Kennedy & Kennedy

[2010] FamCAFC 195

FAMILY COURT OF AUSTRALIA

KENNEDY & KENNEDY [2010] FamCAFC 195

FAMILY LAW - APPEAL – PARENTING – PROCEDURAL FAIRNESS – Whether Federal Magistrate denied father procedural fairness in relying on expert evidence of child’s treating specialists admitted after Family Consultant evidence in circumstances where Family Consultant not recalled to comment on expert evidence – Where no objection taken by father’s counsel to admission of expert reports – Where father’s counsel did not request the Family Consultant be recalled – No procedural unfairness established.

FAMILY LAW - APPEAL – PARENTING – PROCEDURAL FAIRNESS – Whether Federal Magistrate denied father procedural fairness in making a finding that father’s conduct during the marriage fell within the statutory definition of “family violence” in s4(1) of the Family Law Act 1975 (Cth) without notice to the father’s counsel – Where contest about equal or sole parental responsibility – Where father’s counsel chose not to cross-examine the mother on allegations of domestic violence – No merit in procedural fairness grounds.

FAMILY LAW - APPEAL – PARENTING – FAMILY REPORT – Whether Federal Magistrate erred in departing from recommendations of Family Consultant – Where expert evidence adduced after Family Consultant’s evidence – Where child was developmentally delayed – Whether Federal Magistrate erred in failing to give sufficient reasons for departure from Family Consultant’s recommendation – Reasons were adequate – No error in departing from recommendations.

FAMILY LAW - APPEAL - PARENTING - FAMILY REPORT – Whether Federal Magistrate erred in giving insufficient weight to recommendations of Family Consultant – No error in exercise of discretion established.

FAMILY LAW - APPEAL – PARENTING – Whether the Federal Magistrate erred in failing to make a Jones v Dunkel (1959) 101 CLR 298 finding in respect of the mother’s failure to call the maternal grandmother – Where failure to comment on lack of maternal grandmother’s evidence must be regarded in overall context of the reasons – Where father did not challenge that the child should continue to live with the mother – No appealable error.

FAMILY LAW - APPEAL – PARENTING – No merit in appeal – appeal dismissed.

FAMILY LAW - COSTS – Where father has been wholly unsuccessful in appeal – Where there should be a departure from s 117(1) of the Family Law Act 1975 (Cth) – The father to pay the mother’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth), s60B, s60CC, s 61DA, s 69ZX, s 117(1)
Federal Proceedings (Costs) Act1981 (Cth)

Andrew & Delaine [2009] FamCAFC 182
CJD v VAJ (1998) 197 CLR 172
D & P [2006] FamCA 170
Friscioni & Friscioni [2010] FamCAFC 108
Hall & Hall (1979) FLC 90-713
Jones v Dunkel (1959) 101 CLR 298
KPR v MRS [2007] FamCA 1334
Malak & Mairie [2010] FamCAFC 170
Vakauta v Kelly (1989) 167 CLR 568

APPELLANT: Mr Kennedy

RESPONDENT: Ms Kennedy

FILE NUMBER: SYC 3281 of 2008

APPEAL NUMBER: EA 136 of 2009

DATE DELIVERED: 30 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 9 April 2010

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 2 October 2009

LOWER COURT MNC: [2009] FMCAfam 1013

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Givney

SOLICITOR FOR THE APPELLANT: Moylan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura with Ms Barnett

SOLICITOR FOR THE RESPONDENT: Constantine G Pavlis & Co

Orders

1. The appeal be dismissed.

2. The father pay the mother’s costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

IT IS NOTED that publication of this judgment under the pseudonym Kennedy & Kennedy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 136 of 2009
File Number: SYC 3281 of 2008

Mr Kennedy

Appellant

And

Ms Kennedy

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 2 October 2009 after a four day hearing, Orchiston FM made parenting orders in respect of the only child of Mr Kennedy and Ms Kennedy.  At the date of the orders the child, who was born in 2007, was aged 2 years and 3 months.  The child was assessed by a specialist medical practitioner and a developmental psychologist shortly prior to the conclusion of the hearing as being developmentally delayed.

2. It was not disputed before the Federal Magistrate that the child should live with the mother who had been his primary caretaker since birth.  Rather the issue at trial was essentially when time spent by the father with the child should increase, and in particular, when overnight time should commence and thereafter increase.

3. At trial the father sought orders the child spend gradually increased periods of time with him, including one overnight per week, such overnight time to commence in October 2009 and to progress thereafter to each alternate weekend, with gradually increasing block time during school holidays.  The father sought by the time the child commenced school he should spent time with him each alternate week from Wednesday after school to Monday before school as well as half school holidays and on other special occasions.

4. Also in issue at the trial was whether the parties should have equal shared parental responsibility for the child (the father’s position) or that the mother have sole parental responsibility (the mother’s position).  Neither party sought an equal time regime at the time of trial, or at any future time.  The father conceded the child should live with the mother.

5. The Federal Magistrate made orders that the parties have equal shared parental responsibility for the child, and that he live with the mother.  The Federal Magistrate’s orders provide that the child spend time with the father, with one overnight period to commence in June 2010 (when the child will be three years old) and for overnight time to increase to two weekend nights each alternate weekend when the child is four. 

6. Prior to the commencement of overnight time, the orders provide that the child spend time with the father each Tuesday from 6.00 pm to 8.00 pm and each Saturday from 9.00 am to 5.00 pm (increasing to 7.00 pm in December 2009).  When the child is three, in addition to overnight time, the orders continue the time he spends with the father each Tuesday, but also provide for time each alternate Thursday.  That mid week regime is to continue when the child is four, with an extension of the daytime hours on alternate weekends to a full day on Sunday.

7. On the child commencing school the orders provide for the child to spend each alternate weekend from Friday evening until Monday morning with the father.  The orders also provide a regime of block overnight holiday contact to commence when the child is aged three years and six months, such holiday time incrementally increasing, and on the child commencing school for one half of the mid term holidays, and a block period at Christmas.  The Christmas   block period is to increase to half of Christmas school holidays after the child’s first year at school.

8. There are a number of other orders details of which I will refer to shortly.

9. This is the father’s appeal against all of the Federal Magistrate’s orders.

10. Before me the father sought and, without objection, was granted leave to rely on a Further Amended Notice of Appeal. I heard this appeal pursuant to a direction of the Chief Justice, the Honourable Justice Bryant, pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).

11. The father sought, in the event the appeal was allowed, that I should re-determine the matter and make orders that the child immediately commence overnight time with the father for two nights each alternate weekend as well for a period of two hours each Tuesday.  The orders sought in the Further Amended Notice of Appeal make no provisions for delivery and collection arrangements for the child, nor do the grounds of appeal challenge the trial Judge’s orders enabling the paternal grandparents to spend time with the child.

12. I have assumed that, although the Further Amended Notice of Appeal indicates all orders are being challenged, in fact the father does not seek to challenge the order for equal shared parental responsibility, that the child live with the mother, and the parties have sole responsibility for making decisions relating to the day to day care welfare and development of the child when the child is in their respective care (Orders 2, 3 and 4).  Nor does he appear to be challenging the orders for special occasion time with the child (Orders 5.9 – 5.12, Order 6) or Orders 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19.

13. The mother resisted the appeal, but sought in the event it was allowed, that the matter be remitted for rehearing.

14. I propose to refer to some relevant non controversial background material.  I will then summarise and group the six grounds of appeal relied on in the Further Amended Notice of Appeal and discuss each group of grounds with reference to the relevant parts of the Federal Magistrate’s reasons.

Background

1. The father was born in 1975 and was aged 34 years at the date of the hearing.  The father was born in Iran and is an Australian citizen.  At the time of the hearing before the Federal Magistrate the father was employed as an administrator.

2. The mother was born in 1978 and was aged 31 years at the date of the hearing.  The mother holds tertiary qualifications in the education sector and at the time of the hearing was employed part-time at a tertiary institution.

3. The parties married in 2005.

4. The parties’ only child was born in 2007, and was aged 2 years and 2 months at the last day of the hearing before the Federal Magistrate.

5. The parties had concerns regarding the child’s delayed speech and language skills.  The child was assessed by a paediatrician, Dr G, and a developmental psychologist, Mr N.  The reports of both Dr G and Mr N were before the Federal Magistrate (being annexed to an affidavit of the mother) but at the time of the hearing a precise diagnosis and treatment plan had not yet been determined.

6. The parties separated on 21 May 2008.  Prior to separation the parties attended six months of joint counselling at Relationships Australia, and at about the same time the father attended individual counselling.  Since the parties’ separation the mother has been living with the child at the maternal grandparent’s residence in a western suburb of Sydney.  The father continued to live in the matrimonial home subsequent to separation.  On the sale of the matrimonial home the father initially moved to a residential unit at a southern Sydney suburb before moving to a residential unit at a north western suburb of Sydney.

7. On 21 May 2008, the date of the parties’ separation, there was an incident between the parties.  The mother asserted the father threatened to kill her.  Although the father denied this threat he conceded he had made an earlier threat to kill the mother but said it was made in jest.  A provisional Apprehended Violence Order (“AVO”) was taken out by the police and interim orders were made in the Local Court on 6 August 2008.  On 4 November 2008 the application for an AVO was withdrawn and dismissed on the basis of certain undertakings provided by the father.

8. The father did not spend time with the child between 21 May 2008 and August 2008, when the matter came before the Court.

9. On 5 June 2008 the mother filed an initiating application.  The Federal Magistrate found that the circumstances of the filing of this application and its service on the father were the cause of some tension between the parties. (see paragraphs 96 to 100 of the Federal Magistrate’s reasons).

10. On 18 August 2008 Federal Magistrate Kemp made interim parenting and other procedural orders.  The orders included orders that the child live with the mother and spend time with the father during the following six months each Tuesday and Thursday from 6.00 pm to 8.00 pm and each Saturday from 11.30 am to 1.30 pm, as well time on special occasions.

11. On 17 January 2009 there was an incident between the parties during a changeover.  On this occasion it is alleged that the father, who was outside his home with the child, required the mother to knock on his front door in strict compliance with interim orders, before he would hand over the child.

12. On 7 February 2009 there was a further incident between the parties.  This incident also took place in the context of a changeover.  The mother asserted the father refused to hand the child back to her at the end of a contact period, and the father kept the child in his car.  The father asserted he was intimidated by the maternal grandmother “pointing and aiming” a video camera in his face.  The police attended the mother’s home.  The Federal Magistrate accepted that both parties had genuine fears about certain matters and that the safety or well-being of the child or either party was not put at risk.

13. A further incident occurred on 4 April 2009 when the father attempted to pick up the child early due to work commitments.  On this occasion the mother refused to allow the child to be collected early and the father was required to return at the time specified in the orders.

14. On 12 June 2009 Federal Magistrate Orchiston made further procedural and interim orders, including that changeovers between the parties should take place at C Shopping Centre.  Further, by consent, orders were made that the father spend time with the child from the date of the orders until 26 December 2009 each Tuesday from 6.00 pm to 8.00pm and each Saturday from 9.00 am to 3.00 pm.

15. The hearing before the Federal Magistrate took place over a period of four days on 11 and 12 June and 14 and 15 September 2009.  On 12 June 2009 the Family Consultant who prepared a report gave evidence and was cross-examined.  He was not recalled by either party when the trial resumed in September 2009.  The Federal Magistrate delivered her reasons and made the orders the subject of this appeal on 2 October 2009.

The grounds of appeal

1. There was overlap between a number of the grounds argued by the father’s counsel.  It was submitted the Federal Magistrate:

   ·erred in finding the father’s conduct during the course of the marriage fell within the statutory definition of family violence;

   ·erred in making a finding of family violence because the finding was contrary to the evidence;

   ·failed to give adequate reasons for the finding of family violence;

   ·denied  procedural fairness to the father:

   -     by the making findings about family violence without first indicating to counsel that she was considering making such findings; and

   -     by departing from the recommendation of the Family Consultant, and without notice to the parties, relying on reports of the treating medical specialist and developmental psychologist when the mother failed to recall the Family Consultant for further cross-examination;

   ·erred in failing to give appropriate weight to the recommendations of the Family Consultant and asserted failure to give adequate reasons for rejecting his recommendations; and

   ·erred in failing to make a Jones v Dunkel ((1959) 101 CLR 298) finding in respect of the mother’s failure to call the maternal grandmother.

2. The gravamen of the father’s appeal was the two identified complaints about the Federal Magistrate’s rejection of the Family Consultant’s recommendations and her failure to alert the father’s counsel she intended to rely on two reports, being reports of the child’s treating paediatrician, Dr G and psychologist, Mr N without the Family Consultant being recalled to comment on the reports.  This was said to be procedurally unfair to the father (the procedural fairness and the weight challenge).  I will deal firstly with those complaints.  The second major thrust of the father’s appeal was directed to the issue of family violence.  It is convenient that I deal with the complaints identified relevant to that issue as my second topic.  Although it was not strongly pressed before me, for completeness I will then consider the Jones v Dunkel challenge.

Relevant law

1. Before commencing my discussion of the grounds of appeal, it is important to observe that the substantial complaint about the Federal Magistrate’s orders is directed to the question of weight.  In other words, it is asserted the Federal Magistrate’s discretion miscarried because she took into account an irrelevant matter, failed to take into account relevant matters, or that the orders made were plainly wrong.

2. These complaints are directed to the exercise of discretion by the Federal Magistrate.  The limits on appellate interference in such circumstances are well known.  Those limits are cogently explained by Kirby J in CJD v VAJ (1998) 197 CLR 172 at 230 – 231:

   A number of general propositions may be stated:

   1.        Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

   2.        Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision- makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.

   3.        An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self - restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.

Grounds relating to the family consultant’s evidence and recommendations (ground 2, 4 and 5) (the procedural fairness and weight challenge)

2.The learned Federal Magistrate failed to provide the father with procedural fairness.

…

4.The finding that the child should not have overnight time with the father for 8 months [and the delay in extending the time] from the date of the Orders was not in the child’s best interests and was against the weight of overwhelming evidence contrary to such a finding.

5.The learned Magistrate failed to properly weigh the evidence before the Court from various experts being the Family Consultant …, Dr. [G] and Mr. [N].  Particularly having regard to the fact that neither Dr. [G] nor Mr. [N] considered and/or referred to the issue as to the benefit or lack of benefit of the child having extended time with his father.

1. Ground 2 asserts a generalised claim.  From the father’s counsel’s submissions the nub of the complaint may be distilled.  First, it was asserted the Federal Magistrate denied the father procedural fairness by failing to indicate to the father’s representative that she would “have benefited from hearing [the Family Consultant] cross-examined in relation to these reports”.  Secondly it was asserted the Federal Magistrate denied the father procedural fairness by failing to give notice to counsel that she may form the view that, based on the contents of the reports of Dr G and Mr N, the introduction of overnight time should be delayed.  It was asserted if the Federal Magistrate intended to rely on these reports she had an obligation to inform the father’s counsel, thus providing him with an opportunity, if he chose to do so, to recall the Family Consultant to comment on the reports and to ascertain whether, in light of these reports, he would maintain his recommendation as to when overnight time with the father should commence.

2. It was also asserted on behalf of the father that the Federal Magistrate had failed to give appropriate weight to the family report and that the Federal Magistrate’s decision to defer the commencement of overnight time was against the evidence and the weight of the evidence.

3. In particular, it was asserted that the findings made by the Federal Magistrate in her consideration of s 60CC(3) factors were inconsistent with her findings in paragraph 34 of her reasons, and thus the rejection of the Family Consultant’s recommendations was unsound. It is useful at this point I refer to parts of the Federal Magistrate’s reasons.

The Federal Magistrate’s consideration of the Family Consultant’s evidence

1. At the commencement of her reasons, the Federal Magistrate referred to the material relied on by each of the parties and the orders sought by them. 

2. At paragraph 11, the Federal Magistrate noted:

   The Court also had before it a Family Report from the Family Consultant, …, dated 4 May 2009.  [The Family Consultant] was cross-examined by both the parties.  It also had before it Reports from Dr [G], the child’s paediatrician and Mr [N], a consultant developmental psychologist (being Annexures “A” and “B” respectively to the mother’s affidavit of 2/9/09).

3. Having set out the orders sought by each of the parties, the Federal Magistrate then discussed the relevant legal principles to be applied in determining a parenting case.  No challenge is raised in this appeal to the Federal Magistrate’s recitation of those principles.

4. At paragraph 30, the Federal Magistrate identified the key issues for determination in the case as follows:

   ·whether the mother should have sole parental responsibility or whether the parents should have equal shared parental responsibility for [the child]; and

   ·when [the child] should start spending overnight time with his father. 

5. The Federal Magistrate then focussed her attention, under the heading “Limitations on Family Report”, on the evidence of the Family Consultant.  She commenced her discussion by referring to the fact that the Family Consultant recommended any significant changes to the child’s present weekly arrangement should be introduced gradually. 

6. Thereafter she set out the Family Consultant’s recommendations.  It is useful at this point that I repeat those recommendations:

   Phase 1:for a period of 3 months, Saturdays to be extended to a full day (from 9am to 4pm), with Tuesdays and Thursdays remaining as is (from 6pm to 8pm on each night);

   Phase 2:for the next 3 months, Saturday overnight to 4pm Sunday;

   Phase 3:thereafter, 2 nights overnight on alternate weekends, at which time, [the child] should be fully toilet trained and there will have taken place a further paediatric assessment with recommendations as to his language delay. (paragraph 31)

7. At paragraph 32 of her reasons, the Federal Magistrate discussed the Family Consultant’s evidence about overnight mid-week time in the alternate week explaining that the Family Consultant was of the view the child might not be ready for such time, although some mid-week time should be spent with the father. 

8. Having noted the Family Consultant’s experience and qualifications the Federal Magistrate, at paragraph 34, set out what she found to be the limitations of the report.  At that paragraph the Federal Magistrate explained:

   I make it clear that the following limitations which I consider must qualify the weight that can be accorded to his Report, are not in any way to be taken as critical of [the Family Consultant], nor of his methodology or conclusions which were drawn from his careful observation and assessment of the parents and [the child] at that point in time:

   ·The recommendations in his Report were made after interviewing the parents and [the child] some 4½ months before the final day of hearing.  [The Family Consultant] gave evidence some 3 months before this same final day of hearing.  His Report and evidence, therefore do not take into account more recent events, such as the extent of the present level of conflict and communication between the parents, and [the child’s] present level of maturity;

   ·Secondly, the recommendations were made prior to the Court extending the time [the child] spent with his father on Saturdays to a block of 6 hours, (see Interim Orders of 12/6/09). [The Family Consultant] did not therefore have the opportunity of re-interviewing the parents and observing [the child] after these interim orders came into effect.  Accordingly, he was not able to comment on the differing views of the parents as to how [the child] is coping with this extension of time, nor to present any independent view on the matter.

   ·Thirdly, at the time of writing his Report, [the Family Consultant] was aware that [the child] had seen Dr [G] and that further investigation was foreshadowed, in particular, in regard to the parents’ concern over [the child’s] delayed speech and language skills.  He did not however have the benefit at that time of the later Reports from Dr [G] and Mr [N] when interviewing the parents and [the child].  He was not recalled by the parties for further cross-examination following the furnishing of these Reports.

9. At paragraph 35, the Federal Magistrate said:

   The recommendations in his Report must therefore be considered in the light of this further evidence from Dr [G] and Mr [N] concerning [the child’s] developmental levels and the extent to which [the child] is presently coping with the extension to block time spent with his father on Saturdays and the effect of this on his ability to cope with a further extension to overnight time.

10. The Federal Magistrate then explained that she would deal with “[t]hese issues” in the context of her consideration of the objects and principles in s 60B(1) and (2) and her consideration of the primary and additional considerations in s 60CC(2) and (3). The Federal Magistrate also correctly referred to the need to consider relevant matters under s 60CC(4) and (4A) of the Act.

11. Having discussed the effect of the interim orders, and recorded the mother’s evidence that the child had generally gone willingly to the father, the Federal Magistrate concluded:

    …Now with a six hour block on Saturdays, the father has been able to become much more involved in [the child’s] routine and daily life, thus having the opportunity to build up a close and loving bond and strong level of attachment with him.  I accept that [the child] now enjoys the benefit of a meaningful relationship with his father.  The introduction of overnight stays will provide [the child] with an increased opportunity to share this already meaningful relationship with his father.   (paragraph 41)

12. The Federal Magistrate then noted, at paragraph 42, “[i]n more recent times” the parents had appeared to have been better able to communicate about the child’s daily needs.  She later said:

    …There are now the positive beginnings of a more mutually co-ordinated approach to parenting by the father and a willingness to exchange vital information about [the child’s] care.… (paragraph 42)

13. At paragraph 43, the Federal Magistrate explained she accepted:

    …that the father has demonstrated that he is making progress in “moving on” from the acrimonious conflict which described the parents’ relationship until more recently…

14. At paragraph 46, the Federal Magistrate concluded:

    …I am fully satisfied that there is a strong benefit to [the child] in [the father] having an increasing role in [the child’s] life and [the child] enjoying a meaningful relationship with his father. 

15. The Federal Magistrate then explained that both parents showed concern over the child’s delayed speech and had attended recent appointments with a paediatrician and a developmental psychologist.

16. At paragraph 48, the Federal Magistrate set out part of the report of the paediatrician.  It is clear, as I will explain later having regard to the Federal Magistrate’s reasons, that she found the paediatrician’s evidence important.  In the extracted portion of his report he said:

    [The child] thus continues to be a concern in respect of his overall situation and in particular his speech development.  I do not [sic] feel that he has a significant number of features of a pervasive disorder and I think this requires further evaluation.  I have referred him for a psychological assessment to Mr [N] who can hopefully further evaluate him in this respect.  I have also suggested he have a comprehensive speech review and have suggested he be seen by Ms [L].  I have asked to see him again once these assessments are complete to further discuss his on-going management.

17. The Federal Magistrate then turned her attention to the report of the developmental psychologist who had seen the child on 28 August 2009 (during the period in which the hearing was adjourned).  The Federal Magistrate noted that the developmental psychologist reported the child “is a very young boy with a significant history of speech and language delay”.  The Federal Magistrate also recorded the expert’s view that:

    There were certainly behaviours characteristic of the broad spectrum of autistic disorders, but also behaviours which were not.  (paragraph 49)

18. At paragraphs 51 to 54 of her reasons, the Federal Magistrate said:

    51.On this basis, Mr [N] estimated that [the child] was functioning at approximately a 16 to 17 month level, which constituted a “moderate delay” which was most pronounced in his speech and language skills which were functioning at approximately 13 months.  I note that [the child’s] chronological age as at the date of this assessment was 26 months.

    52.Mr [N] reached the following conclusion:

    [The child] is a very young boy whose development is clearly delayed, particularly in relation to speech and language skills.  He has the motivation to communicate, however, and this difference between ‘speech’ and ‘communication’ will be vital in his progress through therapeutic intervention. [The child] certainly demonstrates behavioural signs from the broad spectrum of autistic disorders, but also communication and social interaction behaviours which are at odds with the autism spectrum.  [The child’s] play skills are delayed but developing.  I would not be prepared at this stage to make a diagnosis of Autistic Disorder, but feel that [the child’s] progress needs to be monitored closely once he has begun to receive assistance through therapy and intervention services.

    53.It is thus clear that, from the above Reports, the precise diagnosis, treatment plan, and what therapeutic intervention will best meet [the child’s] developmental needs are yet to be defined and determined.  The benefit to [the child] in having both parents actively and positively involved in this continuing assessment process is crucial to his development and to making his relationship with both of them truly meaningful as his special needs are met by them in conjunction with professional advice and assistance.

    54.Taking all these matters into consideration, I am satisfied that, in these circumstances, there is an overwhelming benefit to [the child] of his having a meaningful relationship with both his parents

19. The father’s complaints are directed to paragraph 34 of the Federal Magistrate’s reasons where she explained why she “discounted” the views of the Family Consultant.  The father’s counsel asserted that the Federal Magistrate failed to identify the “more recent events” and in particular any evidence of conflict occurring after 7 February 2009.  The father’s counsel further submitted that neither the father nor the mother were cross-examined about any event which occurred after the preparation of the Family Consultant’s report.

20. It is appropriate that I first deal with the procedural fairness complaints.  Dr G and Mr N are respectively the child’s specialist treating paediatrician and consultant developmental psychologist.  Their reports dated respectively 18 August 2009 and 31 August 2009 were annexed to the mother’s affidavit filed 7 September 2009.  Mr N’s report was addressed to the parties and there was no suggestion its contents were not known to the father prior to it being annexed to the mother’s affidavit.  Similarly Dr G’s report was copied, simultaneously with its dispatch to the child’s general practitioner, to the parties.

21. While I accept that the expert reports were not adduced in accordance with the Federal Magistrates Court Rules 2001 (r 15.07) as the transcript clearly discloses no objection was taken by the father’s counsel at trial to the manner in which the reports were adduced into evidence (see transcript, 14 September 2009, p 6). Notice was also given by the mother’s counsel that the reports had been forwarded to the Family Consultant with “tentative notice” he may need to make himself available for cross-examination “at some stage during the proceedings”.

22. The mother’s counsel, who first made oral submissions to the Federal Magistrate at the conclusion of the trial, raised the issue of the reports of Dr G and Mr N, and noted that although notice had been given to the Family Consultant that he had not been required for further cross-examination by either party on the contents of the reports (transcript, 15 September 2009, p 75).  The father’s counsel did not respond to that submission in his oral submissions save to assert that the Family Consultant had not been recalled (transcript, 15 September 2009, p 94).

23. The proceedings were conducted by counsel with considerable experience in the jurisdiction.  No objection was taken to the reports of Dr G and Mr N who were the child’s treating specialists.  The reports were relevant and in the circumstances admissible.  The opportunity for the father to seek to have the Family Consultant recalled was highlighted by counsel for the mother at the commencement of the resumed hearing.  The father’s counsel did not, for whatever forensic reason, avail himself of that opportunity.

24. The Federal Magistrate highlighted to the parties her concern that the expert reports had not been adduced into evidence until the resumed hearing, and the assessments of the child had not been completed.  She posed options to the parties, including the making of further interim orders, but neither party sought she should adopt that course.

25. The diagnosis by Dr G, and the recommendations of Mr N formed a significant part of the evidence before the Federal Magistrate.  Dr G’s opinion of the child’s development and the need for further examination were set out by the Federal Magistrate.

26. Dr G concluded his report noting:

    [The child] thus continues to be a concern in respect of his overall situation and in particular his speech development.  I do feel that he has a significant number of features of a pervasive disorder and I think this requires further evaluation.  I have referred him for a psychological assessment to Mr [N] who can hopefully further evaluate him in this respect.  I have also suggested he have a comprehensive speech review and have suggested he be seen by Ms [L].  I have asked to see him again once these assessments are complete to further discuss his ongoing management.  I will keep you informed of his progress.

    … 

27. Mr N attached to his report to the parties a document entitled “Divorce, Separation, Access and Custody in a Family with a Child with Autism Spectrum Disorder or Similar Issues”.  Among the considerations listed in the document are:

    1.Children with ASD have an increased need for certainty and security at this point in their lives.  They need to know where they are living, where they are staying, and when these changes are happening.  They need to know what they are doing and when and where and why.

    …

    4.Children with ASD need an extremely structured and secure daily, nightly and weekend routine.  They need to know exactly what is happening and why and when.

    5.In the case of dual living arrangements, children with ASD need to know that there are rules which pertain to one household and rules which pertain to the other.  They need to know exactly what the rules, limits expectations and consequences are in each household.  They also need to know that the rules of one household are accepted by the parents in the other household, and visa versa. 

28. The authorities on procedural fairness were usefully summarised by Coleman J exercising the appellate jurisdiction of the Court in KPR v MRS [2007] FamCA 1334 at paragraphs 60-64 as follows:

    60.In National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296 at 312 Gibbs CJ said:-

    The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.

    61.In Kioa v West (1985) 159 CLR 550 at 612 Brennan J said that:-

    The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.

    62.In Allesch v Maunz (2000) 203 CLR 172 at 184 – 185 Kirby J said:-

    [35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.

    [36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties. (footnotes omitted)

    63.In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 the High Court (Mason, Wilson, Brennan, Deane & Dawson JJ) said:-

    That general principle [entitlement to a fair trial] is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

    For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

    Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.

    64.As the authorities make clear, the opportunity to be heard prior to a decision being made is fundamental to our notions of justice. The opportunity to be heard rather than the acceptance of such opportunity appears to be the focus of attention. A person who has the opportunity to be heard, but declines or otherwise fails to do so will rarely be able to complain that he or she has been denied natural justice.

1. In support of this ground the father’s counsel sought to rely on the decision of the High Court in Vakauta v Kelly (1989) 167 CLR 568. I am satisfied that the principles espoused in that case, which deal with the necessity of a trial Judge to bring his or her “in-court” observations of a party to the notice of counsel if it is intended to rely on those observations are not directly relevant to the issue raised in this appeal.

2. In this case the reports were reports from the child’s treating specialists, and the contents of both reports were well known to the parents prior to the resumed hearing.  They were extremely relevant to determining the child’s best interests.  No objection was taken to them being admitted into evidence.  The ability of counsel to ask the Family Consultant to comment on the reports, and be further cross-examined was clearly flagged by the mother’s counsel when the evidence was adduced.  That opportunity was not taken up by the father’s counsel.  The reports were referred to in final submissions made to the Federal Magistrate.  The mother’s reliance on the content of the reports was clear and unequivocal.

3. In these circumstances, and particularly bearing in mind that the father was represented by experienced counsel, I am not satisfied the father was denied procedural fairness, nor do I find there was any obligation on the Federal Magistrate to draw to the father’s attention the fact she would have regard to this relevant and admissible evidence.  The father had the opportunity to be heard in respect of the weight, if any, to be given to these reports.  His counsel did not for whatever forensic reason, take up that opportunity.  It was self-evident from the exchange between the Federal Magistrate and the mother’s counsel during his final submissions that the reports would be considered by the Federal Magistrate in determining the best interests of this small child with special needs.  I find no merit in the procedural fairness challenge.

4. I turn then to deal with the complaint that the Federal Magistrate’s reasons for rejecting the Family Consultant’s evidence were not supported by the evidence.  As I have already highlighted this complaint was essentially directed to the Federal Magistrate’s explanation in paragraph 34 of her reasons that, having regard to the fact that four and a half months had elapsed since the Family Consultant interviewed the parties and that he had given evidence at the commencement of the hearing some three months prior to the final hearing days, the weight accorded to the report should be qualified because it did “not take into account more recent events, such as the present level of conflict and communication between the parents, and [the child’s] present level of maturity.”

5. It was submitted there were no “more recent events” testified to by the mother in her updating affidavit filed after the matter became part-heard, nor did the Federal Magistrate identify “the recent events” elsewhere in her judgment.  It was further submitted that the findings in this paragraph in respect of “conflict and communication between the parents” were inconsistent with findings made by the Federal Magistrate at paragraphs 42, 106, 119 and 201.  In these paragraphs the Federal Magistrate said:

   42.In more recent times, the parents appear to be better able to communicate about [the child’s] daily needs and the father now appears to recognise the importance of this to ensure [the child’s] optimal care, welfare and development.  There are now the positive beginnings of a more mutually co-ordinated approach to parenting by the father and a willingness to exchange vital information about [the child’s] care.  This is also now reflected at changeovers where the parents have been able to deal directly with each other in the more neutral environment of [C] Shopping Centre. 

   …

   106.To overcome the continuous problems at changeovers, the mother also unsuccessfully proposed that they be conducted at [a children’s] Contact Centre.  I accept that she has always been meticulous in handed [sic] [the child] over on time and ensuring that he is ready to be picked up in accordance with the Court Orders so that [the child] could have the full benefit of the time with his father.  The father concedes as much in his evidence.  Since the parties now attend [C Shopping Centre] for the changeovers, the previous problems seem to have decreased, except that the father continues to complain that whilst he attends alone, the mother is still accompanied by at least one other family member.

   …

   119.Overall, I accept that the parents have progressed from the early post-separation difficulties and are now demonstrating, to their credit, both a willingness and ability to facilitate and encourage a close and continuing relationship between [the child] and the other parent from which [the child] will benefit. 

   …

   201.Furthermore, some of the previous conflict at changeover was in the context of the interim AVO being in place, and the difficulties of involving other members of the father’s family to collect and return [the child] on his behalf.  Indeed, members of the extended families on both sides appear on occasions to have escalated the tension.  This appears to be no longer the case.  There is no evidence of any conflict or confrontation since handovers have been effected at [C Shopping Centre].  I understand that the father is now attending changeovers alone, but that the mother has the support of a family member, which I consider not unreasonable given the prior history of conflict on such occasions.

6. A reading of these paragraphs in isolation is potentially misleading.  In paragraphs 37 to 54 the Federal Magistrate was dealing with the first of the primary considerations (s 60CC(2)(a)).  At paragraph 42, although the Federal Magistrate made comments of a positive nature about the relationship between the parties, she carefully observed that these were “beginnings” clearly implying they were not of long standing.

7. It must be remembered that the Federal Magistrate found the mother was still genuinely apprehensive about the father’s threats, and that at the date of hearing she was accompanied by a relative at changeovers.  In paragraph 201, the Federal Magistrate was dealing with the issue of changeovers.  In the immediately preceding paragraph the Federal Magistrate had recorded that the mother sought that change-over should occur at Parramatta Police Station because of past significant conflict and her continuing fears.  Thus the “contradiction” asserted is not sustainable.

8. I observe two other comments may be made about this challenge.  The complaint about “more recent events” must not be read in isolation and limited to conflict, but also regard must be had to the expert evidence which was before the Federal Magistrate at the end of the case about the child’s delayed development.  Further the material complained of is but one of four matters which, in combination, led the Federal Magistrate to find limitations in the Family Consultant’s report.  I find no merit in this challenge.

9. In considering the complaint that the Federal Magistrate erred by not adopting the Family Consultant’s recommendation as to the introduction of overnight time, it is important to refer to the Federal Magistrate’s reasons.  In considering this complaint I will also deal with the assertion that the Federal Magistrate’s reasons in departing from the recommendations were inadequate.

10. At paragraph 120, the Federal Magistrate said:

    The introduction of [the child] spending overnight time with his father will constitute a change in his present circumstances.  It will be the first time he will have spent a night away from his mother. 

11. There is no doubt about the correctness of this observation of the Federal Magistrate.  Having referred to a number of concessions which the mother had made about the child coping with swimming lessons and attendance at a play ground the Federal Magistrate went on, at paragraph 123, to say as follows:

    I consider that it is difficult to equate the above situations with [the child] spending time overnight with his father. It is also difficult to equate overnight time with the longer block time now introduced on each Saturday for [the child] to spend with his father. The introduction of overnight time is a most important step and [the child] must be ready to adjust to the change. The competing arguments for whether overnight time should be introduced now, on the father’s proposal, or more gradually, on the mother’s proposal, are set out below (see Substantial and significant time) and I adopt those arguments in the present context (and see also under s.60CC(3)(f) below).

12. In her discussion of the capacity of each of the parents to provide for the needs of the child, at paragraph 130, the Federal Magistrate recorded that the mother claimed the child had difficulties in settling into the routine when a six hour block period of time with the father was introduced, and the father’s assertion this was working well for the child.  Having recorded that the child’s emotional and intellectual needs would be better understood when the assessments proposed by the experts had been carried out the Federal Magistrate concluded at paragraphs 135 and 136:

    135.[The Family Consultant] did not have the benefit of reading the Reports of Dr [G] and Mr [N] before making his recommendations in the Family Report.  Nor did the parties seek to recall him for cross-examination on the final day of hearing when these Reports were available.  Until a clear diagnosis and treatment plan is available for [the child] it is difficult to speculate on how this will affect his capacity to cope with spending overnight time with his father.  I accept the mother’s submission that these variables are relevant to how readily such time should be introduced.  What can be said however is that at a chronological age of 26 months, [the child] was estimated by Mr [N] to be functioning at approximately a 16 to 17 month level, which constituted a “moderate delay”, which was most pronounced in his speech and language skills which were functioning at approximately 13 months. 

    136.In these circumstances, I am satisfied that [the child’s] developmental needs would be better served by a careful and gradual introduction to overnight stays with his father, in recognition, in particular, of the age level at which he is presently functioning.  Even on the father’s own evidence, he accepted that he had been professionally advised that from the age of 2½ to 3 years, sometimes earlier depending on the child, children are generally more than prepared to spend overnight with their parents.  [The child] is presently functioning at about half this age in developmental terms.  

13. It must be remembered that while the recommendations of a report writer are of considerable weight ultimately it is the role of the judicial officer, who has the advantage of hearing all the evidence, and assessing the demeanour of parties and their witnesses, to determine what is in the best interests of a child.  The role of the report writer was discussed by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819, and approved by subsequent Full Courts (see D & P [2006] FamCA 170 and Andrew & Delaine [2009] FamCAFC 182; Friscioni & Friscioni [2010] FamCAFC 108; Malak & Mairie [2010] FamCAFC 170).

14. Here the Federal Magistrate determined that a cautious approach for this child with special needs was appropriate.  The Federal Magistrate was entitled to, and did, have proper regard to the concerns about the child expressed by both Dr G and Mr N.  The Federal Magistrate’s orders provided regular time with the father to maintain and foster the child’s meaningful relationship with him and a slower introduction of overnight time than the father desired, and a more accelerated regime than sought by the mother.  The Federal Magistrate’s path of reasoning is clear and readily discernible.

15. The suitability of introduction of overnight time for a toddler or young child by a non primary caregiver parent is not a matter which can be determined only by a child’s age.  An expert can give guidance on that issue founded on evidence based practice of “norms” which can assist decision making.  But those norms must be considered in the particular circumstances of a case before the judicial officer and, where appropriate, there should be departure from such norms.  This was such a case.  Put colloquially “one size” does not fit all.  

16. I take this opportunity to observe that it is unfortunate that so many appeals are instituted against discretionary decisions about the introduction of and duration of overnight time for many small children.  The disappointment of a parent who does not achieve the outcome he or she desires in parenting proceedings, no doubt motivated by genuine love for their child, is readily understandable.  Such a parent may feel, wrongly I suggest in most cases, the deferral of overnight time reflects adversely on his or her parenting capacity.  Such proceedings are expensive and often cause or exacerbate ill will between parents to the detriment of their child.  In accordance with the well recognised principles referred to earlier in these reasons, these decisions do not warrant appellate interference.

17. I find no merit in these grounds.

Family violence

1. Grounds 1, 2 and 6 are directed towards the issue of the Federal Magistrate’s determination in paragraph 63 of her reasons that she was satisfied “that there are reasonable grounds to believe that the father engaged in conduct during the marriage which falls within the statutory definition of ‘family violence’ in the Act”.

2. The father’s concern about this ground was expressed to be, because these proceedings were brought under Division 12A of Part VII the Act, that s 69ZX(3)(b) will permit the findings made in the Federal Magistrate’s reasons to be used, he asserted, to his detriment in future proceedings.

3. Before commencing my discussion of these grounds it is appropriate that I set out the definition of family violence found in the Act. It is found in s 4(1) as follows:

   "family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

4. I note that at the commencement of her reasons the Federal Magistrate referred to the principles and objects underpinning Part VII of the Act and then went on to set out the primary considerations. The Federal Magistrate also indicated that she would deal with the additional considerations later in her reasons.

5. In dealing with the second of the primary considerations the Federal Magistrate set out the mother’s assertions of physical and verbal violence during the marriage and recorded in full, at paragraph 58, the statement made to the police after an incident on 21 May 2008 as follows:

   On the incident of 21 May 2008, which led to the mother vacating the former matrimonial home at a western Sydney suburb, she claims in her Statement to police, (Annexure “B” to the mother’s affidavit of 8/5/09), that:

   There has been a history of Domestic Violence where he intimidates me and threatens me, this happened when I was pregnant and after I had [the child].  It has been an on-going thing for the last 2 years … When he gets so heated up and angry he just walks up to me and towers over the top of me and belittles me … When he was standing in front of me he was pushing me with his two fingers into my chest.  I was walking back because of the power in his fingers, until I was standing up against the wall.  He continued to abuse me and said a lot of things trying to belittle me.  He said again, “If you take my son away from me I’ll kill you” … I wish for police to take out an AVO for me as I am worried that if I do leave him and take [the child] with me then he will try and hurt me.

6. At paragraph 59 of her reasons, the Federal Magistrate recorded the father’s denials of the allegations made by the mother in her statement, but noted his concession there were domestic arguments.  Of the mother’s assertion the father had threatened to kill her if she took the child away from him, the Federal Magistrate explained the father conceded he had made such a threat, but said it was made “in jest”, and that the mother “laughed” in response.  The Federal Magistrate then said:

   ...I find it difficult to accept his evidence on this matter that such an utterance by him was not intended to have an effect or to be taken seriously.  I further accept that the mother did take it most seriously. 

7. After referring to the taking out of a provisional AVO, and the subsequent withdrawal of the application on undertakings given by the father, at paragraphs 61 to 63, the Federal Magistrate set out her conclusions.  As these conclusions are at the heart of the father’s challenge I set out those paragraphs in full:

   61.I accept the mother’s evidence in regard to these allegations as more credible than the father’s, in the circumstances.  I am satisfied that he engaged in intimidating and threatening conduct toward the mother during the marriage which caused her reasonably to fear for, or reasonably to be apprehensive about her personal safety, resulted [sic] in her vacating the former matrimonial home on 21 May 2008. 

   62.I am further satisfied that the mother still has genuine fears in this regard, which are reasonably held, as evidenced by her always having at least one family member attend with her at changeovers.  I also accept her evidence as credible that the reason she withheld [the child] from seeing his father until the father had signed the undertaking she sought from him, was because she feared he would not return [the child] to her.  I accept her fears in this regard were reasonably held when considered in the context of the previous conduct of the father.  This is not to deny however that I accept that the father was genuinely mistaken that there was only one, not two undertakings, being sought (see below).

   63.I am thus satisfied that there are reasonable grounds to believe that the father engaged in conduct during the marriage which falls within the statutory definition of ‘family violence’ in the Act.

8. Having discussed in detail the events of 7 February 2009 and 4 April 2009, which I have summarised briefly in the material under the heading “Background” in these reasons, at paragraphs 70 and 71, the Federal Magistrate set out her material conclusions. As a result of these conclusions the Federal Magistrate later in her reasons discussed whether or not the presumption of equal shared parental responsibility was applicable (see s 61DA of the Act).

9. At paragraph 169 the Federal Magistrate said:

   Given my findings in regard to s.60CC(2)(b) above, I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence, as defined in the Act. Accordingly, pursuant to s.61DA(2)(b), the presumption of equal shared parental responsibility does not apply in this case.

10. I pause to observe that s 61DA(2)(b) provides as follows:

    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    …

    (b)  family violence.

11. Having regard to the language in that section it is clear that the reference to family violence is family violence which has occurred at the time of the hearing.

12. Counsel for the father was critical of the Federal Magistrate asserting she had failed to raise with counsel in final submissions that she could make a finding of family violence, and that she had made her findings in paragraphs 61 to 64, based on the mother’s untested affidavit evidence.

1. These complaints can be dealt with shortly.  First, as counsel for the mother pointed out, a forensic decision was taken by the father’s counsel at trial not to cross-examine the mother on her assertions of domestic violence.  In these circumstances the Federal Magistrate, who had the benefit of seeing the mother in the witness box and assessing her demeanour, was entitled to accept the mother’s unchallenged evidence and prefer it to that the father.  Further there was independent evidence in the police statement when they applied for and obtained a provisional AVO.  This application was only withdrawn when the husband gave undertakings to the Court.  I find no merit in this aspect of the claim, as the evidentiary basis for the finding was established.

2. I also find little merit in the complaint that there was procedural unfairness to the father. The parties’ competing positions in respect of parental responsibility before the Federal Magistrate made it abundantly clear that there was no agreement an order should be made for equal shared parental responsibility. The Federal Magistrate was required, as she was being asked to make parenting orders in respect of the child, to consider whether or not the presumption applied. In these circumstances it was self evident the Federal Magistrate was obliged to determine whether or not the presumption applied. That included the requirement to make findings under s 60CC(2)(b) and s 61DA(2)(b). In these circumstances the procedural fairness challenge has no merit.

The “jones v dunkel” challenge

1. As I indicated at the commencement of these reasons, counsel for the father while not abandoning this ground did not strongly press it.

2. Although, because of a technical problem, not all the transcript was recorded, counsel for the mother appropriately and fairly conceded that the father’s counsel had made a submission that the failure to call the maternal grandmother, with whom the mother and child lived, would not have assisted the mother’s case.

3. While the Federal Magistrate referred to the fact that the maternal grandmother did not give evidence, she did not proceed to make any findings about the absence of her evidence.  However, the failure to comment on lack of evidence by the maternal grandmother must be regarded in the overall context of the Federal Magistrate’s reasons.  What is relevant was that the father did not challenge the fact that the child should continue to live with the mother (and to reside in the maternal grandmother’s household).  In these circumstances I am satisfied the omission by the Federal Magistrate to deal with the father’s Jones v Dunkel does not constitute appealable error.

Costs

1. At the conclusion of the hearing I sought submissions on costs.  The father sought in the event his appeal was successful that he be granted a certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth) for the appeal and any rehearing. His submission in the event the appeal was dismissed was that each party should pay his or her own costs. The father’s counsel submitted that such a course would be appropriate having regard to the strength of the recommendations in the family report and the length of time under the Federal Magistrate’s orders before overnight time with the child would move to two consecutive nights. The mother’s counsel sought in the event the appeal was dismissed that the father pay the mother’s costs of and incidental to the appeal.

2. I am satisfied there are circumstances why there should be a departure from s 117(1) of the Act. Although there is little information before me about the parties’ financial circumstances, the Federal Magistrate noted they both had tertiary qualifications and were in employment. They had sensibly reached agreement on a division of their property. No lack of capacity in either party to meet an order for costs was raised before me.

3. The father has been wholly unsuccessful in the appeal.  In these circumstances I am satisfied he should pay the mother’s costs of and incidental to the appeal.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland delivered on 30 September 2010.

Associate: 

Date:  30 September 2010