Kellerman & Kellerman
[2024] FedCFamC1A 126
•29 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kellerman & Kellerman [2024] FedCFamC1A 126
Appeal from: Kellerman and Kellerman [2024] FCWA 33 Appeal number: NAA 65 of 2024 File number: PTW 10105 of 2021 Judgment of: MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ Date of judgment: 29 July 2024 Catchwords: FAMILY LAW – APPEAL – Appeal from final parenting orders – Where the final orders continued the existing arrangement – Where both the parties and the Independent Children’s Lawyer submitted the existing arrangements were untenable – Where the parties have agreed on the disposition of the appeal – Adequacy of reasons – Whether the decision was unreasonable or plainly wrong – Full Court satisfied of appealable error – Appeal allowed – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) s 60CC (repealed)
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181
Bhatnagar & Riju [2018] FamCAFC 144
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Grunseth & Wighton (2022) FLC 94-099; [2022] FedCFamC1A 132
House v The King (1936) 55 CLR 499; [1936] HCA 40
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Number of paragraphs: 58 Date of hearing: 29 July 2024 Place: Perth Counsel for the Appellant: Mr Hooper SC Solicitor for the Appellant: Carr & Co Counsel for the Respondent: Mr Hedges SC (written submissions only, did not appear at hearing) Solicitor for the Respondent: Loukas Law Counsel for the Independent Children’s Lawyer: Ms Parkinson Solicitor for the Independent Children’s Lawyer: Bannerman Solicitors ORDERS
NAA 65 of 2024
PTW 10105 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KELLERMAN
Appellant
AND: MS KELLERMAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE & BRASCH JJ
DATE OF ORDER:
29 JULY 2024
THE COURT ORDERS THAT:
1.Appeal NAA 65 of 2024 is allowed.
2.Orders 2, 3, 5, 6, 7, 8, 34, 35, 47 and 68 of the Orders made on 23 February 2024 are set aside.
3.The matter is remitted to the Family Court of Western Australia for rehearing before a judge other than the primary judge.
4.The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.
5.The Court grants to the respondent mother a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal.
6.The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (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 Independent Children’s Lawyer in respect of costs incurred in relation to the appeal.
7.The Court grants the appellant, respondent, and Independent Children’s Lawyer costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (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 them in respect of the costs incurred in relation to the rehearing.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Kellerman & Kellerman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
This is an appeal from final parenting orders made by a judge of the Family Court of Western Australia on 23 February 2024 in proceedings between Mr Kellerman (“the father”) and Ms Kellerman (“the mother”). The primary judge ordered that the parties’ child, X, born in 2014, should live in an equal time arrangement (alternate weeks). The parties were to have equal shared parental responsibility for him. These orders reflected the parenting arrangements that had been in place prior to and during the hearing.
The orders came as somewhat of a surprise to the parties and the Independent Children’s Lawyer. Each of them had contended that the existing arrangement was untenable and not in the child’s best interests.
The father has appealed against the orders. The mother and the Independent Children’s Lawyer have each filed a Submitting Notice, but, unusually, have subsequently also filed Summaries of Argument setting out the reasons why Grounds 1(a), 2, 3, 4 and 6 of the Amended Notice of Appeal filed 31 May 2024 should succeed. These grounds contend that the orders made are unreasonable and plainly wrong, that the reasons, despite their length, are inadequate and that there was a lack of procedural fairness.
An appeal cannot be allowed merely because the parties agree to that course. The court hearing the appeal must be satisfied of appealable error (Bhatnagar & Riju [2018] FamCAFC 144).
THE REASONS
It is first necessary to say something about her Honour’s reasons which cover 182 pages, containing 753 paragraphs. The orders too, were fulsome – 75 orders occupying 16 pages.
It has to be said, regrettably, that the length and unnecessary detail of the reasons did not aid in understanding them. They are unfortunately repetitive. There are unnecessary findings. For example, there are credit findings made as to each of the witnesses between [209]–[292] although these findings are not later applied. There was no factual challenge to most of the evidence.
It is true that this section of the reasons also discusses part of the witnesses’ evidence, but it is not always necessary to recite evidence. The parties know what it was and an appeals court has ready access to it if necessary.
Respectfully, I do not see the point of findings that a witness was “quite frankly delightful” (at [233]) or that another, a school principal, was “pragmatic and a realist” (at [317]).
As the reasons show, the child faces a number of difficulties. He has significant behavioural issues and has been diagnosed with ADHD. The single expert opined that the child should be fully assessed for any number of issues, including to confirm or deny a diagnosis of Autism Spectrum Disorder (Transcript 10 November 2023, p.746 lines 26–35). Although the primary judge did not identify the profession of the single expert, the evidence shows her to be an “Adjunct Associate Professor in Psychology” and a “Forensic Psychologist”.
The child’s behavioural difficulties do not emerge clearly from the reasons, because her Honour preferred to follow a “strengths-based approach and not lose sight of the positive” (at [8]). The child has challenges with social skills and is quiet and withdrawn. He has been violent to others at school and is disruptive in class. Concerns have been raised about him experiencing depression, aggression, negative self-talk and, at times, suicidal ideations. He has been diagnosed with having a central auditory processing disorder. The single expert recommended that he be evaluated to assess whether he has Autism Spectrum Disorder.
The child receives assistance from a number of health professionals. Each of the parties is a medical practitioner but they fundamentally disagree as to the child’s issues, the cause of them and the best way forward for him. This is so even though both parents love him very much and genuinely wish the best for him.
The primary judge identified the differences in approach as follows:
19. …
•I consider [X] deeply impacted by his parents' separation, as identified by Dr [B];
•[X]'s parents operate in complete isolation of the other, which exposes him to over-medicalisation, different and conflicting approaches being adopted in respect to managing his behaviour and therapeutic needs, and obstructive behaviour on the part of his parents if they cannot agree on a proposed course of action, which has occurred;
•[X]'s father has an unusual manner about him; he is direct and blunt, holds strong views, is quite concrete in his thinking and lacks some capacity to perspective-take. I am not convinced he is well attuned to recognising the needs and feelings of others or reading non-verbal cues. The father also impressed me as someone quite comfortable in his own company, and as such, is unlikely to prioritise socialisation and relationships with others, unless he sees value in it; and
•conversely, the mother is highly intense and rigid. Like the father, she lacks some capacity to perspective-take. Whilst I consider she is better able than the father to recognise and respond to the needs and feelings of others, she has, at times, disregarded the same in pursuit of her beliefs about what is right or needs to happen. Whilst I consider her well-intentioned in this regard, she takes a head strong approach to issues, and once she sets her mind on something, she becomes unshakable in her pursuit of that goal, irrespective of the consequences. The mother has a history of heightened and dysregulated behaviour, which manifests itself in different ways, including verbal and physical aggression when she perceives her needs or wants are not being met or if she feels people are behaving obstructively.
(Footnotes omitted)
In addition, the father has a fixed and apparently unshakeable belief that the child has been sexually abused by his stepbrother (the mother’s son from a previous relationship) for some time. The stepbrother, who was 21 at the time of the hearing, gave evidence that there was no such abuse. Having considered the evidence from a number of sources, her Honour concluded that the stepbrother did not pose an unacceptable risk of harm to the child (at [576]).
The reasons are replete with the difficulties her Honour saw with each party as a parent and the unrelenting conflict between them. Even the appointment of the single expert was unduly protracted because they were unwilling to agree with each other.
It is sufficient to adopt the following written submissions from the father’s lawyers as an example of such findings:
10.In relation to the issue of parental responsibility, her Honour recognised, in several places in her Reasons, that these were not people who had demonstrated a capacity to work together. For instance, her Honour
(a)states that the child’s life has been “significantly marred by his parents’ inability to work together and prioritise his wellbeing over their disdain for one another, the result of which is a vulnerable and at-risk little boy…”
(b)describes these two parties as “each having strong views about their respective ‘approaches’ and fundamentally believing they are right.” and that she agrees with the Single Expert that “neither party is capable of, or willing, to backdown, and as such, chronic conflict permeates most aspects of [X]’s life;”
(c)finds “[X]’s parent’s [sic] operate in complete isolation of the other, which exposes him to over-medicalisation, different and conflicting approaches being adopted in respect to managing his behaviour and therapeutic needs, and obstructive behaviour on the part of his parents if they cannot agree on a proposed course of action, which has occurred”;
(d)that the child is exposed to “his parent’s [sic] personality functioning, which is in direct contrast other parent, coupled with entrenched parental conflict…” and that the results for the child have been “dire”;
(e)observes that the parties’ “differing personality styles and psychological functioning plays an important role in the conflict between them” and their “respective approaches to resolving conflict are fundamentally different which in turn fuels the conflict”;
(f)records that the mother was described in Police documents as “over-bearing, obnoxious and unwilling to listen to reason”;
(g)described the mother as, at times “persistent, single-minded, dictatorial and demanding”;
(h)found the parties delayed to the appointment of a single expert because of a “mutual scepticism of anyone supported by the other parent”; going on to say that this was an example of many of “where the parents’ conflict well surpassed [X]’s needs…”;
(i)that the parents’ inability to agree “further triangulates [X] in their conflict. What should have been an opportunity for [X] to develop his motor skills, learn to socialise with other children and have fun has become another platform for his parents to argue”;
(j)in discussing their inability to back down, that “both parents strongly believe they are right and know best” and that she was left to wonder where that leaves [X];
(k)describes both parents as being “dictatorial”;
(l)in summarising Dr [C]’s evidence, which she accepts, “It would be in [X]’s best interests if the parents could share the care of [X], where they made the most of their strengths, played down their weaknesses and were forward focussed; she had not seen anything that suggested they could do this, as they were so reactive to each other”;
(m)in discussing parental responsibility,
(i)“Both parties seek an order for sole parental responsibility, which is understandable given the current state of the parties relationship; the lack of communication between them and their inability to work collaboratively together…all of which have had an adverse impact on [X]”;
(ii)of [X], “he has been caught in the unrelenting conflict that he has told Dr [C] he wants to stop. In the absence of his parents being able to step outside if the well-worn patterns of behaviour that exist between them, in which I have limited confidence…”;
(n)in discussing [X]’s needs finds, “Each are only driven by their own beliefs about [X]’s best interests, which is amplified by a strong sense of being right and an extreme scepticism of the other parent’s motivations, which triggers an almost innate response to act in discord with the position of the other parent, irrespective of” any merit;
(o) in discussing the mother’s capacity,
(i)“I have absolutely no confidence the mother currently has the capacity to modify her behaviour… if she believes something is likely to be a positive for [X], she will pursue it with gusto, even if it is objectively to [X]’s detriment”;
(ii)“…I also have no confidence the mother will not surreptitiously facilitate further assessments and attendances upon specialists and allied health professionals – even if restrictions are placed on her in this regard”
(iii)her approach was “quite chaotic”, that she would “relentlessly pursue other forms of assessments and interventions for [X] furtively to advance her own agenda” and in the absence of the father who is described as “calm and measured” this may result in “skewed assessments and ill-considered recommendations”;
(iv)that the mother has acted “obstructively and failed to commit to much needed interventions for reasons which appear entirely self-focused”;
(p)agreed with the Single Expert that the most significant issue for the child was his “exposure to his parents’ conflict” saying the effect of this on children cannot be “understated”; and
(q)her Honour expresses the view that “I anticipate these parties will initiate further proceedings...”;
(Footnotes omitted)
Her Honour acknowledged the conflict as “one of the primary risk issues for [X]” (at [663]).
Nonetheless, the following conclusion was reached after discussion of the s 60CC(2) considerations:
686.In his closing submissions, counsel for the father submitted the Court had to ensure that [X] lived with and had a parent who made decisions to meet and advance [X]'s needs, not just his need for further assessment. I could not agree more. However, [X] has two parents who have much to offer him but who each pose risks to him. When one has regard to the nature of those risks, I am left to conclude that they [sic] only way in which they can be safely and appropriately mitigated, is by ensuring that each parent continues to have significant involvement in [X]'s life, both during the school term and during school holidays. In essence, they monitor and provide a "check and balance" for the other.
(Footnote omitted)
After consideration of the remaining matters raised by s 60CC, her Honour said:
723.Notwithstanding the high level of conflict and resultant communication difficulties between the parties, as well as all the matters already referred to, I propose to make an order for equal shared parental responsibility. This is on the basis that, for all the reasons already articulated, I also propose to make prescriptive orders about medical and allied health issues, extra-curricular activities and communication.
724.Overall, I am satisfied that it is necessary for [X] that both parents have input into major decisions to be made about him. He is a vulnerable young boy and both parties have information and perspectives that are relevant to his overall wellbeing. Whilst I consider the mother more capable in this respect than the father, I am far from satisfied that either parent can objectively manage issues relevant to [X]'s wellbeing given the strength of their respective narratives, beliefs about what they perceive to be in his best interests, which is distinct from what might objectively be best for [X], and their personality functioning. As already stated, they provide a much needed "check and balance" for each other.
…
726.For the reasons expressed when addressing the primary considerations, I consider [X] has a meaningful and positive relationship with both parents, who have much to offer him. I reject both parties' assertions that [X] is at risk of neglect in the other parties' [sic] care. Instead of focusing on each parent's respective strengths, which are a benefit to [X], they each are fixated on parenting weaknesses, which is to [X]'s detriment.
…
729.Whilst [X]'s educational needs are important, I concur with Mrs [D]; they are far from the priority at the moment. I otherwise refer to my conclusions about both parties' respective attitudes and approach to assessments and therapies. Whilst [X] benefits from the mother's ability to make things happen – as can be seen by the speed with which she organised an appointment with Dr [E] – her follow through with recommendations has been problematic.
730.Whilst I have concluded that each parent has much to offer [X], including during the school week, I have also concluded each pose a risk of emotional and psychological harm to him, and for the reasons given in support of my decision as to parental responsibility, similarly conclude that the best way in which to mitigate that risk is to ensure that [X] has significant time with each of them. Accordingly, I do not intend to vary the week-about arrangement that is currently in place.
There is an immediate tension between the finding in [726] rejecting the parties’ positions that the child was at risk of neglect in the other’s care and the finding at [730] that each parent poses a risk of psychological and emotional harm to him. Perhaps the first relates only to his physical well-being.
LEGAL PRINCIPLES
This is an appeal from a discretionary decision and the following statement of principle applies (House v The King (1936) 55 CLR 499 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…
(Emphasis added)
As can be seen from that passage, error is not demonstrated by persuading an appeals court it would have made a different decision had it heard the matter.
There is no doubt that in making parenting orders the Court is exercising a very broad discretion. In CDJ v VAJ (1998) 197 CLR 172 the majority said “The evidence in residency cases is often such that the same body of evidence may produce opposite but reasonable conclusions.” (at [140]). They added:
152.The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [[1985] FLR 894 at 897–898], Lord Fraser of Tullybelton pointed out:
“The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.”
The burden placed on an appellant seeking to establish that a discretionary decision is unreasonable or plainly wrong is thus a heavy one.
ARE THERE ADEQUATE REASONS?
The first step is to see whether it is possible to identify reasons that explain the decision.
Although the primary judge was well aware of the conflict between the parties, her Honour appears to have been of the belief that her extensive orders, which she described as “prescriptive”, would reduce or eliminate the conflict, saying:
334.Sadly, this is not [X]'s experience; he has been caught in unrelenting conflict that he has told Dr [C] he wants to stop. In the absence of his parents being able to step outside of the well-worn patterns of behaviour that exist between them, in which I have limited confidence, it would appear logical to give only one parent sole parental responsibility. However, I am not satisfied that doing so would actually be in [X]'s best interests. Both of his parents present a risk of harm to him, and I am satisfied that his developmental and therapeutic needs require input from both parents, as this is necessary to safeguard against those risks. Accordingly, I am satisfied it is in [X]'s best interests to craft bespoke orders for parental responsibility which takes away, to the extent that it can, the parties' platform for conflict. The detailed rationale for the same will be set out later in these Reasons.
(Footnote omitted, emphasis in original)
At [718], it was said:
Although difficult to predict, sadly for [X], I anticipate these parties will initiate further proceedings irrespective of whatever orders I make. However, I hope that by crafting prescriptive orders that go towards the goal of removing the platforms for conflict, that the opportunity for these parties to relitigate in light of the rule in Rice & Asplund (1979) FLC 90-725 and the imminent codification of the same, will be minimised.
(Footnote omitted, emphasis in original)
This theme was repeated at [723], which I have already quoted at [18].
Her Honour added:
743.As I have foreshadowed elsewhere in these Reasons, my orders are largely an opportunity for the parents. If they are unable to comply with and make these orders work and should further litigation be necessary because of ongoing conflict between them, neither should feel confident the Court would side with them. The law is often described as a blunt instrument and a drastic response may ultimately be necessary. I sincerely hope for [X]'s sake, it does not get to that.
(Emphasis in original)
There was, as I understand, no evidence which suggested that the conflict between the parents was likely to abate if prescriptive orders were made.
I now turn to the orders. The order for parental responsibility is in a common form. It requires the parents to consult and mediate but does not set out what is to occur if a disagreement remains after that process.
Order 16 requires the parties to take all steps to cause Dr F to “undertake a comprehensive developmental and functional assessment” of the child.
This order carries the necessary inferences that the parties will be able to agree on the steps to be taken, who will do what and when to cause that to happen.
Order 20, relevantly provides:
20.The parties shall promptly comply with all directions and recommendations made by Dr [F], including but not limited to:
…
(c)making changes to their own behaviour and parenting, such as setting and enforcing boundaries, encouraging the child to solve problems and resolve conflict appropriately, actively support the child's independent relationships, developing consistency between households around behavioural expectations, homework and sleep routines and shielding the child from parental conflict.
To a similar effect is Order 29, which provides:
29.The parties shall comply with all reasonable directions made by Dr [G] and the therapists, including but not limited to:
(a) modifying their own behaviour and parenting;
(b) doing recommended therapy activities at home; and
(c) only communicating with them as directed.
The reasons do not explain why her Honour came to the view that these orders would reduce the conflict between the parties and that they would, or could, modify their behaviour to accord with the recommendations made to them.
This was not something that was explained in evidence because the hearing proceeded on the basis that the existing equal time arrangement was untenable, and its continuation was not in the contemplation of the parties.
Towards the close of the father’s submissions and after the close of the mother’s and the Independent Children’s Lawyer’s submissions, her Honour said:
…So I’m stuck because you’ve made some excellent points, [counsel for the mother] has made some very good points, and I keep coming back to Dr [C]’s first recommendation: a week about arrangement shouldn’t change. Not made up my mind, but I keep being drawn to her initial – her initial perspective.
(Transcript 14 December 2023, p.927 line 50 to p.928 line 4)
There is force in the proposition that this comment was not sufficient to alert the parties and the Independent Children’s Lawyer to the fact that the orders that were actually made, were the subject of active consideration of her Honour. This indeed, is the basis of Ground 2.
The initial opinion of Dr C was indeed that equal time should continue, but she resiled from that opinion in later reports and her oral evidence. In her second report, Dr C said:
67.…I am of the view that the best interests of [X] will be served by a simplified arrangement where one parent is able to make decisions for [X] that are not associated with legal wrangling and argument.
(Single Expert Report of Dr C dated 18 August 2023)
Her Honour found Dr C to be an impressive witness and, with some caveats, accepted and concurred with her opinion (at [323]).
The caveat appears in the following paragraphs:
702.I have otherwise addressed Dr [C]'s position about the likely impact on [X] should there be a change in his circumstances when dealing with her evidence, and as such, it will not be repeated here. However, for the reasons given, I do not accept [X] would cope with a significant reduction in time with his father as opined by her. I consider this would run contrary to [X]'s wishes, which whilst not determinative, are still relevant. At a minimum, such a change is likely to be upsetting for him; but in my view, is more likely to be distressing and will have a negative impact on [X]. [In reaching this conclusion, I have regard to the fact that [X] is not a resilient child and has significant struggles managing his emotions. Given [X]'s behavioural issues. I am simply unprepared to take the risk of reducing time with his father at this stage.] Such a stance should only be adopted as a last resort, which I am not satisfied has yet been reached.
703.Conversely, and again for the reasons given, I also do not accept a reduction in [X]'s time with the mother would be in his best interests as she provides him with structure and boundaries; more importantly, I also consider it necessary to guard against the risk of [X] rejecting his mother as the alignment with his father fortifies.
Otherwise, the decision not to accept Dr C’s opinion remains unexplained and, seemingly, at odds with the earlier finding accepting her opinion.
In [675], [702] and [703] her Honour finds that any reduction in time with either the mother or the father would not be in the child’s best interests. Elsewhere, as has been seen, it was found that the conflict between the parents was harmful to X and that each parent posed a risk of emotional and psychological harm to him.
The resolution of the tension apparent in the above paragraphs was crucial in determining the outcome of the proceedings.
Each of the parties sought an order for sole parental responsibility and for the child to live with them, spending time with the other parent every alternate weekend. This position was supported by the Independent Children’s Lawyer who submitted that the mother should be the primary caregiver. Each therefore accepted that the greater risk of harm would be occasioned by maintaining the present regime. Whilst the primary judge was not bound by the stance of the parties and the Independent Children’s Lawyer, her Honour was obliged to explain why she came to a different view or, to put it in terms already used, how the tension between the two factors was resolved.
I do not consider that it is apparent from the reasons how the outcome was achieved. Evidently, her Honour thought that her prescriptive orders would do so, but there is no exploration in the reasons of why it was thought they would do so.
IS THE OUTCOME UNREASONABLE OR PLAINLY WRONG?
There is a link between unreasonableness and plainly wrong on the one hand, and lack of reasons on the other. Where it does not appear how the judge reached the result embodied in the orders and, on the facts, it appears to be unreasonable or plainly wrong, an appeals court can infer that there has been a failure to properly exercise the discretion (Grunseth & Wighton (2022) FLC 94-099 at [38]; see also Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [44]–[53]).
Having found there to be a paucity of reasons explaining the outcome, it comes to the question of whether the outcome is unreasonable or plainly wrong. That, ultimately, is very much a matter of impression and degree taking into account all of the evidence. I reiterate that such a finding must be more than a mere disagreement with the outcome and accept the very wide range of acceptable exercise of discretion in a parenting case.
I am ultimately persuaded that the outcome is unreasonable given the entrenched attitudes of the parties and the fact that all of the evidence points to the existing equal time arrangement being untenable and not in the child’s best interests.
Such a finding may not be significant because I also consider that the deficiency in the reasons, despite their length, is such that the appeal should succeed on that ground alone.
The content of adequate reasons was discussed in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 where the New South Wales Court of Appeal said:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
Here, fundamentally, the reasons do not explain why it was that the parties’ and the Independent Children’s Lawyer’s contentions were not accepted, why the single expert’s final recommendation was not accepted and why it was thought that the prescriptive orders would solve the problems that beset this family. The need for a clear explanation is exacerbated by the radical departure by the primary judge from the orders proposed by the parties, the Independent Children’s Lawyer and the single expert.
DISPOSITION
This is an unfortunate outcome. The hearing lasted for nine days but will have to be reheard. The last thing these parties need, particularly X, is more litigation, but there is sadly no alternative.
There is little point in considering the remaining grounds, notwithstanding there appears to be some merit to them (Boensch v Pascoe (2019) 268 CLR 593 at [7]).
I propose that the appeal be allowed and the matter be remitted for rehearing by a judge other than the primary judge. The parties are agreed that in that event the appropriate order will be to set aside Orders 2, 3, 5, 6, 7, 8, 34, 35, 47 and 68 made by the primary judge so that earlier orders will spring back into force.
The appeal has succeeded on an error of law. Unless they are otherwise disentitled, each of the parties and the Independent Children’s Lawyer should have a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and any rehearing.
MCCLELLAND DCJ:
I agree with the Reasons for Judgment of Justice Aldridge and the orders he proposes.
BRASCH J:
I also agree with the reasons and the orders proposed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge & Brasch. Associate:
Dated: 31 July 2024
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