Feeney and Wilkinson
[2007] FamCA 372
•30 April 2007
FAMILY COURT OF AUSTRALIA
| FEENEY & WILKINSON | [2007] FamCA 372 |
| FAMILY LAW – APPEAL FROM DECSION OF FEDERAL MAGISTRATE – Application by mother to have set aside interim parenting orders made in a Duty List – whether or not Federal Magistrate gave sufficient reasons for ordering that the child would live with both parties on a significant and substantial shared care basis pending the final hearing |
| Family Law Act 1975 (Cth) Goode v Goode (2006) FLC ¶93-286 |
| APPELLANT: | Ms FEENEY |
| RESPONDENT: | Mr WILKINSON |
| FILE NUMBER: | CAC 89 of 2007 |
| APPEAL NUMBER: | EA 23 of 2007 |
| DATE DELIVERED: | 30 April 2007 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | FAULKS DCJ |
| HEARING DATE: | 23 April 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 12 February 2007 |
| LOWER COURT MNC: | [2007] FMCAfam79 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Rees |
| SOLICITOR FOR THE APPELLANT: | Campbell and Co |
| COUNSEL FOR THE RESPONDENT: | Mr Nash |
| SOLICITOR FOR THE RESPONDENT: | Phelps Reid |
Orders
That the appeal against Order 2 made on 12 February 2007 by Federal Magistrate Brewster be allowed.
That the father’s application for parenting orders be remitted to a Federal Magistrate in the Federal Magistrates’ Court other than Federal Magistrate Brewster for directions and re-hearing of the interim parenting application.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will be for all publication and reporting purposes be referred to as Feeney v Wilkinson.
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 23 of 2007
File Number: CAC 89 of 2007
| Ms FEENEY |
Appellant
And
| Mr WILKINSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the mother against Orders 1 and 2 made by Federal Magistrate Brewster on 12 February 2007. The orders which were made in the proceedings between the mother and the father related to interim orders pending a final hearing of where the child of the parties would live and of what time he would spend with each of his parents.
The appeal is being determined by me as a single Judge pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (the ‘Act’).
Background
The Federal Magistrate’s Reasons for Judgment are brief and do not set out the history of the parties. However I understand the following history to be reasonably uncontroversial.
The father was born in 1971 and the mother was born in 1978. Both parties are public servants. They commenced cohabitation in approximately 1996 or 1997, although no factual issue depends upon the date, and married in 2002. The parties separated in October 2005. In May 2006 the child of the parties was born.
After his birth, the child lived primarily with his mother. The father was invited to the mother’s home each workday evening to spend a couple of hours with him, and the parties both spent extensive time during weekends with him.
In November 2006, when the child was six months old, the mother returned to work four days a week. Since this time, the child attended day-care while the mother was at work, and the father attended day-care at lunchtimes to spend time with him. The father also asserted, and it appears conceded by the mother that he had overnight care of the child on 2, 15, 21, 22 and 23 November 2006.
In December 2006 the parties agreed to a shared care regime for the child in which the child would spend three days and nights with each parent and then two days and nights with each parent.
On 7 January 2007 the mother withdrew her support for the regime.
The father filed an application for parenting orders on 18 January 2007 seeking that the child “…live with each of his parents on an equal shared basis with one half of the week with the mother and the second half with the father.”
The mother in her response, which is date stamped 13 February 2007 but appears to have been filed in Court on 12 February 2007, sought that the child live with her and have only daytime contact with his father until he turned 18 months old on a daily weekday basis for a period of two hours and for six hours on Saturdays.
On 12 February 2007 Brewster FM made orders about where the child would live pending a final hearing of the matter in August 2007.
On 21 February 2007 the mother filed an application for a stay of the orders made by Brewster FM on 12 February 2007, and the appeal was filed in the Eastern Appeals Registry on 22 February 2007.
On 5 March 2007 Brewster FM granted the stay, suspending the operation of Orders 2(b) and (c) of his interim orders pending the disposal of the appeal, and provided for the father to spend additional time with the child each Saturday from 10 am until 4 pm.
On 20 March 2007 the matter came back before Brewster FM on the father’s instigation, to provide additional contact to him each day when the child was at day-care between 11.15 am and 12.15 pm, vacating the directions hearing which was scheduled for 14 May 2007, and making other directions for the final hearing of the matter.
On 21 and 28 March 2007 the matter came before Finn J for directions to prepare the matter for the hearing of the appeal.
On 4 April 2007 the mother filed an application seeking leave to adduce further evidence at the hearing of the appeal.
On 23 March 2007 the matter came on before the Full Court for the hearing of the appeal.
Application to Adduce Further Evidence
On 4 April 2007 the mother filed an application seeking leave to adduce further evidence. However I was advised by Counsel for the mother on the day that the application was no longer being pursued.
The Grounds of Appeal
In her Notice of Appeal filed 22 February 2007 the mother set out the following grounds of appeal:
1.That His Honour gave insufficient reasons for his decision.
2.That His Honour failed to have regard to the provisions of Section 60CA of the Family Law Act (1975).
3.That His Honour failed to have regard to the provisions of Section 60CC of the Family Law Act (1975).
4.That His Honour failed to have regard to the child’s age and developmental stage.
However I was advised by the mother’s Counsel that only Ground 1 was pursued at the hearing on the issue of the sufficiency of reasons.
Orders Sought
The mother sought that in the case that the appeal was successful, the following orders be made:
1.That an Expert be appointed to provide evidence in relation to the issue of breastfeeding a baby in person or otherwise and the effect of separation of this child from his mother for periods of time.
2.EITHER That the matter be remitted for re-hearing OR the Orders as sought by the Appellant Mother in her Response as Respondent in the original proceedings be made.
The issue of breastfeeding was not pursued at the appeal hearing and so the mother’s Counsel did not seek that Order 1 in her proposed Orders be made.
The relevant orders which had been sought by the mother in the original proceedings were those sought in her response filed in Court on 12 February 2007 and date-stamped 13 February 2007:
1.That the parents have equal shared parental responsibility for the care for the child.
2.That the child lives with his mother.
3.Until the child is 18 months old he shall spend the following time with his father:
a.On every weekday, when the mother is not working, between noon and 2pm;
b.Subject to Order 4c. below, on Saturdays between 10am and 4pm;
4.Until the child is 18 months old, and in the event that the mother returns to work, taking Wednesdays off then the father will spend the following time with the child:
a.From noon until 2:00pm on Mondays, Tuesdays, Thursdays and Fridays when The childattends childcare;
b.Subject to Order 4c. below, each Saturday between 10am and 4pm;
c.If the mother wishes to be away during the above periods, she shall provide the father 7 days notice in advance, and make-up time will occur from 10am to 4pm on the Sunday of the following weekend.
In response, the father sought that the appeal be dismissed.
The Judgment of the Federal Magistrate
In a short judgment of some six paragraphs, the Federal Magistrate determined that the parties should have equal shared parental responsibility for the child, which although was not sought formally by the father, appears not to have been in dispute, and
2.THAT until further Order the child will live with the parties as follows:
a.For a period of eight weeks in the pattern 1 day with the father, 3 days with the mother, 1 day with the father, 3 days with the mother, 1 day with the father and so on.
b.After eight weeks on the pattern 2 days with the father, 3 days with the mother, 2 days with the father, 3 days with the mother and so on.
c.Thereafter with each party on a 3 day about basis.
This determination was not in accordance with either the application of the father or that of the mother.
Insufficient Reasons
A judicial officer is required to give reasons for their decision. As McHugh JA (as he then was) stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279,
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
Soulemezis v Dudley (Holdings) Pty Ltd (supra) and other earlier authorities were approved by their Honours on the Full Court in Bennett and Bennett (1991) FLC ¶92-191. In Bennett (supra) it was stated, at page 78,267,
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
The nature of the proceedings themselves will also impact on the requirement for reasons. Their Honours in Bennett (supra) at page 78,266 approved the following statement by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8, who stated at page 18,
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: --
the appeal court is unable to ascertain the reasoning upon which the decision is based; or
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.
Their Honours (in Bennett) went on further to say, at page 78,267
In our opinion, if adequate reasons are not given in a custody proceeding, it becomes impossible for an appellate court to properly examine the decision appealed from.
Their Honours also commented, at page 78,267
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial. …The defect in her Honour’s judgment, as we see it, was that …she moved directly to a conclusion without indicating the process of reasoning which led her to that conclusion. Such a process of reasoning could have been given in a relatively short compass, and would have enabled the Court to have examined the validity of her Honour's reasoning.
We would not, for example, wish to discourage the giving of ex tempore judgments (although this judgment was not an ex tempore judgment). There is no reason why, in an ex tempore judgment in a custody matter, a Judge cannot shortly examine the various factors set out in sec 64(1)(bb) and other relevant matters, and set out the process of reasoning leading to a conclusion as to custody or access as the case may be.
The mother appealed against the orders of the Federal Magistrate both in relation to the issue of equal shared parental responsibility and in relation to his allocation of time that the child would spend with his parents. The father did not formally seek orders about equal shared parental responsibility for the child, however he sought that the child should live with both of his parents on an “equal shared basis”. It appears from a reading of the transcript that there was no argument between the parties that there should not be equal shared parental responsibility.
My questions to Counsel for the mother at the commencement of the hearing of the appeal confirmed that equal shared parental responsibility was not in issue.
Preliminary Comments
I have significant sympathy for his Honour’s position in this matter. It is clear that the application arose for determination in a busy Duty List and it is also clear that the issues for determination between the parties on an interim basis at least were confined. It seems clear that his Honour saw his role as being to put in place arrangements which would enable a continuation (or perhaps the development) of a relationship between each of the parents and the child until such time as a full consideration of all relevant matters could be undertaken. He identified during the course of the hearing (and no one disputed) that the primary basis for the abandonment of what had been an agreed position between the parties was, on the part of the current appellant, the reasons set out in paragraph 22 of her affidavit dated 13 February 2007.
His Honour sought to build a foundation of a relationship with parental responsibility between the parents as appears from paragraph one. Having found that it was appropriate that there should be equal shared responsibility his Honour correctly moved to a consideration of whether in the circumstances the child’s spending equal time with each parent was in the child’s best interests.[1]
[1] Paragraph 1 of Judgment of 12 February 2007
His Honour made reference to the decision of the Full Court in Goode v Goode[2] (‘Goode’) but, for whatever reason, failed to follow in any obvious way the prescriptions there set out.
[2] (2006) FLC ¶93-286
His Honour (as appears from subsequent proceedings before him in relation to the stay application by the mother) perhaps correctly identifies that the prescriptive nature of the legislation (the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006) is not always helpful in circumstances where interim determinations are undertaken in busy Duty Lists by litigants who have perhaps not many issues in dispute between them. Nevertheless if this is so, it is a problem with the legislation itself and it does not enable the trial Judge to disregard the legislation simply because it is inconvenient or even overly prescriptive.
In my opinion their Honours in Goode (supra) have set out authoritatively and clearly the process that must be undertaken to comply with the legislation as it is currently drafted and while this imposes delay and complexity on interim proceedings, the resolution of this is a matter for the legislature.
It is clear from their Honours’ judgment in Goode (supra) that it is not necessary that there should be detailed examination of every section of the Act in the order in which their Honours set them out. The way in which a case is put to the trial judge will in large measure dictate in many cases, a comparatively summary way of approaching the elements identified in Goode.
Nevertheless, if his Honour had followed Goode v Goode (supra) it may have simplified the process by which he came to a final conclusion. In particular, his Honour failed to consider (at least overtly) the competing proposals of each of the parties.
The Federal Magistrate’s Reasons
Putting that matter to one side for a moment, it appears from paragraph 3 of his Honour’s judgment that the learned Federal Magistrate, having acknowledged that the parties had previously reached agreement about an arrangement for shared care, then acknowledged that “there were problems however with the arrangements proposed by the father”.
He then comments as follows:
The problems are set out in paragraph 22 of the mother’s affidavit.
Paragraph 22 of the mother’s affidavit reads as follows:
(a)I admit that I ceased the trial arrangement on 7th January 2007. Annexed hereto and marked “A” is a copy of the letter from my solicitors, Campbell and Co dated 10 January 2007 to the father’s then solicitor, Anne Marie Proctor which sets out some of the reasons for ceasing the trial arrangement. In addition to these reasons I had found that:
a.I was expressing over half the child’s feeds using the pump and I was unable to maintain my supply this way.
b.The child needs to be with me overnight to maintain my supply of breastmilk.
c.The child did not seem to want to stop breastfeeding when he was with me during the trial. I was concerned that he missed the experience when he was away from me overnight.
d.The child was increasingly unsettled on his return to me. I was concerned that the child was suffering from the continual changes in his routine.
e.Due to the poor communication between the father and myself I had no idea of what the child’s routine was with the father.
f.The father had still not made any appointments for mediation with the Family Relationship Centre.
There are a number of reasons set out in paragraph 22 of the mother’s affidavit. These include those contained in a letter from her solicitors to those of the father dated 10 January 2007. In summary these were: the effect that the arrangements have had “on breast-feeding the child, the unsettling behaviour exhibited by the child with so much change of routine at such a young age and her research of expert advice which confirms that such overnight contact is not appropriate for babies of this child’s age”. It then sets out a regime that the mother proposes which would include daily time for the child with the father and then comments about professional advice that she has received from the Family Relationships Centre and apparently another source that “being away from his mother at 8 months of age was not good for the child” and that “19 – 24 months was a more appropriate time for a child to be spending a night away from his primary carer, particularly when breast feeding was involved”. She says through her lawyer that she “would like to continue to provide the child with the health benefits of breast-feeding as long as possible”.
In addition she says in paragraph 22 (a) a. that by expressing over half of the child’s feeds with a breast pump that she was unable to maintain his supply, and b. that the child needed to be with her to maintain her supply of breast milk, and c. that the child did not seem to want to stop breast feeding and she was concerned that he missed the experience when he is away from her over-night, and d. that he was increasingly unsettled on his return and that because of the poor communication between the father and her she had no idea of the routine that the father engaged in with the child, and finally that the father had not made an appointments for mediation with the Family Relationship Centre.
Some of these reasons relate to professional opinions about the benefits of breast feeding; some relate to the maintaining of the supply of breast milk; some relate to communication and one complains of a failure to make an appointment for mediation.
It is difficult to detect precisely which it was that caused his Honour to be able to say (having made reference to the problems as set out in paragraph 22 of the mother’s affidavit)[3] “For those reason [sic] I think that equal shared care at this point is not appropriate but I do felt that it is appropriate a little bit down the track”.
[3] Paragraph 3 of Judgment of 12 February 2007
It could be that his Honour took all of those reasons into account to come to the conclusion he did, but this is doubtful because he concludes the paragraph with these words
Having regard to the matters contained in paragraph 22 I propose to make orders that will allow overnight contact but for the time being overnight contact will not exceed one night.
If his Honour was accepting the reasons set out this would have precluded the arrangement his orders created. If his Honour had accepted all of criticisms of the father contained in paragraph 22 of the mother’s affidavit, he may have doubted the efficacy of equal shared care. It might even be inferred from his Honour’s reference to the paragraph that he at least formed the view - so far as the mother was concerned at least – that equal shared care was unlikely to work.
However none of this follows logically from his Honour’s generalised statement that it was the matters in paragraph 22 that lead him to a conclusion that the existing arrangement should cease.
Still less does it explain how his Honour moved from a position of rejecting the existing arrangement (while maintaining that it would be appropriate “a little bit down the track”) but inserting a new arrangement which neither parent had sought in his or her application or apparently during the hearing. Moreover, his proposal had not been put to either parent’s lawyer for comment prior to his making the orders. In the ordinary course of events this would be the appropriate step to take.[4]
[4] U v U [2002] 211 CLR 238
During the course of submissions before me on appeal it was argued that his Honour’s suggested orders fell within the range of results sought by each parent and that therefore it would be reasonable to assume that either or both of them had contemplated other alternatives to the polarity of their respective positions, hence precluding the necessity for the judicial officer to put his or her proposed orders to the parties. In many cases, this would be reasonable. However the vehemence with which the mother had maintained that there should be no overnight contact at all would have made it appropriate to put the arrangement that his Honour eventually imposed to both parents.
I accept further that perhaps consistent with the mother’s position in the matter the arrangements his Honour put into place would apply until it was likely that the child would cease to be breast fed. However whether or not his Honour’s arrangements were sensible; whether or not they were the “right” arrangements is not the issue. His Honour failed in my opinion, adequately to identify the path of his reasoning to reach the conclusions he did, as is required by authorities such as Bennett (supra). Moreover, that pathway is not discernible by ‘implication’.
Accordingly in my opinion the appeal must succeed and the matter should be remitted for further determination.
I am concerned in this matter that a further interim hearing may postpone the final hearing which was scheduled by Federal Magistrate Brewster for some time in August 2007.
Counsel for the mother sought that I should impose orders on an interim basis pending the final hearing. In my opinion that is an inappropriate course of action. It is not clear to me that the evidence before me would inevitably provide me with enough information to reach an appropriate conclusion even if I were minded to do so. It would seem from the evidence before me that the situation in relation to the child is changing and will change further before the final hearing is reached. It would also seem that it is likely (although there is no evidence to suggest one way or the other) that the situation has changed since his Honour made the orders in February. For practical reasons therefore it is inappropriate that I should impose orders in this matter on an interim basis.
Finally even if all of these matters were not substantive impediments to my doing what Counsel for the mother sought, my determination in the matter may only be capable of appeal to the High Court of Australia.
It is more appropriate that the matter should be remitted to a Federal Magistrate who can make such further determination as the parties seek with the possibility of appeal to this Court.
I have requested that the Federal Magistrates Court makes arrangements which would enable another Federal Magistrate to deal with any interim question as soon as practicable and I understand this can be accomplished. The matter might then proceed to a final hearing on the date previously provided before another Federal Magistrate.
In conclusion I should like to express my view that it is easy to be critical of judicial officers operating under pressured and busy circumstances for not apparently providing adequate reasons for the determinations they reach. The effect of my decision may be to cause judicial officers in Duty Lists to take more time to do what the legislation now requires them to do. This may have the undesirable consequence that there will be delays in matters being dealt with by the Federal Magistrates Court or by the Family Court of Australia. That would be seen by most people to be an undesirable consequence but may be the inevitable consequence of the changes that have been effected by the amending legislation.
In this matter given that the error was his Honour’s it seems that it is appropriate that both parties should have certificates under the Federal Proceedings (Costs) Act 1981. I will order accordingly.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 30 April 2007
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