GLADSTONE & GLADSTONE
[2014] FamCAFC 185
•19 September 2014
FAMILY COURT OF AUSTRALIA
| GLADSTONE & GLADSTONE | [2014] FamCAFC 185 |
| FAMILY LAW – CHILDREN – APPEAL – Where the appellant seeks sole parental responsibility for the children’s psychological treatment – Where the judge carefully balanced the parties’ positions – Where the appellant complains that the trial judge failed to sufficiently apply or discuss the factors contained in s 65DAA(5) – Where findings of credit appealed against had no impact on the orders ultimately made – Appeal dismissed. FAMILY LAW – CHILDREN – APPLICATION TO ADDUCE FURTHER EVIDENCE ON APPEAL – Where the appellant seeks to adduce controversial evidence as to the children’s behaviour during implementation of the current parenting orders – Discussion of the principles contained in CDJ v VAJ (1998) 197 CLR 172 – Where the evidence could not have produced a different result had it been before the trial judge – Application dismissed. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Gladstone |
| RESPONDENT: | Mr Gladstone |
| INDEPENDENT CHILDREN’S LAWYER: | Glenn R Thompson |
| FILE NUMBER: | PAC | 2271 | of | 2012 |
| APPEAL NUMBER: | EA | 127 | of | 2013 |
| DATE DELIVERED: | 19 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Thackray & Austin JJ |
| HEARING DATE: | 21 March 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 August 2013 |
| LOWER COURT MNC: | [2013] FamCA 569 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Johnston |
| SOLICITOR FOR THE APPELLANT: | Santone Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Sansom |
| SOLICITOR FOR THE RESPONDENT: | Slater & Gordon |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Christie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Newnhams Solicitors |
Orders
The appeal EA 127 of 2013 be dismissed.
The application to adduce further evidence filed 17 February 2014 be dismissed.
The appellant pay the costs of the respondent, to be assessed if not agreed.
There be no order as to the costs of the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gladstone & Gladstone 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 SYDNEY |
Appeal Number: EA 127 of 2013
File Number: PAC 2271 of 2012
| Ms Gladstone |
Appellant
And
| Mr Gladstone |
Respondent
REASONS FOR JUDGMENT
May J
In a notice of appeal filed on 30 August 2013, Ms Gladstone (“the mother”), appeals from parenting orders made by Johnston J on 6 August 2013, amended on 5 September 2013.
The parties have three children, two boys, M born in 2000 now aged 14 years, W born in 2002 now aged 12 years and a girl, C born in 2005 now aged 8 years.
In summary the orders provided that the parties have equal shared parental responsibility for the children and that the children primarily live with the mother. Orders were made for the children to spend half of the school holidays and special occasions with their father and during term time as follows:
5.That the children live with the husband as follows:
5.1each alternate week (commencing 12 August 2013), being the week following the weekend the children live with the wife, from after school Monday until before school Tuesday with the husband to collect and return the children to and from school;
5.2each alternate weekend (commencing
2215* August 2013), from after school Thursday to before school Monday each alternate weekend with the husband to collect and return the children to and from school;…*Amended pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth) on 5 September 2013.
It is order 5.2 which is the subject of the appeal.
It is also complained that an order should have been made giving the mother sole parental responsibility for the children’s psychological treatment. This was an order sought by the Independent Children’s Lawyer (“the ICL”) at the trial.
The ICL does not support the appeal.
background
A particular focus of the trial heard in January and July 2013 was the needs of the child M and the assessment of each of the parents’ parenting capacities.
The child M was three years of age when the mother noticed that he behaved differently from other children, not interacting and being rigid and obsessional. The mother took M to a paediatrician, who assessed him as “being bright but thought that there might be issues about his social interaction” (at [31]). In 2007 M was assessed by a consultant psychologist, and his opinion was that M had “Asperger’s tendencies” (at [32]).
Between 2009 and 2010 the parties’ relationship experienced difficulties. The mother thought that the father was suffering from depression. They both attended upon Mr L. In early 2010 the father said he observed the mother having difficulties with the management of the children. In February 2010 the father threatened suicide when the mother informed him that she wanted to separate. In mid 2010 the father was hospitalised and at that time M’s behaviour deteriorated, which included the child talking about suicide. The mother ceased consulting Mr L and in August 2010 commenced consulting with Ms S, a psychologist.
The parties attended counselling between February and November 2011 with Relationships Australia and separated under the same roof in December 2011. In March 2012 the mother purchased a home and in April 2012 the parties informed the children that they would be separating. In May 2012 the mother and the children moved to the mother’s new home.
The mother informed the father in September 2012 that she was seeing Mr T, a family friend of many years.
Between July 2009 and September 2012 both parties individually took some, or all of the children, on holidays within Australia and overseas.
In July 2012 interim orders were made by consent for the children to live with the mother and spend time with the father each alternate weekend from after school Thursday to before school Monday and during holidays. In the reasons his Honour refers to a significant incident that took place in August of 2012 (at [64]):
On 18 August 2012 after speaking to the wife on the phone [M] became extremely agitated and did not want to spend the night with his father. The husband took the phone from [M] who said “I’m going to hit you” to which the husband replied “Go on hit me”. [M] punched the husband who then said “Do it again”. [M] apologised to the husband that evening. The husband regretted the way he handled this incident.
On 10 October 2012 there was a further interim hearing where orders were made by consent reducing the children’s time with the father and for M to attend therapeutic counselling. The matter was transferred to the Family Court of Australia. Further consent orders were made on 25 October 2012 by a Registrar in relation to therapeutic counselling with M. The following day the parties attended an interview with W’s teacher about schooling concerns.
In general terms it can be said that at the time of trial M demonstrated significant difficulties.
grounds of appeal
The grounds of appeal are as follows:
1.That his Honour erred at law in failing to apply the provisions of S. 65DAA(5) in making order 5.2 and in finding that it was reasonably practicable to make such an order;
2.That his Honour erred in making findings of credit adverse to the wife in circumstances where such findings were not necessary to make in relation to the orders that the children remain primarily in the care of the mother.
3.That his Honour erred in the exercise of discretion in not ordering that the mother have sole parental responsibility for the children to have psychological treatment.
The orders the appellant seeks as contained in the notice of appeal are:
1.That orders 5.2 of the orders of Johnston J made on 6 August 2013 be discharged.
2.That in lieu of order 5.2 order that:
“5.2 each alternate weekend from after school Friday to before school Monday each alternate weekend with the husband to collect and return the children to and from school.”
3.That the mother have sole parental responsibility for:
a.deciding upon psychological treatment for any of the children; and
b.for appointing appropriate psychologists from time to time;
provided that she inform the husband upon making such decisions, provide him with the name and contact details of any psychologist so appointed and authorise any such psychologist to provide full information to the father of the treatment being provided, diagnosis and prognosis.
4.That the Respondent pay the Appellant’s cost of and incidental to this Appeal.
During submissions counsel for the mother ultimately conceded that if the appeal is to be allowed, it is inevitable that a new trial be ordered. In part this is because of the further evidence sought to be adduced, to which I will refer before discussing other aspects of the appeal. The application in relation to the further evidence is opposed by the father and the ICL.
The alternative suggested by counsel for the mother is that paragraph 5.2 of the orders be set aside in part and that new orders be made to the effect that the child M is not required to commence his time with the father until Friday rather than Thursday.
application to adduce further evidence
On 17 February 2014 the mother filed an application in an appeal seeking to adduce further evidence in relation to events that have occurred since the orders were made. The mother filed an affidavit in support of the application and an affidavit of Mr T. In summary the evidence in those affidavits is concerned with the following issues:
·That the children, especially M, have not settled into the new arrangements and that their relationship with their father has deteriorated;
·That the father alleges that the mother is alienating the children from him;
·Allegations raised by the father that Mr T is a negative influence on the children;
·The inability of the parents to mutually agree on counselling for M.
The affidavit of Mr T refers to a letter sent by the solicitors for the father dated 4 February 2014 asserting that he has a negative “influence…on the children”. Mr T denies that when with the children he makes remarks critical of people based on their weight, race or abilities, or that he conducts himself inappropriately in public.
It is necessary for the appellant to demonstrate that the evidence fits within the well-known principles contained in CDJ v VAJ (1998) 197 CLR 172. There is no doubt that the power conferred by s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) is discretionary and not limited in any way by the statute. However, reference to the following well-known paragraphs of CDJ v VAJ demonstrates that the nature of such power is not unfettered. At [109] their Honours McHugh, Gummow and Callinan JJ said:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
It could not be seen that the evidence of Mr T sought to be adduced by the mother falls within the requirements of CDJ v VAJ.
The lengthy affidavit of the mother is largely concerned with the deterioration of M’s relationship with his father. In particular, the mother explained that the child has not wanted to be with his father on the Thursday night leading into the weekend and that there have been constant difficulties. The problems apparently reached a climax when M hit his father on 2 February 2014. The mother says that there has been considerable reluctance on the part of the other two children on a number of occasions to visit their father and that their brother’s behaviour is affecting them.
The respondent father seeks that such evidence not be adduced in the appeal.
Even entirely accepting the evidence of the appellant contained in the two affidavits, it needs to be observed that this is a continuation of her evidence presented at trial, of which his Honour was fully aware. It does not seem to have any direct relevance to the grounds pursued other than the issue of Thursday night and possibly in relation to the mother having sole authority as to counselling for the child M. It cannot be seen that this evidence would have produced a different result had it been before the trial judge.
In my view, such evidence is not appropriate to be adduced in an appeal and rather, could be the basis of an application to vary the existing orders. As their Honours said in CDJ v VAJ at [119]:
Furthermore, the operation of s 65D, which contemplates subsequent applications, has to be taken into account:
"(1) In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.
(2) Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order."
Applications for a variation of an order, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal.
Usually the court would reserve the question of a decision in relation to further evidence until after all of the grounds of appeal have been considered. However, in this case the grounds being so narrow and the evidence not falling within the parameters of CDJ v VAJ, is it quite clear to me that the application to adduce further evidence should be refused.
the appeal
As can be seen from the grounds of appeal, two issues emerge:
1.The time ordered for the children to live with the father and in particular that the trial judge:
·Failed to apply the provisions of s 65DAA(5) (Ground 1); and
·Erred in making adverse credit findings in relation to the mother where such findings were unnecessary (Ground 2).
2.The application by the mother, at trial supported by the ICL, that the mother have sole parental responsibility for the children’s psychological treatment (Ground 3).
Ground One – Time with the father each alternate Thursday night
Section 65DAA provides:
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents
…
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
(emphasis added)
The argument in this respect is that the trial judge failed to have any proper regard to the parents’ current and future capacity to enter into arrangements for the children to spend substantial time with the father. Further, that his Honour made insufficient findings in this regard and where conclusions were drawn they were against the weight of evidence.
It hardly need be said that in considering this section the judge need only refer to those sub-sections which are relevant and contain an issue in the proceedings. In these proceedings, there was no dispute that the time should be substantial and significant.
The reasons of his Honour were lengthy, some 313 paragraphs. In view of the limited grounds of appeal and the nature of this appeal, it is not necessary to refer to the reasons at length. The arguments accompanying ground 1 were focussed on paragraphs 5(b), 5(c) and 5(d) of s 65DAA.
The trial judge was aware of the children’s views that they wished primarily to live with their mother and to spend time with their father. It was submitted by the ICL (at [168]) that the children’s views were relevant but not determinative. Further, it was submitted that the children should not be forced to spend time with their father for periods inconsistent with their views. The judge found:
170.In relation to the ability of the parents to facilitate a relationship with the other, there is no issue about this. The wife has some resistance to there being an increase in time between the children and their father.
171.In relation to the likely effect of any changes in the children’s circumstances including separation from either parent, Dr [MM] said that the children, especially [M], would not cope with change very well. He seemed to be saying that in particular they would miss their mother during times absent from her care. Dr [MM] was critical of the wife as primary parent for not being able to achieve the children attending school as required. So that a positive effect of change would be that the husband’s parenting style was more compatible with getting the children to school on time.
172.The submission then referred to the capacity of each of the parents. To some extent the wife’s parenting capacity has been compromised. The wife did not necessarily deny some of the allegations that the husband made as referred to above. It was clear that the children were present during some unpleasant incidents when the parents’ relationship was breaking down. The husband also had his own vulnerabilities in 2010. The wife spoke about feeling some jealousy when she observed the children having fun with their father at a time when she felt she was doing the hard work with the children. She was criticised for attending the husband’s home at 4:30 am and for crying. These matters do not impact on her ability to provide appropriate care for the children. [M] is a child with particular needs and the wife has taken him to doctors and behavioural scientists as appropriate.
…
180.In relation to the likely effect of any changes in the children’s circumstances, Dr [MM] was unable to say that a week about arrangement with each parent was contrary to the children’s best interests. This suggests that the change would be manageable and that it would be reasonably practicable because the parents live relatively close to one another. The husband conceded that the parties’ relationship was poor. But it was also conceded by the wife that since mid-2012 the parties had been able to correspond by text messages about sporting activities and they had been able to coordinate a number of school activities. With conclusion of the litigation, they would be likely to be able to be more cooperative about the children’s various needs.
…
187.In relation to the husband’s application for the children to live with each parent week about, such an arrangement generally only works where the parents have a high level of cooperation. The husband said that at present he and the wife were not getting on, they have differences of opinion about assistance from psychologists, the children would not be accepting of an equal time arrangement and that the matter did not appear to be one where the children’s best interests would be served by an equal time arrangement.
…
190.Once the litigation was concluded the children could be expected to settle down.
Under the heading referring to s 60CC(3)(c) his Honour said:
249.It appears that all three children, especially [M], had difficulty settling into the arrangements of living with their parents separately. This appears to have manifested itself in some strong resistant behaviour by the children against staying at their father’s home.
250.The wife said that after the orders of 20 July 2012 were made, that is alternate weekends Thursday to Monday and the intervening Wednesday after school, the children had a lot of difficulty settling into spending time with their father overnight.
251.Having said this, things now appear to have largely settled down, with the children having been able to move between households without too much difficulty.
Under the heading sub-section 60CC(3)(f), being the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs, his Honour referred to the expert evidence of Dr MM in relation to the parents and the child M. Dr MM was apparently critical of how the father managed the occasion when the child M hit him (at [262]). It was the opinion of Dr MM (at [264]) that the father “lacked the degree of emotional attunement and awareness of the children’s developmental needs”. The doctor otherwise did recognise that there were some benefits in the father’s parenting style.
Under the heading sub-section 60CC(3)(l), being whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings, his Honour formed the view that the parents would abide by the Court’s decision in relation to school placement for M and that each of the parents demonstrated the ability to compromise their respective positions. As his Honour no doubt correctly states in [279], he endeavoured to accommodate the parents’ various concerns given the requirement that the orders must be in the best interests of the children. In relation to practical concerns his Honour explained that the father has flexibility in his working hours and that he would be able to deliver the children to and from school. In addition the father would be able to call on his parents who live nearby and could assist.
Although there was no suggestion that his Honour mistook the law, it is appropriate to mention that in the context of the operation of s 65DAA(1) reference was made to the High Court decision MRR v GR (2010) 240 CLR 461 at [289] of his Honour’s decision. Reference was then made to the expert evidence of Dr MM that the best order for the children would be significant and substantial time with their father (at [299]). After appropriate reference to the legislation his Honour asked the question as to how substantial should those periods be in the children’s best interests (at [305]). A significant paragraph in terms of the grounds of appeal is as follows:
311.I have not forgotten the wife’s evidence that there were difficulties with the earlier orders when the arrangement included Thursday nights. And the children made some criticisms to Dr [MM] about this. But things have moved on since then. The wife and children have become settled in [Suburb B]. The children are older. The husband has accepted the reality of the family’s changed circumstances and is most desirous of making time available for the children. There is reason to be optimistic that much of the emotional parenting behaviour of the earlier time which had such an unsettling effect on the children will be a thing of the past. With the completion of the litigation, the circumstances for the whole family should become even more settled.
312.I am hopeful that the parents will be able to accept the orders I propose and be able to settle the children into the changed parenting arrangements.
It cannot be said that the judge made an appealable error in his careful judgement. This ground has not been established.
Ground Two – Credit findings against the mother
Although this ground was barely argued, I will refer briefly to the applicable parts of his Honour’s reasons. Early in the reasons the judge gave a separate heading to credit. As to the father he described him as a impressive and truthful witness. In relation to the mother his Honour found:
9.The wife was less responsive in her answers to questions. On many occasions she said that she did not recall specific matters which were put to her. I had the view that on some occasions it was more probable than not that her failure to recall was accurate but I could not say this in respect of each time she answered a question in this way.
10.I had the overall view that she was far less forthcoming than the husband and I did not have anywhere near the same degree of confidence in the reliability of her evidence as I did with that of the husband.
11.During the last couple of years of the marriage, the wife failed to inform the husband that she was having a romantic relationship with their mutual long-standing friend Mr [T].
12.I regard the wife as much less convincing in her evidence than the husband. Generally, where their evidence conflicts, I have no hesitation in preferring that of the husband.
After dealing in considerable detail with the evidence before him and appreciating that some of the mother’s behaviour was in the context of what his Honour described as “the strain of remaining in an unhappy marriage” (at [89]) his Honour then said:
96.This leads me to the finding that it is more probable than not that what he has alleged is true. The clear picture which emerges is of a mother who over the relevant period had difficulty parenting the children in the circumstances which were presenting at that time.
97.But in my view, to be fair to all parties and especially the children, on the wife’s evidence, 2010 and 2011 was a very bad time for her. She had become very unhappy in the marriage. She had informed the husband early in 2010 that she wanted to separate. She said that he had become very depressed about this possibility and in such circumstances she felt unable to separate. She said that she felt trapped. [M’s] behaviour had been very challenging for each of his parents for some years.
In my view, it cannot be seen that his Honour’s conclusions in relation to the veracity of the mother’s evidence influenced the orders he made, especially those in relation to the time to be spent by the children with their father. That being the order appealed in the notice of appeal, this ground could not succeed. As will be seen the reasons given for refusing the mother’s application to be solely responsible for the children’s psychological care and well-being had no connection with his Honour’s credit findings against the mother. In any event, the complaint about credit findings is not part of the contention that the mother should have been given sole parental responsibility for psychological treatment.
Ground Three – Sole parental authority for psychological treatment
The guiding light for any consideration of an appeal in this court from a discretionary decision is House v The King (1936) 55 CLR 499 particularly at page 504 - 505:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
The mother’s complaint is that the judge erred in his discretion by failing to order that the mother have sole parental responsibility for the psychological treatment of the children which was “against the weight of evidence”.
There is no doubt that the ICL at trial supported the application of the mother that she have sole parental responsibility for the children’s psychological treatment. In addition, there can be no doubt that there were very good reasons for that position to be taken at trial. The ICL now does not support this or any other aspect of the appeal. In my view, the fact that it was an option available to his Honour does not demonstrate that his Honour’s decision was so against the weight of his evidence that the appeal in this respect should be allowed.
His Honour first and correctly applied the presumption that it was in the best interests of the children that the parents have equal shared parental responsibility. As the ICL submitted, the issue then was whether there were proper reasons for an order allowing the mother the exclusive decision making in relation to psychological treatment. The mother asserted that the father was opposed to treatment while the father maintained he was supportive, if it was necessary. It can be seen from the reasons that his Honour considered this carefully. The father did hold different views from the mother in relation to the children’s needs and did express concern as to whether M needed treatment. The question then was; how did his Honour bring a balanced judgment in relation to the different positions of the parties?
The judge dealt with this issue under a separate heading “Counselling and Psychological Intervention” commencing at [204] of the reasons. In summary his Honour said:
228.The husband is intelligent, highly committed to the best interests of his children and generally capable of good judgment in relation to them. He has impressed me as having been a very good father. It would appear that the parents occupy different positions on a scale of readiness to engage with psychologists, with the wife being very ready to do this and the husband less so. If the husband had not been able to speak positively about Mr [L]’s assistance to [M] I would have been concerned about his capacity to make appropriate decisions about this area of parental responsibility and I would have been more inclined to accede to the wife’s application. I do not have the view that the husband has an aversion or disrespect towards psychologists and counsellors, or that he would not be able to bring balance to a judgment about the appropriateness of engaging such professionals to assist the family.
229.In my view, it would not be in the children’s best interests to remove from the husband this important area of parental responsibility, especially bearing in mind that it might become likely that the psychological or counselling intervention for the children at some point might require involvement by the husband.
It cannot be seen that there is any error in the decision made by the trial judge.
COSTS
At the conclusion of the hearing of the appeal, counsel made submissions in relation to costs. Counsel for the appellant, quite properly conceded that should the appeal be dismissed it would be difficult to resist an order in favour of the respondent. The respondent did seek an order for costs and in view of my reasons such an order should be made. The court was informed, without objection, that the appellant has significant financial resources to allow her to meet an order for costs.
The ICL was funded by the parties, equally meeting the expenditure. Counsel for the husband made application that the wife alone pay for the costs of the ICL. In the circumstances of this case I do not see that the wife should solely meet the costs of the ICL, whose counsel appeared at the appeal and provided assistance.
Thackray J
I agree with the orders proposed by May J and I also agree generally with her Honour’s reasons, but wish to add some remarks, particularly about Ground 1.
In support of Ground 1, counsel for the wife submitted that the trial judge erred because he failed to make findings in respect of “each and every sub-section” of s 65DAA(5) of the Family Law Act 1975 (Cth) (“the Act”).
Subsection 65DAA(5) provides as follows:
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In dealing with Ground 1, May J has said, at [32], that there was agreement at trial that the father should have “substantial and significant time” with the children. I accept this is an inference that can properly be drawn from the reasons of the trial judge, although his Honour did not expressly find that the mother’s proposals constituted “substantial and significant time”.
At [176] his Honour recorded:
In relation to the amount of time to be spent with each parent, the Full Court said in Goode & Goode (2006) FLC 93-286 at page 80,901 that there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children. A primary consideration is for children to have a meaningful relationship with each of their parents. The proposal by the ICL would probably meet the requirements for substantial and significant time. But the wife’s proposal for the children to spend time with their father from 5.00 pm Friday to 5.00 pm Sunday each alternate weekend and four hours after school each Wednesday (as originally proposed by the wife in her Amended Response filed 16 July 2012) would struggle to fulfil the requirements about meaningful relationship.
It can be readily seen that where his Honour said “meaningful relationship”, in the last sentence of [176], he intended to say “substantial and significant time”. In any event, having discussed the evidence and the competing proposals, his Honour went on to say at [310]:
The view which I have arrived at is that it would be in the interests of the children to put in place an arrangement which is as clear and uncomplicated as possible. As I have said, the legislation requires that I consider an order for substantial and significant time. In my view, an order which would add Thursday nights to the alternate weekends during which the children would be in their father’s care, not forgetting the intervening Monday nights, would be an order which would fit the requirements of s 65DAA(2)…
Sub-section 65DAA(2) is the provision which requires a court to consider making an order for “substantial and significant time” in cases where an order for equal shared parental responsibility is to be made. I accept that his Honour’s remarks at [310] could be read as implying that he was of the view that it was only the addition of the alternate Thursday overnight visit which transformed the arrangement into one which constituted “substantial and significant time”.
However, his Honour had earlier recorded the mother’s final proposals made at trial for the father’s time with the children. These were summarised by his Honour at [6], as follows:
(a)each alternate week, being the week following the weekend the children live with their mother, from after school Monday until before school Tuesday
(b)each alternate weekend from after school Friday until before school Monday;
(c)for one half of each school holiday period as well as during Christmas/January holidays; and
(d)at specified times on certain special days.
Reference to the mother’s Case Outline indicates that the “special days” referred to were Easter, Father’s Day and the birthday of each child.
In my view, the proposals made by the mother answer the description of “substantial and significant time” contained in s 65DAA(3) of the Act, which provides as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The question then arises whether or not the trial judge erred in failing to discuss each and every one of the matters referred to in s 65DAA(5) by express reference to that provision. In dealing with this issue, it is instructive to reflect on the following extract from the recent decision of the Full Court in SCVG & KLD (2014) FLC 93-582 at 79,155:
77.Goode, and the cases that followed, establish that because these parties have equal shared parental responsibility for the children, s 65DAA required consideration. Goode and Marvel v Marvel (2010) 240 FLR 367 also establish that even where neither party applies for an equal time or substantial and significant time order, if there is or will be an order for equal shared parental responsibility in favour of a child’s parents, the court must consider whether or not such an order would be in the child’s best interests. However, neither Goode nor Marvel address the application of s 65DAA in a case where an earlier final order for equal shared parental responsibility is to continue, equal time had previously been refused and it is common ground that an equal time order would not be in a child’s best interests. Nor do those cases address the effect on the ultimate determination of earlier concessions or agreements.
78.In this regard, it is useful to recall that the necessary content of reasons for judgment depends upon the context in which they are given. Thus, factual and legal concessions, if accepted by the court, may conclusively deal with factors that legislation requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding.
79.In an application for parenting orders to which the provisions of Division 12A of Part VII of the Act (Principles for conducting child-related proceedings) apply, the court may adopt the parties’ agreement that notwithstanding they will have equal shared parental responsibility, an equal time order should not be made. In so doing, issues are narrowed and, consistent with the principles set out in s 69ZN(6) of the Act, the proceedings are conducted in a way that promotes co-operative and child focussed parenting. Bearing in mind that the court is to actively direct, control and manage the conduct of the proceedings (s 69ZN(4)) and pursuant to s 69ZQ(1)(a) decide which of the issues requires full investigation and hearing and which may be disposed of summarily, there is a clear framework within which issues may be resolved in stages leaving only the most contentious for determination after a defended hearing.
80.Thus where there is agreement that notwithstanding an order for equal shared parental responsibility has or will be made, an order for equal time would not be in the child’s best interests, in agreeing to allow the hearing to proceed in this manner the court has, in effect and substance, considered both s 61DA (which in any event the existence of the order for equal shared parental responsibility renders irrelevant) and s 65DAA(1). With those matters resolved early in the proceedings, notwithstanding the “legislative pathway” described in Goode, ss 61DA and 65DAA(1) need not be addressed again.
81.One question which must then be considered is whether it is necessary to couch any such concession or agreement in the language of the Act to amount to it being “consideration” of ss 65DAA(1) and/or (2) to the effect that orders of that type would not be in the child’s best interests. Or, whether the identification of the terms of the agreement and of the issues to be determined can be sufficient to establish facts from which an inference may be drawn that the court has considered and decided against an order for either equal time or substantial and significant time. Although it would be preferable and avoid doubt if s 65DAA was explicitly referred to, there are circumstances in which it can be safely inferred from the facts and circumstances of the case before the trial judge that the provision was considered. This is such a case. In this case the fact that the parties were legally represented and had for years engaged in litigation conducted under essentially the same statutory framework, where the transcript and reasons disclose a common view about the legal and factual matters in issue and the matter was not yet complete, the inference that ss 65DAA(1)(a) and (2)(c) was considered readily arises.
Section 65DAA(5), which requires a court to “have regard to” certain matters, employs a different wording than that used in s 65DAA(1) and s 65DAA(2), which require a court to “consider” certain matters. We did not receive any submissions on the relevance, if any, of the difference in wording. For present purposes, I am content to proceed on the basis that the variation in wording is irrelevant. The principles enunciated in SCVG & KLD therefore have equal application to examination of the complaint that the trial judge did not have “regard to” all the matters referred to in s 65DAA(5).
In my view, the wife, having herself proposed a “substantial and significant” time regime, cannot reasonably complain about the failure of the trial judge to expressly discuss each of the relevant matters by reference to s 65DAA(5). This is so because it can be properly assumed that she had conceded that consideration of those matters would lead to a finding that an order for “substantial and significant time” was reasonably practicable. In order to establish appealable error, the wife would accordingly need to point to some failure on the part of the trial judge to have proper regard to evidence which demonstrated that her proposal for “substantial and significant time” (which had the alternate weekend visit starting on Friday) was “reasonably practicable”, whereas the order made (which had the visits starting on Thursday) was not “reasonably practicable” – in circumstances where her own proposal involved an overnight visit each alternate Monday, as was ordered.
The wife, in my view, did not point to any evidence which would demonstrate that the order made was not reasonably practicable, nor to any deficiency in the reasoning by which his Honour expressly found that the order was reasonably practicable. On the contrary, the trial judge gave cogent reasons why he considered the regime involving one additional overnight visit a fortnight would be “reasonably practicable”, and in doing so effectively touched on the matters in s 65DAA(5), even though he did not refer to that provision.
His Honour’s reasons can be ascertained from the paragraphs from his judgment extracted by May J at [34], [35] and [38] of her reasons – to which I would add only [304] where his Honour said:
There is no question, in my view, that it would be in the interests of these children to make an order for the children to spend substantial and significant time with their father. As indicated above, the children have close and loving relationships with him. I propose to express such an order in terms of the children living with their father rather than spending time with him because he is such a good and competent father and has such a focused commitment to the children. And it will be practicable to make such an order because there will not be any physical or logistical hurdles to the children passing between households and because the husband will manage his employment demands to enable him to be available to the children.
I would dispose of Ground 2 simply by saying it discloses no appealable error.
Ground 3 also discloses no appealable error; however, counsel for the mother in his submissions asserted that the trial judge’s discretion miscarried because the decision about parental responsibility was “against the weight of the evidence”. In addition to adopting May J’s reasons for rejecting this complaint, I would also adopt the succinct summary of argument of counsel for the Independent Children's Lawyer, who said:
18. The Independent Children’s Lawyer at trial supported the application of the mother that she have sole parental responsibility for the children’s psychological treatment.
19. It is appropriate to note that the Independent Children’s Lawyer considered that this order was in keeping with the available evidence. However, the Independent Children’s Lawyer does not accept that His Honour’s decision was so against the weight of evidence as to attract appellate intervention.
20.His Honour was entitled to apply the presumption that it was in the interests of the children that the parents have equal shared parental responsibility unless the evidence rebutted the presumption in respect of this issue so as to conclude that it would not be in the children’s best interests: section 61DA(4).
21. The issue was whether or not the father was averse to the provision of psychological treatment for the children where warranted.
22. The mother asserted that the father was opposed to psychological intervention while the father maintained that he was supportive if he formed the view it was required. The Judge canvassed the evidence in detail (AB48 - 51)
23. The Judge accepted that the father would seek appropriate treatment if required. In those circumstances the order was open to the Judge.
24. In fact both parents were in agreement at the time of trial that their son [M] did not presently require psychological assistance (Mother: AB783:32-33).
I agree with May J’s reasons for the costs orders she proposes.
Austin J
I agree with the orders proposed by May J and agree generally with the reasons given by both May and Thackray JJ.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 September 2014.
Associate:
Date: 19 September 2014
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