GAINFORTH & GAINFORTH
16 February 2012
FAMILY COURT OF AUSTRALIA
| GAINFORTH & GAINFORTH | [2012] FamCAFC 24 |
| FAMILY LAW – APPEAL – INTERIM CHILDREN – whether the trial Judge erred in finding, without evidence, that the father had engaged in family violence pursuant to s 61DA(2)(b) – whether the trial Judge erred in failing to provide any adequate reasons for the finding – procedural unfairness |
| Family Law Act 1975 (Cth), ss 61DA, 61DB |
| CDJ v VAJ (1998) 197 CLR 172 Goode and Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513 Marvelv Marvel (2010) 43 Fam LR 348 Mazurka & Mazurka [2011] FamCAFC 68 |
| APPELLANT: | Mr Gainforth |
| RESPONDENT: | Mrs Gainforth |
| FILE NUMBER: | NCC | 2132 | of | 2011 |
| APPEAL NUMBER: | EA | 117 | of | 2011 |
| DATE DELIVERED: | 16 February 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May and Ainslie-Wallace JJ |
| HEARING DATE: | 1 February 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 September 2011 |
| LOWER COURT MNC: | [2011] FamCA 757 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Neil Jackson |
| SOLICITOR FOR THE APPELLANT: | Robert James Jarratt |
| COUNSEL FOR THE RESPONDENT: | Vivien Carty |
| SOLICITOR FOR THE RESPONDENT: | Mullane & Lindsay |
Orders
The appeal be dismissed.
The father pay the mother’s costs of and incidental to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gainforth & Gainforth 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 ADELAIDE |
Appeal Number: EA 117 of 2011
File Number: NCC 2132 of 2011
| Mr Gainforth |
Appellant
And
| Mrs Gainforth |
Respondent
REASONS FOR JUDGMENT
On 15 September 2011 interim orders were made in relation to four young boys aged between nine and two, the children of Mr Gainforth (“the father”) and Mrs Gainforth (“the mother”).
The marriage between the father and mother broke down in July 2010 and they separated. The children however remained living in the marital home and the parties moved in and out of the home on a fortnightly basis. This arrangement amounted to each parent spending equal time with the children.
The matter came before the court because the mother asserted that the arrangement was not working well for the children, and although the father sought to continue the arrangement, he acknowledged that, at least so far as the younger two were concerned, it was not working well.
The issues for determination by the trial Judge were competing applications for time to be spent with the children and the mother sought an order for sole parental responsibility. As part of her determination, her Honour had before her an allegation of violence to the mother by the father.
As it was an interim hearing the parties relied on their affidavit material, there was no oral evidence or cross examination.
The orders sought by the father were that during school terms in a two week cycle he have the children with him from the conclusion of school on Friday to the commencement of school on Monday, and in the second week from the conclusion of school on Wednesday to the conclusion of school on Friday.
Her Honour ordered, on an interim basis, that the mother have sole parental responsibility for the children, they live with her and spend time with the father. Her Honour ordered that, until the father had independent accommodation, he was to see the boys each Tuesday and Thursday evenings from 4.30pm until 7.30pm and each Sunday from 9am to 5pm. On securing independent accommodation (which we were told he had been able to arrange), the father was to see the boys each alternate weekend from 4.30pm on Friday until 4.30pm on Sunday, each Tuesday from 4.30pm until 7.30pm and on Thursday in each alternate week which followed the children spending the weekend with the mother from 4.30pm until 7.30pm. Her Honour made other orders about the children’s birthdays and special days.
It is from these orders that the father appeals. Apart from the issue of interim sole parental responsibility it can be seen that the orders gave the father about the same time as asked in one week but a little less in the second.
Grounds of Appeal
The notice of appeal asserted eight grounds of challenge to her Honour’s decision. At the commencement of the hearing, counsel for the father sought and obtained leave to add an additional ground of appeal, Ground 4A.
The written summary of argument and submissions considered the grounds in groups, and for convenience we will consider them similarly.
Grounds 1, 2 and 2A
(1) That Her Honour erred in determining, without evidence, that there were reasonable grounds to find that the Father had been the perpetrator of family violence.
(2) That Her Honour failed to provide any adequate reasons, as to why the Father has been the perpetrator of family violence.
(2A) That in light of comments made by the trial judge early in the proceeding about her inability to make a finding concerning domestic violence, it was procedurally unfair on the Father for the Court not to thereafter indicate that it was ultimately intending to make a finding about domestic violence.
The background to the violence allegation was that the mother alleged that in August 2011 she and the father argued and he deliberately slammed a door on her arm, jamming it in the doorway. She said that this occurred in front of the children.
The father conceded that they argued in front of the children but denied any physical violence towards her.
At paragraph 11 of the reasons her Honour indicated that she could not make a finding about this asserted incident on untested evidence. At paragraph 35 and following she said, in the course of considering matters going to a determination of the children’s best interests:
35. There is a need to protect the children from psychological harm from being exposed to family violence.
36. I am unable to make a finding that there has been family violence. However I must take a conservative approach in the best interests of very young children. The mother says there was a deliberate assault on her being the jamming of her arm in the door.
37. The father denies this event, although agrees that both parties and the children were together at the relevant time. He does not say that on that day there was an injury to the mother but that it was accidental. He says nothing happened.
38. Accordingly I am left with two possibilities, that the father did deliberately jam the mother’s arm in the door, or that the mother fabricated this incident.
39. The mother says she reported the matter to police. Her application to the Court was filed two days later. It seems less likely that the incident was fabricated.
40. This matter will require examination in a final hearing where the Court will have the benefit of documents produced on subpoena and cross-examination of the parties.
Turning to a consideration of s 61DA of the Family Law Act 1975 (Cth) (“the Act”) and whether the presumption of equal shared parental responsibility applied, her Honour said:
54. That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence.
55. For the reasons already set out, I consider that there are reasonable grounds for such relief [sic]. Accordingly the presumption does not apply.
56. The mother should have sole parental responsibility on an interim basis for reconsideration on a final basis.
57. As a result the considerations of equal shared time are not triggered or substantial and significant time if reasonably practicable.
No challenge was made to her Honour’s finding that there were reasonable grounds to believe there had been family violence.
Fundamental to the arguments advanced in relation to these grounds was the contention that her Honour made a finding that the father had perpetrated family violence. It was argued that to hold a belief based on reasonable grounds was to all practical and legal effects the same as making a finding of fact. No authority was advanced to support this proposition which flies in the face of abundant authority to the contrary. We reject it.
We do not accept the assertion that her Honour purported to make a finding of fact that the father did assault the mother as she alleged. Her Honour’s consideration that the evidence permitted the formation of a reasonable belief is not a finding of fact nor does it conclude the fact. Whether or not there was an assault as alleged by the mother is a matter to be determined based on a complete examination of the circumstances and other material relevant to the issue at a final hearing.
We do note however that in the circumstances of an interim hearing in which an untested assertion of violence is made, it may have been preferable, in the circumstances of this case, for her Honour not to have been concerned with the provisions of s 61DA(2) but rather with s 61DA(3) which provides:
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
Although the terms of s 61DB of the Act suggest that little, if anything, may ultimately turn on which approach is taken, proceeding pursuant to s 61DA(3) avoids the risk that a determination pursuant to s 61DA(2), as her Honour made in this case, will be interpreted by a parent as amounting to a concluded, adverse finding of fact.
Grounds 3, 4 and 4A
(3) That Her Honour erroneously failed to consider the matters in section 65DAA of the Family Law Act.
(4) That Her Honour erred in making an order that the Mother have sole parental responsibility, without considering whether or not it was in the best interest of the children.
(4A) That notwithstanding the Court’s consideration of s 61DA(3) of the Family Law Act, Her Honour erred in providing no reasons or no adequate reasons why there should be a rebuttal of the presumption of equal shared parental responsibility the consequence being that the mother have an order for sole parenting responsibility of the children.
The real thrust of this ground concerns her Honour’s order that the mother, on an interim basis, have sole parental responsibility for the children. It was argued that the findings of fact made by her Honour in the reasons did not support that finding and the judgment discloses no or no adequate reasons for that order. Nothing to which we have been referred establishes the complaint articulated in Ground 3. Her Honour’s decision was that on an interim basis the presumption did not apply so it was not necessary to consider whether the children should spend equal time with their parents.
True it is that nowhere in her Honour’s reasons does she explicitly articulate the reasons why, in her view, an interim order for sole parental responsibility was in the best interests of the children. However, the respondent argued that when read as a whole, the judgment adequately discloses her reasoning process leading to that order. We accept this argument.
Although it may not have been necessarily in the children’s best interests to make an order for sole parental responsibility on an interim basis, it was apparent that there were significant tensions between the parents. Applying well known principles related to inference to the discretion of a trial Judge, it cannot be seen that the order was in error (see CDJ v VAJ (1998) 197 CLR 172 at 230-232).
In Goode and Goode (2006) FLC 93-286 at 80,901, the Full Court said at paragraph 68:
In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
The Full Court further, at paragraph 78, concluded:
The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.
In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court said apropos s 61DA(3) at paragraph 107 with which we agree:
…The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision-making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied…
As was correctly observed by Thackray J in Mazurka & Mazurka [2011] FamCAFC 68 at paragraph 17:
The presumption applies not only when the court is making final orders, but also when it is making interim orders – but in interim proceedings the court is not obliged to apply the presumption if it decides it would “not be appropriate in the circumstances for the presumption to be applied” (s 61DA(3)). There is no guidance in the Act as to the circumstances that would justify the court in determining it is not appropriate to apply the presumption in interim proceedings, but the Full Court in Goode and Goode (supra) at [78], has made clear that the proviso in s 61DA(3) should not be exercised in a “broad exclusionary manner”.
Her Honour made clear and specific findings about matters that she took into account in determining the best interests of the children (at paragraphs 33 and following of the reasons) none of which was challenged. In the paragraphs that follow her indication at paragraph 57 that she intended to make an interim order for sole parental responsibility to the mother she made further findings which support the proposed order for sole parental responsibility to the mother.
We are of the view that when read as a whole, and in the light of the limitation of such an interim order by reason of s 61DB of the Act, the judgment sufficiently exposes her Honour’s reasoning process.
Grounds 5 and 6
(5) That Her Honour erred in failing to consider the status quo principle as a factor, taking into account that the children had lived in an approximate equal time arrangement with their parents for about twelve months up until the time of the interim Hearing.
(6) That Her Honour erred in failing to provide any reasons or adequate reasons, as to why the status quo or at least a similar regime to the status quo of the previous twelve months, was rejected.
In the reasons, her Honour carefully considered the circumstances that prevailed after separation and before the matter came to court and clearly took them into account in coming to her decision. We observe that it was uncontroversial that, at least for the two younger children, the “status quo” was proving difficult and required reconsideration.
Counsel for the father conceded that these grounds amount to a challenge to the exercise of her Honour’s discretion. This is a difficult argument as explained by the well known obligation articulated in Gronow v Gronow (1979) 144 CLR 513 at 519 by Stephen J:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
We have considered the detailed submissions of the father on this point and conclude that no ground has been established to disturb the exercise of her Honour’s discretion.
Ground 7
(7) That Her Honour erred in failing to provide any reasons or adequate reasons, as to why, subject to independent accommodation, the children should spend only two nights per fortnight with the Father.
No submissions were made on this ground and given that we were told that the father had secured independent accommodation shortly after the orders were made, this ground has fallen away. It is however worth noting that once the father had obtained his own accommodation, the regime for spending time with the children was almost equivalent to that which occurred before the hearing, albeit not in sequential days.
Ground 8
(8) That Her Honour erred in failing to provide any adequate reasons, as to why it would be the Mother not the Father, who should have exclusive occupation of the former matrimonial home.
Again, this ground is rendered irrelevant since the father has secured his own accommodation and, although counsel for the father declined to abandon the ground, he made no further argument in relation to it. We do not propose to consider it further.
Conclusion
It follows that none of the asserted grounds is successful. The appeal will therefore be dismissed.
Costs
As is our custom we sought submissions on the questions of costs at the conclusion of the argument. Counsel for the father conceded that, if the appeal failed, the father should bear the costs and we propose to make that order.
We note that at the beginning of the hearing the court questioned the utility of bringing an appeal against an interim order where at the highest, if the appeal did succeed, all this court could do is remit it for a further interim hearing and in the meanwhile the orders of the trial Judge would persist.
It is in our view entirely appropriate that the father bear the costs of the failed appeal.
I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Ainslie-Wallace JJ) delivered on 16 February 2012.
Associate:
Date: 16 February 2012
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