Harrelson and Harrelson
[2017] FamCAFC 89
•11 May 2017
FAMILY COURT OF AUSTRALIA
| HARRELSON & HARRELSON | [2017] FamCAFC 89 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father challenges the primary judge’s order for the mother to have sole parental responsibility for a child of the marriage in respect of the child’s health – Where the father challenges an order as to the time the children will spend with him – Adequacy of reasons – Whether the primary judge failed to identify the evidence upon which his decision was made – Whether the primary judge properly applied s 61DA of the Family Law Act 1975 (Cth) (“the Act”) – Whether the primary judge’s discretion miscarried – Whether the primary judge gave appropriate weight to the evidence – Whether the primary judge adequately considered s 65DAA of the Act – No appealable error established – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 94AAA |
| Bennett and Bennett (1991) FLC 92-191 Bondelmonte v Bondelmonte (2017) 341 ALR 179 CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1976) 144 CLR 513 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 SCVG & KLD (2014) FLC 93-582 Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 |
| APPELLANT: | Mr Harrelson |
| RESPONDENT: | Ms Harrelson |
| FILE NUMBER: | SYC | 2940 | of | 2014 |
| APPEAL NUMBER: | EA | 112 | of | 2016 |
| DATE DELIVERED: | 11 May 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 16 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 1632 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Gillies |
| SOLICITOR FOR THE APPELLANT: | Matthews Folbigg Pty Ltd |
| THE RESPONDENT: | In person |
Orders
The appeal be allowed in part.
On the application of both parties, Orders 14 and 18 of the Orders of Judge Brewster made 4 July 2016 are set aside forthwith and Order 7 is set aside on and from the first return date of the remitted re-hearing before the Federal Circuit Court of Australia.
The issue of the time that the children are to spend with the parties during the December/January school holidays is remitted to the Federal Circuit Court of Australia for re-hearing.
The appeal is otherwise dismissed.
Any party seeking an order for costs is to file and serve written submissions in support within 28 days of today. Any submissions in reply are to be filed and served within a further 28 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrelson & Harrelson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 112 of 2016
File Number: SYC 2940 of 2014
| Mr Harrelson |
Appellant
And
| Ms Harrelson |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Harrelson (“the father”) appeals against a number of parenting orders made by Judge Brewster on 4 July 2016. The proceedings were between the father and Ms Harrelson (“the mother”) and concerned the parties’ two children, X born in 2004 and Y born in 2006. X has cystic fibrosis and has required significant medical attention and extra care throughout his life.
The orders made by the primary judge provided for the parties generally to have equal shared parental responsibility for the children, but that the mother was to have sole parental responsibility in respect of major long-term issues in respect of the health of X. The children were to live with the mother and spend five nights a fortnight with the father. In alternating weeks the children were to spend time with the father from after school on Thursday to before school the following Monday in one week and from after school Thursday to before school the following Friday in the other week.
The father appeals from the order providing for the mother to have sole parental responsibility for X’s health (Order 1) and against the order as to the time the children are to spend with him (Order 4).
The primary judge made a suite of further orders providing for the time the children were to spend with each party during school holidays and on special days together with a number of ancillary orders.
The father appealed against some of these orders (Orders 7, 14 and 18) but it is unnecessary to deal with them in detail as the parties resolved that aspect of the appeal during the hearing.
Order 7 of the primary judge’s Orders set out the time the children were to spend with each parent during the December/January school holidays. The mother accepted that his Honour gave no reasons at all as to why her proposal for school holiday time was preferred to the father’s proposal. The transcript of the submissions made to the primary judge does not assist in determining why the mother’s proposed orders were accepted. Order 7 will therefore be set aside on the application of both parties. The parties could not agree on a replacement order and that aspect of the matter will be remitted to the Federal Circuit Court of Australia for re-hearing. As it is likely that it may take some time before that court is able to resolve that issue, it is desirable that there be some, as opposed to no, orders in place to govern school holiday time in the interim. Accordingly, the parties agreed that the current Order 7 should remain in place until the matter returns to the Federal Circuit Court.
The parties also agreed that Order 14 (which dealt with the school the children were to attend) and Order 18 (which dealt with travel within Australia) should be set aside. In the course of submissions before him, the primary judge clearly indicated that he would not be making those orders, which had been proposed by the mother. It is clear that those orders were made inadvertently. His Honour’s Reasons record that:
41.I have basically copied the wife’s application in my orders and the drafting is that of her lawyers. I have not had them proof read to see if there are any typographical errors....
It is appropriate therefore that these two orders be set aside.
Finally, the father originally also sought to appeal against Orders 11(b) and 16 of the primary judge’s Orders. The appeal against Order 11(b) was withdrawn and the appeal against Order 16 was abandoned at the beginning of the hearing of the appeal.
The appeal
This appeal is being heard by a single judge pursuant to a direction under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) made by Bryant CJ on 31 August 2016.
The grounds of appeal remaining for consideration concern only Order 1 (sole parental responsibility for health) and Order 4 (the time the children spend with the father).
I shall deal with the appeal from each order separately.
Order 1 - Sole parental responsibility as to X’s health
The father challenged Order 1 on the following grounds:
·The primary judge did not give adequate reasons (ground 7);
·The judgment failed to disclose the evidence upon which the primary judge relied (ground 8 and 13);
·The primary judge failed to give “proper consideration to the legislative pathway” (ground 10); and
·The discretion exercised by his Honour “miscarried generally” (ground 9).
The father’s Notice of Appeal filed 29 July 2016 also contained grounds which asserted that the primary judge failed to give any or any proper consideration to the father’s parenting proposal as to Orders 1 and 4 and failed to give adequate reasons for preferring the mother’s proposal (grounds 21 and 22). As can be seen, these grounds are really aspects of the main challenges to the orders which I have already set out. They were not the subject of specific submissions.
The primary judge was well aware of the competing parenting proposals of the parties. His Honour summarised those proposals at [5] and [6] of his Reasons. In the discussion that followed, the primary judge clearly sets out his reasons for preferring the mother’s proposals. It is implicit, therefore, that those are the reasons for not accepting the father’s proposed orders.
These grounds, therefore, add nothing to the challenges to the orders that remain to be considered.
Were the primary judge’s reasons adequate?
The obligation on a judge to give adequate reasons is well known.
In Bennett and Bennett (1991) FLC 92-191 the Full Court said at 78,266:
In Sun Alliance Insurance Limited v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
The New South Wales Court of Appeal, in summarising the principles applicable to a Court’s duty to give reasons, has emphasised that the reasons must do justice to the issues posed by the parties’ cases and that it is necessary for the reasons to enable the parties to identify the basis of the trial judge’s decision and the extent to which their arguments have been understood and accepted: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (“Pollard”) at [59]. It is also essential “to expose the reasons for resolving a point critical to the contest between the parties” (Pollard at [58]).
In Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 (“Whisprun”) Gleeson CJ, McHugh and Gummow JJ said at 464:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
After noting the parties’ competing proposals the primary judge embarked upon a discussion of the considerations posed by s 60CC of the Act. In summary his Honour found that:
·It was in the best interests of the children to have a meaningful relationship with both parents and that as close as possible a relationship with each parent would be beneficial (at [10]);
·There was no conduct of the parties from which the children needed to be protected (at [11]);
·Little weight should be given to the children’s views because one favoured the current arrangement and the other preferred week about time (at [17]);
·The children had a close relationship with each parent (at [18] – [20]);
·No criticism could be made of each parent as to the extent they have participated in decisions as to major long term issues facing the children (at [21]);
·The children were doing well under the current arrangement and that these were not “sufficient reasons” in this case to change the children’s circumstances (at [23] – [24]); and
·There were no shortcomings in either parent as to their attitude to the children or the responsibilities of parenthood (at [30]).
His Honour then said of s 60CC(3)(f), which requires the court to consider the capacity of each parent to provide for their children’s needs, including their emotional and intellectual needs:
27.The wife has a number of criticisms of the husband in relation to his ability to provide for [X]’s needs. [X] has been diagnosed as suffering from cystic fibrosis. The wife alleges that the husband is not able properly to appreciate the problems involved in his care or provide for his care. I need not explore this aspect of the case as I am satisfied that I should make orders in accordance with the wife’s application for other reasons. I will discuss this again when I address the issue of parental responsibility.
That led the primary judge to the following conclusions:
36.As can be seen I have made orders in accordance with the wife’s application. For an equal shared care arrangement to operate for the benefit of children it is desirable that the parties have a cooperative and workable relationship and are able to communicate in relation to, and resolve, issues that will inevitably emerge in implementing such an arrangement. I am satisfied that the parties do not have a cooperative relationship. They communicate by email or text message. They find it impossible to speak cordially to each other. When the parties attend medical appointments in relation to [X] they have separate appointments. There is a good deal of hostility between them. The wife maintains that post separation the husband broke into her house and hacked into her computer system. The husband denies this and I am unable to make a finding as to this aspect of the case. However I am satisfied that whatever the truth is the wife believes that the husband has done these things. This indicates a lack of trust on her part towards the husband. This is a negative when one is considering an equal shared care arrangement for children.
37.For these reasons I am not satisfied that a week about arrangement would be in the children’s best interest. I also take into account also that during the children’s lives the wife has been the primary parent. . Whilst I am satisfied that the husband was significantly involved with the children during the parties’ relationship I find that the wife has been the parent most involved with the care of children during this period. This is not a criticism of the husband but a fact of life caused by the roles each party played. It was the husband who was the breadwinner.
As to parental responsibility his Honour said:
40.I need not dilate on this aspect of the case. As I have indicated there are complications relating to [X’s] health. The parties’ relationship and ability to cooperate and resolve issues involving the children is limited. As I have indicated the parties do not attend medical appointments together but have separate appointments to discuss [X’s] health. In the particular circumstances of this case I think that one party should have the right to make the decisions in relation to the management of [X’s] condition and that this should be the wife. I have made orders in accordance with her application.
It can be seen that the order for sole parental responsibility for health was made because:
·The health of X is a significant continuing issue;
·The parties do not have a cooperative relationship and cannot speak cordially to each other;
·When the parties attend medical appointments with X they have separate appointments; and
·The mother is the primary carer.
His Honour’s Reasons clearly explain why the mother’s proposal on this issue was preferred to the father’s.
It was submitted that the primary judge did not give any explanation as to why equal shared parental responsibility was appropriate for the younger child but not for X.
The order for sole parental responsibility for X was limited to health and based upon X’s special needs. Otherwise, there was to be equal shared parental responsibility. His Honour clearly explained why the special order was necessary, referring to the needs of X and the difficulties in the parents’ communication, which extended to not being able to attend a medical appointment together. This explains why the children were treated differently.
This aspect of the challenge does not succeed.
Did the judgment properly disclose the evidence upon which the primary judge relied?
This aspect of the father’s challenge was really the nub of the appeal. He submitted that there was a wealth of evidence to which the primary judge did not have regard.
The father pointed to the following evidence:
·There had been equal shared parental responsibility for some time;
·There had been no difficulty or delay in obtaining medical treatment for X and both parties were doing well in looking after him;
·The mother took the child to a psychologist without telling the father;
·Both parents had adequately dealt with one of the children’s bed-wetting issues;
·The parties had been liaising and cooperating more cordially recently; and
·Both parties had agreed to attend family therapy.
Of these, the third bullet point was contentious and not resolved by the primary judge. It is not possible to resolve those differences on this appeal.
As to the fifth, the father pointed to the following evidence of the mother given during cross-examination:
[MS GILLIES:] There was a difficulty in relation to one of your sons and their behaviour at school last year?
[THE MOTHER:] Sure.
[MS GILLIES:] That was [X], wasn’t it?
[THE MOTHER:] No. It was [Y].
[MS GILLIES:] [Y]. I beg your pardon. Those difficulties have now resolved?
[THE MOTHER:] Yes.
[MS GILLIES:] The teachers no longer have the concerns that they did last year?
[THE MOTHER:] Yes, that’s right.
[MS GILLIES:] Again, the father was involved, wasn’t he, in the parent-teacher interviews and liaison with [Y’s] teacher in relation to that difficulty?
[THE MOTHER:] Sure.
[MS GILLIES:] The two of you were able to exchange information in relation to it?
[THE MOTHER:] No, not a lot, no. There was a lot of difficulty in – and I was not informed, and I was only informed by the teacher, not by [the father], on a lot of the issues, yes.
[MS GILLIES:] Well, I’m not talking about - - -?
[THE MOTHER:] So - - -
[MS GILLIES:] - - - everything, but there has been liaison between the two of you in relation to difficulties with [Y]?
[THE MOTHER:] Yes.
[MS GILLIES:] Right?
[THE MOTHER:] Yes.
[MS GILLIES:] And that problem has resolved itself?
[THE MOTHER:] Yes.
(Transcript 17 September 2015, p.67)
That is hardly compelling evidence that the parties were communicating well and cordially.
The mother’s affidavit evidence set out many examples of what she asserted were difficulties in communication between the parties.
In his affidavit in response filed 31 August 2015, the father did not accept all of the mother’s allegations, although he agreed that the police were called on two occasions in April 2014 because of an issue between the parties.
He also said:
37. Since separation I have attended at [X’s] [cystic fibrosis] Clinic appointments. For some time after separation [the mother] and I attended at the same time with [the child’s doctor] and the nursing staff. During 2014 [the mother] objected to be me being present at the same time as she was and she asked to see the doctor separately. I cannot remember exactly when but for the first few times that we saw the doctor separately I saw the doctor first. [The mother] waited outside and then she saw the doctor. On the first time that occurred I spent about 20 minutes (or so) with the doctor. I then waited outside while [the mother] saw the doctor. The doctor came out and said certain things to me. I became aware that [the mother] had complained that the doctor had spent more minutes with me than with her.
38.I was very concerned about the impact of any dispute (or even apparent disagreement) on [X]. I think it would be far preferable to see the doctor together with [the mother] – it would be easier for him and for all. However in the interests of keeping the situation as stable and calm as possible at present I have no objection to:
(a)[The mother] making the appointment for the clinic (I am happy to fit in – my work usually permits that).
(b)[The mother] going in first to see the doctor.
(c)Waiting outside until she is finished and then consulting with the Dr and nursing staff. Staff mail me any test results.
39.To the best of my knowledge [the mother] texts me if she has any independent consultation with medical staff and updates me. I am completely familiar with [X’s] progress and treatment. I am able to administer all necessary physio and medication. I have scripts for the medication.
This theme had been taken up with Dr L, a psychologist who prepared the Family Report dated 25 May 2015. She recorded:
35.Mr [Harrelson] stated that during the marriage he and Ms [Harrelson] consulted on their management of the children’s behavior. He lamented that they can no longer do this because of their inability to communicate. He stated that [X’s] medical specialist has suggested that it would be much more satisfactory if he could consult the parents together. Mr [Harrelson] stated that it would reduce the chances of any misunderstanding such as that over the preferred course of treatment for [X]. Mr [Harrelson] indicated that it is not at all his impression that the specialist is refusing to proceed with intervention for [X] because of the conflict between the parties. He feels concerned that Ms [Harrelson] may be misrepresenting issues. He stated, for example, that it is not the case that [X’s] treating specialist has refused to proceed with [X’s] routine admission because of the conflict between the parties. He also acknowledged that he considers [X’s] bedwetting to be a significant issue and is complying with the urine volume chart that has been requested in anticipation of the forthcoming appointment. He anticipated that both he and Ms [Harrelson] would be present for that consultation.
36.Mr [Harrelson] concurred with Ms [Harrelson’s] view that they have limited capacity to communicate and he believes Ms [Harrelson] shuns any attempt he makes to be civil to her. He referred to Ms [Harrelson] having made some inappropriate comments to and about him in front of the children who have, on occasions, tried to intervene in the argument. According to Mr [Harrelson], Ms [Harrelson’s] undermining of him, resulted in the boys playing up more when the parties cohabited. He asserted that this seems to have changed since the parties no longer live in the same household. He stated that with the changeovers occurring at the school, the likelihood of the children becoming involved in the dispute has also markedly decreased. Mr [Harrelson] claimed that he and Ms [Harrelson] have the potential to be “good as separated parents” and could help each other out, for example, with after school care, however, he believes this is rendered impossible because Ms [Harrelson] has exaggerated the seriousness of their communication difficulties, in his opinion to position herself favourably in the dispute.
Dr L observed the parties together and said (at paragraph 56 of the Family Report):
The children were observed interacting with each parent on the day of the interviews. They moved easily between their parents who sat in the same waiting room together but were unable to acknowledge each other.
This led Dr L to conclude:
60.… The poor relationship between the parties has been compounded by the unresolved status of their property settlement. Although they both state that the children’s well being is their foremost consideration, each of them also makes allegations that the other is preoccupied with the financial dimension of the litigation and is either avaricious or is behaving non transparently in their property dealings. While such ill feelings are ongoing, it is likely to interfere with the parties adopting a more child focusing parenting relationship.
She also said:
61.… Some of the revelations each of the parties made in the course of the interviews for this report, for example, in respect of medical treatment for [X] and preparation for the appointment about [X’s] bedwetting, demonstrate that they still have a compromised capacity to make child focused decisions and exchange information in the spirit of joint parental responsibility which both are seeking in final orders. Their inability to be together for appointments with treating specialists, if this is the case, sets them up for misunderstandings which could expose their children to unnecessary conflict, shame and embarrassment. If this is in any way a strategy to achieve ascendency in the dispute, it is inappropriate and detrimental. Certainly on the day the parties were in the same precincts when the interviews for this report were conducted, they were unable to even acknowledge each other. It is important for the parties to appreciate that it is in collaborating about their children, rather than in competing with each other, that their children’s needs will be best met. A breakdown in their communication over meeting their children’s needs has the potential to have dire effects particularly when one child has the special and intensive needs which they report [X] has.
Ultimately, in relation to this issue Dr L recommended that:
… the parties work on their communication so that they can assume joint parental responsibility and in particular for them to be able to attend appointments in respect of [X’s] care together.
(Family Report dated 25 May 2015, paragraph 71)
None of this evidence points to a cordial, cooperative parenting arrangement.
Returning then to the primary judge’s Reasons, I have already set out the paragraphs relevant to the issue of sole parental responsibility. It is apparent that what weighed significantly upon his Honour’s mind was the difficulty in communication between the parties, exemplified by their inability to attend medical appointments for [X] together.
There is no doubt that this was the evidence.
I do not see how the matters listed in [31] above, even if accepted in their entirety, are capable of affecting that fundamental and undisputed finding. It is not surprising then, that the primary judge did not specifically refer to them.
The father also submitted that the primary judge did not properly explore and take into account the evidence of Dr L, much of which has been set out.
It is true, as the father submitted, that Dr L and her evidence is only referred to in terms by the primary judge in his discussion of the children’s relationship with their parents (at [14] – [19]). Nevertheless, as I have endeavoured to explain, his Honour’s consideration mirrors the evidence, conclusions and opinions of Dr L.
The father relied upon the following oral evidence of Dr L:
[MS GILLIES:] There’s no suggestion is there, Doctor, by … that the father shouldn’t be involved in long-term decision making relating to [X’s] medical care?
DR [L:] Well, I would – I would like to think very definitely that – that he would take a role in that part of [X’s] life. I mean, it, - it also sends a very important message to [X] that both parents are on board with the decisions pertaining to his care.
(Transcript 18 September 2015, p.154)
The primary judge did not specifically refer to this part of Dr L’s evidence. That evidence too must be seen against the other material before the court, which I have already set out.
The primary judge found that even though the parties were able to achieve appropriate outcomes for X, they did so in the face of severe difficulties in communication. His Honour was rightly concerned that X was obliged to attend two medical appointments, one with each parent, because of these difficulties. Not surprisingly it is clearly implicit in the primary judge’s Reasons that he did not find this to be in X’s best interests. There is no reason to think that, in coming to that view, his Honour ignored the evidence of Dr L. He was not obliged to refer to every specific piece of evidence (Whisprun). It is clear, however, that that evidence was not given significant weight by his Honour.
When looked at in that light, there is no basis in the submission that the primary judge did not consider all of the relevant evidence and this aspect of the challenge does not succeed.
Did the primary judge properly apply s 61DA of the Act?
Section 61DA(1) provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. That presumption may be rebutted by evidence that satisfies the court that it is not in the child’s best interests for there to be such an order.
The father submits that the primary judge failed to make any findings that would rebut the presumption or indicate how an order for sole parental responsibility in respect of X’s health was in the best interests of X.
I have already set out the primary judge’s reasons for making the order for sole parental responsibility. It is sufficient to say that his Honour’s findings clearly state why he considered that the presumption had been rebutted. The fact that the parents cannot attend a medical appointment with each other when that appointment is for their child who has a significant medical issue is, as was recognised by the primary judge, a matter of some significance.
I am not satisfied there is any error in the approach of the primary judge.
Did the primary judge’s discretion “generally miscarry”?
The father submitted that the order for sole parental responsibility was made against the weight of the evidence and that the primary judge’s discretion thereby miscarried. The father relied upon the following in support of that submission:
·There was no evidence that the children had not been adequately educated, had received inadequate medical treatment and had their lives disrupted under the existing regime of equal shared parental responsibility;
·There was no evidence that X’s medical condition had been impacted by poor communication;
·The parties could communicate (albeit by SMS and email); and
·There was no evidence that consecutive medical appointments had led to any difficulties with X’s medical care.
As I have already pointed out, this was not the totality of the evidence and there was other evidence which supported his Honour’s findings.
This, therefore, is a challenge to the weight to be given to particular evidence. In the context of a challenge to a discretionary judgment, such submissions face a high bar.
As the High Court has recently reminded us, orders made in the exercise of a judicial discretion “can be set aside only on a strictly limited basis, in accordance with House v The King”: see Bondelmonte v Bondelmonte (2017) 341 ALR 179 (“Bondelmonte”) at [31].
Speaking of the application of such principles, in Gronow v Gronow (1976) 144 CLR 513 at 519 – 520 Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
Finally, in CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ said:
151. Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child. Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
I consider that the finding made by the primary judge was open to him on the evidence. The fact that another judge may have weighed these matters differently does not establish error.
There is no merit in this part of the challenge to Order 1.
The appeal against Order 1 will be dismissed.
Order 4 – the time the children spend with the father
Order 4 provided as follows:
(4)That the children spend time with the father as follows:
(a)In week 1: from after school on Thursday until before school on the following Monday; and
(b)In week 2; from after school on Thursday until before school on Friday.
It will be recalled that the father sought an order for week about time.
The father mounts the following challenges to this order:
·The reasons for making it were inadequate;
·The primary judge failed to give proper weight to increasing time; and
·There was no, or no adequate, consideration of s 65DAA(1).
Were the reasons inadequate?
It is apparent from [36] and [37] of his Honour’s Reasons, quoted above at [23], that he did not make an order for equal time because of the poor communication between the parties and because the mother had been the primary carer.
It is also apparent from [24] of his Honour’s Reasons that his Honour was of the opinion that there were not “sufficient reasons” for altering the present regime of the children spending five nights a fortnight with the father.
The basis for making the order is clearly identified. The reasoning process of his Honour is apparent.
This aspect of the challenge does not succeed.
Did the primary judge fail to give proper weight to increasing time?
The father submits that the primary judge failed to give proper weight to the evidence that supported an increase in the children’s time with him. In essence, this is a submission that greater weight should have been given to aspects of the evidence of Dr L. As explained earlier, such submissions face a high bar.
At the outset it is useful to recall that the father sought an order for equal time on a week about basis during school term and equal time in blocks for school holidays. In the course of final submissions the father proposed that a six-eight arrangement could be an alternative.
The father relied strongly upon the recommendation in Dr L’s report which said:
71.It is recommended that the parties work on their communication so that they can assume joint parental responsibility and in particular for them to be able to attend appointments in respect of [X’s] care together.
72.It is recommended that the children live with their mother.
73.At that point, it is recommended that the children spend substantial time, i.e. 6 evenings per fortnight, one half of school holidays and share special occasions with their father.
74.It is recommended that the parties be referred to a family therapist with expertise in family law.
The reference to “At that point” in paragraph 73 becomes clearer when regard is had to Dr L’s conclusions, which were:
69.The parties remain in dispute about whether the substantial care arrangements continue or whether the children live in an equal shared care. There are usually some indicators for equal shared care which include a relatively conflict free relationship between the parents, close proximity of the two households and the maturity and views of the children. While some of these conditions are met in this case, the conflicted level of communication between the parties is a significant factor that contra-indicates such arrangements. Furthermore, there are some differences in the views of the children. A workable arrangement in this matter might be for the substantial care arrangements to be increased so that [X] and [Y] spend six rather than five evenings per fortnight with their father. The Court may also want to consider the children having block periods of no longer than two weeks with each parent. It is imperative that both parents continue to remain actively involved in the children’s academic and extracurricular activities whatever the living arrangements.
70.The dynamics that exist in this family including the poor communication between the parties need to be addressed in order for this matter to move forward. The family would benefit from engagement with a family therapist who has experience with families working in the family law system.
Thus, Dr L postulated a possible increase to six nights a fortnight, but also cautioned against a week about arrangement.
In the course of her oral evidence Dr L said:
[MR OTHEN:] Well, I think that really, I suppose, goes to the heart of my question. I mean, it’s a given that things have not, it seems, improved in the way that – that one might have hoped. In fact, what has been said to have been happening recently really represents high conflict between the parents. What confidence can the court really have that the effect of the change on the children would not be detrimental?
[DR [L]:] Well, I – I guess one would only hope that, beyond – beyond the proceedings and – and closure of the case, the parties will have less of an investment in the conflict, because they will then each have an open door to move on with their lives.
[MR OTHEN:] Well, that’s certainly something to hope for, but why introduce a change and an opportunity for more disruption and difficulty, when the present arrangement is already delivering a rich relationship for the children with both of their parents?
[DR [L]:] Well, I – I –I guess all I can – all I can say is that it’s difficult to – to crystal-ball what – what might happen if there’s an extension of – an extension of time. The children have – have settled into the current routine. It seems to be working well for – for everybody. I think they’re – they have the robustness to – to manage, perhaps, a little bit more time, but I also think, you know, it’s great that they are spending the time they are currently with their father and that it’s – and that it’s working.
(Transcript 18 September 2015, p.148)
This evidence is relevant to the primary judge’s finding that there were not sufficient reasons to move from the present arrangement.
Her evidence continued:
HIS HONOUR: But does that – is that relevant to whether it should be five nights, six nights or seven nights? Five nights a fortnight, would that not be enough to enable the children to form an independent view as to – if they haven’t done so already – as to their father?---I’m asking you this – that’s a question from me to you, Dr [L]?
[DR [L]:] Yes. Look – well, I think that, you know, that five nights is certainly a very – it’s a substantial period of time where in, certainly, relationships can very much thrive, be nurtured – you know, I think it’s – and the children formed relationships with parents when they were having two nights a fortnight as the norm, so, you know, five certainly gives children a very – very healthy and handsome period of time within which to form relationships. And you know, I’m not sure that five, six or seven nights, incrementally increases or changes the quality of relationships. Yu [sic] know, I’m not aware that there has been any research to point to that, because it’s also about what happens in that time that builds relationships.
[HIS HONOUR:] Well, I think there is research about that, isn’t it, that it’s the – not so much the absolute time but the quality?
[DR [L]:] The quality – well, that’s – yes. That’s what I was – that was what I was saying, that it’s the quality of what happens rather than the amount of time that the research – you know, it’s not amount of time, it’s what happens in that time and what parents can create for their children in that time. And it’s about quality of a relationship rather than quantity that is of the essence.
[MS GILLIES:] And if the evidence is to the effect that the children do spend quality time with their father when they are with him, then from what you are saying, an increase in time is likely to have at least that benefit for the children?
[DR [L]:] Well, I guess, again, that needs to be balanced against – against the other factors that happen in this family, such as the level of conflict between the parents, the parents being able to be more cooperative and being able to accept an increase in time.
[MS GILLIES:] You see, you’ve recommended the increase to six nights in your report?
[DR [L]:] Yes.
[MS GILLIES:] And you did that in the context of the children, quite recently when you saw them, spending five nights per fortnight in their father’s care?
[DR [L]:] Yes.
[MS GILLIES:] So when you saw them, you must have seen a benefit to that time being increased or you wouldn’t have recommended it?
[DR [L]:] Well, I – I , yes, I did - - -
[MS GILLIES:] Right?
[DR [L]:] Yes, I did see a benefit. Yes.
[MS GILLIES:] And, in a nutshell, what was the benefit?
[DR [L]:] Well, the – the benefit is that – that the – [Y], in particular, was requesting more time, albeit , as I say, that one of the factors is where he’s at developmentally, and – and I could envisage that, as the boys get older, the – the – what their father can bring to their lives, being boys as well, is – is – extremely beneficial to them.
(Transcript 18 September 2015, p.159)
Taken overall, whilst Dr L recommended an increase in time to six nights per fortnight, that was not an unequivocal recommendation.
In making that recommendation Dr L was well aware of the difficulties that the poor communication between the parties posed. Indeed, on one reading of her conclusion and recommendations, an increase to six nights was dependent upon that communication improving.
In short, the primary judge was faced with a choice between five nights a fortnight and six nights a fortnight, with considerations supporting both. The decision he made was open to him on the evidence. Whilst it may also have been open to his Honour to have made the six nights per fortnight order sought by the father, the primary judge did not err by declining to make it.
Was there any or any adequate consideration of s 65DAA(1)?
The father submitted that the primary judge did not give adequate consideration to s 65DAA(1) of the Act because it was not mentioned in the reasons (which would indicate that there had been a proper consideration) and because no proper consideration was given to the evidence. Reference was made to Bondelmonte at [43] where the High Court said, “[t]he term “consider” imparts an obligation to give proper, realistic and genuine consideration”.
Section 65DAA(1) provides:
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
As the primary judge had made an order for equal shared parental responsibility, he was obliged by this subsection to consider making an order for equal time.
It is convenient to set out again [36] and [37] of his Honour’s Reasons:
36.As can be seen I have made orders in accordance with the wife’s application. For an equal shared care arrangement to operate for the benefit of children it is desirable that the parties have a cooperative and workable relationship and are able to communicate in relation to, and resolve, issues that will inevitably emerge in implementing such an arrangement. I am satisfied that the parties do not have a cooperative relationship. They communicate by email or text message. They find it impossible to speak cordially to each other. When the parties attend medical appointments in relation to [X] they have separate appointments. There is a good deal of hostility between them. The wife maintains that post separation the husband broke into her house and hacked into her computer system. The husband denies this and I am unable to make a finding as to this aspect of the case. However I am satisfied that whatever the truth is the wife believes that the husband has done these things. This indicates a lack of trust on her part towards the husband. This is a negative when one is considering an equal shared care arrangement for children.
37.For these reasons I am not satisfied that a week about arrangement would be in the children’s best interest. I also take into account also that during the children’s lives the wife has been the primary parent. . Whilst I am satisfied that the husband was significantly involved with the children during the parties’ relationship I find that the wife has been the parent most involved with the care of children during this period. This is not a criticism of the husband but a fact of life caused by the roles each party played. It was the husband who was the breadwinner.
This is quite clearly a consideration of whether or not it was in the best interests of the children for there to be equal time with each parent – that is to say, a consideration of s 65DAA(1). It is not necessary that there be an express reference to the subsection (SCVG & KLD (2014) FLC 93-582 at [81]).
I do not see that the primary judge’s consideration of this matter is anything other than proper, realistic and genuine. It follows immediately after his Honour’s consideration of the s 60CC factors and it cannot be assumed that they were ignored when his Honour turned to this aspect of the matter.
Finally, I do not see why the primary judge was again required to traverse the evidence in relation to this point. In any event, the submissions did not identify what evidence should have been considered under this subsection but was not.
This ground does not succeed.
Did the primary judge err in finding that he had to be satisfied that there were “sufficient reasons” to alter the “status quo”?
Without opposition, the father was granted leave to add a ground of appeal to the effect of that set out in the heading.
In his discussion of the s 60CC(3)(d) consideration (which requires the court to consider the likely effect of any changes in the children’s circumstances including the likely effect of separation from either of their parents) the primary judge said:
24.This paragraph raises what might be called the status quo issue. The children are currently living in a nine/five arrangement and have done so for some time. Whilst I would not require anything like compelling reasons to alter this status quo I would require sufficient reasons. In my view there are not sufficient reasons in this case.
The father submitted that in saying that he required sufficient reasons to alter the status quo his Honour posed the wrong test, and that the test to be applied was what was in the best interests of the children. It was also submitted that the primary judge placed too much weight on this consideration.
The first submission misstates the role of s 60CC.
Pursuant to s 60CA the court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child.
Section 60CC(1) provides:
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Thus the role of s 60CC is to guide the court as to the considerations it must undertake when determining what order is in the best interests of the child.
In my opinion his Honour was not applying a “test” but rather undertaking the consideration required by s 60CC(3)(d), in the context of a discussion of all of the relevant s 60CC factors. The primary judge was doing no more than looking at the then current parenting arrangement under which both children were doing well, in spite of the difficulties between their parents, and observing that he would need some reasons to be satisfied that the children would be better off under another parenting arrangement.
I do not see any error in that approach.
I have already referred to the difficulties facing challenges to the weight to be given to matters that are to be taken into account.
The weight to be given to the various s 60CC considerations is very much a matter for a trial judge. I am not at all persuaded that there is any indication that his consideration was given inappropriate weight.
This ground does not succeed.
It follows that the appeal against Orders 1 and 4 will be dismissed.
Costs
For a number of reasons, the parties were not in a position to deal with the issue of costs at the hearing of the appeal. Directions will be made for the parties to file written submissions on that issue.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 11 May 2017.
Associate:
Date: 11 May 2017
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