JEB & SJL

[2006] FamCA 540

[2006] FamCA 540

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA  Appeal No SA6 of 2006
AT ADELAIDE  File No ADF2493 of 2001

BETWEEN:

JEB
Appellant Wife
- and -

SJL
Respondent Husband

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & WARNICK JJ
DATE OF HEARING:                 26 May 2006
DATE OF JUDGMENT:             26 May 2006

APPEARANCES:  Mr Berman of Counsel, instructed by Robinson & Mason, Level 3, 74 Pirie Street, Adelaide, SA 5000, appeared on behalf of the Appellant Wife.

Ms Dickson of Counsel, instructed by Jarrett Legal Pty Ltd, PO Box 155, Unley SA 5061, appeared on behalf of the Respondent Husband.

JEB & SJL

SA6 OF 2006

CORAM:  KAY, HOLDEN & WARNICK JJ

DATE OF HEARING:  26 May 2006

DATE OF JUDGMENT:                26 May 2006

Catchwords:           CHILDREN – Residence – Week about shared residence ordered by trial Judge  – 6 year old child thriving in current situation residing with mother and enjoying alternate weekend contact – Trial Judge identified positive factors for a shared parenting arrangement but failed to identify any reason for altering a successful status quo – Inadequate reasons – Appeal allowed and matter remitted for retrial.

KAY J:  

1. This is the mother's appeal against orders made by Morgan J on 20 January 2006, wherein her Honour ordered that the child of the parties, D born June 1999, should reside with each of the parties on a weekabout basis. 

1. There were competing proceedings before her Honour concerning the amount of time the child should spend with each parent.  The mother's proposition was that the arrangement that had been in existence for some time should continue, namely for what I will express as alternate weekends and half the school holidays the child should remain in her father's care, otherwise she should live primarily with the mother.  The father was urging the trial judge to make the orders that she ultimately made.

Background

1. The background to the matter is fairly succinctly expressed by her Honour in her reasons for judgment.  The parties were married in December 1998, D was born in June 1999 and there was a separation in June 2000.

1. The parties have each repartnered.  The father was married to his present wife, with whom he had been living since September 2000, and they had a new child, a young baby boy, in October 2004. 

1. The mother had married in December 2002.  There were two children of her husband, who were living with them five days a fortnight.

1. The mother had remained at all times living together with D in South Australia.  The father's employment had taken him to New South Wales from 2001 until July 2003.  The parties then thereafter lived in close proximity to each other.  The parties had an arrangement that was reached once the father was back in South Australia of contact Friday night until Monday every alternate weekend and then there were arrangements made for school holiday contact.  There was a great degree of cooperation and flexibility in the arrangements that were made.

The judgment

1. The trial Judge's judgment indicates that she accepted the evidence that the child was absolutely delightful, bright, alert and mature, doing well at school, and that she had very strong attachments with all of the parties concerned in her care and upbringing.

1. There had been a welfare report prepared by a Dr B, a psychologist.  At the conclusion of the welfare report, the psychologist recommended that there should be an equal shared parenting arrangement put in place, but an examination of the report and the reasons given in oral evidence do not really help illuminate a reader as to why it was that the psychologist had reached that conclusion.  That is not to say that it was not a valid conclusion to be reached but a reading the report itself and the transcript oral evidence does not really throw much light on why that was to be the preferred conclusion rather than a continuation of the existing arrangement or some other arrangement which might meet the needs of all of the parties concerned, especially the needs of D.

1. In her reasons for judgment, the trial Judge began by identifying the issues to be determined, which she said were the child's attachment to her parents and others in her extended family and her half‑brother, the child's expressed desire to spend more time with her father, the effect of a change in the child's circumstance and the father's ability to be present at contact.  What is not identified at that point - and perhaps ought to have been - is the desirability of any change in the present circumstances and the manner in which such a change would be preferable to a continuation of the existing situation.

1. Her Honour then went on to indicate that, because of the age of the child, she could not give any significant weight to her wishes. Those wishes were expressed as, "I'd like to spend more time with Dad."  There was no explanation that was attempted to be made by anybody, especially Dr B, as to exactly what they meant.

1. Her Honour identified that the child had an excellent relationship with all concerned people, including her maternal grandparents, and indicated that it was significant that she had a little brother, but that little child was some 15 months old at the time of the hearing.  There was no particular evidence that was stressed by her Honour that the child's role in D's life was so significantly important that it was necessary to increase the time that she would be spending with her little brother.

1. Her Honour then went through the various factors under s 68F(2) of the Family Law Act 1975 (Cth), identifying that the child was progressing absolutely satisfactorily in her present circumstances, and this was a credit to both of her parents, indicating that the mother had demonstrated a very responsible attitude to parenthood in the way she had facilitated contact and adding that both parents were to be congratulated for the civil, courteous and respectful way they had communicated about the child.

1. She looked at the issue of the likely effect of any change in the child's circumstances and concluded that, whilst the child was developing impressively, "there was no reason why this could not be built upon by increasing her time with her father."

1. She then looked at other facts and circumstances, and was critical of Dr B's report in that, for the reasons I have already indicated, it did not throw any significant light on the conclusions reached.

1. Next her Honour moved to look a set of factors that were identified by Ryan FM in the decision of H v H (2003) FLC 93-168 as factors that one would expect to be present for a successful shared parenting arrangement to be put into place. She identified each of those factors and indicated that they were present in the present case.

1. Her Honour discussed problems that arose in relation to the father's working arrangements and discounted those but said that she would make provision to overcome those in the form of her orders, namely if the father was to be away for any lengthy period then the mother was to be notified and presumably given an opportunity to care for the child.

1. Having identified and then indicated that there were present positive factors for a shared parenting arrangement, her Honour simply made that order. 

The appeal

1. The gravamen of the appeal before us is that there is a lack of reasons as to why one course was chosen rather than another.  The obligation to give reasons is well established

1. As the Full Court observed in Merrimanv Merriman (1993) FLC 92-422 following the decisions of the Full Court of this Court in Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191, Horsley (1991) 14 Fam LR 550; (1991) FLC 92-205 and Bonnici (1991) 15 Fam LR 138; (1992) FLC 92-272 the principles governing the need for the giving of adequate reasons for the exercise of the discretion to alter interests in property under s 79 of the Family Law Act 1975 (Cth) are well established.  For present purposes they are perhaps best expressed in the following passage from the judgment in Horsley (at Fam LR 554; FLC 78,401):

“...Counsel for the wife contended that the trial Judge did not give adequate or any reasons for his decision and that his failure to do so amounted to an error of law and additionally contended that his Honour’s discretion had miscarried. In the Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191 the Full Court considered a similar argument (also advanced in that case by the same counsel) and after referring to a number of authorities, including Pettitt v Dunkley (1971) 1 NSWLR 376, Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Public Service Board of NSW v Osmond (1986) 159 CLR 656; 63 ALR 559, Palmer v Clarke (1989) 19 NSWLR 158, referred to the judgment of the Full Court of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 and in particular to the passage in the principal judgment of Gray J where his Honour said:

‘‘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.’

1. In Bennett’s case the Full Court went on to say:

‘‘…It is unnecessary to decide, in this case, whether the inadequacy of her Honour’s reasons was itself an error of law requiring her decision to be set aside, in that we have already determined that the appeal should succeed on the merits. The weight of judicial authority, however, suggests that it might well amount to such an error. At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.

In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the judge’s discretion. In general, the appellate court should be able to discern either expressly or by implication the path by which the result has been reached.”

1. The court concluded on this topic:

‘‘The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.”

1. The trial judge has an obligation to not only reach a decision that is in accordance with the best interests of the child but to explain to the parties why it is that the decision has been reached.  I must say that, having read and reread the decision and having heard the submissions of counsel relating to it, I struggle to find that one can discern from the reasons pronounced by the trial judge why it is she chose the path she did rather than another path that was open to her.

1. That is not to say that the path that she chose was not the right one, nor is it to say that it was the right one, but merely a reading of the judgment does not enlighten me as to how it is that her Honour determined that it was in the best interests of D that she move from a stable, successful arrangement to an arrangement which may ultimately be as successful or even more successful, although it is difficult to see how the present arrangement can be improved upon.

1. That ultimately was the obligation of the trial Judge, namely to explain why it was that she was doing what she did.  As I have indicated, I cannot see that she has done so in the circumstances.  With some regret as to the inconvenience both to the parties and to the child, I find it necessary to allow the appeal.  The order that I would propose is that the appeal be allowed, that the orders made by the trial Judge be set aside, that the matter be remitted for rehearing before a judge in the Adelaide Registry and that appropriate cost certificates be granted to each of the parties, both as to the appeal and as to the retrial.

HOLDEN J:  

1. I too would allow the appeal, for the reasons given by the presiding judge, and I agree with the orders that he proposes to make.

WARNICK J:  

1. I also agree that the appeal should be allowed and certainly do not disagree with any of the reasons given by his Honour the presiding judge.  I would add that, even if one searches the reasons of the trial judge to identify the matters which might have supported the orders she made - and can do so - the reasons remain beset with difficulties.

1. In paragraph 14 of her reasons, her Honour discussed the child's wishes.  The last clause is perhaps supportive of the order that she made, namely a wish in the child "to spend more time in her father's household must be soundly based", and that followed reference to the attachments that she had with the father, paternal grandmother and little brother, identified earlier as M, the child of the father and his new wife.

1. However, although it might be deduced that weight was placed upon the wish of the child, it is not possible to discern any consideration of the conclusion that the wish was soundly based, as against Dr B's agreement that a child of just six could not be given any significant weight and his agreement, or the trial judge's observation, that D could not comprehend the parameters of "more time with Dad".  In other words, there is no sign that any weight placed upon the wish "to spend more time with Dad" took account of that factor that his Honour the presiding judge here referred to during submissions, namely that "more time with Dad" necessarily means "less time with Mum"

1. In other words, in a finely balanced case like this, a mere reference to a factor is often - and is in this case - insufficient.  More is required.  Some discussion of the comparative weight and the position of that factor in relation to other factors is necessary before sufficient reasons will have been given.

1. Of a rather similar nature is the reference in paragraph 16, discussing the nature of the child's relationship with others, that D's relationship with her little brother M was "of particular significance".  In paragraph 46, in one sentence this is referred to as, again, significant.  Again, while that is a qualitative assessment of the relationship, it is not part of a comparison with the quality of relationships and the diminution in time, with others with whom the child had relationships.

1. Then in paragraphs 22 and 23 her Honour recorded opinions of Dr B that, although the child was developing impressively, "there was no reason why that could not be built upon by increasing her time with her father", and in 23:

“That it could have a serious impact on the child's relationship with her mother if her desire, though unformulated, to spend more time with her father was not acceded to.”

1. These passages, and the trial Judge's treatment of them, highlight a need for a trial judge not merely to recount evidence, as her Honour in the instant case has done, but to identify clearly whether it is accepted or rejected and, if accepted, what use is made of it.

1. While a favourable approach might be to conclude that, because of the result she came to, her Honour accepted Dr B's evidence, in this particular case that raised other issues, because in other parts of her reasons the trial judge recognised justified criticism of Dr B's report, at least.  If it be that the trial judge adopted Dr B's recommendations, then the question of his reasoning in coming to his recommendation became pertinent.  That reasoning has not been identified, let alone adopted, as I have said.

1. Even if one adopts what might be described as a generous approach to the identification of reasons that might have supported the conclusion reached by the trial Judge, there are deficiencies in each instance in the way in which those matters were dealt with.

KAY J:  

1. The formal orders of the court will be:

1.        That the orders made by the Honourable Justice Morgan on 20 January 2006 be set aside.

2.        That the amended application of the husband filed 26 May 2005 and the response thereto be remitted for rehearing before a judge sitting in the Adelaide Registry.

3.        There will be the usual orders for certificates for the appeal and the retrial.

I certify that the 35 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate