Hungerford & Tank
[2007] FamCA 637
•29 June 2007
FAMILY COURT OF AUSTRALIA
| HUNGERFORD & TANK | [2007] FamCA 637 |
| FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – With whom a child lives – Orders – Bell J made orders reversing residence of child so that the child lived with the mother – Child had been placed in the father’s care when the mother went overseas – That placement confirmed by order of Collier J made in 2002 - The father appealed Bell J’s orders on the basis that the trial Judge failed to consider at all, or adequately, certain relevant principles and factors and gave inadequate reasons – Counsel for father and Independent Children’s Lawyer urged that the Full Court re-exercise discretion so that child live with father – Counsel for mother argued that if appeal successful, parenting orders should be remitted for rehearing – Number of impediments to a cogent explanation for ultimate result during course of hearing before Bell J – Rice and Asplund raised with trial Judge but neither conduct of trial nor submissions highlighted whether or not sufficient change of circumstances had taken place for a change to Collier J’s orders – Reasons of Collier J placed before Bell J in the belief of at least one party that conclusions drawn from primary findings of fact in that judgment would be adopted in proceedings before Bell J – Evidence of a counsellor who prepared a Family Report was “shredded”, leaving the trial Judge with minimal, if any, assistance from expert witness – Deficiencies in Bell J’s reasoning include a failure to apply Rice and Asplund principles; a failure to make assessment of mother’s parenting capacity and ability to meet child’s emotional needs; inadequate treatment of effects of a “relocation” of child and an assessment of parties’ proposals in that context; application of Part VII Family Law Act 1975 (Cth) provisions; and assessment of factors underpinning child’s wishes to live with mother - Held on appeal that Bell J’s reasons inadequate – Appeal allowed – Retrial ordered |
| Family Law Act 1975 (Cth), as amended, Part VII; ss 60B; 60CC(3)(f); 61DA; 64(1)(ba); 64(1)(bb); 65D; 65DAA; 65E; 65F(2) Federal Proceedings (Costs) Act 1981 (Cth) |
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Goode and Goode (2006) FLC 93-286
Hayman and Hayman (1976) 2 Fam LR 11,558; [1976] FLC 90-140
McManus (1969) 13 FLR 449
Smith and Smith (1994) FLC 92-488
Rice and Asplund (1979) FLC 90-725
| APPELLANT: | MR HUNGERFORD |
| RESPONDENT: | MS TANK |
| INDEPENDENT CHILDREN’S LAWYER: | MR HODGES |
| FILE NUMBER: | BRF | 1072 | of | 2001 |
| APPEAL NUMBER: | NA | 89 | of | 2006 |
| DATE DELIVERED: | 29 June 2007 |
| PLACE DELIVERED: | BRISBANE |
| JUDGMENT OF: | WARNICK, MAY AND BOLAND JJ |
| HEARING DATE: | 15 May 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 October 2006 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Sayers |
| SOLICITOR FOR THE APPELLANT: | Harrington Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Slade Manwaring Lawyers |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Hodges |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Haney Lawyers |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Hungerford & Tank.
Orders
That the appeal be allowed.
That the applications of the father Mr Hungerford and the mother Ms Tank with regard to the child B be remitted for rehearing as soon as practicable by a Judge other than Bell J.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of section 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 the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of section 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 the respondent mother in relation to the appeal.
That the Court grants to each the appellant father and the respondent mother costs certificates pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to each of the appellant father and the respondent mother in respect of the costs incurred by each in relation to the new trial.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 89 of 2006
File Number: BRF 1072 of 2001
| MR HUNGERFORD |
Appellant
And
| MS TANK |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
At the end of a six day trial on 16 October 2006, Bell J made orders, for reasons that he delivered ex tempore that reversed the residence of then 13 year old B from with her father Mr Hungerford, where she had lived since 2001, to residence with her mother, Ms Tank. The mother had actually placed the child in the father’s care in 2001, when she went to Canada with a male friend. That placement had been confirmed by the orders of Collier J made on 15 April 2003, after a seven day trial in August and September 2002.
In this appeal by the father, the major complaints, which are closely related, are that the trial Judge failed to consider at all or adequately, certain relevant principles and factors and gave inadequate reasons for the result.
The mother had three children, T 20 years of age at trial, B (the child in question) and L, 9 years of age. L’s father, Mr Yates was the applicant in the proceedings heard by Bell J. L lived with Mr Yates and the issue between Mr Yates and the mother was as to her contact with L. T was an intervener in the proceedings, seeking contact to B and L. This appeal does not affect the positions of Mr Yates or T.
Before Bell J, B and L were represented by an Independent Children’s Lawyer. Before us the Independent Children’s Lawyer supported the appeal. Both Dr Sayers, Counsel for the father and Mr Hodges, Counsel for the Independent Children’s Lawyer, urged a re-exercise of discretion by us, resulting in orders that B live with the father. Mr Page, Senior Counsel for the mother argued that, in the event the appeal succeeded, the question of parenting orders should be remitted for rehearing.
As to the major complaints in the appeal, the course of the hearing before Bell J indeed raised a number of impediments to a cogent explanation for any ultimate result:
• Though the principle in Rice and Asplund (1979) FLC 90-725 was raised with the trial Judge at the outset and again at the time of addresses, by and large, neither the conduct of the trial nor submissions highlighted, as a central question in the case, whether or not a sufficient change of circumstances for a change to the orders of Collier J had taken place.
• The reasons of Collier J were placed before Bell J, but not clearly for the purposes of a platform from which Bell J might consider the question of whether there had been a sufficient change of circumstances, either to embark upon a fresh hearing or after a hearing to change the orders of Collier J, but quite possibly in the belief of at least one party that the conclusions drawn from primary findings of fact in that judgment would be adopted in the proceedings before Bell J.
• The evidence of a counsellor who prepared a Family Report was, in the words of the trial Judge “shredded” (transcript, 13 October 2006, page 428, line 7), leaving the trial Judge without any or at least much assistance from an expert witness about current family relationships or about the persons significant in B’s life.
A further impediment, at least as expressed by the trial Judge himself, was:
48.I must confess that this matter has not had the time that other people have had to be able to write judgments. I consider that it is essential that the parties have the bottom line as soon as possible and not have to wait for a considerable period.
Regrettably for the parties, and most of all for the child, all of whom have been extensively “involved” in litigation over many years, we consider that his Honour’s reasons are, from whatever causes, inadequate, that the appeal must be allowed and a retrial ordered.
Deficiencies in the reasoning include:
(i)a failure to apply the principles in Rice and Asplund;
(ii)a failure to make an assessment of the mother’s parenting capacity, in particular to meet the child’s emotional needs; and
(iii)though less starkly apparent than the above failures, Bell J’s treatment of the effects of a “relocation” of the child to C from the GC and an assessment of the proposals of each party in that context; his application of the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which of course was substantially amended in 2006; and his assessment of factors underpinning a wish of the child to live with the mother; are lacking in appropriate depth.
There were twelve grounds of appeal. Dr Sayers dealt with them by grouping most as a subset of ground 1 which read:
The learned Trial Judge:-
1.Ordered that B’s living arrangements change when there had been no change of circumstances since December 2000 and a contested Hearing in August and September 2002.
He separately argued Ground 10, which read:
10.[The learned Trial Judge] did not give sufficient weight to Mother’s past conduct.
We think the appeal sufficiently addressed through consideration of the questions as delineated, namely adequacy of reasons and failure to consider or properly consider the nominated relevant factors.
Though the “Shared Parental Responsibility” amendments introduced new terminology in respect of some parenting arrangements, Bell J largely used the pre-amendment language, so at least when referring to Bell J’s reasons and the results, we have followed suit for consistency.
A failure to apply the principles in Rice and Asplund
At the outset of the hearing, Mr George, then Counsel for the father, raised two “preliminary matters” with the trial Judge. The first related to T’s position and is not presently relevant. In relation to the second, the pertinent exchanges were as follows:
MR GEORGE: Secondly, I understand it was earlier foreshadowed before Collier J when these matters yet again came before in Parramatta that a further application by the mother for residence of B [sic] really faced the- - -
HIS HONOUR: I beg your pardon; there is no such thing. Residence – be careful.
MR GEORGE: Sorry, your Honour. That a further application by the mother that B [sic] live with her had to meet the threshold question of Rice v Asplund; what were the significant - - -
HIS HONOUR: When was Collier Js [sic]? It was last year, was it, or the year before, I can’t remember.
UNIDENTIFIED SPEAKER: 15 April 2003 was his original judgment.
HIS HONOUR: Three. That is three years ago. Yes.
A little later, in relation to the identification of whether any change had occurred, there was discussion of B’s age moving from ten (at trial before Collier J) to thirteen at trial before Bell J. The following exchange occurred:
HIS HONOUR: At that age, 10 to 13. You will be submitting that she hasn’t got the – she hasn’t overcome the hurdle.
MR GEORGE: Well, it has certainly been a matter of – that has fallen from your Honour in the past, that change and age of the child in these - - -
Later, there was some discussion with Bell J of any use to be made of the reasons of Collier J:
HIS HONOUR: Well, I understand that, but what about Collier Js [sic] reasons? Why – what is the benefit of that?
MR KIRK: [Counsel for Mr Yates] I will tell your Honour what the benefit of that is.
HIS HONOUR: I mean, it is a view that a Judge took the evidence that was before him at the time.
Mr Kirk SC responded, but not in terms that addressed the use of the reasons as envisaged by the court in Rice and Asplund:
HIS HONOUR: I get concerned about the use of Judges’ reasons in cases which have been heard beforehand. It is a personal view of the evidence before them at that time, a view which I might not take.
And, finally at this point of the trial, the following (relating to B’s wishes at trial in 2002 and at the trial in progress) occurred a little later:
MR GEORGE: No. B [sic] was there expressing the same view, the same opinions, but Mr S questioned them very significantly.
HIS HONOUR: She was 10 at the time.
MR GEORGE: Yes.
HIS HONOUR: What is three years; between 10 and 13 in a young girl’s life. Well, I don’t have any evidence of that, Mr Kirk, but – Mr George – but yes, there perhaps will be evidence that there is a vast difference in a 10 year old girl’s attitude to a 13 year old girl’s attitude, particularly in this day and age. (emphasis added)
As to the prospect of evidence about the difference between a ten year old girl’s attitude and a thirteen year old girl’s attitude, Dr Sayers informed us, and Mr Page did not say otherwise, that no such evidence was ever given.
When Mr George began his address, this exchange occurred:
MR GEORGE: Thank you, your Honour. Your Honour, at the outset I’d invite your Honour to consider what changes have there been since the orders were made by Collier J back in 2003.
HIS HONOUR: The mother’s had little or no contact.
MR GEORGE: The most significant change is the mother’s move to C. In December of 2003 the orders having been made, I think, in April of that year, the mother in pursuit and satisfaction of her own needs, not the children, elects to travel to C with her boyfriend. The evidence as your Honour will recall from both the mother and Mr C before Collier J was that Mr C [sic] proposed selling up in C and travelling to Queensland.…
We are satisfied that the question of the application of the “Rice and Asplund approach” was raised before Bell J and that, in any event, his Honour had to apply that approach. Had he done so he would have had close regard to the reasons of Collier J, significant parts of which include:
184.… I do not believe the mother when she says that she did not sit outside C’s classroom, nor give her gifts. I do not believe the mother when she says that she has not told the children that if they do not live with her they will not see her again.
…
247.Mr S went on to say that uncontained destructive adult relationships were most significant imposts on children’s post-separation adjustment in relationships. He, Mr S, has no doubt that this matter contains destructive dynamics, and as a result the children’s attachments are more difficult to ascertain. He is of the view that there are more historic and current indications in Ms Tank’s conduct than her expressed attitudes to suggest that she is the more active parent in exposing C to destructive elements. Mr S makes it clear that in this case it is a matter of looking to the mother’s conduct, rather than what she says, that leads him to the belief that she is involved in exposing C to what he has described as destructive elements. By this I take him to mean that the mother is the one who is seeking to undermine the child in the father’s household, and I accept that this is in fact the situation.
…
251.I am satisfied that B has expressed a wish to live with her mother and to be reunited with T. I am satisfied that she has expressed this wish to Ms P and Mr S. I accept that she has said this to her mother on a number of occasions. My concern however is that the child has been largely influenced by her mother in relation to the wishes that she has expressed.…
252.I am satisfied that the mother has consciously endeavoured to persuade this child that she should express a wish to live with her. Further, I am satisfied that she and Mr C have gone out of their way to involve the child in exciting activities. I am satisfied further that at a more subtle level the mother has made her distress at not having B live with her clear to the child.
Bell J said of Collier J’s reasons:
7.I consider a regrettable trend has become apparent in this case in that the fathers and the mother, have looked upon the findings of his Honour Collier J as if they were an irrebuttable presumption of fact.…I make is quite clear to everybody concerned, and in particular to the lay people in this audience, that I am not bound by what Collier J said…
While, on the point that he made (and leaving aside questions of issue estoppel and res judicata), his Honour is correct, nowhere in his reasons does Bell J address the question of whether there was sufficient change in circumstances to justify a change from Collier J’s orders. Nowhere in his judgment does he address Collier J’s reasons as a platform from which to examine the issue of change of circumstances. In other words, while he was correct to reject the application of Collier J’s reasons for some purposes, in rejecting them for all purposes his Honour acted contrary to the principles, shortly discussed, set out in Rice and Asplund.
At the highest, Bell J might be seen to have addressed whether B’s continued wish to live with her mother was no longer due to manipulation, but was, as at the time of trial before him, a genuinely held wish.
His Honour said:
9.Consequently, a large, important as it was clearly to Collier J, piece of evidence is not available to me. He referred not only to that but other matters, in coming to his conclusion that the mother was manipulative, that she was a liar, that she would change her evidence to suit whatever dress she wore during the day. That is a matter which, of course, has loomed large in this case, particularly emphasised by Kirk and not emphasised as much by George, but there is a question of credit involved in this case.
From this and later statements, it is clear that Bell J rejected the case of the father (and for that matter, of Mr Yates) that the mother continued to manipulate B (and L), because his Honour considered that the mother had had insufficient physical contact time with B (and L) to have done so. Bell J also rejected (though he did not discuss the evidence, which seemed to us to merit discussion) an argument that the mother had influenced B during numerous telephone discussions.
But, while Bell J made these findings on the evidence before him, as it was proper for him to do, nowhere in his Honour’s reasons does his Honour expressly consider whether those findings constitute sufficient change from the findings made by Collier J to warrant, in the light of all other relevant factors, a change to Collier J’s orders.
In Rice and Asplund, Evatt CJ with whom the other members of the bench agreed said:
…Counsel for the appellant relied on the case of McManus (1969) 13 FLR 449. In that case the father applied successfully to vary a consent custody order. The Full Court of the Supreme Court of New South Wales allowed the appeal, finding that the judge, Selby J, had given insufficient weight to the earlier decree, and I quote:
“The decision to overturn such decree made with the consent of the father, consent given in the light of the then known circumstances, is one which requires most substantial grounds. A reversal of the decree would require the discharge of a particularly heavy onus on the husband, a criterion not found in the affirmative by his Honour. One would look for new facts and circumstances to be revealed before this onus would be discharged.”
…
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.… (emphasis added)
In our view, his Honour failed to address the essential question of whether there was a sufficient change of circumstance since the order of Collier J to justify changing the order and thus was in error.
A failure to make an assessment of the mother’s parenting capacity, in particular to meet the child’s emotional needs
Section 60CC of the Act, in relevant parts, provides:
(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).
Primary considerations
(2)The primary considerations are:
…
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
…
(f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Mr Page conceded that in respect of the mother Bell J made no findings about this factor (s 60CC(3)(f)).
Bell J was aware that the issue of the mother’s parenting capacity was “alive”. He said:
13.…The fathers are of the opinion that the mother is manipulative, that she tells lies, that she does not comply with the orders of the Court, and that she would expose the children, in particular L, to physical harm; that she is addicted or was addicted to drugs; that she is aggressive towards the fathers, and in particular Mr Yates’s wife, T, who quite impressed me I must confess; and generally that she would not advance the welfare of either of the children.
In his reasons, Collier J said of the mother’s parenting capacity:
287.However, I am concerned as to the attitude to parenthood of the mother in this present situation.
288.I am satisfied that the mother has sought to persuade the child to express a wish to live with her and has also sought to influence the child to come to this conclusion. I am firmly of the view that in doing this the mother has acted so as to satisfy her own wishes and to achieve her own goals rather than putting the interests of the child before her own.
289.I am concerned that the mother has in the past allowed T to know of and to some extent be involved in her activities as a prostitute. …Whichever is the true situation, the mother has in my view not acted so as to separate the child T from her activities.
290.My concern is that in the future, if the subject child B were to reside with her, the mother would display the same lack of concern, and would not seek to exclude B from knowledge of her professional activities and to some extent an involvement in them.
…
296.In going overseas when she did and in the manner in which she did, I am satisfied that the mother put her own needs and wishes before the subject child.
…
305.…I am however concerned with the evidence that has been presented that leads me to believe that the mother has been certainly involved in the taking of drugs and possibly involved in their distribution.…
Not only did Bell J have before him the findings of Collier J about this factor, (by which he was not bound but which provided the foundation for enquiry about change of circumstances), but Bell J also had the reports of Mr S, which had been before Collier J.
Mr S, counsellor and family report writer, had written two reports, one in February 2001 and the other in June 2002. Mr S’s first report included the following observations:
(39) From observing the interactions between Ms Tank and her younger daughters it is apparent that there is an intense relationship between mother and children. This intensity may indicate emotional connectedness or may indicate the children’s sense of needing and wanting more of and from their mother in the context of recent and historical absences.…I certainly accept that B has made such statements to her mother but I would wonder whether B, in the knowledge of her mother’s very apparent distress and her parents “not talking anymore”, has sought to offer or receive assurances from her mother. B offers perceptions and wishes at variance to this when interviewed with her father.
…
(44) …There was an element of proffered reassurances to Ms Tank in B’s physical and verbal engagement with her mother. I assessed B to be providing Ms Tank with declarations of her love for her. That is, the child being in touch with her mother’s needs. In the father-daughter interview B repeated her wish to live with her mother, being concerned that Ms Tank would be “lonely” or “sad” if B were not with her, and also indicating that she also liked the idea of living with her father.
…
The report has located and described some findings about the personal functioning and attitudes of the individual parents and the inter-personal dynamics assessed to be in place between the adults and or between the parents and the children. It is the report’s conclusion that Ms Tank has not been functioning as a physically or emotionally available parent. Her own childhood abuse experiences, her psychologically and emotionally corrosive working life, and her unique relationship with her deceased sister, K, have all contributed to her personal and parenting dysfunctionality. Ms Tank does not present as being able to be a fully child-focused parent who is able to provide emotional and psychological boundaries for her children. She, instead, tends to be overly inclusive in sharing with her children adult concerns and issues and to not provide the psychological boundaries that differentiate between them as dependent children and herself as a responsible adult. This is not to say that Ms Tank does not love her children genuinely or is less than committed to them. It is also not offered in a manner that judges the morality of Ms Tank’s working life. It is offered in recognition of the corrosive effects of prostitution and personal costs to self-image, self-esteem and emotional and relationship health involved, and in recognition that others, including PB, TH, have been the more available mothering figure for the past 2 years. (emphasis added)
Of course, Bell J also had before him the more recent reports of Mr R, but quite apart from the substantial rejection of Mr R’s evidence by Bell J, Mr R’s recommendations that B live with the mother were conditional upon the Court being satisfied as to a number of factors.
In his first report, Mr R’s recommendation was:
57. It is recommended that it would be in B’s best interests to reside with the mother, conditional on corroborative evidence of the mother’s employment and hours of work and that she is able to provide adequate accommodation and appropriate supervision.…There is no apparent need identified in this report for contact with the mother to be supervised. However, if there is a lack of corroborative evidence to support the recommendation that B should reside with the mother, contact visits with the mother should be supervised at a contact centre as proposed by the fathers.
In his second report, Mr R said:
68. Nonetheless, in assessing what might be in the best interests of the children and determining appropriate residency and contact arrangements, B’s expressed wishes need, in my opinion, to be seriously taken into consideration as she presents as a very sensitive and intelligent young girl who is at an age where she is able to make a reasonably informed decision.…Additionally, her comments do not appear to be based on an excessive desire to please her mother or to be the result of some form of manipulation by the mother.…There may be an element of wishful fantasy in her thoughts and perceptions of her mother and of what life with her mother might be like, but she does present as having a very close bond with her and overall it is assessed that she does have a genuine desire to reside with her mother. Taking this factor into consideration along with the mother’s positive changes in her life, it is assessed that it would be in B’s best interests if steps were taken to gradually increase the amount of time that B has with her mother with the eventual aim of residing with the mother.
…
75. It is recommended that it would be in B’s best interests to gradually increase her contact with her mother with the aim of eventually residing with the mother. However, this is conditional on the mother providing adequate evidence in relation to reported changes in her occupation as well as an examination of the alleged evidence that Mr Hungerford and Mr Yates have in relation to the quality of supervision that she has been providing in unsupervised contact in the past. (emphasis added)
In his oral evidence, Mr R said:
“If there was any doubt about the mother’s ability to meet emotional needs, I would amend my recommendation that B live with her.”
Just what weight the trial Judge placed on Mr R’s evidence is difficult to ascertain with certainty. References to his evidence in Bell J’s reasons include:
24.…Notwithstanding that Mr R, the Reg 8 psychologist, was a disappointment in lots of ways. One of the things he pointed out is that that in itself is clear evidence that B realised that the mother is not allowed to intrude in the father's household; that, in effect, she must - not necessarily reject - but she must not contaminate the father's house by bringing in items which B considers to be personal matters from the mother.
…
51.Even Mr R, whom I have said was disappointing because of his methodology [The comment that followed related to Mr R’s evidence touching on the mother’s contact with L]
…
57.I have listened to Mr R's evidence and notwithstanding the fact that it does confirm to me, I do say that I was somewhat disappointed in his methodology in particular and that it would be advisable if he considered a little bit more about how he should present his evidence.
With regard to the last paragraph, just what Mr R’s evidence “confirm[ed]” to Bell J is not certain, but having regard to the content of the preceding paragraph, it is probably a reference to Bell J’s conclusion to place B with the mother.
In his address, Mr Hodges said:
“… Now, your Honour, I submit it is important and of critical
importance to look at the mother’s ability to look after the or attend to
the emotional needs of the children.”
Bell J responded, “Yes, I agree.”
The end result of looking behind Bell J’s reasons to the evidence is that there clearly was, both on the evidence and by legislative direction, a need to address the question of the mother’s parenting capacity. That Bell J did not do so constitutes error.
The issues of “relocation”, the child’s wishes and the application of Part VII
The authorities that speak of the adequacy of reasons recognise that the extent to which particular matters should be addressed depends upon the conduct and circumstances of the particular case.
If in a “parenting issues” case the evidence, or one particular factor, points overwhelmingly to a particular result, a brief (but cogent) discussion of the other factors that in the context of the case, assume lesser significance, may well be sufficient.
This was not such a case.
Bell J said of the father, indirectly with regard to B’s much improved school performance, and of the relationships between each parent and between each parent and B:
22.…Of course, all compliments must go to the father as a result of that. He is a person who is responsible and obviously must have been responsible for ensuring that she keeps up her education because there has been little or no contact between B and her mother, and I would have thought little or no contact would not – this little or no contact would not have enabled the mother, unless there was something I do not know about, to manipulate the child to believe that she should go with the mother.
23.But the father has done a remarkably good job and I compliment him for that. …A couple of things do concern me about the father’s attitude. I am quite satisfied on the material before me that both he and Mr Yates are antagonistic towards the mother.
…
25.…Mr Hungerford has given evidence that he knew nothing of this. That he did not know that, in fact, the child had any desires to go and live with the mother at all and yet, of course, one would have thought that in 2002, he was present in Court when the child said she wanted to, not personally, but by way of evidence.
26.I would have thought that his affidavit, which I put to him, in which he indicates that he knew that the child wanted to live with the mother, I think, on one occasion, would have been sufficient for him to recognise that he had made a mistake or was confused. The fact that he found it necessary to sleep in the front door of the house on two occasions to prevent, as he said, B from running away, would, as far as I am concerned, raise some concern as to his statement that, in fact, the child was totally happy with him and had no desire to be associated with the mother.
…
31.…B does appear to have a relationship, and a strong relationship with her mother. Equally she has a relationship with her father.
…
34.The mother has an aggressive attitude towards the father, Mr Hungerford, and, in particular, Mr Yates and Mr Yate’s wife.…
35.And it is further alleged – I think she is aggressive towards them, but I think that they are probably aggressive towards her.…
36.…I am concerned, that Mr Hungerford would, in fact, either overtly or covertly bring an inordinate amount of pressure upon B, or has, perhaps, tried, to dissuade B from having any further or ongoing contact with her mother – not to spend time with the mother. It does concern me to a great extent.
37.…I have to look at the nature of the relationship of the child with each of the child’s parents and other persons. The child, notwithstanding the enormous amount of pressure which has been brought to bear upon her by the actions of both parents, I believe has a good relationship with both of the parents, and I compliment her on being, perhaps, a little bit more adult than her parents. But also the matter which I have to consider here is her relationship with L and also her relationship with T.
…
40.The willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship: I must confess that I do not believe that the fathers, in particular as far as B is concerned, can - not say would, but can - be willing to facilitate and encourage.
…
42.I do not believe that everything that has been done to facilitate the welfare. I note, of course, it is the submission of the mother, has not availed herself of the periods of contact to which she would be entitled. I think on some occasions she has gravely fallen by the wayside there.…
Having regard to these findings, the orders and reasons of Collier J and the issues as already outlined, the case was one in which we would have expected a fulsome discussion of all relevant factors, rather than an abbreviated discussion of some factors.
As was said, in the following cases, with regard to the Act as it stood in 1994 and then in 1997, but with undiminished relevance to the Act as it now stands:
…The Court is required, as provided in s 64(1)(bb), to consider any wishes expressed by the child as therein set out, to have regard to the provisions of s 64(1)(ba) and to take into account the matters referred to in s 64(1)(bb). In our view, in discharging that obligation, the preferable approach to be adopted is to consider each of the matters referred to in the section separately and having regard to the evidence touching upon each of those matters make findings in relation to them. In the course of this exercise, the trial Judge should consider, weigh and assess the evidence touching on each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out (Smith and Smith (1994) FLC 92-488 at 81,078).
9.58 As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child’s best interests (B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84, 220).
In the light of these authorities and the issues and evidence in the case, we turn to Bell J’s consideration of the factors identified in the heading to this discussion.
As to Bell J’s treatment of B’s long-held wish to live with her mother, we have already referred to his Honour’s rejection of the prospect of manipulation by the mother of B, because since Collier J’s orders they had had limited physical contact. Moreover, Bell J stated that the content of transcribed telephone conversations between the mother and B did “not…suggest any form of manipulation and/or brainwashing of B”.
However, as we also stated, his Honour did not otherwise discuss the detail of the transcriptions, which to our mind merited some attention in his Honour’s reasons to explain why he rejected what to us is evidence that at least arguably supports the assertions of manipulative behaviour by the mother.
Moreover, in the light of Collier J’s findings and Mr S’s evidence, we think the question of whether, if those findings on that evidence were correct, B’s wish might still be influenced by the mother’s behaviour then, deserved attention.
Further, there is some uncertainty between Bell J’s finding that the mother had not manipulated B and the finding expressed as “[t]he child, notwithstanding the enormous amount of pressure which has been brought to bear upon her by the actions of both parents.”
Finally, there was no discussion by Bell J of the consequences, if any, had a decision been made against B’s wishes.
As to the impact of the change in location of B’s residence from the GC in Queensland to C, Mr R (to what effect on Bell J we don’t know for the reasons already explained) had said:
(51) There is no doubt that there is a strong bond between the siblings even if it has been further passively or actively reinforced during the present time and circumstances by the adult conflict.
Bell J said:
38.As evidence has been given by Mr Yates and Mr Hungerford that the children see each other very frequently, I think almost every week, and they have a close, warm and loving relationship. If, in fact, I accede to the request by the mother that the child go to live with her in C, it could be, of course, that the relationship between L and B will be gravely affected. That is a matter that I take into consideration. (emphasis added)
39.I consider that the father and B, as I said, have a loving relationship. And it may be that if, in fact, she moves to C that relationship in itself will be diminished. It will not be destroyed. It could never be destroyed, because as I have already said, St Ignatius Loyola was of the belief “You give me the boy and I give you the man”. Seven years, and that love and respect which has been engendered by the hard work of Mr Hungerford will, of course, remain with the child forever. I would have thought nothing could, unless something very nasty happens, will interfere with that love and respect that she has for her father. (emphasis added)
…
43.I recognise that there is a difficulty and expense if B goes to live in C because of the tyranny of distance. I also recognise that if L stays in Queensland, as is sought by Mr Yates, that there will expense involved, once again, for the mother having contact with the child.
In these paragraphs, his Honour has really done no more than identify factors. Nowhere in his reasons does his Honour evaluate those factors, either individually or more importantly, comparatively.
Finally, as to Bell J’s identification and application of the provisions of Part VII of the Act, in early paragraphs of his reasons, Bell J recognised that “the welfare of the children are paramount” and that, apart from B’s views, “[t]here are many other things which I have to take into consideration and which the Court must take into consideration as the Act says”.
His Honour also on occasions referred to a matter, such as the preference for the orders that would least likely lead to further proceedings, as one which s 60CC prescribed.
Further, Bell J said:
30.…And I incorporate, in these, my reasons section 60CC and indicate that I have considered all of them but will, in fact, refer to those matters which I think are completely apposite in this case and are very pertinent insofar as the benefit of the child having a meaningful relationship with both parents, this being a primary consideration.
We think such statements are of little or no utility in conveying the reasons for a result. Either all relevant matters are discussed in an appropriate way or they are not.
Otherwise, though Bell J took the trouble to refer on several occasions to the frequency with which the Act had been amended, these allusions were not in the nature of analysis and application of relevant provisions.
Bell J made no reference to, nor discussed application of, ss 60B “Objects of Part and Principles Underlying It”; s 61DA “Presumption of Equal Shared Parental Responsibility when making Parenting Orders”; s 65D “Court’s Power to make Parenting Order”; or s 65DAA “Court to consider child spending equal time or substantial and significance time with each parent in certain circumstances”.
We note that in the father’s Amended Response he proposed that he have sole responsibility for the long-term care, welfare and development of the child. There is no mention of the issue in the mother’s Further Amended Response. We were not taken to any part of the transcript on the point.
We note that nonetheless, Bell J made an order “[t]hat the parties have equal shared parental responsibility for the child’s long-term welfare, care and development”. He did not mention such an order in his reasons, but he did instruct counsel to look at his proposed orders. However, there is no indication in the orders themselves that the order was made by consent.
In Goode and Goode (2006) FLC 93-286 the Full Court said:
65.In summary, the amendments to Part VII have the following effect:
…
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent, has engaged in abuse of the child or family violence (ss 61DA(1) and 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (ss 61DA(1) and 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
7.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
8.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so, after affording procedural fairness to the parties.
9.The child’s best interests remain the overriding consideration.
Bell J did not follow the steps laid out by the Full Court. In so far as those steps are required by the Act, not doing so was an error of law.
Retrial or re-exercise
As earlier indicated, Dr Sayers and Mr Hodges urged that if the appeal succeeded, this court ought to re-exercise the discretion and make the orders sought by the father. Dr Sayers argued that, unless there was a re-exercise, the father would be disadvantaged in relation to his claims, by the effluxion of time between the hearing of the appeal, the decision of this Court, a retrial and the decision in respect of that retrial.
Dr Sayers sought that on a re-exercise of discretion we receive the further evidence the subject of the father’s application in that regard. He also referred to some material which had been included in the Appeal Book and which related to a recovery order sought after Bell J’s orders were made. Dr Sayers suggested that inclusion of that material in the book might be seen as consent to its admission as further evidence in the appeal. We disagree.
The further affidavit of the father contains material that would certainly be relevant to a re-exercise of discretion but, on its face, it is likely to be contentious. As the mother has not responded, it would be necessary that she have that opportunity. The likely result is that this Court would be placed in the position of a trial court. When regard is had to that circumstance, and the changes with regard to B and arrangements for her which have occurred since the orders appealed, the need for a retrial is obvious.
Costs certificates
The parties requested costs certificates under the Federal Proceedings (Costs) Act1981 (Cth) for the appeal and any retrial. We consider that the grant of certificates is appropriate.
Orders
In view of our conclusions on the appeal as expressed at the outset, and as to a retrial, we propose the following orders.
That the appeal be allowed.
That the applications of the father Mr Hungerford and the mother Ms Tank with regard to the child B be remitted for rehearing as soon as practicable by a Judge other than Bell J.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of section 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 the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of section 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 the respondent mother in relation to the appeal.
That the Court grants to each the appellant father and the respondent mother costs certificates pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to each of the appellant father and the respondent mother in respect of the costs incurred by each in relation to the new trial.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 29 June 2007
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