Marvel & Marvel
[2010] FamCAFC 101
•11 June 2010
FAMILY COURT OF AUSTRALIA
| MARVEL & MARVEL | [2010] FamCAFC 101 |
| FAMILY LAW - APPEAL – PARENTING – INTERIM PROCEEDINGS – Whether the trial Judge erred by failing to address s 61DA and s 65DAA of the Family Law Act 1975 (Cth) – Where an order for equal shared parental responsibility was not sought on an interim basis – Where the focus of the hearing before the trial Judge was the question of the time the child should spend with the father and whether it should be supervised – Where the trial Judge was asked to make an interim parenting order – Where there were many disputed factual matters and little uncontested evidence – Goode & Goode (2006) FLC 93-286 considered and applied – The legislation required the trial Judge to consider whether or not the presumption in s 61DA applied – Where the trial Judge did not consider s 61DA – Appealable error established. FAMILY LAW - APPEAL – PARENTING – INTERIM PROCEEDINGS – Whether the trial Judge erred by making findings on factual issues in contention – Where the trial Judge did make some findings on controversial matters –The controversial matters on which the trial Judge made findings did not affect the ultimate exercise of discretion or constitute the ratio decidendi of his decision – Appealable error not established. FAMILY LAW - APPEAL – PARENTING – INTERIM PROCEEDINGS – Whether the trial Judge erred by failing to give proper consideration to the submissions of the Independent Children’s Lawyer – Whether the trial Judge erred in determining the application without the benefit of a psychiatric report – Whether the trial Judge erred in failing to take account of the father’s failure to deal with inappropriate conduct by one of the elder children – Whether the trial Judge erred by failing to give appropriate weight to the failure of the father to properly supervise the children – Appealable error not established. FAMILY LAW - APPEAL – RE-DETERMINATION – Where no submissions were made as to whether the presumption of equal shared parental responsibility should apply – Where the parties’ affidavit material contained many areas of dispute – Where there were few uncontroverted facts – Where the evidence of incidents involving the elder children fall within the definition of “family violence” and would mean that the presumption in s 61DA does not apply – Where in the circumstances also appropriate to rely on s 61DA(3) – Matters in s 60CC(2) and s 60CC(3) considered – Where it is in the child’s best interests that she re-establish her relationship with her father and siblings by regular time spent with them – Where nature of uncontested evidence and undisputed incidents involving the elder children suggest that a structure of time as suggested by the Independent Children’s Lawyer is least likely to expose the child to the risk of inappropriate conduct by her siblings – Interim orders in the best interest of the child are those made by the Judicial Registrar – Application to review the Judicial Registrar’s orders dismissed. FAMILY LAW - COSTS – No order as to costs. |
| Family Law Act 1975 (Cth) – s 60B, s 60CA, s 60CC, s 61C,s 61D s 61DA, s 61DA(1), s 61DA(3), s 65D(1), s 65DAA, s 65DAC, s 117 Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) Family Law Rules 2004 – r 18.08 |
| B & B: Family Law Reform Act 1995 (1997) FLC 92-755 DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th ed, 2006) [2.5] |
| APPELLANT: | Ms Marvel |
| RESPONDENT: | Mr Marvel |
| INDEPENDENT CHILDREN’S LAWYER: | Christine Soliman |
| FILE NUMBER: | SYC | 2815 | of | 2009 |
| APPEAL NUMBER: | EA | 31 | of | 2010 |
DATE DELIVERED: | 11 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Boland & Stevenson JJ |
| HEARING DATES: | 23 and 30 April 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 March 2010 |
| LOWER COURT MNC: | [2010] FamCA 240 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Coulton |
| SOLICITOR FOR THE APPELLANT: | Vizzone Ruggero & Associates |
| SOLICITOR FOR THE RESPONDENT: | Staunton & Thompson Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boyle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
Orders
The appeal is allowed.
Orders 2, 3 and 4 of the orders made by the Honourable Justice Cohen on 12 March 2010 be set aside.
The Order of 23 December 2009 of Judicial Registrar Loughnan staying the operation of his orders made 2 December 2009 is discharged.
The mother’s application to review Order 3 of the orders of Judicial Registrar Loughnan made on 2 December 2009 is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Marvel & Marvel is approved 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 31 of 2010
File Number: SYC 2815 of 2009
| Ms Marvel |
Appellant
And
| Mr Marvel |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons are in respect of an appeal by Ms Marvel against interim parenting orders made by the Honourable Justice Cohen on 12 March 2010. The appeal was resisted by Mr Marvel and the Independent Children’s Lawyer (“ICL”). The hearing before his Honour was a review of an interim parenting order made by Loughnan JR on 2 December 2009 under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Although the hearing before Cohen J was not a trial, but rather was conducted (as is the usual case for interim parenting proceedings) “on the papers” and without any cross-examination of the parties or witnesses, for convenience in these reasons we will refer to his Honour as “the trial Judge”, and to the parties as “the mother” and “the father”.
The parties are the parents of five children presently aged between 19 years and 11 years. The mother has a child of a previous relationship who is now an adult and lives independently. The parties’ five children are:
·A born in March 1991 (A is over the age of 18 and not the subject of the proceedings);
·L born in May 1994;
·H also born in May 1994;
·D born in April 1996; and
·U born in January 1999.
Procedural history
Following the breakdown of the marriage the mother filed an application in which she sought both interim and final parenting orders, as well as orders for settlement of property under s 79 of the Act. We will later set out aspects of the parenting orders she sought. On 3 August 2009 interim consent orders were made in the proceedings. Those orders, which dealt with financial matters, contained a notation “without admission by either party” that the parties agreed their youngest child, U, who suffers a developmental disability and who is hearing impaired, would “remain in [the mother’s] primary care”.U was aged 11 at the date of the hearing and as these reasons principally concern her welfare we will refer to her as “the child”.
By response filed on 4 June 2009 the father sought final orders that the parties have equal shared parental responsibility for the children, that L, H and D live with him and spend time with the mother “as agreed between the parties, in accordance with their wishes”. He sought an order that the parties share the care of the child on a “week-about” basis, and other orders relevant to the day-to-day care and welfare of the children.
By way of interim orders the father sought orders that L, H and D live with him, and “spend time with mother as agreed between the parties, in accordance with their wishes”. He further sought an order that the child live on a week about basis with each of the parties.
On 13 November 2009 the mother filed an application in a case in which she sought orders that the parties have equal shared parental responsibility for L, H and D, but not the child. The mother also sought orders that L, H and D live with the mother each Monday to Friday until the completion of the Christmas school holidays, and at all other times as agreed between the parties, with the mother and father having regard to the wishes of the children. Otherwise the mother sought orders that those children live with the father. The orders sought in paragraphs 5 and 6 of the mother’s application are as follows:
5.That the child [U] spend time with the Respondent father as follows:
5.1On 25 December 2009 from 2.00 pm to 6.00 pm;
5.2From 9.30 am to 1.30 pm each Sunday;
5.3At all other times as agreed between the parties.
6.That the child [U] lives with the Applicant mother at all other times than those specified in Order 5 above.
Notwithstanding the orders sought about L, H and D, the mother further sought specific orders in respect of D in paragraphs 8 and 9 of her application as follows:
8.That the child [D] spend time with the Applicant mother as follows:
8.1From 9.30 am to 1.30 pm each Sunday;
8.2At all other times as agreed between the parties.
9.That the child and [sic] [D] live with the Respondent father at all other times than those specified in Order 8 above.
In paragraphs 12 and 13 of her application the mother sought the following orders:
12.That for the purpose of the Applicant father spending time with the child, [U], the Applicant father will use his best endeavours to encourage the children of the marriage, [A] or [L] to spend time with the Applicant father and [U].
13.In the event that neither [A] nor [L] are available to spend time with the Applicant father and [U], the Applicant father will remove the child from the home and attend to activities outside the home, such as cinema, shopping centres, cafes.
The mother’s application was heard by Loughnan JR on 2 December 2009. On that day the Judicial Registrar made a number of orders by consent which are irrelevant to this appeal, but declined to make orders about the three elder children, the twins L and H then aged 15 years, and D then aged 13 years. The Judicial Registrar made parenting orders which provided that the child live with the mother, and spend time with the father as then sought by the mother, or otherwise agreed between the parties, but did not impose the conditions otherwise sought by the mother in paragraphs 12 and 13 of her application.
The mother filed on 21 December 2009 an application to review the parenting orders made by the Judicial Registrar in respect of the child, and by consent on 23 December 2009, the Judicial Registrar’s order in respect of the child was stayed.
On 2 February 2010 the father filed an application in which he sought the mother’s review application be heard on an urgent basis, and that the stay granted be limited until the review was determined.
Notwithstanding the fact that the mother had filed a review application, on 24 February 2010 she filed a further application in a case in which she indicated in Part C that she sought interim parenting orders. However the relief sought was as follows:
1.That pending further Order, the Orders of Judicial Registrar Loughnan made on 2 December 2009 be stayed.
2.That no further Order be made pending the finalisation of Chapter 15 Expert Report.
On 11 March 2010 the father filed a document described as an “amended response to an application in a case”. In that document he sought, pending further order, the following orders:
1.That the child [U] live with the Wife.
2.That the child [U] spend time with the Husband as follows:
2.1Each alternate weekend from Saturday at 9.00am to Sunday at 5.00pm;
2.2For such part of the school holiday periods, up to a week at a time, on the basis that the husband gives the wife 4 week’s notice of his wish to have [U] for a holiday period
3.That the parties share the transport of the child [U] to spend time with the father on the basis that the father collect the child from the mother’s residence at the beginning of each period and the mother collect the child from the mother’s [sic] residence at the end of each period.
4.That the child, [L] born [in] May 1994 be at liberty to live with either parent for such periods as she wishes and neither parent shall prevent her spending time with the other parent.
5.That both parent [sic] take all necessary steps to ensure [L] attends [C School].
6.That the parties be restrained from giving any authority or permission to any of the children to have any piercings or tattooing on their bodies without the other party’s written consent.
On 12 March 2010 Cohen J heard and determined the mother’s review application, and made the interim parenting orders the subject of this appeal. Those orders are:
1.That leave is granted to all parties to inspect all documents produced on subpoena by New South Wales Police.
2.That from Saturday 13 March 2010 the child [U] shall spend time with the father on each alternate weekend from 9am on Saturday to 5pm on Sunday.
3.That for the purpose of contact the father shall collect the child from mother’s place of residence at 9am Saturday and the mother shall collect the child from the father’s place of residence at 5pm Sunday.
4.That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.
The appeal was expedited, and listed for hearing on 23 April 2010 but adjourned on that day to 30 April 2010 as a result of the unexpected admission of L to hospital.
The grounds of appeal
The mother originally relied on 12 grounds of appeal in her Notice of Appeal filed 25 March 2010. At the adjourned hearing on 30 April 2010 we granted leave to the mother to further amend her grounds of appeal, including ground 16 which was orally amended at the conclusion of the hearing. The additional grounds as amended are:
13.The Primary Judge erred in failing to apply part 7 [sic] of the Family Law Act (“the Act”).
14.The Primary Judge erred in purporting to exercise the jurisdiction to make a parenting order conferred on the court by Section 65D(1) of the Act without having first determined whether or not the presumption provided for by section 61DA(1) was applicable.
15.The Primary Judge erred in failing to determine that it was not appropriate in the circumstances of the matter for the presumption provided for by Section 61DA(1) to be applied.
16.The Primary Judge erred in failing to consider s 61DA(1) and therefore failed to consider s 65DAA, and such failure vitiated the orders made by him.
In her summary of argument (which was filed prior to the Amended Notice of Appeal) the mother’s counsel grouped the challenges to the primary Judge’s orders into five categories. It was asserted his Honour erred:
·by making findings on controversial matters in circumstances where the evidence was not tested;
·failing to give appropriate weight to the father’s lack of parental responsibility and parenting skills in respect of D;
·making a factual error in finding the mother had not sought orders in respect of the three older children;
·determining that the mother sought an order that the father’s time with the child be supervised was based solely on her assertion that the child was at risk of sexual abuse by the father; and
·failing to give any weight to the submissions of the ICL.
We propose to consider the grounds of appeal in broadly similar categories to those articulated by the mother’s counsel, but we will combine our discussion of the first and third articulated challenges in respect of factual findings, and our discussion of the second and final challenges as these grounds are directed to the exercise of discretion by the primary Judge. As it emerged during the hearing of the appeal, the primary challenge to his Honour’s orders was that contained in the four new grounds of appeal found in the Amended Notice of Appeal. Accordingly, we will commence our discussion by considering those new grounds.
In the event the appeal was allowed the mother did not pursue the orders sought in her Notice of Appeal, but rather sought we should re-determine the matter on the evidence before the trial Judge, and make no order for the child to spend time with the father pending the release of an expert report by Dr M. Interviews for the report are to be conducted in August 2010.
The father sought the appeal should be dismissed, but in the event we allowed the appeal, he too sought that we should re-determine the matter. He did not seek to put any further evidence before us if we re-determined the matter.
The ICL sought to uphold the appeal, but in the event we found appealable error submitted that we should re-determine the matter and make orders in identical terms to those made by the Judicial Registrar.
Background
A number of relevant facts are included in counsel for the mother’s summary of argument. They were not disputed by the father’s solicitor.
The mother was born in February 1961 and the father was born in June 1955.
The parties commenced cohabitation in about 1984 and they married in January 1989. The mother asserted the parties separated under the one roof in about April 2009. The father asserted separation, also under the one roof, occurred in about November 2008. The parties physically separated in October 2009 when the mother left the former matrimonial home with the child. At the date of the hearing before the trial Judge the mother was living in rented accommodation which she was sharing with a friend. Living with her were the child and L.
As we have already explained the child has disabilities. She has been diagnosed as suffering “severe semantic pragmatic language disorder first percentile and unilateral hearing”. She was attending a special needs school – the E Centre. L too has significant problems and has been undergoing treatment by a psychiatrist, Dr S. At the initial hearing of the appeal we were advised that L had taken an overdose of her prescribed medication and was in hospital.
On 6 July 2009 orders were made by consent for the appointment of an ICL to represent the children the subject of the proceedings.
On 2 December 2009, although he made the order the subject of the review application, the Judicial Registrar declined to make orders providing for L, H or D to spend time with the mother, but he did make an order that the parties facilitate any child wishing to do so to spend time with the other parent. The mother asserted she had not spent time with D after the making of the orders. The Judicial Registrar made an order under s 91B of the Act requesting the intervention of the Department of Human Services, New South Wales, and the proceedings were referred to the Magellan List Registrar. At the time of the hearing of the appeal the Department had not intervened in the proceedings.
From about December 2009 L commenced living with the mother.
The trial judge’s reasons
His Honour commenced his reasons for judgment by noting the proceedings were an appeal by way of review or rehearing of particular aspects of orders made by Loughnan JR on 2 December 2009.
Having set out in summary way the relevant orders made by the Judicial Registrar, the trial Judge went on to note, at paragraph 2:
The mother’s case is that there is unacceptable risk of sexual or psychological harm to [the child] inherent in those orders and that therefore I should only permit [the child] to have contact with the father between 9.30 am and 1.30 pm on three Sundays out of four and that that contact be supervised.
His Honour then explained that the mother had proposed two supervisors, but there was no evidence before him to indicate either of the proposed supervisors would consent to undertaking the supervision of the child, or that that they were appropriate supervisors.
His Honour went on to record that he had raised his concerns about the proposed supervisors with the mother’s counsel who had then proposed the parties’ eldest daughter as a supervisor. His Honour explained that he rejected that suggestion because there was no evidence she would consent to being a supervisor, nor could his Honour satisfy himself, if he found there was a need for supervision, that she adequately understood the obligations of the supervisor.
The trial Judge then recorded the father’s position, which was that he sought time with the child, preferably overnight, each alternate weekend and unsupervised. At this point in his reasons, the trial Judge set out his summary of the child’s disabilities noting:
[The child] is a child who has always had difficulties. She is, in her speech and understanding of language, what is called developmentally delayed. She is not of high intelligence but her intellect is not such that she is incapable of attending a school for children who are not disabled. In fact, she does not qualify to go to a school for disabled children although she has some level of backwardness in certain areas. It is not, in my view of the evidence which is unchallenged, true to say that she is intellectually backward although she may not be a child in the higher percentiles intellectually within the population of children of her age. There is also nothing to say, although she has some behaviour which would be regarded as more childish than her calendar age, that she is unable to protect and care for herself at a level appropriate for a little girl of 11. (paragraph 5)
His Honour then dealt briefly with matters raised in the mother’s affidavit material, but noted the complaints were not particularised, nor were matters raised ones which could be attributed to one or other party.
His Honour went on to note, in paragraph 7, that the parties had a poor relationship for a number of years and that “[a]t times some of the parties’ other children have been engaged in less than perfect behaviour”. His Honour concluded, on an overview of all of the evidence, the children’s behaviour appeared to him to be as a result of the parties’ relationship problems “rather than any essential disabilities or problems with the children themselves”. His Honour at this point of his reasons said:
There is nothing in the evidence that could point to any deficit in the father’s parenting which would be more likely to be the cause of the children’s behaviour than any deficit in the mother’s parenting. (paragraph 7)
His Honour then referred to the fact that the mother had six children, the oldest of whom lived independently.
At paragraph 9 of his reasons, the trial Judge recorded that the parties’ eldest child, A, had sworn an affidavit in the proceedings notwithstanding she said she had been advised by the father’s solicitor she should not do so. His Honour then summarised A’s evidence which was to the effect that in her experience nothing had ever happened to any of the children, including the child, which would indicate the child would be at risk if she spent unsupervised time with the father. His Honour also recorded that A said that the child could, to a very large degree, look after herself.
At paragraph 10 of his reasons, his Honour recorded:
The mother’s claims, to quite a substantial extent, suggest that the father needs to be supervised in looking after [the child] because there have been problems with the other children or that the other children treated [the child] badly recently. These are not reasons to allow the father contact with [the child] only if it is supervised.
His Honour then went on to make findings about the mother’s applications before the Court. He said:
The mother has chosen not to seek residence of the children who live with the father, yet she criticises the father’s care of them. In relation to [L], the father claims that [L] originally was allowed by the mother to live with him too but that [L] changed her mind and has gone to the mother. The father now says that [L] wants to come back to him. (paragraph 11)
His Honour then said at paragraph 12:
It seems that the only child that the mother was concerned about sufficiently, in view of her complaints about the father, to care for herself, is [the child]. …
At this point in his reasons, the trial Judge referred to what he described as the only specific matter the mother raised about the risk the father posed to the child, namely, an incident when the child was asleep in the parties’ bedroom some years ago. At paragraph 14, his Honour recorded:
There is a problem with what the mother says and it is that she did complain about this to the police in the course of seeking an AVO against the father. The complaint was made [in] August 2004. …
His Honour then set out the details of the complaint made by the mother in support of her application for an Apprehended Violence Order which recorded the incident as having occurred in 2004. Later his Honour went on to record that:
·the child was asleep at the time;
·the child was not harmed in any way; and
·significantly the mother’s affidavits indicated the incident occurred when the child was three years old in 2002.
His Honour summarised the father’s version of the incident. He immediately thereafter then turned to the relevant statutory provisions, noting that he discerned the only part of the Act which “the consideration of which could made [sic] a difference, is section 60CC(2)” (paragraph 17).
The trial Judge then summarised the effect of that section and went on, at paragraph 18, to make findings that, in what he described as the “tumultuous household”, there would probably be behaviour from the children which might be regarded as “unsuitable or upsetting to [the child]”. That finding was made having regard to the evidence, including that in the mother’s affidavits. His Honour said that the behaviour would not be likely to cause the child either physical or psychological harm. His Honour concluded that the prospect that the siblings would fight did not fall, in his Honour’s view, within the definition of family violence in the Act.
His Honour went on to note that it was not suggested the father should not have “contact” in the family home but rather that it be supervised. His Honour then, at paragraph 19, said:
… the way the case was put before me, the real reason for that supervision is to protect [the child] from the prospect of sexual abuse. In my view, there is a minimal prospect that if [the child] is allowed to have unsupervised and even overnight contact with the father in the father’s family home, that she will be subjected to sexual abuse. I am certainly not satisfied that she will be exposed to an unacceptable risk of sexual abuse.
Having concluded the orders made by the Judicial Registrar appeared more like visits than spending time with the father, and that overnight contact was more likely to promote the child’s meaningful relationship with the father, his Honour concluded at paragraph 21:
I can see nothing in the evidence to suggest that [the child] should not have a meaningful relationship with her father. In those circumstances, overnight contact which would provide a more meaningful relationship, is, in my mind, more appropriate although there may well not be much more physical contact as a result or waking contact as a result than there would be by visiting each weekend.
His Honour at this point in his reasons, notwithstanding he had already concluded that there should be overnight time spent by the child with the father, turned to the additional considerations in s 60CC(3) and noted there was no evidence about the child’s views.
The trial Judge then went on to record there was nothing that suggested the child did not have a good relationship with the father, and said that overnight contact would not harm her relationship with the mother. He also made a finding there was nothing to suggest the father had ever tried to undermine the child’s relationship with the mother.
His Honour then explained there was some suggestion in the father’s evidence that the mother had been less than willing to facilitate and encourage a close and continuing relationship between the child and the father, and the father’s assertion that the mother was either over-protective of the child, or punitive of him, in trying to keep her away from him. His Honour found the benefit to the child in spending time with the father was that it would give her an opportunity to form a better relationship with him and allow her to spend more time, “and more normal time, with her sister and other brothers and possibly with [L], if [L] does decide to live with the father rather than the mother”.
His Honour made findings that there were no practical problems relating to any change in the orders [from those made by Loughnan JR] and also findings that he was “not satisfied that the father has any less ability than the mother to provide for [the child’s] needs, intellectual, emotional or otherwise as they might need to be provided for by the type of contact that is contemplated by the father” (paragraph 26).
His Honour went on, in dealing with the attitude to the child and the responsibilities of parenthood demonstrated by the parties, to conclude that the mother seemed to be over-protective of the child and sought to exclude the father from her life. In so doing his Honour opined the mother seemed to justify herself by “the poor behaviour of the other children” (paragraph 27). His Honour concluded that the mother must also be equally responsible for the older children’s behaviour as she had been living in the household until very recently.
In dealing with the father’s attitude to the responsibilities of parenthood his Honour said at paragraph 28:
… It seems to me that, when it comes to responsibilities, the father has demonstrated on the evidence before me, a greater level of parental responsibility. That in itself seems to be demonstrated by the fact that the majority of the children are living with him.
Having found what he described as “low level violence amongst the children in the family” his Honour said he thought the bad language used by the siblings against one another and the mother and “one or two incidents involving a knife and [L]” were largely not disturbances in the children but more a reaction of the children to the dysfunctional relationship between the parties.
His Honour then went on to say the only other fact or circumstance which he thought was relevant was that a single expert had been appointed and the Court would be in a much better position to make orders, even if interim orders, after the expert’s report was obtained. However he considered, given the time before such a report would be available, he was compelled to make a decision pending release of such expert report.
The law
This is principally an appeal from a discretionary judgment. The limits on appellate interference in such circumstances are well known. Those limits are cogently explained by Kirby J in CDJ v VAJ (1998) 197 CLR 172 at 230 - 231.
We note however by reason of the amendments to the Notice of Appeal, it is asserted on behalf of the mother that there was an error of law by the trial Judge in failing to address s 61DA of the Act.
The applications before the trial judge and the requirements of the legislation in respect of a review
The mother’s applications before the trial Judge, as identified in her case outline documents, were her initiating application filed 13 May 2009 and her application for review of the Judicial Registrar’s orders filed 24 February 2010 [semble 21 December 2009].
In order to understand the issues raised in this appeal as a result of the amended grounds, particularly the challenge in respect of s 61DA, it is necessary that we set out some of the orders sought by the mother in her two applications, and the orders as sought in her case outline document and the position adopted on her behalf before the trial Judge. It is also necessary we refer to the orders sought by the father.
It is fair to say that the mother’s position about the orders she sought on an interim basis before the Judicial Registrar and the trial Judge were subject of frequent change.
The orders sought in the mother’s initiating application
The mother sought the following final and interim parenting orders in her initiating application:
Final orders sought
1.That the children, namely, [L], [H], [D] and [U] reside with the wife.
2.That the children spend time with the father as agreed between the parties.
3.That the parents shall jointly make decisions about major long-term issues in relation to the children. (our emphasis)
Interim or procedural orders sought
1.That the children [L], [H] and [D] receive urgent counselling.
2.That [U] and [D] reside with the wife and spend time with the father as agreed between the parties.
3.That [L] and [H] reside with the wife if they wish and spend time with the husband as agreed between the parties.
We have earlier in these reasons set out the orders sought by the mother before the Judicial Registrar (see paragraphs 7, 8 and 9).
The mother’s application filed 21 December 2009
We note that, contrary to the Family Law Rules 2004 (“the rules”), the mother’s application for review filed 21 December 2009 did not comply with r 18.08 of the rules in that it did not annex to it a copy of the order sought to be reviewed, nor is the order or orders sought to be reviewed specified in the Application in a Case. The mother sought a stay of the Judicial Registrar’s orders, and by consent, on 23 December 2009, an order staying “Order 3.5” of the Judicial Registrar’s orders was made. Order 3 provided as follows:
3.Orders are made in terms of paragraphs 5 and 6 of the mother’s Application in a Case filed 13 November 2009 as set out hereunder:
“5.That the child [U] spend time with the Respondent father as follows:
5.1On 25 December 2009 from 2.00 pm to 6.00 pm;
5.2From 9.30 am to 1/30 pm [sic] each Sunday;
5.3At all other times as agreed between the parties.
6.That the child [U] lives with the Applicant mother at all other times than those specified in Order 5 above”
In her application the mother also sought the following additional orders:
2.That no order be made in relation to the child [U], spending time with the father, until further Order or unless there is appropriate supervision.
3.That the parties immediately do all things to arrange and encourage the child [H] to attend upon a Psychiatrist recommended by the Independent Children’s Lawyer.
The mother’s application filed 24 February 2010
In her application filed 24 February 2010, the mother again sought a stay of the Judicial Registrar’s orders and also sought the following order.
2.That no further Order be made pending the finalisation of Chapter 15 Expert Report.
Orders sought in the mother’s case outline document before the trial Judge
In her case outline document dated 11 March 2010 the mother sought the following orders:
(1)that the husband have contact to [sic] the child [U] as agreed between the parties until further order;
(2)that the parties immediately do all things to arrange and encourage the children, [H] and [D], to attend upon a psychiatrist recommended by the independent children’s lawyer;
(3)such other orders as this honourable Court deems fit.
Orders sought at the commencement of the hearing before the trial Judge
It must be borne in mind that the review application was an application to be heard de novo. Our examination of the transcript reveals that at the commencement of the hearing before the trial Judge the mother’s counsel indicated the orders sought were as follows:
… My client wants orders such that the children, [H] and [D] also under psychiatric - or counselling, and possibly from [Dr S], and that there be no formal orders in respect of contact - the father to [U] - other than contact as agreed. (transcript, 12 March 2010, p 3)
When his Honour indicated he would not make an order for the child to spend time with the father as agreed, the mother’s counsel said:
MS COULTON: Well, what she wants is for - and she did ask for this on the last occasion - that it be supervised - that there be someone present.
HIS HONOUR: And who should that be?
MS COULTON: Well, on that occasion she had suggested that it be one of the other children - [L] or [H] or [A], who is 19. (transcript, 12 March 2010, p 4)
After a short adjournment to enable the mother’s counsel to formulate the orders she sought, counsel advised the trial Judge as follows:
MS COULTON: My client has proposed that the husband have contact to [sic] the child [U] for three Sundays per month in a row from 10 am to 2 pm, supervised by a [Ms F], who is 71, is the wife’s mother, and she’ll do that once per month, and [Ms J] who’s a psychologist, is aged 51, and she shares the accommodation with my client, and she’s actually sworn an affidavit in these proceedings and seems to have a very good understanding of [U]. (transcript, 12 March 2010, p 6)
The orders sought by the father
We have earlier in these reasons (paragraph 14) set out the orders sought by the father. Suffice it to note at this point he basically maintained before the trial Judge, and before us, his application for orders that the child spend each alternate weekend with him. We again note that on a final basis he sought orders that the parties have equal shared parental responsibility for the children.
The law
Procedure on review
Section 26C of the Act provides for the review of a decision of a Judicial Registrar.
Rule 18.10 refers to the powers to be exercised by a Court on a review application. It provides as follows (including notes):
(1) A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
Note In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing;
(b) any further affidavit or exhibit;
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
As can be seen from the orders sought, which we have set out in some detail, by the time the matter was before the trial Judge, neither party sought an order for equal shared parental responsibility in respect of the child on an interim basis, nor did either party seek that any aspect of parental responsibility should be exercised by one party only. No orders at all were sought in respect of the three elder children by either party.
Grounds relating to asserted error of law in failing to address s 61da and s 65DAA
We first consider the statutory imperatives which must be followed when making a parenting order after the introduction of the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) (“the amending Act”). It is useful to first refer to the effect of the amending Act which is set out in paragraphs 5 to 9 of Goode & Goode (2006) FLC 93-286 as follows:
5. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the amending Act”) came into effect on 1 July 2006 and was the law that governed his Honour’s decision. The amending Act builds upon the framework of the legislation as it was prior to 1 July 2006. Part VII of the Act applies to children. There are 16 Divisions to Part VII. The significant sections for present purposes follow.
6. Orders concerning parental responsibility, who the child is to live with and spend time with, and the communication a child is to have with another person or other persons are all parenting orders. Section 64B(2) provides that a parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child — the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 64B(3) provides:
Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
7. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
8. Section 60CA deals with the best interests of the child and provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This provision of the legislation was formerly s 65E and the wording of the section has not changed.
9. In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
In this case his Honour was asked by both parties to make an interim parenting order about the child. In making such an order he was required to regard the best interests of the child as his paramount consideration (see s 60CA). He was not asked on an interim basis to make an order for equal shared parental responsibility.
The significance of the presumption of equal shared parental responsibility (see s 61DA below) is readily apparent from a reading of that section. A court must when making a parenting order, as was sought in this case, unless there is child abuse or family violence or the presumption is rebutted as it is not in the best interests of the child, presume that the parents are to have equal shared parental responsibility for the child. However, s 61DA(3) contains a qualification in that it gives recognition to the fact in some interim parenting proceedings it may not be appropriate to apply the presumption.
Section 61DA provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
At paragraph 56 in Goode the Full Court explained:
In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
The Full Court also discussed s 61DA(3) in Goode and concluded at paragraph 78:
The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.
As further explained in Goode if the presumption applies “it triggers the application of s 65DAA” (see Goode paragraph 13). Section 65DAA provides as follows:
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The High Court recently published reasons for judgment in MRR v GR (2010) 263 ALR 368. While this was a so called “relocation” case in which final parenting orders were sought, it is important to bear in mind what the High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) said about s 65DAA if the Court has or will make an order that the child’s parents have equal shared parental responsibility (our emphasis). At paragraph 13 their Honours said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
In this case in her initiating application the mother sought an order, not for equal shared parental responsibility for the children, but joint parental responsibility. The father did seek an order for equal shared parental responsibility on a final basis. The mother did not seek on an interim basis such an order in respect of the child, nor did she seek that she have sole parental responsibility for her. This may have been an oversight. But she did seek parenting orders about the child (as did the father), albeit the orders sought by the father before the trial Judge were not orders for equal time or for substantial or significant time (as defined in the Act) with the child.
It is useful at this point we refer to paragraph 51 of Goode where the Full Court dealt with the factual situation where an order had been sought by the father for “joint parental responsibility” – that is in terminology used prior to the amending Act – and neither party had sought an order for equal shared parental responsibility on an interim basis. In this case the wording used in the mother’s initiating application was similar to the wording of the father’s application in Goode. At paragraph 51 the Full Court said:
We see little purpose in this debate which is essentially about terminology. As we have already indicated, it is not necessary to seek an order for equal shared parental responsibility to trigger the presumption in s 61DA. All that is required is that the Court be making a parenting order. Thus, it does not matter whether the issue of equal shared parental responsibility was put in issue by the parties, or either of them, as the Court is required to apply s 61DA in any case in which a parenting order is to be made.
The Full Court in Goode went on to set out a framework which may be used by judicial officers determining applications for interim parenting orders at paragraph 82 as follows:
In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In this case, neither party’s legal representative, nor the ICL, made submissions to his Honour about s 61DA, and in particular whether it was an appropriate case for s 61DA(3) to apply. The focus at the hearing was confined to the narrow issue of what time the child should spend with the father, and whether such time should, or should not, be supervised. It is perhaps understandable in these circumstances that this statutory requirement was overlooked.
On the material we have read there were so many factual matters in dispute and little uncontested evidence, it could well have been appropriate for his Honour to have found that:
·he was being asked to make a parenting order;
·the presumption should apply (as it was not rebutted or not in the child’s best interests); but
·because of the nature of the material before him it was inappropriate to apply the presumption and that s 61DA(3) should apply.
The legislative pathway to be considered since the amendments in 2006 is convoluted. It has been aptly described by Warnick J in Zabini & Zabini [2010] FamCA 10 as “a dilemma of labyrinthine complexity”. It seems to us unlikely that the legislature intended when narrow or discrete issues arise in parenting matters, such as variation of a parenting order to provide a slight increase or reduction in time spent by a child, or change in delivery and collection arrangements, that it would be necessary to have regard to s 61DA and as a consequence the triggering (or as asserted in this case the possible triggering) of the application of s 65DAA in such applications.
Counsel for the ICL raised with us the fact that no order for equal shared parental responsibility was made or sought. In effect, she submitted it was arguable that the presumption contained in s 61DA did not mandate the court, if it found the presumption applied, making an order that the parties have equal shared parental responsibility. Thus the argument advanced was that if no order for equal shared parental responsibility has been made, or is to be made, even though the presumption applies, then the application of s 65DAA is not triggered. In other words, counsel argued that if s 61DA(1) mandated the making of an order for equal shared parental responsibility then the section would have included the following additional words “and make an order to that effect”
We note that the interpretation advanced by counsel for the ICL appears potentially inconsistent with the reasoning in paragraph 44 of Goode. There the Full Court said:
The importance of s 61DA is that if the Court applies the presumption of equal shared parental responsibility when making parenting orders, then that presumption is the starting point for a consideration of the practicality of the child spending equal time with each of the parents and, if it is consistent with the best interests of the child and not impracticable, the Court must consider making an order that the child spend equal time with each of the parents. If the Court does not make such an order, it must consider whether making an order that the child spend substantial and significant time with each of the parents would be in the best interests of the child and not reasonably impracticable and, if so, must consider making such an order (see s 65DAA). Section 65DAA(3) explains the meaning of “substantial and significant time”.
However we are satisfied there is no inconsistency in the argument advanced by counsel for the ICL and the reasoning in Goode. In Goode the Full Court was addressing the situation where the presumption applies, and an order for equal shared parental responsibility has been or will be made, thus leading to the necessity to consider the matters contained in s 65DAA on the basis explained by the High Court in MRR.
Adopting the interpretation of s 61DA which counsel for the ICL tentatively advanced would render unnecessary consideration of s 65DAA in many parenting applications where orders for equal shared parental responsibility are not sought or such an order has not been previously made, and where although a judicial officer considers the presumption applies, he or she determines not to make an order for equal shared parental responsibility.
We are conscious that we should give a purposive interpretation to the legislation (see DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th ed, 2006) [2.5]). The interpretation of the legislation suggested by counsel for the ICL is available on the plain reading of s 61DA. It could however lead to a court effectively by-passing the requirements of s 65DAA. Regardless of whether one or both parties sought equal or substantial or significant time orders, if a court found the presumption applied, but no parenting order for equal shared parental responsibility was made, the application of s 65DAA would not be triggered, and the only requirement would be to make a parenting order which was in the best interests of the child having regard to matters in s 60CC.
This leads to consideration of whether s 61DA (or some other provision of Part VII) actually requires the making of an order for equal shared parental responsibility, or implies such an order will be made, if the court finds the presumption applies or it is in a child’s best interests that the parents have equal shared parental responsibility.
Section 61C, as explained in Goode, provides that each of the parents of a child has parental responsibility for a child. That responsibility exists whether the parties are in an intact family, separated, or remarried. The section has effect subject to any order of the court. That is, one or more aspects of parental responsibility may be changed by a court order.
The logical corollary of the interaction between s 61C and s 61DA is once a parenting order of any description is made or to be made, the presumption, if there is no finding of risk of abuse or family violence or not rebutted as not in the child’s best interests, applies. That presumption is that the parties then have equal shared parental responsibility not parental responsibility. We pause here to note that authority prior to the amending Act established that parental responsibility could be exercised jointly or severally (see B & B: Family Law Reform Act 1995 (1997) FLC 92-755). If the presumption does apply, but is not reflected in an order for equal shared parental responsibility, does it displace the operation of s 61C?
The Revised Explanatory Memorandum is not of assistance in answering the question we have just posed. The learned authors of Australian Family Law (LexisNexis Australia, Australian Family Law, Vol 1, (at 233-04-10) [s 65DAA.1]) in their commentary on s 65DAA say “[i]n other circumstances, that is where there is no order that the parents have equal shared parental responsibility, s 65DAA has no application, and the court will deal with the matter on ordinary principles, having regard especially, to ss 60CA, 60CC and 60B”.
Professor Richard Chisholm AM in an article published in the Australian Journal of Family Law in 2006 considered the question of whether a court will make an order for equal shared parental responsibility in proceedings including interim proceedings. He said, after noting the complexity of the issues which could not be fully explored in the instant article:
… I think the better view is that applying the presumption involves the court in making an order that the parents have equal shared parental responsibility. If this is correct, there may be a significant number of cases in which the court will wish to make such an order in interim cases, triggering an obligation for the court, in those interim proceedings, to consider equal time, or substantial and significant time. (Professor Richard Chisholm, ‘Interim proceedings after the Family Law Amendment (Shared Parental Responsibility) Act 2006’, (2006) 20 Australian Journal of Family Law 219 at 223).
Osborn’s Concise Law Dictionary (Mick Woodley (ed), Osborn’s Concise Law Dictionary (11th ed, 2009) 320) defines a rebuttable presumption as follows:
(2)Rebuttable presumptions of law (praesumptiones juristantum) are inferences which the law requires to be drawn from given facts, and which are conclusive until disproved by evidence to the contrary; e.g. the presumption of the innocence of an accused person.
Section 65D(1) gives the Court, subject to the presumption of equal shared parental responsibility, the power to make such parenting order as it thinks proper.
It is important to remember the obligations, or perhaps more correctly the responsibilities, the legislation imposes if two or more persons are to have “shared parental responsibility” for a child. The relevant section, s 65DAC, does not refer to an order which provides for equal shared parental responsibility, but the circumstance where two or more persons are to share parental responsibility for a child. Section 65DAC provides as follows:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
In the context of interpreting s 65DAC it is necessary to bear in mind the definition of major long-term issues in s 4(1). That definition is as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
The intended effect of the section is explained in the Revised Explanatory Memorandum at paragraph 207 as follows:
New section 65DAC provides a rule that where parental responsibility is to be shared in relation to a major long-term issue under a parenting order, this means that decisions should be made jointly. This clarifies for parents or others who may have parental responsibility, what exercising shared parental responsibility actually involves. This will ensure that both parents have a meaningful involvement in the child’s life. This does not only apply in situations where parents are sharing exactly equal responsibility. In all cases where there is some sharing of responsibility then consultation, then discussion about major long-term issues is required for those parts of responsibility that are shared.
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
As we did not have the benefit of any extensive argument before us on this topic it is inappropriate we determine this issue. It seems to us, as presently advised, that the implication of the legislation, having regard to the provisions of s 61C, s 61D, s 61DA, s 65D(1) and s 65DAA is that if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA. That is, of course, in an interim matter subject to the exception contained s 61DA(3) and the qualification we have expressed in respect of s 65DAC.
Even if we are wrong in our interpretation, we are satisfied the legislation required his Honour to turn his mind to whether or not the presumption applied, or whether under s 61DA(3) he should not determine that issue. That he did not do.
We have already alluded to the fact that the legislation, after the amending Act, imposes on a judicial officer determining a parenting application, be it interim or final, consideration of a number of provisions of Part VII. We are conscious, particularly for judicial officers determining interim parenting matters in a busy court, such as the Federal Magistrates Court, and where issues may be narrowly confined, or there is only a single issue to be determined, that the requirements of Part VII are onerous, particularly if an order for equal shared parental responsibility has been or is to be made. However the legislation mandates the path which must be followed.
Although s 61DA(3) should not be applied in a broad exclusionary manner in interim proceedings, it appears to us that it is likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue. The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied. We accept the task involved in a final hearing when only narrow issues are to be determined, nevertheless requires the legislative path in all its complexity to be followed if an order for equal shared parental responsibility has been or is to be made.
Conclusion
We accept his Honour did not consider at all the requirements of s 61DA when making parenting orders about the child, and this failure constitutes appealable error.
The asserted errors by the trial judge making findings on contentious issues (grounds 1, 2, 4, 5, 7, 10, 11 and 12)
It is not in dispute that the matter before his Honour was conducted “on the papers” and neither party’s evidence was tested by cross-examination. Nor did his Honour have the benefit of a family report or other expert report. However this is generally the case at an interim parenting hearing.
We have already drawn attention to the constraints imposed when an interim parenting matter is heard by a judicial officer “on the papers” (see paragraph 82(f) in Goode above).
In her outline of argument the mother asserted the trial Judge erred by making the following findings on contentious factual issues:
(a) that the child was not of high intelligence, but her intellect is such that she is not incapable of attending a school for children who are not disabled;
(b) that although the child “has some behaviour which would be regarded as more childish than her calendar age, there was no basis on which to conclude that [the child] is unable to protect and care for herself at an appropriate level for a little girl of 11”;
(c)that there was nothing to indicate that the child might be at risk if she spends time with the father;
(d) accepting the father’s untested evidence in relation to the circumstances of the asserted masturbation while in bed with the child in 2002, making findings that the parties engaged in sexual activities in the presence of the children, and that the mother masturbated herself in the bedroom when the children were present;
(e) that there was no evidence to suggest the father had ever tried to undermine the mother’s relationship with the children;
(f) that the father was no less able than the mother to provide for the child’s needs, intellectual, emotional or otherwise;
(g) that the mother had a predilection for blaming the father for everything and not accepting her own role in any problems involving the children and the same problems did not emerge from the husband’s evidence;
(h) that the father demonstrated a greater level of parental responsibility because the majority of the children were living with him and L may return to live with him;
(i) that the bad language between the children and incidents involving knives constituted “low level violence” and that dysfunction within the children would improve as the mother had left the matrimonial home.
The mother’s counsel submitted in respect of each of the matters set out above the parties’ evidence was in conflict, that the findings made were not open to his Honour on the untested evidence, and constituted appealable error.
It is convenient at this point we deal with the assertion made in paragraph 21 of the mother’s written submissions that the trial Judge erred in finding that the mother had not sought “residence or contact of the children who live with the husband” (submissions paragraph 21 page 9). This submission appears under the heading Grounds 8 and 9. Neither of those grounds as pleaded raise this issue. The grounds are:
8.That the primary judge erred in exercising his discretion by failing to give proper consideration to the evidence concerning the conduct of another child of the marriage, [D], and the husband’s attitude to that conduct.
9.That the primary judge’s discretionary decision miscarried because he failed and did not appreciate the fact that the misconduct of the child’s brother [D] was disturbing and the father’s attitude to that conduct was inappropriate such that the father would not be capable of having unsupervised contact to the child [U] given her special needs and the lack of the father’s understanding of parenting. (Amended Notice of Appeal)
We accept his Honour was in error in paragraph 11 of his reasons when he said “[t]he mother has chosen not to seek residence of the children who live with the father”. That statement is erroneous if regard is had to the mother’s initiating application and the relief sought in that document which was relied on by the mother before his Honour. However, the mother did not seek on review to challenge the decision of the Judicial Registrar not to make orders about the older children. We also have regard to the mother’s application as sought by her counsel before the trial Judge. We do not think this error was fundamental to the exercise of his Honour’s ultimate discretion in this matter, and thus constitutes appealable error.
Before commencing our discussion of the balance of the grounds relevant to this topic, we propose to set out the position adopted by counsel who originally appeared for the ICL and who provided written submissions. Those submissions were adopted and amplified by new counsel for the ICL who appeared at the adjourned hearing of the appeal. We note these submissions were drafted prior to the filing of the Amended Notice of Appeal. In paragraph 3 of his written submissions the former counsel for the ICL said:
3.In summary the ICL:
3.1Is not of the opinion that the Orders made were the best of [sic] option available for the children;
3.2Does not consider that the manner in which the hearing proceeded allowed the best possible exploration of the relevant issues;
3.3Does not consider that his honour’s [sic] reasons reflect as well as they might the legislative pathway; however
3.4Notwithstanding the above concerns cannot say that the wife has identified an appellable error. (ICL’s submissions, pp 1-2)
Discussion
We found the written submissions of the counsel who appeared for the ICL on 23 April 2010 in respect of these grounds to be particularly useful. Counsel pointed out the following matters about the complaints particularised in the mother’s submissions and set out by us above:
(a)the finding that the child was not precluded from attendance at a normal school was not controversial as the child was presently attending a school for children who are not disabled;
(b)the evidence about the child’s behaviour was contested (we imply from this submission that it is accepted by the ICL that this evidence was controversial and the finding in respect of it could constitute appealable error);
(c)the trial Judge was entitled to have regard to A’s evidence, and he did not accept it in unqualified terms;
(d)the assertions made about the trial Judge’s findings about preferring the father’s evidence in respect of the sexual abuse allegations did not represent a fair reading of the relevant paragraphs of the his Honour’s reasons;
(e)the mother had asserted that the father had tried to undermine the child’s relationship with her (again we imply from this submission that it is accepted by the ICL that this evidence was controversial);
(f)in respect of his Honour’s findings about parental capacity the ICL said:
11.7.1.The quotation above is unfair in that it does not include the concluding words of the sentence. It may have been unwise to use the words “no less able than the wife” in the context of the interim proceedings however his honour’s [sic] remarks are addressed to the relevant issue. The real question was not the relative ability of the parents but whether for the periods proposed by his honour [sic] the father had the requisite capacity. There was evidence by the husband of the time that he had cared for [the child]. There was also evidence from [A] as to the father’s ability to care for her sister. (ICL’s submissions, pp 4-5) (original emphasis)
(g)the concatenation of two paragraphs of his Honour’s reasons leads to an unfair reading of the reasons, and to the extent it was relevant the trial Judge was entitled to find the mother complained more vigorously that the father is the cause of the children’s problems than vice versa;
(h)the finding made by the trial Judge was not available for the reason he expressed; and
(i)in relation to the finding of “low level violence” it was submitted:
11.10.1.In the absence of better evidence it may have been more appropriate for his honour [sic] to characterise the incidents as “violence” rather than “low level violence”. It was open for his honour [sic] to find that the dysfunctional relationship between the parents was one of the causal factors for the poor and violent behaviour of the children. It was not open to his honour [sic] to find that it was the only or the most significant causal factor. It was open to his honour [sic], without attributing blame, to find that there may well be a reduction in the level of conflict in the home following the departure of the wife. (ICL’s submissions, p 6) (original emphasis)
We do not disagree with the matters set out by the ICL’s counsel insofar as his submissions fairly acknowledge that the findings about which complaint are made in (a), (c) and (g) were open to his Honour on the evidence. In adopting the submissions in relation to (a) we accept that the child was attending a school for children with special needs at the date of the hearing, but she had in the past been enrolled in a normal school, and also attended a normal school one day per week whilst attending the E Centre.
We also agree with counsel for the ICL’s submissions that his Honour did make some findings on controversial matters (see paragraphs (b), (e), (f), (h) and (i)). What we must consider is whether those findings vitiated his Honour’s discretion and constitute appealable error. In other words, were these findings integral to his Honour’s determination that it was appropriate for the child to spend each alternate weekend overnight with the father?
We acknowledge that the legislation since the amending Act is complex and does not in any significant way differentiate between matters which must be taken into account in a final hearing and those at an interim hearing.
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions (see Goode at paragraph 82(d)). In this case we agree with the written submissions made by the former counsel for the ICL and the oral submissions of counsel for the ICL at the hearing of the appeal that two findings of the trial Judge were inappropriate, namely that:
a)the father demonstrated a greater level of parental responsibility when the evidence on which that finding was based was the fact the majority of the children lived with him; and
b)the incidents reported by the mother constituted “low level violence” as the violence identified fulfilled the statutory definition of family violence in the Act.
In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Notwithstanding the two matters we have identified as being inappropriate findings, we are satisfied that they did not constitute the ratio decidendi of his Honour’s decision or affect the ultimate discretion he exercised. The trial Judge did not make findings on contentious issues which would have rendered his decision unsafe, and appealable error on this basis is not established.
In coming to this conclusion, we agree with the written submissions of counsel for the ICL in respect of the sexual abuse issue. We note that his Honour in paragraph 13 recorded the only evidence before him which asserted sexual abuse which was an incident which occurred when the child was aged three, and was, on the mother’s evidence, asleep in bed with the father when the mother said she observed the father masturbating. The father gave a different version of the event. His Honour found that if the child had unsupervised contact in the father’s home he was not satisfied she would be exposed to an unacceptable risk of sexual abuse. Given the paucity of and age of the evidence on this topic, and taking the mother’s evidence at its highest, as his Honour appears to have done, he was entitled to be satisfied there was no unacceptable risk of sexual abuse to the child if overnight time in the father’s household was not supervised. His Honour did not accept and prefer the evidence of the father on this topic. The trial Judge did give careful consideration, as he was bound to do, to the documentary material which the mother asserted corroborated her allegation.
A fair reading of his Honour’s ex tempore reasons discloses that his Honour did not find the sole reason the mother sought the time with the father be supervised was the allegation of sexual abuse. In the introductory section of his reasons his Honour identified that the mother was opposed to the orders sought by the father on the basis of sexual or psychological harm to the child. This complaint is without substance.
The weight challenges
The mother asserted that the trial Judge:
·failed to give proper consideration to the submissions made by the ICL;
·erred in determining the application without the benefit of a psychiatric report;
·failed to take into account the father’s failure to deal with inappropriate conduct by D; and
·failed to give appropriate weight to the asserted failure of the father to properly supervise the children.
These challenges may be disposed of shortly. We have earlier in these reasons referred to the limits on appellate interference with a discretionary judgment.
Counsel for the ICL noted that although the trial Judge had not accepted the recommendations of the ICL as to the appropriate orders, the ICL had been afforded the opportunity to make submissions, and no appealable error on this basis is demonstrated. We agree.
We also find no merit in the assertion his Honour erred in failing to adjourn the application, or make any orders until he had the benefit of an expert psychiatric report. His Honour gave cogent reasons why he could not adopt that course. The interviews for the report which had been ordered were not to take place until August 2010. The matter could not be left in a vacuum pending that report which was being prepared for a final hearing when the expert could be cross-examined.
As was pointed out by counsel for the father, the facts in this case are readily distinguishable from those which pertained in Vasser & Taylor-Black [2007] FamCA 547. We are satisfied not only was there no error by his Honour in proceeding to hear and determine the application, but that he acted responsibly and in the best interests of the child in determining the application before him.
We can also shortly dispose of the complaints about the weight given by the trial Judge to the evidence concerning D’s behaviour and the father’s reaction to his behaviour. Although his Honour only briefly referred to the father’s affidavit material in the context of the behaviour of the children and parental responsibility, his Honour had corroborative evidence in the form of the correspondence from D’s school dated 5 March 2010. Nothing to which we were referred demonstrated that his Honour gave inappropriate weight to the father’s unchallenged evidence of steps taken by him in his reaction to D’s behaviour including his expulsion from school.
Similarly we are satisfied it was open to his Honour to have some regard to the evidence of A filed in the father’s case, and no error is demonstrated in respect of the weight given by the trial Judge to this evidence. These grounds are not established.
Re-determination
As we have established error of law by the trial Judge, we propose as sought by the parties and the ICL, to re-determine the review application.
We have already set out the relevant uncontested matters under the heading “Background” earlier in these reasons and the orders sought. We note by the time of the hearing before us that L was living with the mother.
So far as we are aware, no application was made to the trial Judge for a stay of his Honour’s orders in respect of the child after the appeal was listed for expedited hearing.
The mother’s counsel did not seek to review the Judicial Registrar’s orders in respect of the three elder children, and we will confine our discussion to orders sought in respect of the child.
The parties’ legal representatives made no submissions to us as to whether the presumption of equal shared parental responsibility should apply, or whether the presumption was rebutted, or not in the child’s best interests. No submissions were made on this topic by counsel for the ICL.
As we indicated earlier in these reasons, the extensive affidavit material on which each party relied contained many areas of dispute. There were few uncontroverted facts. We accept that the evidence of incidents involving the elder children in the household fall within the definition of “family violence” for the purposes of the Act and would, as a consequence, prima facie, mean the presumption does not apply. Further, as we indicated earlier in these reasons, the extensive affidavit material on which each party relied contained many areas of dispute. In these circumstances, we are satisfied it would also be appropriate, if the presumption was not rebutted, to rely on s 61DA(3).
In determining the orders in the best interests of the child we propose to consider the matters in s 60CC(3) prior to our consideration of s 60CC(2) (see Collu & Rinaldo [2010] FamCAFC 53 at paragraphs 334-335).
Additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Neither party’s material dealt to any extent with the views of the child, and we are unable to place any weight on any her views.
(b) the nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
Both parties assert that they have a good relationship with the child. It is not in dispute that the father agreed, without admission, that the child should live with the mother who had been her primary carer the whole of her life.
The fact that the mother originally sought orders that time spent in the father’s household should only occur if A and L were present implies that the child has a good relationship with her sisters, which should be maintained. L, however, now lives in the mother’s household.
We are unable to make any findings about the child’s relationship with D and H. That matter will no doubt be explored by the Court-appointed expert.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
We are unable to make definitive findings about the willingness of either party to facilitate a close and continuing relationship between the child and the other parent. However, the orders sought by the mother for no time to be spent by the child with the father until Dr M’s report is available strongly implies her reluctance to presently foster a relationship between the father and the child.
Similarly it is of concern that the mother has not spent time with H and D while they have been living in the father’s sole care.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
AND
(f) the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
In considering the competing orders sought by the parties and the effect of those orders if implemented, we note that the mother now proposes orders that no time at all be spent by the child with the father. We find the rationale for this order difficult to understand. The mother, in her application before the Judicial Registrar, considered the child’s best interests dictated she should spend time in the father’s household each Sunday albeit the mother sought that A and L should also be present, or if they were not, then the father should spend time with the child in venues such as cinemas and shopping centres.
That proposal must have envisaged a benefit to the child in spending time with her father. However, it appears to us, that at least the mother’s alternate proposal does not sit comfortably with her assertion that the father cannot adequately supervise the child and that she behaves inappropriately from time to time in venues such as shopping centres and requires assistance with toileting. The mother’s proposal before the Judicial Registrar had the effect, if implemented, that the child would need to attend to her own toileting needs in such venues.
The orders actually sought before the trial Judge by the mother were subject of change. She sought the time spent by the child with the father be supervised, but there was no evidence of suitable supervisors being available.
Before us, the mother’s position was unequivocal. She sought there be no time spent by the child with the father until the release of Dr M’s report. The basis of such a position was not, in our view, adequately explained by the mother. The logical corollary of the mother’s position is that the child would not see A and probably H and D at all during this period. We are satisfied that the mother’s proposed orders for no time to be spent with the father lacks proper foundation.
The father’s preferred position was for overnight alternate weekend time to occur. If there were no concerns about the child’s ability to cope and to be adequately supervised, including protection from bullying by H and D during such periods, we would see a benefit to the child in such a proposal. It is not in dispute that the child is developmentally delayed and hearing impaired. She has been principally cared for by the mother, and has effectively spent no time with the father since late 2009. There is evidence of very inappropriate conduct of the elder children without adequate supervision by either party and, in particular, without adequate supervision by the father in November 2009.
The conservative approach as recommended by the ICL would have the child seeing the father and her elder siblings on a weekly basis each Sunday during the day rather than on alternate weekends until final hearing or further order of the Court. We see merit in the ICL’s proposal. This proposal would maintain the child’s relationship with the father and her siblings by regular weekly contact, but avoid to a significant degree concerns for her physical safety and wellbeing during extended overnight periods.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Other than the question of supervision, we do not find any matter which indicates there will be practical problems associated with the child spending time with or communicating with the father. The parties live in reasonable proximity, and have the capacity to collect or deliver the child from each other’s rented accommodation. Accordingly, we place no weight on this factor.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
We have already referred to the child’s disabilities and it is unnecessary we repeat our consideration of this issue.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The uncontroverted evidence demonstrates that the parties during the period of their cohabitation very appropriately sought out expert medical attention for the child and have been very conscious of and attuned to her educational needs. Both parties are to be commended for their diligent pursuit of expert assistance for the child. However the reports annexed to the mother’s affidavit were not current, the most recent reports having been obtained in 2008.
The evidence of the parties’ respective capacity to provide for the child’s physical needs is the subject of some dispute, particularly having regard to the capacity of the father to supervise the older children post-separation. The undisputed evidence is that the police had been called to the home when fighting involving knives broke out between L and her siblings on 4 November 2009. On that occasion it was necessary for the father’s brother to call the police (father’s affidavit filed 1 December 2009, paragraph 42). This incident does indicate a lack of appropriate supervision by the father of the older children, who have demonstrated antisocial behaviour.
The parties’ evidence about the circumstances of D’s expulsion from school is controversial. However the material from the older children’s school indicates a responsible attitude by the father in his contact with the school over D’s behaviour (for example the letter dated 5 March 2010 from Mr W, Head of Middle School, C School to the father which is attached to the mother’s affidavit sworn 11 March 2010).
There is some controversy between A’s evidence about the household situation, the incident of 4 November 2009 and the mother’s evidence. We are satisfied little weight can be afforded to the evidence of A, which is untested.
The father concedes he spent long hours working and that the mother was the children’s primary caregiver albeit assisted by a woman, Ms N, whom the mother met via the internet. However his evidence that he drove the children, including the child, to school on a regular basis between 2003 and 2007 was not challenged.
There is an issue, not able to be resolved on an interim basis as to whether the child has difficulty with toileting, and requires vigilant supervision on outings.
There is no doubt that the father has the capacity to provide for the child’s intellectual needs. He has been the parties’ breadwinner throughout the marriage conducting his own previously successful business and continuing in employment at the date of the hearing.
The evidence about the father’s capacity to ensure the child is not abused by bullying by her siblings is subject of some controversy which also cannot be resolved at an interim hearing. But we cannot disregard the possibility. We have already expressed our findings about the lack of adequate supervision of the children on 4 November 2009. That has the consequence that some concern must be raised about the child being in the father’s household for extended periods of time.
The trial Judge’s reasons in dealing with whether or not the child would be subject to an unacceptable risk of sexual abuse in the father’s household are cogent. We are independently satisfied that the evidence, on the balance of probabilities, does not establish an unacceptable risk of sexual abuse of the child if in the father’s care on an unsupervised basis. In coming to this conclusion we have had regard to the nature of the evidence on this topic which we discussed in paragraph 125.
(j) any family violence involving the child or a member of the child’s family
We have already referred to the incident on 4 November 2009 evidence about which is not in dispute. That evidence is of serious concern and fulfils the definition of family violence under the Act.
We are conscious that in coming to this finding it is necessary we undertake a balancing of any unacceptable risk to the child in spending time with the father, and the benefit to her of maintaining on a regular basis a meaningful relationship with him. We will return to this aspect of our reasoning further when considering the primary considerations. However it is relevant at this point we note that the ICL’s proposed orders for limited time in the father’s household is likely to reduce any risk to the child. We are of the view that the risk to her of exposure to family violence or being abused by her siblings for the short periods contemplated does not pose an unacceptable risk to her.
Primary considerations
We turn to the primary considerations. The child, until the parties’ separation, had the benefit of a meaningful relationship with each of her parents. Although the mother raises issues about the father’s capacity to adequately supervise the child if in his sole care, and his capacity to supervise her siblings, there is nothing otherwise in the mother’s material to suggest that the child would not derive a benefit from a meaningful relationship with her father and that she should not see him at all. There is uncontroverted evidence in the father’s material which indicates a commitment to the child, such as his evidence about daily driving her to school for a period of approximately four years. The mother’s proposal that any time to be spent with the father should be deferred until the receipt of Dr M’s report would not assist the maintenance of the child’s relationship with her father.
As we have already indicated, we accept incidents, particularly the incident of 4 November 2009, fit within the definition of family violence in the Act. Those incidents are troubling and support the conservative approach suggested by the ICL.
In weighing relevant matters under s 60CC, we have given weight to s 60CC(2)(a) and s 60CC(3)(b) and (d) in rejecting the mother’s proposed order. In determining orders in the best interests of the child, we have given most weight to the matters we discussed under s 60CC(2)(b), s 60CC(3)(b), (d), (f), (i) and (j).
On balance we are satisfied that it is in the child’s best interests that she re-establish her relationship with her father and her siblings by regular time spent with them. However, the nature of the uncontested evidence in this matter, together with the undisputed incidents which have occurred involving the older siblings suggest a structure of time spent as advocated by the ICL is least likely to expose the child to risk of inappropriate conduct by her siblings without adequate supervision. Regular, but not overnight time, will permit the maintenance of her meaningful relationship with the father without any concern about her personal hygiene and other supervision needs until these matters can be more appropriately investigated.
Weighing all these matters we are satisfied that the orders pending further order which are in the best interests of the child are in identical terms to those made by the Judicial Registrar. The consequence of these findings is that we propose to dismiss the mother’s application to review the orders of the Judicial Registrar. The order staying those orders will be discharged, and the orders made on 2 December 2009 will, pending further order, be the operative orders.
Costs
The mother sought in the event the appeal was upheld we should order that the father pay her costs of and incidental to the appeal. While we are satisfied that the mother has succeeded on the error of law identified as a result of her amended grounds of appeal, we take into account the circumstances in which we permitted the mother to amend her Notice of Appeal. On balance, having considered the matters in s 117(2A) we are not satisfied in this case that there are circumstances why there should be a departure from s 117(1). Accordingly each party will pay their own costs of and incidental to the appeal.
I certify that the preceding one hundred and seventy one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 11 June 2010
522
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