M & P

[2006] FamCA 1

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA Appeal No. EA 92 of 2005

File No. CAM 850 of 2005

BETWEEN:

Appellant Mother

-and-

Respondent Father

REASONS FOR JUDGMENT OF THE COURT

CORAM:  Finn J
DATE OF HEARING:        8 December 2005
DATE OF JUDGMENT:     10 January 2006

APPEARANCES:

Ms Tonkin of Counsel (instructed by Lessli Strong & Associates; DX 5618, Canberra ACT) appeared on behalf of the appellant mother.
Mr Hodgson of Counsel (instructed by Nicholl & Co; DX 5710, Canberra ACT) appeared on behalf of the respondent father.

APPEAL SUMMARY

MATTER:  M and P
APPEAL NUMBER:  EA 92 of 2005
  (CAM 850 of 2005)
CORAM:  Finn J
DATE OF HEARING:  8 December 2005
DATE OF JUDGMENT:                 10 January 2006

CATCHWORDS:

FAMILY LAW – APPEAL from FEDERAL MAGISTRATE – RESIDENCE – CONTACT – Interim parenting orders – Whether the trial Judge correctly applied the principles in Cowling – Whether the trial Judge made orders promoting stability in the children’s lives – Whether the trial Judge had proper regard to the matters in s 68F(2) and especially sub-paragraph (g) – Whether the trial Judge had effectively imposed a joint parenting arrangement where such arrangement was not appropriate – Whether the trial Judge had considered the impact on the mother’s parenting capacity of the children having increased contact with the father – Whether the trial Judge erred in the specific orders made for contact in relation to the amount of leisure time each parent had with the children pursuant to the orders.

Caselaw cited:

Cowling (1998) FLC 92-801

B v B (Access) (1986) FLC 91-758

House v The King (1936) 55 CLR 499

CDJ v VAJ (1998) 197 CLR 172

Blanch v Blanch and Crawford (1999) FLC 92-837

Patsalou and Patsalou (1995) FLC 92-580

Grant (1994) FLC 92-506

Legislation cited:

Family Law Act 1975: s 94AAA(3); s 68F(2) including sub-paragraphs (g) and (j)

Appeal dismissed.

This is an appeal by the mother against orders which were made by Mowbray FM on 21 July 2005 and which essentially provided that the two daughters of the mother’s relationship with the father (who are aged 12 and 10) should reside with the father from after school on Thursdays until 10.00am on Sundays and that they should reside with the mother at all other times.
The orders also provided for a range of other matters such as the children’s spending half of all school holidays with the father, each parent’s involvement in the children’s school and weekend sporting activities, and the transfer of the proceedings between the parents from the Federal Magistrates Court to the Family Court.
Although the original notice of appeal stated that all orders were the subject of the appeal, at the hearing of the appeal argument was only directed to his Honour’s order providing for the children to reside from Thursday afternoon to Sunday morning with the father. I mention here that it had been the mother’s position before the Federal Magistrate that the father should only have alternate weekend contact from Friday night until Monday morning.
I also mentioned at this introductory stage that the appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).

Brief factual background

The mother and the father commenced to reside together in 1991. Their daughters were born, respectively, in October 1993 and September 1995.
The parents separated under one roof in November 2004. The father left the family home on 26 May 2005 after the mother obtained a domestic violence order in the ACT Magistrates Court on that day.
On 2 June 2005 the father filed an application in the Federal Magistrates Court seeking final orders that the children live on a week about basis with him, and interim orders that they live with him from 7.00pm on Thursday to 10.00am on Monday. He also sought to have half of all school holidays with the children both on an interim and final basis.
On 24 June 2005 the mother filed a response seeking the preparation of an urgent family report and that the father be restrained from having any contact with the children save as required for the purposes of the preparation of the family report.
On 27 June 2005 Brewster FM ordered the preparation of a family report and contact between the father and the children “from 7.00pm Thursday 30 June 2005 until 10.00am on Sunday 2 July 2005.”
Prior to the making of those orders the father had not had contact with the children since he left the home on 26 May 2005.
In an amended response filed on 11 July 2005 the mother sought on both an interim and final basis that the children should reside with her and have alternate weekend contact from Friday afternoon to Monday morning.
The father’s application for interim orders came before Mowbray FM on 18 July 2005 for hearing. In accordance with the usual practice the matter was determined on the basis of affidavit evidence and oral submissions.
On the following day, his Honour delivered an ex tempore judgment and made the orders which I earlier described and which are now the subject of this appeal. I will refer later to his Honour’s reasons where relevant in the context of my consideration of the mother’s grounds of appeal.

The mother’s grounds of appeal

The mother’s grounds of appeal, contained in an amended notice of appeal filed 25 November 2005 and relied on at the hearing before me, assert that his Honour erred:
·in his application of the principles in Cowling (1998) FLC 92-801 (ground one);
·in failing to take into account the unchallenged evidence of Mr M (the mother’s therapist) of the impact of contact between the children and their father on the mother’s parenting capacity (ground two);
·in the exercise of his discretion in ordering contact between the children and their father every weekend in circumstances where the expert recommended the parties should equally share in the leisure activities of the children and the Court agreed (ground three); and
·in failing to have regard to and apply the principles “as set out by the Full Court” in B v B (Access) (1986) FLC 91-758 (ground four).
Before considering the mother’s complaints as embodied in her grounds of appeal, it is important that I emphasise the limitations on the role of an appellate court in determining an appeal against orders such as those which are the subject of this appeal, and which are known as discretionary orders. The limitations on an appellate court in relation to such orders were explained by the High Court (Dixon, Evatt and McTiernan JJ) in House v The King (1936) 55 CLR 499 in the following way (at 504-505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
Much more recently, the High Court (McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172 has explained in the following terms, not only the limits on appellate interference with regard specifically to discretionary judgments concerning the living arrangements for children, but also the fact that there is no uniquely correct order when determining such arrangements:
151.… Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. … The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
152.The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. …

The application of the principles in Cowling

The decision of the Full Court of this Court in Cowling is recognised as the authority which currently governs the approach to the determination of applications for interim parenting orders under the Act and this was the authority which Mowbray FM expressly relied on in the present case.
However, it is the mother’s first ground of appeal that his Honour misapplied the principles of that case (that is, he made an error of legal principle which would thus permit appellate interference with his decision). Given the mother’s case in this regard, I consider it useful to set out the passage from the Full Court’s decision in Cowling – notwithstanding the length of that passage – where the principles which should govern the determination of interim parenting proceedings are stated:
18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
19. Having regard to the earlier authorities of the Court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows:—
20. Firstly, having regard to the provisions of s 65E, in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration.
21. Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.
22. Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child's stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary. Such indications would include but are not limited to convincing proof that the child's welfare would be really endangered by his/her remaining in that environment.
23. Fourthly, the Court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the Court to take account of the circumstances giving rise to the current status quo. In particular, the Court may examine the following issues:—
• whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.
• whether the current arrangements have been unilaterally imposed by one party upon the other.
• the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.
24. Fifthly, where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s 68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child's best interests. In undertaking that evaluation, regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (supra).
25. Finally, in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:—
• the wishes, age and level of maturity of the child.
• the current and proposed arrangements for the day to day care of the child.
• the period during which the child has lived in the environment.
• whether the child has any siblings and where they reside.
• the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.
• the educational needs of the child.
Before me, it was submitted by Counsel for the mother that his Honour had misapplied the principles in Cowling in three significant respects:
·first, he had not made orders that would promote stability in the children’s lives;
·secondly, he had not had proper regard to the matters contained in s 68F(2) of the Act and in particular sub-paragraph (g) (being the need to protect the children from physical or psychological harm); and
·thirdly, he had imposed what was effectively a joint parenting arrangement in a case where he had recognised during the hearing that such an arrangement was not appropriate.
In relation to the first issue of the need to ensure stability in the children’s lives, it was submitted by Counsel for the mother that although his Honour had expressly acknowledged (in paragraph 11 of his judgment) that Cowling had “referred to the importance of promoting stability”, his orders which provided for what was effectively a shared parenting regime, would not achieve such stability. Rather, it was submitted such stability would have been achieved for these children if they had been left to live predominantly with their mother, who had been their primary care giver, in the former family home.
However, his Honour concluded (in paragraph 16 and again in paragraph 18 of his judgment) that the father had played an important and active part in the children’s lives and that their best interests were “most likely to be promoted by the father having significant and continuing involvement with them” (paragraph 22 of his judgment). His Honour’s orders were clearly designed to ensure such “significant and continuing involvement” by the father in the children’s lives. As I believe I observed to Counsel for the mother during the hearing of the appeal, stability in a child’s life involves more than mere bricks and mortar; it also involves relationships.
It is true that before his Honour (as indeed he recognised in paragraphs 16 and 18 of his judgment) and also before me, the mother disputed the depth of the father’s involvement in the children’s lives, asserting that the father had only sought to involve himself extensively in the children’s lives as her own relationship with the father had deteriorated, and as he sought to limit her role in their lives. However, again as I observed during the hearing of the appeal, these are complex issues which could only be properly explored in the context of a hearing for final orders. I am therefore not satisfied that his Honour’s discretion miscarried on the basis that he has not made orders which would promote stability in the children’s lives as required by Cowling.
It is convenient in this context next to consider the third of the matters raised by Counsel for the mother in support of the complaint that his Honour had misapplied the principles in Cowling, that being that his Honour had imposed a shared parenting regime in circumstances where he had acknowledged during the course of the hearing that shared parenting arrangements do not work if there is no cooperation between the parties.
It is true that his Honour commented during the course of the hearing before him that shared parenting arrangements do not work if there is no cooperation between the parents (see Transcript 18/07/05 p 18). It is also true that this is a proposition which is well recognised, at least as a general proposition, by courts exercising jurisdiction under the Act.
However, it must also be recognised that judicial officers will often state a proposition in the course of argument before them, but that proposition is not then ultimately reflected in their judgment – indeed the proposition may well be rejected in the judgment.
Further, and perhaps more significantly, it has to be recognised that there are many cases in which, notwithstanding the poor relationship between a child’s parents, there will be other factors which will tip the balance in favour of a shared arrangement. It is clear that this was the position in this case.
Thus, I do not consider that his Honour’s discretion miscarried in this case because of his recognition during the hearing before him of the general proposition that shared parenting arrangements generally require the cooperation of both parents. I would add that I do not consider that his Honour erred in the appellate sense by not expressly explaining in his judgment why he was imposing what was certainly close to a shared regime, notwithstanding the poor relationship between these children’s parents. The reasons why he made the orders which he did are, in my view, patently clear.
Finally in the context of his Honour’s application of the principles in Cowling, it was very strongly pressed on behalf of the mother that his Honour had erred in failing to have regard to the significance of domestic violence proceedings involving children and to the matters contained in s 68F(2)(g) of the Act.
Section 68F(2) of the Act sets out a range of matters to which a court must have regard in determining what is in a child’s best interests for the purposes of determining residence and contact proceedings. It will be seen from the passage quoted above from Cowling that, at least in certain interim proceedings, the Court should have regard to such of the matters contained in s 68F(2) as it considers relevant. In the present case, his Honour clearly considered that he should have regard to the following relevant s 68F(2) matters when he said:
20.The critical considerations for me are those set out in s68F(2) of the Act, and in particular:
·s68F(2)(a), the wishes expressed by the children;
·s68F(2)(b), the nature of the relationship of the children with each of the parents;
·s68F(2)(c), the likely effect of changes in the children’s circumstances;
·s68F(2)(e), the capacity of each parent to provide for the needs of the children, including emotional and intellectual needs;
·s68F(2)(f) the children's maturity, sex and background; and
·s68F(2)(j) any family violence order that applies to the children or a member of the children's family.
21.There is no suggestion of any violence or psychological abuse by either parent towards the children. I note the ages of the two children. I note their wishes, their relationship with both parents and the care and involvement of both parents in the children's lives to date, including their schooling. I also note the very real and important concerns about the fragile state of the mother’s emotional health.

It is true as asserted on behalf of the mother, that his Honour did not refer to paragraph (g) of s 68F(2) which is in the following terms:
the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
However, it was expressly conceded in the written submissions on behalf of the mother that the children had not suffered physical abuse and I understood the mother’s Counsel to make a similar concession in her oral submissions. There was no suggestion in the evidence before his Honour of any sexual abuse of the children. In these circumstances, the relevance in this case of paragraph (g) of s 68F(2) would have to be the need to protect the children from the effects of the violence that the mother alleged the father has perpetrated on her, or from the effects generally of living in a violent household – although I understood it to be submitted on behalf of the mother that the father’s conduct towards her cast serious doubts on his own capacities as a parent and that this was a matter which his Honour should have considered.
There is undoubtedly considerable force in the submissions made by Counsel for the mother and in the various authorities to which she referred (notably Blanch v Blanch and Crawford (1999) FLC 92-837 and Patsalou and Patsalou (1995) FLC 92-580), concerning the effects on children of exposure to a violent environment (even when they are not themselves the direct victims of the violence). The difficulty, however, in this case is that the allegations of violence made by the mother against the father are untested allegations – indeed they were allegations strenuously denied by the father as his Honour recorded in the following passages from his judgment:
5.I must emphasise that there are significant disputes in the affidavit evidence and that evidence has not been tested. …
…
7.As I have said there are strong allegations in the affidavit material. Such allegations are just as strongly denied and none have been tested.
In my view, his Honour cannot be said to have erred in principle or in any other manner which would justify appellate interference on the basis that he did not consider the possible effects on the children of the matters which were the subject of the allegations, in the event that the allegations ultimately were found to be true.
It was sufficient, in my view, that his Honour noted the existence of the family violence order in the context of s 68F(2)(j) and that he noted that there was “no suggestion of any violence or psychological abuse by either parent towards the children.” In the context of a very brief interim hearing which – it is important to note –was all that either party sought from him, his Honour cannot, in my view, be criticised for not placing greater weight in reaching his decision and framing his orders on the mother’s allegations of violence on the part of the father, which, as his Honour said, were “strongly denied” by the father and had not “been tested”.
Thus, for the reasons which I have given, I am not persuaded that his Honour erred in his application of the principles in Cowling.

The impact on the mother of the children’s contact with the father

It will be convenient next to consider together grounds two and four which assert that his Honour erred in failing to take into account the evidence of the mother’s therapist, Mr M, of the impact of contact between the children and their father on the mother’s parenting capacity, and in failing to have regard to and to apply the principles set out in B v B (Access).
I mention here that B v B (Access) was not in fact a decision of the Full Court as stated in ground four in the amended notice of appeal. Rather, it was a decision of a single judge, Gee J. But however that may be, it was a case in which the husband had pleaded guilty to committing an act of indecency on a child of the wife who was not a child of the husband and where the wife believed that the husband had also sexually interfered with two of her children, identified as A and D, who were children of the husband. The wife therefore opposed any contact between the father and his children.
To the extent that a principle of general application can be said to be found in the judgment of Gee J, it is to be found in the following extracts from his Honour’s judgment (at 75,545-546):
Now, it is clear that the welfare of the children is the paramount consideration. The real question in this case is whether making an order for access will promote the ongoing welfare of the children or whether it will undermine such stability as they already have. While it is desirable for children to maintain a meaningful relationship with both parents, something even more desirable when separated … that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child …
… I accept, the fact remains that the wife is absolutely convinced of the truth of the children's allegations, is totally opposed to any contact with the husband and has on her track record acted consistently with her feet in relation thereto.
Further, A and D have been in the care and control of the wife since September 1984 and are completely emotionally dependent upon her and her ability to provide a safe and secure home base for them.
Accordingly, in my opinion, any plan involving access by the father, quite apart from any direct effect upon the girls, will be highly destructive for A and D because it will be highly destructive of their mother and hence destructive of her capacity to provide for the safety and security which they so much need from her at this time and for the foreseeable future.
Subsequently in Grant (1994) FLC 92-506 at 81,259 Purdy J referred to Gee J’s decision in B v B (Access) in the following way:
As I have said before there is no doubting her very genuine fear of the husband and fear of access. This provides this additional element that I previously referred to. Mr Justice Gee many years ago in the case of B and B (Access) (1986) FLC 91-758 laid down the principle that the Court can and must take very much into account in assessing the desirability of access the possible effects of an access order on the custodial parent. If the Court comes to the conclusion that an access order will have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child then the Court must take that into account in assessing whether access is for the benefit of the child.
It is important to note that ground two, in its assertion that his Honour failed to take into account the impact of the mother’s parenting capacity of contact between the children and their father, relies expressly on the evidence of Mr M. I therefore consider it necessary to set out in full that evidence which was contained in a letter to the mother’s solicitor attached to an affidavit :
I am, as you are aware, [the mother’s] psychological therapist. It is essential that you and those dealing with her are informed about her psychological vulnerability under current pressures. She has been in therapy with me since 2002, trying to resolve her marital issues in favour of maintaining the relationship (until recently) while at the same time seeking to gain a basic sense of safety in any intimate context. She suffers severe post traumatic stress which she has managed to contain and diss-associate from most areas of daily life. Current pressures threaten her developing capacity to deal with such issues at her own pace.
[The mother] has been mentioning the undesirability and distress of anal sex with [the father] since December 2002. She is increasingly more able to confront her partner’s sexual and abusive behaviour as she accepts that her own efforts to pacify him do not work. On a number of occasions [the mother] has presented in a highly distressed state, exhibiting symptoms of anxiety attack (hyperventilation, shaking, sweating, nausea, fear of going mad, and pacing or walking outside the room), and extreme self criticism. Her efforts and success in maintaining control have stood in stark contrast to the disturbing incidents she would report.
Thus, it is likely [the mother] will be re-traumatised as disclosures of the events she has worked so hard to contain are made. The above symptoms recur. They did so as I assisted her to complete an affidavit. Every effort is recommended which might provide safety and graduated adjustment to her confrontation of abusive and traumatic events. The therapeutic relationship she has developed with me offers a secure psychological space in which to work. Any context is bound to re-stimulate her fear reactions if careful consideration is not afforded. The threat of family breakdown is high, something she has worked painstakingly to avoid. Any threat of loss or danger to her children is extremely problematic.
There is significant progress in this case because [the mother] is moving beyond her self-denying efforts to make things better unilaterally towards inviting others, including [the father] to assist. She is likely to put traumatic experiences to rest as she increases safety and self-advocacy. She is likely to increase in confidence and assert herself more freely. She has not required her children to compensate for her distress and is likely, without ongoing threats, to afford them even more structure and stability. I have no concerns about the childrens’ well being in her company because she appears to offer them freedom of emotional expression and affection.
It is important to note that [the mother] has been able to contain or compartmentalize her experience of trauma. This is evident in terms of successfully developing her career and maintaining daily family activities. This is often true of those who suffer post traumatic stress. As she progresses beyond the singular choice of containment of traumatic experiences, she will find it more difficult to forego contact with and ensure the safety of her children. This would be natural. She must, for example, face the reality of her own lack of safety with their father.
I strongly recommend the undisturbed continuation of [the mother’s] therapy. Any further assessments or wider psychological involvements would be best undertaken with another professional practitioner.
It will be seen that nothing in that report would have enabled his Honour to make a finding concerning “the impact of contact between the children and their father on the mother’s parenting capacity.” Rather, on the basis of Mr M’s evidence his Honour could, in my view, have done no more than he did in paragraph 21 of this judgment, which was to “note the very real and important concerns about the fragile state of the mother’s emotional health.”
When during the hearing of the appeal I pointed out to Counsel for the mother my concerns that Mr M’s evidence would not support the complaint contained in ground 2, I understood Counsel to seek to rely on paragraph 1.42 of the Family Report by a psychologist, Ms I, which is as follows:
The author is of the opinion that despite the mother’s experience of trauma symptoms she has resounding personal competencies, emotional supports and therapeutic support for parental competency. This is contingent on personal feelings of safety, including distance from [the father]. She requires to be reassured [the father] will not psychologically influence the children against her or exclude her from parenting.
Again this evidence would not enable any finding to be made concerning the impact of contact between the children and the father on the mother’s parenting capacity.
Accordingly, ground two has not been established.
I turn then to the assertion in ground four that his Honour failed to have regard to and apply the principles set out in B v B (Access) which, as I have already pointed out, is a decision of a single Judge and not of the Full Court. In paragraph 19 of his judgment Mowbray FM recorded the reliance which had been placed on behalf of the mother before him on the decision in B v B (Access), but his Honour effectively disregarded that and other decisions relied on, for the reason that in his view they turned on their own facts and were different from the facts of this case. I would not criticise the Federal Magistrate for the opinion he expressed in this regard. In this highly discretionary jurisdiction, each case must ultimately turn on its facts.
To the extent that it is possible to distill a general principle, from B v B (Access) and the other authorities relied upon, to the effect that regard should be had to the impact on the parenting capacities of a primary custodian who has made and may genuinely believe serious allegations against the other parent, of contact between the children and that other parent, the difficulty in this case is that there was no clear expert evidence to support such a finding.
It may well be that with the benefit of a full hearing where the judicial officer has had the benefit of seeing and hearing a parent, who opposes or wants to limit contact because of his or her fear regarding the other parent, the judicial officer could make such a finding in the absence of express expert evidence concerning the likelihood of such an impact on the particular parent. In my view, it could not be done in such a short summary hearing such as was conducted in this case and in the absence of express expert evidence to support such a finding. I note that the authorities on which Counsel for the mother relied in this regard, all appear to have involved a hearing for final orders.
Accordingly, ground four has also not been established.

The time for each parent’s involvement in the leisure activities of the children

The remaining ground of appeal to be considered asserts an error in the exercise of discretion by the Federal Magistrate in ordering contact between the children and their father every weekend “in circumstances where the expert recommended the parties should equally share in the leisure activities of the children and the Court agreed.”
It was submitted on behalf of the mother in support of this ground that by the time the children return to her each Sunday at 10.00am and then attend Mass with her, there is little time left for any other leisure activity before the school week starts again.
The precise terms of the relevant recommendation by Ms I were:
1.41It is important the children have the benefit of each parent in all aspects of their lives so that contact arrangements do not exclude a parent from either school related or weekend activities. Changeovers via school may alleviate the distress between the parents and children.
The only comment in his Honour’s judgment which would seem to be directed to this matter is the following:
22.The children’s best interests, in my view, are most likely to be promoted by the father having significant and continuing involvement with them. This should not be limited to that sought by the mother.
It will be recalled that the limitation sought by the mother to which his Honour was referring, was that the father should only have contact with the children each alternate weekend.
It may well be that were the children to spend each alternate weekend with one or other parent, then the parents might well be able to share virtually equally in their weekend activities. However, his Honour determined in the exercise of his discretion, that there should be a greater involvement by the father in their lives than mere alternate weekend contact. In my consideration of the mother’s grounds of appeal to this point, I have not been persuaded that my interference with this exercise of discretion by his Honour would be justified, having regard to the principles set out earlier in this judgment.
Another judge could well have determined that the children should return to the mother somewhat earlier in the weekend than the time provided in his Honour’s orders. However, as the authorities earlier quoted make clear, that is not the test. Put simply, there would be no justification for my interference with his Honour’s decision as to the time when the children return to their mother.
Thus, ground three also cannot succeed.

Conclusion

Because none of the grounds of appeal have succeeded, the appeal must be dismissed.

Order

That the appeal be dismissed.

I certify that the preceding 57 paragraphs are a true copy of the reasons for judgment of this Honourable Court

Associate

[2006] FamCA 1

10 January 2006

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