Farland and Farland
[2010] FamCAFC 25
•2 March 2010
FAMILY COURT OF AUSTRALIA
| FARLAND & FARLAND | [2010] FamCAFC 25 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PARENTING ORDERS – Appellant challenged the order for equal shared parental responsibility, asserted there were contradictions between reasons and orders, asserted that the Federal Magistrate erred in the orders made as to travel and birthday time and unfairly criticised the mother – The parties sought orders for equal shared parental responsibility – Following the giving of reasons the matter was stood down for the parties to prepare orders reflecting the reasons – No merit in the grounds of appeal – Appeal dismissed |
| APPELLANT: | Ms FARLAND |
| RESPONDENT: | Mr FARLAND |
| FILE NUMBER: | BRC | 7305 | of | 2008 |
| APPEAL NUMBER: | NA | 79 | of | 2009 |
| DATE DELIVERED: | 2 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Justice Warnick |
| HEARING DATE: | 19 February 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 October 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1215 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Hodges |
| SOLICITOR FOR THE RESPONDENT: | Kerry Barnes Lawyers |
Orders
That the appeal be dismissed.
That the appellant pay the respondent’s costs of the appeal as agreed and in default of agreement, as assessed.
That the application in an appeal filed 10 February 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Farland & Farland is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA79/2009
File Number: BRC7305/2008
| Ms FARLAND |
Appellant
And
| Mr FARLAND |
Respondent
REASONS FOR JUDGMENT
On 8 October 2009, Jarrett FM both heard and determined, and gave reasons for that determination, parenting issues between Mr and Ms Farland concerning their child, A, then four and a half years old.
As his Honour’s reasons explained, the parents were agreed that they have equal shared parental responsibility and that they share the care of A equally. What they disagreed about was whether A, who was to begin school in 2010, should spend week about with each parent, as the father proposed, or changeover every three or four days, as the mother proposed.
The learned Federal Magistrate expressed some hesitation about ordering equal shared parental responsibility, though he ultimately so ordered and he resolved issues over the shared care arrangement, by order introducing a week-about scheme, to begin at the start of the school year in 2010, largely preserving the arrangement for shorter periods in the care of each parent up until then.
Jarrett FM also resolved an issue about the school that the child attend.
In his judgment, after giving his reasons for those conclusions, he said:
36.In relation to the other issues, there seem to be really no other issues save for perhaps the question of whether interstate travel ought to be included in the orders that the mother seeks about travel arrangements. I accept the submissions of the father, that there does not need to be any particular orders about interstate travel. …
37.There are a number of consequential orders contained in the mother’s outline of case, none of which it seems to me are controversial. In particular, I refer to paragraphs 13, 14, 15, 16 and 17 – 17 is by agreement. None of those orders seem to be particularly controversial, and to some extent they overlap with some of the orders that the father seeks in his minute of orders, and in particular 5, 6, 7 and perhaps 8.
38.In those circumstances, what I propose to do is to stand the matter down so that the parties can produce an agreed minute of orders which reflects the reasons that I have just pronounced.
39.There will be an order in terms of the minutes that have been initialled by me and placed with the papers. They are not consent orders, of course, but have been prepared by the parties following the delivery of reasons.
Notwithstanding the apparently very limited issues that fell for his Honour’s determination and the opportunity, apparently given and taken, for the parties to work out the detail of consequential orders, the mother appeals – on a wider basis than might be anticipated - and it is that proceeding to which these reasons relate.
Both parties were represented by solicitors and Counsel before Jarrett FM, but in the appeal, the mother has prepared her own material and appears without legal representation. It is not easy, from the text that appears under the heading “Grounds of Appeal” in the amended Notice of Appeal, to discern the gravamen of her complaints, but from the orders sought, it seems that she, at least at the outset of the hearing before me, intended to challenge:
·The order for shared parental responsibility. She seeks that:-
“ … greater responsibility be given to the mother”.
·The week about arrangement, asking for orders installing the arrangement that she had proposed.
·The arrangements ordered for A to spend time with the father on his birthday, compared to those about A spending time with the mother on her birthday.
·The lack of an order in respect of interstate travel.
·Contradictions between orders and reasons.
·Allegedly unfair criticism of her.
The mother’s Summary of Argument does not readily advance an understanding of the complaints that she makes, however the mother may also complain that, the parties having obtained parenting orders following mediation in October 2007, the father had not shown that those orders ought be changed.
At the conclusion of oral argument, I dismissed the appeal, indicating that I would give these, my reasons, in writing.
Mr Hodges, Counsel for the father, sought an order that the mother pay the father’s costs of the appeal, which order I made for reasons I then gave.
I turn to my reasons for rejection of each of the challenges outlined above.
The orders for equal shared parental responsibility
In respect of this order, Jarrett FM said:
8.Section 61DA deals with the incidence of parental responsibility. Section 61DA(1) obliges the Court to presume that it is in the child’s best interest for his or her parents to have equal shared parental responsibility for that child. Both parties here agree that there should be an order for equal shared parental responsibility. How in practice that is to work I am not sure given the evidence before me. There is little trust between the parties. By way of example, the father does not accept what the mother tells him about the medical advice she has been given concerning [A]’s need to have his tonsils removed. The father could not see his way clear to make an appointment with the child’s doctor or doctors to confirm the diagnosis and recommendation about a tonsillectomy, something which I find extraordinary.
9.Similar comments can be made about the mother. There is a dispute in this case about the school to which [A] shall go next year. The father sent her a list of preferred schools. There was one in particular that he favoured. She did not bother to go and see the father’s preferred school, simply dismissing it out of hand as unsuitable.The evidence of both parties, in my view, makes it very clear that they have no interest in doing anything other than what it is that they each respectively want to do, without regard for the views of the other.
10.To return to the statutory structure, I have some hesitation about making an order for equal shared parental responsibility, because both parties seem to acknowledge that there is difficulty in their communication. [A] is only five. What will happen when these parties will have to make decision about [A]’s future? – for example subject selections at school (that is a little way down the track), sporting selections (which might occur sooner rather than later), medical attendances and school excursions. The list goes on and on and on.
11.What will they do if their communication is such as it is now? Can the requirements of s.65DAC(3)(a) and (b) be met? Will they be able to consult with each other about major long-term issues concerning [A]’s welfare and come to an agreement about those issues? At the very first hurdle they have faltered. They cannot even agree on his school. For those reasons I have some concern that an order for equal shared parental responsibility is appropriate.
12.There, perhaps, are some reasons to be a little optimistic however. As I said, I have no doubt these parents love their son and although the father was not asked questions along these lines the mother certainly was of the view that [A] loved his Dad and enjoyed spending time with him. The very fact that these parties have been able to understand that [A] should spend as much time with each of them as is possible gives hope that they might in the future improve their communication skills and to be able to exercise their parental responsibility for [A] as the Act envisages that it might be. I will make an order for equal shared parental responsibility despite the hesitation that I have already expressed.
The mother presented no comprehensible arguments directed to the basis for this order. I see no flaws in the above reasoning. The result that Jarrett FM reached was well open to his Honour.
Did Jarrett FM err when resolving the competing proposals for shared care? Were there contradictions between orders and reasons?
I deal with these two questions together.
Jarrett FM’s reasons in respect of issues about shared care were:
21.So what orders will best suit [A]? In my view, there are some benefits to the current orders remaining in place, primarily that identified by the mother. That is, [A] is still a child of tender years, routine is important and this is his routine. One can understand the logic of that argument.
22.On the other hand, there are benefits in the father’s proposal and it seems to me that without the benefit of any other evidence on the point, the benefits for [A] that would flow from the father’s proposal are these. First, a more fulsome inclusion in the [A]’s day-to-day life of his father, something which the Act specifically recognises as important for children. See the definition of substantial and significant time in section 65DAA(3). Second, the father’s proposal would provide an opportunity for [A] to spend time on a weekend with his mother. The parties should note that I am not approaching my reasoning from their point of view, not what the mother would like or what the father would like, but what is in their son’s best interests and what opportunities and benefits each of their proposals presents for him.
23.There are benefits each way. Ultimately, it is a balancing exercise. The benefits from the father’s proposal might not be realised at the outset. That is because [A] is not yet at school and so if the father’s proposal was put in place now it would mean that there would have to be other arrangements put in place for [A]’s care while the father was at work. That would introduce not only a change in the overall living arrangements for [A] but a change in care arrangements in a more general sense. Moreover, it would mean, I think, that [A]’s time with his mother might necessarily be interrupted in a practical sense and that time replaced perhaps with care by a third party. Mr Hodges put it in submissions as “day care”.
24.For those reasons I think that to implement the father’s proposal now might cause more disruption than is in [A]’s best interests. But once [A] starts some form of formal education the benefits that would flow from the father’s proposal would, in my view, outweigh the benefits to be gained from the mother’s proposal.
25.For those reasons it seems to me that what should happen is that the current arrangements should remain until the commencement of the upcoming Queensland gazetted school holidays and thereafter the father’s proposal for holiday time and then week-about with changeover to take place each Friday upon the commencement of school in 2010 should be implemented. That will keep the disruption, I think, to a minimum, but at the same time provide [A] with the opportunities that I have identified in these reasons for time in his father’s household and time with his mother in his mother’s household which will include weekend time.
Although only (at best) indirectly connected to such challenge as the mother makes to the order for a week-about arrangement, the mother raised an alleged inconsistency between orders 2(a) and 10 (implementing the shared-care arrangements), on the one hand, and paragraphs 24 and 25 of the Federal Magistrate’s reasons, on the other.
Order 2(a) provided:
(2).
(a).Order 3(d) of the Orders made 4th October 2007 shall continue until the commencement of school in 2010.
Order 10 provided:
(10).That all previous orders relating to the said child be discharged save for Order 3(d) of the Orders made 4th October 2007 which is discharged as and from the commencement of school in 2010.
Order 3(d) of the orders of 4 October 2007, provided:
3.That the child live with the Father …:
…
(d)Once Order 3(a) and (b) has been complied with for a period for three (3) months out of a two week rotation to fit in with the Father’s work roster as follows:
a. From 4.00 p.m. Friday to 8.00 a.m. Monday in the first week; and
b. From 4.00 p.m. Friday to 8.00 a.m. Tuesday in the second week;
Read alone, those orders seem to provide for the continuation of the split-week arrangement through until the beginning of the school year 2010. Whereas, in paragraph 25 of his reasons, quoted above, Jarrett FM said:
25.…what should happen is that the current arrangements should remain until the commencement of the upcoming Queensland gazetted school holidays and thereafter the father’s proposal for holiday time and then week-about with changeover to take place each Friday upon the commencement of school in 2010 should be implemented. … (emphasis added)
In considering this argument, orders about school holidays should also be taken into account. Orders 2(c) and 2(d) of the orders of Jarrett FM provided:
(2).That the said child live with each of his parents for equal periods of time as follows:-
…
(c).With the Father for the first half of the … the Christmas school holidays in odd numbered years and the second half in even numbered years;
(d).With the Mother for the second half of the holidays referred to in 2.3 hereof in odd numbered years and the first half in even numbered years;
Even so, arguably the orders are internally inconsistent, with regard to the Christmas holidays just gone, making both a shared Christmas holiday arrangement and a continuation of the split-week arrangement under the October 2007 orders, until the beginning of the school year 2010.
However, I think the argument that the orders, taken together, are inconsistent with the reasons, is weaker, as I think the reasons explain any apparent inconsistency.
But, in any event, even if there is inconsistency, the period has passed and the school year 2010 started. The orders no longer disadvantage or aggrieve the mother.
Moreover, any inconsistency in no way undermines Jarrett FM’s consideration of the competing proposals of the parties for shared-care once the 2010 school year began. On his reasons in relation to that consideration, his conclusion was well open.
Should there have been orders in respect of interstate travel?
As seen earlier, what the learned Magistrate said of this was:
36.In relation to the other issues, there seem to be really no other issues save for perhaps the question of whether interstate travel ought to be included in the orders that the mother seeks about travel arrangements. I accept the submissions of the father, that there does not need to be any particular orders about interstate travel. …
In oral submissions, the mother says that she thought that the orders prepared after the matter was stood down (as also earlier seen) included provision covering interstate travel. However, she does not apply that this court receive, as further evidence, any material to establish that the term of the order was other than as intended by all and thus the proposition is not one with which I can deal.
The only other matter, to which she points, is that the orders include a heading “Overseas and interstate travel”, yet no orders about interstate travel follow. There is no merit in the point. The Federal Magistrate clearly intended that there be no order about interstate travel.
Did the father have to show that the earlier orders ought be changed?
In this regard, Jarrett FM said:
19.Both parties agree that the orders made in 2007 ought to be changed and neither party sought to agitate a Rice & Asplund type argument. I raise that issue because of the way in which the mother’s submissions were framed. It was said by her and on her behalf in submissions that the current orders are sufficient and that no reason has been demonstrated in the evidence for there to be a change.
20.In my view, that is the wrong test. The test is what are the best orders that can be put in place for [A] having regard to the evidence? What orders are in his best interests? To approach it in any other way is to really revert to the suggestion that there is a status quo and that there is some onus on one or other of the parties to demonstrate some fact that means that the status quo ought to be set to one side.
The correctness of what the learned Magistrate said in the above paragraphs, about the positions taken by the parties, was not challenged before me and thus, while the mother had argued that continuation of the pre-existing arrangement was in the child’s best interests, the father was not called upon to carry any onus arising from the mere fact of the pre-existing orders.
In any event, the Federal Magistrate accepted that evidence showed need for the change, and it was well open to him to so find.
Are there errors in the orders about A spending time with each parent for that parent’s birthday?
The orders provided:
(2).…
(i)That the child spend time with each parent on their respective birthday from 9.00am to 5.00pm save that the parents shall forgo time on their birthday when exercising time pursuant to 2.3 hereof;
The mother’s birthday is in close proximity to Christmas day. Each alternate year, the child is with the father on Christmas holidays at that time. The complaint is thus that the child spends time with the father on the father’s birthday each year, but, the mother is unable to have him spend time with her on her birthday, in alternate years.
Jarrett FM clearly preferred the father’s proposal for holiday time. A necessary consequence (if the father was to have uninterrupted Christmas holiday time) was that of which the mother complains.
But, of itself, that consequence does not demonstrate error.
Further, this is another area in relation to which, it seems, the parties agreed on the terms of orders to give effect to the Federal Magistrate’s findings.
Was the mother unfairly criticised?
In paragraph 2 of his reasons, Jarrett FM said:
2.Both of these parents have attended on a parenting orders program, or a post-separation parenting course and the mother, in one of her affidavits, gives extensive evidence of the things that she says she learned from the course. If she indeed learned those things, and could apply them, then in my view she would not be here. It is as simple as that.
The mother complains that while Jarrett FM was critical of her, he did not criticise the father, and may even have been mistaken about which of the parties had given extensive evidence of what that party had learned from a parenting course. The mother submits in her written summary:
3.Federal Magistrate Jarrett paid particular attention to the mother’s affidavit in relation to a parenting course both parents were advised to attend by him through Relationships Australia. He stated that, “If the mother did indeed learn those things, and could apply them, then in my view she would not be here. It’s as simple as that.”
The father prepared an extensive affidavit of what he had learnt during the Positive Parenting course through Relationships Australia and how to apply this to the current conflict affecting our parenting relationships, however this was given no creed by Federal Magistrate Jarrett. …
I see no reason to find that the Federal Magistrate was in error about which party’s affidavit was as he described.
I also do not accept that Jarrett FM was critical only of the mother. He said:
1.… [A] has two parents who love him very much but in my view, they cannot see the wood for the trees. They say all of the right platitudes but neither act in the way in which one would expect them to act if they really understood what it was that they were saying.
…
5.In my view, these are two parents who simply want their own way. The evidence of each of them gives that away. Neither was an impressive witness. The father could not answer a straight question with a straight answer but rather was at pains to ensure that he gave an answer which best suited his case. He needed to be directed to answer very simple questions on a number of different occasions. The mother was no better. She was argumentative and, again, at pains to put across her side of the story irrespective of the question that was asked of her. Neither was an impressive witness.
6.Both sets of affidavits relied upon by the parties, again, do not really assist in this case. They are replete with reference to the parties’ beliefs and feelings without setting out in any way, shape or form the facts upon which those beliefs and feelings are based. …
In any event, his Honour’s observations here discussed seem, at most, a preface to his Honour’s consideration of the question of parental responsibility. As seen, that was decided in accordance with the request of each party.
Conclusion
Having thus found no merit in any of the grounds or arguments raised on appeal, I dismissed it.
I deferred ruling on the mother’s application about transcript, in case it appeared transcript was necessary to argument. It did not prove so. I will dismiss that application.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.
Associate:
Date: 2 March 2010
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