LORRECK & WATTS
[2018] FamCAFC 149
•9 August 2018
FAMILY COURT OF AUSTRALIA
| LORRECK & WATTS | [2018] FamCAFC 149 |
| FAMILY LAW – APPEAL – PARENTING – Interim orders – Where the primary judge concluded that the party with whom the children live would have sole parental responsibility – Where it was ordered that the children live with the father and he have sole parental responsibility of the children – Where neither party sought an order for sole parental responsibility – Where the primary judge therefore failed to afford the parties procedural fairness – Error demonstrated – Where the primary judge failed to make necessary findings of fact as to family violence – Where the primary judge made inconsistent findings as to family violence – Where the findings as to family violence were unsupported by findings of fact – Error demonstrated – Appeal allowed – Matter remitted for rehearing. |
| Family Law Act 1975 (Cth) s 61B |
| Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 SS & AH [2010] FamCAFC 13 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT: | Ms Lorreck |
| RESPONDENT: | Mr Watts |
| FILE NUMBER: | CAC | 23 | of | 2009 |
| APPEAL NUMBER: | EA | 26 | of | 2018 |
| DATE DELIVERED: | 9 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 18 July 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 January 2018 |
| LOWER COURT MNC: | [2018] FamCA 13 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hassall |
| SOLICITOR FOR THE APPELLANT: | Joseph Tallarita |
| THE RESPONDENT: | In person |
Orders
The Application in an Appeal filed on 25 June 2018 seeking summary dismissal of the appeal is dismissed.
The appeal against the orders of Gill J made on 16 January 2018 is allowed.
Orders 2 to 12 made on 16 January 2018 are set aside, and in lieu thereof order that:
Pending further order:
(a)Child X and Child Y (“the children”) live with the father.
(b)The children spend time with the mother during the Australian Capital Territory (ACT) school holidays as follows:
(i)For the first half of the 2018/19 summer holiday period, commencing on the first full day of that holiday period and ending on the 21st day of that school holiday period.
(c)The children spend time with the mother during school terms:
(i)Up to seven consecutive days each month in Canberra provided that the mother:
(A)Gives the father 14 days written notice of her intention to spend such time;
(B)Causes the children to attend the usual school and extra-curricular activities during such time.
(d)The father and the mother may communicate with the children when they are not in that parents care each Sunday, Tuesday and Thursday between 7:00 pm and 7:30 pm with the other parent to facilitate that time, including by the provision of audio visual facilities to enable that to take place during those periods, and shall otherwise encourage the children to spend that time talking with the other parent.
(e)When the children are spending time talking with the other parent in accordance with these orders, the parent with whom they are living is to the children privacy to engage in a conversation with the other parent by not being physically present during that conversation and by taking all reasonable steps to ensure that other persons are not present during the communication with the other parent.
(f) For the purposes of the school holiday time:
(i)The father will book and pay for the return airfare with Qantas for children to travel from Canberra to B Town and from B Town to Canberra for the 2018/19 summer holidays.
(g)The father is required to ensure that the mother is provided with the following information, and to make arrangements for her to be provided with information regarding the welfare of the children as follows:
(i)In the event that either the children require medical treatment, the father is to advise the mother by email, at an address nominated by her for that purpose, as soon as is practicable of the nature of and requirement for medical treatment;
(ii)When advising the mother as to medical treatment in relation to the above order, the father is to advise the mother of the name of the practice and the name of the doctor and provide the mother with contact details for the doctor such that she is able to speak with him or her about the treatment;
(iii)On either child receiving medical treatment or consulting with a medical practitioner the father is to immediately authorise and continue to authorise that medical practitioner to speak with the mother in respect of the treatment of the child and is to provide that medical professional with a copy of these orders;
(iv)On enrolment of the children into a school the father is to immediately notify the mother of the details of the school including contact details and is to provide an authorisation to the school permitting the school to discuss matters concerning X and Y with the mother and is to provide that school with a copy of these orders.
(v)The father is to authorise the school to provide to the mother all school reports and notices regarding the children.
(h)The mother may contact the children at such other times as may be reasonable.
The application be remitted for hearing before a judge other than Gill J.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the new trial ordered.
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 Lorreck & Watts 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 26 of 2018
File Number: CAC 23 of 2009
| Ms Lorreck |
Appellant
and
| Mr Watts |
Respondent
REASONS FOR JUDGMENT
By a Notice of Appeal filed on 8 February 2018 Ms Lorreck (“the mother”) appeals interim parenting orders made by Gill J on 16 January 2018. The orders were made in proceedings between her and Mr Watts (“the father”).
The parties have two children, Child X (“the older child”), born 6 July 2002 and Child Y (“the younger child”, born 16 June 2007 (collectively, “the children”). The children have lived primarily with the mother since the parties’ separation in November 2008.
The primary judge’s interim orders effected a significant change in the parenting arrangements for the children, in that he ordered that the children live with the father in circumstances where they had, for some considerable time before, lived with the mother. His Honour further changed parental responsibility by ordering that the father have sole parental responsibility for the children.
In 2012 orders were made permitting the mother to relocate the children’s residence from Canberra where they had been living to North Queensland (“the 2012 orders”). These orders further provided that the mother have sole parental responsibility for the children. Other orders were made at the time which provided for the children to spend time with their father in Canberra and as to how their travel to Canberra would be facilitated.
It seems undisputed that the mother has met her obligations under the orders and the children have spent time with the father in Canberra. The father, on the other hand, has not. The primary judge noted that on several occasions he failed to return the children to the mother at the end of their time with him.
While the children were spending time with the father during the Christmas school holidays he initiated these proceedings. On 18 December 2017 he sought orders that the children live with him and, on an interim basis, that he and the mother have equal shared parental responsibility.
The children were due to be returned to the mother on 26 December 2017. The children were not returned as previously arranged and on 5 January 2018 the mother filed an application seeking a recovery order and an order that the father’s time with the children pursuant to the 2012 orders be suspended.
At the time of the hearing before the primary judge on 12 January 2018, the children were still in the care of the father. As we have indicated, some short time after the interim hearing, on 16 January 2018 the primary judge made the challenged orders.
The primary judge ordered that the father have sole parental responsibility for the children and further ordered that they live with him in Canberra. Orders were made that the children spend time with the mother for the whole of the school holidays relating to terms one and two in 2018 and half of the Christmas school holidays in 2018, and that this time take place in B Town. His Honour’s orders further provided that during the school term the children spend up to seven consecutive days with the mother, subject to the giving of fourteen days’ written notice.
It is helpful in understanding the appeal challenges to provide some context to the issues drawn from his Honour’s reasons.
The primary judge first turned his attention to the question of parental responsibility and observed that the father sought equal shared parental responsibility. His Honour concluded that such an order would not be in the children’s best interests because there was no cooperation between the mother and father and the making of such an order would result in conflict between them. He then concluded that he would allocate sole parental responsibility to the party with whom the children were to live on an interim basis. As it turned out, that was the father and an order was made that he have sole parental responsibility for the children (at [9]).
It cannot be doubted that the relationship between at least the older child, who was 15 and a half at the time of the hearing before the primary judge, and the mother was a difficult one and she had faced considerable difficulties with his behaviour, including him refusing to attend school and shoplifting. The mother said that he assaulted her and she needed to call on the police for assistance. Nonetheless, his Honour noted that the family report writer observed that the older child when engaged in a topic of interest to him “dropped his guard and engaged unreservedly” with the mother (at [21]).
Both children, but principally the older child, made allegations that the mother has been physically violent to them. The older child said that the mother had bitten and bruised him, sat on him causing scratching to his chest and hit him with a spoon and it left a “big black mark” on him (at [13]). The younger child, to a lesser degree, also alleged that his mother was violent to him and said that the mother covered his mouth when he yelled and that the mother would “yell, lie and hit every single day” (at [13]).
Although both children expressed a view that they did not wish to live with the mother, the primary judge observed that the view was more strongly expressed by the older child. He also noted the opinion of the family report writer was that the older child was “very immature” and had not yet developed “the cognitive maturity that would enable him to fully evaluate the benefits and shortcomings of living with a particular parent” and that the younger child was “somewhat mature for his age” (at [23]). His Honour took that assessment into account in weighing the children’s views. As to at least one incident in which the older child said to the mother that he was “no longer your son”, the primary judge said that “there is a strong argument to say that the father was the architect of this discord” (at [24]).
Indeed, while observing that the relationship between the older boy and the mother was fractured, the primary judge said:
25. These matters throw light upon not only the views expressed by each of the boys, but also as to the current nature of the relationship with the mother. Unfortunately, there is at present a fractured relationship between the mother and [X], although it is not possible to understand fully the reasons for that fracturing. Potential involvement by the father of the children in the dispute may play a significant role. For example, the father, although he denies it, was reported by [X] as having suggested that [X] contact the court, providing [X] with the contact details to enable him to do so.
It is in this context then that the primary judge made the orders from which the appeal is brought.
The appeal
Ground 1: Failure to afford procedural fairness
The first ground challenges the order giving the father sole parental responsibility for the children and it was contended that in making the order the primary judge failed to afford the parties procedural fairness.
As outlined above, the primary judge found at [9] that an order for equal shared parental responsibility was not in the children’s best interests having concluded that the parties do not cooperate with each other over arrangements for the children and have no capacity to comply with the obligations inherent in an order for equal shared parental responsibility.
He concluded:
9. … Accordingly, an order for equal shared parental responsibility is against the interests of [Y] and [X] and an order for sole parental responsibility should be made, vested in whoever it is that they will live with in the interim.
It was common ground that neither party sought such an order in favour of the father nor was the prospect of it raised with the parties for submission. While it is well accepted that a primary judge’s consideration is not constrained by the orders sought by the parties, it is also well accepted that parties have a right to be heard on issues of significance.
In U v U (2002) 211 CLR 238 Hayne J said, after noting that a primary judge need not confine himself only to the consideration of the proposals advanced by each party:
172. That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law.
In failing to raise the proposal that whomever the children lived with would have sole parental responsibility for them, his Honour denied both parties the opportunity of considering and making submissions about the proposed order.
The determination of parental responsibility is broader and involves more complex considerations than merely with whom the children will live, as can be seen from s 61B of the Family Law Act1975 (Cth) (“the Act”) which defines parental responsibility as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
It is significant too that the 2012 orders reflect that the presumption of equal shared parental responsibility had been displaced in favour of an order that the mother have sole parental responsibility for the children.
Thus we are satisfied that his Honour denied the parties procedural fairness in determining the issue of sole parental responsibility in favour of the father without having raised his intention with the parties.
That finding goes to the heart of the hearing before the primary judge and of itself requires the appeal to be upheld (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577). However, while not strictly necessary, we propose to consider the second ground of appeal.
Ground 2: The primary judge’s findings as to family violence
This ground challenges the primary judge’s findings in relation to family violence. It is contended that the primary judge made inconsistent findings on this issue in circumstances where the findings were unsupported by the evidence.
As we have said, the children, but principally the older child, made serious allegations of violence towards them by the mother. His Honour noted at [12] that the “primary, although not the sole source of evidence in relation to family violence” was the older child’s account reported by the family report writer.
The primary judge said in relation to these allegations:
15. It may be observed that there are uncertainties as to the occurrence of each of these events of physical handling of the children. Some are disputed by the mother. The more serious matters lack any of the corroboration that may have been expected under the circumstances. A number of the complaints appear at face value to be the subject of exaggeration, such as the claim of daily lies and hitting on the part of the mother, particularly given the differing accounts regarding the alleged frequency of hitting.
After noting at [16] that further uncertainty attended the complained of conduct which might be said to fall “within a concept of reasonable chastisement”, a reference to a submission of the Independent Children's Lawyer to the effect that the older child’s conduct was extreme and had “transitioned from defiance and rudeness to the mother, to criminal behaviour (shoplifting) to direct violence to the mother” his Honour concluded that:
17. It may be tentatively concluded on an interim basis that there is some risk of family violence within the mother’s household. The magnitude of that risk however falls at the low end of the spectrum and is to be balanced with other matters in determining what is required by the best interest of the children.
His Honour’s reasons do not illuminate the leap from “uncertainty” as to the credibility or reliability of the allegations to the conclusions that, albeit tentatively expressed, and on an interim basis that there was “some risk of family violence within the mother’s household”. His Honour does not explain on what facts or conclusions his assessment of family violence is based. Nor do his Honour’s reasons illustrate on what basis he found the “violence” to be at the “low end of the spectrum”.
This, however, was not the last of his Honour’s consideration of the issue of family violence.
After referring to the difficulties in the relationship between the older child and his mother, and to a lesser degree the younger child’s view about the mother, the primary judge said:
30. … However, in [X’s] case, the fracturing of the relationship is serious and carries with it a significant risk of a descent into family violence, either on the part of [X] towards the mother or the mother towards [X]. This also carries with it the risk of [Y] being exposed to family violence, This also means that, even if [X] and [Y] were to return to Queensland with the mother, there are significant questions as to how that might benefit her relationship with each of them. It is notable that neither parent sought or raised the issue that orders be made separating [X] and [Y].
His Honour provided no reasons or foundation for his conclusion that what he had earlier “tentatively” found to be “some risk of family violence” within the mother’s household became a “significant risk” of descent into family violence. That leads us to accept the challenge to his Honour’s orders, namely that he gives no reasons nor identifies any base from which he drew the conclusions in either [17] or [30].
In SS & AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:
100.… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Here his Honour was obliged, to the extent that he was able, to find the facts based on the evidence before him and from those facts his Honour’s reasoning to his conclusions in [17] and [30] should flow. His Honour did not. He recited the evidence, noted the difficulties attending the reliability of the evidence but did not conclude any facts from the evidence on which his findings were based.
Both of these grounds having succeeded makes it unnecessary to consider the balance of the grounds which address the weight that the primary judge gave to the evidence before him.
The appeal will thus succeed.
The balance of the appeal grounds challenge the weight attributed to the evidence before the primary judge. Given our findings on Grounds 1 and 2, it is unnecessary to consider those grounds.
The application for summary dismissal of the appeal
The father filed an Application in an Appeal seeking that the appeal be summarily dismissed because the mother’s summary of argument was filed later than ordered. Consideration of that application was reserved to the hearing of the appeal and, as a result, he filed a summary of argument and the appeal proceeded. Therefore, the application was not pressed and will therefore be dismissed.
Disposition of the appeal
Although the mother’s preference was that the Full Court re-exercise the primary judge’s discretion, given the time that has elapsed since the making of the orders and the nature of the issues in contest there is no option but to remit the matter to be reheard by a judge other than the primary judge.
Interim orders
Because the appeal has succeeded we propose to set aside the relevant orders made by the primary judge. The mother submitted, in that event, the appropriate course was to revert to the orders made in June 2012 which provided for the children to live with her and for her to have sole parental responsibility for them. However, we propose to remake the orders of the primary judge (save for the orders as to sole parental responsibility in favour of the father and the orders that are now otiose due to the passage of time) as interim orders, pending further order.
As to parental responsibility, it seems to us that parental responsibility in accordance with s 61B of the Act would be the more appropriate arrangement in the interim period. We understand that the mother proposed that even if the primary judge’s orders that the children live with the father were made as interim orders, she argued that she should have sole parental responsibility. That contention is on its face unworkable. It could not be considered feasible for the children to be living with the father in Canberra and for the mother, living in North Queensland, to have sole parental responsibility. Given that the children’s living and time arrangements are set in the short term, the statutory regime will give each of the parties the necessary parental responsibility to enable them to meet the children’s needs while they are in their respective care.
Costs
The appeal has succeeded on the basis of an error of law. Counsel for the mother submitted that it was appropriate that an order for costs certificates for the appeal and in relation to any rehearing be made. This is not a matter in which there should be an order as between the parties as to costs and in our opinion is an appropriate matter for the order for a costs certificate. The father has acted for himself and has incurred no legal costs or expenses and thus the order for a costs certificate will be made solely in favour of the mother.
I certify that the preceding-forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie‑Wallace, Ryan & Aldridge JJ) delivered on 9 August 2018.
Associate:
Date: 9 August 2018
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