Lavender & Turner

[2007] FamCA 182

FAMILY COURT OF AUSTRALIA

LAVENDER & TURNER [2007] FamCA 182

FAMILY LAW – CHILDREN - APPEAL FROM DECISION OF FAMILY COURT JUDGE – EQUAL SHARED PARENTAL RESPONSIBILITY – Interim parenting orders. Appeal against exercise of discretion in interim parenting proceedings dismissed. Applying House v The King, Gronow v Gronow. Challenge to adequacy of trial Judge’s reasons unsuccessful. Trial Judge not shown to have failed to consider significant and substantial time spent by child with father. Goode v Goode followed. Appeal dismissed. Unsuccessful appellant ordered to pay respondent’s costs

Family Law Act 1975 (Cth) Part VII, Section 60CC, section 66C

House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
Goode v Goode [2006] FamCA 1346 (Full Court decision delivered on 15 December 2006 by Finn & Boland JJ)
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279, McHugh JA

APPELLANT: MR LAVENDER

RESPONDENT: MS TURNER

FILE NUMBER: HBF 1473 of 2005

APPEAL NUMBER: SA 64 of 2006

DATE DELIVERED: 7 FEBRUARY 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: KAY, COLEMAN & BOLAND JJ

HEARING DATE: 7 FEBRUARY 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 16 OCTOBER 2006

LOWER COURT MNC: [2006] FamCA 1387

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS TREZISE

SOLICITOR FOR THE

APPLICANT:

AT LEGALS

COUNSEL FOR THE RESPONDENT: MR WELCH

SOLICITOR FOR THE RESPONDENT: PHILIP WELCH

Orders

1. That the appeal is dismissed.

2. That the appellant pay $2000 towards the respondent's costs of the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Lavender & Turner.

FAMILY COURT OF AUSTRALIA AT HOBART

Appeal Number: SA 64  of 2006
File Number: HBF 1473  of 2005

MR LAVENDER

Applicant

And

MS TURNER

Respondent

REASONS FOR JUDGMENT

COLEMAN J: 

1. By notice of appeal filed 20 October 2006 Mr Lavender, (hereinafter referred to as “the father”), appealed against orders made by Benjamin J in proceedings between the father and Ms Turner, (hereinafter referred to as “the mother”), on 16 October 2006.  The orders made by the learned trial Judge on 16 October 2006 provided on an interim basis or pending further order, that the parents of their child, Stephen Lavender, born  February 2002, (hereinafter referred to as “the child”), have equal shared parental responsibility for the child, that the child live with the mother and that the child spend time with and communicate with the father each Thursday from 8 am until 6 pm and each alternate weekend commencing at 5.30 pm Friday to 8.30 am Monday.

2. His Honour made ancillary orders to give effect to the orders, the substance of which I have just recounted. In lieu of those orders the father seeks that this Court, having allowed his appeal, make orders that the child spend time with and communicate with the father in week one from 8.30 am Thursday to 8.30 am Friday, and from 5 pm Friday until 8.30 am Monday and in week two from 5.30 pm Wednesday evening until 8.30 am Friday morning. Various costs orders were sought in the alternative.

3. The mother has resisted the father's appeal and sought to uphold the decision of the learned trial Judge. As is not in contest the orders of 16 October 2006 arose from an interim hearing before his Honour earlier that day. The hearing, it is plain from the transcript, proceeded on what is often described as on the papers, that is to say in reliance upon affidavits which were not tested by cross-examination and as the transcript confirms, not sought to be tested by cross-examination. The learned trial Judge was thus in the position, as his reasons for judgment make clear, of having to determine a dispute within a narrow but intense compass without the benefit of hearing the evidence relied upon by either party tested in the traditional way.

4. His Honour produced his reasons for judgment and it is appropriate as background to an evaluation of the challenges to his decision to refer briefly to those reasons. It is to be noted at the outset that the appeal raises no challenge to any finding of fact contained within his Honour's reasons for judgment.

5. His Honour referred to the ages of the parties. That is not a matter of significance for present purposes. He referred to the father's absence from the State of Tasmania from about March 2004 until June 2006, during which period he maintained regular communication with the child.

6. His Honour recounted that the mother had been and continued to be the primary carer of the child and recorded that the parties were both struggling in terms of the changes to their situation and struggling to manage a new relationship in terms of parenting as a separated couple. They had endeavoured to resolve matters in dispute between themselves but were unable to do so, hence their appearance in Court.

7. The trial Judge recorded that he was unable to and would not make findings of fact in relation to contested factual issues but would restrict himself to those matters which were not in dispute and seek to put in place, with the best interests of the child paramount, as required by the statutory provisions which he identified, arrangements to ensure the stability of the child pending a full hearing. His Honour returned to the question of the father's absence from Tasmania for a period of two years and three months, which at the time of the hearing before him approximated half the child's young life. His Honour observed that this circumstance made matters "somewhat more difficult".

8. His Honour at paragraph 6 of his judgment in the first of three places where he used the expression, recorded that there appeared to be no significant reasons why the child should not spend some more time with his father, adding that it was important that that be done in a "sensible and thoughtful manner". His Honour directed his attention in accordance with the relevant statutory provisions in Part VII of the Family Law Act, the Act, to section 60CC as the "start point".

9. For reasons which need not be referred to as they assume no significance in this appeal, his Honour concluded that the presumption in favour of equal parental responsibility ought not be held to have been rebutted. Whilst the reasons which led his Honour to so conclude do not assume or do not have the potential to assume immediate significance, as will be seen they do assume significance in this appeal in other ways.  Some brief reference to those parts of his Honour's reasons is thus appropriate.

10. Having noted the complicating circumstance of the father's absence, 2004 to 2006, his Honour then recorded that there was no suggestion in the case before him of psychological harm or of the child being subjected to child abuse, neglect or family violence and that as such his Honour was obliged to have regard to the primary consideration of the benefits to the child of having a meaningful relationship with both of his parents. His Honour, understandably, concluded that the child's wishes, if any had been expressed, did not assume significance in the proceedings before him.

11. As his Honour had earlier noted, the mother had been and continued to be the primary carer of the child although prior to that time, as his Honour recorded, the father had been "significantly involved in the child's life but not to the extent of the mother's" involvement in that life. His Honour then referred to the provisions of section 60CC(3)(c) of the Act and found in that regard that there was "clearly" a degree of "conflict between the parties and that is perhaps reflected by the fact that they are here and reflected by their inability to reach an agreement".

12. That conflict was also, as his Honour noted, reflected in some circumstantial evidence to which he referred in paragraph 12 of his reasons. His Honour again in paragraph 13 in the context of the effect of any changes in the child's circumstances, noted that the only change would be that the child would spend some more time with his father, noting that if that was undertaken in a thoughtful and sensible way and the parties left with the ability to be flexible, there should not be any significant effect if the child spends more time with one parent or the other.

13. His Honour found that there were no practical difficulties in terms of the child spending time with either or both parents or with the capacity of either or both parents. His Honour made similar observations with respect to the attitude to the responsibilities and duties of parenthood noting that both parents were desperately (anxious or keen) to be involved in the care of this child and it was only their differing views as to how each of them should be involved in that which had brought about this conflict.

14. His Honour then noted that this was an interim order subject to a final hearing and that he had taken into account the facts as set out in the affidavits with respect to section 60CC(4) and section 66C(4)(a) of the Act. As earlier noted, his Honour concluded that the presumption in favour of equal parental responsibility was not, on the evidence, rebutted and then in two paragraphs to which reference need not be made in any detail, he recorded that he was thus obliged to consider equal shared parenting time and that the principles in relation to that topic and the broader topic of the time, the child should spend with each of his parents.

15. The trial Judge concluded the discussion to which reference has briefly been made, by stating that there ought to be some more time in all the circumstances of this case that the child spends with his father. He then clarified what that entailed, noting that each Thursday the father does not work and is available to care for the child, that that is a day the child does not attend day care and that accordingly the child should spend Thursdays with his father. His Honour also made an order, the effect of which was, as will be seen, to significantly expand the time at weekends which the child was to spend with his father.

16. The law which governs this appeal is not in doubt, nor does it require but the briefest restatement for present purposes. To the extent that any error of principle is asserted unless the appellant is able to enliven one or more of the bases for appellate intervention explained by the High Court in House v The King (1936) 55 CLR 499, the appeal must fail.

17. To the extent that the appeal entails an attack upon the exercise of discretion of the learned trial Judge, unless any of the matters discussed by Stephen J in his judgment in Gronow v Gronow (1979) 144 CLR 513 is successfully raised, the challenge to the exercise of discretion must fail. It does remain to refer briefly and by no means exhaustively, to a decision of the Full Court in Goode v Goode which was delivered by the Chief Justice, Finn and Boland JJ on 15 December 2006.

18. It is not in dispute that the law which governs this appeal is the law as it stands today and that as such, and as is clearly intended by counsel for the appellant, it is possible to seek to impugn the trial Judge's decision by virtue of a case not decided until after that decision had been made.

19. It is apparent from the appellant's summary of argument, in particular paragraphs 5 and 6 which seeks to expand the grounds of appeal without formally seeking leave to do so that the appellant does, at least inferentially in reliance upon Goode v Goode, seek to advance certain other challenges to the learned trial Judge's decision.

20. In Goode v Goode the Full Court made it clear beyond doubt, that the presumption that equal shared parental responsibility is in the best interests of the child, does not carry with it any presumption about time. So much is clear from paragraphs 40 and 41 of their Honours judgment, which I incorporate in these reasons for judgment:

    40.Neither counsel submitted to us that there was any presumption about time arising from the application of s 61DA, namely the application of the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. So much is clear from the note to s 61DA(1) itself, which provides:

    The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

    41.We do not consider, nor was it submitted to us by either counsel, that there was any doubt about the meaning of the note or the section.

    Their Honours made clear at subparagraph (5) of paragraph 65 of their judgment that when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.

21. It is not suggested in this appeal that the learned trial Judge's order fails to constitute substantial and significant time. As such it is unnecessary and unhelpful to refer to Goode v Goode or the statutory provisions in relation to the meaning of that term. It is not suggested in this appeal that as a matter of discretion it was not open to the trial Judge to conclude that substantial and significant time was in the best interests of the child but that equal time was not.

22. Finally in relation to this very brief reference to Goode v Goode, it is appropriate to have regard in view of certain of the complaints raised in this appeal, to the observations of the Full Court in Goode v Goode with respect to interim parenting proceedings. At paragraph 68, having reviewed earlier decisions, their Honours confirmed that certain matters were relevant in interim parenting proceedings:

    68.      In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. 

    Significantly, their Honours noted that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is "significantly curtailed".

23. Their Honours observed that where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. Their Honours also suggested that the Court look at less contentious matters such as the agreed facts and issues not in dispute and have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

24. Finally, for the purposes of this appeal it is appropriate to refer to the observations of the Full Court in Goode v Goode in paragraph 74 where their Honours observed that because of the circumscribed nature of interim parenting proceedings, the reasons given at an interim hearing may be brief.

    74.      We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief.  So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.

    Against that background it is then appropriate to consider the challenges to the decision of the learned trial Judge.

25. As noted earlier the grounds of appeal contain in substance but one challenge, which is clearly articulated in ground one and perhaps expressed differently in ground two.

26. The written summary of argument on behalf of the appellant however, at paragraphs 5 and 6, seeks to agitate other complaints. Those complaints, though not finding formal expression in the grounds of appeal, have been responded to on behalf of the mother and as such we have entertained those complaints. It is perhaps convenient to commence at the end, that is with the complaint agitated in paragraph 6 of the appellant's summary of argument of 19 January 2007 where it is asserted:

    “The learned trial judge erred in failing to provide sufficient reasons as to why equal or substantial and significant time with the appellant in the terms of the application was not in the best interests of the child.”

27. The law in this regard is not in doubt. It was perhaps best stated by McHugh JA, then a Judge of the Court of Appeal of the Supreme Court of New South Wales in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279 and I incorporate, without reading it onto the record, in its entirety, the following from his Honour's judgment in that case:

    … without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law

28. This Court, in the 1991 appeal of Bennett and Bennett (1991) FLC 92-191 followed Soulemezis and other authorities referred to in McHugh JA’s judgment. I incorporate that passage of the judgment of this Court in Bennett in these reasons:

    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.

29. More recently, as paragraph 74 of the judgment of the Full Court in Goode v Goode establishes beyond doubt, the reasons given at an interim hearing may be brief. Without suggesting that so doing is necessarily an adequate and sufficient formulation of the law the position appears to be that whilst the reasons themselves may be brief it is still necessary, as McHugh JA suggests in Soulemezis, to delineate a judicial determination from an arbitrary determination to be able to discern the reasoning process by which a Court reaches its conclusion.

30. As the brief review of the reasons for judgment of the trial Judge in this case makes clear, the reasoning process which his Honour adopted is discernible. It is unnecessary to refer again to the terms of his judgment but it is to be noted that, and it is significant that it is so, there is no suggestion that anything of significance in the nature of material facts or circumstances revealed by the evidence, was not referred to by the learned trial judge. If one asks rhetorically what is it that the appellant asserts to be lacking in the reasons, that question has, on the appellant's case, no answer. The challenge to the adequacy of his Honour's reasons, in my view fails.

1. Counsel for the appellant, with commendable frankness, made clear from the outset that the thrust of the challenge to the exercise of discretion by the trial judge, was that the effect of his orders was to reduce the time which the father had been spending with the child as a consequence of an agreement reached on 3 October 2006 for approximately 93 hours per fortnight, to 80 hours per fortnight. I observe that having done the arithmetic that calculation appears substantially accurate or sufficiently accurate as not to justify closer exploration of it.

2. Before dealing with that part of the challenge to his Honour's decision, I wish to refer briefly to one matter which arose in the course of oral submissions earlier this morning, and that is that the father had at an earlier time in 2006 been spending two days a week with the child. To the extent that that was so for a period of about one month, perhaps two months, as the father's own evidence makes abundantly clear (see paragraph 39 and following) the relationship between the parties had become problematic prior to the commencement of the proceedings, which led first to the agreement of 3 October 2006 and to the orders of the trial Judge which give rise to this appeal.

3. On any view of it there was not either at the time of the hearing on 16 October 2006 or any earlier time, a settled and stable arrangement pursuant to which the father was spending two days a week in each week with the child. To the extent that that is raised in the context of the appeal, it is an argument which leads the appellant nowhere, particularly having regard to what, in his affidavit of evidence-in-chief, sworn on 6 October 2006, he said at paragraph 61, the terms of which I incorporate in these reasons, and in paragraph 64 of that same affidavit, which I also incorporate.

4. Implicit in the primary challenge to the trial Judge's decision, as embodied in the pleaded grounds of appeal, is acceptance that there was an inconsistency between his Honour's decision, which reduced the time the child spent with his father by 13 hours per fortnight, and his Honour's thrice stated acceptance of the proposition that the child should spend more time with his father. For my part I am unable to accept an argument as simplistic as, with respect, this argument necessarily is.

5. I find it inconceivable that his Honour would have approached the matter on the quantitative basis asserted on behalf of the appellant. Paragraph 21 of his Honour's reasons makes it clear, as one would expect, that his Honour was looking to the time the child spent with his father being substantial and significant, and clearly, at least in my view, by necessary implication, accepted that significant time was time spent whilst the child was awake.

6. Without descending into the minutiae of it if one analyses what is happening under the agreement of 3 October 2006, compared with what was to happen under the orders of 16 October 2006, the following emerges. The father lost from 6 o'clock until 8.30 the next morning each Thursday. On the assumption that the child, who was at that stage not 5 years of age, would go to bed fairly early and sleep for most of the night, that entailed, in my view, the loss of very little significant time. Nor was it substantial time lost.

7. At the other end of the equation his Honour's orders increased alternate weekend contact so that instead of commencing at 10 am on a Saturday it commenced at 5.30 on Friday. A moment's reflection makes clear that this resulted in a substantial increase in significant time able to be spent with the child, a significant period on Friday evening, dinner Friday evening, breakfast Saturday morning. Whilst perhaps minor in the scheme of things, the additional half hour on Monday morning might reasonably be thought to have availed the father and child of further significant time together.

8. In my view his Honour's discretion has not been shown to have miscarried nor has any inconsistency been demonstrated between what his Honour said about more time spent with the father and what his Honour ultimately ordered. It is perhaps speculative but interesting to note what it was that in paragraph 64 the father sought by way of alternative time with the child in the event that the Court rejected his application for equal time. The challenge embodied in grounds one and two of the notice of appeal accordingly in my view, is not made out.

9. It remains to consider that part of the appellant's case which finds expression in paragraph 5 of the summary of argument.  That appears to be an argument advanced in reliance upon the judgment of the Full Court in Goode v Goode. Dealing with the particular matters there raised I observe that it was unnecessary for his Honour to spell out in his judgment what the competing proposals were. His Honour was in no doubt as to what they were and there is no suggestion that any aspect of the exercise of his discretion miscarried by virtue of any lack of understanding of what the competing proposals of the parties were. Relevant in this context is what the Full Court said in paragraph 74 of its judgment in Goode and what the authorities in civil Courts of the highest standing in this nation have said for over 30 years at least.

10. His Honour identified a number of disputed issues. His Honour was, of course, constrained in making findings in that regard and significantly no complaint is made about that.

11. It is also significant that there has been no suggestion that his Honour failed to identify any relevant issue in dispute in the proceedings before him. This is in my view a complaint without substance in those circumstances.

12. His Honour, it is reasonably clear, did not expressly in any specific place in his judgment, say that he found equal time not to be in the best interests of the child. It is in my view however, clear beyond doubt from his Honour's reasons for judgment to which reference has earlier been made, that his Honour did indeed, as the statute required him to and as Goode v Goode subsequently confirmed he was obliged to, consider that very issue. Significantly it is not suggested that his Honour failed to have regard to any relevant fact or circumstance which, had he done so, would have rendered erroneous his exercise of discretion against equal time with the parents. It is relevant to recall what the Full Court said about the absence of any resumption about time spent as a consequence of applying the statutory presumption of equal shared parental responsibility.

13. A balanced and fair reading of his Honour's reasons for judgment in my view makes clear that his Honour did what the statute and the Full Court in Goode v Goode said he had to. He considered that order. He provided cogent reasons why such an order would not be in the best interests of the child on an interim basis. The findings of fact underpinning those conclusions have not been sought to be challenged in this appeal.

14. Finally, it is not suggested that the trial Judge's order did not constitute substantial and significant time spent by the child with his father. In those circumstances how this ground can be enlivened is difficult to understand, but a balanced and fair reading of his Honour's reasons for judgment in my view makes abundantly clear that his Honour did indeed consider the child's best interests in terms of substantial and significant time.

15. A curious argument on behalf of the appellant is that in some way more time spent with a child, albeit the child will be asleep, constitutes more substantial and significant time than does a regime of the kind which the trial Judge concluded to be in the best interests of this child. I thus find this limb of the challenge agitated in paragraph 5 to lack merit. In my view none of the grounds of appeal as pleaded or argued in the summary of argument has been made out.  As such I would dismiss the appeal.

16. KAY J:   I agree with the reasons advanced by Coleman J and have nothing to add.

17. BOLAND J:   I too agree with the reasons of Coleman J and have nothing further to add.  I would dismiss the appeal.

18. KAY J:  The formal order of the Court will be that the appeal is dismissed.  We further order that the appellant pay $2000 towards the respondent's costs of the appeal.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.  Associate:                  Date: