KOLODZIEJ & WASON
[2020] FamCAFC 137
•5 June 2020
FAMILY COURT OF AUSTRALIA
| KOLODZIEJ & WASON | [2020] FamCAFC 137 |
| FAMILY LAW – APPEAL – PARENTING – Where there is no merit in any of the grounds of appeal – Where there is no error by the Magistrate – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs – Where the appeal has been wholly unsuccessful – Costs ordered in favour of the respondent in the sum sought. |
| Family Law Act 1975 (Cth) – ss 60CC(3)(a) and 65DAA |
| APPELLANT: | Mr Kolodziej |
| RESPONDENT: | Ms Wason |
| FILE NUMBER: | WEA | 26 | of | 2019 |
| APPEAL NUMBER: | PTW | 451 | of | 2019 |
| DATE DELIVERED: | 5 June 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 5 December 2019 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 19 June 2019 |
| LOWER COURT MNC: | NA Transcript only |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hedges SC |
| SOLICITORS FOR THE APPELLANT: | Carr & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Berry SC |
| SOLICITORS FOR THE RESPONDENT: | O’Sullivan Davies |
Orders
The appeal be dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the appeal fixed in the sum of $10,994.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kolodziej & Wason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA 26 of 2019
File Number: PTW 451 of 2019
| Mr Kolodziej |
Appellant
And
| Ms Wason |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 8 November 2019, Mr Kolodziej (“the father”) appeals against interim parenting orders made by a Magistrate in the Magistrates Court of Western Australia on 19 June 2019. Ms Wason (“the mother”) opposes the appeal.
The orders appealed against provided for X born … 2012 and Y born … 2018 (“the children”) to spend time with the father during school terms and during school holidays, for telephone communication, for handovers, and for interstate and overseas travel.
Background
The father was born on … 1979 and the mother was born on … 1978.
The father is employed as a managing director, and the mother works in the health field.
The parties commenced cohabitation in mid-2007, they were married on … 2010, and separated finally on 15 August 2018.
Following the separation the children remained living with the mother in the former matrimonial home, and the time the children spent with the father was limited by the mother, because of his mental health.
The parties attended mediation in October 2018, and subsequently the children spent two afternoons per week, and every second weekend, with the father.
There was a subsequent mediation on 14 January 2019, and on 8 March 2019, orders were made providing for the children to spend three hours each Monday and Wednesday afternoon, and from Friday to Sunday each second weekend, with the father. School holiday time was also provided for.
There were allegations and counter-allegations as to the mental health of each party, the care of the children during cohabitation, the parties’ respective ability to care for the children since separation given their work commitments, the consumption of alcohol by both parties, violence on the part of the father when intoxicated, and verbal and physical abuse by the mother towards the father. In this regard the parties consented to various injunctions restraining their behaviour, particularly in the presence of the children.
Primary issues before the Magistrate were the submission by the mother that the father’s mother should assist the father if he is spending more than four hours with the children, the mother’s evidence that since overnight time has been in place the children have exhibited behavioural and emotional changes, and the father’s position that no issues of concern had arisen in relation to his care of the children.
The Appeal
Ground 1
His Honour made mistakes of fact in the findings at JJ 10:46 that the father’s proposed increase in time from two nights a fortnight to five nights, then six, coupled with the increase in the number of changes of residence and handovers, would likely be unsettling for the children, particularly when they are likely to be getting used to the current arrangements.
The complaint here is that his Honour failed to adequately or properly evaluate the father’s proposals, and that is demonstrated by a mistake his Honour made in setting out those proposals and identifying their effect.
As referred to above, up to the hearing of the matter, the children were spending three hours with the father each Monday and Wednesday afternoon, and from Friday afternoon until Sunday evening each alternate weekend.
The father’s proposal was that initially some of the mid-week time become overnight, and there be an additional night on each alternate weekend.
At page 7 lines 36-47 of the reasons for judgment, in the context of considering the likely effect of any changes in the children’s circumstances pursuant to s 60CC(3)(d) of the Family Law Act 1975 (Cth) (“the Act”), his Honour said this:
The father’s proposal would mean the children would spend more night time away from their mother and more handovers and more movements between the parties’ homes. In my view, this may negatively affect the children who as (sic) this time, in my view, need to maintain stability in their arrangements. The current orders mean that the father sees the children on seven days in a fortnight but they are only away from their mother two nights a fortnight, whereas the father’s proposal is for the children to be away from their mother for five nights a fortnight and two occasions not overnight increasing to six nights a fortnight and one non-night time period commencing in August.
Then, on page 10 line 42 to page 11 line 11 of the reasons for judgment, in the context of explaining why he intended to make the orders that he did, and why those orders were in the best interests of the children, his Honour said this:
In relation to time with the children, the mother has expressed concern about the children being unsettled after spending time with their father.
There may be many reasons for this, but yet there’s no evidence before me to consider in that respect. However, in my view, an increase in time, as the father proposes, to five nights and then six nights a fortnight from the current two nights a fortnight coupled with the increase in the number of changes of residence and handovers that would occur if I were to make orders as the father proposes is likely, in my view, to be unsettling for the children, particularly when they are likely still to be getting used to the current arrangements.
In my view, until further order the current spend time with arrangements are in the children’s best interests. These arrangements maintain regular and frequent time with the father so that he sees them on Monday and Wednesday each week and each alternate weekend Friday to Sunday and which also give him the ability to be able to contact with the school that X attends and also provide time during the school holidays.
Plainly, the “mistake” his Honour made was in indicating that the number of handovers would increase, however, that was but one of the features, albeit incorrect, of the father’s proposal that his Honour was concerned about. It is readily apparent that the primary issues for his Honour were the increased time that the children would spend with the father and away from the mother, including overnight, and the fact that they would have still been getting used to the existing arrangement, despite it being in place for seven months. Indeed, as submitted by the mother, the evidence before his Honour was that this period was a period of high conflict which affected the children.
His Honour was of the view that the children’s interests at that time were best served by maintaining the status quo, and not unsettling them.
Importantly, his Honour was satisfied that the regular and frequent time that the children were already having with their father was in their best interests.
I also note that in his outline of submissions filed on 8 November 2019, the father conceded that the introduction of “midweek overnight stays would be a substantial change to the status quo” (page 4, paragraph (4)), and that was clearly a significant consideration for his Honour. Indeed, it was open for his Honour to infer from the fact that there would be a substantial change, that that change would be unsettling for the children.
It is readily apparent to this Court that, albeit making a mistake as to one aspect of the father’s proposal, his Honour adequately evaluated that proposal in considering the best interests of the children at that interim stage of the proceedings.
There is no merit in this ground of appeal.
Ground 2
His Honour made an error of law in that he failed to follow the legislative pathway by considering the provisions of section 65 DAA(5) in coming to the conclusion that it was reasonably practicable for the father to have substantial and significant time with the children.
The complaint here is that his Honour failed to consider s 65DAA(5) of the Act in making the orders that he did.
Because his Honour ordered, albeit by consent, that the parties have equal shared parental responsibility, s 65DAA(2) of the Act required his Honour to consider whether the children spending substantial and significant time with each of the parents, would be in their best interests, and whether that is reasonably practicable, and if it is, consider making an order to that effect.
Section 65DAA(3) then sets out the requirements for such an order, and s 65DAA(5) sets out the matters that the court must have regard to, namely:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents and;
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
It is readily apparent that his Honour recognised what he was required to do under these subsections (see page 9 line 9 to page 10 line 4 of the reasons for judgment).
His Honour then addressed the proposals of the parties and concluded as follows:
In my view, until further order the current spend time with arrangements are in the children’s best interests. These arrangements maintain regular and frequent time with the father so that he sees them on Monday and Wednesday each week and each alternate weekend Friday to Sunday and which also give him the ability to be able to contact with the school that X attends and also provide time during the school holidays.
I’m satisfied that the time in the school holidays from the end of the school holidays in 2020 should increase to six consecutive nights. In relation to the school summer holidays in 2019, I am of the view that it’s in the children’s best interest to spend time for three periods in those holidays for five consecutive nights during each period.
I’m also satisfied that the mother’s proposal for time to be spent on special occasions are in the children’s best interests. I’m also satisfied that the mother’s proposal for telephone communication is also in the children’s best interests. Handovers, in my view, when they don’t occur at school should occur by the mother or her agent delivering the children to the father’s residence and at the conclusion of time being spent the father or his agent returning the children to the mother’s residence.
I’m not satisfied that there’s a need for any other injunctive relief as sought by party. Both parties propose orders to permit interstate and overseas travel and I will make some order in that response.
The mother sought that the matter be listed for a case assessment conference. No submissions were made to me by either counsel in that respect at the hearing and I’m not satisfied that at this time that is necessary. Parties may wish to consider the appointment of a single expert witness to assist them or to have some further mediation in relation to the matter.
(reasons for judgment page 11 lines 4-42)
It is plain that his Honour followed the legislative pathway, and complied with the requirements of s 65DAA, and had regard to the matters set out in s 65DAA(5) to the extent necessary in arriving at his decision.
His Honour’s consideration of s 65DAA(5) should also be understood in the context that neither party put in issue the reasonable practicality of either the existing arrangement, or the father’s proposed arrangement. The concentration was on what arrangements were in the best interests of the children.
Thus, it was unnecessary for his Honour to do more than he did in considering the issue of reasonable practicality.
There is no merit in this ground of appeal.
Ground 3
His Honour made an error of law in failing to consider or consider adequately substantial and significant time with the father that was different from the status quo.
This ground is nothing more than a repeat of Grounds 1 and 2, and it should suffer the same fate.
His Honour considered what substantial and significant time was in the best interests of the children, and what was reasonably practicable, albeit, to repeat, the latter was not put in issue.
What another judge may have done cannot determine what this Magistrate should do on the evidence and the submissions before the court.
There is no error here, and this ground of appeal has no merit.
Ground 4
His Honour made an error of law by considering the father’s proposal as close to equal time and rejecting equal time rather than considering the father’s proposal in the context of substantial and significant time.
This ground is a nonsense, and has no merit.
As referred to when addressing Ground 2, in evaluating the proposals of the parties, his Honour painstakingly worked through the requirements of s 65DAA, first considering and then rejecting equal time, and then considering and finding substantial and significant time was in the best interests of the children.
Conclusion
Having found no merit in any ground of appeal the appeal must be dismissed.
Costs
In the event that the appeal was dismissed, the mother sought an order for costs in accordance with her filed schedule of costs, namely in the amount of $10,993.99.
The father did not cavil with the amount sought, and thus I will make an order in those terms, although rounding the amount off to the nearest dollar.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 5 June 2020.
Associate:
Date: 5 June 2020
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