brewster FM on 28 June 2004.  At the outset of the hearing Mr Farrar informed his Honour that the orders which the mother sought were those contained in the minute of orders annexed to her affidavit of 6 September 2004, and he drew his Honour’s attention to the orders in that minute which related to the three matters which he had referred to at the hearing on 8 September 2004 as still being in contention at least from the mother’s point of view.  Mr Farrar then explained the mother’s position in relation to each of those matters. 

13. During the course of his submissions, Mr Farrar provided his Honour with a copy of a document which Ms Burgess had provided to him and which set out the father’s position.  His Honour identified that document by writing on it “Father’s Minute of Orders Sought”.  A document with such a handwritten endorsement on it was before me at the hearing of the appeal.

14. Ms Burgess then addressed his Honour in relation to the father’s position.  It will be necessary for me to return to certain of the exchanges between Ms Burgess and his Honour in due course.  It is sufficient to say at this point that having heard Ms Burgess, his Honour then made orders which, it is clear from the transcript (page 16), were based in large part on the minute of orders submitted by the mother, but with certain changes that his honour had indicated during the hearing, he would make.

The orders made by Brewster FM on 15 September 2004

1. The precise terms of the orders made by Brewster FM on 15 September 2004 were as follows:

   1.That all previous Orders in these proceedings are discharged.

   2.That the children [L] born … May 1999 and [R] born … August 2000 reside with the mother.

   3.That both parents have joint responsibility for the long-term care, welfare and development of the children, and day-to-day responsibility for them whilst they are in their care.

   4.That the children shall have contact with the father as follows:

   (a)For one half of each end of first term and end of third term school holiday periods alternating between the first half in even numbered years and the second half in odd numbered years

   (b)In the midyear school holidays commencing on the first Saturday after the end of the second school term and concluding on the second last day before the children return to school

   (c)From 12 noon on 24 December 2004 until 12 noon on 7 January 2005

   (d)From 12 noon on 16 January 2005 until 12 noon on 27 January 2005

   (e)For one half of all Christmas school holiday periods (other than December 2004/January 2005) being the first half of such holidays as commence in even numbered years and the second half of such holidays as commence in odd numbered years

   (f)By telephone on each of the children's birthdays, Fathers Day, Easter Sunday, Christmas Day and the father's birthday.  The mother shall ensure that the children are available to receive such phone calls between 6:30pm and 7:30pm on each of those days.  Neither parent shall monitor or record in any way such phone calls

   (g)The children shall be at liberty to call the father at their request at any other time. 

   5.That contact will commence and end at 12 noon.  When it is in the first half of the holiday it will start on the first day after school breaks up.  When it is in the second half of the holiday it will end the second last day before the children return to school.  The length of half the holidays is determined by dividing the total number of days when the children do not attend school by two.  If this is an uneven number of days contact will extend over the extra day.

   6.That changeover arrangements shall occur with the assistance of Moore’s Changeover Service provided that that Service will adopt a system whereby the children are delivered to the changeover person by one parent and transported to another location for handing over to the other parent. IT IS NOTED THAT Moore’s Changeover Service may be requested to provide a report concerning the events at the time of contact changeover.  

   7.That if Moore’s Changeover Service is unable or unavailable to facilitate the changeover, then changeover shall be at Marymead Child and Family Centre.  In that event the contact referred to in these orders is conditional upon the father having, prior to that contact:

   (a)Telephoned the Coordinator of Marymead Child and Family Centre to discuss its involvement in these contact arrangements; and

   (b)Signed and delivered to Marymead Child and Family Centre, with a copy to the mother, an undertaking that he will accept prescriptions or other information that is relevant to the health and wellbeing of the children. 

   8.That the father pay all fees of Moore’s Changeover Service and/or Marymead Child and Family Centre.

   9.That at changeovers the mother deliver any medications relating and relevant to the children's care including [the child L’s] asthma medication.

   10.That the father administer such medication as the children may require during their time with him.  In regard to [L’s] asthma medication the father adhere to the medication regime recommended by [the children’s medical practitioner]. 

   11.That each party is restrained from denigrating the other party in the presence of the children.

   AND IT IS NOTED THAT:

   (a)Each party will notify the other immediately if there is any emergency involving the children.

   (b)The mother is to keep the father informed of all medical and educational requirements of the children as soon as practicable.  Such information shall be communicated in writing. 

   (c)The mother will authorise any doctor or other professional involved in the children's health or welfare to speak directly to the father concerning those matters at any reasonable time.

   (d)The father will undertake an Anger Management Course conducted by Relationships Australia as soon as practicable and no later than 30 November 2004. 

   (e)Prior to commencement of the course he will provide to the mother particulars of the course including the organisation conducting the course, and place, date and time of attendance.  At the conclusion of the course the father will provide to the mother evidence verified by the organisation which conducted the course as to his attendance at it. 

   (f)The mother is undertaking counselling as recommended by Doctor [S] in his report.

   (g)The father will ensure that the children travel in approved car seats when they are in his care, and that the children travel in booster seats until that becomes inappropriate by reason of their age. 

The grounds of appeal contained in the father’s Notice of Appeal

1. On 12 October 2004 the father acting on his own behalf filed a notice of appeal against all the orders of 15 September 2004.  The grounds of appeal contained in the father’s notice of appeal are as follows:

   1.That Federal Magistrate Brewster was criminally bias (sic) when hearing the case using untested false statements provided by his wife.

   2.That FM Brewster was criminally bias (sic) when hearing the case using untested false statements provided by [the children’s general practitioner].

   3.That I have been denied natural justice in that FM Brewster dismissed an agreement signed and witnessed, according to the laws of The Commonwealth of Australia between [the mother] and [the father] on the 3^rd August 2004.

   4.That I have been denied natural justice in that no notice of the court appearance of the 8^th September 2004 was served on me in any way and the subsequent orders of that day have not been forwarded to me.

   5.That FM Brewster deliberately ignored the report by Dr [S] requested by [the mother] and ordered by him on the 13^th April 2004.

   6.That all the vexatious allegations of sexual abuse, violence and harassment have been used to deny me legal access to my children since November 2003.

   7.That FM Brewster deliberately showed bias in not testing [the mother’s] serious allegations because of there incriminating nature.

   8.That in an unbiased court the mother … would suffer greatly under the Laws of the Commonwealth of Australia.

   9.That in an unbiased court the children [L] and [R] would be afforded all the legal rights of a child living in Australia under the Laws of the Commonwealth of Australia.

   10.That FM Brewster did deliberately and purposely pervert the course of justice in his actions while dealing with this matter.

2. The orders sought in the notice of appeal are as follows:

   1.That the court deal with Federal Magistrate Brewster according to the laws of the Commonwealth of Australia.

   2.That the court order a new hearing in a Sydney court with a new Magistrate to allow natural justice to accure (sic).

   3.That the court place the children [L] and [R] in the care of their natural father.

   4.That children remain in the care of their father until,

   a)A new hearing is complete

   b)The NSW Police investigation is complete.

   5.That all costs incurred by the father relating to this action since the 21^st March of 2004 be paid by the responded (sic) mother.

Discussion of the grounds of appeal

1. So far as Grounds 1, 2 and 7 are concerned, and leaving to one side the issue of their actual wording, they can be read as alleging bias on the part of Brewster FM because there was no testing (presumably in the sense of cross-examination) of the affidavit evidence which was before his Honour on 15 September 2004 from the mother and from the children’s general practitioner.

1. The answer to this complaint by the father is that he had a legal representative appearing before him that day who did not seek to cross-examine the mother or the doctor. However, I would add that it is hardly surprising that the father’s solicitor adopted the course which she did (that is, of not seeking to cross-examine) given the limited issues on which his Honour was asked to adjudicate that day, and given also the usual practice in proceedings under the Act whereby issues of the type which were before his Honour are generally dealt with on the basis of untested affidavit evidence and oral submissions by the parties or their legal representatives. There can be no suggestion that his Honour was in some way biased because he did not require that there be cross-examination of the affidavits from the mother and the doctor, particularly given that the father’s solicitor did not seek to cross-examine those persons.

2. Specifically in relation to Ground 7, I perceive that that ground also embodies a complaint by the father that allegations which the mother apparently made to the New South Wales authorities at the end of 2003 concerning possible abuse of the children (which led to a cession of contact between the father and the children) have not been tested in a court.  I read Ground 6 as being directed to the same matter.

3. However, it seems clear that the father was prepared to consent to a settlement of the proceedings between himself and the mother at the legal aid conference held in early August 2004.  Indeed, it has been one of the father’s principal complaints in this appeal, notably in Ground 3, that the agreement which was reached at that conference was not adhered to by the mother.  That agreement meant that issues such as the reasons for the cessation of, or requirement for supervision of, the father’s contact with the children would not be examined by a Court.

4. It is perhaps understandable that the father feels aggrieved that having agreed to settle the proceedings with the mother (thereby presumably denying himself the opportunity to examine the bona fides of the allegations made at the end of 2003), he then found that the mother wished to depart from certain aspects of the agreement which were of significance to the father (notably the school holiday time which the father would spend with the children and which had been the subject of a specific recommendation by the expert, Dr S).

5. However, the fact remains that the mother was entitled to seek different orders from his Honour to those contained in the parties’ agreement, and, contrary to the assertion contained in Ground 3, Brewster FM was required to hear and determine her application notwithstanding that it was at variance with what had been ordered between the parties. 

6. Thus, for the reasons which I have just given, Grounds 1, 2, 3, 6 and 7 cannot succeed.

7. Ground 4 also cannot succeed for the reason that the father was heard by his Honour at the mention on 8 September 2004.  It cannot therefore be said that he was denied natural justice in relation to that hearing.  It seems that that hearing was brought on at short notice on the initiative of the Court in order to ascertain whether the hearing on 15 September 2004 was necessary, given the agreement which the parties had reached on or about 3 August 2004.  It seems that the Court telephoned the father (who was apparently at that stage unrepresented) to enable him to participate in the hearing, in other words to ensure that he did receive natural justice.

8. Grounds 8 and 9 are simply statements of views held by the father.  They do not constitute grounds of appeal, and thus need not be further considered.

The recommendations of Dr S and the school holiday contact

1. Of all the father’s grounds of appeal, it is Ground 5 that has some potential merit and requires close consideration.

2. It will be recalled that the second recommendation of Dr S (see paragraph 6 above) was that both children should “spend all of the short school holidays” and half of the Christmas school holidays with the father.

3. In the father’s minute of orders which was before Brewster FM on 15 September 2004, it was sought (in Order 4(a)) that the father should have contact for all of the school holidays apart from the Christmas holidays (which would be shared equally).  The father’s application clearly sought to give effect to Dr S’s recommendation.

4. However, the mother sought in her minute of orders (as Order 4(a)) that there be contact for one week in each of the end of term school holidays (other than Christmas holidays, which she was also prepared to share on an equal basis).  In her affidavit filed 6 September 2004 in support of her application, the mother explained (paragraph 4) that she wished to share the end of term holidays (apart from Christmas) to enable her to take the children on holidays to various parts of New South Wales where her extended family lived.

5. At the hearing on 15 September 2004, Ms Burgess first advised his Honour that the father was seeking “the bulk of the term school holiday contact” (Transcript: page 5, line 5 and again at line 37).  However, less than a page of transcript later, and without his Honour having expressed any view, Ms Burgess said that if his Honour “was disposed to give the mother part of the term school holiday periods, it would be appropriate then for the father to have more than half the Christmas school holiday period”.  His Honour then commented that there were “various permutations and combinations that can be worked out”.  Ms Burgess agreed.  (Transcript: page 6, lines 26 to 35).

6. Discussion between his Honour and the legal representatives then turned to the question of the place where contact change-overs would occur.  When the discussion returned to the periods of school holiday contact, Mr Farrar referred his Honour to paragraph 4 of the mother’s affidavit and to the need for the mother to have some holiday time with the children other than just at Christmas holidays (Transcript: page 13, lines 6 to 10).  Mr Farrar then went on to propose another option, being that the father have the whole of the mid-year break and that the mother have half of the other two holiday periods and his Honour indicated that that “was the way” that his “mind was moving” (Transcript: page 13, lines 15 to 19).

7. Then after some further discussion regarding the change-over venue, his Honour put to Ms Burgess that he was minded, “subject to” what she had to say, to make orders for contact with the father for the whole of the July holidays and half the other term holidays (Transcript: page 14, lines 46 to 49).

8. The following submissions were then made by Ms Burgess (Transcript: page 15, lines 1 to page 16, line 7):

   MS BURGESS: Well, your Honour, what my client is relying on is the recommendations of Dr [S].

   FEDERAL MAGISTRATE: And if reasons are sought for that, it is as I outlined to Mr Farrar, that - and I think that there is a lot in what the mother says in her affidavit at paragraph 4.

   MS BURGESS: Superficially there may be, your Honour, but you have to recall that the reason for the distance between the parties was the mother's application to relocate to Sydney. Which was previously heard by you. The father was having weekend contact. He has followed Dr [S]' recommendations that he not exercise that in order to minimise changeovers, and he seeks to follow Dr [S]' other recommendations, which on page 12 of the 27 April 2000 report - page 12 - his recommendation number 2 relates to the children spending all of the short school holidays with the father and half of the Christmas holidays.

   My friend says it is not a matter of dividing up the weeks, but it is a matter of the children spending time with both parents. And the father's time with the parents with the child, children, has been limited by the mother's move to Sydney. So they were able to do sensible changeover arrangements on all occasions, it was an onerous travel arrangement for the children. And this is seeking to further reduce the amount of time the children spend with him.

   The children had no contact with him between about November last year and July of this year, although there were orders in place. The father didn't seek to bring contravention applications in relation to those. Perhaps your Honour would consider a reverse, that there would be one term holiday period where the mother had half the holidays but the father had all of the remaining two. It is all fairly arbitrary. But what I would urge on you is these children have very limited opportunity to spend time with their father.

   FEDERAL MAGISTRATE: Yes. However, in my view it is not just a matter - time is only one aspect that - I think the matters set out in paragraph 4 of the mother's affidavit has some force. Whilst I appreciate all that you have said,

   Ms Burgess, I - - -

   MS BURGESS: Well, can we look a little closely at that, your Honour? The mother is saying that she wants to be able to go up to the Blue Mountains to spend time - - -

   FEDERAL MAGISTRATE: She can go up the Blue Mountains, she can go up to the Blue Mountains for a weekend.

   MS BURGESS: That is right.

   FEDERAL MAGISTRATE: That is not what I - but I think she should be allowed to spend a reasonable amount of holiday time with the children, and I think the five weeks, what she will have is appropriate. No, my mind is made up, Ms Burgess.

   MS BURGESS: Yes, your Honour.

   FEDERAL MAGISTRATE: The orders will be the whole of the July and half the other holidays.

9. His Honour did not deliver any formal reasons for judgment.  However, it is clear from the above passage that his attention was drawn to Dr S’s specific recommendation for the children to spend all the short school holidays with the father.  Nevertheless, his Honour considered that there was “force” in the mother’s claim to have some school holiday time with the children, and he made orders to take into account this consideration.

10. It was certainly within his Honour’s discretion to depart from Dr S’s recommendations if he considered there were reasons for doing so.  It is clear that his Honour decided that the need for the mother to have some holiday contact with the children (other than during the Christmas holidays) was a matter which justified some departure from Dr S’s recommendations.  As I have said, it was within his Honour’s discretion to make the orders for school holiday contact which he did. 

11. The authorities make it clear that a Judge or Magistrate is not bound by the recommendations of an expert and can depart from such recommendations provided the reasons for the departure are made clear (as they were by his Honour in the present case).  For example, in the recent decision of SS v KS [2006] FamCA 68 the Full Court (Kay, Holden and May JJ) said:

    40.… ultimately the decision as to what is in the best interests of the child is that of the trial Judge and not of the welfare reporter.  Where a conclusion is reached by a trial Judge that is inconsistent with a welfare report the trial Judge is expected to explain adequately why he or she has come to a different conclusion but otherwise it is the trial Judge who makes the decision and not the family report writer.

12. Again, it is understandable that the father may feel aggrieved at the departure from Dr S’s recommendations, particularly as it seems likely that the agreement reached between the parties on 3 August 2004 embodied Dr S’s recommendations regarding school holiday contact.  However, there would be no justification in my opinion for an appeal court to interfere with his Honour’s exercise of discretion in this regard, and thus Ground 5 must also ultimately fail.

Other matters of complaint by the father

1. Again leaving to one side the language used in Ground 10, it can be seen as a general complaint by the father concerning the manner in which the proceedings were conducted by Brewster FM and concerning the orders made.

2. As to the orders made, I understand the father’s complaints to be limited to those orders which did not reflect the agreement reached by the parties on 3 August 2004.  Again, at least as I understand the situation, the mother had sought to depart from that agreement in three respects only.

3. First there was the question of the school holiday contact which I have already discussed in the context of Ground 5.  The second and third matters were respectively the contact change-over place and the issue of the asthma medication for the child, L.

4. In relation to the place for contact change-overs, his Honour’s orders provided (in Order 6) for the primary place to be Moore’s Changeover Service, with a fallback position at Marymead Child and Family Service (Order 7).  The father in his orders had sought only the use of Moore’s.  It would seem from the mother’s orders sought that her preference was Marymead, but with Moore’s as a fallback arrangement.  Thus, it can be seen that his Honour accepted at least as the primary position the father’s preference, being Moore’s, and so the father could have no complaint about that decision.  To the extent that the father may complain about the use of Marymead as a fallback or default arrangement, that would seem to be a reasonable decision on the part of his Honour, and certainly not one with which an appeal court, would interfere.

5. In relation to the asthma medication issue, the father had sought the following three orders (presumably in accordance with the parties’ agreement):

   7.The mother is to keep the father informed of all medical and educational requirements of the children as soon as practicable.  Such information shall be communicated in writing.

   8.The mother shall authorise any Doctor or other professional involved in the children’s health or welfare to speak directly to the father at any time.

   9.The father shall seek the advice of any relevant health professionals and comply it [sic] with the recommendations of that practitioner, specifically in relation to the treatment of asthma.

6. The mother had sought the following orders:

   9.At changeovers:

   (a)The mother deliver to the father any medications relating and relevant to the children’s case including [L]’s asthma medication; and

   (b) The father administer such medication as the children may require during their time with him.  In regard to [L]’s asthma medication that father adhere to the medication regime recommended [the children’s general practitioner].

   10.Each party notify the other immediately if there is any emergency involving the children.

   11.The mother is to keep the father informed of all medical and educational requirements of the children as soon as practicable.  Such information shall be communicated in writing.

   12.The mother authorise any doctor or any other professional involved in the children’s health or welfare to speak directly to the father concerning those matters at any reasonable time.

7. In the event his Honour only made as his Orders 9 and 10 the order which the mother had sought as Order 9 (but in 2 paragraphs).  The reason why his Honour made those orders emerges from the following passage of the transcript:

   MS BURGESS: I don't have a problem with any of the rest of the mother's minutes, apart from the collection point - - -

   FEDERAL MAGISTRATE: I thought 9 was an issue.

   MS BURGESS: Well no, it is not. The father would like to take the child to a paediatrician, he is free to do that. There is nothing preventing him from doing so.

   FEDERAL MAGISTRATE: No, there isn't.

   MS BURGESS: If that changed the diagnoses, well so be it. But it is not an issue for these proceedings.

   FEDERAL MAGISTRATE: All right, so it will - - -

   MS BURGESS: That will be reasonable, that the child is prescribed medication, the father administers it.

8. To the extent that the father may now complain about Orders 9 and 10 as made by his Honour, it can only be said that these were the orders that the father’s legal representative agreed to.  It is also important to note that there was no request by the father’s legal representative to cross-examine the children’s general practitioner.

9. Finally, as I understood the father’s submissions at the hearing of the appeal, he appears to complain that:

   ·there was no proper application before the Court at the hearing on either 8 or 15 September 2004;

   ·affidavits had not been filed in accordance with the directions made on 28 June 2004;

   ·he was unprepared for the case which the mother ran on 15 September 2004; and

   ·Order 35 rule 24 of the Family Law Rules (which were in operation prior to March 2004) was not applied.

10. The lack of any formal application (other than that filed by the mother on 12 February 2004) was a matter addressed early in the proceedings on 15 September 2004 (see Transcript: pages 1 – 2).  His Honour determined to proceed on the basis that the minutes of orders sought which were before him from both parties, were the applications which were before him.  He was entitled to adopt that course, and it is important to note the father’s solicitor did not object to such a course, nor did she raise any complaint regarding the mention of the matter before his Honour on 8 September 2004, the circumstances surrounding which I have previously discussed. 

11. The mother had explained in paragraph 2 of her affidavit (filed 6 September 2004) why she had not complied with the directions made on 28 June 2004.  Again, it is important to note that the father’s solicitor did not at the hearing on 15 September 2004 claim any prejudice nor seek an adjournment because the directions of 28 June 2004 has not been complied with.  Nor did the father’s representative complain that she was expected to meet a case for which she was not prepared, or  complain of lack of time to present the father’s case.

12. Order 35 rule 14 of the previous Family Law Rules sets out the procedure which a Court should follow at the hearing of a contravention application.  Nowhere in the transcript of the hearings on 8 or 15 September 2004 is there any suggestion by, or on behalf of, the father that his Honour should determine a contravention application if any such application was awaiting determination.

Conclusion

1. Overall, therefore, I have not been able to find any substance in any of the father’s grounds of appeal, nor in any of the complaints which I understood him to make in his submissions in support of the appeal.  Therefore, the appeal must be dismissed.

Costs of the Appeal

1. In the event that the appeal was dismissed, the solicitor for the mother sought that the father should pay the mother’s costs of the appeal.  In support of this application, the mother’s solicitor would rely on the lack of success of the appeal and also on the terms of the father’s grounds of appeal.

2. Notwithstanding the terms of some of the father’s grounds of appeal and notwithstanding also the mother’s financial position (as outlined to me by her solicitor), I am not persuaded that the circumstances of this case justify a departure from the general rule that in proceedings under the Family Law Act each party should pay his or her own costs. Accordingly, there will be no order in relation to the costs of the appeal.

Orders

1. That the appeal be dismissed.

2. That there be no order for costs in relation to the appeal.

   I certify that the preceding 55 paragraphs are a true copy of the reasons for judgment of this Honourable Court

   JT

   Associate