Guinness & Guinness
[2008] FamCAFC 10
•7 February 2008
FAMILY COURT OF AUSTRALIA
| GUINNESS & GUINNESS | [2008] FamCAFC 10 |
| FAMILY LAW - APPEAL – From decision of Family Court judge – whether trial Judge erred by failing to take into account provisions of the Family Law Act 1975 yet to commence – issue determined in Vanderhum and Doriemus (2007) FLC 93-324 FAMILY LAW - APPEAL – delay in delivery of judgment – whether unsafe to rely on findings of fact – trial Judge thoroughly reviewed the evidence and provided a thoughtful analysis FAMILY LAW - APPEAL – where trial Judge ordered that supervised time with the child be subject to conditions – whether conditions open to trial Judge – appellant had himself proposed conditions – conditions otherwise open on the evidence – expert evidence – appeal dismissed |
| Family Law Act 1975, s 61C, s 94(2) Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| CDJ v VAJ (1998-1999) 197 CLR 172; (1998) FLC 92-828 Harris v Caladine (1991) 172 CLR 84; (1991) FLC 92-217 McCrossen and McCrossen (2006) FLC 93-283 Monie v The Commonwealth (2005) 63 NSWLR 729 R v Maxwell (1998) 217 ALR 452 Vanderhum and Doriemus (2007) FLC 93-324 Western Australia v Ward (2002) 213 CLR 1 |
| APPELLANT: | Mr Guinness |
| RESPONDENT: | Ms Guinness |
| FILE NUMBER: | SYF | 3422 | of | 2002 |
| APPEAL NUMBER: | EA | 15 | of | 2007 |
| DATE DELIVERED: | 7 February 2008 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Boland and Thackray JJ |
| HEARING DATE: | 7 December 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 January 2007 |
| LOWER COURT MNC: | [2007] FamCA 1 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr G Johnston |
| SOLICITOR FOR THE APPELLANT: | Bizannes & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms A Rees |
| SOLICITOR FOR THE RESPONDENT: | Anne Marie Proctor & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms S Christie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Turner Whelan |
Orders
That the appeal be dismissed.
That the appellant, [Mr Guinness], pay the costs of the appeal of the respondent, [Ms Guinness], and of the Independent Children’s Lawyer, to be assessed if not agreed.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 15 of 2007
File Number: SYF 3422 of 2002
| [Mr Guinness] |
Appellant
And
| [Ms Guinness] |
Respondent
REASONS FOR JUDGMENT
We had before us an appeal by the husband, [Mr Guinness], against parenting orders made by Cohen J. A cross-appeal by the wife, [Ms Guinness], was settled, as were appeals by both parties against property settlement orders.
The appeal arose from a trial conducted in October 2005. The parenting orders were not made until 30 June 2006, which was the day before the Family Law Amendment (Shared Parental Responsibility) Act2006 came into effect. No reasons for decision were given at the time the orders were made. These were ultimately delivered on 5 January 2007.
The proceedings concerned two children, L and E, who were aged 6 and 8 years at the time of trial. Cohen J ordered that they should reside with the wife and have short periods of supervised contact with the husband. The requirement for supervision was to be removed at the expiration of one year, provided the husband had complied with a variety of conditions. Thereafter, the husband was to have unsupervised contact for six hours each third Sunday (as well as short periods on other special occasions). He also ordered that the husband have regular telephone contact with the children.
The husband filed a Notice of Appeal in February 2007. By the time the matter was argued, the challenges made to his Honour’s orders were of narrow compass. In summary, it was claimed that:
· his Honour erred in not taking into account the amendments made by the Family Law Amendment (Shared Parental Responsibility) Act2006;
· it was unsafe to rely upon his Honour’s findings in view of the delay in delivering reasons for judgment; and
· his Honour erred in imposing the conditions he did on the husband’s contact with the children.
Before dealing with each of the Grounds of Appeal, we will set out briefly the factual background and the orders made. We will also record certain agreements and concessions made on the hearing of the appeal.
Brief background
The husband was aged about 41 years at the time of trial. He was living in Sydney, where he operated a [business] from the former matrimonial home.
The wife was aged about 45 years at the time of trial. She was living in [an interstate city], where she had employment as a public servant.
The husband and wife were married in January 1994.
There were two children of the marriage, E, who was born in May 1997, and L, who was born in August 1999.
The parties separated finally in February 2002, when the wife took the children to stay with her parents in [another State], before moving to [an interstate city] in April 2002.
The trial was conducted over seven days in October 2005. The orders made in June 2006, insofar as they are material to this appeal, were as follows:
1.That the children … shall reside with the wife.
2.That the children have supervised contact with the husband subject to the husband’s compliance with Orders 8. to 12. inclusive for a period of 1 year from the date of these orders:
(a)On one weekend day every calendar month such as is available at the contact centre nominated below for four hours each such day or if supervision for such time is not available for the maximum time up to 4 hours which is available.
3.…
4.That after 1 year from the date of these orders subject to compliance with Orders 10., 11. and 12. the husband shall have contact with the said children from 11.00 a.m. to 5.00 p.m.:
(a) on the 3rd Sunday of each month;
(b) … [Subparagraphs (b) to (h) provided for contact on a variety of other special occasions]
5.…
6.The husband shall have telephone contact with the children by telephoning them on each Sunday evening when he does not have face to face contact with them and on each Thursday evening for not more than 15 minutes per child between 5.45 p.m. and 6.30 p.m.
7.…
8.That within 7 days the husband and the wife shall do all acts and things and sign all documents necessary to complete the registration process with [the contact centre].
9.…
10.That the husband attend a pathology collection centre nominated by the separate representative for supervised urine drug screening tests for cannabis not less than once every 14 days and pay the fees for such screening tests.
11.That the husband obtain a written record of each drug screening test result within one week of that test result becoming available and provide a copy of it to the separate representative and the wife forthwith upon receipt.
12.That the husband attend at [a psychiatrist], at least once per month and provide to the separate representative and the wife written confirmation of each attendance signed by [the psychiatrist] within 7 days of such attendance.
…
20.That the reasons for judgment and the property orders are hereby reserved.
...
His Honour did not make any order for parental responsibility. He adopted this course on the basis that he considered the “default” position under the Family Law Act1975 provided for parents to have joint parental responsibility (para 95 of the judgment). When we pointed out to counsel that, in fact, by application of s 61C(1) of the Act, the default position was that each parent had full parental responsibility which could be exercised jointly or independently, we were advised that the husband now proposed that the wife have sole parental responsibility. We made an order to that effect at the same time as making other consent orders dealing with the issues raised in the wife’s cross-appeal.
It was common ground on the hearing of the appeal that the husband had not been having the supervised contact ordered by his Honour. Even though it had been his choice not to exercise contact, we were advised that the husband now wished to see the children. By consent, we made orders varying the orders, so that the 12 month period of supervised contact would commence from the date of our orders, rather than those made by Cohen J. Notwithstanding the attack made by the husband on the conditions imposed by his Honour, the consent order contained the same conditions.
Ground 1 – failure to have regard to the 2006 amendments
At the commencement of the hearing before us, the husband was given leave to amend his first Ground of Appeal, which in its amended form read as follows:
That his Honour erred in making parenting orders on 30 June 2006 without taking into account the amendments to Part VII of the Act due to come into force on 1 July 2006.
The amendment to the first Ground was made after we drew attention to the decision of the Full Court of this Court in Vanderhum and Doriemus (2007) FLC 93-324, which was then the subject of an application for special leave to appeal to the High Court. In Vanderhum the trial Judge had determined an application for parenting orders under the Family Law Act1975 at a time when the Family Law Amendment (Shared Parental Responsibility) Act2006 had passed through Parliament, but had not yet come into effect. The appellant in Vanderhum had argued that the trial Judge erred in failing to take into account the provisions of the amending legislation. The appellant also submitted that the Full Court of the Family Court must apply the provisions of the legislation in its amended form when determining challenges to the decision of a trial judge.
In support of the latter proposition, the appellant had relied upon observations made by the High Court concerning appeals that proceed by way of rehearing, which is the nature of appeal provided for by s 94(2) of the Family Law Act1975. For example, in Harris v Caladine (1991) 172 CLR 84; (1991) FLC 92-217 at 78,486 Dawson J said:
On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing.
In CDJ v VAJ (1998-1999) 197 CLR 172; (1998) FLC 92-828 at 85,448, McHugh, Gummow and Callinan JJ said:
Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal.
On the strength of these and other authorities, it was submitted in Vanderhum that the Full Court could find that the trial Judge had erred because she had not directed her attention to the question of “time sharing” in the way prescribed by the amending legislation, notwithstanding that she was not required to do so by the law in force at the time she delivered her judgment. As the Full Court said in Vanderhum, “If correct, this proposition has potentially far reaching consequences”.
The Full Court in Vanderhum rejected the appellant’s submissions. In doing so, the Full Court (Coleman, Warnick and Thackray JJ) interpreted the remarks made in the High Court, which we have cited above, in this way:
91.There is little doubt that a “change in the law” resulting from judicial decisions subsequent to delivery of judgment by a trial Judge can enliven appellate intervention. The “relocation” decisions of the Full Court in the light of decisions of the High Court in recent years are an example of how a change in the “law” as it is clarified by appellate Courts subsequent to delivery of a first instance judgment can result in otherwise unappealable decisions being overturned. There is, we perceive, a fundamental distinction between changes in the law of that kind and a “change in the law” as a result of amendments to the statutory provisions which govern proceedings in the Court. The former is really a change in the interpretation or expression of the law to the effect that the new interpretation is then taken to be what the law always was.
The Full Court went on to cite authority to the effect that there is a presumption:
that Parliament intends all statutes, except those which are declaratory, or related to matters of procedure, to operate prospectively and not retrospectively unless the language used plainly manifests in express terms or, by clear implication, a contrary intention: [Halsbury’s Laws of Australia at 385-500.]
The Full Court noted that there was no indication that the legislature intended the Family Law Amendment (Shared Parental Responsibility) Act2006 to have retrospective effect, and that in fact there were clear indications in the legislation to the contrary.
At the same time as we drew these matters to the attention of counsel, we also noted that the Full Court in Vanderhum had not been referred to a relevant authority which, at least on one view, could be seen as being in conflict with the views expressed in paragraph 91 of the judgment, which we have reproduced above. This was the decision of the High Court in Western Australia v Ward (2002) 213 CLR 1. The fact the Full Court had not been referred to a relevant authority might, as we pointed out, provide a basis for the Full Court to depart from its earlier view.
As the special leave application in Vanderhum was listed for hearing only a matter of days after this appeal was argued before us, we gave liberty to counsel to make further written submissions in relation to Ground 1 after the proceedings were finalised in the High Court. Counsel for the husband advised that in the event special leave to appeal was refused, he would accept that Vanderhum had been correctly decided and that there would be no substance in Ground 1.
On 14 December 2007, the High Court refused special leave in Vanderhum. In view of the concession made by counsel for the husband, there is no need for us to give further consideration to Ground 1.
Ground 1A – delay in delivery of orders and reasons
By this Ground the husband asserted:
Having regard to the delay in delivering reasons for judgment it is unsafe to rely upon the findings of fact supporting the Orders and in particular in relation to credit
In support of this ground, counsel for the husband drew attention to the strong adverse findings his Honour made concerning the credit of both the husband and the wife and the husband’s girlfriend. Counsel noted that in making these findings, his Honour had relied, in part, upon his observations of the behaviour and demeanour of the husband during the trial. It was submitted that, having taken 14 months to deliver his reasons, his Honour “lost the advantage normally afforded to a trial Judge by his observations of the parties”.
Counsel for the husband acknowledged that delay in itself “may not be appealable” but submitted that in cases involving such inordinate delay the appellate court should apply the “strictest of scrutiny” to the reasons for judgment. It was further submitted that:
…his Honour’s timing in the making of the orders and the subsequent delay in delivering reasons for making those orders gives respectability to the proposition that his Honour did not carefully consider the orders made because his Honour had “been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make”. (footnotes omitted, Appellant’s Summary of Argument p 4)
In McCrossen and McCrossen (2006) FLC 93-283, the Full Court reviewed the authorities concerning the approach to be taken by an appellate court when dealing with a judgment delivered long after the conclusion of the trial. We do not propose repeating all that was said there, but we accept that an appellate court must apply the strictest of scrutiny in dealing with a judgment which “may have been affected by the inevitably adverse consequences of delay”: R v Maxwell (1998) 217 ALR 452. We also must keep in mind, as was said in Monie v The Commonwealth (2005) 63 NSWLR 729 at [43], that:
…long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning.
The delay in delivery of orders and the even greater delay in delivery of reasons in this matter was most unfortunate, especially given that the proceedings involved the welfare of two young children. That said, Cohen J ultimately delivered a lengthy judgment, in which he made a thorough review of the evidence and provided a thoughtful analysis of the likely impact of the proposed orders on the welfare of the children.
There would have been more substance in the submissions made on behalf of the husband had they pointed to any significant misstatement of the evidence or any finding of fact that was not open to his Honour on the evidence. The only error to which our attention was drawn was his Honour’s mistaken belief that a bundle of documents had not been formally tendered in evidence when, in fact, it had been. We accept the submission of counsel for the Independent Children’s Lawyer that his Honour’s mistaken recollection did not impact on the outcome, as there had been detailed cross-examination going to the content of the bundle. We also accept the submission that reference to the content of the documents in question could only have strengthened the propriety of his Honour’s decision.
We also consider there is substance in the submissions made on behalf of the wife and the Independent Children’s Lawyer which drew attention to the many occasions during the course of the trial where his Honour made reference to the adverse view he had formed of the husband’s credibility. In addition to the specific references provided by counsel, we note the statement made by his Honour at the commencement of the closing address of counsel for the wife that he regarded the husband and his girlfriend as “having no credit except where something is not challenged. And even then, I am dubious”. His Honour went on to say that although he regarded the wife as “having more credit…I am certainly not satisfied that her credit is of a high level” (transcript 24 October 2005, page 8). The same views were ultimately enunciated by his Honour in his judgment.
We accordingly consider that there is no substance in this ground of appeal.
Ground 2
The husband originally complained that his Honour had erred in ordering supervised contact for a period of 12 months, even though the husband himself had conceded at trial that his contact should be supervised for six months.
At the commencement of argument before us, counsel for the husband abandoned that complaint and substituted a ground alleging that his Honour erred in the exercise of his discretion in ordering that the supervised contact be subject to the orders contained in paras. 10, 11 and 12 of his Honour’s orders.
Paragraphs 10, 11 and 12 of the orders required the husband to:
· attend for regular drug screening tests;
· provide to the wife and to the Independent Children’s Lawyer the results of the tests;
· attend on a psychiatrist at least once a month; and
· provide to the wife and the Independent Children’s Lawyer confirmation of his attendance on the psychiatrist.
This ground of appeal can be disposed of quite simply. Reference to the transcript at trial (Appeal Book 673) indicates that counsel for the husband said this to his Honour:
All I can say, your Honour, is that, indubitably, a period of supervised contact will have to take place to give [Mr Guinness] to prove himself, in laboratory conditions at least. To that extent, I have instructions – I have formulated these in the form of the husband’s proposed minutes of short orders – that such supervised contact be fairly similar to what was proposed yesterday by the children’s representative, with a few changes. For a start – I won’t go over all the aspects of – item by item, other than to say that it’s agreed that contact under supervision be at the [contact] Centre. No problem with that. It’s agreed that my client will undergo a regime of being assessed from time to time, on a monthly basis, say, as a form of analysis by pathologists, to ensure that [he] is not taking any illegal substance.
(Transcript 24 October 2005, page 25)
We were not provided with the “proposed minutes of short orders” referred to in the passage above, but we were advised by counsel for the wife, without demur, that the orders made by his Honour were orders the husband had proposed.
The husband cannot now be heard to complain about orders which he himself proposed at trial. In any event, the conditions imposed were well open to his Honour on the evidence. This included the expert opinion of [a psychiatrist], a psychiatrist who had been requested to provide a report concerning the family. When she was asked, for example, whether the drug screening she had proposed was an essential part of the proposed contact regime, she said that she would want to be “absolutely positive” the husband was not on drugs before she would make any recommendations about contact taking place for any longer than one day at a time (transcript 17 October 2005, page 49).
Ground 3
By this ground it was asserted that:
That his Honour erred in the exercise of his Honour’s discretion in ordering that the Appellant have supervised contact to the children E and L for a period of 12 months.
During the course of the submissions by counsel for the Independent Children’s Lawyer, we were advised by the husband’s counsel that this ground was no longer pressed.
Conclusion
As the husband’s grounds of appeal lack any merit, the appeal will be dismissed.
Counsel for the husband conceded that in the event the appeal failed, the husband should pay the costs incurred by the wife and the Independent Children’s Lawyer. No costs were sought in relation to the wife’s cross-appeal, which was allowed by consent. We have already made an order dealing with the costs of the appeals concerning the property settlement orders.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 7 February 2008
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