Graham & Maddox

[2007] FamCA 648

FAMILY COURT OF AUSTRALIA

GRAHAM & MADDOX [2007] FamCA 648

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – EVIDENCE - whether magistrate erred in failing to receive report of psychiatrist and failing to order single expert’s report.

APPEAL – PRACTICE AND PROCEDURE – DNA test revealed respondent not child’s biological father - whether magistrate erred in failing to suspend or vary terms of orders previously made - whether magistrate erred in failing to suspend order that  parties have equal shared parental responsibility for the child – magistrate indicated in reasons for judgment was appropriate to suspend order but omitted to do so -  Appeal allowed only in relation to magistrate’s failure to suspend order for equal shared parental responsibility – order suspended.

Family Law Act 1975 (Cth)

Gronow v Gronow (1979) 144 CLR 513

APPELLANT: Ms Graham

RESPONDENT: Mr Maddox

FILE NUMBER: ADM 2869 of 2006

APPEAL NUMBER: SA 30 of 2007

DATE DELIVERED: 3 July 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 June 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 15 March 2007

LOWER COURT MNC: [2007] FMCA fam236

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Berman

SOLICITOR FOR THE APPELLANT: Tindall Gask Bentley

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Robinson & Mason Solicitors

Orders

1. That the appeal be allowed.

2. That paragraph 1 of the orders made by the Learned Federal Magistrate on 15 March 2007 be varied to read as follows:

   “That save and except for paragraph 1 the order of 9 October 2006 do continue and recommence on 16 March 2007.”

3. That there be a new paragraph 1A inserted in the said orders as follows:

   “1AThat until further order paragraph 1 of the order made on 9 October 2006 be suspended.”

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Graham & Maddox.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 30 of 2007
File Number: ADM 2869 of 2006

Ms Graham

Appellant

And

Mr Maddox

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal by the mother against paragraph 1 of the orders made by Mead FM on 15 March 2007 which provided for the continuation of her Honour’s interim consent orders made on 9 October 2006 that the parties have equal shared parental responsibility for the child M born in November 2004 and that he spend time with the respondent.

2. The mother also filed an Application in a Case on 17 May 2007 seeking an order that the report of Dr B dated 12 February 2007 “be received into evidence in respect of” this appeal.  At the commencement of the hearing of this appeal I challenged the mother’s counsel as to the basis of this application.  Given that it was a report obtained for the purposes of the hearing before Mead FM on 12 February 2007, and given that her Honour refused to receive it at that hearing, and given that that refusal is one of the grounds of this appeal I indicated that there was no basis on which the report could be received as fresh evidence.  In response, the position of the mother’s counsel became that if the appeal was allowed the report should be received as part of the evidence on which I should re-exercise the discretion and make the orders sought by the mother.

3. This is an appeal from a discretionary judgment, and as Stephen J said in GRONOW v GRONOW (1979) 144 CLR 513 at 519:

   “The constant emphasis of the cases is that for reversal an Appellate Court must be well satisfied that the primary Judge was plainly wrong, the decision being no proper exercise of his or her judicial discretion.”

Brief factual background

1. The parties commenced cohabitation in March 2002 according to the respondent, and in June 2001 according to the mother.

2. The child M was born in November 2004.

3. The parties finally separated in May 2006.

4. The respondent filed an application seeking orders in relation to the child on 25 August 2006.

5. The mother filed a response seeking orders in relation to the child on 27 September 2006.

6. On 9 October 2006 interim consent orders were made by Mead FM as follows:

   “1.That the mother and father have equal shared parental responsibility of the child [M] born […] November 2004.

   2.That [M] spend time with the father as follows:-

   (i)     Each Tuesday from 5:00pm until Wednesday at 9:00am.

   (ii)    Each Friday from 5:00pm until 5:00pm Saturday.

   (iii)   Father’s Day weekend from 5:00pm Saturday until 5:00pm Sunday.

   (iv)That in the event that the father’s birthday on […] April does not fall on a day on which the child is otherwise spending time with the father, for a period from 9:00am April […] until 9:00am April […].

   (v)From 1:00pm November […] until 1:00pm November […] in 2006 and each alternate year thereafter.

   (vi)From 1:00pm November […] until 1:00pm November […] in 2007 and each alternate year thereafter.

   (vii)From Good Friday 9:00am until Easter Sunday 9:00am in 2007 and each alternate year thereafter.

   (viii)From Easter Sunday 9:00am until the Tuesday following at 9:00am in 2008 and each alternate year thereafter.

   (ix)From 1:00pm Christmas Eve until 1:00pm Christmas Day in 2006 and in each alternate year thereafter.

   (x)From 1:00pm Christmas Day until 1:00pm Boxing Day in 2007 and in each alternate year thereafter.

   (xi)At other times pending the mother’s and father’s work requirements to an additional 2 nights per calendar month and provided that the additional nights shall commence at 5:00pm on the first day and conclude at 9:00am on the second day.

   (xii)At such further or other times as agreed between the parties.

   3.That [M] live with the mother at all other times.

   4.That the period of time [M] spends time with the father stand suspended as follows:-

   (i)On the weekend of Mother’s Day from 5:00pm the preceding Saturday night until 5:00pm Sunday.

   (ii)From 9:00am July […] until 9:00am July […].

   (iii)From Easter Sunday 9:00am until the Tuesday following at 9:00am in 2007 and each alternate year thereafter.

   (iv)From Good Friday 9:00am until Easter Sunday at 9:00am in 2008 and each alternate year thereafter.

   (v)From 1:00pm Christmas Eve until 1:00pm Boxing Day in 2006 and each alternate year thereafter.

   (vi)From 1:00pm Christmas Eve until 1:00pm Christmas Day in 2007.

   (vii)At such further and other times as agreed between the parties.

   5.That the parties agree that each parent can take [M] on a holiday interstate or overseas for a period of two weeks each year provided that at least two weeks prior written notice is given and the other parent provides written permission for such travel.

   6.That the parties be restrained by an injunction and an injunction is hereby granted restraining the parties from removing the children from the State of South Australia with out providing the other party at least 14 days written notice of proposed travel.

   7.That the parties be restrained from allowing guns to be present in any house in which the child lives.”

7. In December 2006 the mother sought a paternity test.  That test was undertaken and on 27 December 2006 it was found that the respondent was not the father of the child.

8. On 11 January 2007 the mother filed an amended response seeking that the orders made on 9 October 2006 be suspended and that she have the sole parental responsibility for the child.

9. On 16 January 2007 the father filed an application seeking, inter alia, delivery up of the child in terms of the orders made on 9 October 2006.  After the result of the DNA test was known, the mother had refused to allow the child to spend time with the respondent.

10. On 12 February 2007 Mead FM made an order that the parties attend dispute resolution pursuant to Section 11F of the Family Law Act.  Apparently at this hearing her Honour also refused to receive the report of Dr B.

11. On 8 March 2007 Mead FM heard submissions in relation to the competing interim applications of the parties and reserved her judgment.

12. On 15 March 2007 Mead FM delivered her reasons for judgment and made the orders, paragraph of 1 of which is the subject of this appeal.

The grounds of appeal

1. The mother’s grounds of appeal are as follows:

   “1.Her Honour erred in failing to receive into evidence the report of psychiatrist Dr [B].

   2.Her Honour erred in failing to order the preparation of a single expert’s report.

   3.Her Honour erred in failing to suspend the periods of time the child [M] born […] November 2004 is to spend with the respondent other party pursuant to the Order dated 9 October 2006 pending receipt of the said joint expert’s report.

   4.Her Honour erred in failing to suspend paragraph 1 of the said Order dated 9 October 2006 (providing for the appellant mother and respondent other party to have equal shared parental responsibility of the said child) pending receipt of the said joint expert’s report.

   5.After acknowledging on 12 February 2007 that the circumstances of the parties had changed from that on 9 October 2006, her Honour erred in failing to suspend or vary the terms of the Order dated 9 October 2006.

   6.Her Honour erred in failing to place due weight on all affidavit material filed by the mother in respect of the proceedings.”

2. Ground 6 was abandoned by the mother prior to the commencement of the hearing of the appeal.

Ground 1

1. This ground of appeal is misconceived.  This appeal is against paragraph 1 of the order made by Mead FM on 15 March 2007.  However, the refusal by her Honour to receive the report of Dr B was a ruling made by her Honour at the hearing on 12 February 2007.  There is no appeal against any order made that day.

2. It seems that the justification for inclusion of this ground of appeal is that the hearing on 12 February 2007 was just one part of the overall consideration of the applications of the parties by the Learned Federal Magistrate culminating in her Honour’s orders made on 15 March 2007.  However, her Honour’s decision in relation to the report was not referred to at all in her Honour’s reasons for judgment, and nor in the orders made by her Honour on 15 March 2007.  Thus, in my view there is still no basis for this to be a ground of this appeal.  Nevertheless, this issue was the subject of submissions made by both parties to this appeal, and for completeness I make the following comments, despite not being provided by the appellant with a copy of the transcript of 12 February 2007:

   19.1The written submissions of the mother indicate that the Learned Federal Magistrate refused to receive the report because it was “only obtained with the participation and at the request of the mother’s solicitor; that the father has had no input; and there is a dispute as to all of the fundamental facts”.  Her Honour then said, “I fail to see that I can be assisted by a professional opinion in abstract”.

   19.2The mother’s counsel submits that given that the Learned Federal Magistrate apparently conceded that an extensive report should be prepared by a properly qualified psychologist, the report of Dr B should have been received, its weight assessed and the respondent given an opportunity to respond and/or call separate evidence on the topic.

   19.3In circumstances where all Dr B has is a letter from the mother’s solicitor putting the mother’s version of disputed facts and asking him to provide a report on matters that the mother wishes to have addressed, and where Dr B then does not see either of the parties or the child, I can find no error in the exercise of the Learned Federal Magistrate’s discretion to refuse to receive that report.  It goes beyond just a question of weight, and the Learned Federal Magistrate quite properly was only interested in obtaining a complete assessment report.

   19.4Thus, even if this ground of appeal was properly before me I do not consider that it has any merit.

Ground 2

1. This ground is also misconceived.  Certainly the Learned Federal Magistrate did not order a single expert’s report on 15 March 2007.  However, her reasons for not doing so were quite clear and perfectly proper.  The mother had not yet named the biological father of the child and the Learned Federal Magistrate indicated that until that occurred and he is given the opportunity to be involved in the proceedings, there would be no point in ordering a report.  The Learned Federal Magistrate said this in paragraph 61:

   “The court needs expert evidence to consider what final orders should be made, but the biological father needs to be given the opportunity to be a part of that process if he chooses, because if he chooses to play a role in [M]’s life, then that is a matter that the appropriate expert needs to take into account in terms of how [M]’s time should be apportioned between each of his parents, and the applicant – a person concerned with [M]’s care, welfare and development, in the event that [M]’s best interests are met by him having an ongoing relationship with the applicant.”

2. Thus, her Honour ordered that the mother file an affidavit identifying the father and that he then be served with all of the documents filed in the proceedings.  Her Honour then adjourned the matter to 1 May 2007 when it was hoped that the order for a report could be made.

3. Thus, this ground of appeal has no merit.

Grounds 3 and 5

1. These grounds can be conveniently dealt with together.

2. In summary the submission of the mother is that the Learned Federal Magistrate failed to take into account the importance of the circumstance that a result of these proceedings could be the child not having any relationship at all with the respondent.  The mother says that the importance of this circumstance stems from the fact that the dispute is not between the biological parents, but between one biological parent and a non-biological parent, and the biological parent considers it inappropriate for the other party to have any relationship with the child and she will not facilitate it.  Thus, it is said by the mother’s counsel that it is not in the child’s best interests “to pursue, to resume, to restart a relationship, and certainly not until a report as to whether there should be a relationship or not is obtained”.

3. The mother says that there is no benefit to the child in having a relationship with the respondent, and for the Learned Federal Magistrate to reject that before obtaining the evidence that the Learned Federal Magistrate herself thought was important was an error on the Learned Federal Magistrate’s part.

4. However, I can find no error in the Learned Federal Magistrate’s approach.

5. Until the results of the DNA testing was known there was no issue raised by the mother about the relationship between the child and the respondent.  Indeed, in her affidavit material the mother said that she understood and recognised the need for the child “to form an ongoing relationship with his father and for that relationship to be facilitated by [M] spending frequent periods of time with him”.  That was confirmed of course by the consent order made on 9 October 2006.

6. The change that then occurred was not as to the fact of the relationship being present, but the mother took the position that because the respondent was not the biological father that relationship provided no benefit to the child and should not be permitted to continue.  As the Learned Federal Magistrate said in paragraph 60, after identifying that Section 65C of the Family Law Act is the relevant section pursuant to which the respondent can proceed with his application:

   “There is no doubt that the applicant is a person who is concerned with the care, welfare or development of the child.  For a period in excess of two years he was regarded, by both of the parties in these proceedings, as the biological parent to [M].  It is clear, even though there is a dispute between the parties as to what level of care he provided for [M] in the first 18 months of his life, and the months after the parties’ separation and prior to the order of 9 October 2006, that the order made by consent between the parties on that day, as I previously said, was an appropriate order.  It took into account the matters properly raised by each of the parties in their affidavit material prior to the making of that order, and was a clear acknowledgment, on the part of both parties, of the importance of [M]’s relationship with [the respondent].  The only circumstance that has changed is that [the respondent] has been determined not to be the biological father of [M].”

7. The Learned Federal Magistrate had to determine whether it was in the child’s best interests to continue orders that were seen initially by both parties as necessary to ensure that the child had the benefit of a meaningful relationship with the respondent, or to cease those orders until at least a report was available which addressed whether the continuation of such a relationship was in the child’s best interests.

8. It is said that the Learned Federal Magistrate should have taken the latter course because the issue now is whether there should be a relationship or not.  However, I do not agree.  Just because the mother says that she will not support a relationship, and a possible outcome may be that there is to be no relationship, does not mean that a relationship which was thought to be in the child’s best interests previously should not be allowed to continue on an interim basis.

9. The Learned Federal Magistrate was satisfied that there were benefits to the child in spending time with the respondent in order to ensure that their relationship was maintained.  To make that finding on an interim basis the Learned Federal Magistrate need not have gone beyond the fact that up to December 2006 the mother acknowledged that the relationship was of benefit to the child, albeit on the basis that she believed that the respondent was the biological father of the child.  The fact that this turned out not to be correct is insufficient on an interim basis to require the cessation of all contact.

10. Mr Berman, the mother’s counsel suggested that an indication of how important and significant even the Learned Federal Magistrate viewed the changed circumstance was her own proposal to suspend the order providing for the parties to have equal shared parental responsibility.  However, I reject this argument.  It is quite clear that what the Learned Federal Magistrate was concerned about here was whether that order could stand given the circumstance that prima facie the respondent was not a “parent”.

11. Thus, in the circumstances I consider that these grounds of appeal have no merit.

Ground 4

1. The respondent’s counsel conceded that the Learned Federal Magistrate erred in not suspending paragraph 1 of the order made on 9 October 2006.

2. In her reasons for judgment the Learned Federal Magistrate clearly said that it was appropriate for that order to be suspended, but then when she came to make her orders she omitted to include such an order.

3. Thus, there is merit in this ground of appeal.

Conclusion in relation to the appeal

1. The appeal should be allowed but only in relation to the failure by the Learned Federal Magistrate to suspend until further order paragraph 1 of the order made on 9 October 2006.

I certify that the preceding
37 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 3^rd day of July 2007.

……………………………………….
Associate