French & Fetala

[2014] FamCAFC 57

FAMILY COURT OF AUSTRALIA

FRENCH & FETALA [2014] FamCAFC 57

FAMILY LAW – APPEAL – CHILDREN – where the appellant mother challenges orders made by the Magistrate which were not sought by either party or the Independent Children’s Lawyer – where it is not incumbent upon a trial judge to accept either party’s proposals – where, however, reasons for making orders not sought by either party must be given – whether the Magistrate gave sufficient reasons for making orders that were not sought by either party or the Independent Children’s Lawyer – where the Magistrate did not give sufficient reasons – error demonstrated – appeal allowed.

FAMILY LAW – APPEAL – CHILDREN – where the Magistrate determined that the presumption in s 61DA of the Family Law Act 1975 (Cth) did not apply by virtue of “family violence” – where the Magistrate nonetheless determined that an order for equal shared parental responsibility was in the child’s best interests – where the Magistrate subsequently held that he was not obliged to consider s 65DAA – whether the Magistrate erred in holding that, despite making an order for equal shared parental responsibility, he was not bound to consider s 65DAA – error demonstrated – appeal allowed – no order as to costs – costs certificates granted.

Family Law Act 1975 (Cth) s 60CC, s 61DA, s 65D, s 65DAA, s 65DAB
Federal Proceedings (Costs) Act 1981 (Cth), s 8, s 9

Family Law Rules 2004 (Cth) r 22.39(1)

AIS v AIF (1999) 199 CLR 160
Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers & Managers Appointed) (2011) 244 CLR 1
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Kuru v New South Wales (2008) 236 CLR 1
MRR v GR (2010) 240 CLR 461
R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
U v U (2002) 211 CLR 238
Warren v Coombes (1979) 142 CLR 531
Yates & Yates [2012] FamCAFC 138

APPELLANT: Ms French

RESPONDENT: Mr Fetala

FILE NUMBER: PTW 2007 of 2009

APPEAL NUMBER: WA 23 of 2013

DATE DELIVERED: 4 April 2014

PLACE DELIVERED: Perth

PLACE HEARD: Perth

JUDGMENT OF: Thackray, Strickland and Murphy JJ

HEARING DATE: 31 March 2014

LOWER COURT JURISDICTION: Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE: 13 September 2013

LOWER COURT MNC: [2013] FCWAM 98

REPRESENTATION

THE APPELLANT: In person

THE RESPONDENT: In person

Orders

1. The application in an appeal filed on 20 March 2014 seeking the introduction of further evidence be dismissed.

2. The appeal be allowed.

3. Order 5 of the orders made by Kaeser A/M on 13 September 2013 be set aside, save for its continued operation as an interlocutory order pending further order of the Magistrates Court of Western Australia or the Family Court of Western Australia.

4. Orders 7, 8, 9, 10, 11, 12, 13, 15, 16 and 17 of the orders made by Kaeser A/M on 13 September 2013 be set aside.

5. The matter be remitted to the Magistrates Court of Western Australia for rehearing before a Magistrate other than Kaeser A/M.

6. Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

7. Pursuant to s 8 of the Costs Act, the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the new trial ordered by the court.

8. Pursuant to s 8 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the new trial ordered by the court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym French & Fetala has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 23 of 2013
File Number: PTW 2007 of 2009

Ms French

Appellant

And

Mr Fetala

Respondent

REASONS FOR JUDGMENT

1. For about four and a half years after the parents of the child T French-Fetala (born in May 2008) (“the child”) separated in 2009, parenting arrangements were governed by both court orders and subsequent agreement between the parties.  By early 2013 there was dispute about those arrangements, resulting in proceedings between the parents and orders being made by Kaeser A/M from some of which the mother now appeals.

2. By the time of trial, the child was spending time with her father from 12 noon until 6:00pm Saturday each alternate week and from 10:00am to 5:00pm Sunday in each intervening week.  That time was, as his Honour found, “…being informally supervised … by the father’s mother” (reasons at [5]).

3. Relevant to this appeal, the Magistrate ordered that the parties should have equal shared parental responsibility except that the father should have sole responsibility in respect of the child’s religion.  His Honour’s orders required no supervision of time between the child and her father and he ordered that the existing time arrangements should continue until the first weekend in April 2014, at which time the child is to spend time with her father for two nights each alternate weekend, three if Monday is a public holiday.  At the end of this year, half school holiday time is to take place.

The Grounds of Appeal

1. The mother relies upon the following grounds:

   1.The Learned Acting Trial Magistrate erred in failing to give cogent reasons and/or adequate reasons for not accepting the Single Expert’s conclusion and evidence as to [the child’s] overnight time with her father.

   2.The Learned Acting Trial Magistrate erred in making an order for equal shared parental responsibility until [sic] such an order was against the weight of evidence having regard to:

   a)the parties [sic] inability to effectively communicate and/or consult one another and make decisions jointly in relation to [the child’s] long term needs;

   b)the father’s lack of historical participation in making decisions relating to [the child’s] long term needs;

   c)the mother’s historical sole decision making in relation to [the child’s] long term needs and advice to the father as to those decisions;

   d)his finding that there was family violence and “couple violence”;

   e)his finding that the presumption of equal shared parental responsibility does not apply;

   f)his failure to consider and provide cogent and/or adequate reasons why it was in [the child’s] best interest (by reference to section 60CC of the Act) to still make an order for equal shared parental responsibility after finding that the presumption does not apply; and

   g)        the parties [sic] mistrust of one another.

   3.The Learned Acting Trial Magistrate erred in concluding that he “was not obliged to consider equal and substantial and significant time, they may still be examined and they may well be in [the child’s] best interests” because pursuant to the framework set out in section 65DAA, he must consider the matters stated therein having made an order for equal shared parental responsibility.

   4.It was not open to the Learned Acting Trial Magistrate to form the view that “the father will learn and will become more adept at dealing with the emotional needs of a child[”] given the evidence before the Court and findings of the Learned Acting Trial Magistrate as to the father’s lack of insight.

   5.The Learned Acting Trial Magistrate erred in failing to give cogent reasons and/or adequate reasons for not making the injunctive orders as sought by the mother in her Minute of Orders Sought at paragraphs 4 and 5 having regard to the evidence before the Court.

   (Italics in original)

2. A legal practitioner prepared the mother’s Notice of Appeal.  She prepared her own Summary of Argument as did the father.  Each was cogent and helpful.

The Conduct of the Trial and The Issues In The Appeal

1. At the commencement of the trial, the Magistrate sought, properly, to clarify the issues in dispute and to explore the possibility of the proceedings being wholly or partly resolved.  A short adjournment was given to attempt a facilitation of the latter.

2. Although the subsequent discussion concludes with the Magistrate asserting that it “clarifies, I think, the extent of the dispute”[1], neither what preceded nor what follows that comment in the trial, nor the reasons for judgment, bears it out.  Indeed, that lack of clarity was highlighted by the submissions before this Court by the self-represented parties. 

   [1]          AB 448; transcript of proceedings, 1 July 2013, p 17, line 17.

3. That lack of clarity has ramifications for the outcome of this appeal.  

4. Discussions before the short adjournment saw the father (who, it should be noted, represented himself) confirm that he continued to seek the orders contained in his filed minute of orders (prepared by his then lawyer).  Relevantly, he there sought an order for “joint parental responsibility” but that he have “sole parental responsibility in relation to the religious needs of [the child]…”  He also there sought an order (premised on the child living with the mother) that he spend time with the child, relevantly, each alternate Saturday night and each Wednesday night – i.e. only one night at a time.

5. In speaking of the prospects of resolution, counsel for the mother, having said there were some issues upon which agreement may occur, including in relation to “sole parental responsibility” to the mother, went on to say “I noted in [the father’s] original trial affidavit he indicated he would agree to a sole parental responsibility order except for religious issues.”[2]  The foundation for that submission is not apparent, since the only earlier reference we could locate in the Appeal Books to the father being agreeable to the mother having sole parental responsibility (save in matters of religion) was in a letter from his then solicitors dated 30 June 2011, annexed to the father’s affidavit sworn 21 December 2011, which contained a proposal for settlement[3].

   [2]          AB 434; transcript of proceedings, 1 July 2013, p 3, lines 45-47.

   [3]          AB 189

6. The Initiating Application filed by the father some four years prior to the trial sought, relevantly, an order for “equal shared parental responsibility”. Subsequently, in an affidavit filed in 2010, the father confirmed that he sought orders “as per my minute of orders sought”.  That minute is not before this Court.  However, in an affidavit filed by the father on 14 December 2012 which, it seems plain, is the father’s “trial affidavit”, the father sought an order for “joint parental responsibility for the child” (para [2] of that affidavit).  The same expression is used in the minute of order filed on behalf of the father at the commencement of the trial. It also mirrors what his Honour records as part of the father’s proposals at [46] of the reasons.

7. Up to that point, it could not be said fairly that the mother was not on notice of the issues joined in respect of parental responsibility.  However, that position became confused by what the father said subsequent to the discussions which took place during the short adjournment.

8. Before dealing with what emerged from those discussions it is first necessary to comment upon what, remarkably, occurred in court in respect of them.

9. First, despite some caveats being provided to views expressed by the Magistrate, comments made by his Honour – in the context of the father being the only party not represented by a legal practitioner – come perilously close to prejudgment.[4] 

   [4]AB 441 – 442, transcript of proceedings, 1 July 2013, p 10-11,, particularly at AB 442  at lines 11 to 34.

10. Secondly, and directly relevant to the issues in, and the outcome of, this appeal, the Independent Children’s Lawyer[5] (“ICL”) and, subsequently, counsel for the mother[6], each revealed, without comment by the Magistrate, the contents of what would appear to have been privileged settlement discussions.  While the Magistrate said to the self-represented father, “I don’t need to hear about what you may or may not agree to from outside”[7], nothing was said to him as to the privilege attaching to settlement discussions.  Moreover, nothing was said by the Magistrate when counsel for the mother revealed what the father had said during settlement discussions.[8] 

    [5]          AB 443, transcript of proceedings, 1 July 2013, p 12.

    [6]          AB 447, transcript of proceedings, 1 July 2013, p 16.

    [7]          AB 445, transcript of proceedings, 1 July 2013, p 14, lines 29-30.

    [8]          AB 447, transcript of proceedings, 1 July 2013, p 16, lines 34-46.

11. The Magistrate asked the father whether he agreed with what the ICL had said “about the agreement that appears to have been reached”, to which the father responded that he did agree.  His Honour then enquired, “So does that mean that those issues, then, I don’t need to determine?  Things like the change of name, parental responsibility and the like”, to which the father replied “No. That’s fine”.  The discussion between the Magistrate and each of the father, counsel for the mother, and the ICL culminated in the father being asked whether the orders he sought had changed as a result of the out-of-court discussions.[9] He said they had.  Specifically, the father said that he agreed with “… the ICL minutes [of orders] as proposed”[10] save that “…overnight stay should be reinstated earlier than April [2014].”[11]  Here it should be noted that the ICL had proposed in her minute that the mother have sole parental responsibility save for issues regarding religion.  In addition, during the same discussion, the husband confirmed that he was seeking only one regular overnight period with the child: “Yes … one night on the weekend … is fine … Every weekend.”[12] 

    [9]          AB 445-446, transcript of proceedings, 1 July 2013, p 14-15, lines 49-51 and 1.

    [10]         AB 446, transcript of proceedings, 1 July 2013, p 15, lines 6-7.

    [11]         Ibid. Transcript of proceedings, 1 July 2013, p 15, lines 11-12.

    [12]         Ibid. Transcript of proceedings, 1 July 2013, p 15, lines 39-40.

12. Two matters central to this appeal emerge. 

13. First, as a result of the positions outlined by each of the parties, and whatever else may have been points of difference, no one was seeking an order from the court that the child spend more than one regular period of overnight time away from her mother, and the mother was not wanting any overnight time for some time yet. 

14. Each of the parties confirmed at the hearing of this appeal that this was their position in the proceedings below.  It is important to observe, in this respect, that an outcome where the child was not away from her mother for more than one night at a time accorded with the general thrust of the evidence of the single expert, Dr W (albeit in the context of other opinions as to the pace of the introduction of that time and the like). 

15. In addition, the father, properly, conceded during the hearing before this Court that his position at trial in respect of the child being away from her mother for not more than one night at a time emanated from concerns about the child’s sensitive nature.  Dr W assessed her as particularly sensitive and all parties were agreed before the Magistrate that this was so.

16. The second matter to emerge from the discussions between the Magistrate and the parties is the alteration, unacknowledged by the Magistrate during the trial or in the reasons, to the issues previously joined between the parties in relation to parental responsibility.

17. As earlier referred to, until the point at which the father indicated that he agreed with the minutes proposed by the ICL, the parties and the court were obliged to assume that parental responsibility was in issue; the father contending for “joint responsibility” save for religion and the mother contending for “sole parental responsibility”.  The father’s expressed agreement to the ICL’s proposals effected, on its face, a change to that.  We are by no means certain that this was understood by the father; his predominant focus was overnight time with the child and the speed of its introduction.

18. Interestingly, that view receives force from what each of the parties said to this Court; in effect each contended that the father’s apparent agreement to “sole parental responsibility” occurred in the context of settlement negotiations – that is, sole parental responsibility would be conceded to the mother (save, implicitly, for religion) in exchange for a particular outcome with respect to overnight time and the speed of its introduction.  In addition, the father confirmed that to be the case during cross-examination by the ICL below.[13] In any event, during his cross-examination by the ICL, the father made explicit that he did not agree to the mother having “sole parental responsibility”. At that point his cross-examination by the wife’s counsel had concluded. 

    [13]         AB 495, transcript of proceedings, 1 July 2013, p 64, lines 15-30. 

19. It might be argued, then, that procedural unfairness attended the proceedings, the mother having been entitled to assume as a result of the father saying he agreed with the ICL’s proposals that parental responsibility was not in issue only to discover, after her counsel’s cross-examination of the father was complete, that parental responsibility was in issue. 

Did The Conduct of the trial Result in Error?

Parental Responsibility

1. The mother contended before this Court that there might be unfairness by reason of the lost opportunity to cross-examine about the issue of parental responsibility. 

2. However, it is not a ground of appeal.  Further, the mother’s counsel made no application to the Magistrate to re-open her cross-examination as a result of the apparent change in the issues joined in respect of parental responsibility.  Nor was any issue of unfairness otherwise raised.  Indeed, the submissions made to the Magistrate by counsel for the mother not only made no mention of any agreement with respect to “sole parental responsibility” but assumed it remains a matter to be argued.[14]

   [14]         AB 598, transcript of proceedings, 3 July 2013, p 39, lines 28-40.

3. Were it not for the conclusions we have reached in relation to other grounds of appeal, we would not have been inclined to find merit in the challenge to the parental responsibility order based on procedural unfairness.  However, given that our conclusions on the other grounds have persuaded us that there should be a rehearing, we consider the issue of parental responsibility should also be addressed again, with the issue hopefully being properly defined from the outset.

The Amount of Overnight Time

1. It is trite that the court’s obligation in parenting cases is to make orders which are in the child’s best interests.  In many cases, the result arrived at does not accord with what one or both parties might suggest are orders in the child’s best interests.  A consequence of abdicating responsibility for resolving conflict about parenting to the court is that, often “…it will simply not be possible for a judge to adopt exclusively or perhaps substantially, a proposal of either party” (U v U (2002) 211 CLR 238 at [70], per Gummow and Callinan JJ).Moreover, “…the Court is not, on any view, bound by the proposals of the parties” (at [80]). 

2. Here, the Magistrate was plainly entitled to make an order or orders not sought by either party.  However, the Magistrate was only entitled to do so if the parties were accorded procedural fairness in respect of any such order; specifically the opportunity to adduce evidence (if appropriate) and be heard in respect of any such proposed orders (U v U, for example, at [30], [42], [80]-[81]).

1. Equally, assuming procedural fairness has been accorded, particular care must be taken to ensure that the reasons for making the orders are adequate to explain their basis, particularly to the parents who did not seek such orders (see, for example, AIS v AIF (1999) 199 CLR 160 at [284], per Callinan J).

2. It should also be said, by reference to the manner in which ground 1 of this appeal is worded, that the court is not bound to accept the evidence of a single expert witness (or, indeed, any other expert) although, again, it might be expected that the reasons will demonstrate adequately why weight is, or is not, attributed to relevant opinions. 

3. The Magistrate’s orders, which provided for overnight time for the father to commence in April 2014 with periods of two consecutive nights were:

   §Not sought by any party, since the father and the ICL proposed a maximum of one night at a time;

   §Not part of any discussion at the commencement of the hearing;

   §Not put to either party or raised by the Magistrate during the cross-examination of either party;

   §Not put to the single expert by any party nor by the Magistrate.

4. The parties were not accorded procedural fairness in respect of the Magistrate’s ultimate decision that overnight time should commence with two consecutive nights.  That is a fundamental error vitiating the judicial process.  The order ought not be permitted to stand.

5. Further, and equally significantly, we can see nothing in the Magistrate’s reasons that explains, much less adequately explains, how such a decision, different to the positions of the parties, was arrived at.  By way of corollary, there was ample evidence before the Magistrate to commend the position that overnight time should not exceed one night at a time; each party accepted that the child was a sensitive child; she was young; time with her father had earlier been interrupted for a period; and, a period of more than one overnight period at a time was strongly contra-indicated by the opinions of the single expert.

6. In our opinion, his Honour’s reasons were not adequate to explain the order made.

Conclusion

1. Neither of the matters just discussed were the subject of any ground of appeal (save to the extent that ground 1 might be seen to challenge the adequacy of reasons more generally).  Yet, when an appellate court detects error material to the decision under challenge, it is duty bound to correct it (see, Warren v Coombes (1979) 142 CLR 531 at 553, per Gibbs ACJ, Jacob and Murphy JJ).

2. The errors here are central to the judicial process.  They directly affect the orders challenged.  They should be corrected.

3. In our view, the appeal should succeed on each of the bases just discussed.  We will, accordingly, set aside the orders the subject of the appeal, namely Orders 5, 7, 8. 9, 10, 11, 13, 15, 16 and 17.  We propose also to set aside Order 12, which is dependent upon the other orders.

4. In deference to the careful arguments prepared by each of the parties, we will however proceed to deal briefly with the other grounds of appeal (Kuru v New South Wales (2008) 236 CLR 1; Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers & Managers Appointed) (2011) 244 CLR 1). We consider that ground 3 also has merit and it is to that ground that we next turn.

Obligation to Consider Equal and Substantial and Significant Time

1. The Magistrate found at [67] that:

   As I have not applied the presumption [in s 61DA in favour of an order for equal shared parental responsibility] I need not consider making an order that the child spend equal time (and if not, then substantial and significant time with the parents (see MRR and GR [2010] HCA 4).

2. At [71], his Honour again said he was “…not obliged to consider equal and substantial and significant time…”

3. With respect to his Honour, this is plainly an error of law.

4. These statements by his Honour appear to be premised upon the finding, not challenged on this appeal, that by reason of “family violence” as defined in the Family Law Act 1975 (Cth) (“the Act”), the presumption of equal shared parental responsibility (contained within s 61DA of the Act) is rendered inapplicable.

5. However, s 65DAA of the Act is engaged not by the application of the presumption of equal shared parental responsibility, but, rather, where an order provides or is to provide for equal shared parental responsibility.  In that respect, the mother is also incorrect when, in her outline, she contends that his Honour found it “…appropriate to apply the presumption.”  An order for equal shared parental responsibility can be made – as it was here – despite the presumption being rendered inapplicable. 

6. In MRR v GR (2010) 240 CLR 461, the High Court held that s 65DAA conditions the otherwise broad power given to the court to make parenting orders pursuant to s 65D. The latter section is made subject to s 61DA, s 65DAB and “this Division” (i.e. Division VII of the Act). As a result, if s 65DAA applies, the court is required to consider each of the matters referred to in that section (MRR at [9] and [13]).

7. In that respect, the High Court noted that the section requires a consideration of matters different to s 60CC. Importantly, the High Court observed that the Federal Magistrate’s orders in that case could not have been “…an order under s 65D” because “the statutory criteria [had not] … been addressed”. Thus, where s 65DAA applies, as it did here, the power to make parenting orders other than equal time orders or substantial and significant time orders is dependent upon a consideration of those types of orders before they are rejected in favour of an alternative order.

8. His Honour did not, in terms, refer to s 65DAA although it is clear enough that [67] and [71] of the reasons make an indirect reference to it. Because, presumably, his Honour (wrongly) did not consider himself bound to apply the section, his Honour does not, as the section mandatorily requires, consider equal time and, substantial and significant time.

9. While a consideration of the section’s requirements is mandatory and, indeed, conditions the power to make parenting orders, the breadth and depth of the court’s consideration of the requirements will depend upon the issues joined between the parties. Where, as here, neither party suggests that either of the specified types of order is in this young child’s best interests, and their position is entirely concordant with the existing care arrangements and with expert evidence, a consideration of the section’s prescribed periods of time might be scant. To borrow from Mahoney JA’s quotation of Lord Scarman in a different context, the nature and extent of the requisite consideration of s 65DAA might be to “merely salute it in passing” (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-270, per Mahoney JA citing Scarman LJ in R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309). In a particular case, those same considerations might lead to the requisite consideration being inferred from what is otherwise said in the judgment.

10. In this case, however, we cannot see how it could be inferred that his Honour carried out the requisite consideration where it is erroneously asserted that the section’s obligations do not apply and where nothing within the reasons otherwise indicates even a passing reference to the section’s requirements.

Conclusion

1. In our view, the complaint in ground 3 is made out. 

2. Before concluding our discussion we should observe that it was not contended before us that the order made by his Honour was anything other than an order for equal shared parental responsibility, notwithstanding that the father was given sole responsibility for issues related to religion.  It is unnecessary for the purposes of this appeal to consider whether this assumption was correct.

The Order for Equal Shared Parental Responsibility

1. It is convenient to next consider the challenge to the order for equal shared parental responsibility, the subject of ground 2.

2. It will have been seen that both in terms and substance the challenge is to the weight which his Honour attached, or did not attach, to particular aspects of the evidence.  The difficulties facing an appellant, in challenging a trial judge’s assessment of weight, have been referred to in a long line of authority including in many decisions of this Court.  In light of the fact that the mother and father prepared their own written submissions and represented themselves before this Court, it is appropriate to cite the well-known passage from Gronow v Gronow (1979) 144 CLR 513 at 519-20, per Stephen J:

   While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

3. Ground 2 does not assert that his Honour has taken account of any irrelevant consideration, nor does it assert that he failed to take account of a relevant consideration.  Each of the matters referred to in the subparagraphs of the ground is the subject of a specific finding by his Honour.  Seen in its proper context the challenge is simply an assertion that a different outcome ought to have resulted from those findings.

4. In making the order his Honour was not, in our opinion, merely allowing hope to triumph over expectation or the evidence. His Honour made the finding, entirely open to him, that “[t]here had been little opportunity for both parents to make decisions about major long-term issues” (reasons at [83]). Inherent in the findings is an appreciation that his order was in respect of “major long-term issues” which is defined in the Act as distinct from day-to-day issues about which the proceedings and the post-separation history of co-parenting suggested the potential for greater conflict. His Honour’s ultimate findings also took account of the important consideration that his order would remove religion from those matters about which there would need to be discussion and also referred to the mother’s actions in notifying the father about the child’s surgery. Finally, observation of the parties (including the father who was self-represented) obviously played a significant role in his Honour’s conclusion that he had “confidence that [the mother and father] will be able to communicate with each other in relation to significant decisions” (reasons at [65]).

5. It may be that, one or more of us on this Court, having made the findings referred to and having considered the mandatory obligations cast upon the parties by s 65DAC, would have come to a different conclusion as to the order for parental responsibility.  That, however, is not the test.   

6. As previously discussed in the context of the procedural fairness point, were it not for the conclusion we have reached that there should be a rehearing of other important matters, we would have left undisturbed the order dealing with parental responsibility. 

The Adequacy of the Reasons

1. Reference has already been made to what we consider to be an inadequacy in his Honour’s reasons requiring the intervention of this Court. 

2. Ground 1 challenges the Magistrate’s reasons more broadly, but does so by reference to an incorrect premise.

3. On no view was his Honour bound to give reasons for “not accepting the single expert’s conclusion and evidence” (U v U at [83]). His Honour’s obligation was to consider carefully all of the evidence and to give weight as his Honour considered appropriate to that evidence.  In that respect while, in the usual course of events, significant weight may be given to a single expert’s opinion, including his or her ultimate opinion, there is plainly no obligation upon a trial judge to do so.

4. When that fundamental premise is understood, the challenge embraced by ground 1 becomes, in truth, a challenge to the weight which his Honour attributed to particular parts of the evidence.

5. The difficulties facing an appellant, in challenging a trial judge’s assessment of weight referred to above are repeated in this context.

6. The mother’s written outline of argument and her oral argument refer to a number of specific parts of the evidence.  Again for the sake of completeness for the two self-represented parties, brief mention will be made of some of the matters raised.

The findings made by the trial magistrate

1. Three issues dominated the report of the single expert and the proceedings more broadly.  First was the father’s lack of insight into the ramifications of what he admitted was the child’s particularly sensitive nature.  Secondly, and allied to that, the child suffered from what was called “separation anxiety” when her mother was absent.  Thirdly, concerns were expressed about what might be conveniently called the father’s irresponsibility.  Particular attention was paid to his poor driving history and issues of safety said to arise from that. 

2. In addition, the father was hospitalised about two years prior to the trial as a result of what he called an accidental overdose of prescribed painkillers for a back condition.  That incident caused a disruption to time between the child and the father which had been occurring in accordance with orders made in May and December 2009. 

3. Many of the arguments advanced by the mother can be seen to derive from a central suggestion that the opinions of the single expert were unequivocal or, perhaps, didactic.  That is not the case.  In any event, his Honour’s reasons evidence an adequate evaluation of the single expert’s evidence and a weighing of that evidence with other evidence. 

4. The single expert expressed a number of significant concerns about the father’s lack of insight.  It cannot be said that his Honour was unaware of that evidence or that he did not take that evidence into account; specific findings were made to that effect.  However, that evidence was weighed against other evidence.  By no means insignificant in that respect is that the single expert’s opinions were made in the context of three reports over which the single expert’s opinion changed.

5. The single expert first reported that “both parents were very loving and devoted towards [the child]” and that “[the child] appeared to have a good relationship with both parents”.  His first report indicated that the child “was comfortable in her father’s care”.  In his second report the single expert said that in talking to the child, “she indicated she was “excited and happy” to see her father” and said “I love him a lot”.

6. That evidence is entirely consistent with evidence from the supervisor engaged by Anglicare pursuant to earlier court orders that there was “always a very positive visit” and that the visit was “characterised by fun and laughter”.  The report went on: “there appears to be a strong relationship between [the child] and [her father].” The visits were described as “relaxed with positive interactions and spontaneous physical contact”.  His Honour plainly regarded that evidence as important, as he was entitled to do.  Although the single expert recorded in his final report that he had been provided with a copy of the Anglicare report, he did not expressly discuss the potential significance of its content, although we recognise that the report was more than a year old by the time he came to prepare the third report. 

7. His Honour’s reasons explain adequately enough why he considered the single expert’s ultimate opinion about the nature and quantity of the time between the child and her father was, in effect, outweighed by the benefit to the child in having a meaningful relationship with her father.  His Honour found specifically (at [80]) “[t]he criticisms I have levelled against the father for his lack of insight are not sufficient to lead to a conclusion that [the child] is at risk in his care.”  It is not contended that this finding was not open to the Magistrate.

8. The child’s “separation anxiety” was plainly of central concern to the single expert and to his Honour.  Again, it cannot fairly be said that his Honour failed to take that important evidence into account or that his reasons do not adequately reveal the findings made in respect of it.  This is not to say, of course, that other findings would not have been open to his Honour on the evidence.

9. The mother’s arguments fail, with respect, to have regard to important findings made by the Magistrate which were entirely open to him.  For example, his Honour found specifically that the child “displayed distress at different times” when leaving the mother’s care and, importantly, those occasions included occasions when the father was not present or when [the child’s] activities where unconnected with the father (reasons at [14]).  Furthermore, his Honour found specifically (at [41]) that “…many of the anxiety issues that [the child] experiences have nothing to do with the father.”  His Honour specifically accepted the single expert’s opinion that “…increasing [the child’s] time with her father is likely to aggravate those issues for [the child]” (reasons at [85]).  However, importantly, his Honour went on to find (at [86]) that “[t]his is more a reflection of the mother’s relationship with [the child] than her relationship with her father…” Nothing to which this Court was taken, nor our own reference to the record, suggests that this finding was not entirely open to his Honour.  Indeed, the mother conceded during the appeal that the child’s separation anxiety applied “general[ly]”; that is, it is the separation from her mother in any context, as opposed to separating from her mother to spend time with her father, that causes the child anxiety.

10. The father’s poor driving history and his lack of candour about that were a feature of the mother’s arguments both below and before this Court.  Whether or not her concerns about that are understandable or her level of anxiety about it proportionate or disproportionate to the risk, once again it cannot be said that his Honour failed to take that issue into account, that relevant evidence was ignored or that his Honour’s reasons are not adequate to explain why he considered that evidence was outweighed by other evidence and considerations including, centrally, the benefit to the child of a meaningful relationship with her father.

11. It can be seen that ground 4 asserts that a specific finding was not open by reason of the evidence and findings as to the father’s lack of insight.

12. Neither parent was on trial before his Honour.  No assertions were made that either party would, by their actions, seek to consciously harm the child.  Each of the child’s parents bring to the difficult task of parenting her such strengths, weaknesses and foibles of personality that each has.  While his Honour made specific findings about the father’s lack of insight, his Honour also made findings about the wellspring of the child’s anxiety.  The trial was not about either; it was about what orders best meet the child’s best interests given that her parents are unable to agree upon aspects of her co-parenting for themselves. 

13. In our view, it cannot be contended that his Honour’s findings about the father’s lack of insight lead to the conclusion that findings about the father “learning” and “becoming more adept” were not open.  Those findings, like all prognostications about the future, are subject to the caveat that neither the father’s nor the mother’s future parenting capacities can be predicted with certainty, but that is a different matter to contending that, with that caveat, the challenged finding was not open.

Conclusion 

1. We are not persuaded of error in respect of grounds 1 or 4.

Injunction

1. At the hearing of the appeal the mother conceded that the elapse of time had overtaken the challenge in ground 5 dealing with the relief she had sought in paragraph 5 of her minute relating to the father’s driving.  However, she maintained her challenge to the failure of the Magistrate to grant the relief sought in paragraph 4 of the minute concerning drugs and alcohol. 

2. The Magistrate dealt with the relief sought in paragraphs 4 and 5 of the minute in the penultimate paragraph of his reasons in these terms: 

   107.A number of orders were sought by the mother which I consider to be unnecessary. In my view, there is [sic] no grounds for imposing an injunction on the father about the consumption of alcohol, nor from being restrained from driving with [the child], nor is there any need for any future drug urinalysis testing. It is however necessary for the father to keep the mother informed of his driving status …

3. In circumstances where the Magistrate had before him the evidence, inter alia, of the overdose of prescription medication and the father’s very concerning driving history, we accept there is merit in the mother’s complaint that his Honour’s peremptory dismissal of this part of the application was inadequate. 

4. We therefore find merit in Ground 5. 

The Application to Adduce Further Evidence

1. We indicated to the mother that her Application in an Appeal seeking leave to adduce further evidence in the appeal would be determined when the appeal was determined and reasons given.

2. The mother’s Application was filed on 20 March 2014, outside of the time prescribed by r 22.39(1) of the Family Law Rules 2004 (Cth). When asked for the reason for the delay, the mother indicated that she had first attempted to file the Application in an Appeal and the accompanying affidavit on 10 March 2014 but it had been rejected by the Appeals Registrar.

3. Correspondence contained in the appeal file supports the mother’s contention; she was advised by the Appeals Registrar by a letter dated 11 March 2014 that the documents could not be accepted for filing but that the mother could resubmit the material if she complied with instructions which were also set out in the correspondence.  The mother complied with those instructions, and the material was accepted for filing on 20 March 2014.

4. We are satisfied that the mother has a valid reason for the delay in filing the Application in an Appeal and that the father is not prejudiced by the delay.

5. The principles governing the reception of further evidence on appeal are well known and need not be repeated (CDJ v VAJ (1998) 197 CLR 172).

6. We are not persuaded that the evidence sought to be adduced by the mother meets the relevant criteria.  The evidence pertains to alleged behaviour of both the child and the father of precisely the same type examined by the Magistrate in his reasons.  If accepted, the evidence does not “…demonstrate that the order under appeal is erroneous” (CDJ at [109], per McHugh, Gummow and Callinan JJ). Rather, the evidence seeks to agitate before this Court the same issues agitated before the Magistrate, which are addressed in the reasons.

7. The Application in an Appeal filed by the mother on 20 March 2014 will therefore be dismissed.

Result of the Appeal and Orders

1. For the reasons given, the appeal must succeed.  The Magistrate’s orders under challenge, including Order 12, will be set aside.

2. While the mother’s application to adduce further evidence will be dismissed, the affidavit accompanying it is itself indicative of issues that would be raised and responded to in respect of any rehearing of parenting issues.  As a result, it is not possible for this Court to itself determine the appropriate parenting orders to be made. 

3. The matter must be remitted for rehearing.  Although we are obliged to formally remit the matter to the Magistrates Court of Western Australia, our order would not prevent the matter being transferred from that court to the Family Court of Western Australia in the event, for example, that such a transfer would result in a more expeditious rehearing.

4. Paragraph 6 of the orders (which contains arrangements for the time the father is presently spending with the child) was not challenged.  As that order will not be set aside, it will continue to govern the father’s time with the child until the matter is reheard. 

5. The discharge of Order 5, which deals with parental responsibility, would create a lacuna pending the rehearing.  We will therefore make an order extending the life of that order on an interim basis.   

Costs of the Appeal

1. Although each of the parties represented themselves in this appeal, some legal costs have been incurred by the mother, as well as the costs of preparation of the appeal books.  She did not seek an order for costs against the father in the event the appeal was allowed, but did seek a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).

2. The father is, as the mother apparently concedes, of modest means earning a very modest income.  The appeal has not been occasioned by any actions, or inaction, on the part of the father.  His conduct in and about the appeal and in the preparation of submissions for it has been entirely appropriate.  Each party should bear their own costs.

3. The appeal has succeeded in respect of an error of law. That error was not occasioned by an action or inaction on the part of the mother. The circumstances point to the mother being granted a certificate pursuant to the Costs Act and the relevant opinion that a certificate is appropriate is therefore given. The father did not incur any costs and the granting of a certificate to him for the appeal is unnecessary.

4. The mother has effectively wasted the funds she expended on engaging legal representation for the original trial.  She should therefore also receive a certificate for the costs she would incur in being represented at the rehearing.

5. The father was not represented at the original trial.  However, he had legal representation during the course of the proceedings and thus would have incurred legal costs in at least preparing the matter for trial.  In those circumstances we consider he too should receive a certificate for costs he incurs in relation to the rehearing.

6. The ICL did not participate in the appeal.  In any event, a certificate could not have been granted to the ICL for the rehearing, as the ICL is employed by Legal Aid WA (Yates & Yates [2012] FamCAFC 138).

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland and Murphy JJ) delivered on 4 April 2014.

Associate: 

Date:  4 April 2014