Kitsannis and Netopoulis & Anor
[2010] FamCAFC 214
•1 November 2010
Family Court Of Australia
| KITSANNIS & NETOPOULIS AND ANOR | [2010] FamCAFC 214 |
| FAMILY LAW - APPEAL – From a judgment of a Federal Magistrate delivered extempore – Controversy as to the duration of time the child is to spend with the maternal grandparents – Where it was a very limited and narrow controversy – Whether the Federal Magistrate failed to adequately deal with relevant statutory considerations and did not relate those considerations to the facts of the case – Whether the Federal Magistrate failed to give adequate reasons – Whether the Federal Magistrate failed to deal with some discrete factual matters – Where the outcome was well within the discretion of the Federal Magistrate – Appeal dismissed FAMILY LAW - COSTS – The Appellant to pay the costs of the First and Second Respondent |
| A v J (1995) FLC 92-619 Kennedy & Kennedy [2010] FamCAFC 195 Korban & Korban [2009] FamCAFC 143 Smith and Smith (1994) FLC 92-488 |
| Family Law Act 1975 (Cth) – s 60B, s 60CA, s 60CC, s 60CG, s 61DA, s 65C(ba) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) – s 60B, s 60CC(3)(b)(ii), s 60CC(3)(d)(ii), s 60CC(3)(f)(ii) Family Law Rules 2004 (Cth) – r 22.22 |
| APPELLANT: | Mr Kitsannis |
| FIRST RESPONDENT: | Ms Netopoulis |
| SECOND RESPONDENT: | Mr Netopoulis |
| FILE NUMBER: | MLC | 4463 | of | 2009 |
| APPEAL NUMBER: | SA | 91 | of | 2009 |
| DATE DELIVERED: | 1 November 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Boland, O’Ryan & Bennett JJ |
| HEARING DATE: | 5 May 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 October 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1126 |
Representation
| COUNSEL FOR THE APPELLANT: | Mr V.A. Morfuni SC |
| SOLICITOR FOR THE APPELLANT: | F Butera & Co Lawyers |
| COUNSEL FOR THE FIRST AND SECOND RESPONDENTS: | Mr D. Baker |
| SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS: | Cash & Stavroulakis Lawyers |
Orders
The appeal be dismissed.
The Appellant pay the costs of the First and Second Respondent of and incidental to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Kitsannis & Netopoulis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 91 of 2009
File Number: MLC 4463 of 2009
| Mr Kitsannis |
Appellant
And
| Ms Netopoulis |
First Respondent
And
| Mr Netopoulis |
Second Respondent
Reasons For Judgment
Introduction
This is an appeal by Mr Kitsannis (“the Father”) against orders of Federal Magistrate Bender pronounced in October 2009 regarding the parenting of his daughter (“the child”) who was born in April 2003.
The respondents to the appeal are Mr and Ms Netopoulis who are the maternal grandparents (“the maternal grandparents”) of the child. The child’s mother, Ms Kitsannis (“the Mother”), passed away in August 2005.
For reasons which we will explain, it is necessary to provide a detailed introduction to our reasons for judgment.
Before the Federal Magistrate, the maternal grandparents were the applicants and the Father was the respondent. The maternal grandparents were seeking to extend the time they spend with the child.
On 31 August 2005 Guest J made the following orders by consent:
1. That the following paragraphs of the Order dated the 27th April 2005 be discharged: 1, 2, 3, 4, 5, 6 and 7.
2. That the spousal maintenance order made the 18th May 2005 be discharged.
3. That the Maternal Grandparents (“the Maternal Grandparents”) be granted leave to join these proceedings as third parties.
4. That the Husband deliver the child […] born the […] 2003 (“the Child”) to the Maternal Grandparents’ home at no later than 4:30pm this day.
5. That the Child reside with the Husband from the 1st November 2005 after which date he shall have sole responsibility for the day to day care of the Child.
6. That the Husband have the sole responsibility for the long term care, welfare and development of the Child.
7. That until the 1st November 2005, the Husband have the following contact:
a.from 10:am [sic] Saturday the 3rd September until the commencement of child care on the 5th September 2005;
b.each alternate weekend from 10:00am Saturday until the commencement of child care on Monday starting the 17th September 2005;
c.each alternate Saturday from 10:00am to 5:30pm commencing the 10th September 2005; and
d.each alternate Wednesday from 5:30pm until 10:00am Thursday commencing the 14th September 2005.
8. That commencing 1st November 2005, the Maternal Grandparents have contact as follows:
a.each alternate weekend from 10:00am Saturday until 5:00pm Sunday commencing the 12th November 2005;
b.from 3:00pm Christmas Eve until 10:00am Christmas Day in each odd year;
c.from 10:00am until 4:00pm each Christmas Day in each even year;
d.for four (4) hours on each of the Child’s birthday and the mother’s birthday or from 4:00pm to 8:00pm;
e.from 4:00pm the Saturday preceding Greek Orthodox Easter Sunday until 4:00pm Easter Sunday in each odd year;
f.from 4:00pm until 8:00pm each Easter Sunday in every even year;
g.from 10:00am until 4:00pm each Mother’s Day and the Maternal Grandparents’ contact be suspended each Father’s Day commencing 10:00am Sunday; and
h.such other or further contact as may be agreed.
9. That all questions of holiday contact with the Maternal Grandparents be reserved until after the Child’s 5th Birthday.
10. That the Husband shall ensure that the Child continue to attend the present child care centre for the remainder of 2005.
11. That the Husband be responsible for travel arrangements associated with contact until the 1st November 2005.
12. That the Maternal Grandparents be responsible for travel arrangements associated with contact after the 1st November 2005.
13. That all applications in respect of child issues be removed from the pending cases list.
14. That the Parties have liberty to apply.
15. Certify for Senior Counsel.
16. That pursuant to S.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
On 22 May 2009 the maternal grandparents filed an application in the Federal Magistrates Court in which they sought the following orders:
1. THAT the child […] born […] 2003 live with the Father.
2. THAT until further Order the parties have equal shared parental responsibility for the long term care, welfare and development of the said child.
3. THAT the child live and communicate with the Maternal Grandparents as follows:
(A)on an alternate fortnightly basis
(i)from after school on Friday until before school on Monday;
(ii)from after school on Wednesday until before school on Thursday;
(B)for the first half of school term holidays in 2009 and each alternate year thereafter;
(C)for the second half of school term holidays in 2010 and each alternate year thereafter;
(D)for the first half of Christmas holidays in 2009 and each alternate year thereafter;
(E)for the second half of Christmas holidays in 2010 and each alternate year thereafter;
(F)alternating time for Easter holiday period commencing Easter 2010 and each alternate year thereafter;
(G)alternating time for New Years Eve period commencing 2009;
(H)for six hours on the child's birthday and Name day if it falls on the weekend;
(I) such further or other times as agreed between the parties; and
(J)the balance of Orders made on the 31 August 2005 by this Honourable Court, namely paragraphs 8 (b), 8 (c), 8 (e), 8 (g) and 8 (h).
4. THAT the Maternal Grandparents be allowed to attend and receive notification of functions at the said child's school.
5. THAT in the event that the said child is to be placed in childcare, that the Maternal Grandparents be allowed to look after [the child].
6. THAT the Father facilitate the said child telephoning the Maternal Grandparents as she wishes.
7. THAT the parties provide each other 48 hours notice if they require any changes to the time they spend with the child.
8. THAT the parties keep each other informed of any concerns thay [sic] may have with regards to the state of health of the child.
9. Such further or other Orders as this Honourable Court deems necessary.
On 23 June 2009 a response was filed by the Father in which he sought the following orders:
1. THAT the Child […] born [ … ] 2003 live with the Father.
2. THAT until further Order the Father have parental responsibility for the long term care, welfare and development of the said Child.
3. THAT the Maternal Grandparents have contact as follows:
(a)each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday commencing the 12th November 2005 [sic];
(b)from 3.00 pm Christmas Eve until 10.00 am Christmas Day in each odd year;
(c)from 10.00 am until 4.00 pm each Christmas Day in each even year;
(d)for four (4) hours on each of the Child's birthday and the mother's birthday or from 4.00 pm to 8.00 pm;
(e)from 4.00 pm the Saturday preceding Greek Orthodox Easter Sunday until 4.00 pm Easter Sunday in each odd year;
(f)from 4.00 pm until 8.00 pm each Easter Sunday in every even year;
(g)from 10.00 am until 4.00 pm each Mother's Day and the Maternal Grandparents' contact be suspended each Father's Day commencing 10.00 am Sunday;
(h)School term holidays from 5.00 pm Sunday to 6.00 pm the following Friday the first week of holidays and that weekend visits be suspended during the holidays;
(i)Christmas holidays from 5.00 pm Sunday to 6.00 pm the following Friday the final full week of holidays and that weekend visits be suspended during the holidays; and
(j)such other or further contact as may be agreed.
4. THAT the parties provide each other 48 hours notice if they require any changes to the time they spend with the Child.
5. THAT the parties keep each other informed of any concerns that may have with regards to the state of health of the Child.
6. THAT the parties not denigrate each other in the presence, or hearing of the Child.
7. Such further Orders as this Honourable Court deems necessary.
The Federal Magistrate had the benefit of a family report dated 21 August 2009. In the report the Family Consultant observed at paragraph 4 that during the interview process the Father indicated that he wanted the current arrangement in respect of the time the child spent with her maternal grandparents “altered to reflect a day visit on a monthly basis”.
In the family report the Family Consultant made the following recommendations:
27. [The child] to continue to live with her father, and spend overnight time with her Grandparents each alternate Saturday night.
28. [The child] to stay with her Grandparents for a week of the school holidays mid year and Christmas time.
29. [The maternal grandparents] to attend upon a Greek speaking Counsellor who can assist them come to terms with unresolved issues of grief and loss. [Ms M], phone [ … ]. [Mr G] -phone [ … ]. Alternatively the Grandparents may consider accessing services at the Greek Welfare Society, 9388 9998.
At the hearing before the Federal Magistrate the Father supported the recommendations of the Family Consultant and sought orders reflecting those recommendations.
On 21 October 2009 the Federal Magistrate made the following orders:
(1) The father have sole parental responsibility for the child […] born […] 2003 (“[the child]”).
(2) [The child] live with the father.
(3) [The child] spend time and communicate with the maternal grandparents as follows:
(a)each alternate weekend from after school Friday to 5:00pm Sunday;
(b)during school term, each Wednesday from after school to 6:00pm;
(c)for one week in the July school term holidays as agreed between the parties and failing agreement for the first week from 10:00am on the first Saturday to 10:00am on the second Saturday;
(d)for one week in the long summer vacation as agreed between the parties and failing agreement from 10:00am on January 10 to 10:00am on January 17 each year;
(e)from 3:00pm Christmas Eve to 10:00am Christmas Day in odd numbered years;
(f)from 10:00am to 4:00pm Christmas Day in even numbered years;
(g)for four hours on [the child]’s birthday and the mother’s birthday from 4:00pm to 8:00pm;
(h)from 4:00pm on the Saturday preceding Greek Orthodox Easter Sunday until 4:00pm on Greek Orthodox Easter Sunday in each odd numbered year;
(i)from 4:00pm until 8:00pm each Greek Orthodox Easter Sunday in even numbered years;
(j)from 10:00am to 4:00pm each Mother’s Day; and
(k)as otherwise as agreed between the parties.
(4) In the event [the child] is spending time with the maternal grandparents on the Father’s Day weekend, such time shall be suspended each Father’s Day from 10:00am;
(5) The father shall facilitate [the child] telephoning the maternal grandparents upon her reasonable request to do so.
(6) Whilst [the child] is spending time with the maternal grandparents, the maternal grandparents shall facilitate [the child] telephoning her father upon her reasonable request to do so.
(7) The maternal grandparents shall be permitted to attend [the child]’s end of year school concert, speech night and any concerts, performances or sporting events in which [the child] is a participant.
(8) The maternal grandparents shall be responsible for the travel arrangements associated with their time with [the child].
(9) In the event [the child] requires medical treatment whilst with her maternal grandparents they shall immediately notify the father.
(10) In the event [the child] suffers any serious illness or accident when with the father, he shall advise the maternal grandparents.
In the notice of appeal filed by the Father on 6 November 2009 he specified in paragraph 8 that he was appealing against orders 3 and 7 made on 21 October 2009.
In the event that his appeal was successful the Father sought the following:
The maternal grandparents have contact with the Child … as follows:
1. Each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday.
2. From 3.00 pm Christmas Eve until 10.00 am Christmas Day in each odd year.
3. From 10.00 am until 4.00 pm each Christmas Day in each even year.
4. For four (4) hours on each of the Child's birthday and the mother's birthday or from 4.00 pm to 8.00 pm.
5. From 4.00 pm the Saturday preceding Greek Orthodox Easter Sunday until 4.00 pm Easter Sunday in each odd year.
6. From 4.00 pm until 8.00 pm each Easter Sunday in every even year.
7. From 10.00 am until 4.00 pm each Mother's Day and the Maternal Grandparents' contact be suspended each Father's Day commencing 10.00 am Sunday.
In an amended notice of appeal filed on 1 April 2010 the Father again specified at paragraph 8 that he was not appealing against all of the orders made on 21 October 2009. However, the Father did not identify which of the orders made on 21 October 2009 he was appealing against. We therefore assumed that he was still only appealing against orders 3 and 7. In the amended notice of appeal, in the event that the appeal was successful, the Father sought the same orders he had sought in his original notice of appeal.
As to order 7 made by the Federal Magistrate, no submissions were made on behalf of the Father in relation to any ground of appeal that related to this order. We therefore proceeded on the basis that there was no complaint about order 7. We proceeded on the basis that the Father was appealing against paragraphs (a) to (k) of order 3.
In order to understand the extent of the controversy before us it became necessary to look at the orders sought by the Father in the amended notice of appeal, the orders made by Guest J and the judgment of the Federal Magistrate. We should not have had to undertake this exercise.
In order 1 of the amended notice of appeal the Father seeks that the child spend each alternate weekend from 10.00am on Saturday until 5.00pm on the following Sunday with the maternal grandparents. It is identical to order 8(a) made by Guest J. It was recommended by the Family Consultant at paragraph 27 of the family report. Order 3(a) made by the Federal Magistrate provides that the child spend each alternate weekend from after school on Friday to 5.00pm on the following Sunday with the maternal grandparents. Order 3(b) made by her Honour provides that during the school term the child spend each Wednesday from after school to 6.00pm with the maternal grandparents. The Father was therefore appealing against orders 3(a) and 3(b) made by her Honour.
In orders 2 and 3 of the amended notice of appeal the Father seeks that the child spend from 3.00pm on Christmas Eve until 10.00am on Christmas Day in each odd numbered year and from 10.00am until 4.00pm on Christmas Day in each even numbered year with the maternal grandparents. These orders are identical to orders 8(b) and 8(c) made by Guest J. They are also identical to orders 3(e) and 3(f) made by the Federal Magistrate.
In order 4 of the amended notice of appeal the Father seeks that the child spend four hours on each of the child’s birthday and the Mother’s birthday or from 4.00pm to 8.00pm with the maternal grandparents. This order is identical to order 8(d) made by Guest J and order 3(g) made by the Federal Magistrate.
In orders 5 and 6 of the amended notice of appeal the Father seeks that the child spend from 4.00pm on the Saturday preceding Greek Orthodox Easter Sunday until 4.00pm on Easter Sunday in each odd numbered year and from 4.00pm until 8.00pm each Easter Sunday in each even numbered year with the maternal grandparents. These orders are identical to orders 8(e) and 8(f) made by Guest J and orders 3(h) and 3(i) made by the Federal Magistrate.
In order 7 of the amended notice of appeal the Father seeks that the child spend from 10.00am until 4.00pm on each Mother’s Day with the maternal grandparents and that the maternal grandparents’ time with the child be suspended each Father’s Day commencing 10.00am on Sunday. This order is identical to order 8(g) made by Guest J and orders 3(j) and 4 made by the Federal Magistrate.
In the amended notice of appeal the Father sought no order in relation to the child spending any time with the maternal grandparents during school holidays. As we have observed above, the Father sought to appeal all of paragraphs (a) to (k) of order 3 of 21 October 2009.
Guest J made no orders for the child to spend time with the maternal grandparents during any school holiday period. However, his Honour did note at paragraph 9 “[t]hat all questions of holiday contact with the Maternal Grandparents be reserved until after the Child’s 5th Birthday”. The child attained the age of five years in April 2008.
In his response filed on 23 June 2009 the Father sought in orders 3(h) and 3(i) that the child spend from 5.00pm on Sunday to 6.00pm on the following Friday in the first week of the school holidays and from 5.00pm on Sunday to 6.00pm on the following Friday in the final full week of the Christmas holidays with the maternal grandparents.
As we have observed, in paragraph 28 of the family report the Family Consultant recommended that the child spend “a week of the school holidays mid year and Christmas time” with the maternal grandparents. We observe that in paragraph 8 of his affidavit sworn on 5 October 2009 the Father said that he believed that it would be in the best interests of the child if the recommendations in paragraphs 27 and 28 of the family report were “adopted by the parties and the Court to be final orders”. Then in paragraph 3 of the written case summary document dated 20 October 2009 filed on behalf of the Father for the purposes of the hearing before the Federal Magistrate, it was stated that the Father supported the recommendations in paragraphs 27 and 28 of the family report “being adopted by the parties and the Court to be final orders”.
Order 3(c) made by the Federal Magistrate provides that the child spend one week in the July school term holidays as agreed between the parties and failing agreement for the first week from 10:00am on the first Saturday to 10:00am on the second Saturday with the maternal grandparents. Order 3(d) made by the Federal Magistrate provides that the child spend one week in the long summer vacation as agreed between the parties and failing agreement from 10:00am on January 10 to 10:00am on January 17 each year with the maternal grandparents. In other words, her Honour made orders about school holiday periods as sought by the Father and as recommended by the Family Consultant. In these circumstances, there was no foundation for any complaint by the Father about the school holiday orders. However, it was only as a result of discussion which we initiated that this was clarified.
We are concerned about the manner in which this appeal was presented. The Father was represented before us by senior counsel. In the amended notice of appeal there are 15 grounds of appeal. The written summary of argument of the Father comprised eight pages.
During the hearing before us there was the following exchange with senior counsel for the Father (Transcript, 5 May 2010, pp 20 to 23):
O’RYAN J: Can I just clarify with you the limits of the - or the outer limits of the controversy. As I understand it, in your amended notice of appeal, in the event that you were successful, you seek the orders that are set out in part F which largely, am I right - and please correct me if I am in error - seek a continuation of the regime which was established by the original consent orders made by Guest J. Is that correct?
MR MORFUNI: I think that's what the document says. Yes your Honour.
O’RYAN J: For example, there is no provision for periods of time for the maternal grandparents with the child during school holidays, notwithstanding at the trial your client had supported what the family consultant recommended, which is what her Honour ordered.
MR MORFUNI: Yes. That certainly ---
O’RYAN J: So that is that an error in your amended notice of appeal?
MR MORFUNI: No, that's what the father desires, your Honour, but ---
O’RYAN J: But that's not what he put to the trial judge.
MR MORFUNI: No, it wasn't.
O’RYAN J: So what is his basis for now seeking to appeal against ---
BOLAND J: Can I just clarify that, because I was a little confused. I saw what was put in the response. Then I understood he shifted his position to be it was only to be once a month. He wanted it to be once a month and then he, having heard – I didn’t know whether it was having heard the family consultant’s evidence or having read her report, he seemed to resile from that position and come back to what the family consultant was recommending in her recommendations, which was a continuation of the status quo and some grief counselling for the maternal grandparents.
O’RYAN J: And also, in paragraph 3 of that case outline document ---
MR MORFUNI: Certainly at trial ---
O’RYAN J: --- he supported the school holidays
MR MORFUNI: Yes. At trial the father supported the recommendation made by the consultant, that's clear.
O’RYAN J: Which included those school ---
MR MORFUNI: Which included some provision for school holidays
O’RYAN J: Well, one weekend in the midterm and one week in Christmas, which is what her Honour ordered. Her Honour made an order, am I correct, consistent with that recommendation which your client supported?
MR MORFUNI: I thought the ...
O’RYAN J: Or am I in error?
MR MORFUNI: What he was prepared was for one week per annum of school holiday contact but ----
BOLAND J: Paragraph 3 on page 2 of that case outline document we discussed earlier.
MR MORFUNI: Well, that's so, your honour. I apologise. Yes.
O'RYAN J: And that what her Honour ordered, isn’t it, about school holidays, or am I wrong?
MR MORFUNI: That is what she ordered but the addition of the extra week.
O’RYAN J: We will come to that in a moment. I am trying to identify the controversy.
MR MORFUNI: Right.
O’RYAN J: Does there remain, or is there, in those circumstances, a controversy about time during school holidays?
MR MORFUNI: Well, there wasn't at trial and I can't maintain that there can be now, your Honour. Yes.
O’RYAN J: All right. So the controversy then is in relation to the amount of time during the school term.
MR MORFUNI: That is so.
O’RYAN J: And there's two aspects of it. It comes down to: should it start on the alternate weekends, after school on Friday as opposed to, is it, 10 or 9?
BOLAND J: 10 – at 10 o'clock on Saturday.
MR MORFUNI: 10 o’clock Saturday morning, your Honour.
O’RYAN J: 10 on a Saturday morning.
MR MORFUNI: Yes
O’RYAN J: Okay. And the family consultant conceded that an extension of that was a possibility.
MR MORFUNI: Yes she did your Honour. Yes.
O’RYAN J: In relation to the mid-week - that is the after school for three hours or whatever the time would be, on a Wednesday, the family consultant dealt with that separately at pages 147 and 148 of the appeal book, the transcript.
MR MORFUNI: Yes. The questions ---
O’RYAN J: If you look at the top of page 148, her Honour put to the family consultant, continuing from page 147, I am sorry, this idea of picking her up after school and dropping her back at 6 am- 6 o'clock, I am sorry. Okay? And then, in the next question, her Honour seems to go on to say why that might assist the relationship and so on, to which the family consultant replies:
I think that's a good plan your Honour.
MR MORFUNI: She does, your Honour
O’RYAN J: Okay. So, clearly, in relation to the Wednesday, in fact that was adopted by - or some idea of a Wednesday was adopted by the family consultant
MR MORFUNI: Well, she thought it – well, yes, it wouldn’t be a bad idea.
O’RYAN J: So the controversy really, on one view, comes back to, should it be Friday after school or10 am on Saturday.
MR MORFUNI: The mere fact that the consultant adopted the suggestion that it might be a good idea to have a midweek three hour period, in my submission, doesn’t absolve the ---
O’RYAN J: No. I understand that. All I.
MR MORFUNI: Sorry, your Honour.
O’RYAN J: All I am doing ---
MR MORFUNI: Yes, but that –that’s so.
O’RYAN J: --- is trying to find out what’s the limited of the controversy.
MR MORFUNI: That’s so, your Honour. Yes, that’s so.
O’RYAN J: Okay. Thank you very much.
The analysis that we have undertaken above clearly demonstrates that the Father was only appealing against orders 3(a) and 3(b) made by the Federal Magistrate. The controversy was therefore whether the alternate weekend time the child spends with the maternal grandparents would commence on Friday after school or Saturday morning at 10.00am and whether the child would spend approximately three hours with the maternal grandparents after school each Wednesday. Put another way, the controversy was whether in each fortnightly period the child spend two nights and approximately six hours with the maternal grandparents in lieu of one night. It was a very limited and narrow controversy that unfortunately required adjudication. It could be argued that, in the circumstances of this case, the controversy involved no legal issue which could found appealable error: see Kennedy & Kennedy [2010] FamCAFC 195 (30 September 2010) per Boland J at paragraph 80.
We observe that during cross-examination the Family Consultant described the child as a “lovely little girl” who is “[v]ery well cared for” by the Father and the maternal grandparents (Transcript, 21 October 2009, p 32). The Family Consultant also made clear that she “had no criticism” of the maternal grandparents and that she was satisfied that they “were loving grandparents” who “care for” the child (Transcript, 21 October 2009, p 30). It is important that the child maintains a close relationship with both her paternal and maternal family.
We also observe that in her reasons the Federal Magistrate observed at [3]:
Sadly and unfortunately in this case, the father and the maternal grandparents just do not get along. There is a very high level of animosity between them and, to put it quite bluntly, they do not like each other; and that is very sad. To their credit, however, at least to date they appear to have shielded [the child] from this animosity and I can only hope that they continue to do that into the future.
In the family report the Family Consultant at paragraphs 1, 19 and 26 gave evidence about the conflict between the Father and the maternal grandparents. At paragraph 21 of the report the Family Consultant expressed the opinion that “the primary issue now is for the grandparents and the father to focus on [the child]’s physical emotional social and psychological needs”.
Background
The maternal grandfather was born in 1935 and the maternal grandmother was born in 1948.
The Father was born in 1960 and the Mother was born in 1968.
The Father and the Mother were married in February 2002.
The child was born in April 2003.
The Father and the Mother separated in October 2004. At that time, the Mother and the child commenced to live with the maternal grandparents where they remained until the Mother passed away.
The Federal Magistrate observed at [2] that the Father did not challenge the arrangements in relation to the child living with the Mother at the maternal grandparents’ home, and her Honour accepted that “he did so out of his concern to minimise the stress on [the Mother], and to enable [the Mother] to have [the child] by her side as long as was possible”.
The Mother passed away in August 2005 after being diagnosed with cancer.
On 31 August 2005 Guest J made the consent orders set out above. In her reasons the Federal Magistrate observed:
4. Orders were made by Guest J on 31 August 2005 which put into place arrangements as between the father and the maternal grandparents in relation to the living arrangements for [the child]. In summary, they provided for the father to have parental responsibility for his daughter, for [the child] to live with him, and for [the child] to spend time with her maternal grandparents each alternate weekend from 10.00 am Saturday till 5.00 pm Sunday, as well as very sensible provisions for the special occasions in [the child]’s life, being Christmas, birthdays, Greek Orthodox Easter, Mother’s Day, et cetera. By and large those arrangements have proceeded without incident for [the child] since that time. (emphasis added)
The child was aged two years and four months at the time of the orders of Guest J and prior to those orders she had spent a considerable period of time in the care of the maternal family.
On 13 February 2008 Guest J made consent orders in relation to outstanding property proceedings between the Father and the Mother’s estate.
As we have already observed, on 22 May 2009 the maternal grandparents filed an application in the Federal Magistrates Court. On 15 May 2009 a short affidavit was sworn by the maternal grandmother.
As we have also observed, on 23 June 2009 a response was filed by the Father. On 21 June 2009 an affidavit was sworn by the Father.
On 5 August 2009 the Family Consultant conducted interviews with the Father, the maternal grandparents and the child.
As we have observed, on 20 August 2009 the family report was completed. In the report the Family Consultant made the recommendations which we have set out above. In the report the Family Consultant said:
18. [The child] is at the centre of a dispute between her father, [the Father], and her Maternal Grandparents [the maternal grandparents]. The Grandparents are requesting that [the child] be allowed to increase their time with [the child] from Friday after school until Monday mornings, on alternate weekends, and also overnight from Wednesday after school until Thursday mornings every second week.
19. This is a particularly sad case, and one which involves the tragic and untimely death of [the Mother], [the child]’s mother 4 years ago. However, apparently there was a long and protracted conflict between the father and grandparents preceding [the Mother]’s death, possibly commencing even prior to the wedding when a disagreement erupted over [the Father]s’ suggestion that [the Mother] sign a pre-nuptial agreement. There may also have even been some difficulties experienced with the nuances of traditions and customs of both sides of the extended family members. What is apparent, is that that the relationship between the parents themselves became irreconcilable. The conflict intensified when [the Mother] became terminally ill. She relocated with [the child] to her parents’ house, perhaps sharing with her parents her own distressing experiences of her failed marriage, her terminal illness, and the concern she felt for her toddler aged daughter.
20. [The maternal grandparents] continued to care for their daughter and [the child], in the 12 months leading up to [the Mother]’s death. They vigorously maintained that [the Father] did not attempt to provide any emotional, physical or psychological support for [the Mother], or show any interest in spending time with [the child]. On the other hand, [the Father] claimed that he was not informed how ill his wife was in the early stages of [the Mother]’s illness, nor was he allowed to spend any time with [the child], despite his repeated attempts to do so. He also claimed that by the time he did become aware of the seriousness of [the Mother]’s ill health she was extremely unwell, and he considered that to oppose her wishes at that late stage in her illness would cause her further anxiety. There is no way of proving or disproving those past claims and counter claims, and additional exploration of those issues for this report risks alienating family members even further.
21. The primary issue now is for the grandparents and father to focus on [the child]’s physical emotional social and psychological needs. There were claims that notifications were made to the Department of Human Services (DHS) in respect of [the Father]’s care of [the child]. However there are no reports from DHS on file, and presumably any concerns raised at that time were dealt with by DHS, and the matter was closed without substantiation. [The maternal grandmother] was adamant that [the Father] caused bruising to [the child]'s hip and leg in 2008, but [the child] did not disclose any occasions when her father hurt her. She gave the impression, both in her verbal statements and in her various drawings, that her father was a caring, loving individual, and one to whom she was very firmly attached. She identified her father as the most important, most loved and central figure in her life, and, given the death of mother 4 years ago, in the Consultant’s opinion it is imperative that at 6 years of age this child is permitted to recover from the past trauma of her mother’s death, move forward and enjoy her childhood free from adult issues without the additional loss of a loved father.
22. [The Mother] remains a central figure in [the child]’s life, and this is a healthy and acceptable emotion for [the child] to experience, provided that, firstly, the memory of her mother is not all consuming and does not interfere with her every day life, and, secondly, that [the child] is not encouraged to believe that any family member was responsible for her mother’s death. [The child] has many emotional phases to navigate throughout the remainder of her childhood, and it should be remembered that she not only lived through and shared the house with her terminally ill mother, culminating in her mother’s death, but, during those crucial 12 months prior to her mother’s death, [the child]’s father suddenly disappeared from her life. She would not have understood this situation, and would have been too young to express her feelings at that time.
23. The question then before the Court is whether or not [the child]’s time with her Grandparents should be increased, and that with her father significantly decreased. [The child] at 6 years of age is too young to be asked or expected to provide an opinion on this important issue, and expecting this of her would be grossly unfair. It is entirely understandable that the Grandparents want extra time with their granddaughter because they love her and miss her when she is not in their company. However, another reason for the grandparent’s application for increasing their time with [the child] appears to be that they are concerned for the welfare of [the child] when she is with her father. Whilst as [the child]'s grandparents they hold a special significance in her heart and life, there is no evidence to substantiate their concerns that [the child] is not safe, not sufficiently loved, nor provided for satisfactorily by her father. Having said that the Grandparents commitment to [the child] was very apparent. Although not stated, the Grandparents may have promised their daughter that they would remain closely involved in [the child]’s life, and like any parent the thought of not fulfilling a promise to their child is inconceivable.
24. However, in the Consultant’s opinion the present arrangement of [the child]’s spending one over night visit with her grandparents on alternate weekends appears to be a practical and satisfactory arrangement which is enjoyed by [the child]. Perhaps the number of hours on those two days could be slightly extended, thereby enabling [the child] to spend extra hours at her Grandparent’s house. The father's verbal request during interviews that the grandparents’ time should be reduced to a few hours monthly seems to be unwarranted, and perhaps is a reflection of his irritation with the Application of the grandparents, and with their persistent raising of unfounded allegations in his view. His reasoning that the current alternate Saturday night arrangement prevents [the child] from attending parties and other social engagements could well be true, but many children who are subject to a Court Order alternate between families quite successfully on weekends, and events such as children’s parties are managed quite satisfactorily. The subject of shared decision making responsibility is a complex one. It is difficult to imagine how shared parental responsibility would be successful in this case even if it were warranted, when the parties cannot even look at each other, or communicate in a reasonable manner. (emphasis added)
25. The father’s concern that he has no knowledge of the level of care provided for [the child] by the grandparents should be eliminated through more effective communication or at the very least a communication book. [The maternal grandparents], have been an integral part of [the child]’s life, and to deprive her of their current involvement to the extent suggested by the father seems unjustifiable. The Grandparents also provide [the child] with another dimension of her extended family, and a subtle sense of identity.
26. The conflict between the adults is extremely entrenched and enduring, and contains issues which will be very difficult for the parties to resolve. Mediation would assist both sides to examine the past proceedings from [the child]’s perspective, and would assist them to understand its deleterious effect on [the child]. Although defining the amount of hours this child spends with the father and her Grandparents is the primary and significant issue, in the Consultant’s opinion almost of equal importance is the adults meeting the challenge of resolving their dispute, and allowing this little girl to enjoy both houses without the ongoing conflictual overtones. Each household provides [the child] with unique and valuable opportunities to share nurturing relationships that enhance her emotional development. In the future both [the Father] and [the maternal grandparents] need to provide [the child] with the support that she needs to continue enjoying the relationships throughout her childhood without experiencing any further losses.
We observe that in relation to the alternate weekend time commencing on Friday afternoon, the Family Consultant gave the following evidence (Transcript, 21 October 2009, pp 32 to 33):
[MR BAKER] Now, I’m asking you why. Why did you consider that at that time? Why would it be her best outcome? Well, let me rephrase this question slightly: assuming that instead of the grandparents having the child from Saturday morning until the Sunday night they had her from the Friday night till the Sunday night. Why would that change either way, either arrangement, why would it not be in the child’s best interests?‑‑‑That’s a possibility. That was a possibility.
Yes, you see, I don’t quite understand why at the end of the day you didn’t think that it was just as practical to put in place what the grandparents wanted, the extra time they had asked for?‑‑‑I hear what you’re saying, that’s what I believed at the time but I’m listening to what you say. (emphasis added)
We also observe that in relation to the child spending time with the maternal grandparents on Wednesday afternoon, the Family Consultant gave the following evidence (Transcript, 21 October 2009, p 34 to 35):
HER HONOUR: It was fairly apparent, can I say, in the evidence that was given by [the Father] that if the relationship that he had with the maternal grandparents was a positive one, he’d be much more open to there being extra time? Yes, that’s…
To his credit he was quite honest and open about that. It was his evidence that he usually returns from work somewhere around, 5.30 and that [the child] is looked after during the school week by the paternal family so she goes to either her paternal grandparents or to an aunty or to a cousin, all that sorted – if I’m not attracted to the idea of a midweek overnight time and I’ll be frank, I’m not particularly attracted to that for a six-year old, it’s hard enough getting up to school as it is, would there be any reason if I were to consider looking at this in other ways that giving the maternal grandparents an opportunity to pick her up from school and look after her and drop her back to dad at 6 o'clock for example on one night a week would not be something that would work for [the child]?‑‑‑Yes, your Honour.
Also assist the relationship for the grandparents and share the – you know, it’s not unusual for children who are being looked after by their families fortunately for [the child] when one of the parents is working, is there any reason that that would not be a positive for [the child] and enable her to see her grandparents more than just once a fortnight?‑‑‑I think that’s a good plan, your Honour.
Okay, thank you, and finally in relation to the holidays you’ve recommended basically two lots of one week during the year with grandma and grandpa and then otherwise the arrangements to be put in place; is there any particular reason you identified that as being sufficient holiday time, taking on board dad’s got to have his four weeks and other people, etcetera, you’re comfortable that that’s age appropriate for [the child] at this time?‑‑‑Yes. (emphasis added)
On 25 September 2009 a further affidavit was sworn by the maternal grandmother. On 5 October 2009 a further affidavit was sworn by the Father.
On 19 October 2009 a written case summary document was filed on behalf of the maternal grandparents. On 20 October 2009 a written case summary document was filed on behalf of the Father.
On 21 October 2009 the hearing commenced at approximately 10.00am and finished at about 1.00pm.
We observe that at the commencement of the hearing no opening addresses were given on behalf of the parties. During the hearing the maternal grandmother and the Father were briefly cross-examined. The Family Consultant was also briefly cross-examined. No final submissions were made on behalf of the parties.
The Federal Magistrate then delivered extempore reasons for judgment and made the orders the subject of this appeal.
On 23 November 2009 the Father filed an application for a stay of the orders made on 21 October 2009. On 1 December 2009 the Federal Magistrate dismissed the application
The Reasons Of The Federal Magistrate
After very briefly setting out some relevant background the Federal Magistrate at [5] to [7] described what was sought by the maternal grandparents and at [8] summarised what was sought by the Father.
In relation to the order sought by the maternal grandparents that “until further Order the parties have equal shared parental responsibility for the long term care, welfare and development of the said child” the Federal Magistrate observed at [9]: “I made it quite clear this morning that that was not an order that I would contemplate making and, to their credit, when the matter commenced before me earlier today it was not an application that they pursued. However, the maternal grandparents did pursue the increase in time with [the child] that I have just outlined”.
The Federal Magistrate at [10] to [12] briefly described the evidence and contentions of the maternal grandmother. The Federal Magistrate at [13] to [15] briefly described the evidence and contentions of the Father and also some aspects of his arrangements for the care of the child.
The Federal Magistrate at [16] to [20] set out some of the evidence and opinions of the Family Consultant.
The Federal Magistrate at [21] referred to Part VII of the Family Law Act 1975 (Cth) (“the Act”) and set out the terms of s 60B and also s 60CA.
The Federal Magistrate then said:
23. So what are the best arrangements for [the child] based on what are her best interests? Mr McConchie quite properly pointed out in the documentation provided to me that a great deal of the Act refers to the importance of promoting the relationship between the children and both their parents. Sadly, in this case, the reality is that [the child] only has one surviving parent. But the Act is also very clear, and was actually specifically amended in 2006, to ensure that the court promotes the relationship children have with the other important people in their lives and in particular their grandparents. I refer to section 60B(2)(b) above and to section 60CC(3)(b) of the Act which requires the court to consider the nature of the children’s relationship with their grandparents.
24. There is no right or wrong answer in this matter, and that always makes it extraordinarily difficult for me when I am asked to make these decisions when, in circumstances as we have here, the important adults in [the child]’s life are unable to communicate with each other. [The child] is only six years of age. She has lived primarily in her father’s care now for over four years. Her father is her primary attachment. Her father is going to continue to remain [the child]’s primary carer and to be her primary attachment, and probably to be the most important adult in her life. That is closely followed by the other important adult relationships that she has. They include, of course, her paternal extended family, and I am sure she is loved and loves her paternal grandma and grandpa, her aunties, her uncles and her cousins.
25. But the other reality for [the child] is that she has a very close relationship with her maternal family and she needs to know about her mother and continue her relationship with her mother’s family. It is, I thought, to everyone’s credit that when [the child] was talking to [the Family Consultant] she spoke openly of her mum. And whatever might be the views of the maternal family in relation to the paternal family, it is quite clear to me that they allow and encourage [the child] to speak of and to acknowledge the importance of her mother now and into the future. It is important that [the child] continues to be allowed to spend ongoing proper time with her maternal family so that that positive relationship continues, and as she gets older and has more questions that she has that opportunity to explore and extend that relationship.
26. I have thought long and hard about what sort of orders I should make today that I believe will enable all of [the child]’s important relationships to continue to prosper and to be such that they do not continue to cause stress for [the child]. As I said, she is only six years of age. I am not of the view that she needs to be spending overnight midweek time other than with her dad at this point in time. I am, however, of the view that she could be spending a little more time with the maternal family, albeit not anywhere probably to the extent that they would like.
The Federal Magistrate at [27] set out the orders she proposed to make and concluded:
28. That latter order does not mean the father needs to ring if [the child] has got a tummy ache or she has got a cold, or she is having a bad day. I mean a serious illness that requires medical intervention to the hospital level. If she is very sick, then it is appropriate that the maternal grandparents are advised of that fact.
29. They are the orders that I am making. I do have one other comment that I would like to make at this point in time. In the family report prepared by [the Family Consultant] in paragraph 26 she makes some very, very telling comments. She says the following:
“The conflict between the adults is extremely entrenched and enduring, and contains issues which will be very difficult for the parties to resolve.” (italics in original)
30. She then goes on to say that:
“Although defining the amount of hours this child spends with the father and her grandparents is the primary and significant issue, in the consultant’s opinion almost of equal importance is the adults meeting the challenge of resolving their dispute, and allowing this little girl to enjoy both houses without the ongoing conflictual overtones. Each household provides [the child] with unique and valuable opportunities to share nurturing relationships and enhance her emotional development.
In the future, both [the Father] and [the maternal grandparents] need to provide [the child] with the support that she needs to continue enjoying the relationships throughout her childhood without experiencing any further losses.” (italics in original)
31. I know that the hurts that the families have suffered cannot be easily fixed or mended but, quite bluntly, you are the adults and I ask you, on [the child]’s behalf, to sit down and have a real look at yourselves and contemplate how you can better deal with each other to ensure that this beautiful little girl is not caused any further hurt or pain or loss through your actions. I cannot make orders about that. Only you as adults can look at yourselves and make that decision because, if you can do that and if your families can do that, then your daughter and your granddaughter will thank you for as long as she lives. (emphasis in original)
Relevant Principles
This is an appeal from a discretionary judgment and the principles to be applied are well established: see House v The King (1936) 55 CLR 499; De Winter and De Winter (1979) FLC 90-605; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513; AMS v AIF (1999) 199 CLR 160; Cross v Beaumont (2008) 39 Fam LR 389; and Korban & Korban [2009] FamCAFC 143 (13 August 2009).
In determining an appeal in respect of a decision involving a discretionary judgment, there is a strong presumption in favour of the correctness of the decision. Before an appellate court reverses a decision of a trial judge founded upon the exercise of a judicial discretion, it must be satisfied that the trial judge was plainly wrong so that his or her decision was no exercise of the discretion. In House v The King Dixon, Evatt and McTiernan JJ said at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow Stephen J said at 519-520:
While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Grounds Of Appeal
Introduction
At the outset we observe that the orders of Guest J were made in August 2005 and the hearing before the Federal Magistrate was in October 2009. It was not contended by the Father that the application of the maternal grandparents should be dismissed because they had not established a change in circumstances since August 2005: see Rice and Asplund (1979) FLC 90-725.
We observe that in grounds 1 and 6 it was contended that the effect of the orders of the Federal Magistrate was that the child will spend 110 days each year with the maternal grandparents. This was also referred to by senior counsel for the Father during his submissions (Transcript, 5 May 2010, p 11). It was never explained how this number of days was calculated. We have already observed that the effect of the orders was that in each fortnightly period the child will spend two nights and six hours with the maternal grandparents, and presumably other members of the maternal family, and then two weeks of the school holidays.
The grounds of appeal are as follows:
1. The period of time the Child is to spend with the maternal grandparents, approximately 110 days per year, is out of proportion with the time a child would normally spend out of her parents' care and responsibility and not in the child's best interests given due consideration prescribed in Part VII of the Family Law Act 1975 (Cth) (the Act).
2. In the grandparents' application their rights were implied to be under Section 60CC(2)(a) of the Act. This was incorrect [sic] this section which is the “primary consideration” under the Act relates to "parents" not other parties such as grandparents.
3. We submit that secondary considerations described in Section 60CC(3)(a) “the expressed views of the child” and ss 60CC(3)(a) the nature of the relationship to grandparents prescribed in Potts & Bims and Ors [2007] Fam CA 394 (4 May 2007) have not been followed or given too much weight. (emphasis added)
4. The relevant principles pursuant to Part VII of the Act described several recent Family Court decisions discussed in Samson & Jacks [2008] Fam CA 176 (19 March 2008) by O'Ryan J have not been addressed in the Federal Magistrates Court decision.
5. Magistrate Bender has given too much weight to the personal grief of the maternal grandparents in coming to her conclusion of what is in the best interest of the Child.
6. Magistrate Bender has failed to take into account that the approximately 110 days per year given to the maternal grandparents will have a severe impact on the academic and social development of the Child.
7. Magistrate Bender has failed to take into account that the Child needs a stable family environment.
8. The current Order will undermine the Father’s parental role and responsibilities to the Child.
9. The Learned Trial Judge failed to give any or any adequate reasons for her conclusion that it was in the best interests of the Child that she make the orders that she did.
10. The Learned Trial Judge failed to give any or any adequate reasons for her conclusion that it was in the best interests of the Child to increase the time she spent with the Respondents and decrease the time she spent with her father and the paternal extended family.
11. The Learned Trial Judge failed to undertake any or any adequate evaluation of the primary or additional considerations required to be taken into account by her under the Act in arriving at her conclusion that it was in the best interest of the Child to make the orders that she did.
12. The Learned Trial Judge erred in that she posed the wrong question for herself in positing the question for determination as being: “So what are the best arrangements for [the child] based on what are her best interests” when the real question to be determined, having regard to the facts of the case was: “Is it in the best interest of the Child to increase the time she spends with the Respondents and decrease the times she spends with her father [sic].
13. The Learned Trial Judge erred in that she failed to articulate which of the relevant considerations she relied upon in arriving at her conclusion that it was in the best interests of the Child to make the orders that she did.
14. The Learned Trial Judge failed to give any or any adequate regard to the concern expressed by the [Family] consultant in paragraphs 16 and 21 of her report.
15. The orders made by the Learned Trial Judge were against the evidence and the weight of the evidence.
In the written submissions of the Father the grounds were argued in six categories. The first category comprised grounds 1 to 8 inclusive and the second category comprised grounds 9 to 11 inclusive. The remaining grounds were separately argued.
In relation to how the appeal was presented to us, we observe that in many instances the submissions on behalf of the Father bore no resemblance to the grounds of appeal. The submissions made no specific reference to each ground of appeal in the order in which they are set out in the amended notice of appeal. Further, the submissions did not clearly identify the argument being put with a specific ground of appeal.
As well, no attempt was made to explain why grounds 1 to 8 were related and form one category of complaint and grounds 9 to 11 are a separate category. As we have already observed, none of grounds 1 to 8 and 9 to 11 were discretely identified in the written submissions. We also observe that there is a considerable overlapping and repetition of a number of the alleged complaints.
We observe that r 22.22 of the Family Law Rules 2004 (Cth) provides:
(1) Each party must file and serve a summary of argument and a list of authorities to be relied on:
(a) or the appellant — at least 28 days before the first day of the sittings in which the appeal is listed for hearing; and
(b) or the respondent and any independent children’s lawyer — at least 7 days before the first day of the sittings in which the appeal is listed for hearing.
Note The Court may shorten or extend the time for compliance with a rule (see rule 1.14).
(2) For subrule (1), a summary of argument must:
(a) set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on;
(b) set out the orders sought;
(c) not exceed 10 pages;
(d) have all paragraphs numbered consecutively;
(e) be signed by the lawyer who prepared the summary or by the party; and
(f) include the signatory’s name, telephone number, facsimile number and email address (if any) or document exchange number (if any) at which the signatory may be contacted.
Note For the number of copies of a document to file, see rule 24.08.
Rule 22.22(2)(a) was not complied with.
During the hearing before us there was the following exchange between the Presiding Judge and senior counsel for the Father (Transcript, 5 May 2010, pp 3 to 4):
MR MORFUNI: Yes, you Honour. The first matter, your Honour, is this, that the Act requires the court, in determining an issue such as that involved in this case, to have regard to what are referred to as the primary and additional considerations, and one of the real issues in this case is whether in fact her Honour discharged that obligation by having regard to the matters listed in the legislation. In relation to the primary considerations, there is really only one that was relevant, and that was in relation to the father, because the grandparents aren’t the parents of this child, and I have referred your Honour to the authorities where it is accepted that those provisions do not apply to non-parents. So that, in effect, the only primary consideration relevant was in favour of the father in this case.
The next matter, your Honour, is really what is a task of the trial judge in a case such as this, and it is not simply to, in my submission, recite the legislation and then have the persons who read the judgment infer that in fact all of the matters which the legislation says the judge must consider have in fact been considered, and one of the complaints made about the judgment in this case, your Honour, is that when one reads it, in fact it is not apparent that the trial judge has undertaken the task of considering each of the separate matters that are required to be considered. As I say, in relation to the primary consideration, there couldn’t be any issue that it favoured the father.
In relation to the other additional considerations, the trial judge did not take any step to have regard to what could be said to be the countervailing propositions. In other words, whilst, as our learned friend would have it, the trial judge certainly did state the question as what is in the best interests of the child, but, in my submission, that is really stating a motherhood question, because a real issue in this case is not what is in the best interests of the child in a vacuum but, really, is it in the best interests of the child to reduce the amount of time that she was able to spend with her father and her paternal extended family and increase the amount of time that she was able to spend with her maternal grandparents, and that issue really wasn’t dealt with by the trial judge. To that extent, there is an error, an appellable error, and - - -
BOLAND J: Where do you say that comes into your grounds? I mean, ground 3, you are certainly talking about – or, ground 2, the primary consideration, and then – although the way it is framed, ground 3 is really sort of framed as a submission, but I take it as a ground, but - - -
MR MORFUNI: If your Honour goes to ground 9 of the amended grounds of appeal - - -
BOLAND J: I thought that that is – you are really going to a reasons ground, aren’t you, that her Honour failed to give adequate reasons, or you can’t discern the path by which she considered the matters in section 60CC(3) - - -
MR MORFUNI: That’s so.
BOLAND J: ---which were relevant to this application, which she was bound to consider in considering best interests.
MR MORFUNI: Yes. It is certainly relevant to that issue, but if your Honour goes to ground 11, where the complaint is, or the ground is that:
The learned trial judge failed to undertake any or any adequate evaluation of the primary or additional considerations required to be taken into account by her under the Act in arriving at her conclusion that it was in the best interests of the child to make the orders that she did. (italics in original)
BOLAND J: So you would say this is now the fundamental plank of your appeal?
MR MORFUNI: That’s so, yes.
BOLAND J: Or the principal plank of your appeal
MR MORFUNI: Yes, your Honour.
There was then the following further exchange (Transcript, 5 May 2010, p 10):
O’RYAN J: Can I summarise it by saying that there are really just two significant complaints by you: (1) the failure by the trial judge to have regard to the relevant statutory considerations, (2) the failure to give adequate reasons.
MR MORFUNI: Yes.
O’RYAN J: And then there are some particulars relied upon by you to support each of those grounds.
MR MORFUNI: Well, I think that is a fair summary, your Honour, in terms of the reasons supplied by her Honour in this case, with the caveat that the first ground obviously encompasses issues which, it is submitted, her Honour should have considered a bit so that it is a two-pronged complaint in effect, that, in respect to some of the issues which she did consider, she didn’t consider them adequately in terms of weighing them up, and, in relation to some of the other issues, she didn’t consider them at all.
In all the circumstances, we do not propose to deal seriatim with the grounds of appeal. In our view, there are perhaps three broad areas of complaint. First, that the Federal Magistrate failed to adequately deal with relevant statutory considerations and did not relate those considerations to the facts of the case. Second, that the Federal Magistrate failed to give adequate reasons. Third, that the Federal Magistrate failed to deal with some discrete factual matters.
First and second areas of complaint
In the written submissions of the Father, in relation to grounds 1 to 8 it was submitted at paragraph 6 that in determining the orders she should make, the Federal Magistrate was obliged to regard the best interests of the child by reference to the considerations set out in s 60B and s 60CC of the Act. However, given that the applicants were not parents of the child a number of statutory provisions did not apply and Potts & Bims and Ors [2007] FamCA 394 (4 May 2007) per Moore J; Samson & Jacks [2008] FamCA 176 (19 March 2008) per O’Ryan J and Jacks & Samson (2008) FLC 93-387 per Full Court (Coleman, Boland & Stevenson JJ) were cited.
We do not propose to undertake any detailed consideration of the cases cited above, particularly as no detailed consideration was given in the submissions of the Father to the various statutory provisions. However, it is relevant to consider the provisions of Pt VII of the Act that apply in circumstances where one of the parties to parenting proceedings is not a parent of the child.
Section 65C(ba) of the Act provides that a grandparent of a child may apply for a parenting order. Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that the court may make such parenting order as it think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration. In determining what is in the best interests of a child it is necessary to consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).
It is also necessary to have regard to the objects of Pt VII of the Act described in s 60B(1) and the principles expressed in s 60B(2) underlying the objects. As to the objects of Pt VII, s 60B(1)(a), (c), and (d) do not apply. Section 60B(1)(b) does apply. As to the principles underlying the objects, s 60B(2)(a), (c) and (d) do not apply. However, s 60B(2) (b) and (e) do apply.
As to the two primary considerations in s 60CC(2) of the Act, and the additional considerations in s 60CC(3), Moore J observed in Potts & Bims at paragraph 8 that the use the word “parent/s” in a number of the considerations operates to exclude them in proceedings between a parent and non-parent. Section 60CC(2)(a) does not apply and so also 60CC(3) (c), (e), and (i) do not apply.
We observe that in Potts & Bims Moore J observed at paragraph 8 that it does not mean that “those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]”.
In Aldridge & Keaton (2009) FLC 93-421 the Full Court (Bryant CJ, Boland & Crisford JJ) at paragraph 112 adopted the observations of Moore J in Potts & Bims at paragraph 8 in relation to “the relevant legal principles to be applied when determining a parenting application which involves a non parent/s”. The Full Court observed at paragraph 111 that s 60CC(2)(m) of the Act “gives a broad opportunity to a court to consider many diverse matters relevant to the welfare of a child, and may have particular relevance when dealing with an application by persons other than a parent”.
Section 60CG of the Act does apply and requires that a court ensure that any order is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) of the Act, which provides that when making a parenting order a court must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child, does not apply. It follows that 65DAC and s 65DAA(1) do not apply.
We observe that in Potts & Bims Moore J observed at paragraph 8:
On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.
We also observe that in Samson & Jacks the trial Judge observed at paragraph 27 that “depending on the facts a court may come to the conclusion, taking into account all relevant considerations, that it is in the best interests of a child that a party who is not a parent have what is equal or substantial and significant time with a child”.
Finally, we observe that in Samson & Jacks the trial Judge observed at paragraph 29 that “[s]ignificant changes relating to grandparents and parenting orders were introduced into the Family Law Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)” and that there is “specific reference to “grandparents” in ss 60B, 60CC(3)(b)(ii), 60CC(3)(d)(ii) and 60CC(3)(f)(ii) of the Act”.
In summary, the task of the Federal Magistrate in applying the relevant provisions of Pt VII of the Act was to an extent different from that which she would have had to undertake if the parties were only the parents of the child.
In the written submissions of the Father in relation to grounds 1 to 8 it was submitted at paragraphs 9 and 10 that in determining the application, the Federal Magistrate was obliged to consider the relevant matters set out in s 60B of the Act and also s 60CC and provide reasons as to which considerations satisfied her sufficiently to come to the orders she made. It was submitted that her Honour “failed to properly address the issues and failed to give adequate reasons for her decision”.
In the written submissions of the Father in relation to grounds 1 to 8 it was submitted at paragraph 20 that whilst the Federal Magistrate referred to s 60B(3) of the Act, and made passing reference to s 60CC(3)(b), she did not make any reference to the relevant considerations and did not relate those considerations to the facts of the case.
We observe that in the written submissions of the Father in relation to grounds 9 to 11 it was submitted at paragraphs 22 and 23 that the Federal Magistrate was under a duty to give reasons for her conclusions and that it is not possible to discern from the reasons the reasoning process by which her Honour reached the conclusion. Further, that the reasons disclose that there was no analysis by her Honour of the relevant considerations.
In the written submissions of the Father in relation to grounds 1 to 8, reliance was placed on the reasons of Warnick and Thackray JJ in Marsden & Winch (No 3) [2007] FamCA 1364 (21 November 2007) in which their Honours said at paragraphs 77 and 78: “Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [Stephanie’s] best interests”. Reference was also made to the reasons of Bryant CJ and Finn J in Taylor and Barker (2007) FLC 93-345 where at paragraph 62 their Honours said that “the Court must consider the matters set out in [s 69CC(2)] (‘primary consideration’) and [s 60CC(3)] (‘additional considerations’)”. In the written submissions of the Father in relation to grounds 9 to 11 reference was also made to a number of cases that deal with the requirement to give adequate reasons.
In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010) the Full Court, referring to Maday and Maday (1985) FLC 91-636 and Smith and Smith (1994) FLC 92-488 said at paragraph 345 that “it remains necessary that the court should ‘consider, weigh and assess the evidence’ on each of the relevant matters, and then ‘indicate’ the relative weight the court attaches to each of those matters, and ‘how all of those matters balance out’”.
However, we are mindful that in A v J (1995) FLC 92-619 the Full Court observed at 82,232:
It must be remembered that in child welfare proceedings the Family Law Act confers a wide discretion and that ultimately the Court must be satisfied that the orders proposed are in the best interests of the child. It is the paramount welfare of the child which is the material ultimate finding which must be made in those proceedings. It is, in our opinion, particularly in matters where it is considered that the competing proposals are evenly balanced, important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should not be a microscopic analysis of, for example, words used by a trial Judge if, in all the circumstances, it is clear that the trial Judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration. As we have said, the Act confers a wide discretion on a trial Judge in child welfare proceedings and, provided the approach which has been laid down in Smith's case and Maday's case is followed, an appellate court will be hesitant to undertake a detailed examination of alternative interpretations of words and phrases used by a trial Judge if it is clear that overall the trial Judge has done that which he/she is required to do by the Family Law Act and authority and has sufficiently evaluated the evidence.
In Rollings v Rollings (2009) 230 FLR 396 the Full Court observed at 412 to 413:
58. So also the extent of the duty to give reasons depends on the nature of the particular decision, the circumstances in which it is made and the purpose that the reasons are intended to serve. In Beale Meagher JA, at 442 when dealing with “[t]he content of an adequate statement of reasons” referred with approval to what Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728 and what McHugh JA said in Soulemezis at 281 and at 443 said:
It follows, that reasons need not necessarily be lengthy or elaborate: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [citation omitted], related “to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required.
59. In the result the extent of the duty is not capable of precise definition. The content of the reasons depends on the particular circumstances of the matter being considered. Further, “the fact that the function of the requirement [to give reasons] is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will be a discharge of it”: Tatmar Pastoral per Mahoney JA at 386.
We also observe that the reasons for judgment of the Federal Magistrate were delivered extempore. In Porter & Byrne [2009] FamCAFC 8 (23 January 2009) Warnick J at paragraph 44 referred to a paper entitled “Practical Impediments to the Fulfilment of Judicial Duties” published in the Judicial Review, volume 6, number 4, where Heydon J said: “Thirdly, appellate courts will make assumptions in favour of an extempore judgment which they will not make for a judgement reserved for some time. A failure to refer to evidence in an extempore judgment, or to analyse it fully, is more likely to be excused on the ground that the recency of its tender makes it unlikely that it was overlooked”.
As we have already observed, in this case the maternal grandparents were seeking orders and it was not a proceeding where the parents of the child were the only parties. This had a bearing on the relevance of various statutory provisions.
In this case, as we have demonstrated, it was ultimately a very narrow controversy that the Federal Magistrate had to resolve, namely whether the child should spend more time with the maternal grandparents. The Federal Magistrate was persuaded that it was in the best interests of the child that in each fortnightly period the child spends two nights and six hours with the maternal grandparents. There was no controversy about the relationship of the child with the maternal grandparents, there was no controversy that the child should continue to have a close relationship with the maternal family and also no controversy about the capacity of the maternal grandparents to care for the child. The child was also six and a half years of age at the time of the hearing before the Federal Magistrate and four years had elapsed since the original orders.
In the written case summary document filed on behalf of the Father for the purposes of the hearing before the Federal Magistrate there was a very brief reference to Pt VII of the Act and s 60CC(2)(a) and s 60CC(3)(a) but otherwise no attempt was made to outline the case for the Father by reference to the evidence or any of the relevant statutory considerations. For example, we observe that in the written submissions of the Father in relation to grounds 9 to 11 submissions were made as to the relevance of s 60CC(2)(a), s 60CC(2)(b), s 60CC(3)(a), s 60CC(3)(b), s 60CC(3)(c) and s 60CC(3)(d). These submissions were not made to her Honour. We note that s 60CC(3)(c) had no application as it is only relevant in proceedings between parents of a child.
We also observe that in the written submissions of the Father it was contended at paragraph 24 that s 60CC(2)(b) of the Act was possibly relevant but that s 60CC(2)(a) and s 60CC(2)(c) were not relevant. Section 60CC(2)(c) does not exist in the Act.
We have already observed that there were no opening addresses. Consideration of the transcript reveals that the hearing before her Honour was concluded in less than two hours. The Federal Magistrate regrettably did not afford the parties the opportunity to make any closing submissions. No complaint was made by the Father about the absence of such submissions. There is no complaint by the Father about any procedural unfairness.
In our view, consideration by the Federal Magistrate of the relevant statutory provisions was consistent with the nature of the proceedings, the extent of the controversy, and the manner in which the case was presented and argued before her. The orders her Honour made were also not put in issue by the Family Consultant. In fact, the Family Consultant supported the concept of a period of time on a Wednesday and did not oppose the proposal for an extension of time on a weekend. So also, in our view, the extent of what the Federal Magistrate said in her reasons for judgment was supported by the observations of the Full Court in A v J and Rollings.
It is clear to us that her Honour considered and evaluated the relevant evidence, took into account all relevant factors and, importantly, considered the ultimate welfare of the child as the paramount consideration. We are therefore not persuaded that her Honour was in error as contended for in the first two areas of complaint. This disposes of grounds 1 to 8 and also grounds 9 and 11.
Third area of complaint
As to the third area of complaint, senior counsel submitted that “there were some issues that really did require further elucidation” by the Federal Magistrate. Senior counsel then identified three matters. First, because of the obvious and acknowledged hostility between the maternal grandparents and the Father, the Federal Magistrate failed to consider the possible consequences to the relationship of the child with the Father and with the maternal grandparents if, as a result of the orders, there may be an increase in that hostility. Second, the Federal Magistrate failed to consider the possible consequences on the relationship that the child had with the Father and the extended paternal family (Transcript, 5 May 2010, p 8). Senior counsel submitted that the approach of the Federal Magistrate to s 60CC(3)(b) of the Act failed “to meet the requisite standard in terms of giving the reasons, because [her Honour] failed to undertake any analysis of the overall relationship that the child had with the Father, the extended paternal and the extended maternal family (Transcript, 5 May 2010, p 8). The third matter related to what the Family Consultant said in paragraphs 16 and 21 of the family report and related to ground 14.
As to the first issue, we could not identify any ground of appeal which addressed this complaint. However, in paragraphs 18 and 19 of the written submissions of the Father, that related to grounds 1 to 8, it was submitted that the Family Consultant expressed concern that there was considerable hostility between the Father and the maternal grandparents and reference was made to paragraph 26 of the family report. It was submitted that the Federal Magistrate dealt with this issue at [29] to [31] of her reasons. It was submitted that her Honour failed to consider the likely effect of her proposed orders increasing that hostility and the possible consequences on the child’s relationship with the Father in that event. It was submitted that it could hardly be in the best interests of the child to have her relationship with the Father adversely affected because of the increase in hostility between the Father and the maternal grandparents.
Our first observation is that it was never explained precisely what this submission meant. In cross-examination, the Father did say that he believed that it was in the child’s best interests to have contact with her maternal grandparents and that if he “did like” the maternal grandparents, which he did not, he would allow them “to have the additional time” (Transcript, 21 October, 2009, p 27).
We also observe that during the cross-examination of the Family Consultant by counsel for the Father, there was the following exchange (Transcript, 21 October 2009, p 35):
This is – I’m asking you in your professional opinion here; if the relationship was to get more poisonous on - and I’m hoping that things will improve but if things were to get more poisonous, it would not be in [the child]’s best interest to even continue interaction between the father and the maternal grandparents?‑‑‑I think if that were to occur that would be exceptionally difficult for a six-year old to understand.
However, there was also the following evidence (Transcript, 21 October 2009, p 36):
MR McCONCHIE: Sorry, there is one further thing. There is no indication from the child that she was aware of animosities between the father and the maternal grandparents, was there?‑‑‑No.
No indication at all?‑‑‑No, I saw no indication.
The topic of the effect of the hostility in the relationship of the Father and the maternal grandparents was not raised in the written outline of argument of the Father and nor in any submissions to the Federal Magistrate during the hearing before her. However, her Honour was very aware of the nature of the relationship of the Father and the maternal grandparents because as we have already observed she referred to it at [3]. Her Honour also referred to the relationship at [12] and [15]. We have already set out what her Honour said at [29] to [31].
We reject this complaint about the effect of the unfortunate relationship between the Father and the maternal grandparents. The child is not aware of the “animosities” and there was no evidence to suggest that she would become aware of the difficulties. In any event, the Family Consultant recommended that the Father and the maternal grandparents undertake mediation to assist them.
As to the second matter, it may be that ground 10 identified the complaint because in that ground it was contended that the Federal Magistrate “failed to give any or any adequate reasons for her conclusion that it was in the best interests of the [child] to increase the time she spent with the [maternal grandparents] and decrease the time she spent with her father and the paternal extended family”.
We also observe that in the written submissions of the Father it was contended at paragraph 12, which related to grounds 1 to 8 and not ground 10, that the Federal Magistrate did not address the question of the likely effect of her proposed orders on the child’s relationship with the Father, the paternal grandparents and the extended paternal family. It was submitted that the consequence of the orders was that the child would spend less time with the Father, her paternal grandparents and the paternal extended family.
The Father did say in paragraph 34 of his affidavit sworn on 21 June 2009 that “to further diminish [his] quality weekend and evenings [sic] time with [the child] as sought by [the maternal grandparents] would be an abrogation of my duty to my daughter that could not be in her best interests”. The Father made no reference to the paternal grandparents or the extended paternal family.
We observe that the Father gave evidence, which the Federal Magistrate referred to at [14], that he is in full time paid employment and works a 7.6 hour day. The Father testified that he finishes “about 5.30” and the child “goes to my parents’ house and sometimes she goes to my sister’s with her cousins and also my other second cousins who live opposite my parent’s house” (Transcript, 21 October 2009, p 24). We repeat that all that the Federal Magistrate did was order that on a Wednesday the child will go to the maternal grandparents from after school to 6.00pm and on the alternate weekend the child will go to the maternal grandparents from after school on Friday rather than at 10.00am on the Saturday. It is our impression that there is also an extended maternal family.
In our view, there is no substance in the second matter. There was no evidence to suggest that the arrangement proposed by the Federal Magistrate would impact on the relationship of the child with the Father and members of the extended paternal family. The Family Consultant gave evidence that the child had a very good relationship with the Father. It was not put to the Family Consultant that any increase in the amount of time the child spends with the maternal grandparents would impact on the relationship of the child with the Father or on the relationship of the child with members of the paternal family.
As to the third matter, in ground 14 it was contended that the Federal Magistrate failed to give any or any adequate regard to the concern expressed by the Family Consultant in paragraphs 16 and 21 of her report. We observe that at paragraph 15 of the written submission of the Father, which relates to grounds 1 to 8, it was contended that the Federal Magistrate failed to address a concern expressed by the Family Consultant relating to the maternal grandparents taking the child to the Mother’s grave on every occasion that the child spent time with the maternal grandparents and reference was made to paragraphs 16, 21 and 22 of the family report. This is another example of why we are troubled about the way this appeal was presented.
In the written submissions of the Father in relation to ground 14, it was submitted that the Family Consultant had expressed concern about the possible detrimental effect on the child of being constantly reminded about the Mother’s death. It was submitted that the Federal Magistrate in her reasons did not deal with that concern at all and it is impossible to discern whether her Honour did not think it was significant or whether it was outweighed by other considerations. It was submitted that in failing to do so her Honour fell into error.
On behalf of the maternal grandparents it was submitted that the Federal Magistrate considered the report of the Family Consultant and heard the evidence and put questions and propositions to the Family Consultant. It was submitted that there is nothing to indicate that her Honour did not consider the Family Consultant’s evidence.
We have looked at these paragraphs of the family report and nothing was said by the Family Consultant about the maternal grandparents taking the child to the Mother’s grave on every occasion that the child spent time with the maternal grandparents.
The maternal grandmother gave evidence in cross-examination that she regularly goes to the Mother’s grave to light a candle and takes the child with her (Transcript, 21 October 2009, pp 17 to 18). However, it was not put to the maternal grandmother that she should not do this or that what she does is in some way harmful to the child. It was also not suggested how any increase in time, and in particular overnight time on Friday, the child may spend with the maternal grandparents would be relevant to visits to the Mother’s grave.
In the written submissions of the Father, in relation to grounds 1 to 8, it was submitted at paragraph 16 that the maternal grandmother did not display any insight into this issue and saw no need to alter her behaviour. Further, that the maternal grandmother did not intend to seek counselling in relation to her grief at her daughter’s death and did not display any concern for the effect that the constant reminder may have on the child. It was submitted that given the Family Consultant’s concern over the issue, it was incumbent on the Federal Magistrate to spell out in her reasons why she did not consider that an important consideration in arriving at her decision.
As we have already observed, the Family Consultant made a recommendation that the maternal grandparents attend upon a counsellor who can assist them come to terms with unresolved issues of grief and loss. In the family report the Family Consultant did express the view inter alia that it is necessary to ensure that the grief which the adults are experiencing does not overwhelm the child.
Our first observation is that this topic was not raised in the written summary of argument of the Father and nor in any submission to the Federal Magistrate during the hearing. Next, we have looked at the evidence of the maternal grandmother, both in her affidavit and also in oral examination, before the Federal Magistrate (Transcript, 21 October 2010, pp 8 to 21) and the only topic that was put to the maternal grandmother was whether she would “honour” an appointment that the child may have with a counsellor (Transcript, 21 October, p 19). In our view, there is no foundation for the submissions made to us. We therefore reject the third matter.
Ground 15
We observe that during the hearing before us, notwithstanding our efforts to try and identify and understand the complaints of the Father, and the discussions we had with senior counsel for the Father, which we have set out above, senior counsel made clear that the Father still pressed ground 15 (Transcript, 5 May 2010, p 13). In ground 15 it was contended that the “orders made by the Federal Magistrate were against the evidence and the weight of the evidence”.
We are not going to repeat all of what was submitted in support of this ground. However, we observe that it was contended that “there were real concerns about the detrimental effect on the child if the orders sought by the [maternal grandparents] were made”. We reject this ground. In our view, having regard to the evidence before the Federal Magistrate, and in particular the evidence of the Family Consultant, the outcome was well within the discretion of the Federal Magistrate and we do not accept that she fell into error.
Conclusion
The appeal by the Father will be dismissed.
Costs
It was accepted by the Father that in the event that his appeal was dismissed then he would have to pay the costs of the maternal grandparents.
I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of Boland, O’Ryan and Bennett JJ delivered on 1 November 2010.
Associate:
Date:1 November 2010
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