Jacks & Samson

Case [2008] FamCAFC 173

FAMILY COURT OF AUSTRALIA

JACKS & SAMSON [2008] FamCAFC 173

FAMILY LAW – APPEAL – Appeal against orders made with respect to children in parenting proceedings between the parents and the grandparents of the children – Not established that the trial Judge’s discretion miscarried by way of being manifestly unjust or plainly wrong – Not established that the trial Judge failed to provide adequate reasons – Not established that the trial Judge’s discretion miscarried by failing to take into account relevant facts – Not established that the trial Judge erred in findings of fact – Not established that the trial Judge erred in principle in relation to the absence of cross-examination of a witness – Not established that the trial Judge’s discretion miscarried by error of principle in making orders permitting the children’s uncle to be present and spend time with the children during the periods they spend time with the grandparents, where the uncle was not a party to the proceedings and no such orders were expressly sought – Not established that the trial Judge’s erred in principle nor discretion in failing to have regard to s 43(b).

No error in principle in ordering the mother to attend psychotherapy – The 2005 amendments to s 64B(2) did not change the law to enable a court to make orders directed to parents or other persons to engage in a course of conduct which may benefit a child not directly connected to, or conditional upon, a parenting order for the child to live with, or spend time with, that parent or person – Whilst the trial Judge was entitled to rely on the mother’s expressed willingness to undertake voluntary therapy in reaching his overall conclusions for the parenting orders made, absent her consent to an order for such therapy, the order made is not supported in the circumstances of this case, under s 61C or s 64B(2)(i) – The circumstances of this case are distinguishable from those pertaining in L v T (1999) FLC 92-875; 25 Fam LR 590 such that there is no appealable error in making the order under s 67ZC.

Family Law Act 1975 (Cth) Part VII

CDJ v VAJ (1998) 197 CLR 172
Goode v Goode (2006) FLC 93-286
House v The King (1936) 55 CLR 499
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Brown v Dunn (1893) 6 R 67 (HL)
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
L v T (1999) FLC 92-875; 25 Fam LR 590
APPELLANTS: MR JACKS AND MRS JACKS
RESPONDENTS: MRS SAMSON AND MR SAMSON
FILE NUMBER: SYF 3762 of 2006
APPEAL NUMBER: EA 48 of 2008
DATE DELIVERED: 19 November 2008
PLACE DELIVERED: Sydney
JUDGMENT OF: COLEMAN, BOLAND & STEVENSON JJ
HEARING DATE: 12 September 2008
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 19 March 2008
LOWER COURT MNC: [2008] FamCA 176
COUNSEL FOR THE APPELLANTS: Mr Simpson SC
SOLICITOR FOR THE APPELLANTS: D.G. Balog & Associates
COUNSEL FOR THE RESPONDENTS:

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AGLC
Jacks & Samson [2008] FamCAFC 173
Case
[2008] FamCAFC 173
Decision Date

CaseChat Overview and Summary

This appeal concerns parenting orders made in relation to two children, where the parents, Jacks and Samson, sought to appeal orders made in favour of the grandparents. The appeal was heard in the Family Court of Australia. The parents argued that the trial judge's discretion miscarried, resulting in manifestly unjust and plainly wrong orders. Specifically, they contended that the orders permitting the children's uncle, who was not a party to the proceedings, to be present and spend time with the children during the periods they spend time with the grandparents, were erroneous. Additionally, they argued that the trial judge failed to have regard to section 43(b) of the Family Law Act, which mandates the protection and assistance of the family unit.

The court examined the arguments and found that there was no miscarried discretion by the trial judge. The court concluded that the orders were not manifestly unjust or plainly wrong, and the trial judge had not failed to provide adequate reasons or take into account relevant facts. The court also determined that the trial judge did not err in principle regarding the absence of cross-examination of a witness, nor in making orders permitting the uncle to be present and spend time with the children. The court further held that the trial judge did not err in ordering the mother to attend psychotherapy, as the 2005 amendments to section 64B(2) did not enable a court to make such orders without the parent's consent.

The appeal was dismissed, and there was no order for costs.

Orders

Orders of the court

1.

That the appeal be dismissed.

2.

That there be no order for costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ground 5, as amended pursuant to leave granted during the proceedings, provided: That his Honour’s discretionary judgment miscarried in circumstances where, as against the established facts, the exercise of discretion embodied by his Honour’s orders were [sic] manifestly unjust and plainly wrong particularly in circumstances where:5.1the children were well adjusted and developing well;5.2the family comprising the appellants and the children is intact and happy;5.3the evidence (both expert and lay) of the likely profound effect upon the happiness and security of the family unit if the respondents were successful; and,5.4the evidence as to the consequences of success by the respondents upon the female appellant and consequently upon her capacity as a parent.and otherwise mistook the evidence of the benefit to the grandchildren of the contact sought being only a potential benefit. In his written submissions in support of these challenges, Senior Counsel asserted that “the outcome of his Honour’s exercise of discretion is manifestly unjust and plainly wrong”. [Appellants’ Summary of Argument par 28, page 13]. In oral submissions, Senior Counsel for the parents submitted that, if no other ground of appeal relied upon by the parents succeeded, this ground would, on the basis that, on the facts as found by him, the trial Judge’s decision was “so unreasonable as to mean that the exercise of his discretion must have miscarried”. Unlike other grounds relied upon by the parents, this challenge does not assert that the exercise of discretion was vitiated by material error of fact, or that the trial Judge erred in law. Nor does the challenge require that the trial Judge’s discretion miscarried by reason of any identifiable fact, or circumstance, or in any identifiable way. We do not believe it to be a gross or unfair oversimplification of this challenge to suggest that the complaint is essentially that the evidence, and particularly the expert evidence on the effects on the mother of any order that the children spend time with the grandparents, and its likely impact on her care of the children, and thus the children, so outweighed any potential benefits to the children arising from such orders as to preclude the making of such orders in the reasonable exercise of discretion. We would understand the thrust of this challenge to be encompassed by the concluding sentence of the judgment of the High Court in House v The King (1936) 55 CLR 499 in which their Honours (Dixon, Evatt and McTiernan JJ) said (at 504-505): 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.

Decision

Reasons for decision

Ground 6 provided: 6. His Honour’s discretionary decision miscarried in that his Honour:6.1erred in principle in failing to have regard to the mandate of s.43(b) Family Law Act; or in the event that he did so;6.2failed to express adequate reasons as to what regard he had to s.43(b) Family Law Act and what role that had in reaching his conclusions. In support of this ground it was submitted that:His Honour’s decision was obliged to be determined giving the “widest possible protection and assistance” to that family unit. [Appellant’s Summary of Argument, para 37, pages 16-17]. Having asserted that the “integrity of this family unit and the welfare of the dependent children is at risk as a consequence of the orders made”, Senior Counsel for the parents submitted that:On the facts of this case no reasonable exercise of discretion could have led to the orders made by his Honour in the shadow of section 43(b). In the alternative in the event that that contention be rejected, then with all the facts of the case his Honour’s decision was at least prima facie at odds with the statute. It is submitted that he had a heightened obligation in terms of the reasons required, to explain the reasoning for the decision in the context of that section. [Appellant’s Summary of Argument, pars 38 & 39, page 17]. It was further submitted on behalf of the parents that:It is to be conceded that no submission was put at trial mandatory to the provisions of s.43(b), however, as a mandatory principle to be applied in the application of jurisdiction it ought not have been required and the appellants ought not be prevented from raising the point as against his Honour on appeal. [Appellant’s Summary of Argument, para 40, page 17]. In response to this challenge, it was submitted on behalf of the grandparents that “it is not incumbent upon the Trial Judge to express adequate reasons as to what regard he has had to Section 43(b) of the Act.” [Outline of Written Submission on behalf of the Respondent Grandparents page 17, Ground 6]. In reference to s 43 (a) and (c), Counsel for the grandparents submitted that:[C]hildren have a right to have a relationship with other significant persons in their lives and in particular their grandparents. It is submitted that the orders of the Trial judge protect that right, as well as protect their welfare. [Outline of Written Submission on behalf of the Respondent Grandparents page 17, Ground 6]. In support of this, Counsel for the grandparents submitted that:[T]he definition of “family” has been expanded by the amendments to the Act and that the term “family” is not restricted for example to a married couple and their natural children. It is submitted that Section 43(b) can be read in a wider sense to include family relationships. In any event, as members of the family unit, the children have a need to [sic] the widest possible “protection and assistance.” [Outline of Written Submission on behalf of the Respondent Grandparents page 17, Ground 6].

Ratio Decidendi

Legal Principle Established

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