HENLEY & HENLEY
[2017] FamCAFC 142
•20 July 2017
FAMILY COURT OF AUSTRALIA
| HENLEY & HENLEY | [2017] FamCAFC 142 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Where the primary judge made an erroneous finding as to the father’s residence – Where the mistaken fact did not lead into substantive error – Where the primary judge admitted into evidence and relied upon a psychiatrist’s report – Where the report was objected to in the father’s Case Outline – Where the primary judge did not raise with the father his objection to the report and whether the father wanted to challenge the evidence – Where it was not open to the primary judge to find that the father did not challenge the report – Where the Court cannot be satisfied that the errors did not cause the primary judge’s discretion to miscarry – Appeal allowed – Remitted for rehearing – No order as to costs – Costs certificates issued. FAMILY LAW – APPEAL – Application to adduce fresh evidence – As matter remitted for rehearing unnecessary to consider application – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Re F: Litigants in Person Guidelines (2001) FLC 93-072 |
| APPELLANT: | Mr Henley |
| RESPONDENT: | Ms Henley |
| FILE NUMBER: | ADC | 1876 | of | 2014 |
| APPEAL NUMBER: | SOA | 81 | of | 2016 |
| DATE DELIVERED: | 20 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Strickland & Johnston JJ |
| HEARING DATE: | 16 May 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 August 2016 |
| LOWER COURT MNC: | [2016] FamCA 681 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: SOLICITOR FOR THE RESPONDENT: | Mr McQuade Harry Alevizos |
Orders
The Application in an Appeal filed on 21 March 2017 be dismissed.
The appeal be allowed.
Order 3(a) made by Berman J on 19 August 2016 be set aside.
The proceedings be remitted for rehearing by a judge of the Family Court of Australia other than the Honourable Justice Berman.
Pending further order of the Family Court of Australia, the appellant father spend time with the child N born in 2010 in accordance with Order 3(a) made by Berman J on 19 August 2016.
Each party bear their own costs.
The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 father in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) 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 mother in respect of the costs incurred by her in relation to the rehearing.
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 Henley & Henley 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 81 of 2016
File Number: ADC 1876 of 2014
| Mr Henley |
Appellant
And
| Ms Henley |
Respondent
REASONS FOR JUDGMENT
Introduction
On 19 August 2016 Berman J determined parenting proceedings between Mr Henley (“the father”) and Ms Henley (“the mother”) in relation to their child N (“the child”) born in 2010.
The orders provided for the parties to have equal shared parental responsibility for the child and for the child to reside with the mother. Order (3)(a) also provided for the child to spend time with the father for a block period of four nights each fortnight.
By his Notice of Appeal filed on 14 September 2016, the father appeals Order (3)(a). He seeks that the child’s time with him be increased so that the child would spend equal time with each parent week about.
The appeal is opposed by the mother.
The father also filed an Application in an Appeal on 21 March 2017 in which he sought leave to adduce further evidence. In circumstances where we propose to allow the appeal for the reasons below, it is unnecessary for us to consider this application and we shall therefore dismiss it.
Background
The father, now 64 years of age and the mother, now 35 years of age initially met online in October 2008. A few months later the father travelled to South East Asia, the mother’s country of birth, so that the parties could meet face to face. They married in 2009, separated in May 2013 and were divorced in August 2014.
The mother has one child from a previous relationship, a son now 15 years of age (“F”), and he resides with her and the parties’ child.
The father has four adult children from his two previous marriages. The father remarried in 2014.
The father is a public servant and during the parties’ marriage they resided at three regional communities. At the time of separation the parties were residing at Town P.
Following separation the parties prepared a parenting plan. The mother became very distressed about the terms of this to the point where she was admitted to hospital for two days.
A few months later the mother moved to live in Adelaide with the children. Initially the father remained living and working in Town P. When the mother moved to Adelaide the father then travelled from Town P to Adelaide and spent each alternate weekend with the child.
In January 2014 the father changed his employment and residence to Town L. This is approximately 100 km from Adelaide. From this time the father and the child spent time together each weekend from Friday evening to Sunday evening.
In April 2014 the mother commenced living in Adelaide with a person whom she had met online.
In May 2014 the father was arrested and charged with having raped the mother during the marriage. The father denied the mother’s allegations. He was subsequently granted bail and was able to spend time with the child. The father’s employment as a public servant was suspended.
In July 2014 the mother separated from her partner in Adelaide and returned to Town P with the children where she cohabited with a former partner.
In August 2014 the father commenced these proceedings. Berman J made interim orders which required the child’s residence to be relocated to Adelaide. The mother was unable to relocate promptly and in October 2014 orders were made which placed the child in the father’s care until the mother moved back to Adelaide in December 2014. Then the child returned to her care.
In March 2015 all charges against the father were withdrawn and he was reinstated as a public servant in August 2015.
Since December 2014 the child has lived with the mother and spent four nights per fortnight and school holiday time with the father.
The primary judge’s reasons
The primary judge commenced his reasons for judgment by noting that the father sought orders for equal shared parental responsibility and that the child live with each parent on a week about basis, while the mother sought orders that she have sole parental responsibility, and that the child live with her and spend time with the father for four nights per fortnight.
His Honour set out the relevant background facts and the evidence of the father, his wife, the mother and the family consultant. His Honour regarded the father’s evidence as being “clearly slanted to his own circumstances and case strategy” ([68]). He did not accept the mother’s trial affidavit as her own document. Rather his Honour considered the affidavit as being “either the personal view of her solicitor or at its most benign, an interpretation of what he considers the mother’s evidence to be” ([113]). But ultimately, his Honour regarded the mother as a witness of the truth.
At [178] his Honour noted that “the focus of the proceedings has been almost entirely centred upon the power imbalance within the relationship alleged by the mother”. His Honour then recorded that the father denied abusing such an imbalance ([179]).
Under the heading “Principles Relevant To Parenting Orders”, his Honour explained the provisions of the Family Law Act 1975 (Cth) (“the Act”) which are relevant in parenting proceedings ([181]–[190]) and referred to some authorities.
His Honour then referred to the primary considerations ([193]–[198]). He found that the parties agreed that there would be benefit to the child in having a meaningful relationship with each of them. His Honour also found that it would be reasonably practicable for the child to spend either equal time or substantial and significant time with each of the parties.
His Honour found that neither of the parties presented any risk to the child of psychological harm, abuse, neglect or family violence.
Turning to the additional considerations, his Honour found that the child’s views should not be given substantial weight ([199]–[200]) and that the child has a strong relationship with each party ([201]–[203]). In relation to the likely effect of any changes in the child’s circumstances, his Honour identified the recommendation of the family consultant that the existing arrangements continue due to her opinion that the child required stability and might not easily adjust to an equal time arrangement ([204]–[209]). His Honour considered as a substantial factor to be brought to account the observation made by the family consultant that the father presented as self-centred, focussing on his own needs rather than on the needs of the child ([210]).
In relation to the ability of each of the parties to support the child’s relationship with the other, his Honour identified the family consultant’s “forceful observations” that the father was not supportive of the child’s relationship with the mother ([214]).
Ultimately his Honour placed substantial weight on the observations of the family consultant regarding the child’s significant attachment to the mother and the benefit of that attachment to the child in terms of his happy disposition and developmental progress ([217]). His Honour identified that the mother was more focussed on the child’s needs ([218]).
At [219]–[223], his Honour considered the allocation of parental responsibility. Having found that parental responsibility should remain shared, his Honour identified the requirement to consider whether it would be in the best interests of the child to spend equal time with the parents and if not, substantial and significant time.
At [224], his Honour found that it would be in the child’s best interests to continue the current arrangements, saying as follows:
I consider that it is in the interests of the child to effectively leave the arrangements as they currently are. There is demonstrably a good relationship between the child and his father and I do not consider that there has been any evidence presented which would suggest that in some way the child will gain greater benefit by spending more time with him. Whilst the father may be desirous of this outcome, there is no evidence and indeed such a contention is not supported by the family consultant.
His Honour then indicated at [225] that while he did not propose to increase the father’s time with the child, he was of the view that the child would be more settled by spending time with the father in one extended period which would reduce the burden of travelling and the parties would benefit from less interaction.
The grounds of appeal
There are four grounds of appeal. The first ground challenges the undoubtedly erroneous finding of the primary judge that the father resides at Town L and involves an assertion that his Honour gave significant regard to this in arriving at the amount of time he considered to be in the child’s best interests to spend with the father. The second ground challenges his Honour’s reliance on the family report, it being asserted that the report writer was influenced by evidence which was highly prejudicial to the father much of which was struck out by his Honour, as well as other complaints about the report. The third ground challenges the primary judge’s admission into the evidence, and reliance upon, a report by the mother’s treating psychiatrist in circumstances where his Honour had mistakenly believed that the father had raised no objection to its admissibility as well as making erroneous findings about matters relevant to the mother’s state of mental health. The fourth ground was a challenge to procedural fairness and involved an assertion by the father that the primary judge was biased against him.
Discussion
Keeping in mind the strict limitations on appellate interference with a discretionary decision as set out in High Court authorities such as House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 we now turn to consider the grounds of appeal.
Ground 1 – finding of fact about the father’s place of residence
By this ground the father asserts error on the part of the primary judge in mistakenly finding that the father resided at Town L, some 100 km from the mother’s residence and the child’s school when, in fact, the father resided close to the child’s school and the mother’s residence. The father’s argument in support of this ground was that his Honour had significant regard to this finding and would have had it in mind, mistakenly, that at times when the child was in the father’s care on school days he would have had to spend three hours travelling between the father’s home and school each day. The father said that the impact of such travel was relevant to the welfare of the child and therefore this must have been a significant consideration in his Honour’s decision not to order that the child spend equal time with the father.
The parties agreed that the primary judge was in error in finding that the father was residing at Town L at the time of the hearing. The father was, in fact, residing at Suburb V, while the mother and the child were residing in Suburb X, which is not far from Suburb V.
His Honour’s confusion can be seen in these extracts from the judgment:
12. The father … resides in [Town L].
…
27.[The father] has been employed at [Q][1] since … February 2016.
…
195.The mother resides in Adelaide and the father and his partner in [Town L].
…
[1]Q is situated in Adelaide.
211.It is not known how long the father will continue [working] at [Town L].
His Honour therefore appears to have been of the understanding that the father was living a significant distance from the mother’s residence and that for the child to spend time with the father at his residence would involve significant travel. This appears from the following passage:
225.The present order provides that the child spends time with the father for two days in each week and half school holidays. Given that the child is now at school, it seems sensible that whilst there should not be any increase in the father’s time, the child is likely to be more settled by spending his time with the father in one extended period. The impost on the child in terms of travelling is reduced …
While the primary judge made an error about where the father was residing, the difficulty for the father is that he was unable to demonstrate that this error caused his Honour to arrive at any erroneous finding about matters which it was necessary for him to take into account. In fact it is clear from the following passage of the judgment that the error did not cause the primary judge to consider that there was any impracticability in what he understood was the parenting proposal by each of the parties:
195.It is not contended that it is not reasonably practicable for the child to spend either equal time or substantial and significant time with each of the parties. The mother resides in Adelaide and the father and his partner in [Town L]. The distance is approximately 100 kilometres apart. Even so, the same level of travel is involved on either parties’ [sic] proposal.
It does appear, however, that the error had some significance because his Honour’s mistaken view about the amount of travelling involved would appear to explain why he formed the view at [225] that it would be better to aggregate the two days each week which the child was spending with the father to one block of four days each fortnight. Nevertheless this assumes no significance in the appeal because the father conceded that he would not consider it to be in the child’s best interests to revert to the previous regime of two days per week.
It has not been shown that the mistaken belief by the primary judge about the father’s place of residence has led his Honour into substantive error. Accordingly, we are satisfied that there is no merit in this ground.
Ground 3 – the report of the mother’s psychiatrist
Under this ground the father asserts that the primary judge fell into error because of the manner in which he dealt with the report of the mother’s psychiatrist.
There are three main complaints. Firstly, that his Honour incorrectly found that the father had not objected to the report being received into the evidence. Secondly, that his Honour received the report into the evidence without the psychiatrist having been present for cross-examination, particularly in circumstances where the father raised significant concerns about the mother’s mental health. Finally, the father asserted error on the basis of his Honour relying on the report which the father argued should have been given little or no weight for the numerous reasons he specified in the Notice of Appeal. These included that the report lacked currency, disclosed limited and infrequent consultation of the psychiatrist by the mother, made no reference to important relevant facts such as that the mother had been hospitalised for psychological reasons, had reported suicidal ideation, allegedly changed her medication dosage and engaged in various behaviours which the father asserted raised serious questions about her state of mental health.
To provide context for these complaints we note the following.
Within days of having separated (May 2013), the father prepared a parenting plan ([30]). The mother became very unhappy about the parenting plan. In May 2013 she became so agitated and emotional that she was admitted to hospital where she remained for two days ([32]).
A psychiatric report by the psychiatrist dated 18 December 2014 was annexed to the mother’s trial affidavit sworn on 1 May 2016. Notwithstanding various issues which we shall refer to below, the report was admitted into the evidence.
The report includes the following. The psychiatrist had first assessed the mother in 2011 and diagnosed her with the condition of a major depressive disorder which had developed in the context of relationship difficulties with the father. The psychiatrist prescribed a low dose antidepressant medication, and arranged for the mother to have psychological therapy directed towards assisting her to deal with stress and increasing her assertiveness. The psychiatrist said that the mother had remained on the medication and had responded well.
The psychiatrist’s report recorded that she had seen the mother on three occasions in 2011, once in 2013 and for the last time in November 2014. The report said that the mother was currently (as at 18 December 2014) well and that her episode of major depression had resolved. But the psychiatrist asked the mother to remain on the medication because she was under a lot of stress. The psychiatrist arranged for the mother to engage with the mental health nurse at Town P, where the mother was resident at the time, predominantly to offer support. The psychiatrist said that she had never felt it clinically necessary to refer the mother on for further medical or social assistance. The psychiatrist also said that in her opinion, the mother’s condition of major depression which she said had resolved “in no way limits or impacts on her ability to care for her son”.
The primary judge made a number of findings in relation to the issue of the mother’s mental health as follows:
18.The father alleges that following the child’s birth the mother suffered post-natal depression. The mother agrees that this has been an ongoing difficulty for her. The father says the mother suffered irregular mood swings which resulted in mood stabilising medication being prescribed and taken by the mother.
...
83.The mother acknowledges that the father alleges that she has mental health issues which he considers could adversely impact upon her parenting capacity.
84.She agrees that she was diagnosed with depression during the course of the marriage but considers that the stress arising from the marital discord was an appropriate explanation for her major depression.
85.She consulted with a psychiatrist between 2011 and 2015 and annexed to her trial affidavit is a report of the psychiatrist which can be summarised as now having resolved with the mother no longer experiencing or reporting any symptoms suggestive of a major depressive disorder.
86. She is nonetheless under ongoing monitoring.
87.Her history is one of compliance with recommendations of her psychiatrist and medication as prescribed.
Turning to the complaint that his Honour was mistaken in finding that the father had not objected to the psychiatrist’s report, we note the following passage:
88.The report of the psychiatrist is not challenged by the father and whilst [she] was not called, I consider that I am entitled to rely upon [her] report and I give it significant weight in support of the contention that there are no issues affecting the mother’s mental health that would impact upon the orders she seeks or could be considered adverse to her capacity to appropriately parent the child and [F].
It is not correct that the father did not challenge the psychiatrist’s report. The father filed a Case Outline on 8 June 2016 in which he included his objection to the report. The relevant part of the Case Outline is as follows:
Part C - List of objections to the mother’s affidavit filed on 2 May 2016 (sworn 1 May 2016) upon which rulings are required:
1.The Father seeks an order that paragraphs 24, 25, 26 and 60‑71 inclusive, be struck out as being, unnecessary, irrelevant, and scandalous.
2.That the report of [the psychiatrist] (annexure JH4) not be received, upon the ground that it is not properly before the Court, unless the deponent is made available for cross examination.
(Emphasis added)
His Honour ruled on the father’s objections to the mother’s affidavit (transcript 14 June 2016, pp 11–20), but did not go on to deal with the second part of the objection in the father’s Case Outline, namely the status of the psychiatrist’s report. Yet while noting in his reasons that “the father relies upon a Case Outline document filed 8 June 2016” ([4]), his Honour found that the father had not challenged the report ([88]).
It was submitted by counsel for the mother on appeal that the objection to the psychiatric report was only raised in the Case Outline document and that the father should have raised his objection, if he was still maintaining it, directly with his Honour. It was submitted that it was not the role of his Honour to prompt the father about his objection and that it was too late now during the appeal to complain about this matter, especially in circumstances where the father did not seek to cross-examine the mother about the report and did not make any submissions to his Honour about this.
On the other hand, the father said that during the trial he was overtaken by stress and anxiety about the serious allegations the subject of the criminal charges, and that in the circumstances his Honour should have raised with him the objection to the report which he had included in his Case Outline.
It is well recognised that trial judges have particular obligations when hearing cases involving unrepresented litigants in order to ensure, so far as possible, procedural fairness. As the Full Court said in Re F: Litigants in Person Guidelines (2001) FLC 93-072 at paragraph 221:
… in our view, the obligation to provide a fair trial has principal significance for a court of law and it must take some steps to assist a litigant in person in order to do justice between the parties with an eye to the reality of the prevalence and diversity of litigants in person in this jurisdiction.
The father, although self-represented, has a law degree; has been a solicitor in private practice; and is now a public servant. While this puts him into a somewhat different category to most self-represented litigants, the father practised as a solicitor only for a limited time and this was many years ago. He still shared in common with other self-represented litigants the disadvantage of not having a legal practitioner experienced in the practice of family law standing appropriately detached from the personal stresses often experienced by family law litigants, to assist him at the hearing to present his case.
In all these circumstances, and particularly where his Honour had taken into account the fact that the father was relying on his Case Outline, his Honour ought to have raised with the father his objection to the report and whether he wanted to cross-examine the psychiatrist. In our view, in these circumstances, it was not open to his Honour to find that the father did not challenge the report.
There were other difficulties concerning his Honour’s receipt of the report into evidence. His Honour had informed the father early in the trial, when the father was in the process of informing the Court and the parties about corrections to his affidavit, that he would not be reading annexures to affidavits.
This is clear from the following passage of the transcript:
HIS HONOUR: Well, I haven’t got them. You understand, Mr [Henley], that I don’t have – I don’t have regard to any annexures to an affidavit.
MR [HENLEY]: No, I didn’t know that, your Honour.
HIS HONOUR: It’s not evidence.
MR [HENLEY]: Okay.
HIS HONOUR: It might be something, I don’t know, it – but - - -
MR [HENLEY]: Your Honour has - - -
HIS HONOUR: - - - I do not read – I do not read annexures to affidavits.
MR [HENLEY]: Right. So your Honour - - -
HIS HONOUR: And the only time that I will do so is if the particular annexure is put into evidence by consent, it’s tendered, it’s made part of the proceedings as a result of cross-examination or examination-in-chief or re-examination or some other event occurs but your evidence is – your evidence is that which is contained in the narrative of your document, not that which is contained by way of appendage to an affidavit.
MR [HENLEY]: Thank you, your Honour.
HIS HONOUR: Not the ..... so I don’t have the USB, I don’t have – and I’ve got ..... I’ve got the annexures. I have but have I read them, no. Do I intend to read them, no.
MR [HENLEY]: Thank you, your Honour.
HIS HONOUR: And that doesn’t just go for your affidavit, that’s – that goes as well to the mother’s affidavit or indeed any other litigant in these proceedings until and unless someone indicates what it is about an annexure in whole or in part that I need to have regard to - - -
MR [HENLEY]: Yes.
HIS HONOUR: - - - then I [won’t] have regard to it.
MR [HENLEY]: I understand, your Honour. So - - -
(Transcript 14 June 2016, p 10, lines 1–42, bold emphasis added)
Yet, having informed the father that he would not read annexures to affidavits, his Honour did precisely that in the case of the psychiatrist’s report which was annexed to the mother’s affidavit. As indicated above, at [88], his Honour said that he considered that he was entitled to rely on the report and gave it “significant weight” in determining that there were no issues affecting the mother’s mental health that would impact upon the orders she seeks or could be considered adverse to her capacity to appropriately parent the child.
In our view, the father, having heard his Honour say that he would not be reading annexures, had reason to expect that his Honour would not admit the report into the evidence, let alone place “significant weight” on it. Had the father known that the report would be relied upon by his Honour it is possible, given what was said in the father’s Case Outline, the father would have asked for the psychiatrist to be made available for cross-examination or challenged the evidence in some other way.
Another difficulty arises from [85] where his Honour said:
[The mother] consulted with a psychiatrist between 2011 and 2015 and annexed to her trial affidavit is a report of the psychiatrist which can be summarised as now having resolved with the mother no longer experiencing or reporting any symptoms suggestive of a major depressive disorder.
The mother’s evidence at [75] of her trial affidavit was that she “continued consulting with [the psychiatrist] between 2011 – early 2015”, however the report was completed in December 2014, and was based on the consultations with the mother from 2011 to November 2014. It is not clear whether his Honour was alive to the fact that the report was current only as at December 2014, almost 18 months prior to the hearing, or was under the impression that the report was written in 2015. There is, therefore, some substance in the father’s complaint about the report lacking currency.
In our view, these difficulties were compounded by a further misapprehension by the primary judge. At [93], his Honour said:
It is noted that the mother saw her psychologist [sic] about two weeks prior to the commencement of the proceedings and that she is not currently taking any antidepressant medication. She considered that the medication made her feel unwell and the continued use of the medication in her opinion was more harmful than beneficial.
In fact, at the time of the trial the mother was continuing to take her anti‑depressant medication. The mother gave the following evidence in cross‑examination:
MR [HENLEY]: You called me to come and get [F]?---Yes.
And I collected [N] as well, didn’t I?---Yes.
And the agreement was that I would take them both to give you a break?---Yes.
Do you remember coming to my home on 3 October, early in the morning?---Yes.
That you rang me up?---Yes.
And you said that “I’m drunk”?---Yes.
When did you stop taking antidepressants?---I didn’t stop. I’m still taking - - -
You’re still taking them?---Yes.
I’ve spoken to you about the dangers of drinking and being on antidepressants, haven’t I?---Yes.
(Transcript, 15 June 2016, p 20, lines 4–21, bold emphasis added)
It was submitted on behalf of the mother that this was an error which played no part in the decision-making process because the essence of the decision was that his Honour was not persuaded that there would be benefit to the child in changing the parenting arrangement. It was further submitted that the father had not questioned the mother’s parenting capacity based on her taking anti‑depressant medication and his Honour went to some lengths to note that the father’s proposal for equal time was a tacit concession that there was no disqualification to the mother being capable of looking after the child for the same amount of time as the father.
The difficulty about this submission is that it is not clear what impact the finding that the mother was not taking anti-depressant medication had on his Honour’s ultimate decision, especially when considered in light of the issues raised in regard to the report of the psychiatrist.
Given the various errors we have identified in his Honour’s treatment of the report and the other errors referred to above, we cannot be satisfied that these errors did not cause his Honour’s discretion to miscarry. Accordingly, we find merit in this ground of appeal.
Grounds 2 and 4
On the basis that we have found ground 3 to have been established, it is unnecessary to consider grounds 2 and 4 in detail. In particular, the question of the weight to be given to the family report would be better left to be considered during the rehearing we propose to order.
Conclusion
Given that we have found substance in the ground concerning the mother’s mental health, the appeal against Order (3)(a) must succeed.
It was submitted on behalf of the mother that in the event that the Court found merit in the appeal the appropriate course would be to remit the proceedings for hearing by a different judge. The father indicated that he was “in the Court’s hands” about this.
We do not consider it appropriate to endeavour to re-exercise the discretion. In excess of 12 months has passed since the hearing and there have no doubt been changes for the child over that time. The parties should be provided with the opportunity to present further and current relevant evidence. The proceedings will have to be remitted for a new trial.
Although on that basis we intend to set aside Order 3(a), it is appropriate that some arrangement be in place to ensure the father continues to see the child until the Family Court of Australia makes either an interim or final order dealing with that issue. We propose therefore to make an order to ensure that result.
Costs
The father indicated that in the event that the appeal was successful he would not seek costs against the mother. He informed the Court that he had incurred costs in obtaining the transcript and preparing the appeal books. He said he understood that there was provision for ordering a costs certificate and indicated that he sought such a certificate, but only in relation to the appeal.
Counsel for the mother submitted that in the event that the appeal was successful his client would seek a costs certificate, both in respect of the appeal and also for the new trial.
We propose to make orders as sought pursuant to the Federal Proceedings (Costs) Act1981 (Cth).
I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland and Johnston JJ) delivered on 20 July 2017.
Associate:
Date: 20/7/17
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