FALERO & HOLME
[2020] FamCAFC 107
•6 May 2020
FAMILY COURT OF AUSTRALIA
| FALERO & HOLME | [2020] FamCAFC 107 |
| FAMILY LAW – APPEAL – PARENTING – Where the father appeals on grounds that the primary judge failed to provide adequate reasons, properly consider evidence and made errors of fact – No material factual error demonstrated – Inadequacy of reasons for particular orders – Appeal allowed in part – Matter remitted – Costs certificates ordered in favour of the appellant. |
| Family Law Act 1975 (Cth) s 60CC Hague Convention on the Civil Aspects of International Child Abduction |
| A v J (1995) FLC 92-619; [1995] FamCA 56 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 De Winter and De Winter (1979) FLC 90-605 House v The King (1936) 55 CLR 499; [1936] HCA 40 Palmer v Clarke (1989) 19 NSWLR 158 Spencer v Bamber [2012] NSWCA 274 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Falero |
| RESPONDENT: | Ms Holme |
| FILE NUMBER: | BRC | 12439 | of | 2016 |
| APPEAL NUMBER: | NOA | 87 | of | 2019 |
| DATE DELIVERED: | 6 May 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace (via telephone), Ryan (via telephone) & Tree JJ |
| HEARING DATE: | 17 March 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 3080 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person (via telephone) |
Orders
That the Further Amended Notice of Appeal filed 31 January 2020 be allowed in part.
Save as provided in Order (4) hereof, that the orders of the primary judge made 3 September 2019 be set aside.
That the matter be remitted to the Federal Circuit Court of Australia for re‑hearing by a judge other than the primary judge.
That notwithstanding Order (2) hereof, the primary judge’s orders made 3 September 2019 continue to operate until the re-hearing pursuant to Order (3) hereof.
That otherwise the Further Amended Notice of Appeal filed 31 January 2020 be dismissed.
That the Court grant the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grant the appellant a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred in relation to the re-hearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Falero & Holme has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 87 of 2019
File Number: BRC 12439 of 2016
| Mr Falero |
Appellant
And
| Ms Holme |
Respondent
REASONS FOR JUDGMENT
Introduction
On 3 September 2019, the primary judge made final parenting orders relating to the parties’ three year old child, X (“the child”). Under those orders, Mr Falero (“the father”) and Ms Holme (“the mother”) would have equal shared parental responsibility for the child, who would live with the mother, but spend increasing amounts of time with the father, culminating in potentially five nights per fortnight, upon the child turning six years of age. The orders also established a regime under which the child could spend time with the parties on special days, travel internationally and domestically, and communicate with the parent who was not then caring for him.
From those orders the father appeals. Although the mother resists the appeal, for the reasons which follow, it must be allowed in part.
Background
The father was born in Brazil, and is presently 44 years of age. He is in the final stages of qualifying as a legal practitioner. The mother was born in Australia, and is 33 years of age. She is a health professional.
The parties’ commenced cohabitation in July 2015, married in 2016, and separated on a final basis in November 2016, when the child was less than five months of age. No doubt mindful of that, initially the parties agreed on a parenting plan which saw the child live with the mother, but spend two and a half hours with the father on three afternoons per week. On 2 December 2016 that time increased by adding a further one and a quarter hours on a fourth day.
The father commenced these proceedings on 12 December 2016. On 13 February 2017 interim parenting orders were made by consent as outlined above. On 18 April 2017 further interim orders were made increasing the amount of time which the child spent with the father, which was increased again pursuant to orders dated 24 January 2018.
Finally, an additional increase in time was made by interim consent orders on 13 July 2018. Under those orders, the parties had equal shared parental responsibility, and while the child was to live with the mother, he was to spend progressively increasing amounts of time with the father, which on and from 13 October 2018, would have the child spending from 8.30 am to 5.00 pm each Monday and Wednesday with the father, together with a period of time from 8.30 am each Saturday until 8.30 am on Sunday. Time was also ordered for special days.
Those were the orders which prevailed at the time of the trial before the primary judge.
The trial before the primary judge
By the time of the hearing before the primary judge, the parties had agreed on a number of incidental parenting orders, but remained in significant disagreement as to the balance. Particularly:
·The father sought an order for equal shared parental responsibility, whereas the mother sought an order for sole parental responsibility;
·The father sought a regime of time which would culminate with the child, from his prep year, living week about between the parties, whereas the mother contemplated that from the age of six the child would spend a block of five nights with the father each fortnight;
·The parties sought different regimes in relation to special days;
·Whilst both parties conceded that the child should be able to travel both domestically and internationally with each parent, the mother also proposed that such travel be restricted to countries that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction, and further, sought that there be a surety bond of $20,000 posted by the travelling parent to the trust account of their solicitor, until they returned to Australia with the child; and
·The mother sought an order restraining the parties from taking any steps to have the child recognised as a Brazilian citizen, which order was opposed by the father.
The trial proceeded before the primary judge on 10 and 11 June 2019, but submissions were unable to then be concluded, and accordingly written submissions were filed by the parties, including, on 28 June 2019, an annexure setting out a list of agreed and disputed orders.
In due course his Honour gave judgment on 3 September 2019 and pronounced orders on that day. Although his Honour appears to have delivered his reasons for judgment orally, that fact was not reflected in the written reasons ultimately published. Further, insofar as the written reasons were derived from a transcript of the proceedings on 3 September 2019, the reasons for making the various orders were omitted. That much was readily apparent, in that the written reasons simply concluded:
79. I now wish to go through the orders that I propose, and I am utilising the Mother’s case outline filed 10 April 2019 for that purpose, and I am also using [the Family Report writer’s] third report.
We therefore obtained the additional transcript, comprising some 10 pages, on the basis that its exclusion from the written reasons was an impermissible (we assume mistaken) alteration of the oral judgment (Palmer v Clarke (1989) 19 NSWLR 158; Todorovic v Moussa (2001) 53 NSWLR 463; and Spencer v Bamber [2012] NSWCA 274). From that transcript, some level of reasoning for some of the particular orders can be discerned.
The primary judge’s reasons
At the commencement of his reasons for judgment, the primary judge identified some general background facts, listed the parties’ material, and enunciated the relevant legal principles which he was obliged to apply. His Honour then traversed a chronology of events, including an event of family violence on 12 November 2016, and at [15] said that, in consequence, the presumption of equal shared parental responsibility did not apply. His Honour identified that the issues in dispute in the litigation “will be determined by best interests considerations” (at [16]).
At [17]–[32], his Honour addressed the individual considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), before commencing to consider some parts of the evidence in greater detail, including reference to the parties’ Queensland Health red book, the involvement of the parties with Dr C, a psychologically qualified family dispute resolution practitioner, and traversing the three Family Reports of Ms B (“the Family Report writer”), particularly her final report. His Honour also extensively referred to the evidence given under cross-examination by the Family Report writer (at [54]–[75]).
At [76] his Honour then said as follows:
Those matters that I have discussed by combination – I would describe them like strands in a rope – cause me to find that [the child’s] best interests are met by, generally, the orders that the Mother seeks.
However his Honour did not make the order for sole parental responsibility for which the mother had contended, as he was not satisfied that it was in the child’s best interests. Nonetheless he found at [78]:
… [F]or all of the reasons and findings that I have already discussed, that equal time is not in [the child’s] best interests. I find that substantial and significant time, for all of the reasons and findings I have discussed, is both in [the child’s] best interests and reasonably practicable.
We have already noted that the primary judge, in the written form of his reasons, did not include his oral discussion of the particular orders, which was undertaken towards the end of his Honour giving judgment.
The appeal generally
Before us, both parties are self-represented. The father’s Further Amended Notice of Appeal runs to only three grounds, as follows:
1. Failed to provide adequate reasons for the Order made.
2. Errors of findings of fact.
3. Failed to properly consider evidence.
(As per the original)
However in the father’s Summary of Argument filed 31 January 2020, he further particularised each of those grounds of appeal, and no objection was taken to that by the mother. It is therefore convenient in these reasons, to deal with those grounds of appeal by reference to the further particularisation provided in the father’s Summary of Argument.
Before doing so however, it is useful to restate the relevant principles applicable to this appeal, as established in House v The King (1936) 55 CLR 499, where at 504–505 the majority of the court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Ground 1
Overview and relevant principles
This ground asserts a failure to provide adequate reasons, and as expanded upon in the father’s Summary of Argument, advanced that challenge by reference to the particular orders he seeks to impugn. For convenience, we will adopt that approach in these reasons.
The test for the adequacy of reasons has been articulated in a number of cases. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 as follows:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
Order 2
This order provided that the child live with the mother. Under the cover of this challenge, the father, in his Summary of Argument, contends at paragraph 7 that:
…There is a complete absence of findings or reasoning as to why the Father’s application to incrementally increase time such that the child would be living in a shared care arrangement by the age of 4 years and 6 months, was rejected.
His Honour’s conclusion in relation to rejecting the father’s proposal for equal time was at [78], the relevant part of which we have already recited at [15] of these reasons.
Whilst it is true that his Honour did not there recapitulate, or make specific reference to previous findings, they implicitly must have included at least the following:
·The child’s primary attachment was with the mother (at [20]);
·The parents had, at least in the past, demonstrated “an inability to cooperate in order to co-parent [the child]” (at [31]);
·There were limits on “the Father’s parental capacity to focus on and meet [the child’s] needs, especially emotional” (at [32]) which was relevant to whether the father would facilitate and encourage the relationship between the child and the mother (at [28]). His Honour’s preferred description was that the father had an “inability to co-parent” (at [32]);
·That “to an extent, unfortunately, the Father is stuck in the conflict rather than free to concentrate on [the child’s] bests interest… his focus is blurred and significantly so” (at [37]);
·The primary judge’s acceptance at [62] of the evidence of the Family Report writer under cross-examination, where she said that certain behaviour evidenced by the child raised the question of whether:
36. [T]he fact that he is saying he does not want to return to his Mother; could be indicative that he is feeling ambivalent about his relationship with her and that is because... he’s away from her and if he rejects her upon return to her; that could be an indicator that he is feeling insecure in her reliability because he is spending time away from her.
(As per the original)
·The primary judge’s acceptance that, whilst at the time of her second Family Report, the writer’s recommendations were informed by the fact that she “was seeing a child who did seem to be coping quite well” (at [70]), by the time of the third report “there were indicators that that wasn’t happening as well as might have [been] expected”, the consequences of which “can be quite wide-ranging” for the child (at [73]); and
·The primary judge’s further acceptance of the Family Report writer’s later evidence in cross-examination, that she thought that longer periods of time away from the mother “could cause [the child] to start to reject her... [and] can cause some problems in [children’s] relationships with their parents and how secure they feel” (at [73]).
It was plainly these sorts of matters that, combined, caused the primary judge “to find that [the child’s] best interests are met by, generally, the orders that the Mother seeks” (at [76]). We are not satisfied that there was an inadequate exposure of reasoning in relation to the order that the child primarily live with the mother.
Order 3(a)
Order 3 established the regime under which the child would spend time with the father, commencing with Order 3(a) which provides:
The current arrangement continues until the child is three years and six months of age.
Correctly, the father asserts that the term “current arrangement” is not defined in the orders, however we are well satisfied that it refers to the orders made on 13 July 2018. The father is incorrect to assert that the effect of the orders made by the primary judge were to discharge those orders, in that plainly, their proper construction sees that component of the orders made on 13 July 2018 continue.
In any event, the child is now over three years and six months of age. To allow the appeal on this ground would be futile. There is no merit to this aspect of the father’s challenge.
Order 3(b)
This order provides as follows:
The child then spend an additional night in the Father’s care, so the child is spending one two-night block with him, namely Friday from 4:00pm to Sunday at 9:00am. In the first two months the child should return to the Mother on Sunday morning. This is to progress to be midday on Sunday for a further two months. After this, the child should then return to the Mother’s care on Sunday late afternoon. The child will then cease spending the other Saturday night with the Father. This is to change to be a weeknight later in the week. The child will continue to spend the current day visits with the Father.
It must be said that, against the background of the parties’ history of high conflict parenting of the child, the lack of precision in the way in which Order 3(b) was cast was a standing invitation to almost certain further disagreement and gave scant regard to s 60CC(3)(l) of the Act.
Even accepting that, inferentially, the primary judge must have been of the view that a progressive increase in time would sufficiently accommodate the prospect that the child might continue to feel a degree of unhappiness at being separated from his mother, the reasons do not contain an explanation as to why this particular resolution of the controversy was thought to be the appropriate one for him. The additional transcript procured from the proceedings after the primary judge delivered his reasons (later reduced to writing), in which his Honour discussed the particular orders he was intending to make, does not alleviate that deficiency.
Whilst plainly the primary judge thought that this progression was in the child’s best interests, in the circumstances, that conclusion alone is an inadequate exposure of reasoning. Something more by way of explanation was required. It therefore follows that this aspect of the challenge raised by Ground 1 succeeds.
Order 3(c)
This order provides as follows:
After the child turns four years of age, the child will spend two nights each week with the Father. This will be over a weekend and on weeknights, spaced as evenly apart as possible. The day time visits would cease.
An identical challenge to that made under Order 3(b), was made by the father under Order 3(c). For the same reasons which this ground succeeds insofar as there was an inadequate explanation for Order 3(b), it must also succeed in relation to Order 3(c).
Order 6
This order provides as follows:
That the child attend day care on days only when he is in the care of the Mother.
Neither the written reasons for judgment, nor the additional pages of transcript, provide any explanation as to why the mother is permitted to access child care, but the father is not. Such a significant curtailment of the father’s capacity to flexibly provide care for the child when the orders permit the father to spend time with him, demanded explanation. This aspect of Ground 1 also succeeds.
Orders 8(c)–8(d) and 9(c)–9(d)
Orders 8 and 9 deal with special occasions. Relevantly the impugned orders are as follows:
(8)That notwithstanding any other Order the child shall spend time with the Mother on special occasions as follows:
…
(c)From 8:30am to 2:30pm the day of the Child’s birthday where the Child’s birthday falls on a non-school day in odd numbered years and from 2:30pm to 7:30pm the day of the Child’s birthday where the [child’s] birthday falls on a non‑school day in even numbered years.
(d)From 3:30pm to 5:30pm the day of the Child’s birthday where the Child’s birthday falls on a school day in odd numbered years and from 5:30pm to 7:30pm the day of the Child’s birthday where the Child’s birthday falls on a school day in even numbered years.
…
(9)That notwithstanding any other Order the child shall spend time with the Father on special occasions as follows:
…
(c)From 8:30am to 2:30pm the day of the Child’s birthday where the Child’s birthday falls on a non-school day in even numbered years and from 2:30pm to 7:30pm the day of the Child’s birthday where the [child’s] birthday falls on a non-school day in odd numbered years.
(d)From 3:30pm to 5:30pm the day of the Child’s birthday where the Child’s birthday falls on a school day in even numbered years and from 5:30pm to 7:30pm the day of the Child’s birthday where the Child’s birthday falls on a school day in odd numbered years.
…
(As per the original)
The complaint raised by the father was set out in his Summary of Argument as follows:
18. The learned trial judge failed to provide adequate reasons for refusing to make the order sought by the Father in relation to the child’s birthday which would have had the effect of reducing handovers and opportunities for conflict between the parties.
(Footnotes omitted)
It was not incumbent upon the primary judge to “mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). As the High Court there noted:
62. …Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Further, as the Full Court said in A v J (1995) FLC 92-619 at 82,232 “[i]t is important to guard against too zealous an application of the requirement to give reasons…”.
This issue is of such small compass that it is difficult to see what jurisprudence might have been brought to bear on other than a simple choice made on the basis of what the primary judge thought was best for the child. In any event, it is tolerably clear that his Honour struck a sensible balance between ensuring the child had time on his birthday with both of his parents, while maintaining the essential rhythm of his life.
Order 9(e)
This order provides that the child would spend time with the father on a special occasion, namely:
From after school on 20 September to before school the following day (or 8:30am on a non-school day), this day being the [celebration of a cultural event].
It appears that the celebration of this cultural event is important for the father, and he wishes for it to be an ingrained and equally important cultural event for the child.
The complaint which is made here is that there was an absence of reasoning as to why the father’s time with the child on that day, did not commence prior to his schooling commencing, particularly in 2019 and 2020. Indeed there is an absence of any reasons.
However, insofar as this ground complains in relation to 2019, it is futile, as the relevant day has now passed. Whilst the day is yet to be reached in 2020, it is most unlikely that judgment ensuing from any re-hearing of this matter would be delivered prior to then, and thus again, this aspect of the father’s appeal is likely futile. It is, in any event, a small matter, approaching de minimis.
This aspect of Ground 1 is not made out.
Order 10
This order (in its entirety) provides as follows:
(10)That in relation to Christmas:
(a)The child shall spend time with the Mother from 2:00pm on Christmas Eve until 2:00pm on Christmas Day each even numbered year and from 2:00pm on Christmas Day until 2:00pm on Boxing Day in all odd numbered years.
The father’s challenge to this order was articulated in his Summary of Argument as follows:
20. The Reasons do not contain any, or any proper, basis for the decision not to make provision for the child spend to time [sic] with the Father on or about Christmas Day in each year.
(As per the original)
This argument relies upon a false premise, namely that Order 10 does not afford the child time on Christmas Day with the father. Plainly it does, in that the necessary inference is that when the mother is not spending time with the child, the father is. This aspect of Ground 1 fails.
Order 11
Order 11 relates to changeovers and provides as follows:
(11)That unless the mother and the father agree otherwise in writing:
(a)The Father shall collect the child from the Mother’s residence at the commencement of the child’s time with him and the Father shall arrive at the Mother’s residence no earlier than five (5) minutes prior to when the child’s time with him commences;
(b)The Mother shall collect the child from the Father’s residence at the end of the child’s time with the father and the Mother shall arrive at the Father’s residence no earlier than five (5) minutes prior to when the child’s time with the Father ends;
(c)The Mother and Father are restrained from attending the other’s residence at any time other than for the child’s time with that parent pursuant to these orders;
(d)Once the child obtains school age, changeovers will take place at the child’s school wherever possible; and
(e)The Mother may have the Maternal Grandmother attend changeover on her behalf and the Father may have the Paternal Grandmother attend changeover on his behalf.
At paragraph 21 of his Summary of Argument, the father says as follows:
The learned trial judge also failed to provide any reasons for not making an order as sought by the Father that the parents or a family member be able to attend changeover for the child. This paragraph provides only that in the absence of the parents, the respective maternal and paternal grandmothers may attend handover. No reasons were given as to why that could not include a family member as [sought] by the father in relation to changeover.
(As per the original) (Footnotes omitted)
However this assertion is incorrect. Particularly at [52] of the primary judgment his Honour said as follows:
In relation to paragraph 107, I am not satisfied either way on the evidence whether or not the Father has been present or otherwise at change-overs. To my mind he should be, and I trumpet the evidence of [the Family Report writer] in that regard, where she makes the comment about his presence correlating with the authenticity of his commitment to having a co-operative co-parenting relationship with the Mother. It would be a good opportunity to demonstrate to [the child] that his mum and dad can get on. A powerful message to their son. It would also be a good opportunity, if the parents can behave in a civilised, courteous and polite fashion, for the exchange of important information, as well as through other communication means.
We are satisfied that adequately exposes the primary judge’s reasoning behind this order.
Orders 12–17, 21–30 and 35
These orders provide for the child’s passport arrangements and international travel. Particularly they include orders:
·Restraining the parties from obtaining a passport for the child other than an Australian passport (Order 12);
·Requiring each party intending to take the child overseas to post a surety bond of $20,000 to be held in the trust account of a solicitor appointed by the travelling party, until they return to Australia with the child (Order 25); and
·Providing that, should the travelling parent fail to return with the child, then the surety will be paid to the non-travelling parent, to meet their costs of and incidental to bringing an application seeking the return of the child to Australia (Orders 25, 28 and 29).
Additionally, Order 35 provides that:
The Mother and Father are restrained from taking any steps to have the child recognised as a Brazilian citizen.
Turning first to the international travel and passport issues, it is correct to say that there is a complete absence of explanation, or exposure of any reasoning, for such orders. Given the significant restrictions on the parents imposed by those orders, explanation was required.
Further, the question of whether or not the child should be able to be recognised as a Brazilian citizen was a live issue at trial, because the mother was apprehensive that if that occurred, then he may thereby become liable to serve a period of compulsory military service in Brazil. The reasons for judgment are entirely silent as to this dispute, and did not resolve it. It was incumbent upon the primary judge to resolve that dispute before making the order which he did. There is no explanation in the reasons for why that order was made. This aspect of the father’s challenge therefore succeeds.
Order 18(a)
This order relates to domestic travel and provides as follows:
(18)That the parties be at liberty to travel within Australia with the child during the time that the child is already in the travelling parent’s care until the child commences school and once the child commences school, only during the school holidays, in the time that the child is already in the travelling parent’s care provided that:
(a)The travel does not override any ‘special time’ the non-[travelling] parent is to spend with the child.
In his Summary of Argument the father says this in relation to this challenge:
28.This paragraph at a minimum, lacks precision. The order provides, ‘The travel does not override any ‘special time’ the non-[travelling] parent is to spend with the child’. The term ‘special time’ is not defined in the Order but is used again, for example, in paragraph 21. On that occasion the term is not in parenthesis and is referred to as ‘special time orders’.
(Emphasis in the original)
We are satisfied that, properly construed, it is clear that the reference to “special time” was intended to refer to the “special occasions” dealt with in Orders 8–10. This aspect of the father’s challenge fails.
Order 31
This order provides as follows:
That the Mother and the Father each be at liberty to communicate with the child by telephone, or by other form of electronic communication such as Skype or Facetime between 6:00pm and 6:30pm each day that the child is with the other parent and, to give effect to this order, the parent wishing to communicate with the child is to call the other parent’s mobile telephone number or electronic communication account.
The father’s challenge to this order is explained in paragraph 29 of his Summary of Argument as follows:
His Honour failed to provide any reasons as to why allowing telephone contact between the child and the parents every day, including handover days, was in the child’s best interests. The daily intrusion is disruptive for the child and not in his best interests.
The frequency of the telephone communication regime might be thought to be excessive, and is certainly unusual. There is no explanation as to why that regime was determined to be in the child’s best interests, particularly given that it is potentially destabilising for the parent who has the child in their care, if there is communication each and every day between the other parent and the child. Although it might seem a very small matter, it is one which we are satisfied did require positive explanation by the primary judge. This aspect of the challenge therefore succeeds.
Orders 4, 5 and 40
These orders provide as follows:
(4)That if it is determined that the Mother and the Father can protect the child from conflict, and the child moving frequently between the households will not cause conflict between the parents and the child, then when the arrangement in Order 3 has been in place for six months, the child’s time with the Father could increase by one night during the weekend block of time.
(5)That if it is determined that the child will be at risk of being exposed to, and being the cause of, conflict between the parents after the arrangement in Order 3(c) has been in place for six months, the child will spend time with the Father for one black [sic] of four nights on alternate weekends.
(a)That when the child turns six years of age, it may be suitable for the child’s time with the Father to increase to be a five‑night block of time.
…
(40)That all communication is to be made as per Dr [C] or other Parenting Coordinator’s recommendation.
Although, as ultimately advanced under the cover of Ground 1, the challenge made by the father was that this order comprised an “invalid delegation of judicial power” (Father’s Summary of Argument filed 31 January 2020, p.8), it is convenient to nonetheless consider these orders from the perspective of whether there was an adequate exposure of the reasoning underpinning them.
These particular orders are very unusual. It is not immediately apparent in Orders 4 and 5 who would, and what method the parties would use to, determine that the mother and father can protect the child from conflict, or that the child will be at risk of being exposed to and being the cause of conflict between the parents.
The only passage of his Honour’s reasons which gives some context to these orders is [35], which provides as follows:
Another matter that causes a qualified conclusion with respect to co‑parenting in the future surrounds Dr [C’s] involvement. The fact of the involvement in a number of sessions points to possible or probable positivity. However, the Father, I find, has continued with some of the behaviours that I have described after the involvement with Dr [C] since about August of 2018. I intend to be making the order proposed with respect to Dr [C] because I find that it is not the ceding of a judicial function to a non-judicial entity. I had some reservations about the certainty and enforceability of this order, but I find on balance that the order is in [the child’s] best interests, because should the parents have equal shared parental responsibility, then they can well and truly utilise Dr [C’s] assistance, should they need it. That would also be a consideration relevant at section 60CC(3)(l), and to my mind, it would be a good thing for [the child] that this matter not come back before any court. It might be that if the parents reach an impasse, that Dr [C] can assist and facilitate with respect to compromise and decision-making, and that would alleviate the need for the institution of further proceedings.
His Honour’s reservation about the enforceability of the order was apt and had it received consideration, the necessary conclusion would have been that the order is unenforceable and all but guarantees further litigation. But more tellingly, it would be a very significant thing to leave crucial fact finding in relation to parental disputes, the determination of which would affect the extent of time a child spends with a parent, to a non-judicial officer. The arguments advanced do not support an appropriate analysis of whether or not such an order could ever be competently made by the Federal Circuit Court of Australia; suffice to say that even if there was such a power (as to which we express no opinion) there would need to be very careful and detailed reasons given, both as to why the judicial officer was satisfied that such a power exists, and as to why it is that someone other than a judicial officer should be vested with that responsibility. Merely to say that it would be a good thing for the child that the “matter not come back before any court”, is an observation that could be made in relation to virtually all parenting disputes.
We are not satisfied that there was an adequate exposure of reasoning in relation to these orders. This aspect of Ground 1 therefore succeeds.
It is therefore otherwise unnecessary for us to deal with the arguments advanced by the father under this ground insofar as it relates to Orders 4, 5 and 40.
Ground 2
The challenge ultimately made by the father in relation to Ground 2 was restricted to Orders 2–5, which deal with whom the child shall live, and the time which the child should spend with the father.
As to this, in the father’s Summary of Argument he says as follows:
37. These paragraphs deal with the time the child spends with each parent. When determining reasons for the finding that spending equal time with each parent would not be in the child’s best interests, the learned trial judge made a finding, and placed considerable weight on it, that the Father on his own obtained a referral for a psychiatrist when the child was one year of age.
38. The Father in fact never sought that referral, instead the Father asked advice from the child’s general practitioner as to how best manage the difficulties after the separation. It was the general practitioner’s suggestion that both parents went to see the psychiatrist…
39. In finding that “the Father on his own obtained a referral from a general practitioner to a psychiatrist for [the child], who was one year of age”, the learned trial judge made an error of fact.
(As per the original) (Footnotes omitted)
We are satisfied that the matter complained of by the father, even if it is an error, was not material to the ultimate decision. Only material errors of fact will justify appellate intervention (De Winter and De Winter (1979) FLC 90-605).
Ground 2 therefore fails.
Ground 3
Again, as advanced by the father in his Summary of Argument, this ground was restricted to challenging Orders 2–5. In his Summary of Argument, the father particularly focussed upon the primary judge’s failure to refer to the unchallenged evidence of a clinical psychologist, Dr D, who, in substance, opined that the father had a commitment to the formation of a healthy co‑parenting relationship with the mother. Further, reference is made by the father to a psychiatric referral, and other arrangements which the father had made in relation to the child’s dental appointments.
Given that the appeal is bound to succeed upon the absence of adequate reasoning, it is not productive to focus upon the extent to which the primary judge did, or did not, engage with allegedly relevant evidence. That is because, in any event, the reasoning which supports some of these particular orders is inadequate.
Ground 3 does not succeed.
Outcome
It therefore follows that Ground 1 succeeds in relation to several of the particularised complaints, and the appeal must therefore be allowed in part.
Although the father only sought to have some of the orders made by the primary judge set aside, we are satisfied that there should be a full remission of the matter back to the Federal Circuit Court of Australia, because to restrict the re-trial only to the orders which the father sought to impugn, is impracticable, and likely to prove quite unworkable. It therefore follows that all of the orders of the primary judge should be set aside, save that, until the re-hearing or further order, those orders should continue to prevail.
Costs
In the event that the appeal succeeded, the father did not seek an order for costs against the mother, but rather sought a costs certificate, both in relation to the appeal and the re-hearing. Unusually, even though it was explained to the mother that she may also be entitled to such certificates, she declined to seek them.
The appeal has succeeded on a question of law and it is appropriate that there be a costs certificate issued to the father under the Federal Proceedings (Costs) Act 1981 (Cth), both in relation to the appeal and the re-hearing.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Tree JJ) delivered on 6 May 2020.
Associate:
Date: 6 May 2020
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