FLETCHER & PRINCE - [2011] FamCAFC 170

FAMILY COURT OF AUSTRALIA

FLETCHER & PRINCE

[2011] FamCAFC 170

FAMILY LAW – APPEAL – Discretion – Challenge to the orders of a Federal Magistrate with respect to the time the child is to spend with the father whilst the father resides overseas – Not established that the learned Federal Magistrate erred in the exercise of his discretion.

FAMILY LAW – APPEAL – Challenge to the decision of a Federal Magistrate to refuse to make an order for the child to spend time with the paternal grandparents whilst the father resides overseas – Challenge to the adequacy of reasons provided for declining to make such an order – In circumstances where the mother had made concessions at trial with respect to facilitating time spent between the child and the paternal grandparents, and where the issue had assumed significance in submissions, the learned Federal Magistrate’s reasoning on this topic was inadequate – Established that the learned Federal Magistrate erred in concluding that there was no jurisdiction to make an order with respect to the child spending time with the paternal grandparents, who were not parties to the proceedings – Appeal allowed in relation to the learned Federal Magistrate’s refusal to make an order that the child spend time with the paternal grandparents – Where the mother asserts she has relevant further evidence on the issue – Issue remitted for determination by a Federal Magistrate other than the learned Federal Magistrate.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
MRR v GR (2010) 240 CLR 461
Wen & Thom [2010] FamCAFC 81

APPELLANT:

Mr Fletcher

RESPONDENT:

Ms Prince

FILE NUMBER:

SYC

5495

2009

APPEAL NUMBER:

2011

DATE DELIVERED:

18 August 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

3 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 March 2011

LOWER COURT MNC:

[2010] FMCAfam 268

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Givney

SOLICITOR FOR THE APPELLANT:

Maclarens Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Maurice

SOLICITOR FOR THE RESPONDENT:

John de Mestre & Co.

Orders

The appeal is allowed.
The paternal grandparents [Mr and Mrs I] are joined as parties to the proceedings.
The application of the father that the child [J] spend time with the paternal grandparents when he is residing outside the Commonwealth of Australia be remitted for hearing before a Federal Magistrate other than Federal Magistrate Scarlett.
The Court grants to the Appellant Father 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 Father in respect of the costs incurred by the Appellant Father in relation to the appeal.
The Court grants to the Respondent Mother 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 Mother in respect of the costs incurred by the Respondent Mother in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Fletcher & Prince is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 37 of 2011
File Number: SYC 5495 of 2009

Mr Fletcher

Appellant

And

Ms Prince

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 29 March 2011 Mr Fletcher (“the father”) appealed against orders made in parenting proceedings between himself and Ms Prince (“the mother”) by Federal Magistrate Scarlett on 2 March 2011.
The orders of the learned Federal Magistrate which gave rise to the father’s appeal related to the time to be spent by the father with the child of the parties’ former relationship, the child J, who was born in October 2001.
The Federal Magistrate’s orders essentially provided that, whilst the father was resident in the United States of America, the child spend time with the father in the United States for the whole of the term 2 school holiday period in 2012 and each even numbered year thereafter, the whole of the term 3 school holiday period in each year, and half the Christmas/January school holiday period in each year.
The father did not challenge the learned Federal Magistrate’s orders with respect to the term 3 school holiday period, or the substance of his Honour’s orders with respect to the Christmas/January holiday period, but sought that the whole of the term 1 school holiday period be spent with him and, it seems reasonably apparent, part of the term 2 school holiday period in each year.
The father also sought that orders be made for the child J to spend time with Mr and Mrs I (“the paternal grandparents”) on the basis defined by him in his Notice of Appeal.
The mother resisted the father’s appeal and sought to maintain the orders of the learned Federal Magistrate.
At the date of the judgment of the learned Federal Magistrate, the father was ordinarily resident in the United States, and was likely to continue to be so, at least until 2012. The mother lived in Sydney. Each of the parties had re-partnered.
Since the separation of the parties, in either 2004 or 2005, the child had primarily lived with the mother, but spent time with the father. The time the child spent with the father was circumscribed after the father moved to reside in the United States in September 2009.
Before the learned Federal Magistrate, there was agreement between the parties that the child’s primary residence should remain with the mother in Australia, and that he should spend time with his father on a regular basis.
There were two issues of substance requiring determination before the learned Federal Magistrate. The first was the frequency with which the child should spend time with his father in the United States whilst the father was there.
The mother essentially sought to continue interim orders made on 22 March 2010, which provided that whilst the father was living in the United States the child would spend the whole of the term 2 school holidays in even numbered years, the whole of term 3 school holidays in each year and half of the Christmas/January school holidays in each year with the father in the United States. As is not in doubt, the learned Federal Magistrate made final orders in the terms of those interim orders as the mother sought.
The father’s case before the learned Federal Magistrate was that the child should spend the term 2 school holiday period with him in each year and that, in addition, he have the whole of the first term holiday period every year.
The second issue before the learned Federal Magistrate concerned the time, if any, which the child should spend with the paternal grandparents. The father sought that the child spend one weekend from Saturday to Sunday in each month with the paternal grandparents whilst the father was living in the United States. The mother opposed any order for time to be spent being made in favour of the paternal grandparents. The learned Federal Magistrate declined to make any order for the child to spend time with the paternal grandparents.

The grounds of appeal

The various grounds of appeal articulated in the father’s Notice of Appeal agitate two complaints. The first is that the learned Federal Magistrate erred by declining to order that the child spend time with the father in the first term school holiday period and by only ordering that the child spend the term 2 school holiday period with the father in each alternate year.
The second complaint of the father was that the learned Federal Magistrate erred by failing to order that the child spend time with the paternal grandparents on a monthly basis whilst the father was living in the United States.

The challenge to the orders for time to be spent with the father in the United States

Grounds 1, 2 and 6 of the father’s Notice of Appeal were identified by his learned Counsel as articulating this challenge. Those grounds provided:
1.The Learned Federal Magistrate in finding that “it is clearly in [J]’s best interests to have a meaningful relationship with each of his parents” failed to consider at all the impact on that relationship of [J], not having face to face [or physical] time with his father from January to September in every year ending with an off number whilst his father lived in the United States of America.
2.The Learned Federal Magistrate failed to give reasons or adequate reasons as to why [J] should not have face to face time with his father from January to September in every year ending with an odd number whilst his father lived in the United States of America.
…
6.The Learned Federal Magistrate failed to consider the fact of the mother’s resistance to the father [and or significant persons in [J]’s life] having time with [J] other than strictly in accordance with court orders.
The submissions in support of those challenges were succinctly and cogently articulated by Counsel for the father in his written Summary of Argument, and the Court can do no better than to reiterate them in the terms in which they were thus expressed. Counsel for the father submitted:
1.The Federal Magistrate at paragraph 76 of the Jugdment stated, “It is clearly in [J]’s best interest to have a meaningful relationship with each of his parents. The Family Report shows that he has a warm and loving relationship with both of them”.
2.The Family Consultant provides a vivid description of the interaction between the father and [J] at paragraph 23 of his report
3.On interview the child expressed enthusiasm for the times that he had with his father and partner as follows:-
“[J] says that he misses his ‘Mum’ when he spends time with his father. However, he said, “I hardly ever get to see [Mr. Fletcher] and [Ms C] and when I’m with them it seems like two days.”
4.The counsellor says, “This comment was referring to the fact that when [J] spends time with his father and [Ms C] he’s having so much fun that the time goes very quickly.”
5.The Family Consultant at paragraph 26 reflects on the need to balance the child’s time with [the father] against the fact that the mother is the primary carer and requires time with the child outside of structured activities such as school and have unstructured leisure time. However this must be considered in the light of the statement, “As [J] and his father have a strong relationship, [Mr. Fletcher’s] absence does have an effect on [J] as is evidenced by him being unsettled after spending time with [Mr. Fletcher] and returning to live with his mother.”
6.It is conceded that the counsellor’s views are inconsistent with the recommendations in that the counsellor recommends the then existing Orders made in March 2010 that provided for the June holidays to alternate each year. The result of that Order means that the child does not have time with his father between January at the latest and September at the earliest each alternate year.
7.The counsellor was not cross-examined however it is submitted that this is not crucial to the father’s appeal as it is submitted that it is so obvious that the child would likely grieve in circumstances where he is simply unable to see his father for a period of nine months.
8.It is submitted that it is simply fundamental to the child’s relationship with his father, that he have time with him within that nine month period referred to. The orders sought by the husband in the appeal seek to address that anomaly.
9.In pressing the argument that there is no obvious pathway to the Federal Magistrates decision, the structure of the judgment gives a brief outline of the submissions and then moves to a circumstance of referring to the Family Report and consideration of the court’s role in finding that a counsellor’s report is simply part of the overall evidence. However the Federal Magistrate does not consider at all the inconsistency of the positive findings of the child’s relationship with the father and the fact that he will not see his father for nine months.
Counsel for the mother submitted that the learned Federal Magistrate’s orders fell within the ambit of a reasonable exercise of his discretion. Unsurprisingly, Counsel for the mother reminded the Court of the decisions of the High Court in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 at 627 and House v The King (1936) 55 CLR 499.
Counsel for the mother relied significantly on the reality that the father had elected to reside in the United States from September 2009 until potentially early 2012, and that the learned Federal Magistrate had given proper weight to the evidence before him in relation to the impact upon the child J of making orders for time to be spent as sought by the father. It was submitted in that regard:
16.The effect of the orders sought by the Appellant would be that the Respondent Mother would have only one week of holiday time with the child between January and December in any year and 3 weeks at Christmas time. Whilst it may be argued that [J] lives with the Respondent Mother outside of school holidays the child would lose the benefit of meaningful recreation with his mother his [sic] during school holidays. There was absolutely no evidence before the Court that this would be of benefit to the child.
It was further submitted in that regard:
18.The Federal Magistrate found that the orders had to balance the child’s need to spend a significant amount of time with his father in either Australia or America because he misses his father but must also give the Respondent Mother some leisure or holiday time with her son. Visits to America to spend time with his father were holidays for [J] but he needed holiday time with his mother as well
Counsel for the mother relied upon the evidence of the Family Consultant who prepared the Family Report which was before the learned Federal Magistrate. The author of the report was not required for cross-examination. It was submitted that the orders made by the trial Judge were, at least in this context, consistent with and supported by the Family Consultant’s recommendations.
Ultimately, the submission of Counsel for the mother was that the learned Federal Magistrate had not failed to have regard to any relevant fact or circumstance in the exercise of his discretion. Nor had his Honour had regard to irrelevant facts or circumstances. No error of principle was submitted to have vitiated the exercise of his Honour’s discretion. Nor was it based upon erroneous findings of fact. The statutory pathway discussed by the High Court in MRR v GR (2010) 240 CLR 461 appears not to have been followed, about which no-one complains.
It was conceded by Counsel for the mother that his Honour could permissibly have made orders in the terms sought by the father, but that making orders in the terms which he did, did not involve appealable error.
The learned Federal Magistrate clearly recognised the difficulties arising from the father residing in the United States whilst the child and his undisputed primary carer lived in Australia. The learned Federal Magistrate commenced his consideration of the undoubtedly difficult issue of the time the child should spend with his father whilst the latter resided in the United States in the following terms:
83.If [J]’s time with either parent were to be significantly reduced, it would cause him a great deal of distress, because he clearly loves them both and wants to spend time with them. It is significant that both this application and the earlier proceedings in this Court in September 2009 arose because the father was applying for orders that would permit [J] to spend time with him in the United States and the mother was not allowing him to go. It must be clear that [J] wants to spend time with his father in the United States and appears to have a good time when he goes. This situation is likely to continue until well into 2012. Whilst the father is living and working in the United States, it is in [J]’s best interests for him to spend a significant amount of time with him there. He would most likely be very unhappy if he were not allowed to travel overseas to spend time with his father.
His Honour rejected any suggestion that the child being “unsettled on his return” from the United States indicated “a poor quality of care by his father” during the times he was with him in the United States. The learned Federal Magistrate recorded that there was no evidence suggesting any likelihood of the child not being returned to Australia at the conclusion of any time which he spent with the father in the United States.
The learned Federal Magistrate clearly accepted the unchallenged evidence of the Family Consultant that it was important that J spend time with his father in the United States.
For reasons which his Honour detailed, his ultimate decision was not influenced by any practical difficulties and expenses associated with the child spending time overseas with his father as frequently as the father sought. Nor was his Honour’s ultimate decision ultimately influenced by any relevant lack of “capacity” to provide for the child’s needs during such times.
Having identified a number of factors which did not assume significance in the exercise of his discretion with respect to the time the child should spend with his father in the United States, the learned Federal Magistrate recorded that:
96.I have been guided by the Family Report in this matter. Neither party sought that the Family Consultant should be cross-examined about the contents of the Report or the recommendations in it. I have not only considered the Family Report, because it is only a part of the evidence before the Court, albeit an important part of the evidence.
His Honour then recorded, correctly there is no doubt, that he was not bound to accept the expert opinion evidence of the Family Consultant, and was obliged to exercise his discretion by reference to the evidence before him, and the statutory provisions which were relevant to the issue which he was required to determine.
Ultimately, the learned Federal Magistrate concluded that:
99.In my view, the regime of parenting orders set out in the earlier decision of 22^nd March 2010 still provide an appropriate framework for setting out the father’s time with [J] whilst he is living in America. It is clear that this is the father’s intention for at least the next 15 months. He may be able to obtain an extension of his visa, but there is no evidence one way or the other about that.
His Honour further clarified:
101.Whilst the father is living out of Australia he would like more time with [J], but if that were the case, it would cut further into the mother’s holiday time with the child. He needs to spend leisure time with his mother as well as his father.
As is not in doubt, the learned Federal Magistrate could not make orders which pleased both parents. The best interests of the child were the paramount consideration. His Honour carefully balanced the competing considerations which the evidence before him revealed.
Nothing to which this Court has been referred on behalf of the father establishes that his Honour failed to have regard to any relevant consideration. Nor does the evidence establish that his Honour gave excessive or inadequate weight to any relevant consideration.

The crux of the father’s complaint is that for the child not to spend time with him in the United States for periods up to nine months was incompatible with the best interests of the child. The Court cannot accept that to have been a finding which the learned Federal Magistrate should have made on the evidence before him. His Honour had the benefit of expert opinion evidence, which, at least implicitly, did not establish that separation of nine months duration would be inimical to the best interests of the child.
Counsel for the father did not cross-examine the Family Consultant to suggest a separation of such duration would be inconsistent with the child’s best interests. That is not said critically of Counsel for the father. Until recently, in cross-examination, competent Counsel did not ask questions the answers to which they did not know. It cannot be assumed that, had the father’s contention been put to her, the Family Consultant would have agreed with it. Indeed, logic suggests the contrary.
As is not in doubt from a balanced reading of the Family Consultant’s report, the major issue to which her attention was directed was the impact on the child of his parents’ competing proposals with respect to the time he should spend with the father in the United States. It is inconceivable that, had the Family Consultant concluded that the child’s interests would be best served by spending time with his father in the United States with the frequency sought by the father, her report would not have said so, or at least traversed that possibility.
Whilst, as is not in doubt, other conclusions may have been reasonably open to him, applying long-settled appellate principles, it has not been established that his Honour’s discretion miscarried. These complaints accordingly fail.

The challenge to the learned Federal Magistrate’s refusal to make an order that the child spend time with the paternal grandparents

The challenge to the learned Federal Magistrate’s refusal to make an order that the child spend time with the paternal grandparents whilst the father was resident in the United States were articulated in Grounds 3, 4 and 5 of the father’s Notice of Appeal, which provided:
3.The Learned Federal Magistrate fell into appealable error in failing to make an order that the paternal grandparents have time with [J] at times when the father lived in the United States of America.
4.The Learned Federal Magistrate failed to give reasons [and as such it is not possible to follow the pathway of reasoning] when determining [or failing to determine] that the paternal grandparents should not have time with [J] whilst the father lived in the United States of America.
5.The Learned Federal Magistrate failed and thereby fell into appealable error to order that the paternal grandparents have time with [J] notwithstanding that Federal Magistrates adoption of the Family Law report and the recommendation of such time.
As is not in doubt, the challenges thus articulated fall within two categories, the first being a challenge to the adequacy of the learned Federal Magistrate’s Reasons for Judgment, the second being the error asserted to have arisen from a failure to properly consider the child’s best interests.
Counsel for the father relied upon a number of matters for both the Reasons challenge and the challenge to the learned Federal Magistrate’s exercise of discretion.
It is convenient to commence with the Reasons challenge. The learned Federal Magistrate clearly recognised that the father was seeking an order that the child spend time with the paternal grandparents on a monthly basis whilst he was resident in the United States and that the mother opposed the making of such an order.
It is not in doubt that the learned Federal Magistrate’s reasons for refusing the father’s application that the child spend time with the paternal grandparents are found in the following paragraph of his Reasons for Judgment:
106.I am not satisfied that it is appropriate to make a parenting order in favour of the paternal grandparents. They are not parties, and they can always have made their own application. That said, it is clearly in the child’s best interests to spend some regular time with his grandparents.
It is common ground, and with respect sensibly so, that his Honour had jurisdiction and power to grant the relief sought by the father with respect to the paternal grandparents, notwithstanding that they were not parties to the proceedings, and that the learned Federal Magistrate’s refusal to do so was pursuant to the exercise of discretion.
Counsel for the father submitted that the learned Federal Magistrate was obliged, in the circumstances of this case, to elucidate the reasoning process which led him to his conclusion in greater depth than his Honour did. Reliance was placed upon his Honour’s acceptance that it was “clearly in the child’s best interest to spend some regular time with his grandparents” in support of the contention that more explanation for declining to so order was required than his Honour had provided.
As was not in doubt, the father, from as early as 15 July 2010, had sought an order that, whilst ever he was resident in the United States, the child spend time with the paternal grandparents one weekend in each month.
Counsel for the father referred the Court to the Family Report dated 22 March 2010 in which it was stated:
28.As [J] has spent a lot of time with his paternal grandparents in the past it is important their relationship continues and is supported by [Ms Prince].
Reliance was also placed upon the recommendation of the Family Consultant that:
It is recommended [J] spend from 9 am to 4 pm on one day, of one weekend per month, with his paternal grandparents. For the purpose of this arrangement [J] would be collected from home and returned to home by his paternal grandparents or [Ms C].
As is not in doubt, the Family Consultant having not been required for cross-examination on her report, that recommendation was unchallenged.
The paternal grandmother gave evidence before the learned Federal Magistrate. It was submitted by Counsel for the father that nothing raised in the course of cross-examination of the paternal grandmother precluded or militated against making an order that the child spend time with the paternal grandparents. In fairness, the Court does not understand Counsel for the mother to dispute that contention. Whatever the reality at trial, this Court has not been referred to any evidence of the paternal grandmother which was adverse to the claim that the child spend time with her and her husband.
Not surprisingly, Counsel for the father placed significant reliance upon a number of concessions made by the mother during the course of her cross-examination. These included:
MR GIVNEY: Now, in the family reports that’s before his Honour, there’s a recommendation about [J]’s paternal grandparents spending, I think, 9 until 5 on a weekend - - - ?---Yes.
- - - each month or thereabouts with him. Do you remember that?---Yes.
And, in terms of - just firstly in terms of which day or whether there is any issues about which day – what do you want to say about that – which day of the weekend I mean?---Saturdays are quite hard, because [J] always plays sports on Saturdays and parties seem to happen on Saturdays. Saturdays just seem quite difficult, but I have no issue with [J] seeing his grandparents. And they don’t work, so I would love to come to some sort of agreement with them.
and:
MR GIVNEY: Okay, thank you for that. But from your answers to Mr Maurice I understood you to say that you did not have a problem with him spending time with his parental grandparents?---Not at all.
Sunday would be much more convenient than Saturdays from your point of view because [J]’s sporting commitments?---Sundays, or I have offered Wednesday afternoons, because I know the grandparents are retired, so midweek is always good too.
Okay, but the concept of [name omitted] spending – [J], I’m sorry, spending time with his grandparents is not a problem with you?---No.
In cross-examination of the mother at trial, Counsel for the father then tried to ascertain the amount of time J had spent with the paternal grandparents:
MR GIVNEY: Okay. Now, during the course of this year when [J] has been in your care, do you remember how many times [J] has seen [Mrs I]?---I was thinking about that. I have offered [Mr Fletcher]’s parents quite a few times for visits. [J], when we’ve been with my mum and my mum has gone around to the shops, she has taken [J] to see his grandma at the takeaway shop a few times and I believe that she has seen him a few times while I’ve been away – while [Mr Fletcher] was away.
So the answer to my question is “none”; is that right?---Sorry?
Well, I withdraw the questions. Do I understand you to be saying, “On six occasions this year, when [J] has been in your care, your mother has taken [J] around to see his paternal grandmother”?---I said, “A few occasions. When [J] has been in my mum’s care, my mum has gone to the shops and she has dropped [J] to see his paternal grandmother at their takeaway shop.” Yes.
So would “few” mean a – three? Three; are you happy with three?---Yes, a couple of times. Yes, a few.
We’ve moved from “few” to “a couple” to “yes, to three” so - - -?--- Two or three – two or three times my mum would have taken [J] to see his - - -
Two or three times your mother has taken him around?---Yes.
Okay. So your mother has told you that?---Yes.
Okay. Have you taken [J] around to see his grandmother this year?---I’ve – in this year, I have made quite a few attempts with [J]’s grandmother – in her seeing [J] – through school and out of school, and I believe she has seen him maybe a couple of times.
What does that mean?---Pardon?
Well, what does “believe” mean? I asked you, “When he’s in your care - - - ?---Yes.
- - - how many times has he seen his grandmother this year when you’ve been there”?---Well, I wasn’t present, but I have made arrangements for her to see her grandson - - -
Okay. Okay?--- - - - Since [Mr Fletcher] has been away.
This year?---Yes.
Okay. So could you tell the court of one of the circumstances this year where you’ve arranged – and [J] has – or [Mrs I] has seen [J]. Can you tell his Honour?--- Well, in earlier of this year, I have called [Mrs I] and asked if she would like to see her grandson and that has gone ahead.
Well, where did she see him?---I’m not too sure. They collected him and spent time with him in Balmain, actually, in the park. [J]’s grandfather was there.
See, you say there was a time when this year - - -?---In Balmain. Yes.
- - that [Mr Fletcher]’s parents – [Mrs I] came to your house?---No. She didn’t come to my house.
Didn’t come to your house?---No.
Where did she collect [J] from?---I believe they collected him from school and spent some time with him in the park.
Did you have a problem with them collecting him from school that day?---No.
Isn’t it the case that your application – I appreciate it has changed – but, originally, your application was that they collect him from school on a Wednesday - - -?---Yes. Yes.
- - - and have him for three hours?---Yes.
and:
MR GIVNEY: Do you agree that it’s likely he has a close relationship with [Mrs I]?---Yes.
It seems that you think it’s a good idea that he sees [Mrs I]?---Yes.
- - when his father is out of the country?—Yes.
Okay. And you say that you’ve arranged that once this year for that to happen- - ----Mm.
- - - and you think that a few times this year your mother has taken [J] around to the coffee shop to see his grandparents, so - - -?---I know my mum has taken [J].
You know your mother has?---Yes.
Following this discussion, there was some disagreement as to whether the mother was willing to consent to an order for J to spend time with the paternal grandparents. There were also reservations expressed with respect to the Court’s jurisdiction to make such an order, in circumstances where the paternal grandparents were not parties to the proceedings. Counsel for the father then asked the mother:
MR GIVNEY: If his Honour was to make an order for [J] to see his grandparents, would you obey it?---Yes.
The issue was raised by Counsel for both parties in the Case Outlines submitted before the learned Federal Magistrate. In the father’s Case Outline, Counsel for the father submitted:
9.[J] during the course of his infancy was cared for, for significant periods, by the father’s mother. Reportedly he has formed a close bond with her and his paternal grandfather. Since he was three years of age the father’s partner [Ms C] has been a significant figure in [J]’s life. It is in those circumstances the father seeks an order that for the last weekend of each month when he does not have time with [J] that [J] spends time with his paternal family and [Ms C].
As became apparent during the trial, the father did not press for an order for J to spend time with Ms C, the father’s partner.
In the mother’s Case Outline, Counsel for the mother submitted:
16.The Father cannot seek orders in favour of his parents when they are not parties to the proceedings. Even if that is wrong there orders like this would be very problematic.
The issue was also raised by Counsel for both parties in their final addresses to the learned Federal Magistrate. The submissions of Counsel for the father on this topic provided:
MR GIVNEY: Your Honour, there’s two distinct applications in front of your Honour and one is the – the first one is when will [J] see his father whilst his father is living in America and, secondly, when his father is living in America should [J] see his paternal grandparents, by virtue of an order, and whether, in that mix, [Ms C] would also be seeing [J]. The second aspect is whether your Honour makes orders in respect to [J]’s care in the event the father returns to Australia.
and:
MR GIVNEY: Now, I don’t accept my friend’s point with respect to the necessity of a party – that the husband’s parents must be parties to the case. The mother said that she would agree that she would obey a court order. The mother says, as I understand it, that she would be prepared to make the child available a day a month. Well, again we’re not too far apart because we’re seeking no more than six weekends a year and again it doesn’t intrude on the mother’s time significantly because the mother’s time has increased expedentially [sic] because of the father’s absence from Australia.
and:
MR GIVNEY: … Six weekends a year with his paternal grandparents when his dad is out of Australia and [Ms C] would be there, in my respectful submission, is something that would be in his interests.
and later, during the course of oral submissions in reply, Counsel for the father submitted:
MR GIVNEY: With respect to my friend, there is no legal limbo if there is an order made that the child has time with the grandparents and, even if your Honour was concerned at the end of hearing this evidence, when the other concedes to your Honour that she will obey a court order, acknowledges that it’s in the best interests of the child to see his grandparents, won’t make a concession in fact with respect to [Ms C], and no orders is sought in respect of [Ms C] out of respect for the mother, there is no legal limbo.
Then at the end of it, is there is a legal limbo, at the end of it so there’s no doubt it’s in the best interests of [J] to have time with the grandparents. It is as clear as night follows day. There will be no negotiation because there’s no communication. It’s a live issue with the mother. The mother could not give any evidence of any value as to how many times that little boy has seen his paternal grandmother this year. There was some vague evidence about earlier in the year.
So the mother could give an undertaking to the court. Your Honour could give judgment and say, if my friend insists on this line and it concerns your Honour, your Honour could give judgment and say, “Provided they consent to being a party, I will make this order.” An order could be made that the child be made available to them. You could seek undertakings from the grandparents that they will return the child, which will be given. So there is just no legal limbo. It’s a furphy, in my respectful submission, and even if it is, it can be cured easily and without expense. …
The authorities relating to adequacy of reasons for judgment are not in doubt and do not require extensive restating for the purposes of this appeal. A convenient summary of the relevant authorities appears in Counsel for the mother’s outline of argument
This Court in Wen & Thom [2010] FamCAFC 81 said (at par 57):
57.As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
With respect to the learned Federal Magistrate, although the matter to which he did refer in his Reasons for Judgment was a fact or circumstance relevant to the exercise of his discretion, the issues raised at trial, the evidence in relation to them, and the final submissions of Counsel for the parties before him obliged his Honour to reveal more of the path of reasoning which led him to his ultimate conclusion than he did.
With respect to his Honour, his reasons reveal that, although it was in the child’s best interest to spend some regular time with the paternal grandparents, the fact that they were not parties to the proceedings, and “can always have made their own application”, denied the application on their behalf any entitlement to success. With respect, his Honour’s reasoning on this topic was both inadequate and erroneous.
The father’s challenge to the adequacy of the learned Federal Magistrate’s reasons for judgment with respect to the child spending time with the paternal grandparents is entitled to success.
It remains consider whether his Honour’s discretion erred in relation to this topic. Given that his Honour’s reasons for judgment were inadequate, it is difficult to either challenge the exercise of his discretion, or defend it.
Counsel for the mother made a number of submissions in relation to the implications of the paternal grandparents not being parties to the proceedings before the learned Federal Magistrate.
There are two difficulties with those submissions. The first is that his Honour did not suggest the factors there outlined to be factors which disinclined him to make an order that the child spend time with the paternal grandparents. The second is that there was no suggestion, at the time of the trial, that difficulties of the kind to which Counsel for the mother referred in his written submissions were realistically probable or likely to materialise.
The evidence before the learned Federal Magistrate, including the evidence frankly given by the mother herself, was overwhelmingly in favour, at least on the basis suggested by her [at page 248], of an order that the child spend time with the paternal grandparents whilst the father is resident in the United States.
To the extent that his Honour was troubled by the fact that the paternal grandparents had not intervened, or sought to intervene in the proceedings before him, as Counsel for the father submitted, that difficulty could have been addressed by making an order in favour of the paternal grandparents contingent upon their having intervened or sought to intervene in the proceedings.
The challenge to the learned Federal Magistrate’s exercise of discretion is thus also made out.

The consequences of allowing the appeal

As the Court’s orders of 3 August 2011 contemplated, Counsel for both parties filed supplementary submissions in relation to the consequences of the father’s appeal being allowed, particularly if, as it will be, allowed only in relation to the learned Federal Magistrate’s refusal to make an order that the child the subject of the parenting proceedings between his parents spend time with the paternal grandparents.
Counsel for the father urged the Court to re-exercise the learned Federal Magistrate’s discretion in relation to the father’s request that, whilst he resides outside Australia, the child J spend time with the paternal grandparents.
It was submitted, with some justification that:
4.There is an opportunity to end the litigation and meet [J]’s best interest as grounded in the Family Report and the Learned Federal Magistrate’s view.
Counsel for the mother opposed this Court re-exercising the discretion of the learned Federal Magistrate in relation to the issue of the child J spending time with the paternal grandparents.
Given the clear and unequivocal evidence which the mother gave before the learned Federal Magistrate in relation to this issue, it can be reasonably assumed that the issue is now controversial in ways which it was not before his Honour. Consequently, and not without reluctance, the Court will accede to the mother’s request that the issue be remitted for re-determination by a federal magistrate other than Federal Magistrate Scarlett.
There are a number of reasons why the Court does so. The first reason is that, having regard to the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172, there can be no question that the mother is entitled to adduce further evidence in relation to the re-exercise of the discretion of the learned Federal Magistrate. It is clear without doubt that either party is entitled to test further evidence relied upon by the opposing party or parties and, within limits, test evidence which may have been given before the learned Federal Magistrate and tested before him.
That leads to the second reason why this Court is disinclined to re-exercise the discretion of the learned Federal Magistrate in the face of the mother’s opposition to it doing so. This Court would not readily be in a position to hear contested evidence in relation to the issue of the child J spending time with the paternal grandparents. That would be more appropriate before a Federal Magistrate.
The third factor is that, whereas if another Federal Magistrate re-exercises the discretion of the learned Federal Magistrate, any such re-determination may be challenged before the Full Court of this Court, if this Court re-exercises his Honour’s discretion, any challenge to the outcome of such re-exercise could only be challenged by way of application for special leave to appeal to the High Court. That is a factor which influences the Court’s decision.
The Court will remit the question of the child J spending time with the paternal grandparents for determination by a Federal Magistrate other than Federal Magistrate Scarlett.
A further issue remains to be determined. That is whether the paternal grandparents should be parties to the proceedings, as Counsel for the mother submitted that they should.
There are numerous cogent reasons why the paternal grandparents should be parties to the proceedings in which the issue of the child J spending time with them is to be re-determined. Those reasons are self-evident. The Court does not understand there to be any opposition to that course on behalf of the father or the paternal grandparents. The Court will make an order joining the paternal grandparents.

Costs

Counsel for both parties sought costs certificates with respect to the appeal to this Court and the re-exercise of the learned Federal Magistrate’s discretion.
The Court considers that its discretion to grant costs certificates with respect to the appeal is properly enlivened, and will grant each of the parties certificates under ss 6 and 9 of the Federal Proceedings (Costs) Act1981 respectively.
Different considerations apply however to costs certificates with respect to the re-exercise of the Federal Magistrate’s discretion. It is tempting to conclude that, but for the fact that they were not parties to the proceedings before him, the learned Federal Magistrate would have made an order that the child J spend time with the paternal grandparents, either in terms in which the mother suggested in her evidence before him, or perhaps on the more extensive basis suggested by the Family Consultant.
It was always open to the paternal grandparents to have sought to become parties to the proceedings. Without criticising those advising them, so doing would have been logical for a number of reasons which are not hard to imagine and do not require re-stating, given the absence from the jurisdiction of the child’s father, their son, during the periods which the child J may have been spending time with them.
Whilst not disputing the entitlement of the father and/or the paternal grandparents to pursue an order that the child J spend time with the paternal grandparents, in the circumstances, the Court does not consider that such exercise should be subsidised by the public purse.
The Court is not disposed to issue a costs certificate to the mother with respect to the re-exercise of the Federal Magistrate’s discretion in relation to the limited issue of the child J spending time with the paternal grandparents.
The Court has earlier set out extensively the clear and unequivocal evidence of the mother in relation to this issue. Lest their be any doubt, were this Court able to re-exercise the discretion of the learned Federal Magistrate, an order would be made in favour of the paternal grandparents in the terms offered by the mother herself before the learned Federal Magistrate. As Counsel for the father correctly submitted, the issue could have been readily determined, and the litigation ended.
The mother is entitled to resist the paternal grandparents’ claim for an order spending time with the child J, but the Court does not consider that the public purse should subsidise her resistance to such application.
There will accordingly be no costs certificates with respect to the re-exercise of discretion.

I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of Justice Coleman delivered on 18 August 2011.

Associate:

Date: 18.08.11