KLP & TWO

[2005] FamCA 31

[2005] FamCA 31

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal No. NA 11 of 2004
  File No. BR4011 of 2003

IN THE MATTER OF:

KLP

Appellant/Mother

- and -

TWO

Respondent/Father

REASONS FOR JUDGMENT

BEFORE:                  Bryant CJ, Kay and Holden JJ
HEARD:  4th day of October 2004
JUDGMENT:           3rd day of February 2005

APPEALS - from decision of Family Court Judge against a discretionary order - adequacy of reasons

CHILDREN - residence - whether trial Judge properly evaluated the s 68F(2) factors - inadequate reasons

1. This is an appeal against an order made by Bell J on 9 February 2004 ordering that the child, C, reside with her father.

Background

1. The appellant mother was born in September 1983 and is 21 years of age.  The respondent father who was born in October 1969 is 35 years of age.  The parties met and commenced cohabitation in November 1999.  C was born in November 2000 and is now 4 years of age.

2. The respondent father had a child of a former relationship, H, born in May 1997, who is now 7 years of age.  Until early 2001, H resided with her mother, DKS, and had little contact with her father.  This arrangement changed in 2001 when H commenced living with the parties.  The parties separated in the month of February 2003.

3. Proceedings were instituted by the appellant mother shortly after separation and on 5 March 2003 Federal Magistrate Baumann ordered upon the undertaking of the father and mother, without admission:
   (a)      not to consume alcohol to excess;

(b)not to consume illicit drugs during anytime the child C, born … [in] November 2000, is in their care;

(c)not to permit the child to be present with any other person consuming alcohol to excess and/or illicit drugs;

(d)not to denigrate the mother and/or member of their household to or in the presence of the child:

1.Until further order C have contact with the father from 5 pm Sunday until 9 am Thursday in each week commencing Sunday, 9 March 2003.

2.That the child have contact with the mother from 9 am Thursday until 5 pm Sunday in each week, commencing Thursday, 6 March 2003. 

1. This shared contact regime remained in place as at the date of the trial before Bell J.

The Judgment of Bell J

1. After setting out a brief history of the relationship between the parties, his Honour found that it was the paternal grandmother who was the one who looked after C during the period of cohabitation.  He said:

   "I am more than satisfied on the evidence before me that in fact she was really the primary caregiver for C during the period that the parties lived together, and I am more than satisfied that subsequent to separation, she was also a dominant provider of care for C and to H."

2. His Honour was scathing in his assessment of the respondent father.  His Honour referred to the transcript of a telephone conversation that took place between the paternal and maternal grandmother.  He referred to the fact that in that conversation:

   "[the paternal grandmother] points out that in her opinion he is a violent, abusive man.  He is a misogynist.  He puts his own welfare first and sits in front of the TV all day long.  He lets her look after the children and she was afraid that his temper was such that he might harm either her, the child C or the mother, the applicant in these proceedings."

His Honour went on to conclude:

"14.After seeing TWO in the witness box I agree with what his mother said.  I do not find him a particularly attractive man at all.  I think that his attitude towards women is appalling.  Not only is it corroborated by the applicant mother's allegations in this case but also by DKS who coincidentally complains of exactly the same type of conduct towards her as the mother in this case complains of."

1. Later in his judgment, his Honour said, "What then can be said for the father?   Not much."

2. Given his assessment of the respondent father, his Honour opined "that one would have thought the question of residence of C was a lay-down misere and it should move to the mother".

3. His Honour identified the relationship between H and C as being "the big problem".  He found that they looked upon each other as sisters and had a close relationship.

4. His Honour then stated that both H and C appeared to be doing well, but said, "I compliment the paternal grandmother on this more than the father".  He went on to comment:

   "TWO has had a charmed life so far.  He has had his mother, who I am satisfied has done more for C than he has, although as she says, he enjoys getting H ready for school."

5. His Honour concluded as follows:

   "26.     What am I left with?  I am left with the fact that this child, C, is doing well.  I am left with the fact that C has a close relationship with H which would not be maximised if she was removed from the type of person to whom I have referred as the father.  C enjoys contact with her mother, she enjoys contact with her father.  She desires to be closely attached to H as H desires to be closely attached to the mother.  As has fallen from Ms Lewis, [the Court counsellor,] children's relationships and children's contact last longer than parents because they live longer.  That is a fact.  And I regret that I feel as though that if I do order, and I regret it, that if I do order the Court removes the mother, that relationship will be damaged because I think of the unfortunate order that has already been made, and I am quite clear that that three out of five was a consent order.  The order that has been made, the fact that C is doing well and I think that the removal of C from her father - not necessarily her father of whom, it is quite clear, I do not have much respect, but from H and, to a lesser extent, the paternal grandmother would be detrimental to her and would not advance her welfare.

   I do regrettably order - and I emphasise the word "regrettably" order that C remain in the possession of her father, but that there be contact three weekends out of five, they being the weekends that H is with their mother, with DKS, and I make it quite clear through the solicitor for the husband that this relationship between himself and the children will be overlooked by this Court, and if he steps out of line in one way I will be only too happy to come back in this Court and have a good look.  And I would think that the next time there will be an application - the applications before me will be in relation to H and C.  They are the orders of the Court.

   27.      I will say finally it might seem very unfair to the mother that I have castigated the father as a person.  I do not respect him particularly at all.  I think he is a crook, he is a thief.  As I have said he is a misogynist.  Regrettably I think he is doing well.  Not regrettably for the Court but I think he is doing his best by C.  The mother might do better but I have to look at that question of H.

   28.      In effect the order will remain the same as it is already in Federal Magistrate Baumann's order but be on the weekends that H is away."

The grounds of appeal

1. The grounds of appeal as set out in the mother's Notice of Appeal filed 8 March 2004, are as follows:

   "Orders 9 February 2004

   1.        The learned trial judge failed to give adequate reasons for his decision and his failure to do so amounted to an error of law.  The exercise of discretion by the learned trial judge miscarried as a consequence.

   2.        The learned trial judge's reasons, viewed either separately or collectively, do not reveal a discernable path of reasoning for making a residence Order in favour of the husband (sic).

   3.        That the learned trial judge (sic) judge's discretion miscarried by reason of his Honour failing to consider or in the alternative properly considering (sic) making orders which would both promote contact between H and C at the same time permit C to reside in the residential care of the mother.

   4.        Having made findings on the evidence as follows:-

   a)        That the father's 'criminal history from New Zealand has been put before me up until 1999.  It does him no credit'

   Reasons for judgement (sic) (paragraph 5)

   b)       That the father was 'a violent, abusive man.  He is a misogynist.  He puts his own welfare first and sits in front of the TV all day long.  He lets her look after the children and she was afraid of his temper but his temper was such that it may harm either her, the child C or the mother, the applicant in these proceedings reasons for judgment (paragraph 13).  His honour agrees with what the mother said.  (Reasons for judgment paragraph 14)

   c)        That the father had an appalling attitude towards women (paragraph 14)

   d)       That the father was an abusive misogynistic male (paragraph 16)

   e)        was a crook and a thief (paragraph 27)

   f)        That the 'vituperative' attitude of the paternal grandmother towards the mother and maternal grandmother in making the finding that it did 'did not bode well for contact in the future or contact to be maximised or contact to be encouraged.'

   g)        The father's attitude towards women corroborated by the mother and the mother of H, DKS (paragraph 14)

   14.      (Reasons for judgment)

   c)        That the father's 'attitude towards women was appalling' (paragraph 14)

   d)       That the mother 'from year ages 15 to February 2003 was in a relationship with an abusive, misogynistic male'  (paragraph 16)

   e)        That the 'vituperative' attitude of the paternal grandmother towards the mother and maternal grandmother in making the finding that it did 'did not bode well for contact in the future or contact to be maximised or contact to be encouraged (paragraph 24) reasons for judgment

   The learned trial judge erred in that his Honour;

   a)        Failed to give any or sufficient weight to such findings in making a residence order in favour of the father;

   b) Failed to reconcile such findings with any reasoned considerations of the factors identified in sections 68F(2) of the Family Law Act 1975 (in particular sub paragraphs (e), (f), (h), (i) thereof)

   5.        The learned trial judge failed to make the following further findings of fact which the evidence compelled, namely:-

   a)        the close attachment between C and her mother

   b)that the mother had an appropriate proposal for the residential care of C.

   c)that the father's parenting capacity was seriously compromised and inadequate.

   (d)that the fathers criminality and anti-social behaviour attitude towards women, domestic violence perpetrated against partners and his own mother, gang assaults, his attitude to the work ethic, precluded him from being an appropriate role model as residential apparent of C.

   e)that it was not in C's interest to be placed in the residential care of the father having found that the father was a misogynist.

   f)that the father did not have the capacity to promote the mother's relationship with C and/or H given his antipathy towards the mother and her family.

   g)that C would be exposed to further domestic violence as a consequence of the father's behaviour demonstrated clearly by evidence of the domestic violence perpetrated against the mothers of H and C, and his own mother or that these would be an unacceptable risk thereof.

   h)that there was a risk of the father relapsing into drug use or other anti-social behaviour given the pattern of the father's history set out in the social workers report finding that the unchallenged evidence of the paternal grandmother (sic).

   i)the unchallenged evidence of the paternal grandmother that the father in the past had agreed with the suggestion that H residing with the paternal grandmother would be a good idea.

   j)that the mother of H DKS intended to file an application for residence of H

   k)the evidence of DKS that the father was not the primary carer of C and did not demonstrate appropriate parenting skills.

   And as a consequence the learned trial judge failed to attach any or sufficient weight to the important matters of evidence that was necessary to properly determine C's best interests and the appropriate parenting orders."

Appellate Principles

1. The leading authorities as to appeals against a discretionary judgment and orders, such as the present case, are well known and reference to them will suffice for present purposes:  see House v The King (1936) 55 CLR 499; Australian Coal and Shale Employees' Federation & Anor and the Commonwealth & Ors (1953) 94 CLR 621 per Kitto J at 627 Gronow v Gronow (1979) 144 CLR 513.

Submissions on Appeal – inadequate reasons ground

1. Counsel for the appellant mother argued grounds 1, 2 and 4 together. These grounds complain of inadequate reasons or a failure to give sufficient weight to findings and to reconcile those findings with a consideration of the s 68F(2) factors.

2. The need to give adequate reasons for judgment to enable an appeal court to ascertain the reasoning upon which the decision is based, is well settled.  In Bennett and Bennett (1991) FLC 92-191 at 78,266-267, the Full Court said as follows:

   "Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

   In Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656, Gibbs CJ gave qualified support to the principles established by Pettitt v Dunkley. In Palmer & Ors v Clarke & Ors (1989) 19 NSWLR 158, the New South Wales Court of Appeal, consisting of Kirby P, Samuels and Priestley JJA, again held that a failure to give adequate reasons was an appellable error of law which, of itself, was sufficient to require a judgment to be set aside.

   In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:

   "The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:

   (a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or

   (b)      justice is not seen to have been done.

   The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."

   We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.

   Finally, in relation to discretionary judgments, reference may be made to the judgment of Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown & Anor (1985) 3 All ER 119, which affirmed the principle that a Judge delivering a discretionary judgment should set out his or her reasons.

   In our opinion, if adequate reasons are not given in a custody proceeding, it becomes impossible for an appellate court to properly examine the decision appealed from."

3. The need to give adequate reasons and the need to properly evaluate the s 68F(2) factors was recently discussed in A v A: Relocation Approach (2000) FLC 93-035.

4. In that case (at 87,545) the Full Court referred to the following passage to the judgment of Hayne J in AMS v AIF; AIF v AMS (1999) FLC 92-852:

   "In determining a parenting case that involves a proposal to relocate the residence of a child, the evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests."

5. The Full Court went on to say:

   "72. To this end, we agree with the Full Court in Paskandy v Paskandy  (supra) at paragraph 52 and would express the guiding proposition thus:  

   ·  In determining a parenting case that involves a proposal to relocate the residence of a child and which proposal best promotes the best interests of the child, it is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the court must consider the various matters set out in (a)-(l) of that subsection.

   73. In setting out this expectation, the Full Court in Paskandy v Paskandy  (supra) referred to its previous decision Smith and Smith (1994) FLC 92-488. Smith and Smith concerned proceedings in respect of what may now be termed parenting matters generally in which the best interests of the child is the paramount consideration. We respectfully agree that the following remarks from Smith and Smith  (supra) at 81,084 remain good law: 

   `` ... the preferable approach to be adopted is to consider each of the matters referred to in the section separately and having regard to the evidence touching upon each of those matters make findings in relation to them. In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all of those matters, a trial judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.'' 

   74. We would take this opportunity to reiterate the desirability of the disciplined approach which is achieved by application of the above dicta  in Smith and Smith  (supra) and also paras 9.51-9.55 of B and B: Family Law Reform Act 1995  (supra). In our view, the use of a structured series of analytical steps is an aid to the decision-making transparency and minimises the risks of a court falling into appellable error of the kind discussed in AMS v AIF; AIF v AMS  (supra). In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay and Boniface [2000] FamCA 676 (unreported) . In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said at paragraph 109:

   `` Her Honour's obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) of the Act, which of those proposals would be more likely to advance the child's best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child's best interests as paramount and did consider the relevant matters arising under s 68F(2).''

1. We are of the opinion that there are a number of glaring deficiencies in his Honour's judgment. 

2. Except that each of the parties proposed that C reside with them, we cannot otherwise glean from his Honour's judgment what the competing proposals of the parties were at trial regarding C’s future.  Furthermore, it seems to us that his Honour makes no real attempt to compare and evaluate those proposals. 

3. Nowhere in his Honour's reasons does he consider some of those matters relevant to this case that he is required to consider by s 68F(2). For example, importantly in view of his criticisms of the respondent father, his reasons do not touch upon the capacity of each of the parties to provide for C's needs, including her emotional and educational needs, nor do they consider the attitude of each party to the child and to the responsibilities of parenthood demonstrated by each of the parties.

4. It is therefore not possible for us to ascertain how his Honour concluded (which he must have by implication) that C would continue to do as well in her father's care or that she would not do as well in her mother's care.  This is particularly so when one has regard to the finding by his Honour that the fact that she was doing well was more of a compliment to the paternal grandmother than the respondent father, and the concession made by counsel for the respondent father on the hearing of the appeal, that the respondent father's proposal was to live independently of his mother. 

5. The learned trial Judge was damning in his criticism of the respondent father.  He found that:

• He had a criminal history which did him no credit

• He is a violent, abusive man

• He participates in gangs attacking men who have allegedly abused their partners

• He is a misogynist who puts his own welfare first

• He sits in front of the TV all day long

• He has an appalling attitude towards women

• He is a crook and a thief

1. Added to this are his Honour's findings that C 's primary attachment was to her paternal grandmother "who is also quite vituperative in her attitude towards not only the mother in this application, but the maternal grandmother" and that "[t]hat does not bode well for contact in the future or contact to be maximised" and that one may well be inclined to predict a “lay-down misere” that residence should be with the appellant mother in light of those findings.

2. Having regard to these proceedings it is not possible to discern why his Honour concluded that C’s relationship with H outweighed all of the above, or how this factor outweighed any advantage offered by the appellant mother’s proposals, or indeed whether there were any advantages in her proposals.

3. We are of the view that such is the inadequacy of the reasons that it is impossible for us to properly examine Bell J's decision.  We know little about the appellant mother except that she is strong-willed and perhaps has a comparatively quick temper and that she is "not unintelligent".  We know nothing about her proposals or her capacity to parent.

4. In our view, his Honour has not met his obligation to identify the respective proposals of the parties, to weigh the evidence and submissions as to how each of the proposals of the parties would hold advantages and disadvantages for the child's best interests, or if he did, the reasons do not permit us, who are called upon to review that decision, to understand how he arrived at it. Furthermore, his Honour's reasons do not demonstrate to us that he did consider and evaluate the relevant matters arising under s 68F(2).

5. The appeal must be allowed and, in these circumstances, the matter remitted for a rehearing.

6. That raises the issue as to what residence/contact regime ought to be in place pending the rehearing.  The appellant mother submits that the position ought to revert to that which existed pursuant to the order of Federal Magistrate Baumann of 11 April 2003, which was essentially the joint residence regime.  As we understand it, the respondent father proposes that the regime established by the orders of Bell J, now appealed from, should remain in effect until the date of trial.

7. Counsel for the child representative acknowledged that it is difficult to determine which regime should remain in effect until trial.  She submits that the regime established by the orders of Bell J ought to continue for a short period of time with liberty to apply to a Registrar to vary that order.

8. On balance we regard that as the preferable and safest approach as there may well be matters of relevance affecting what is in the best interests of the child that have occurred since 9 February 2004.

Costs

1. Both the respondent father and appellant mother are legally aided.  In the event that the appeal is allowed, each of them seek certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and retrial. Counsel for the child representative also seeks a certificate in the event that the appeal is allowed.

1. In Tyson and Tyson (No. 2) (1993) FLC 92-401, the Full Court said as follows, at 80,111:

“The grant or refusal of a costs certificate under the Act is purely discretionary, and the Act itself lays down no guidelines for the exercise of that discretion.  Without intending to be exhaustive, matters such as the overall reasonableness or otherwise of the attitude adopted throughout the proceedings by the party applying for the certificate to the relief sought by the other, the financial resources of the applicant, and the likely quantum of that party’s total costs of the appeal, as compared with the “prescribed maximum amount” payable upon a costs certificate (in this case $4,000.00), all appear relevant for consideration by the Court in the exercise of that discretion, as too is the fact that the funds to honour such a certificate must come from the public purse.”

In the circumstances of this case we are of the opinion that it is appropriate to grant certificates.

Orders

1.        That the appeal be allowed.

2.        That the order of Bell J of 9 February 2004 be set aside.

3.That the matter be remitted for rehearing before a single Judge of the Family Court of Australia in the Brisbane Registry, other than Bell J.

4.Until further order there be orders in terms of the orders of Bell J of 9 February 2004.

5.That there be liberty to apply to a Registrar of the Family Court of Australia, Brisbane Registry, to vary the orders referred to in order 4 hereof.

6.That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

7.That the Court grants to the appellant a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of such part as the Attorney-General considers appropriate of any costs incurred by the appellant in relation to the new trial.

8.That the Court grants to the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondent in relation to the new trial.

9.That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

10.That the Court grants to the child representative a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the child representative in respect of such part as the Attorney-General considers appropriate of any costs incurred by the child representative in relation to the new trial.

11.That the Court grants to the child representative a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the child representative in respect of the costs incurred by the child representative in relation to the appeal.

I certify that the preceding 34 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate