Martin & Floyd & Anor
[2013] FamCAFC 46
•5 March 2013
FAMILY COURT OF AUSTRALIA
| MARTIN & FLOYD AND ANOR | [2013] FamCAFC 46 |
| FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parental responsibility ─ Parenting arrangements ─ Where the orders of the Federal Magistrate provided that the maternal grandfather have sole parental responsibility for the child of the father and the mother ─ Where the father sought to have sole parental responsibility for the child ─ Challenge to the exercise of the Federal Magistrate’s discretion ─ Where if appealable error was able to be demonstrated, it could only be on the basis that although it may not be apparent how the error of principle occurred, the result must have been plainly wrong (see CDJ v VAJ) ─ Where it was not demonstrated that his Honour impermissibly or unreasonably formed any adverse view of the father or his attitude or anything relating to the father’s circumstances ─ Where the Federal Magistrate adopted a course which, whilst not necessarily that which other judicial officers may have adopted, has not been shown to have been other than reasonably open to him ─ Not established that the result was plainly wrong ─ No appealable error established ─ Appellate intervention not enlivened ─ Appeal dismissed. |
| Family Law Act 1975 (Cth) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 CDJ v VAJ (1998) 197 CLR 172 Edwards v Noble (1971) 125 CLR 296 SSHontestroom v SS Sagaporack [1927] A.C. 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 Voulis v Kozary (1975) 180 CLR 177 |
| APPELLANT: | Mr Martin |
| FIRST RESPONDENT: | Ms Floyd |
| SECOND RESPONDENT: | Mr Floyd |
| FILE NUMBER: | ADC | 1204 | of | 2011 |
| APPEAL NUMBER: | SA | 40 | of | 2012 |
| DATE DELIVERED: | 5 March 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Coleman, Ainslie-Wallace and Ryan JJ |
| HEARING DATE: | 4 March 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 April 2012 |
| LOWER COURT MNC: | [2012] FAMCAfam 329 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Pyke QC |
| SOLICITOR FOR THE APPELLANT: | Tracee Micallef |
| COUNSEL FOR THE RESPONDENT: | Mr Dixon |
| SOLICITOR FOR THE RESPONDENT: | Cynthia A Toose & Associates |
Orders
The appeal be dismissed.
Written submissions in support of any application for costs be filed and served within 28 days.
Written submissions in opposition to any application for costs be filed and served within 28 days thereafter.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Floyd and Anor 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 ADELAIDE |
Appeal Number: SA 40 of 2012
File Number: ADC 1204 of 2011
| Mr Martin |
Appellant
And
| Ms Floyd |
First Respondent
And
| Mr Floyd |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
coleman j
introduction
By Notice of Appeal filed on 14 May 2012, Mr Martin (“the father”), appealed against orders made by Brown FM on 16 April 2012 in parenting proceedings between the father and Mr Floyd (“the grandfather”), and Ms Floyd (“the mother”). Although a party to the proceedings, the mother did not actively participate, the parenting dispute essentially being between the father and the grandfather.
The orders of the learned Federal Magistrate of 16 April 2012 provided, in essence, that the grandfather have sole parental responsibility for the child of the father and the mother, X (“the child”), who was born in 2007, and that the child live with the grandfather and spend time with the father during school term on alternate weekends from 5pm Friday till 5pm Sunday, for half school holidays in relation to certain of the school holiday periods, and for three weeks, which approximates half of the Christmas holiday periods, and on other special occasions.
In lieu of the orders of the learned Federal Magistrate, the father seeks, as a minute of order dated 20 November 2012, and relied upon by his learned Senior Counsel confirms, that the father have sole parental responsibility for the child, that the child spend time with the grandfather each alternate weekend from 5pm Friday until 5pm Sunday, and on the intervening Wednesday for a period of three hours to incorporate the evening meal. A variety of orders in the alternative were sought, as articulated in paragraphs 3, 4, and 5 of the minute of orders sought by the father.
The grandfather resisted the father’s appeal and sought to maintain the orders of the learned Federal Magistrate.
background
Some dates and events provide background to the appeal. None of these dates or events is controversial.
The grandfather was born in 1956, and is accordingly 56 years of age.
The wife of the grandfather, Mrs L, with whom the grandfather continues to live, and who is involved to a substantial degree in the care of the child the subject of the parenting proceedings, was born in 1958, and is thus 54 years of age.
The child’s mother was born in 1985, and is thus 27 years of age.
The father was born in 1989, and is accordingly 23 years of age.
In about 2007, the mother and the father commenced a relationship.
As recorded earlier, the child was born in 2007. Shortly thereafter, in about February 2008, the parents of the child separated, and did not again cohabit. The father spent time with the child subsequent to February 2008, but not on any formal or regulated basis. The child was at that time residing with the mother in rental accommodation, which was apparently made available to her by her parents, the grandfather and his wife, Mrs L.
In 2009 and 2010, endeavours were made to formalise arrangements for the care of the child as between the mother and the father. Consent orders were made in the Local Court on 30 September 2010 which provided for the parents to have joint parental responsibility, and for the father to spend increasing time with the child, culminating in that time commencing at 5pm Friday, concluding at 5.30pm Sunday each alternate weekend, and from 2pm to 5pm of the alternate Friday.
There was some measure of success, but also a measure of difficulty in relation to the implementation of those arrangements. Events, however, overtook those difficulties insofar as in February 2011, the mother was arrested, and the child commenced to reside with the grandfather and his wife.
All parties had, up to that time, been living in or near to B. The mother went to a town in the central west of New South Wales about a month after the child commenced to reside with her father and his wife.
On 4 May 2011, orders were made that the child reside with the grandfather and spend time with the father each weekend from 5.30pm Wednesday until 8pm, each alternate weekend from 5pm Friday till 5pm Sunday.
In about August 2011, an arrangement commenced to operate whereby the child spent time with the father from 5pm Friday till 8am Wednesday. In effect, what was referred to in submissions as a “9-5 arrangement”.
the appeal
Before proceeding to consider the grounds of appeal, it is perhaps, and particularly as the father and other members of his family are present in Court for the hearing of these ex tempore reasons for judgment, worth taking a few moments just to record the well-established principles which govern the appeal to this Court. Those principles are well-known to Counsel, and particularly to Senior Counsel, who represented the father before this Court, but not surprisingly, are less well -known to litigants.
In the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172, Kirby J, in the course of his judgment, recorded what he referred to as a number of general propositions relating to appeals against discretionary judgments. A decision in a parenting case is undoubtedly a discretionary judgment, and I read from paragraph 186 of his Honour’s judgment, in which, amongst other things, his Honour said:
Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified. ... (Footnotes omitted)
Kirby J proceeded to record, in subparagraph (2) of 186, why what his Honour referred to as appellate restraint is of particular importance in appeals in this Court, and even more so where, as is the present case, those appeals involve parenting orders.
The second matter worth perhaps briefly recording is what is generally referred to as the trial Judge’s advantage. The learned Federal Magistrate saw the parties give evidence, and saw the parties cross-examined. To the extent that it had an impact upon his decision, as clearly it did, albeit to a very limited extent, his Honour had the advantage over this Court of having observed the demeanour of witnesses when giving evidence.
Whilst the transcript, which this Court has, records literally everything which happened at trial, as the judgments of the High Court for decades have acknowledged, there is a material difference between having the opportunity to see and hear the evidence and the witnesses who give it, and simply reading what is recorded as having been said (see SSHontestroom v SS Sagaporack [1927] A.C. 37, Voulis v Kozary (1975) 180 CLR 177, Abalos v Australian Postal Commission (1990) 171 CLR 167 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588). This has particular significance in relation to what are known as findings of fact. Albeit to a very minor extent in this appeal, the findings of fact have not been challenged, or material findings of fact have, with perhaps one exception, not been challenged.
It is important to remember that simply because other findings of fact may also have been open on the evidence before the learned Federal Magistrate does not demonstrate that a finding of fact complained of was thus not open or available to his Honour. That is not the test. The test is whether the finding of fact or findings of fact material to the exercise of discretion have been shown to have not been reasonably open to the learned Federal Magistrate (see Edwards v Noble (1971) 125 CLR 296 at 304). It will be immediately apparent that the test thus raised is one which is not lightly or readily satisfied.
the grounds of appeal
Learned Senior Counsel for the father, in my view, sensibly, argued the grounds of appeal in groups, by reference to their subject matter.
Grounds 1 and 2
Grounds 1 and 2 of the father’s Notice of Appeal provided:
1.The learned Federal Magistrate gave undue weight to the father’s position at the commencement of hearing that there should not be formal orders in favour of the second respondent spending time with [the child].
2.The learned Federal Magistrate failed to give adequate or sufficient weight to the father’s change of position during the period of the hearing.
Grounds 1 and 2 can broadly, for present purposes, in the interests of clarity, be described as relating to the father’s position at trial. In short, as the submissions of Senior Counsel for the father articulate, the complaint made is that the learned Federal Magistrate unfairly regarded the father’s position in terms of making informal orders in reaching his decision, insofar as it was submitted his Honour unfairly and unreasonably criticised the father for having not sought formal orders in favour of the grandfather until after the evidence at trial concluded, and/or failed to give adequate or sufficient credit to the father for changing his position from one which was perhaps less than reasonable to one which was, however successful or otherwise, not unreasonable.
With respect to the ingenuity of Senior Counsel for the father’s submissions, I would not conclude that his Honour erred in any of the ways urged upon the Court in support of this complaint. I would so conclude because, on a balanced reading of the learned Federal Magistrate’s comprehensive and cogently articulated reasons for judgment, I do not accept that the father’s change of position informed, or influenced, or assumed any significance in his Honour’s determination of the question of the best interests of the child.
It has not been demonstrated that his Honour impermissibly or unreasonably formed any adverse view of the father or his attitude, in relation to those matters.
I would accordingly reject the challenges on behalf of the father, articulated in grounds 1 and 2.
Grounds 3, 4, 5 and 19
Grounds 3, 4, 5 and 19 of the Notice of Appeal were argued in conjunction with each other. Those grounds provided:
3.The learned Federal Magistrate failed to take into account the nature and circumstances of the appellant’s family life including that he has re-partnered, he is in a stable relationship with [Ms K] and that both the appellant and [Ms K] are in secure paid employment and provide a stable and secure income.
4.The learned Federal Magistrate gave undue and inappropriate weight to the fact that neither the appellant nor [Ms K] hold a driver’s licence.
5.In assessing the relationship between the appellant and Mr [Floyd], and the conduct and attitudes of one towards the other, the learned Federal Magistrate failed to take into account or sufficiently to take into account the comparative youth and inexperience of the appellant compared with the age and maturity of the second respondent.
...
19.The learned Federal Magistrate erred in his assessment that the appellant’s behaviour with respect to driving indicated a lackadaisical attitude to the responsibilities incumbent on being a parent.
Each of those grounds raises a series of slightly different matters, and it is perhaps convenient to commence, first, with the challenge articulated in ground 3. That ground asserted, in substance, that the learned Federal Magistrate failed to take into account, or sufficiently take into account, the nature and circumstances of the father’s current life and arrangements for the child, were he to primarily reside with him and his partner. Importantly, this complaint does not suggest that the learned Federal Magistrate in any way misconceived or erroneously recorded any of those matters, but rather that they were not given sufficient weight.
It is clear, in my view, from a balanced reading of the learned Federal Magistrate’s reasons for judgment that his decision was not in any way based upon or influenced by any perceived superiority or ascendancy of the arrangements of the grandfather for the care of the child, in any of the ways referred to in ground 3, over those of the father.
It is clear, and will become clearer when dealing with some later challenges to the Federal Magistrate’s decision that, in what was clearly a finely balanced case, his Honour was more influenced by questions of the emotional attachments of the child than by any other fact or circumstance. In my view, it cannot be accepted that his Honour’s decision was in any way impermissibly influenced by anything relating to the father’s circumstances. Others may have given them more or less weight than his Honour did, but that, as the authorities make clear, is not the test.
Similar observations, in my view, apply to the complaint that the learned Federal Magistrate gave undue and inappropriate weight to the fact that neither the father nor his present partner holds a drivers licence. That topic clearly assumed a life at trial which, with hindsight, it perhaps did not deserve, but no criticism can, in my view, be directed to the learned Federal Magistrate, the issue having been on the agenda, as it were, for having dealt with it. His Honour’s consideration of the issue occupies a number of paragraphs of his reasons for judgment, which have been identified by Senior Counsel for the father, they being particularly paragraphs 125, 131, 166, 167 and 288 of the judgment which provided:
125.Mr [Martin] and Mr [Floyd] presented as temperamentally similar in the witness box. Both are strong minded, somewhat dogmatic people, who see things in black and white terms. As such, they are each convinced of the appropriateness of their preferred outcome. Neither seemed to have any great capacity to empathise with the position or aspirations of the other.
...
131.I do not consider that Mr [Martin] was disinterested in [the child] at this stage. However, he was young at the time and perhaps without a great deal of support. He was also working out bush at regular intervals and his relationship with [Ms Floyd] was obviously not without its issues. In all these circumstances, I accept Mr [Floyd’s] evidence that Mr [Martin] only had irregular and brief involvement, with [the child], during the majority of 2008 and 2009.
...
166.This seems to me to be something of an overstatement but, in my view, it does demonstrate a lackadaisical attitude to the responsibilities incumbent on being a parent. I agree that, in this day and age, it is close to a necessity for a parent to be able to drive in order to attend to the daily needs of his or her child, which include delivery to and from pre-school, school and other commitments.
167.At present, there is no technical impediment to Mr [Martin] gaining a driver’s licence. It is puzzling that he has not taken more active steps to gain one. It seems more likely than not that he will qualify for a driver’s licence at some stage in the foreseeable future. However, it cannot be guaranteed that he will throw off his apparent inertia in respect of the issue.
...
288.Mr [Martin] acknowledges that he was immature when [the child] was born. I am not critical of him for this, given that he was eighteen years of age at the time. I also accept that he has matured rapidly, in recent times, particularly after he became involved with [Ms K].
Ultimately, the learned Federal Magistrate concluded that it was likely that the father, who has never held a drivers licence, would acquire one. That finding is not without significance. Of greater significance is the reality that, whatever curiosity surrounded the father’s driving history and the absence of a drivers licence in the household of the father and his present partner, and the consequences of it, in terms of the dependence upon other people to provide road transport, it has not, in my view, been demonstrated that that erroneously informed or influenced the learned Federal Magistrate’s decision. To put it simply, far more important matters were pivotal to his Honour’s decision.
With respect to the submissions of Senior Counsel for the father, nothing inferred by the learned Federal Magistrate in relation to the question of a drivers licence was, in my view, other than reasonably open. To the extent that such inferences may not have been reasonably open, which I do not accept has been demonstrated, the second requirement for that complaint to find favour is not met, that is to say, it has not been demonstrated that anything to do with a drivers licence influenced the learned Federal Magistrate’s ultimate decision.
The fifth matter complained of seems to be, in essence, that the learned Federal Magistrate, in his assessment of the attitudes of the parties, failed to take into account or sufficiently to take into account the age and inexperience of the father compared with the age and maturity of the grandfather.
With respect to Senior Counsel for the father, and to adopt the language of tort, the learned Federal Magistrate had to “take his victims as he found them”. It was not incumbent upon his Honour, on the evidence to which this Court has been referred, to make allowances, which his Honour did not make. But more importantly, a balanced reading of His Honour’s reasons for judgment, whilst revealing that his Honour did not accept that the father’s view of the attitude of the grandfather was reasonably established, reveals that no criticism of the father for holding such views was, in my view, formed or impermissibly reached by the learned Federal Magistrate.
As I have suggested at least twice already, and will suggest on further occasions when dealing with other grounds of appeal, this case ultimately, as the learned Federal Magistrate made clear at a number of points in his reasons for judgment, turned on other and more important issues, albeit, those paragraphs do not assume central significance until other grounds are considered.
It may be convenient at this point to identify the paragraphs which, in my view, reveal why the case was decided in the way that it was. The learned Federal Magistrate recorded, at paragraph 248, having referred earlier and accurately to the history of the child’s care:
Whatever were the rights and wrongs of the situation, in the period of [the child’s] first three years or so, I am satisfied that [Mrs L] and Mr [Floyd] assumed a position of pre-eminence in providing for [the child’s] care. In my view, this is the most significant factor in the case at this stage. As such, I believe that I must be careful before embarking on any wholesale or experimental changes in this bedrock reality of [the child’s] life.
His Honour proceeded to record:
249.At present, this reality is based on the fact that his main home is with the [Floyds] and his closest attachment is to [Mrs L], who has provided the majority of his care, certainly since [Ms Floyd] went to [central western New South Wales]. In any view, the [Floyds] are persons who, both historically and currently, are concerned with [the child’s] care, welfare and development.
That theme was echoed in a number of other paragraphs, amongst which was paragraph 300, which summarised much of what his Honour had earlier articulated. His Honour there said:
After having considered all the evidence, I have come to the conclusion that it is Mr [Floyd’s] household which is the better placed one to provide [the child’s] predominant place of abode. I accept that [the child’s] main attachment and his principal source of emotional sustenance is to his grandfather and particularly [Mrs L], who have each been involved significantly in his care from the earliest stages.
Against that background, and in the absence of findings adverse to the father in terms of his attitudes or capacity, and such findings have either not been indicated, or to the extent that they have, and indeed were, by Counsel for the grandfather, those criticisms were counterbalanced almost exactly by similar or not dissimilar criticisms of the grandfather.
There was thus simply nothing in relation to which the learned Federal Magistrate was obliged to consider making allowances or adjustments because of comparative ages and maturity. That was not what the case was about. In my view, ground 5 is predicated on the erroneous assumption that such factors did arise when, in reality, they did not.
Ground 19 reiterated the complaint about the drivers licence, and it is unnecessary, in my view, to say much more about that, save perhaps that the lackadaisical attitude referred to in the ground, and his Honour’s comments to that effect were, in my view, both open to him and, more importantly, did not inform or impermissibly inform or influence his Honour’s decision.
Ground 6
Ground 6 of the father’s Notice of Appeal provided:
6.In determining that it was in the best interests of [the child] that he should reside with the second respondent, the learned Federal Magistrate failed to take into account or sufficiently take into account that the care of [the child] was substantially undertaken by the second respondent’s partner, [Mrs L], and the childcare provided by Ms [D].
Ground 6 complained that the learned Federal Magistrate failed to take into account or sufficiently take into account that the care of the child was substantially undertaken by the grandfather’s partner Mrs L and the childcare provided by Ms D, each of whom gave evidence before the learned Federal Magistrate. It is not suggested, nor, with respect, in my view, could it have been, that his Honour’s consideration of that issue was factually erroneous.
The learned Federal Magistrate was in no doubt as to what the arrangements were. It is difficult to understand in what way, other than by viewing it as a disqualifying factor, or something analogous to it, the learned Federal Magistrate could or should have adopted a different approach to this topic to the one which his Honour took.
On both sides of the record, there was a regime of care or, in the case of the father a proposed regime of care, which involved assistance from other and entirely suitable people. With respect to the submissions of Senior Counsel for the father, to in some way criticise those arrangements when no real criticism was levelled at them in terms of their sufficiency or quality during the trial would not have been reasonably open to his Honour.
Perhaps more importantly, however, as suggested earlier, his Honour did not elevate the actual arrangements operating in the grandfather’s household to some ascendency or primacy over those which the father proposed. In reality, this was a case, as the learned Federal Magistrate recorded, where the child would be adequately cared for whatever order his Honour made. The case turned, ultimately, on issues of attachment, using the term in the lay sense, as the learned Federal Magistrate clearly did in reliance upon the evidence before his Honour.
To the extent that ground 6, or grounds 7 and 8 to which reference will shortly be made, assert that learned Federal Magistrate in any way was unduly critical of the father’s proposed arrangements, or unduly favourably disposed towards those provided by the grandfather, the evidence does not, in my view, establish that his Honour either erred in fact or in discretion in the weight which he afforded those matters.
Grounds 7 and 8
Grounds 7 and 8 are, in effect, to some extent the mirror reverse of ground 6, at least ground 7 is.
Grounds 7 and 8 of the father’s Notice of Appeal provided:
7.The learned Federal Magistrate erred in his finding that whilst [the child] is in the care of the appellant, [Ms K] spends a lot of time caring for [the child] (in the absence of the appellant).
8.The learned Federal Magistrate failed to take into account or sufficiently take into account the amount of time the appellant spends with [the child] during the course of the time [the child] is in the appellant’s household.
As I have suggested earlier in dealing with ground 6, the learned Federal Magistrate did not, in my view, regard the arrangements in either household as either warranting criticism, or materially significant to those in the other household. I would not consider grounds 6, 7 or 8 to have been made out.
I take some comfort in relation to grounds 7 and 8 from the concluding submission of Senior Counsel for the father, at page 7 of her outline – a comprehensive outline of argument, which records:
There is no question of the capacity of the Appellant to care for [the child] or a suggestion that he does not attend to the day to day care of [the child] when in his care. No criticism of any substance has been made in that regard.
That is undoubtedly an accurate summary of the learned Federal Magistrate’s reasons for judgment. His Honour did not make the criticisms that these complaints are predicated upon his Honour having made, and the submission recognises that.
Ground 9
Ground 9 of the father’s Notice of Appeal provided:
9.The learned Federal Magistrate failed to sufficiently take into account the report of Ms [H], particularly insofar as that report relates to her perceptions of observed interaction between [the child], the appellant and [Ms K] and as to [the child’s] general demeanour and presentation.
Ms H recommended equal shared time, of course neither party sought that order at trial. In terms of the bonds or attachments of the child to the father and other members of his household, in oral evidence Ms H properly acknowledged that she was not in a position to give evidence about those matters. I would accordingly not accept that it has been demonstrated that ground 9 has merit.
His Honour gave Ms H’s evidence the weight to which it was entitled. Nothing emerging, ultimately from the evidence of Ms H was inconsistent with, or has been shown to have been inconsistent with the conclusion with respect to best interests which the learned Federal Magistrate ultimately reached.
Grounds 10, 11 and 23
Grounds 10, 11 and 23 of the father’s Notice of Appeal were argued conjointly and provided:
10.The learned Federal Magistrate erred in his findings viewing the totality of her evidence, that the view of Ms [D] was that [the child] was not coping well with the current arrangements and that he was an unhappy and troubled little boy.
11.The learned Federal Magistrate placed undue emphasis on such evidence.
...
23.The learned Federal Magistrate placed undue weight upon the evidence of Ms [D] and particularly her observation as to the nature of the relationship between [the child], the [Floyds], Mr [Martin] and [Ms K].
The paragraphs of the learned Federal Magistrate’s reasons for judgment which deal principally with this issue commence at paragraph 75. His Honour there accepted the evidence of Ms D as being likely to be a more useful resource for the Court.
His Honour said that having dealt with the evidence of Ms H, Ms D had been the child’s childcare worker since he was 18 months of age, as paragraph 72 of his Honour’s reasons for judgment record. Ms D was thus in a position to give first-hand evidence based more on her experience than might have been the case had she been engaged in a professional or other capacity for the purpose of the litigation.
The Court has not been referred to any evidence suggesting that Ms D’s impartiality, or the veracity of her evidence, was suspect or that she should have, in any way, been so regarded by the learned Federal Magistrate. Ms D, indeed, did not provide an affidavit, but gave evidence as the consequence directing her to attend to give evidence.
The learned Federal Magistrate recorded at paragraph 76, Ms D’s view, which undoubtedly was her view as the evidence revealed it, that the child was currently not coping well with the arrangement which was put in place in regard to his care in August 2011. She described him as a troubled little boy. In my view, this piece of evidence is central. In what way the learned Federal Magistrate was not entitled to accept Ms D’s evidence or to give it such weight as his Honour did, has not, in my view, been demonstrated.
It was submitted that there was no evidence to substantiate concluding that the child’s demeanour was on account of his not coping with the current arrangements. In my view, there did not need to be such substantiation. Ms D was in a position to give that evidence; she gave the evidence and was tested at trial by counsel then representing the father. The evidence was, in my view, able to be accepted.
It was further complained that there was no evidence of any expertise by Ms D to make the causal connection between the perceived behaviour, and what went on in the father’s household. For my part, I am not aware and do not consider that the Court has been referred to any evidence establishing that Ms D sought to elevate her observation evidence to the level of causality. Nor did, in my view, the learned Federal Magistrate find that there was such causality. His Honour properly, in my view, took into account that evidence in conjunction with the other evidence to which I have earlier referred as having been found by his Honour to be the central or pivotal issues in determining the case.
At paragraphs 275 and 276 the learned Federal Magistrate under the s 60CC consideration, the likely effect on the child of any changes in the circumstances, recorded that he accepted the evidence of the grandfather’s partner and Ms D that the child has not coped well with the regime of substantial and significant time with his father which was inaugurated in August of 2011. So doing did not expressly or impliedly involve a finding of causality, as the submissions on behalf of the father assert.
His Honour further recorded that he found Ms D to be an objective and insightful witness. As earlier suggested, nothing to which this Court has been referred suggests that it was other than open to his Honour to so find. He further reiterated, as he had earlier recorded, the significant period of time, as indeed it was, during which Ms D had been involved with the child, and her further observation, again, able to be and accepted, that the child does not cope well if he is separated from the Floyd’s for an extended period of time. His Honour, thus, in the passages to which I have earlier referred, concluded that the best interests would be served by the child living with the grandfather and his partner. I thus would not accept that any of the challenges articulated in these three grounds has been made out.
Grounds 12, 13, 14, 15, 24 and 25
Grounds 12, 13, 14, 15, 24 and 25, although traversing a range of matters relating both to the issue of primary residence and time to be spent, as agitated by Senior Counsel for the father, in my respectful view sensibly, ultimately focused on the orders ultimately made by the learned Federal Magistrate for the father to spend time with the child during school terms.
Grounds 12, 13, 14, 15, 24 and 25 of the father’s Notice of Appeal provided:
12.The learned Federal Magistrate failed to properly apply the relevant principles of Part VIII of the Family Law Act in particular, the provisions of Section 60B(1) and (2) and Section 60CC.
13.The learned Federal Magistrate failed to sufficiently or adequately take into account the need for [the child] and the appellant to have a meaningful relationship and that [the child] has the right to know and be cared for by his parents and to spend time on a regular basis with his parents.
14.The learned Federal Magistrate failed to have regard or sufficient regard to the desirability of [the child] residing with the appellant or alternatively, spending substantial or significant time with him.
15.The learned Federal Magistrate failed to have regard or sufficient regard to the fact that the effect of his orders insofar as it relates to parental responsibility is that neither of [the child’s] parents have any parental responsibility for him in circumstances where the appellant is ready, willing and able to assume that responsibility.
...
24.The learned Federal Magistrate failed to have regard or sufficient regard to the concerns of the appellant that his relationship with [the child] would not reach its full potential if his time with [the child] was confined to weekends and school holidays.
25.The learned Federal Magistrate whilst recognizing the benefit to [the child] of rendering his relationship with the appellant more meaningful in the longer term and whilst conscious that there would be perils in attempting to hothouse the relationships, nevertheless failed to provide any mechanism by way of orders or otherwise to facilitate and ensure the relationship between the appellant and [the child] more meaningful in the longer term.
The crux of these complaints is well summarised in the paragraph at page 9 of Senior Counsel for the father’s written submissions which reads:
It is inconceivable on the evidence, even if [the child] were not coping with such an extended period of time in the short term, that an appropriate final order, and the one least likely to give rise to litigation, was to reduce the father’s time back to what could only be described as a bare minimum with no mechanism for review, or way forward. The time [the child] spends with his father is not substantial, nor significant, and provides no opportunity for the father child relationship to grow.
In my view, the series of propositions there urged upon the Court, and for the complaints in these grounds to be upheld, which would need to be made out, have not been made out. The learned Federal Magistrate, having concluded that there should not be an order for equal shared parental responsibility, was not obliged to, and did not consider the child spending equal time with the father and the grandfather.
Quite apart from the fact that neither party wanted that, his Honour, by not ordering joint equal shared parental responsibility, was not obliged to consider it. Nor was his Honour obliged to consider what is described in Part VII of the Act as “substantial and significant time”. The crux of the challenge, which is further articulated in Senior Counsel for the father’s submissions, was that there was no cogent or compelling reason why a gradual increase in time reversing the care arrangements for the child could not be achieved if properly managed.
As the transcript of oral submissions in relation to these grounds would confirm, although in the written submissions Senior Counsel for the father asserted that the learned Federal Magistrate had erred in principle in relation to this issue, it was ultimately a challenge to the exercise of discretion. Ultimately, as Senior Counsel for the father appeared to at least tacitly acknowledge, and Counsel for the grandfather undoubtedly asserted, if appealable error was able to be demonstrated, it could only be on the last basis to which Kirby J referred in paragraph 186 of his judgment in CDJ v VAJ, which I referred to earlier in these reasons. That basis is, although it may not be apparent how the error of principle occurred, the result must have been plainly wrong.
The position of the father through his learned Senior Counsel was thus ultimately that, no matter how it was viewed, on the findings of fact made by the learned Federal Magistrate, it was plainly wrong to pare back the father’s time with the child to the extent to which his Honour did. It being plainly wrong because, it was submitted, such a “bare minimum” of time spent with the father could not possibly allow a meaningful relationship between the father and child to subsist and be sustained. For my part, I do not accept that the learned Federal Magistrate either failed to address this very difficult issue, or to adequately reveal the process of reasoning which led him to his conclusion in relation to it.
The passages of his Honour’s reasons for judgment where those matters are revealed most usefully commence, in my view, at paragraph 241. His Honour there referred, in my view, undoubtedly accurately, having regard to the findings of fact which his Honour had comprehensively recorded over the previous 240 paragraphs of his reasons, centres on the benefits the child is likely to have from having the optimal level of relationship with his father. Given the absence of the mother from the child’s life, and the unlikelihood that she will return to it in any significant or meaningful way, I accept that this is an important consideration in this case.
His Honour then referred, in my view, correctly to the non-impact, as it were, of biology in paragraph 242, and to his Honour’s impressions of the father’s understanding of how his relationship with the child might best be optimised, paragraph 243. His Honour clearly and accurately, there is no doubt, recorded the father’s concerns in paragraph 244, they being essentially that he would be confined to a subsidiary role in the child’s life.
The learned Federal Magistrate accepted at paragraph 245 that in the medium to longer term, it is likely to be beneficial to the child to have a meaningful relationship with his father. His Honour, there, and elsewhere in his reasons, used the expression “meaningful” with respect to the child’s relationship with his father at present, and into the future, and where best interests were the decisive factor in this case, equal time and substantial and significant time not requiring consideration. That was, in my view, a correct statement of, and approach to the issue which his Honour had to decide.
The learned Federal Magistrate referred to Ms D’s evidence in paragraph 245 with respect to the current relationship between the child and his father. His Honour referred in paragraph 246 to some particular aspects of the child which his Honour accepted in reliance upon the observations of Ms D. His Honour, in paragraph 247, whilst recognising the potential beneficial for extending the relationship, as Ms H recommends, recorded that he must remain focussed on the child’s “idiosyncratic needs at this particular stage of his development”. In paragraphs 248 and 249, which I earlier referred to in these reasons, his Honour recorded what he regarded as the most significant factor in the case, that being the primary attachment of the child to the grandfather, and his partner.
The learned Federal Magistrate then, at paragraph 252, revisited the undoubted concern which the father articulated. It is clear that his Honour was not unsympathetic to the father, as the terms of paragraph 252 clearly record. His Honour again, there, referred to the issue of meaningfulness. At paragraphs 253 through to 256, his Honour, with respect, on a balanced reading of his reasons, agonised over this issue. He was acutely aware that the order he considered to be in the child’s best interest was one which would cause the father hurt and disappointment. His Honour concluded the analysis of this difficult issue in paragraph 256 by saying:
In my view, this arrangement, although clearly not of Mr [Martin’s] preference, is the one which is likely to provide a more organic and natural basis for his relationship with [the child] to be extended in time rather than his dramatic proposal to either abruptly remove [the child] from the [Floyds] care or taper off their involvement with them by placing the child directly with him.
In my view, the learned Federal Magistrate adopted a course which, whilst not necessarily that which other judicial officers may have adopted, has not been shown to have been other than reasonably open to him. Importantly, as his Honour recognised in the paragraph to which I just referred, his Honour did not see the orders he made as being determinative for all times of the time which the child should spend with his father.
Grounds 16, 17 and 20
Grounds 16, 17, and 20 of the father’s Notice of Appeal were argued conjointly and in essence, asserted on the one hand matters critical of the attitudes of the grandfather and his partner, and asserted uncooperative and critical attitudes on their part on the one hand, and failure to appreciate the absence of such matters on the other. The grounds provided:
16.The learned Federal Magistrate failed to have regard or sufficient regard to the fact that the second respondent, aware of the appellant’s entitlement to spend time with [the child] pursuant to orders of Local Court in September 2010, did nothing to facilitate the appellant’s time with [the child], in particular as this reflected upon the second respondent’s commitment and capacity to ensure that the appellant and [the child] maintained a meaningful relationship.
17.The learned Federal Magistrate failed to have regard to sufficient regard to the unco-operative nature of the second respondent in his dealings with the appellant and was unduly critical of the appellant’s position when he commenced proceedings on 1 April 2011.
...
20.The learned Federal Magistrate failed to have regard or sufficient regard to the fact that the second respondent failed to ensure that the appellant could spend time with [the child] on his birthday, in particular as this reflected upon the second respondent’s commitment and capacity to ensure that the appellant and [the child] maintained a meaningful relationship.
As the submissions of Senior Counsel for the father make clear, the thrust of these complaints is, in reality, that the learned Federal Magistrate erroneously formed an excessively favourable view of the attitudes of the grandfather and his partner to the role of the father in the child’s life. As Counsel for the grandfather reminded the Court, in a number of paragraphs of his reasons for judgment, the learned Federal Magistrate was critical of both the father and the grandfather in relation to their attitudes on occasions in the past. It incorrect to suggest that the grandfather and/or his partner were given an unqualified stamp of approval with respect to matters of attitude. The learned Federal Magistrate clearly did no do that. A number of paragraphs are relevant to these complains which recorded:
141.Mr [Martin] complains that [Ms K] consistently flouted the Local Court order and was not at all supportive of his relationship with [the child]. Given the strained relationship between Mr [Martin] and [Ms Floyd], prior to the making of the orders, and [the child’s] limited relationship with his father, Mr [Martin’s] characterisation of the situation does not appear improbable.
142.His version of events is also supported by the fact that he engaged his solicitors, in February 2011, to write to [Ms Floyd’s] solicitor complaining about the situation. He was clearly dissatisfied with the situation and wanted to be involved with [the child].
143.It is [Mr Martin’s] further position that Mr [Floyd] and [Mrs L] were well aware of the contents of the Local Court orders and were complicit with [Ms Floyd] in her disregard of them. I accept that the [Floyds] were aware of the orders. However, they were not direct parties to them.
144.In addition, the situation relating to [Ms Floyd], in this period, was a difficult and fluid one. I suspect that both Mr [Floyd] and [Mrs L] were fearful of what might happen, in respect of [the child], in the vacuum which was created by [Ms Floyd’s] deficiencies as a parent, particularly her decamping from [B]. They had no confidence in being able to work constructively with Mr [Martin].
...
146.No doubt, Mr [Floyd] could have been more proactive in providing information to Mr [Martin] about both [Ms Floyd] and [the child]. However, there were no easy means of communication between the two households and the situation was a difficult and tense one, to say the least.
The foregoing paragraphs reveal that his Honour clearly considered the complaints which the father levelled at the grandfather and his partner. His Honour unequivocally recorded that the grandfather could have been proactive, but rejected the most critical assertions made on behalf of the father, as involving drawing “too long a bow”.
Nothing to which the Court has been referred persuades me that his Honour erred in fact in relation to any of these matters, or that the inferences which he drew were other than reasonably open to him. Nor has it been demonstrated, in my view, that such inferences impermissibly influenced or informed his Honour’s decision with respect to best interests.
His Honour recorded at paragraph 171 that there was no compelling evidence to indicate that the grandfather was intent on denying the child a relationship with his father and found, to the contrary, that the grandfather was open to increasing the child’s time with his father, provided the child was coping with such a regime. Again, nothing to which the Court has been referred persuades me that his Honour erred in fact or discretion in anything there recorded.
Similar observations apply to paragraph 181, which, as Counsel for the grandfather suggested to the Court, involved the learned Federal Magistrate criticising and, in my view, doing so in equal measure both the father and the grandfather.
At paragraph 273, the learned Federal Magistrate again, in paragraphs to which the Court was specifically referred by Counsel for the grandfather, recorded the exhibited considerable deficits of both the father and the grandfather in relation to their willingness and ability to encourage a close and continuing relationship between the child and each other. Again, nothing to which the Court has been referred, in my view, establishes that his Honour erred in fact or discretion in anything there recorded.
At paragraph 298, the learned Federal Magistrate yet again considered this topic, and recorded why he did not find joint parental responsibility to be workable. As with earlier comments, the learned Federal Magistrate was critical, and in my view did not suggest either to be more culpable than the other, of both the father and the grandfather, both in relation to their attitudes towards each other, and their inability to perceive how those attitudes were likely to rebound upon the child. The learned Federal Magistrate, on a balanced reading of his reasons for judgment, did not regard either the father or the grandfather as having a materially superior or preferable attitude to the various matters made relevant by s 60CC of the Act.
Nothing to which the Court has been referred persuades me that his Honour erred in either finding as he did with respect to such matters, or in relation to the weight which he gave such matters. In essence, his Honour rejected what was clearly a significant plank in the father’s platform, namely that his attitude was materially preferably to that of the grandfather. His Honour did not accept that to be the case, and was critical of both men. Nothing to which the Court has been referred persuades me that his Honour erred in finding on the facts as he did, or in drawing the inferences which he did from the facts he found.
Not insignificantly, and quite properly, his Honour did not criticise the father for having raised the complaints, nor, with respect, could his Honour have done so, given the qualified endorsement which he recorded of the grandfather’s attitude. I thus would not find any of grounds 16, 17, or 20 to have been made out.
Ground 18
Ground 18 of the father’s Notice of Appeal provided:
18.The learned Federal Magistrate erred in his finding that the appellant’s lack of candor [sic] about the incident involving unlicensed driving with a mid range of alcohol required that he must otherwise approach the evidence of the appellant with caution.
In what way, and at what point, the learned Federal Magistrate erred in the way asserted by this complaint has not, in my view, been demonstrated. The topic was, indeed, the subject of consideration in paragraphs 159 to 165 of his Honour’s reasons. At paragraph 164, his Honour recorded in the light of what he had outlined earlier, that he must approach the evidence of the father with some caution.
Ultimately, nothing to which this Court has been referred establishes, in my view, that a cautious approach to the father’s evidence was material to his Honour’s conclusion. This was not a case which turned upon preferring the evidence of the father to that of the grandfather, or the converse in relation to a material contested issue of fact. The issue was, ultimately, “What are the child’s attachments and how are they most likely to be preserved and nurtured in the circumstances revealed by the evidence?”
To the extent that his Honour adopted a cautious approach to the evidence of the father, I am thus not persuaded that, having done so, if his Honour in fact did, ultimately impacted upon the decision. The threshold of whether his Honour was entitled to regard the evidence of the father with some caution, has not, in my view, been crossed. That is to say it has not been demonstrated that, for the reasons which his Honour set out in some detail, his Honour was not entitled to regard the evidence of the father with some caution.
In summary, I would not find that the first step in this two step complaint has been established but that, if it has, contrary to my conclusion, it has not been demonstrated that it was material to the exercise of his Honour’s discretion. The case turned on matters utterly unrelated to a cautious approach to the evidence of the father or anyone else.
Grounds 21 and 22
Grounds 21 and 22 of the father’s Notice of Appeal provided:
21.The learned Federal Magistrate erred in his finding with respect to [the child’s] sleep disturbances that he could not rule out the possibility that [the child] is struggling with the current arrangements for his care and reacting in some way to the tensions between the 2 households in which he currently lives.
22.The learned Federal Magistrate gave too much weight and placed undue emphasis to the evidence of [Mrs L] as to the impact of the current arrangement upon [the child] and in particular failed to take into account or adequately take into account the alignment of the interests [Mrs L] with the second respondent.
The complaint centres on a limited number of paragraphs of the learned Federal Magistrate’s reasons for judgment, commencing at paragraph 217. His Honour there referred to the affidavit sworn by Mrs L and at paragraph 218 said:
I have not been provided with any expert evidence regarding the possible aetiology of what both [Mrs L] and Mr [Floyd] have described as [the child’s] “night terrors”. In addition, as has previously been indicated, both Mr [Martin] and [Ms K] find [the child] to be a child who is easily settled after waking as a result of some form or other of sleep disturbance. In these circumstances, I must be careful not to attribute some psychological or emotional element to this behaviour.
His Honour then said:
219.I do not however dismiss other aspects of [Mrs L’s] evidence, which indicates that [the child] is not currently coping well with the current arrangements for his care. There may be many reasons for this, not the least of which is the poor and mistrustful relationship between the [Martin] and [Floyd] households.
It is, in my view, demonstrably clear that the learned Federal Magistrate, whilst accepting other aspects of Mrs L’s evidence, did not accept that whatever sleep disturbance the child was demonstrating was in any way referrable to anything related to the father or any member of his household or, indeed, had any causal, psychological or emotional connotations.
With respect to Senior Counsel for the father, in my view, these complaints proceed on a misconception. If I am wrong, however, the reality is that a balanced reading of the passages which have been referred to a number of times already in which his Honour revealed what were the crucial or critical factors leading to his ultimate determination for best interests did not include, expressly or impliedly, anything of the kind complained of in the context of these two grounds.
Regrettably, the father, no doubt being generally and understandably disappointed by the outcome of the case in the court below and whilst, as Kirby J recorded in CDJ v VAJ, other judicial figures may have reached a different conclusion on the evidence which was before the learned Federal Magistrate. Applying, as the Court must, long-established appellate principles, I conclude that the appeal should fail.
ainslie-wallace j
I agree entirely with the reasons advanced by Coleman J for his orders, with which I agree.
ryan j
I, too, agree with the reasons given by Coleman J, and the orders which he proposes.
coleman j
costs
Counsel for the father, I’m reminded, and I apologise for my erroneous recollection, sought that the opportunity be preserved for submissions to be made in relation to costs, and the Court will do that.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace, and Ryan JJ) delivered on 5 March 2013.
Associate:
Date: 25.03.2013
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