Maple and Niu
[2016] FamCAFC 70
•6 May 2016
FAMILY COURT OF AUSTRALIA
| MAPLE & NIU | [2016] FamCAFC 70 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against orders which depart from an equal time arrangement in favour of substantial and significant time – Where the primary judge made orders restricting the father from entering upon an area where the mother lives with the child – Where the restraining order was justified – Whether proper provision made for the child to spend time with the father on special occasions – Exercise of discretion – Adequacy of reasons – Whether findings were open – Where error not established – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 64B, 68B, 69B, 94(2), 114 Family Law Amendment Act 1987 (Cth) Family Law Reform Act 1995 (Cth) s 31 Explanatory Memorandum, Family Law Amendment Bill 1987 (Cth) |
| Bennett and Bennett (1991) FLC 92-191 |
| APPELLANT: | Mr Maple |
| RESPONDENT: | Ms Niu |
| FILE NUMBER: | NCC | 1862 | of | 2007 |
| APPEAL NUMBER: | EA | 89 | of | 2014 |
| DATE DELIVERED: | 6 May 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Cronin JJ |
| HEARING DATE: | 29 October 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 June 2014 |
| LOWER COURT MNC: | [2014] FamCA 421 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Graham |
| SOLICITOR FOR THE APPELLANT: | Flintoff Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Levick |
| SOLICITOR FOR THE RESPONDENT: | Attwaters |
Orders
The appeal against the orders made by the Honourable Justice Cleary on 20 June 2014 is dismissed.
Any submissions as to costs are to be filed and served within 28 days from the date of this judgment. Any submissions in reply are to be filed and served within a further 28 days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maple & Niu has been approved by the Chief Justice 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 89 of 2014
File Number: NCC 1862 of 2007
| Mr Maple |
Appellant
And
| Ms Niu |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Maple (“the father”), by an Amended Notice of Appeal dated 19 December 2014, appeals against orders made by Cleary J on 20 June 2014. On that day, in parenting proceedings between the father and Ms Niu (“the mother”), her Honour made a suite of parenting orders concerning the parties’ child, V (“the child”), who was born in 2002. The orders provided that the mother have sole parental responsibility for the child, who was to live with the mother, that the child spend time with the father each alternate weekend during school terms from after school Friday to before school on Monday, and half of each school holiday period. Her Honour also restrained the father from being or residing within 500 metres of the mother’s residence. The father appeals against the making of this order which we shall refer to as “the 2014 restraining order”. The father also appeals against the primary judge’s decision not to make orders providing for the child to spend time with the father mid-week and on specific special days.
It is not necessary to recite the parties’ litigation history. It is sufficient to say that they have been involved in parenting proceedings concerning their child since 2003 with little pause.
Grounds of appeal
The father raised five grounds of appeal. The first two grounds deal with the 2014 restraining order and the next two with the time the child was to spend with the father. The fifth ground related to the child’s name, and was abandoned.
The 2014 restraining order (grounds 1 and 2)
The father submits that the primary judge did not give adequate reasons for the making of the 2014 restraining order. Alternatively, he submits that the primary judge erred in making the order because it was beyond the power of the Court. Counsel for the father accepted that if there was power to make the order there could be no proper challenge to the discretionary aspects of the decision.
In order to understand these grounds some background is necessary.
On 19 March 2008, the court, by consent, made the following order (“the 2008 restraining order”):
21.2The father is restrained from entering upon [W] Street, [Suburb S] between [X] Street and [Y] Street unless with the consent in writing of the mother.
The mother then lived, and presently continues to live, in that part of W Street.
On 27 June 2011 the father purchased and moved into W Street. The house he purchased is within sight of the mother’s house. The primary judge found that the father had breached the 2008 restraining order by living in that property. This, the primary judge said, “…introduced both tension and expense into [the mother and her new husband’s] household”.
On 16 August 2011 the mother filed a contravention application which was amended in November. The application alleged the father’s actions in buying and moving into W Street contravened the 2008 restraining order. On 27 March 2012 the court found the contraventions to have been established. The father was ordered to pay the mother’s costs in the sum of $5,855.
On 28 September 2012 the mother filed another contravention application. Again, it was alleged that the father had contravened the 2008 restraining order by continuing to be present in the part of W Street from which he had been barred from entering. In his response the father sought interim orders which included a variation to the time the child was to spend with the parties and an order varying the 2008 restraint. On 20 December 2012 the father’s application was dismissed with costs.
On 25 February 2013 the mother filed a contravention application again alleging breaches of the 2008 restraining order.
The 28 September 2012 and 25 February 2013 contravention applications were withdrawn and a fresh application, alleging the same contraventions, was filed. On 3 May 2013 the primary judge found that the father had contravened the 2008 restraining order as alleged by the mother and he was ordered to enter into a 12 month good behaviour bond. There was no appeal against that order. It is also noteworthy that at no stage has it been suggested that the 2008 restraining order was made in excess of power.
Of these matters the primary judge said:
83.Mr [N] [the mother’s husband], together with the mother, has had to contend with the fact that the father, in breach of Court orders, bought a house in the street within sight of their own house, which introduced both tension and expense into their household. The father acknowledges that he did the wrong thing in buying the house, nevertheless he still owns it, his father lives there and it must have been a most testing situation. Whatever Mr [N] felt about the situation he maintained restraint.
…
87.It is a matter of some significance that the father in June 2011, moved into a property at [W] Street, [Suburb S]. He had bought the property probably in combination with family members. The father now concedes that this was a direct contravention of an order 21.2 made in 2008 by consent.
88.The first contravention in respect of this matter was found in March 2012 and the father was ordered to pay costs. A further contravention was found in May 2013 and the father was placed on a 12 month Good Behaviour Bond. The father readily conceded that his view was that the particular order should never have been made. This is a concerning insight into his attitude to orders. I have the impression that he has consented to orders more than once, without a settled intention to comply with them.
89.I do accept that the father believed that it might be a good thing for [the child] to have both parents living close by so that she could move freely between the houses. However to accept that belief is to also accept that the father was entirely insightless about the likely outcome as opposed to the desired one. There was obviously a degree of provocation in buying the house and breaching the order, but I consider that it was the father’s way of forcing the issue believing that once the mother saw the benefits for [the child], she would adopt his approach to the orders; that is to disregard them.
90.The impact on [the child] was predictable. [The child’s] psychologist reports that [the child] suffered as a result of the conflict being brought so close to home. The father acknowledges that that happened. However I am certain that he believes that it is the mother’s problem and that she passed up the opportunity to view the world as he does and to take a different approach. I am confirmed in this by the fact that the father said he did not tell the mother in advance of his intention to purchase the property because he knew that she wouldn’t want him to do it.
91.I accept the proposition put by counsel for the mother that the father’s actions in this regard would have been and were seen by the mother as, a fundamental breach of trust. I further note that the father’s idea that the mother should be more flexible was not reflected in his contravention applications brought against the mother, mainly for the mother making appointments for the child without prior notice to him with an optometrist and a podiatrist.
92.The evidence of the mother is that if the order is not continued as a final order, she and her husband will sell their house and move. Nevertheless the father’s oral evidence was that there would be “ways around [the mother]’s concerns” if he moved into the property again.
…
149.Each of these parents has brought contravention applications against the other with varying degrees of success. A significant contravention was the father buying and living in a property in the street where the mother lives. Non-compliance with orders by both parents has led to a great deal of litigation and trouble.
On this basis, the primary judge ordered:
…
(13)The father is restrained from being or residing within 500 metres of the mother’s place of residence.
…
We consider that those reasons fully explain why the primary judge made the 2014 restraining order. The rationale for the 2014 restraining order is clear and is designed to protect the child from being exposed to the tension caused by the parental dispute being brought so close to home (Bennett and Bennett (1991) FLC 92-191 at 78,266).
That said, we agree with the submission made by counsel for the father, that the primary judge mistakenly described the mother’s application as seeking continuation of an earlier order which restrained the father from coming within 500 metres of the mother’s residence. The point being, the 2008 restraining order did not do what her Honour said and thus the primary judge proceeded under the mistaken belief she was asked to do no more than continue an order of long standing, when in fact the proposed order was to allegedly greater effect. Although we agree there is no reference to 500 metres in the 2008 restraining order, the error is of no consequence. We have already explained the rationale for the 2014 restraining order. The rationale and purpose of the 2008 restraining order is patently the same. The comparatively minor change in the wording of the 2008 restraining order is justified by the mother’s evidence that if the father continues to own his house in W Street, the mother will consider moving. The new order takes that possibility into account.
Unfortunately the primary judge failed to identify the provision pursuant to which the 2014 restraining order was made and thus the opportunity was created for the father to challenge its validity. Before us, it was common ground that the 2014 restraining order was an injunction made under either s 68B or s 114(1) of the Family Law Act 1975 (Cth) (“the Act”).
The father submitted that neither s 68B nor s 114 could be a source of power to make the order. It was argued that s 69B(1) of the Act precluded s 114 from having any operation in proceedings instituted under Part VII of the Act (which these proceedings were) and that s 68B could not be relied upon because an order made under that provision (in particular ss 68B(1)(a), 68B(l)(b) and 68B(1)(c)(ii)) may only be made where a person (nominated in the provision) is in need of personal protection. As no person in the present case was in such need, it was submitted s 68B could not apply. Neither of these submissions was advanced before the primary judge, but, because the submissions went to the power of the Court, we decided to receive them. However, as we will now explain, we do not accept either proposition.
We will consider the challenge raised in relation to the operation of s 69B(1) first. Section 69B(1) is contained within Part VII of the Act and states:
(1) Proceedings that may be instituted under this Part must not, after the commencement of this section, be instituted otherwise than under this Part.
Section 69B was inserted into the Act by s 31 of the Family Law Reform Act 1995 (Cth) (No. 167, 1995) and replaced the former s 63A. The former s 63A was inserted into the Act by the Family Law Amendment Act 1987 (Cth) (No. 181, 1987) and amended by the Child Support (Assessment) Act 1989 (Cth) (No. 124, 1989). That amendment is concerned with child support and is of no relevance here.
The Family Law Amendment Act 1987 (Cth) extended the powers under the Act relating to the care and maintenance of children as a result of a referral of powers from certain states. To accommodate the extended operation of the Act, Part VII was introduced, which brought together in a single part of the Act the provisions relating to children. Relevantly, the Explanatory Memorandum to the Family Law Amendment Bill 1987 (Cth) provides:
The Bill amends the Family Law Act 1975 –
(a)to implement the references of powers from New South Wales, Victoria, South Australia and Tasmania relating to –
· the maintenance of children and the payment of expenses in relation to children or child bearing; and
· the custody and guardianship of, and access to, children in those States and to apply the Act as amended to the Territories in which the Act presently applies;
…
2.The implementation of the reference of powers means that the provisions of the Act relating to the custody, guardianship and maintenance of children may now cover ex-nuptial children within the limits of the enlarged legislative power of the Parliament resulting from the referral of powers. Apart from the operation of the Act in the Territories to which it applies, the provisions of the Act as so enlarged may for constitutional reasons extend only to the referring States. In relation to Queensland and Western Australia, the Act will continue to operate as in the past. To accommodate this extended operation of the Act, it has been found convenient to bring together in a single part of the Act – proposed new Part VII – the provisions relating to children.
Section 63A was contained in Division 4 of Part VII of the Act, which division provided for the “Jurisdiction of Courts”. The original text of s 63A was as follows:
63A. Proceedings that may be instituted under this Part shall not, after the commencement of this section, be instituted otherwise than under this Part.
The newly inserted s 63A was explained in the Explanatory Memorandum to the Family Law Amendment Bill 1987 (Cth) (at [88]) thus:
New section 63A provides that, on the commencement of new Part VII, proceedings in respect of matters covered by new Part VII shall not be instituted otherwise than in accordance with new Part VII.
Section 69B was inserted in identical terms to s 63A and relevant to these proceedings is as set out above at [19]. As we said earlier, the only amendment to s 69B relates to child support and can, for present purposes, be ignored. The Explanatory Memorandum to the 1995 amendments provides no guidance, as it merely repeats the text of the provision.
However, it can be seen that the inclusion of both s 63A and s 69B at the same time as the conferral of jurisdiction under the Act of powers previously exercised by various State and Territory courts indicates that these are provisions concerned with the effective conferral of exclusive jurisdiction. In other words, s 63A and now s 69B serve the same purpose in relation to those children covered by the 1987 and 1995 referrals as, for example, s 8(1) does with respect to matrimonial causes. Thus, the provision ensured the conferral of exclusive jurisdiction (of a type referred to in the provision) and any State or Territorial law or jurisdiction (in a referring State or Territory) which previously dealt with the same subject matter was superseded.
We do not accept that the effect of s 69B(1) is that only the provisions within Part VII are applicable to cases commenced under it. Rather, it requires such cases to be commenced only under that Part rather than pursuant to other legislation or the common law.
It follows that the operation of s 114(1) was not excluded by s 69B. However, there are intricacies about how s 114 operates in circumstances such as arise here but to which no argument was addressed. Because, as we will now explain, we are satisfied that the 2014 restraining order was made pursuant to s 68B(1)(d)(i), we need not discuss s 114 any further.
Turning then to s 68B, this provision is as follows:
Injunctions
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
In this case, the circumstances addressed by the 2014 restraining order are identical to those addressed in s 68B(1)(d)(ii). As we have already explained, it was clearly an order that the primary judge considered appropriate for the welfare of the child. It was within power because, in that circumstance, the subsection clearly empowers the making of an order restraining a person from entry to or remaining in a specified area containing a place of residence of the child. To that extent, therefore, the provision permits a restriction on, as in this case, the movement of a parent.
Unlike s 68B(1)(a) and (b), subsections (c) and (d) do not contain the qualification that the injunction is to be for the personal protection of a person. There is no basis for imposing such a qualification on injunctions under subsections (c) and (d) when to do so would be contrary to the clear words of the section.
It follows that s 68B(1)(d)(ii) provided a source of power to make the 2014 restraining order.
However, there is no doubt that a parenting order may cover the same ground as an order pursuant to s 68B and unless the source of power is identified in the order there can be some difficulty discerning the power which underpins the order. In this case and notwithstanding the 2008 restraining order was made by consent, there is some uncertainty about whether the 2008 restraining order was discharged or continued to operate. That is because the primary judge, as part of her orders, discharged all prior parenting orders.
As we have already explained, it was agreed the 2014 restraining order was made under either s 68B or s 114(1). We have determined s 68B was the source of power. For the same reasons, we are satisfied the 2008 restraining order was made pursuant to s 68B(1)(d)(ii). Therefore it is not a parenting order and was not discharged by the 20 June 2014 orders.
The parties agreed that if the appeal is unsuccessful, the 2008 restraining order should be discharged. That will need to be done in the exercise of original jurisdiction.
Grounds one and two have not been made out.
Orders for time to be spent with the father (grounds 3 and 4)
The third ground of appeal is that the primary judge did not make proper provision in the orders for the child to spend time with the father because the orders did not provide for the child to spend time with the father mid-week on a school day, the child’s birthday and Easter. Ground four asserts that the primary judge failed to give adequate reasons for not making such orders.
The relevant orders are:
(9) That the child shall spend time with the father as follows:
(a)During school terms on alternate weekends from after school Friday to before school on Monday (or Tuesday if Monday is a public holiday) commencing on Friday 2 May 2014 with the father to be responsible for collection and return of [the child] to school.
(b)During school holiday periods (as nominated by whichever school [the child] attends):
(i)for the first half in even numbered years commencing on the first day after the last day of term;
(ii)for the second half in odd numbered years commencing on the mid-point day of the total holiday period; extending to the whole of the holiday period between the end of Term 2 and the beginning of Term 3.
(c)From 4.00 pm on Christmas Day to 4.00 pm on Boxing Day in the Christmas holiday periods when [the child] is spending time with the father in the second half of the holiday period commencing 25 December 2015.
(d)On the weekend of Father’s Day from 6.00 pm on the Saturday prior to return to school on the following Monday.
(e)At such other and/or additional times as agreed between the parties.
(10)In the event that [the child] is spending time with her father on the weekend on which Mother’s Day falls, then time is suspended from 6.00 pm Saturday for the balance of the weekend period, which time shall be spent with the mother.
(11)Time is suspended from 4.00 pm Christmas Day until 4.00 pm Boxing Day, which time shall be spent with the mother, when [the child] is spending time with the father for the first half of Christmas school holiday periods commencing 25 December 2014.
It was submitted by the father that:
·The failure to provide for the child to spend mid-week time with the father was contrary to the court’s finding, previously quoted, that “[t]here is a need for both parents to be fully involved in [the child’s] education”.
·The same consideration applies to the child’s birthday and Easter.
·The family consultant recorded that each parents wanted the child to spend “…significant and substantial time with the other parent” and opined that this “…represents a child focussed approach”.
·The primary judge found that the child has her most important relationships with each of her parents and that she will benefit from maintaining her relationships with both parents.
An immediate difficulty for the father is that he did not seek an order for
mid-week time from the primary judge. The family consultant recommended alternate weekend time. There was no recommendation for mid-week time. In those circumstances, it is not surprising that the primary judge did not to make an order for mid-week time.
However, the father did seek an order that the child spend time with him at Easter and on her birthday, in the terms set out below:
5.…
(b)from 3:00pm on the Thursday prior to Good Friday until 9:00am on the Tuesday after Easter Monday in even numbered years.
…
(d)On the child’s birthday from after school to 5.30pm if a school day or from 3pm that day to 10am the next day if a non school day.
(Father’s Outline of Case Document filed 21 March 2014, p 2)
In discussing the views expressed by the child the primary judge said (at [136]-[139]):
136.[The child] expressed what [family consultant] describes as a very clear and strong view that she wished to live mostly with one parent, rather than continue with the equal time arrangement that she had experienced for the previous five years. [The child], whose parents separated when she was nine months old, would have no memory at all of having lived together with both of them. I can easily accept that [the child’s] reason for this strong view being that she could “more easily get used to one set of rules rather than continuing switching between two sets of rules”.
137.Having heard the evidence in this case, it is very clear to me that the sets of rules for [the child] are hugely different. In her mother’s house, there are well communicated rules about bedtime, homework, television viewing, reading, completion of household tasks such as washing up and tidying the bedroom. In the father’s home [the child] is the only other member of the household and there are no particular rules in play. [The child] is allowed to do more of what she wants and not very much that she doesn’t want to do.
138.[The family consultant] says that when questioned, [the child] was confident that she could easily manage the other parent’s rules on weekends and on school holidays. She could think of no disadvantages of this form of parenting arrangement. She was also dismissive of the possibility of missing one parent when not living with them, explaining that she could always ring them if she wanted to.
139.I accept that this would be [the child’s] genuine view. She has her own mobile telephone and is a confident user of that phone and of social media. Further, approaching 12 years, her attachments are solid with each of her parents and she has no fear and there is no reason for her to have a fear; that either parent would withdraw from her life, quite the contrary.
(Footnotes omitted)
The primary judge thus found that the child’s genuine views were that she would prefer to live mostly with one parent and to spend time on weekends and school holidays with her other parent. Those views do not support mid-week time.
It is noteworthy that at paragraphs [67]-[68] of his report the family consultant said:
67.It is recommended that [the child] live predominantly with one parent and spend significant and substantial time with the other parent based upon alternative weekends from after school Friday to before school Monday and for half of each school holiday period.
68.It is recommended that specific arrangements be made for culturally significant occasions such as Christmas Day, Mothers Day [sic] and Fathers Day [sic] such that [the child] shares these occasions equally with each parent on an alternating year basis. It is further recommended that complications to the base parenting arrangements for culturally significant occasions be minimised (such as not having specific arrangements for birthdays) as any opportunity for parental interaction and changeover outside of school is likely to end in conflict and stress for [the child].
The opinion expressed in the second paragraph quoted was not challenged by the father during the hearing.
The unchallenged evidence of the family consultant provides ample evidence for the primary judge’s decision not to make an order for the child to spend time with the father on her birthday.
Before us, counsel for the father properly acknowledged that Easter usually falls during school holidays and, because the orders provide for the child to spend time with the father during school holidays, he will be able to spend some Easters with her. The point being, the father will spend time with the child almost as often as was sought.
The decision as to whether to make orders for mid-week time, Easter and the child’s birthday was quintessentially a discretionary decision. An appellant who seeks to advance as a ground of appeal that the primary judge gave inadequate weight to particular facts in the exercise of his or her discretion faces a high bar (Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 61 CLR 513).
On the evidence before the court, the findings and orders regarding the time and occasions that the child was to spend with the father were well open to the primary judge. The fact that the child had previously lived with the father each alternate week and the other matters raised by the father did not compel a different finding.
There is no merit in grounds three and four.
Form of orders
As no grounds of appeal have been established the appeal will be dismissed.
At the hearing of the appeal the parties asked the Court, by way of consent minutes, to amend the existing orders by inserting the word “same” before the word “details” in order 14(c).
As we have said, the parties also agreed that, in the event the appeal was unsuccessful, order 21 made on 19 March 2008 be set aside.
It appears to us that these orders do not fall within the ambit of s 94(2) of the Act and cannot be made by us in the exercise of appellate jurisdiction. The variation to order 14(c) and the discharge of order 21.2 will, however, be made by a member of this bench in the exercise of original jurisdiction, immediately after the making of the orders in this appeal.
Costs
In the course of making submissions as to costs the parties indicated that they would prefer to complete their submissions in writing after delivery of the judgment. Directions will be made for the parties to file written submissions as to costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Cronin JJ) delivered on 6 May 2016.
Associate:
Date: 6 May 2016
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