Homewood & Parkinson
[2021] FedCFamC1A 79
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Homewood & Parkinson [2021] FedCFamC1A 79
Appeal from: Homewood & Parkinson [2021] FamCA 516 Appeal number(s): SOA 48 of 2021 File number(s): ADC 747 of 2015 Judgment of: ALDRIDGE, WATTS & TREE JJ Date of judgment: 9 December 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Procedural fairness – Adequacy of reasons – Weight challenges – No ground of appeal established – Where there is a clear error in the wording of the order providing for time spent between the child and the father – Where the slip rule cannot be applied by the Full Court – Appeal allowed in part – Re-exercise of discretion.
FAMILY LAW – APPLICATION IN AN APPEAL – Oral application to amend grounds of appeal – Where the proposed amendments are premised on an erroneous construction of the orders – Futility – Application dismissed.
Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 17.02
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 49 Date of hearing: 9 November 2021 Place: Adelaide, delivered in Cairns Counsel for the Appellant: Mr Dillon Solicitor for the Appellant: Varga Lawyers Pty Ltd Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: VP Lawyers ORDERS
SOA 48 of 2021
ADC 747 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HOMEWOOD
Appellant
AND: MR PARKINSON
Respondent
ORDER MADE BY:
ALDRIDGE, WATTS & TREE JJ
DATE OF ORDER:
9 DECEMBER 2021
THE COURT ORDERS THAT:
1.The mother’s oral application to further amend her Amended Notice of Appeal filed 20 October 2021 be dismissed.
2.The appeal be allowed in part, Order 7 of the primary judge made on 16 July 2021 be set aside, and in lieu thereof it be ordered:
7.That providing that the father has forwarded to the mother a report evidencing that he has attended at least six (6) sessions of therapy over a period of no less than six (6) months as required by Order 10, then thereafter the father shall spend time with Y as follows:
(a)For a period of six (6) months on each alternate Saturday from 1.00 pm until 5.00 pm;
(b)For the following six (6) months thereafter on each alternate Saturday from 10.00 am until 4.00 pm;
(c)For a further six (6) months thereafter from the conclusion of school on Friday until 4.00 pm on Saturday on each alternate weekend and thereafter from the conclusion of school on Friday until 4.00 pm on Sunday on each alternate weekend, save that such time will be suspended during school holiday time as provided for in Orders 7(d), (e), (f) and (g);
(d)Commencing in the September/October 2022 school holidays for one half of the short end of term school holidays as may be agreed between the parties but in default of agreement the father shall have the first half of the holidays from the conclusion of school until the middle Saturday at 5.00 pm;
(e)During each Christmas school holiday period, commencing in 2022, on each alternate week but in default of agreement the father’s time shall commence from 5.00 pm on the first Saturday after the last day of the school term until the following Saturday at 5.00 pm and each alternate week thereafter;
(f)From 4.00 pm Christmas Eve until 4.00 pm on Christmas Day in 2022 and each alternate year thereafter;
(g)From 4.00 pm Christmas Day until 4.00 pm on Boxing Day in 2023 and each alternate year thereafter.
3. Otherwise the Amended Notice of Appeal filed 20 October 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Homewood & Parkinson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, WATTS & TREE JJ:
INTRODUCTION
By Amended Notice of Appeal filed 20 October 2021, Ms Homewood (“the mother”) appeals from final parenting orders made by a judge of the Family Court of Australia (as it then was) on 16 July 2021. Mr Parkinson (“the father”) resists the appeal.
For the reasons which follow, the appeal will be allowed in part, but otherwise dismissed.
BACKGROUND
At the time the primary judge’s reasons were delivered, the mother was 37 years of age and the father 66 years of age. They commenced cohabitation in November 2009.
There are two children of the relationship; X who is now 11 years of age and Y who is now seven years of age.
The children left the family home with the mother in February or March 2015, and they have remained in her primary care ever since. Albeit initially post separation the father intermittently spent time with the children, following the parties and the children attending a family holiday in April 2017, that ceased (at [29]).
Both parties are professionals, however in October 2020 the mother closed her business and surrendered her business licence. At the time of trial, the mother was not working and received a government allowance. The father remains a self-employed professional.
In May 2018, the mother initiated proceedings in relation to both parenting and property matters. In the parenting proceedings, it was the mother’s position that the children should not spend any time with the father, whereas the father proposed that both children spend time with him on a gradually increasing basis, culminating in substantial and significant time.
The parenting orders made on 16 July 2021 provide for the mother to have sole parental responsibility for the children (Order 2), that the children live with her (Order 3), for X to spend time with the father as he wishes (Order 4), and for a regime of time to be spent between the father and Y, commencing with three months of supervised time (Order 5), but later moving to unsupervised time, and gradually increasing in duration (Order 7). The orders mandate that the move to unsupervised time is predicated on a Family Report being prepared and released (Order 7(a)). It is these orders relating to Y’s time with the father, and the conditions of that time, that are the subject of this appeal.
THE APPLICATION TO AMEND THE GROUNDS OF APPEAL
At the outset of the hearing of the appeal, the mother sought to amend Grounds 1 and 2(a) to additionally assert error by the primary judge in the making of Order 7(e). Relevantly Order 7 provided as follows:
7.That thereafter the father shall spend time with Y as follows:
(a)That for a period of six (6) months commencing on the fourth Saturday following the publication of the report prepared by the family consultant, on each alternate Saturday from 1.00 pm until 5.00 pm;
(b)Subject to compliance with paragraph 10, for the following six (6) months thereafter on each alternate Saturday from 10.00 am until 4.00 pm;
(c)For a further six (6) months thereafter from the conclusion of school on Friday until 4.00 pm on Saturday and each alternate weekend and thereafter from the conclusion of school on Friday until 4.00 pm on Sunday on each alternate weekend.
(d)Commencing in the September/October 2022 school holidays for one half of the short end of term school holidays as may be agreed between the parties but in default of agreement the father shall have the first half of the holidays from the conclusion of school until the middle Saturday at 5.00 pm.
(e)Commencing with the Christmas school holiday period in 2022 on each alternate week but in default of agreement the father’s time shall commence from 5.00 pm on the first Saturday after the last day of the school term until the following Saturday at 5.00 pm and each alternate week thereafter.
(Emphasis added)
Both of the alleged errors sought to be captured in the proposed amendments are premised upon a construction of Order 7(e) to the effect that it establishes an equal time regime for Y commencing in the Christmas school holidays in 2022. However such a construction is not reasonably open upon a fair reading of Order 7. Particularly the words “and thereafter” in Order 7(c) make it clear that it is that order which establishes the ongoing non-holiday time between Y and the father, and that Orders 7(d) and (e) only relate to school holidays. Such a construction is supported by the primary judge’s reasons, which make it plain that his Honour intended that the mother would remain the children’s primary carer (at [333]). Therefore to permit an amendment to include a challenge which could not succeed would be futile, and hence not a proper exercise of the discretion.
The mother’s oral application to further amend the Amended Notice of Appeal filed 20 October 2021 will be dismissed.
THE APPEAL
The appeal challenges the orders made in the exercise of the primary judge’s discretion. At the outset, it is useful to restate the well-known principles applicable to appeals from discretionary judgments. In House v The King (1936) 55 CLR 499 at 504–505, it was said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The Amended Notice of Appeal, which runs to four grounds, complains of a denial of procedural fairness, inadequacy of reasons and a failure to afford proper weight to parts of the evidence. We will first deal with the ground asserting a denial of procedural fairness, and thereafter consider the remaining grounds of appeal if necessary (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611–612, 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
Ground 1
Ground 1 was in the following terms:
1.That the learned Trial Judge failed to provide the [mother] procedural fairness in respect of making Order 7(a).
We have already set out the terms of Order 7(a) at [9]. As framed, that order imposes a mandatory precondition to the father spending unsupervised time with Y, that a further Family Report be prepared and published. However no other order makes provision for the preparation of that further Family Report, or requires the parties to attend upon a Family Consultant for interviews, nor do the orders detail who ought to be the author of the report, the timing of its preparation, or the scope and purpose of it.
The mother submitted that the making of this order comprised a denial of procedural fairness, as the further Family Report was not sought by either party at trial, was not the subject of cross-examination, and not foreshadowed by the primary judge.
The father however submitted that Order 7(a) contains an error in its wording, and in fact, no further Family Report was intended to be prepared as a condition of Y’s time with the father progressing to unsupervised. The father says the intention behind Order 7(a) is that it contemplates a period of unsupervised time of six months on each alternate Saturday for four hours following directly on from the supervised time provided for in Order 5. The father says “it is obvious on the face of the order that the wording (as it is) does not reflect the intention of the court to move the circumstances of the time spending between [Y] and his father from ‘supervised time’ to ‘unsupervised time’ in the form of a natural progression it is contemplated by the balance of the orders made” (father’s Summary of Argument filed 4 November 2021, paragraph 6).
Counsel for the father contended that the words “following the publication of the report prepared by the family consultant” ought be varied pursuant to r 17.02(1)(e) and (f) (sic) of the Family Law Rules 2004 (Cth) (now r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) and replaced with the words “following the conclusion of the time spending provided for in paragraph 5(a) herein” (father’s Summary of Argument filed 4 November 2021, paragraph 8).
We agree that the inclusion of the impugned words in Order 7(a) is a patent error. Not only do the orders not otherwise refer to, nor deal with, a subsequent Family Report in any way, but there is no mention of it whatsoever in the primary judge’s reasons. Inexplicably, no application to vary the order under the slip rule has been made by the father to the primary judge, although he now contends it can now be so remedied by this Court on the appeal.
However, whilst persuaded that the inclusion of the impugned words is an error, we cannot be satisfied as to what the primary judge’s intentions were in making Order 7(a), and particularly whether it was intended to refer to some other report. For instance Order 10 requires the father to provide the mother with “a document confirming that he has attended… at least six (6) occasions” of particular therapy within six months of the orders. Whilst that is the precondition to the unsupervised time afforded by Order 7(b), it is not at all impossible that it was also intended to be a precondition to Order 7(a) operating.
In those circumstances, the slip rule is not able to be employed to correct the error. However since the impugned words plainly were erroneously inserted into Order 7(a), the natural justice challenge is misconceived, and Ground 1 fails.
Ground 2
This ground asserts that:
2. That the learned Trial Judge failed to provide any or any adequate reasons: -
a. In respect of the making of Order 7(a);
b.In respect of the making of orders for the [father] to spend supervised time with the child [Y] and in the making of orders for the [father] to spend unsupervised time with the said child.
As with Ground 1, Ground 2(a) presumes that the impugned words in Order 7(a) were deliberately included, however as we have explained in dealing with Ground 1, we are not so persuaded, but rather are satisfied they were erroneously included in the order. Therefore again Ground 2(a) is misconceived and fails.
As to Ground 2(b), it contends no, or an inadequate, exposure of reasoning by the primary judge in making orders for Y to spend time at all with the father, whether supervised or not.
The obligation to give reasons is well settled. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 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.
However it is not necessary for a judge who is exercising a discretionary judgment to detail each fact which he/she has found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference of a finding is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Rafferty & Spencer (2016) FLC 93-710 at [30]).
Those requirements are easily met here. Particularly, the primary judge:
(a)accepted that “Y may well have something to gain by maintaining a relationship with the father” (at [329]);
(b)was not satisfied that the father posed a direct threat to the children (at [298] and [332]);
(c)although accepting that the mother “remains highly distressed and anxious at the possibility of the father resuming a relationship with the children”, was also satisfied that “appropriate clinical therapeutic intervention…would enable her to function as a parent” (at [336]);
(d)in any event, required the father to “engage in therapeutic intervention to assist the father in gaining insight into the deleterious impact of family violence upon the children and the mother” (at [346]); and
(e)noted the father’s concession that “if there is to be a resumption of time with Y there should be an initial period of supervision” (at [327]) although concluded that “[o]ngoing supervision is not a viable long term order” (at [328]).
None of those findings or conclusions are challenged on appeal. There is hence no merit to Ground 2(b).
Ground 2 fails.
Grounds 3 and 4
Ground 3 is in the following terms:
3.That the learned Trial Judge erred in finding that it was in [the] best interests of the said child [Y] to have a meaningful relationship with his father and in finding that it was in his best interest to spend time with the [father], whether supervised or unsupervised, in that such findings were made against the evidence or the weight of the evidence.
Ground 4 contends:
4.That the learned Trial Judge erred in failing to give sufficient weight to the evidence of:
a. Dr J;
b. Family Consultant Ms L;
c. Family Consultant Ms M; and
d. Clinical Psychologist Ms H.
These grounds may be shortly dealt with. As argued, it was conceded by the mother that both grounds were purely weight challenges, and that there was some evidence upon which the finding challenged by Ground 3 was based. Those concessions are all but fatal to such grounds (Gronow v Gronow (1979) 144 CLR 513).
More, the challenge made by Ground 4 is essentially meaningless, as no consequential error is advanced.
We are well satisfied that the evidence before the primary judge provided a sufficient basis for the conclusion that Y’s best interests lay in him having a meaningful relationship with the father, or at least him having the opportunity to do so. Particularly, in addition to the findings referred to above at [27], the following unchallenged findings also pertain:
(a)Y is not reluctant to spend time with the father (at [303]); and
(b)there was no evidence (beyond the mother’s concerns) that if Y had a relationship with the father, it would adversely impact upon X (at [337]).
Grounds 3 and 4 fail.
CONCLUSION
Although no ground of appeal succeeds, it is clear that Order 7 is nonetheless infected by error. Given that the primary judge’s findings remain wholly undisturbed, there is no utility or legitimate forensic benefit to either party in remitting the matter for rehearing. To the extent that counsel for the mother pressed the contrary proposition, it must be rejected, as even he conceded that on remitter, a judge at first instance would simply be doing what we are in an equally good position to do on re-exercise.
We are therefore persuaded that Order 7 of the primary judge should be set aside, and that we should re-exercise the primary judge’s discretion. As to that, the only real questions are the rate of the progress of Y’s time with the father, and whether, as contended by the mother, we should order a Family Report as a precondition to the commencement of unsupervised time.
We were told without contradiction that:
(a)the parties have enrolled with the relevant contact centre which is to supervise the father’s time, but have not undertaken its induction, which will likely occur in January 2022, such that time would start in about April 2022, i.e. some five months hence; and
(b)contrary to the orders, the father has not yet commenced upon his six months of therapy.
Somewhat serendipitously, that then means that if the father complies with the order for therapy as soon as is practicable, by the time that the three months of supervised time under Order 5 has concluded, he will have concluded his therapy. We are well satisfied in any event, that unsupervised time ought not to start until that therapy has concluded, but that otherwise the orders made by the primary judge relating to Y spending time with father are in the child’s best interests.
We are not satisfied that the father’s time with Y should be supervised for 12 months, as the mother contended before us, given the lack of risk of direct physical harm to the child as found by the primary judge. Further the risk asserted by the mother, of the father denigrating her to Y if unsupervised, is not established.
Not only is it difficult to see any benefit flowing to Y from the imposition of a requirement of a Family Report being obtained before unsupervised time commences as the mother argued, but more, such a requirement would virtually guarantee a continuation of the litigation, which is plainly not in either child’s best interests.
Therefore, the effect of our re-exercise will be to delete the impugned words in Order 7(a), and instead Order 7 generally will be prefaced with the words “That providing that the father has forwarded to the mother a report evidencing that he has attended at least six (6) sessions of therapy over a period of no less than six (6) months as required by Order 10, then thereafter the father shall…”.
Although not strictly necessary, the words “Subject to compliance with paragraph 10” shall be deleted in Order 7(b).
Finally, Order 7(c) shall conclude with the words “save that such time will be suspended during school holiday time as provided for in Orders 7(d), (e), (f) and (g).”
COSTS
The appeal has succeeded, albeit not on any ground argued by the mother. In that sense the father technically was successful, and indeed substantively successful on the re-exercise.
In the event that the mother failed, the father sought a costs order against her of $16,416.92. Although any order for costs was opposed by the mother, no issue was taken by her with the father’s claimed quantum of costs.
The mother’s financial circumstances are presently parlous, although soon to be augmented by the payment of $87, 855 to her under the primary judge’s property settlement orders. However that sum is still modest, and she remains the primary carer of both children.
We are not persuaded that in this case, the usual rule under s 117(1) of the Family Law Act 1975 (Cth) that each party should bear their own costs, is displaced.
Further, although we are satisfied that the primary judge erred, it was not an error of law, and therefore no occasion for the issuing of costs certificates arises.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Watts & Tree. Associate:
Dated: 9 December 2021
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