Korban & Korban
[2009] FamCAFC 143
•13 August 2009
FAMILY COURT OF AUSTRALIA
| KORBAN & KORBAN | [2009] FamCAFC 143 |
| FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred in refusing to make an order for equal time – Whether the trial Judge had given insufficient weight to recent events – Whether the trial Judge had given inappropriate weight to past events – No error in the trial Judge’s consideration of the effect of the parties’ inability to communicate and impact on child – Where the trial Judge thoroughly considered the report and evidence of the Family Consultant – Where the trial Judge gave weight to the child’s satisfactory living arrangements – Where the trial Judge took the child’s views and ability to adapt to a less than equal time regime into account – No error in the weight given to that consideration – Where the trial Judge recognised the mother’s concerted and appropriate diligence to her rehabilitation – Where the role of the trial Judge was to assess what was in the best interests of the child – Where the trial Judge carefully evaluated all evidence – Where orders made were open to the trial Judge in exercise of discretion – No error. FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred by not following guidelines enunciated in paragraph 82(g) of Goode & Goode (2006) FLC 93-286 – Consideration of Goode – Paragraph 82 of Goode does not contain binding principles departure from which will constitute appealable error – Paragraph 82 contains guidelines designed to assist in hearing interim parenting proceedings – Failure to follow the guidelines in paragraph 82 does not constitute appealable error provided all relevant provision of Part VII of the Family Law Act 1975 (Cth) are addressed – Interpretation of sub-paragraph 82(g) of Goode considered – The consideration under s 65DAA of equal time is a positive one to ascertain whether equal time is in the child’s best interests – Where the trial Judge correctly applied the legislation – No appealable error. FAMILY LAW - APPEAL – Appeal dismissed. FAMILY LAW - COSTS – COST OF APPEAL – Where appeal against a discretionary judgment – Mother wholly unsuccessful – Where circumstances warrant a departure from s 117(1) – Mother to pay father’s cost of and incidental to the appeal. |
| Family Law Act 1975 (Cth) – s 60B, s 60CC, s 61DA, s 65DAA, s 117 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| AMS v AIF (1999) 199 CLR 160 CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 Goode & Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 McCall & Clark [2009] FamCAFC 92 Norbis v Norbis (1986) 161 CLR 513 Sealey & Archer [2008] FamCAFC 142 Taylor & Barker (2007) FLC 93-345 |
| APPELLANT: | Ms Korban |
| RESPONDENT: | Mr Korban |
| FILE NUMBER: | SYF | 4503 | of | 2004 |
| APPEAL NUMBER: | EA | 56 | of | 2008 |
DATE DELIVERED: | 13 August 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland, Thackray & O'Ryan JJ |
| HEARING DATE: | 3 February 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 April 2008 |
| LOWER COURT MNC: | [2008] FamCA 292 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney |
| SOLICITOR FOR THE APPELLANT: | John R Quinn & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Todd |
| SOLICITOR FOR THE RESPONDENT: | Jordan Djundja |
Orders
That the appeal is dismissed.
That the mother pay the father’s costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
IT IS NOTED that publication of this judgment under the pseudonym Korban & Korban 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 SYDNEY |
Appeal Number: EA 56 of 2008
File Number: SYF 4503 of 2004
| Ms Korban |
Appellant
And
| Mr Korban |
Respondent
REASONS FOR JUDGMENT
Introduction
This appeal involves a challenge to parenting orders made by Moore J in April 2008. The child, V, the subject of the proceedings, was aged almost seven years at the date of the hearing. Her parents Ms Korban (“the mother”) and Mr Korban (“the father”) had been able to agree about many matters affecting the child’s welfare and arrangements for her care. Consent orders were made by the trial Judge for the parties to have equal shared parental responsibility for the child, and provisions for sharing of holidays and other special occasions were agreed. But the parents were unable to agree about the time the child should spend with the mother during school terms.
The trial Judge determined that the child should live with the mother five nights per fortnight. Her Honour’s orders provide that in week one the child shall live with the mother from after school Thursday until the commencement of school on Monday morning. In week two, the child is to live with the mother from after school on Thursday until the commencement of school on Friday morning.
At trial the mother sought, for a period of six months, orders in the same terms as made by the trial Judge. She further sought that, commencing in 2009, the child live with each parent on a “week about” rotating cycle. The father opposed the orders sought by the mother, and sought orders that the child live with the mother four nights each fortnight.
Tragic circumstances led to the proceedings. In 2004 the mother sadly was severely affected by chronic ill health and depression caused by her excessive consumption of alcohol. She has acknowledged she is an alcoholic, and since that time she has undergone rehabilitation. By the time of the trial the mother was spending unsupervised time with the child each alternate weekend and each intervening week on Thursday after school.
Whilst acknowledging the inherent difficulties in an appeal against parenting orders made in the exercise of discretion by a trial Judge, counsel for the mother sought to persuade us that the trial Judge had erred in her findings and weight given to factors relevant to the exercise of her discretion in rejecting the mother’s proposal for an equal time arrangement commencing in 2009. The mother’s counsel also argued that the trial Judge had not properly applied s 65DAA of the Family Law Act1975 (Cth) (“the Act”) as explained by the Full Court in Goode & Goode (2006) FLC 93-286.
Background
There was no dispute about the history as recorded by the trial Judge. That history was conveniently summarised by both counsel in their written submissions.
At the date of the hearing the father was aged 35 years and the mother was aged 39 years. The parties were married in December 2000 and they separated in March 2004, albeit under the one roof, and physically separated shortly thereafter.
The only child of the marriage, V, was born in May 2001.
The parties were divorced in October 2005. Shortly prior to the parties’ divorce, consent orders were made finalising a property settlement.
The father married his present wife, Mrs Korban, in March 2006. Mrs Korban has two children from a previous relationship, A aged ten years and M aged seven years at the date of the hearing. Those children live with the father and Mrs Korban.
Following the parties’ separation the child initially remained living with the mother.
In July 2004 the mother attempted suicide. (We will later record events which happened about that time as explained by the trial Judge.)
In December 2004 proceedings were instituted by the father and the child went into his care shortly thereafter. She remained living with him at the date of the trial.
The mother had no contact with the child until March 2005.
In January 2005 interim parenting orders were made which provided for the child to live with the father and spend time with the mother each Saturday from 9.00 am until 5.00 pm and each Wednesday from 9.00 am to 1.00 pm, with the time spent being supervised by the maternal grandmother.
In August 2006 further interim orders were made by consent. Those orders provided for regular unsupervised time progressing to alternate weekends from Saturday mornings to Sunday afternoons and for several hours on Thursday afternoons. Those arrangements continued at the date of the hearing. The child, by agreement between the parties, spent block periods during school holidays with the mother, including eight days in January 2007, and again in January 2008, as well as other school holiday periods.
At the date of the hearing the child was attending a private school run by the Greek Orthodox Church. The child was in Year 2 at the date of the hearing and her school reports demonstrated she was progressing well. Mrs Korban’s children attend the same school as the child.
Regular telephone communication was occurring between the child and the parties at the date of the hearing.
The final hearing took place before the trial Judge over two days on 21 and 22 April 2008. The trial Judge heard evidence from a psychologist, Dr F (“the Family Consultant”), who prepared a Family Report. Also before the trial Judge was an expert report prepared by Dr R (“the single expert”). The single expert’s report was directed to the mother’s parenting capacity and her physical and psychiatric health. The single expert was not required for cross-examination.
Also before the trial Judge was evidence from Dr B, the mother’s treating psychiatrist. Dr B was not required for cross-examination.
Overview of trial judge’s reasons relevant to the grounds of appeal
At the commencement of her reasons, the trial Judge discussed the competing applications before her. Thereafter, under the heading “Discretion”, her Honour summarised relevant provisions of Pt VII of the Act.
At paragraph 7, her Honour explained as the parties agreed there should be an order for equal shared parental responsibility then “equal time will be considered as an outcome”. Her Honour then turned to summarise the evidence before her and noted the closing submissions of the parties’ counsel on relevant issues were narrower than those canvassed in the parties’ affidavits.
Her Honour found, at paragraph 8, “[i]t is not a case where reliability of their evidence or their veracity was made an issue and so it will not be necessary to discuss and make findings about credit”.
Her Honour, at paragraph 13, set out the history of the mother’s alcohol abuse and its sequelae. Her Honour said:
After the separation [V] initially remained living with her mother. But her mother had serious problems as a result of alcohol abuse, before and after separation, ultimately with serious life threatening consequences arising from cirrhosis of the liver, oesophageal varices and pancreatic cyst. In July 2004 she attempted suicide by throwing herself beneath a train after leaving [V] seated beside a woman on the train platform. After this the Department of Community Services became involved and she was taken to [B facility] where she remained for a week before going to stay at her mother’s home with [V]. Later, police took her, handcuffed, to a psychiatric ward at the Royal Prince Alfred Hospital where she remained for a number of hours before release. In November 2003 she had been charged with driving with a mid-range PCA (later convicted) and in early January 2005 she was charged with driving with a high range PCA (also later convicted). In September 2005 she lost her licence for 5 years and will not be entitled to regain it until January 2010. To return to earlier events, in late February 2005 she entered a three week in-patient intensive detoxification program at a hospital and from there she began treatment for alcoholism and its consequences, including attendance at Alcoholics Anonymous and regular consultations with a psychiatrist, Dr [B].
In paragraphs 17 to 26, her Honour summarised the evidence relating to the mother’s health. Referring first to the evidence of her treating specialist Dr B, who had recorded the mother had faced drink-driving offences in 2005 at which time she was noted to have had significant problems with alcohol dependence and earlier life-threatening emergencies arising from liver damage caused by excess alcohol, the trial Judge then referred to Dr B opinion in his latest report of November 2007 as follows:
… he commented she had done ‘exceptionally well’, she was functioning very well and was free of all symptoms, and she remained highly motivated. He said he did not see any problem about her having joint custody of her daughter … (paragraph 18)
In commenting on the doctor’s reports the trial Judge said, also at paragraph 18:
… but of course that opinion is to be read in the more limited context of his involvement and could not be taken to be of any weight in considering the many factors that must be addressed in a decision on that topic.
The trial Judge then reviewed the evidence contained in the single expert’s report, noting he had seen the mother in July 2007 and reviewed written material, including a number of medical reports and hospital records. Having noted the limited nature of matters the single expert was asked to canvass in his report, her Honour explained that the report included reference to the mother’s suicide attempts, admissions for detoxification and daily attendance at meetings of Alcoholics Anonymous (“AA”). He was noted to have diagnosed the mother as having alcohol dependent syndrome from which she had alcohol-related complications, but no psychiatric condition. The trial Judge recorded the single expert’s opinion that the mother had made a “dramatic transformation” and “had very successfully rehabilitated herself from alcohol dependence without recurrence of depression or suicidal behaviour” (paragraph 20). The trial Judge further recorded, at paragraph 20:
… He assessed her as capable of being a healthy, caring parent and, while he acknowledged the history reflected risk to [V’s] safety when her mother had been drinking alcohol, there was no evidence she had been irresponsible or placed her daughter at risk when sober. He expressed agreement with Dr [B] that if she is able to remain abstinent from alcohol her ability to parent the child is ‘excellent’. (original emphasis)
Her Honour, in paragraph 21 of her reasons, referred to the single expert’s summary in his report noting that he had observed:
… that alcohol dependency is an extremely difficult condition to treat and to recover from, there are usually relapses, particularly in the early stages of the abstinence process, though these become less frequent as time passes, adding: ‘After approximately 3 or 4 years of abstinence the rate of relapse becomes quite low. It seemed that [Ms Korban] has been in the process of rehabilitation for between 18 months and two years. She is therefore progressing well along her rehabilitation pathway.’… (original emphasis)
Her Honour also recorded the single expert’s recommendations, which included support for the mother by continuous involvement in AA, that she be supervised by a psychiatrist and/or drug and alcohol counselling service, that her physical health should be monitored by appropriately qualified medical practitioners, and that she would benefit from individual counselling about the Court proceedings and process. Her Honour noted, at paragraph 22:
… He also supported her having a ‘major involvement’ in the child’s life and expressed the belief she is capable of parenting the child effectively as long as the alcohol treatment measures are in place, though he said he could not comment on what arrangements should be in place for her daughter, obviously.
Her Honour concluded her findings about the mother’s alcohol dependency and its sequelae, particularly in respect of her parenting capacity, in paragraphs 24 to 26 of her reasons. Given the significance of these findings to the first issue agitated by the mother on this appeal, we consider it appropriate to set out her Honour’s findings in full:
24.As I find, the mother has maintained sobriety for almost 2 ½ years and she has implemented the recommendations of Dr [R] by maintaining her constant involvement in AA, consulting regularly with a psychiatrist, and having her physical health monitored regularly by a general medical practitioner. All of these are solid indicators pointing to a steady path to rehabilitation and to a more positive future, all to her enormous credit considering the depths of despair and depression she must have been experiencing back in 2004.
25.While recognising the progress she has made, it would be naïve and wrong to say there is no risk of relapse, whatever the strength of her own commitment to the contrary. Of course there must be a risk. On the unchallenged research related by Dr [R] she is still in a vulnerable period before the level of risk can be said to be ‘low’ and plainly the risk of relapse brings with it the risk of harm for her daughter if she were to be in her mother’s care in that event, a conclusion that requires no elaboration.
26.The question here is more what is the level of risk and whether it can be said to be ‘unacceptable’ and therefore intrude in a significant way on the arrangements that could be seen as consistent with the child’s best interests [see High Court discussion in M and M (1988) 166 CLR 69 ]. As I find, the answer lies somewhere between ‘no risk’ and ‘unacceptable risk’ and probably more towards the former than the latter although Dr [R] evidence requires it be placed not so close as to be regarded as ‘quite low’. This finding is supported not only by his observation to that effect but also from a consideration of the length of time the mother has been abstinent, her compliance with Dr [R’s] recommendations, including the important commitment she has to regular if not daily attendance at AA, and the other supports she has around her, including her sponsor through AA and her mother’s involvement in her day to day arrangements as reflected in that unchallenged evidence. (original emphasis)
Her Honour then turned to consider the parties’ present living arrangements and their respective proposals for the child.
Under the heading “Family Consultant” the trial Judge considered both the report and the oral evidence of the Family Consultant. Her Honour commenced her discussion by setting out the recommendations of the Family Consultant. The Family Consultant’s first recommendation was for the child to spend time with the mother identical to the orders made by the trial Judge. However, she further recommended that, after a period of 12 months, if the mother maintained her sobriety, the child should spend equal time with each parent on a week about basis.
Her Honour then carefully analysed the Family Consultant’s report, recording, in paragraph 40, that the basis for the recommendation of increased time (to “week about”) was “not explicitly stated”. Her Honour then went on to quote from the Family Consultant’s report where the Family Consultant had observed during the interviews that the child was able to move freely between the mother, the father, Mrs Korban and her step-brothers. Her Honour also recorded the Family Consultant’s opinion that, based on her observations on the day of the interviews, there did not appear to be any deficiencies in the mother’s parenting capacity and that neither the father nor Mrs Korban had raised any concerns in that regard except their fear about the mother relapsing and having drinking problems. Her Honour gave emphasis to the Family Consultant’s view that there did not appear to be any reason, as at the date of her report, for the child not to spend increased time in the mother’s care provided she maintained her sobriety.
Her Honour went on to explain, at paragraph 41, that the Family Consultant’s recommendation “can be seen as having a basis”. Her Honour then expanded her explanation of the basis for the Family Consultant’s recommendation that more limited time should occur for a period of 12 months was so that the mother and the child could adjust to the change without too much stress, and for the mother to maintain her sobriety while having the increased care of the child.
Her Honour also noted that the Family Consultant had not based her recommendation about deferring the equal care regime for 12 months on the single expert’s evidence, but rather “issues of adjustment and the mother’s ability to cope”.
Her Honour then set out what she discerned to be the Family Consultant’s underlying basis for her recommendation for an equal time arrangement. The Family Consultant’s recommendation, at paragraph 23 of her report, was set out by the trial Judge. Her Honour explained, at paragraph 43:
This opinion was given no explicit support other than the previous Family Report which is not in evidence, and in any event the reporter did not state her own underlying conclusions or views that later equal time would be optimal, practical and appropriate on the contingency stated. It is a gap that calls for explanation and she was asked for it. She nominated two considerations. The first is that there would be fewer changeovers … The second is her assessment of the child as strong willed. Voicing some concern about the future, she sees [V’s] wish to spend ‘more time’ with her mother … it will cause the parents to continue to have conflict and in her view the child will not give up or let go of it. (original emphasis)
Her Honour discussed other aspects of the Family Consultant’s evidence and, at paragraph 45, turned to consider the issue of the child’s views noting:
There was nothing in the report of the child saying anything about her wishes or views and nor was there anything in the report from either parent relaying the child’s statements to them about her views. …
Her Honour also recorded that when interviewed on her own the child had expressed a desire for the “same time” with the mother, and that the child was able to recognise the concept of a week. The trial Judge also recorded the effect of the evidence given by the Family Consultant of contra-indicators considered by her in formulating her recommendations. That evidence was reported by the trial Judge in paragraph 46 as follows:
… the reporter said she had thought about communication issues but while there had been some difficulties in this area she assessed all of the adults as able to communicate and there had been some areas of agreement between the parents. The other contra-indicator was the prospect of the mother not maintaining her sobriety …
At paragraph 48 of her reasons, the trial Judge concluded her findings about the Family Consultant’s evidence, saying her opinions “stand to be taken into account and weighed with all of the other evidence”. Her Honour also referred to the Family Consultant’s experience and expertise and the advantage she had in interviewing the parties outside the courtroom, particularly seeing and speaking to the child.
Under the heading “Best interests”, the trial Judge commenced her consideration of the primary considerations in s 60CC(2) noting, in paragraph 51, that:
Risk of physical and psychological harm to this child would arise from exposure to any relapse by her mother into drinking alcohol and from the associated depression. …
thereafter noting, as the mother’s condition in the past and risk of relapse had been earlier discussed, it did not need to be repeated.
Her Honour then turned to consider relevant additional considerations (s 60CC(3)) and, at paragraphs 52 to 59, summarised each party’s evidence about the child’s expressed views about spending time with the mother. Her Honour concluded her findings about the child’s views at paragraph 60 of her reasons:
On any objective analysis, a finding about the views of this child is beset with imprecision and uncertainty. In so far as that relates to the mother’s evidence, it is difficult to see why her recent affidavit would include other statements the child has said about her future living circumstances yet exclude her many statements about wanting ‘equal time’. Of course things are omitted from affidavits, but it could not have been doubted the child’s views are an important strand to her case and the evidence ought to have been given clearly and accurately if it was to be given at all. As it is, the evidence runs from ‘more time’ to ‘equal time’ to ‘live with’ her mother. For present purposes the first can be taken as given because there is no issue about it. The second is consistent with the reporter’s oral evidence at the outset of the hearing and came into the oral evidence of the mother’s later. While unsatisfactory, I will accept the child’s views to be for an ‘equal time’ arrangement. I will also accept the reporter’s assessment that the child’s statement to her did not strike her as being the result of ‘coaching’. Of course that says nothing about the more benign influences that surround a child aware of pending court proceedings and what each parent wants to achieve, as this child plainly is. (original emphasis)
Her Honour immediately thereafter discussed the issue of the weight to be given to the child’s views and the likely impact of not “giving expression to them”. Having noted the child’s age when interviewed (six and a half years old) and the Family Consultant’s impression of the child as strong willed, resilient and intelligent, her Honour explained that the Family Consultant had concluded that if orders were not made for equal time that might result in a prolonged conflict between the parents. Thus her Honour said:
… This renders this consideration a weighty factor, though not so weighty as to make it a determinant, to be taken into account with all other factors. (paragraph 61)
In dealing with matters relevant to the parents’ willingness and ability to facilitate a close and continuing relationship between the child and the other parent and their attitude to the child, and to responsibilities of parenthood and the extent that the parents had fulfilled or failed to fulfil those responsibilities (s 60CC(3)(c) and (i) and s 60CC(4)), the trial Judge focused on the parties’ ability to communicate, noting, at paragraph 65, “there have been shortcomings in their communications as parents”.
Her Honour further made findings that the parties’ communication was not perfect and difficulties remained. Her Honour then chronicled matters in evidence before her about communication difficulties, including:
·failure of the father to provide information to the mother sent by the school;
·correspondence between the solicitors as a result of the child being taken interstate;
·difficulties with telephone arrangements;
·unpleasant episodes at extra curricular activities;
·lack of improvement of communication between the mother and Mrs Korban.
In the course of summarising the evidence of poor communication the trial Judge observed:
… The cooperation observed by the reporter on the day of the report interviews is not entirely consistent with either the picture this evidence paints or the stony or resentful tone conveyed in the course of the hearing. … (paragraph 65)
In dealing with whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child (s 60CC(3)(l)), the trial Judge said, at paragraph 75:
There is a certain tentativeness about the recommendation of the reporter for the initial stage of increased time to move to equal time – its purpose being related to adjustment and coping. If that does not occur satisfactorily for some reason or another, further proceedings would no doubt follow. …
Her Honour then discussed and rejected the concept of making orders to provide for a review before moving to her consideration of an equal time arrangement.
At paragraph 77 of her reasons, the trial Judge reviewed a number of authorities determined prior to the introduction of the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) (“the amending Act”) in which equal shared parenting arrangements are discussed and said “I see those cases as unaffected by the amendments to the Act from 1 July 2006”.
At paragraphs 80 and 81 of her reasons, the trial Judge weighed the factors favouring an equal time arrangement and those which contra-indicated such an arrangement. Her Honour found, at paragraph 81:
First, there cannot be ignored entirely the shortcomings in the parents’ ability to communicate and, without ascribing blame or responsibility, their evidence did not convey the impression of mutual respect or a base of trust and cooperation as parents despite their differences. …
The trial Judge thereafter noted the stability of the child’s present arrangements which had endured for three and a half years and that she had “thrived in that setting and done very well” (paragraph 82). At paragraph 83, the trial Judge dealt with the child’s views noting:
… But she has not had any concrete experience at this stage of either the end point or the increased time … and there must be some question about her adjustment depending on the magnitude of change…
Her Honour concluded that how the child would adjust would come down to a question of parental responsibility. At paragraph 84, the trial Judge dealt with the mother’s circumstances finding:
… that there remains some level of vulnerability in her mother’s circumstances at least in theory, as Dr [R’s] reference to the research demonstrates, and that is suggestive of some caution in introducing an arrangement that might have the potential to weigh too heavily on any underlying fragility.
Her Honour concluded, at paragraph 85, that factors which she described “as counter-balancing considerations”:
… combine to lead to the conclusion that [V’s] best interests will be served by having her continue to live for most of her time during school terms in her father’s household and, therefore, for the most part to remain subject to the same routine and parental care from which she has benefited so well to this point. …
Grounds of appeal
Although the mother’s Notice of Appeal contained five grounds, each with sub-grounds, as we indicated earlier in these reasons, the grounds were distilled to two challenges by the mother’s counsel.
Counsel for the mother argued that her Honour’s decision not to make orders for a “week about” shared parenting arrangement was inconsistent with the evidence, and the matters relied on by the trial Judge were insufficient “to weigh in any material sense against an order for equal time” (mother’s submissions, p 3, paragraph 16). The other challenge articulated was that her Honour had not adopted an approach to s 65DAA consistent “with what that required: see Goode and Goode (2006) FLC 93-286”. We propose to consider the grounds in groups under the topics identified by the mother’s counsel.
Appellate principles
As was readily and appropriately conceded by counsel for the mother, this appeal was an appeal against a discretionary judgment. The circumstances in which we could, in the appellate sense, interfere are limited and well known.
In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J explained, at 519, the limitations on appellate inference as follows:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. 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.
In the circumstances of this case the discussion of appellate interference by Kirby J in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 is particularly apt. His Honour said at 230 – 231 (footnotes omitted):
A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision- makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self - restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.
Challenge to the trial judge’s refusal to make an order for equal time on a “week about” basis
In his thorough analysis of the evidence, counsel for the mother in both his oral and written submissions contended that the trial Judge erred in refusing to make an order in the mother’s favour for equal time based on three “counter-balancing considerations” which may be summarised broadly as her Honour’s findings that:
·there were shortcomings in the parties’ ability to communicate;
·there must be some concern about the child’s adjustment to the magnitude such a change would involve; and
·there remained some level of vulnerability in the mother, which required caution in introducing a regime which may impact on her underlying fragility.
The mother’s counsel argued that a careful analysis of the evidence underlying her Honour’s findings undermined the weight given to the identified factors, and further no one factor, or the cumulative effect of them, was sufficient to weigh against an order for equal time.
By contrast, submissions of counsel for the father referred to her Honour’s reasons which he submitted provided “a detailed analysis of the factual and forensic issues with an appropriate critical analysis of the evidence”. In short, he submitted that the orders made were well within the exercise of the trial Judge’s discretion. Counsel for the father drew attention to her Honour’s careful consideration of risk to the child because of the mother’s past history based on the assessment of the single expert (who was appointed to give expert evidence on the mother’s psychiatric health), the age of the child, and her settled routine in the father’s household with her step-siblings where she was thriving.
It is useful at this point in our discussion that we set out in full the paragraphs of the trial Judge’s reasons where, having analysed the evidence in the context of relevant s 60CC factors and made findings, her Honour, at paragraphs 81 and 82 of her reasons, rejected an equal time proposal as being in the child’s best interests based on her earlier findings.
81.First, there cannot be ignored entirely the shortcomings in the parents’ ability to communicate and, without ascribing blame or responsibility, their evidence did not convey the impression of mutual respect or a base of trust and cooperation as parents despite their differences. Their affidavit evidence, which was sworn recently, is peppered with incidents supporting that impression. In saying that, it is recognised they have complied with the interim orders and there is nothing to indicate either would not facilitate the child’s relationship with the other in the future. It is also recognised there would be fewer changeovers with an equal time arrangement and many of the same sorts of issues that require communication - things left behind requiring telephone calls, unscheduled visits to drop things off, amongst more important decisions – may still arise whatever the arrangement. It is recognised furthermore that they have developed some methods or means of indirect communication and urgent matters would no doubt be addressed by direct discussion. Nonetheless what remains troubling is more the manner in which their responsibilities and communications would be carried into effect, marked as it is by a lack of proper regard for the place of the other as their daughter moves between their households.
82.Secondly, [V] has been in her present arrangement with her father for 3 ½ years now and during those years she has been an integral part of a larger household with her step-mother and her step-brothers. She is involved in a whole-of-family routine which is distinctly oriented towards the children and she is part of a relatively busy family setting where, as one of three children, she is subject to all of the give and take necessary in day to day life with siblings. She has thrived in that setting and done very well.
Her Honour then referred to the mother’s circumstances and concluded, given the mother’s unfortunate history, that “there remained some level of vulnerability”. Her Honour accepted and gave considerable weight to the evidence of the single expert.
The mother’s counsel asserted that the trial Judge’s findings in respect of the parties’ communication were not consistent with the evidence, and “not sufficient to weigh in any material sense against an order for equal time”.
In support of his first submission, counsel referred to matters including:
·the Family Consultant’s observations on the day of the interview;
·that the parties had reached agreement on time to be spent with the mother including school holidays, name days, Greek Easter, birthdays, passing Merit certificates to each other and extracurricular activities; and
·that the parties had complied with the interim orders and cooperated on an informal basis.
As we understood counsel for the mother’s submissions, it was not asserted her Honour had mistaken any of the evidence relative to the parties’ capacity to communicate, but rather that she had given insufficient weight to more recent events, or that she had given inappropriate weight to past events.
As we will later explain, in our view, the criticisms of her Honour’s judgment evinced by the selected events and evidence referred to by the mother’s counsel do not, in our view, demonstrate appealable error. The caution expressed by the High Court of “overly critical or pernickety” analysis of reasons applies to these submissions (see AMS v AIF (1999) 199 CLR 160, per Kirby J at 211 [150]).
The trial Judge carefully noted the Family Consultant’s opinion about the ability of the parties to communicate – that is, it was not a “high conflict” case but not “perfect” (paragraph 47). Her Honour also noted many incidents which she described as “unpleasant events”, and she particularly referred to the demeanour of the parties when observed in the witness box. Significantly, the trial Judge found the expectation of the Family Consultant of a “more positive future” had not occurred, and the relationship between the mother and Mrs Korban had not improved.
We discern no error in her Honour’s consideration of the effect of the parties’ ability to communicate and the impact of that on the best interests of the child. Her Honour’s findings in respect of this important issue were part of the matrix of factors properly considered by her when determining whether an equal “week about” shared parenting regime was in the child’s best interests.
The second area of her Honour’s reasoning attacked in the submissions of the mother’s counsel was her consideration of the effect of a change on the child’s welfare. Counsel referred to the evidence of the Family Consultant that the child could recognise the concept of a week, and that as she became older she would have the ability to cope with the week about arrangement.
Her Honour carefully evaluated all the relevant evidence. Her Honour’s consideration of the Family Consultant’s report and evidence was thorough. Her Honour took into account and gave weight to the fact the child had been living in a very satisfactory arrangement in the primary care of the father and Mrs Korban for three and a half years and was thriving in their care. She also took into account the child’s views and her ability to adapt to a regime of less than equal time with the mother. Again we discern no error in the weight the trial Judge gave to this important consideration.
The final criticism by counsel for the mother of her Honour’s consideration and ultimate rejection of an equal time regime being in the child’s best interests was the weight given by her Honour to the evidence of the single expert regarding the mother’s potential vulnerability as an alcoholic to relapse. Her Honour gave recognition in her reasons and ultimate orders to the mother’s concerted and appropriate diligence to ensure her continued efforts at rehabilitation. But her Honour’s role was not to reward the mother for her most commendable rehabilitation; rather it was to assess what was in this young child’s best interests. Those best interests dictated she give some weight to the single expert opinion which she did in a sensitive and balanced way.
We are unable to accept the submissions of the mother’s counsel that the factors adumbrated by her Honour, either singularly or collectively, precluded her Honour, after careful consideration of all the evidence, rejecting an equal time arrangement as being in this child’s best interests. We are satisfied, reading her Honour’s thorough and balanced reasons as a whole, that she carefully evaluated all of the evidence in this difficult and finely balanced case, and that the orders made were open to her in the exercise of her discretion.
The trial judge’s approach to s 65daa
There can be no doubt that her Honour followed the path suggested in Goode, and subsequent Full Court authorities including Taylor & Barker (2007) FLC 93-345 and Sealey & Archer [2008] FamCAFC 142, in reviewing the evidence and making findings about relevant facts under ss 60CC(2) and (3), guided by the principles and objects in ss 60B(1) and (2), and then applying those findings to her consideration of the provisions of s 65DAA. What is challenged in this appeal is whether there was appealable error by the trial Judge in the manner she dealt with consideration of equal time under s 65DAA.
The submissions of counsel for the mother on this issue are set out at paragraphs 34 and 35 of his written submissions as follows:
34.Whilst undoubtedly a question of emphasis in the process of considering the relevant facts and findings pursuant to section 60CC in any particular case, section 65DAA provides an important departure from an ‘unbridled’ determination of that which is in a child’s best interests. The Full Court imports into the process a consideration of whether an equal time arrangement is contrary to a child’s interests.
35.The [mother] contends that Her Honour has not properly considered the making of an order for equal time in these proceedings and, had this been done, such an order would have been made. (our emphasis)
Counsel for the mother sought to support his submission that the trial Judge had rejected an equal time arrangement on the basis it was contrary to the child’s best interests by reference to the trial Judge’s conclusions based on her findings about the parties’ lack of appropriate communication skills, and by reason of her finding that the child would adjust to something short of equal time.
Discussion
The nub of ground 5 is the assertion that her Honour has committed appealable error by not following the guidelines enunciated in Goode at paragraph 82(g).
In Goode the Full Court was dealing with an appeal against interim parenting orders brought shortly after the introduction of the amending Act.
In paragraph 81, immediately following the heading “How should interim proceedings be conducted?”, the Full Court noted the difficulties facing a court determining an interim parenting application, but said, “[h]owever, the legislative pathway must be followed”. Thereafter, in paragraph 82, the Full Court set out a suggested structure or guidelines for a judicial officer dealing with an application for interim parenting orders. Subsequent decisions have applied the guidelines enunciated in paragraph 82, appropriately modified for hearing of final parenting applications including so called “relocation cases”, as a framework for determination of those proceedings.
At paragraph 82 of Goode the Full Court said, in paragraphs (e) to (k):
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child's best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child's best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child. (our emphasis)
At paragraph 5 of her reasons the trial Judge set out, in summary form, the provisions of the Act dealing with equal shared parental responsibility, and the obligations imposed by s 61DA and s 65DAA. Her Honour said:
… the Act imposes a presumption about best interests, which is referable to parental decision making, and that may have consequences for decisions about the child’s time. The presumption is that it would be in the child’s best interests for the parents to have equal shared parental responsibility. If it is not excluded on reasonable grounds for believing a parent has engaged in child abuse or family violence and it not rebutted by reason of being contrary to the child’s best interests, there is an obligation to consider if it would be in the best interests of the child and reasonably practicable for the child to spend equal time with each parent. If so, that order is to be made. If not, there is an obligation to consider if it would be in the best interests of the child and reasonably practicable to spend substantial and significant time with each parent and if so to make that order.
Section 65DAA (1) to (5) together with the notes thereto provides:
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(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.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Before commencing our consideration of counsel for the mother’s submissions we think it is important to note that paragraph 82 of Goode does not contain binding principles departure from which will constitute appealable error. The distinction between guidelines and binding principle is well explained in Norbis v Norbis (1986) 161 CLR 513, per Mason & Deane JJ at 519 and Brennan J at 537. Rather, the sub-paragraphs set out therein are a guideline designed to assist judicial officers hearing interim parenting proceedings, often on an urgent basis. As decisions determined after the amending Act demonstrate, failure to follow such a guideline does not constitute appealable error, provided all the relevant provisions of Part VII of the Act are addressed (see Taylor & Barker; Sealey & Archer and McCall & Clark [2009] FamCAFC 92).
Counsel for the mother submitted that, correctly interpreted, sub-paragraph 82(g) of Goode involves a court only making an order for equal time if there are no disqualifying factors. We reject this interpretation. We consider the interpretation puts a “gloss” on the plain wording of s 65DAA(1) and on the guideline.
When there is an order for equal shared parental responsibility, or a court proposes to make such an order (as was agreed in this case) the legislation obliges a court to consider:
·whether the child spending equal time with each of the parents would be in the best interests of the child; and
·whether the child spending equal time with each of the parents is reasonably practicable;
and if it is, consider making such an order.
The legislature has provided a framework in s 60CC for determining best interests. That framework requires a court to consider many factors relevant to a child’s best interests. The consideration of best interests involves an assessment of all the evidence presented and the making of factual findings. Some of those findings about one parent will demonstrate positive attributes which will benefit a child, other findings will highlight deficiencies or factors which are not likely to promote a child’s best interests. It is on these factual findings that a judicial officer will assess whether equal time is in a child’s best interests. Having weighed such factors – both positive and negative – if a judicial officer determines the child’s interests are served by an equal time order and such an order is reasonably practicable, he or she will consider making such an order. If a court, however, determines in its overall consideration the factors weighed dictate the child’s best interests will not be promoted by an order for equal time, then a court must consider substantial and significant time. Although not mandated by s 65DAA, if substantial and significant time is not an appropriate outcome, a judicial officer will consider some other time regime in the child’s best interests, including, in some extreme cases, an order for no time to be spent by the child with one parent.
We do not read the guideline in paragraph 82(g) of Goode as suggesting s 65DAA(1) mandates that a court is to only make an order for equal time if there are no disqualifying factors or, put another way, a requirement to consider only factors contrary to a child’s best interests. Nor do we read the section or the guideline as imposing a negative test – to determine that equal time is not in a child’s best interests. The enquiry is a positive one, to ascertain whether equal time is in a child’s best interests. What we understand paragraph 82(g) to suggest is that a judicial officer will, on the basis of factual findings made under s 60CC, in his or her consideration under s 65DAA weigh up whether or not an equal time order is in the child’s best interests and reasonably practicable, and consider making such an order. Only if he or she concludes from that overall assessment and consideration that an equal time order should not be made, move to then consider substantial and significant time.
We consider her Honour correctly applied the legislation. It is clear from reading her Honour’s reasons as a whole that she made careful findings of relevant matters under s 60CC and then, in this difficult and unusual case, balanced factors favouring the mother having an order for equal shared time with matters which counter-indicated such a proposal being in the child’s best interests. We do not consider it was necessary for this very experienced judge to have repeated her earlier findings about factors which favoured an equal time regime between the child and her mother when dealing with s 65DAA. Those matters were clearly identified by her Honour earlier in her reasons.
We note in McCall & Clark the Full Court, at paragraph 62, explained that the practical effect of the complex provisions in Part VII required dual consideration, under both s 60CC and s 65DAA, of some factors. Whilst some cross-referencing to earlier findings under s 60CC may be useful to put beyond doubt all the factors balanced to reach an outcome in the best interests of a child relevant to the consideration imposed by s 65DAA(1)(c) has been undertaken, we do not suggest failure to do so will constitute appealable error.
We find no merit in ground 5.
Conclusion
We have found no error by the trial Judge in the broad discretion she was called to exercise in making orders in the child’s best interests. Further, we have found no appealable error by the trial Judge in the manner in which she considered equal time under s 65DAA. In these circumstances the appeal must be dismissed.
Costs
At the conclusion of the appeal we sought submissions from counsel in respect of the costs of the appeal. The mother sought if her appeal was dismissed that there be no departure from s 117(1) of the Act and that each party bear their own costs of the proceedings. The mother relied on her financial circumstances as a factor to be considered by us under s 117(2A). The father sought, in the event the appeal was dismissed, that the mother pay his costs of and incidental to the appeal.
The mother’s affidavit, to which we were referred, demonstrates that she is in full-time employment and earns a current salary of $52,030.00. She deposed to anticipated salary increases, so that by August 2008 she expected to receive a gross income of $69,992.00 per annum, including rental income. The mother owns two home units, one of which she occupies as her home. She derives income from one home unit. The father is employed in full-time employment as a real estate salesperson.
The mother’s appeal was an appeal against a discretionary judgment. The mother has been wholly unsuccessful in her appeal. We consider this factor warrants a departure from s 117(1). We further consider the mother has the capacity to meet any costs order made, and she should pay the father’s costs of and incidental to the appeal.
I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 13 August 2009
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