MARTIN & MARTIN

[2012] FamCAFC 204

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN [2012] FamCAFC 204

FAMILY LAW – APPEAL – CHILDREN – Where the appellant father appealed from parenting orders providing inter alia that the children live with their mother and that they spend time with their father for four nights in each fortnight during the school term, for half the school holidays and on other occasions – Where there was no challenge to the trial Judge’s findings of fact – Where the appellant father asserted that the trial Judge erred in failing to order that the children spend equal time with each parent – Where the trial Judge relied on the expert evidence of the family consultant to the effect that an equal time arrangement was not in the best interests of the children given the extreme level of inter-parental conflict and the parents’ inability to communicate and cooperate with each other – No appealable error established.

Family Law Act 1975 (Cth)

APPELLANT: Mr Martin

RESPONDENT: Ms Martin

FILE NUMBER: SYC 6997 of 2008

APPEAL NUMBER: EA 109 of 2011

DATE DELIVERED: 7 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Coleman, Strickland & Ainslie-Wallace JJ

HEARING DATE: 24 August 2012

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 5 September 2011

LOWER COURT MNC: [2011] FamCA 706

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lloyd SC

SOLICITOR FOR THE APPELLANT: McDonell Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Aitken Lawyers

Orders

1. The appeal be dismissed.

2. The appellant father pay the respondent mother’s costs of and incidental to the appeal as agreed or, in default of agreement, as assessed on a party/party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin 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 109 of 2011
File Number: SYC 6997 of 2008

Mr Martin

Appellant

And

Ms Martin

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Martin (“the father”) appeals against orders made by Watts J on 5 September 2011 in relation to the two children of his marriage to Ms Martin (“the mother”), C born in October 2000 and K born in August 2002.  The mother opposed the appeal.  

2. The Notice of Appeal as originally filed asserted 15 grounds of appeal against his Honour’s parenting orders, and 12 grounds against the orders for property settlement.  However, in his written summary of argument, the father’s Senior Counsel sought to proceed on significantly reduced and refined grounds of appeal.  We permitted that to occur, there being no objection by the mother.

3. In relation to the parenting orders, the new grounds of appeal are as follows:

   1.That the conclusion His Honour reached with respect to the time the children were to spend with the father was inconsistent with the findings of fact made by His Honour.

   2.That His Honour failed to articulate his finding that there would be an “increased (adverse) impact on the children because of the parents [sic] inability to agree on most things” and the likelihood of that same impact (whatever it is) increasing or abating as a consequence of the competing proposals.

   3.That the conclusion His Honour reached with respect to substantial and significant time was inconsistent with the findings of His Honour and against the overall weight of the evidence.

4. In relation to the property settlement orders, no new grounds of appeal were pursued, but Grounds 1 to 4 inclusive, 6 to 9 inclusive, and 12 and 13 were withdrawn. It was the father’s contention that, in the event that the challenge to his Honour’s parenting orders was successful, there should be a readjustment of the property settlement orders to reflect a more favourable outcome to the father under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). However, the Court indicated to Senior Counsel for the father that, absent the demonstration of error in relation to the property settlement orders, this Court would not interfere with his Honour’s property settlement orders. No further submissions were made in relation to the grounds of appeal referable to the property settlement orders, and thus we do not propose to address them.

Background

1. The parties began to live together in 1997, married in 1999 and separated in 2008.

2. It appears that after the parties separated the children lived with their mother and spent time with their father each alternate weekend.

3. Before his Honour, the mother sought orders, inter alia, that she and the father have equal shared parental responsibility of the children, that they live with her and that they spend time with their father from after school on Thursday to before school on the following Monday each alternate week.  She also proposed other time in school holidays and the like.

4. The father sought orders, inter alia, that the children spend equal time with each parent being week-about during school term and half of the school holidays.

5. His Honour, relevantly to this appeal, ordered the parties to have equal shared parental responsibility, that the children live with their mother and that they spend time with their father from after school on Thursday to before school on the following Monday during term and for half the school holidays and other occasions. 

6. Given the amended grounds of appeal, it is in respect of his Honour’s order as to the amount of time the children spend with their father to which the argument on appeal was directed.  It was contended that his Honour erred in failing to order the children to spend equal time with each parent.

The Trial Judge’s Reasons for Judgment

1. It is pertinent to observe that none of his Honour’s findings of fact was challenged in the appeal.

2. From [74] in the reasons, his Honour set out his findings on what he termed “Parenting – Major Issues”.  His Honour considered the “level of conflict and level of communication” between the parties and referred to a number of incidents that had occurred between the parties.  His Honour said as to the conflict between the parties:

   84. The wife and husband’s level of conflict appears irrational and deeply entrenched. This has lead to unnecessary stress and pressure on the children. At times it is apparent the level of conflict has resulted in lack of awareness about the effect of decisions on the children. A stark example that arose during the hearing was when the husband proposed an arrangement whereby the children spend half of Christmas day with the wife and her maternal family and half of Christmas day with the husband. Given that the wife spends Christmas Day in Town 1, this necessitates the children spending approximately four and a half hours in transit on Christmas Day. When the husband was asked to reflect upon his proposal, he conceded another arrangement could be contemplated.

3. His Honour found that the children have a good relationship with each parent (at [92]) and an appropriate attachment to each (at [103]).  He noted the father’s contention that, for the relationship to be meaningful, the children need to spend half of their time with him (at [93]).  His Honour observed that, as an alternative, the father suggested that he would like to see the children five to six days in each fortnight and argued that the then current regime of seeing them for four nights was inadequate.  The mother contended that four nights was sufficient to maintain the children’s relationship with their father (at [94]). 

4. His Honour observed that, on either proposal, the children will be able to maintain the benefit of a meaningful relationship with the parents (at [96]).

5. Turning to the question of equal shared parental responsibility, his Honour said:

   128. Unfortunately the parents have not been able to communicate in a healthy or constructive manner and the tensions between them have impacted upon the children. In such a case it would normally be inappropriate to order equal shared parental responsibility and have the children exposed to unhealthy interactions. Undoubtedly if one parent feels left out of the decision making, this could heighten tensions. However in this case since both parents seek that I make an equal shared parental responsibility order, I will do so, subject to making some specific orders to cover areas which are problematic.

6. His Honour next considered the provisions of s 65DAA and as to equal time said:

   129. Given an order will be made for equal shared parental responsibility, the provisions of s 65DAA FLA apply. The family consultant said, that an equal time arrangement is not appropriate with the extreme level of conflict, the lack of cooperation and the lack of helpful communication between the parties. She said that these considerations make a shared parenting program likely to expose the children to more conflict. The family consultant opined in oral examination that any increase in the children’s time with the husband would have the potential to create more conflict and should be avoided for that reason. I agree and conclude that equal time is not reasonably practicable (see s 65DAA(5)(c) FLA in particular) nor in the children’s best interests.

7. As to the issue of substantial and significant time, his Honour noted that the family consultant’s opinion was that this was “an option” and further that once the litigation was concluded the conflict between the parents “could abate” (at [130]). His Honour then said:

   132. The evidence presented to me in these proceedings leads me to conclude that it is not in the children’s best interests to have equal time with both parents. In order to maintain a sense of security and continuity, they should spend what I find in this case constitutes substantial and significant time with the non-resident parent. The parent’s homes are close enough for this to be a viable option, as are their proximities to the children’s schools, support networks and attitude to parenting (see s 65DAA(5)(a) FLA).

8. His Honour concluded that the children should spend four nights in each fortnight with their father which he found was sufficient to maintain their relationship with him.  In coming to that finding, his Honour observed that the family consultant had said that the children had been seeing their father for four nights each fortnight for some time and that, in her opinion, “…any increase in their time with him would have a destabilising effect” (at [134]).

9. His Honour said:

   136. I agree with the family consultant and find it is in the children’s best interests to minimise conflict-laden changeovers by reducing their frequency and having them centred around school. I will order that the husband have four nights with the children a fortnight in one block…

The Appeal

1. For the father it was essentially argued that, in declining to make an order for the children to spend equal time with each parent, his Honour erred in that he failed to give sufficient reasons to support that conclusion, that it was inconsistent with the findings made by his Honour, and that the findings made were against the overall weight of the evidence. 

2. Senior Counsel for the father contended that, when his Honour considered the effect on the children of any changes in their circumstances, he made no findings and certainly none adverse to the father’s proposal for equal time.  It was acknowledged by Senior Counsel for the father that his Honour found conflict between the parents at changeover, however, Senior Counsel argued that this was his Honour’s only finding in relation to conflict and was insufficient to support his conclusion that equal time was not in the best interests of the children.  It is said that all his Honour did beyond make this one finding is record the complaints of each party.  It is asserted that his Honour needed to identify the conflict that would be exacerbated by equal time.

3. We do not accept that argument. His Honour’s findings on the issue of equal time must be read in the context of his reasons as a whole and, in particular, the matters to which he referred at [74] and following of the judgment. It is clear that, in determining the level of conflict to which he referred at [129], his Honour was not limited to that which occurred at handover as expressed at [114], and the matter is, in our opinion, put to rest by the words used by his Honour in opening at [132].

4. His Honour’s conclusion was well open to him on the facts found by him.  In addition he had the benefit of the, essentially unchallenged, opinion of the family consultant as follows:

   50. The central issue in this matter is the parental relationship. Historically, these parents appear to have hostile exchanges and disagreements about the children, have limited problem solving skills and respond to conflict with angry outbursts and insults…

   …

   56. In this family, an equal time arrangement is not appropriate.  The extreme level of inter-parental conflict, their inability to co-operate and communicate raises concerns about how these parents would manage the level of negotiation necessary for a viable shared parenting arrangement without further exposing the children to the considerable difficulties that exist in the parental relationship.

5. The challenge to his Honour’s conclusion is a challenge to the exercise of his discretion.  As is well known, it is not enough for an appellant to assert that other conclusions were open on the evidence.  To succeed, an appellant must demonstrate that his Honour’s conclusion was “plainly wrong”.  That has not been done and the appeal will be dismissed.

Costs

1. As is customary, we sought submissions from counsel as to costs.  Senior Counsel for the father conceded that, if the appeal was unsuccessful, he could not argue against a costs order being made against the father in favour of the mother.  That is an appropriate order to make.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Strickland & Ainslie-Wallace JJ) delivered on 7 December 2012.

Associate:

Date: 7 December 2012