Green & Graham - [2011] FamCAFC 248

FAMILY COURT OF AUSTRALIA

GREEN & GRAHAM

[2011] FamCAFC 248

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Appeal against interlocutory orders of a Federal Magistrate ─ Parenting arrangements ─ Where the issue was whether or not the learned Federal Magistrate erred in declining to order supervision by a contact centre on an interim basis in relation to the time the child would spend with the father ─ Where the finding by his Honour that no significant submission was put as to why supervision would be required was inaccurate ─ Where the crux of the challenges was that his Honour failed to give adequate weight to the need to provide reassurance to the mother for the safety of the child, and/or that his Honour failed to give adequate weight to the history of non-contact between the child and her father relative to her young age, the duration of separation and the absence of any evidence of an existing relationship ─ Established that his Honour failed to give adequate weight to the series of findings he had made with respect to the father’s capacity in the way that his Honour had recorded those findings, to the absence of evidence that the child had any relationship with the father at that time, and the father and child having spent no time with each other whenever the separation of the parents occurred ─ Where the failure to give adequate weight to the child’s circumstances had led his Honour into appealable error, in that if his Honour had given proper weight to the child’s circumstances he would have provided supervision at least on an interlocutory basis ─ Appeal allowed ─ Proceedings remitted to the Federal Magistrates Court

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal succeeded on a basis which enlivened the discretion to award costs certificates under the Federal Proceedings (Costs) Act 1981(Cth) ─ Where the Court awarded costs certificates to both parties for the appeal, and costs certificates for the re-hearing of the proceedings in the Federal Magistrates Court

Family Law Act 1975 (Cth) ss 60CC, 93A
Federal Proceedings (Costs) Act 1981(Cth) ss 6, 8, 9

CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

Ms Green

RESPONDENT:

Mr Graham

FILE NUMBER:

PAC

3862

2011

APPEAL NUMBER:

EAA

130

2011

DATE DELIVERED:

22 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

20 December 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 November 2011

LOWER COURT MNC:

[2011] FMCAfam 1313

REPRESENTATION

COUNSEL FOR THE APPELLANT:

N/A

SOLICITOR FOR THE APPELLANT:

Marsdens Law Group

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

Lachlan McAuley

Orders

That the appeal be allowed.
That the proceedings be remitted to the Federal Magistrates Court for re-determination.
That, pending re-determination of the proceedings by the Federal Magistrates Court, order 3 of the orders of the Federal Magistrates Court of 8 November 2011 be varied by the addition of the words “such time to be supervised” after the word “Saturday”.
That, pending re-determination of the proceedings by the Federal Magistrates Court, order 5 of the said orders be varied by the addition of the words “and supervision of time spent with the child” after the word “changeovers”.
That, if the parties agree, time spent may be supervised by the paternal grandmother, provided that, prior to any period of such supervision, the paternal grandmother file a written undertaking with the Registrar of the Federal Magistrates Court confirming that she will terminate any period of supervised time spent by the father with the child in the event of the child becoming distressed, or the father acting in any way which the paternal grandmother considers inconsistent with the child’s best interests.
That the Court grants to the Appellant Mother a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.
That the Court grants to the Respondent Father a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Father in respect of the costs incurred by the Respondent Father in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Green & Graham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 130 of 2011

File Number: PAC 3862 of 2011

Ms Green

Appellant

And

Mr Graham

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

introduction

By Notice of Appeal filed on 11 November 2011, Ms Green (“the mother”), appealed against interlocutory orders made by Federal Magistrate Harman on 8 November 2011 in parenting proceedings between the mother and Mr Graham (“the father”).
The orders of the learned Federal Magistrate related to the child of the parties, O (“the child”), who was born in April 2009. The orders provided that the child live with the mother. That order is not controversial. The order further provided that the child spend time with the father. Before the learned Federal Magistrate, it was not controversial that the child should spend time with the father, the contest being whether, as the mother sought, such time should, pending further order, be supervised, or as the father sought, such time should be unsupervised.
The orders of the learned Federal Magistrate did not require that the father’s time, which was ordered to be on Saturdays from 10am until 4pm, be supervised, although his Honour directed that the parties make arrangements with the Centacare Campbelltown contact centre for the purpose of contact changeovers being facilitated by that service.
His Honour’s orders provided for, in effect, a quarantining of each party from the other by directing that the changeovers occur by the delivering party in the interim, that is, until the Centacare Campbelltown contact centre commenced to facilitate changeovers, delivering the child to the paternal grandmother 15 minutes prior to the scheduled commencement of time, and collecting the child from those premises 15 minutes after the conclusion of time.
The contest before the learned Federal Magistrate and before this Court involves whether or not the learned Federal Magistrate erred in declining to impose the requirement of supervision in relation to the time the child would spend with the father pending further order of the court.
The Court raised with the attorneys for the parties during the hearing of the appeal whether there was any intermediate position, either before the Federal Magistrate or before this Court, namely whether supervision by the paternal grandmother had been agitated in the lower court, or was sought by way of alternate relief in this Court.
As the transcript of the hearing of the appeal would confirm the attorneys for both parties, perhaps in different ways and for different reasons, indicated that there was, and had been, no formal application for what might be thought to be an intermediate position, that is, supervision by the paternal grandmother. The issue is accordingly whether by declining to order supervision by a contact centre on an interim basis, the learned Federal Magistrate fell into error.
The appeal is necessarily within a narrow compass, and although other grounds were articulated in the mother’s Notice of Appeal and her attorney’s submissions, particularly her written submissions, agitated those challenges, as will be seen, and as the course of debate on the hearing of the appeal confirms, there are in effect two issues which emerge from the appeal as issues of potential substance.

background

Recounting some background to the proceedings is hopefully instructive before the Court considers the challenges to the decision of the learned Federal Magistrate.
As is not in doubt, and as is customary, the hearing before the learned Federal Magistrate proceeded “on the papers”, as the expression goes. That is to say, there was no testing of evidence before the learned Federal Magistrate. As is also not in doubt, there was no memorandum or other assistance able to be gained from the parties having conferred with a family consultant. The learned Federal Magistrate thus was deprived of the opportunity of hearing evidence tested, and being able to form an appreciation or assessment, or gain an impression of the parties in the way that such assistance is gained when evidence is able to be tested, albeit the testing of the evidence may be necessarily constrained. His Honour was also regrettably further limited by not having any expert opinion evidence before him to assist in relation to the best interests of the child.
His Honour recorded under the heading “Background” a number of material facts. They are not controversial for present purposes, and can be briefly stated.
The parties agree that they met in or about May of 2008, commenced cohabitation shortly thereafter. The relationship appears to have been turbulent, to use an adjective which is hopefully not inflammatory, but captures what emerges from the findings of fact of the learned Federal Magistrate as having been a feature of the cohabitation.
The parties disagree as to when cohabitation ceased. The mother asserted November 2010. The father asserted July 2010. His Honour was properly, in the circumstances, unwilling to make a finding in relation to that issue, although it is clear from his Honour’s reasons for judgment that the evidence before him suggested that it was more likely that the mother’s contention would in time be found to be correct than that of the father.
His Honour recorded, with respect, correctly, that it was unnecessary for him to make any finding at that time as to when separation occurred in the context of an interim hearing. What emerges, however, is that on the mother’s version of events, at the date of the hearing before the learned Federal Magistrate, the parties had been separated for 12 months. On the father’s version of events, they had been separated for 16 months.
Of greater significance, whenever separation occurred, was the finding of fact made by his Honour, which is not controversial, that from whenever separation occurred until shortly before the time of the child’s second birthday in April 2011, the father did not spend any time with the child. As at the date of the hearing before the learned Federal Magistrate, it was also uncontroversial that between April 2011 and the hearing, the child had not spent any time with the father.
Accordingly, depending upon when separation did in fact occur, the child had spent time with the father on one occasion only, that being in April 2011, in a period of either 12 or 16 months.
His Honour found that the occasion when the father did spend time with the child in April 2011 occurred in the context of the child having been taken by the mother to see the paternal grandmother at the paternal grandmother’s home, and that the father attended on that occasion. His Honour did not make any finding in relation to the exchanges, if any, or interaction, if any, between the father and the child on that occasion, but did find, uncontroversially, that whatever then occurred, the occasion ended less than harmoniously, and its sequel was apparently acted out in the local court subsequently, where charges were preferred by police against the mother in relation to an alleged assault during the course of, whether it was 4, 7 or 8 April 2011. Those charges were dismissed, but the evidence is tolerably clear that the occasion was marred by exchanges between the parents, and perhaps other persons, to which the child would regrettably, on balance, be likely to have been exposed.
The learned Federal Magistrate found, uncontroversially for present purposes, that he:
56.…could not be other than satisfied that there are reasonable grounds to believe that Mr [Graham] has engaged in family violence.
His Honour recorded, that the evidence suggested that over a period of some eight years from the first of a series of convictions recorded against the father that:
61.…there is a long-standing and deep-seated problem which needs to be addressed by Mr [Graham], for it is his behaviour and only he can deal with it. Whether that impression is ultimately borne out is a matter for final hearing.
The learned Federal Magistrate then proceeded to record, that:
64.…I am in a position to have corroboration of one such event which does not only corroborate Ms [Green’s] version but discredits Mr [Graham’s], that alcohol has contributed to violent behaviour and that violence has been perpetrated in the presence of children and towards the other parent.
His Honour then recorded, with respect, appropriately and correctly that:
69.It is incorrect to suggest that family violence can, in any way, be discounted.
In the context of his consideration of the child’s best interests his Honour recorded, that he was “required to consider the parties’ current and future capacity to communicate.” His Honour recorded, undoubtedly correctly, having regard to the findings of fact which he was able to make, that the capacity was “extremely limited”.
His Honour reiterated that there was:
81.…no suggestion that other than the visit that occurred in April 2011, and which would appear to have been arranged between Ms [Green] and Mr [Graham’s] mother, that there has been other than one or two conversations and, as they are described in Mr [Graham’s] material, if nothing else, they are unhealthy and occurred at a time when neither of these parties was in a functioning position to communicate with the other.
The learned Federal Magistrate recorded, in the context of his consideration under section 60CC of the Family Law Act 1975 (Cth) (“the Act”) that:
88.…
c)The relationship that exists at present between [the child] and her father is more difficult to predict. The child has been, for about half of her short life, absent from her father’s environment, both physically and otherwise.
His Honour proceeded to record that:
88.…
d)There is some suggestion on the evidence of both parents that the relationship prior to separation, whenever that occurred, was attenuated with significant difficulties, which no doubt would have impact upon this child’s functioning and ability to form relationships and attachments. However, it is common ground between the parents, and appropriately so, that one needs to now be forward-focussed [sic] and look at a means by which this child can begin to develop a relationship with her father, albeit that this will be in the circumstances of this case effectively from scratch.
Under the heading “The Likely Effect of Change”, his Honour recorded, uncontroversially, that it would be in the child’s best interest that “she now commences a relationship with her father”. His Honour further recorded that that should occur in a safe and secure environment, both for the child and to enable the mother:
90.…
a)… whose anxiety would impact upon her own health and functioning, let alone her relationship and ability to provide for and care for this child, to also feel safe and secure.
His Honour added, that State orders would provide protection for the parties, and particularly the mother, if changeovers occurred at a supervised facility.
The learned Federal Magistrate proceeded to say, without further elucidation, that:
90.…
c)I am not satisfied that supervision is required and, other than the absence of time between her father and [the child], no significant submission is put as to why it would be so.
It is appropriate at this point to interpose that, with great respect to his Honour, the finding that no significant submission was put as to why supervision would be required is inaccurate, and with respect to the attorney then representing the mother, Mr Zoutendijk, does not do justice to the extensive submissions which he clearly articulated before his Honour. During such submissions a series of matters of substance, most if not all of which had a factual underpinning in the evidence as found by his Honour in his subsequent reasons for judgment, were agitated, some of which have been raised in this appeal.
His Honour proceeded to reiterate, in his reasons for judgment, the concerns arising from his findings with respect to the father’s capacity “at least to the extent of acting out violently and/or consuming alcohol or combining the two”. His Honour reiterated the view he had earlier expressed, that by having changeovers occur at a contact centre, the appropriate level of protection would be provided.
The learned Federal Magistrate recorded, with respect, accurately, that:
94.The maturity, sex, lifestyle and background of the child are relevant as this little girl is young. She is dependent entirely upon adults to meet all of her needs. She is not yet of an age where she can communicate substantially, not of an age where she can assert her will and accordingly arrangements must be safe, secure and both parents satisfied that they are so.

The Grounds of Appeal

As noted earlier, a number of grounds of appeal have been articulated. As the attorney for the mother properly conceded, in reality, although not necessarily expressed in precisely those terms, the challenges articulated on behalf of the mother raise what are called, in appellant lexicon, “weight challenges”. That is to say, they do not assert that the exercise of discretion was vitiated by material errors of fact, nor do they assert that the exercise of discretion was vitiated by the failure to have regard to relevant facts or circumstances, or by having had regard to irrelevant facts or circumstances.
The crux of the challenges articulated on behalf of the mother, as the course of debate at the hearing of the appeal confirmed, was that his Honour failed to give adequate weight to the need to provide reassurance to the mother for the safety of the child, and/or that his Honour failed to give adequate weight to the history of non-contact between the child and her father relative to her young age, the duration of separation and the absence of any evidence of an existing relationship.
The attorney for the father properly cautioned the Court against doing what the authorities clearly and consistently, at the highest level, being the High Court of Australia, have affirmed and reaffirmed that the Court must not do. This is not a trial de novo. It is not a hearing at nisi prius. It is an appeal to an intermediate Appeal Court. The hearing is in the nature of a re-hearing, subject to any further evidence being received pursuant to section 93A of the Act, and there is none, the appeal proceeds on the basis that before appellate intervention can be enlivened, appealable error must be demonstrated.
The law in relation to appeals against discretionary judgments is not in doubt. It has been expressed in many cases, commencing most notably with the decision of the High Court in House v The King (1936) 55 CLR 499, and probably no where more eloquently expressed than by Kirby J in CDJ v VAJ (1998) 197 CLR 172, where in pages 230 and 231, Kirby J reiterated what the authorities had consistently held over the decades:
A number of general propositions may be stated:
1. Neither this court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction… (footnotes omitted)

The focus, as his Honour and the earlier authorities make clear, is on whether the decision was “plainly wrong”. The fact that this Court may have reached a different conclusion does not mean that the conclusion reached by the learned Federal Magistrate was plainly wrong. This was a topic which had the potential to lead different minds to different conclusions, largely, as noted at the outset, because the evidence was untested and there was no independent or other evidence impacting upon the probabilities.
The mother contends that his Honour’s discretion miscarried in that he failed to adequately have regard to her justifiable concerns. Whilst his Honour could well, in reliance upon the numerous and significant findings he made in relation to the father’s apparent capacity to provide a safe, secure and appropriate experience via unsupervised contact for the child as a basis for declining to require supervised time to be spent, the Court is not persuaded that it was not reasonably open to his Honour to conclude that supervised contact was not required by virtue of those facts or circumstances.
Put simply, his Honour could have gone either way on that, having regard to the findings of fact which he made about the father’s capacity, the most significant of which the Court has earlier referred to in the identified passages of his Honour’s reasons for judgment. Challenges reliant upon those matters accordingly would not, in this Court’s view, enliven appellant intervention.
It is necessary then, to consider whether his Honour failed to afford adequate weight to the circumstances of the child herself. That complaint is picked up expressly in ground 1 of the mother’s Notice of Appeal, and in her attorney’s outline of submissions.
The following appears in the submissions of the attorney for the mother:
6.It is also submitted that the evidence before the Court was that the mother was the primary carer of the child during the relationship and that there was only one occasion following separation that the father spent time with the child, and that this was under supervision of the maternal grandmother. It is submitted that there was no evidence at hearing that the father had care of the child alone during the relationship or following separation. The evidence at the hearing was also the [sic] that [sic] father had not spent any time with the child for a considerable period following separation. It is submitted that there was no evidence before the Court at Hearing for his Honour to conclude that the father could spend time by himself with the child. It is submitted that the evidence before the Court should have given to his Honour having significant concerns about the father spending unsupervised time with the child and that his Honour should have found that supervised time was in the best interests of the child.
The submissions of the attorney for the father, as noted earlier, reiterate the appellate principles, and also relied upon decisions such as that of the High Court in Gronow v Gronow (1979) 144 CLR 513, and in particular the judgment of Stephen J in that case. Stephen J there explained that the weight liable to given to factors such as that with which this complaint is concerned could vary significantly from judge to judge. The Court approaches this challenge mindful of these statements of principle from the highest court in the land, and mindful of the need to resist the temptation to conclude that because this Court would have reached a different conclusion or outcome that the outcome of the proceedings before the learned Federal Magistrate must be in some way erroneous.
The findings of fact, however, of the learned Federal Magistrate are instructive for present purposes. They have earlier been referred to, but to reiterate some of them, his Honour was clearly aware that whether separation had been of 12 of 16 months duration, there had only been one occasion during that time when the child saw her father, and that was in a supervised context. Regrettably, and without suggesting that it was the fault of the father that it was so, or indeed whose fault it was, that one supervised occasion ended unhappily. His Honour later recorded, again undoubtedly correctly, that relative to the child’s young life she had not had any contact with the father for a significant proportion of it. His Honour recorded that “the relationship that exists at present between the child and her father is more difficult to predict.”
With respect to his Honour, nothing to which this Court has been referred establishes that his Honour had any capacity to predict what the relationship was, given the dearth of evidence before him. His Honour recorded the absence of the father from the child’s life. His Honour had earlier in his reasons expressed reservations about the father’s capacity in the terms which have earlier been referred to by reference to specific passages in his Honour’s reasons for judgment. As noted earlier, his Honour recorded that for the child to now commence a relationship with her father would be in her best interests.
His Honour, as also noted earlier, referred briefly, to the ability of supervision at changes and keeping the parents as far as practicable away from each other being advantageous. His Honour then proceeded, without saying more, to conclude that supervision of the child was not required on an interlocutory basis. As noted earlier, with respect to him, his Honour erroneously recorded that no significant submission had been put as to why supervision was required.
With all due respect to his Honour, and accepting the limitations of the evidence, which the evidence before him imposed, and as noted earlier, extremely conscious of the statements of principle from the highest court in this land, the Court finds the conclusion inescapable that his Honour failed to give adequate weight to the series of findings he had earlier made with respect to the father’s capacity in the ways his Honour recorded those findings, to the absence of evidence that the child had any relationship with the father at that time, and to the period during in which the father and child had spent no time with each other, whenever the separation of the parents occurred, relative to the child’s young life. The one occasion, as his Honour correctly recorded, when the father and the child had been together had been a supervised occasion.
With great respect to his Honour, the failure to give adequate weight to the child’s circumstances did, in this Court’s view, lead him into appealable error. If his Honour had given proper weight to the child’s circumstances he would have provided supervision at least on an interlocutory basis. As is not in doubt, the proceedings will be before the Federal Magistrates Court again in February 2012.
This Court cannot rewrite history, but it is self-evident that had supervision been ordered, either until February 2012 or shortly thereafter the Court, would have had both evidence of how the supervised contact had proceeded, the mother would have had the opportunity to see whether, despite the past, the father was capable of doing what he clearly expressed a desire to do, and for his part the father would have had an opportunity to demonstrate the capacity which he asserted. It is to be remembered that both parties accept that it is in the best interests of the child that she has a relationship with her father, what they do not agree about is the speed with which and circumstances in which that should, to use his Honour’s word, “commence”.

conclusion

For those reasons the Court is persuaded that the mother’s appeal should be allowed.
The proceedings will necessarily need to be remitted to the Federal Magistrates Court for re-hearing, but if this Court simply allows the appeal and discharges the order for unsupervised time to be spent between the father and the child, that would produce an outcome which neither party sought before the learned Federal Magistrate, that is to say, it would remove entirely any order providing that the child spend time with the father in circumstances where both parties sought that to occur.
As is not uncommon in the Full Court, it is appropriate in the circumstances of this case to make what is, in effect, an interim interim order, that is to say, an order that holds the position until the proceedings can be appropriately considered by the Federal Magistrates Court. To that end, the order appropriate to be made would seem to be to vary order 3 of the orders made by the learned Federal Magistrate on 8 November 2011 to provide that such time be spent pending further order at the Centacare Campbelltown Contact Centre, or, if the parties agree, under the supervision of the paternal grandmother, provided that the paternal grandmother file a written undertaking with the Registrar of the Federal Magistrates Court stating that she would terminate any supervised contact in the event of the child, becoming distressed, or the father acting in a way she considered to be inconsistent with the child’s best interests.
Order 5 of the said orders, would need to be expanded to provide that the Centacare Campbelltown Contact Centre supervise contact, rather than the order operate in the limited way that his Honour’s orders provided. The Court will make orders in those terms.

costs

The question of costs arises. The appeal having succeeded on a basis which would enliven the discretion to award costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth), the Court is minded to award costs certificates to both parties for the appeal, and costs certificates for the re-hearing of the proceedings in the Federal Magistrates Court.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 22 December 2011.

Associate:

Date: 01.02.2012