Mauldera & Orbel
[2014] FamCAFC 135
FAMILY COURT OF AUSTRALIA
| MALDERA & ORBEL | [2014] FamCAFC 135 |
| FAMILY LAW – APPEAL – STATUTORY CONSTRUCTION – Proper role of objects provisions in legislation considered – Where greater weight attached s 60B (objects and principles) than s 60CC – B & B: Family Law Reform Act 1995 (1997) FLC 92-755 considered as to the role and significance of s 60B – Where B & B:Family Law Reform Act 1995 provides that a judge is expected to identify and discuss the significance and weight of relevant s 60B factors and that where there are no countervailing factors, s 60B may be decisive – Where regard may be had to objects clauses to resolve uncertainty or ambiguity in the legislation but not to control clear statutory language or command a particular outcome of exercise of discretionary power – HELD – B & B:Family Law Reform Act 1995 overruled to the extent that it holds that s 60B does more than provide context, indicate the legislative purpose of Part VII and operate as an aid to construction of the Act. |
| Family Law Act 1975 (Cth): ss 11F, 62G, 60CC, 60B, 60CA, 65AA, 61DA, 62G, 68L, 68LA, 60CE |
| Aldridge & Keaton (2009) FLC 93-421 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 Harrison and Woollard (1995) FLC 92-598 Langmeil & Grange [2013] FamCAFC 31 Marsden v Winch (2009) 42 Fam LR 1 Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 R v R: Children’s Wishes (2000) FLC 93-000 Re K (1994) FLC 92-461 Rice & Asplund (1979) FLC 90-723 |
| APPELLANT: | Ms Maldera |
| RESPONDENT: | Mr Orbel |
| FILE NUMBER: | NCC | 1281 | of | 2007 |
| APPEAL NUMBER: | EA | 53 | of | 2014 |
| ORDERS MADE: | 16 June 2014 |
| DATE DELIVERED: | 30 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 16 June 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 April 2014 |
| LOWER COURT MNC: | [2014] FCCA 949 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page QC |
| SOLICITOR FOR THE APPELLANT: | R J O’Halloran & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Boyd |
| SOLICITOR FOR THE RESPONDENT: | A W Simpson & Co |
Orders made 16 june 2014
The appeal of Ms Maldera against the orders made by Judge Terry on 9 April 2014 be allowed.
The orders made by Judge Terry on 9 April 2014 are set aside.
The matter be remitted to the Federal Circuit Court for hearing by a Judge other than Judge Terry.
That there be no order for costs in relation to the appeal.
That the Court grants to the appellant grandmother a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.
NOTATION:
The Full Court of the Family Court will advise the Registrar of the Federal Circuit Court that the hearing of this matter requires some priority.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maldera & Orbel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 53 of 2014
File Number: NCC 1281 of 2007
| Ms Maldera |
Appellant
And
| Mr Orbel |
Respondent
REASONS FOR JUDGMENT
This is an appeal by Ms Maldera (“the grandmother”) against parenting orders made by Judge Terry on 9 April 2014 in relation to her grandson X (“the child”). The child’s parents were the other parties to the proceedings.
Ms S, who is the child’s mother (“the mother”), cannot be located and thus she did not participate in the hearing before the primary judge or the appeal. As will be discussed later, it has been a long time since the child has seen the mother and years since she has been meaningfully involved in his life.
Mr Orbel is the child’s father (“the father”) and it was his application for an order that the child lives with him which was the catalyst for the proceedings determined by the primary judge.
From birth until he was about four years old, the child lived with either his mother or his parents. He may have also spent time with his grandmother. In any event, after what a family consultant appointed pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) described as “… many changes in his family’s situation (many of them being very negative and inappropriate)”, at the age of four, the child went to live with the grandmother which was where, at the time of trial, and some eight years later he still lived.
During the interregnum, the grandmother sought to formalise the child’s living arrangements and, in 2007, she commenced parenting proceedings in the Family Court.
Neither parent opposed the orders sought by the grandmother and after a family report was prepared, on 1 June 2009 Fowler J made orders that the child live with the grandmother and that she have sole parental responsibility. Provision was made in the orders for the child to spend periods of time during the day with the mother and each alternate weekend and half school holidays with the father. With one or two exceptions, the child spent time with the father in accordance with the orders.
Orders were made at the same time in relation to the child’s half-sisters, A and B, born in 1996. Fowler J ordered that A reside with the grandmother and that she have sole parental responsibility. The child B’s time was divided equally between the grandmother and B’s father who were given equal shared parental responsibility.
The child B left the grandmother’s care in 2010, as did the child A in 2011.
Thus, when in May 2013 the father filed an application that the child live with him, there were, as the primary judge said, a number of factors which considered together made it appropriate for the court to consider the child’s living arrangements once again (Rice & Asplund (1979) FLC 90-723; Langmeil & Grange [2013] FamCAFC 31).
Indeed, just as the child’s circumstances in the grandmother’s home had changed, so too had the father’s. Life with his wife H, with whom he has three children, was settled and unlike the situation in 2007-2009 when, as the primary judge found “… the father had his own family to think about …”, the father said he and his wife were now in a position to have the child live with them [32].
The primary judge found that the grandmother took good care of the child and that she assumed responsibility for him because his parents either could not or would not. Having refused counsel for the grandmother’s exhortation that the primary judge obtains a family report before she determined the child’s future living arrangements, her Honour discharged the 2009 orders and ordered that the child lives with the father. It is against those orders that the grandmother appeals.
The father seeks to uphold the orders and contends that the appeal should be dismissed.
At the end of the hearing we made the orders set out at the commencement of these reasons and said we would publish our reasons as soon as we could. These are our reasons.
Primary judge’s reasons
The primary judge delivered oral reasons the day after the hearing was completed. Having determined the Rice & Asplund issue in favour of the father, her Honour then addressed counsel for the grandmother’s proposition that before the court would contemplate changing the child’s place of residence, her Honour would make an order (pursuant to s 62(G) of the Act) for a family report.
In rejecting that proposition, at [15], the primary judge pointed out that the evidence included a s 11F memorandum which showed that a family consultant spoke with the child (on 20 August 2013) and provided “some information” about the child’s views in relation to with whom he would prefer to live. At [17], her Honour summarised the family consultant’s evidence concerning the child’s views as follows:
… [The child] told [the family consultant] at this conference that he had no concerns about either household and did not want to express a view about where he should live.
Her Honour then considered whether there were other issues a family consultant might investigate. It was observed that although the grandmother alleged the father had “historically used drugs” [19], an inference could be drawn from her failure to issue subpoenas (presumably to child welfare and law enforcement agencies) or seek an order for drug testing (by what authority is not explained) and the paucity of evidence adduced in her case meant that there was nothing raised in the grandmother’s case which required investigation by a family consultant.
Although, in the father’s case, subpoenas had been issued to the Department of Family and Community Services and New South Wales Police, the
primary judge observed none of those documents were tendered. As to the grandmother’s capacity to care for the child, the primary judge observed, at [20]:
… The only allegation the father made against the maternal grandmother was that [the child] had complained about being smacked a couple of years ago and said that he did not like it.
Thus, her Honour reached the conclusion that:
21.… from where the parties were sitting they did not have too many concerns about the other party…
That her Honour viewed their position as being reasonable is evidenced by what she said at [22]:
[The child] is not in trouble at school. He is not in trouble in his peer relationships. He is not self-harming. He is a child everyone is proud to have as their relative, their grandson or son as the case may be. He has obviously been well brought up. He is living with the maternal grandmother. He is spending frequent time with the father. He told [the family consultant] he did not have any problems in either household. So in those circumstances the solicitors not issuing subpoenas or requiring drug testing as the case may be indicates to me an acceptance by them that nothing adverse would have been found if they had gone on a fishing expedition.
Reference was then made to the paucity of evidence filed in the father’s case which, when considered in conjunction with the evidence adduced in the grandmother’s affidavits, and the fact that “there is no suggestion of abuse” in the s 11F memorandum, persuaded her Honour that it was “entirely appropriate” to proceed without a family report.
Having referred to background facts which are summarised in our introduction, the primary judge summarised the parties’ circumstances (from [38]).
The father and his wife commenced cohabitation in 2007. At the time of hearing, he was 37 and his wife was 27. They have three children, then aged six years, four and a half years and 21 months. A labourer by occupation, the father had not had paid employment for about 12 months and at the time of hearing he was engaged three days a week at a recycling centre on a “work for the dole” arrangement. The father’s wife was fully engaged with the children.
The father and his family lived in Town T in rented accommodation and he was hopeful that if the child was ordered to live with him, he would be provided with a four bedroom house in the same town [39].
The primary judge found that at the time of the hearing the grandmother was 57 and that she lived with the child and the child’s step grandfather in Town T. Her Honour said that the grandmother “… lives in a pleasant house in a very pleasant neighbourhood which provides a very good standard of living for [the child]” [42].
As to the child, he was in his last year of primary school which attendance the father would continue if the child lived with him.
Under the heading “The parenthood factor” the primary judge discussed the authorities which demonstrate that it is “…clear that the fact of parenthood is a relevant consideration when it comes to determining what is in a child’s best interests” [46]. As her Honour correctly observed, it is well settled that:
48.… the fact of parenthood does not create a presumption in favour of a parent and the legislation requires that all decisions about parenting must be determined by treating the best interests of the child as the paramount consideration.
In support of this proposition and the proper approach to the determination of cases between parents and non-parents, her Honour, at [50], referred to Aldridge & Keaton (2009) FLC 93-421 where the Full Court quoted with approval at 83,823 the following passage from Rice & Miller (1993) FLC 92-415:
… We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.
Her Honour then discussed the child’s best interests, in relation to which ss 60CC(2) and (3) were considered.
Turning first to the primary considerations contained in s 60CC(2), the primary judge was satisfied that protection issues of the type referred to in s 60CC(2)(b) did not arise. As to the benefit to the child of having a meaningful relationship with his parents (s 60CC(2)(a)), because the mother had withdrawn from the child’s life, the child could not have a meaningful relationship with her. However, at the time of hearing, the child had a meaningful relationship with the father which her Honour said was “significant, important and valuable” and would continue “… no matter what orders I make in this case” [56]. Thus, her Honour said that the primary considerations were of no assistance in deciding whether the child should live with the father or grandmother [57].
Section 60CC(3) was then discussed. After the primary judge decided that no weight should be given to evidence that the child told his father and paternal grandmother he wanted to live with the father, the primary judge discussed the family consultant’s memorandum.
In order to understand her Honour’s findings concerning the s 11F memorandum, it is helpful if we refer to that evidence first. The family consultant said:
[The child] was very clear that he did not wish to express any preference as to his future living arrangements. [The child] understood that MGM wanted existing arrangements to continue and his father wanted a reversal of the existing arrangements. The only issue (as far as [the child] understood it) was where he would spend school nights. [The child] had a mild preference but gave no indication as to what it was. [The child] was reassured that he did not have to choose and that he did not have to express his view and he was noticeably relieved to hear this information.
[The child] had no major concerns in either household and indicated that he would be fine with either proposal (as he understood the proposals).
[The child] appeared to be a very resilient child who had learnt to accept his circumstances. He had observed very many changes in his family situation (many of them being very negative and inappropriate) and had merely accepted that this is how it was. [The child] appears to continue to adopt that view regarding the current Family Law Court matter.
(Family Consultant Memorandum, filed 20 August 2013, p 2)
In relation to this evidence, the primary judge found:
61.[The family consultant] said that [the child], when asked about the two options, said that either option was okay with him. [The family consultant] said that [the child] seemed to have a mild preference but did not say what it was and no amount of cross-examination of [the family consultant] would have advanced that. So I have a situation where [the child] said that either option was okay, he might have a mild preference but I will never know what it was, and [the family consultant] said it was a mild preference. That is the extent of the findings I can make about [the child’s] views.
Her Honour then said she was satisfied the child had a good relationship with the grandmother and her partner and the father, his wife and their three children. The primary judge was unable to reach any conclusion about the child’s relationship with his older sisters [63-65].
The extent to which each of the parents had taken or failed to take the opportunity to participate in the child’s life in the manner referred to in s 60CC(3)(c) was then considered. Under this subsection, her Honour focused on the father having taken every opportunity to spend time with the child pursuant to the 2009 orders and found he had since then demonstrated a strong desire to be part of his son’s life [68].
This segued into an examination of the extent to which the father had met his obligation to financially support the child (s 60CC(3)(ca)). Because the father was in receipt of Centrelink benefits, had three other children and the grandmother had not applied for an administrative assessment of child support, the primary judge said:
71.I can’t really find the father has failed to fulfil an obligation if nobody has thought to impose an obligation on him. Nevertheless the reality is that the maternal grandmother has largely been responsible for [the child’s] financial support for very many years and that’s enormously to her credit. [The child] is very lucky.
As the primary judge correctly identified, by s 60CC(3)(d) she was required to consider the likely effect of any change in the child’s circumstances, including being separated from his grandmother and step grandfather. This factor was, as the primary judge explained, a pivotal issue in the grandmother’s case. The grandmother’s point being, if in her care the child was doing well and had a meaningful relationship with his father, the court would need to carefully consider how changing these circumstances would affect the child.
Her Honour said she would come back to this issue [74].
Pivotal to the appeal are the primary judge’s findings in relation to the parties’ respective capacities to meet the child’s needs. At [78], the primary judge said:
The maternal grandmother is doing a very good job looking after [the child] day to day. There is absolutely no question about that. You only have to look at him, at his appearance, at the fact that everyone is glad to have him around, that he is having no problems at school, that he has friends who like him, to see that the maternal grandmother is doing a good job.
By reference to the child regularly spending time with the father each alternate weekend and half school holidays, her Honour found that the father is part of the child’s success and had “…a very positive input into [the child’s] life …” [79].
Next, her Honour found the father admitted prior illicit drug use and accepted his evidence this was no longer an issue [80]. Reference was made to his having been convicted of assaulting a partner of the mother’s, but the paucity of evidence about the detail of the assault and this issue not having been explored in cross-examination, meant that the assault and conviction would be afforded no weight [81].
Turning then to the parties’ capacities to meet the child’s emotional needs, at [82], the primary judge said both parties’ capacity was diminished. The primary judge was “a little bit” concerned that the grandmother had, until the hearing, been unwilling to facilitate the child spending more time with the father than is provided for in the 2009 orders. The point being, as her Honour explained, that the grandmother had not considered whether this 12 year old boy might benefit from “… more time with his dad” [83].
On the other hand, the father’s attitude towards the grandmother was found to reflect “… very poorly on him” [84]. In refuting the father’s claim that the grandmother “stole” the child, the primary judge said, at [85]-[86]:
... Nothing could be further from the truth. She was there for [the child] and his sisters. She made an application to the Court, she took on their care, and she supported [the child] financially. The father let all this happen between 2007 and 2009. He didn’t fight for [the child] then. He didn’t file any documents in those proceedings. He didn’t attend the family report interviews in person. He acquiesced in [the child] living with the maternal grandmother.
It must have been something which suited him at the time, and it is a deficiency in his capacity to provide for [the child’s] emotional needs that he simply cannot see that he is responsible for the outcome of [the child] being brought up by the maternal grandmother. He was part of that, and the fact that he cannot see it, that he talks about [the child] having been stolen from him, and that he shows no appreciation of the good job the maternal grandmother has done for [the child] indicates that he has a blunted capacity to provide for [the child’s] emotional needs, and that concerns me.
At [88], the primary judge said in relation to the child’s “maturity, sex, lifestyle and background” (s 60CC(3)(g)), she could do no more than determine the child’s age and that he is apparently easy-going and adaptable.
Consideration was then given to the attitude of the parents to the child and responsibility of parenthood. Reference was made back to her Honour’s findings at [85] and [86] (which we set out earlier) in relation to which her Honour found:
90.… in my view [this] indicates that his attitude to [the child] and the responsibilities of parenthood is not so great.
Family violence was found to be irrelevant as was the impossibility, in this case, of predicting which suite of orders was least likely to lead to further proceedings. However, it is relevant to note that, at [96], the primary judge postulated that further proceedings might be possible if orders were made that the child lives with the father but he did not settle with the new arrangement.
Under the rubric of “any other relevant matter” (s 60CC(3)(m)), her Honour returned to the issue of parenthood which, because the mother had stepped out of the child’s life, she viewed as being particularly relevant. Her Honour saw as significant that, after some five or seven years of the father not meeting his parental responsibilities to the child, he “…now wants to step up to his responsibilities and assume [the child’s] care …” [99]. Although the fact that he is a parent was found to be relevant, her Honour contrasted this with the father’s attitude to the grandmother which “… worries me so much” [100].
The primary judge found the child’s only link to his maternal family is via the grandmother. This is because not only did the father not get along with her, but he did not get on with the child’s elder sisters or any other member of the maternal family. These concerns culminated in her Honour’s findings:
101.If I place [the child] with the father and then the father is difficult about [the child] spending time with the maternal grandmother, not only will [the child] being (sic) cut off from her but he will be cut off from any opportunity to have a link with any of his maternal family, and that is why the father’s attitude to the maternal grandmother and his attitude to whether [the child] should spend time with her causes me concern.
102.My concern is probably slightly increased by the fact that the paternal grandmother also does not have a particularly good view of the maternal grandmother and has apparently bought into the father’s world view that [the child] was taken away from him, and [the father’s wife] supports the father in that.
The primary judge then indicated it was necessary to reconsider the existing order whereby the grandmother had sole parental responsibility. Having raised this issue, her Honour decided she would first consider with whom the child should live and then deal with parental responsibility.
There follows, under the heading “Conclusion”, the rationale for the
primary judge’s decision that the child lives with the father. At [111], it was explained that, in the view of the primary judge, this was “a very difficult matter” because the child, then aged 12, had for the majority of his life lived with the grandmother.
By reference to her earlier findings, the primary judge observed that the child “is a likeable boy” which meant “…someone has done a very good job of bringing him up …” [112]. Consistent with earlier findings, the primary judge said “… the maternal grandmother deserves a great deal of credit for the child that [the child] is today …” [112].
Contrary to the father’s position the grandmother stole the child, at [113], the primary judge determined:
... He was content for the maternal grandmother to take on the role of [the child’s] substitute carer.
Reference was then made to the grandmother’s contention, rhetorically expressed to the primary judge as “… Why should [the court] change something that is working so well for [the child]? …” [114].
In response to the grandmother’s expressed concern at [115] that the child “… will not settle” if an order is made that he lives with the father, at [116], the primary judge said:
I have to bear in mind that although [the child] did not express a preference to [the family consultant] it is possible that he might find the reality of living with the father different to what he imagines and it would be very unfortunate if he were unsettled if I made the change and made an order that he live with the father.
The grandmother’s evidence that if, when the child was about 14 he wanted to live with the father, she would let him go, was then considered. After the primary judge expressed some doubt that the grandmother would so easily give effect to any such views, her Honour said:
118.… one of the issues I have to bear in mind is that if I make an order that [the child] lives with the father it will better meet the objects and principles in s.60B of the Family Law Act. (original emphasis)
The principles and objects were summarised at [119] in the following terms:
Most of the principals and objects of the Family Law Act refer to the benefit to a child of having a meaningful relationship with both of his parents, of being cared for by both of his parents to the maximum extent possible. (original emphasis)
We observe that in the paragraph just referred to the primary judge conflated the object referred to in s 60B(1)(a) with the principle referred to in s 60B(2)(a).
After the primary judge set out s 60B of the Act (objects of Part and principles underlying it) she set out the ratio of her decision. This is found at [121]-[123], which paragraphs are set out below:
121.The mother is not there for [the child]. The father wants to do the things the Act says a parent should do for a child, the things the Act says children have an entitlement to, because under the Family Law Act parents do not have rights. Grandparents do not have rights. Children have rights, and what the Act says is that children have a right to know and be cared for by both of their parents
122.If I make the orders the father seeks I will be better meeting the objects and principles in s.60B.
123.I also cannot refuse to make the orders the father is seeking simply because there is some risk that the change might not work.
Then, the primary judge expressed the view that “change is a fact of life. Change has to happen” and that what needed to be considered is “whether there is a high risk that this change might not work for [the child] and what the benefits would be to him if it did work” [124]. The degree of risk and possible benefits to the child associated with changing where he lived were then addressed.
The factors which favoured change included that the father cared for the child on weekends and during school holidays and that he and his wife cared about the child and for their children without issue. After her Honour said, at [125], that the court could not “… make any adverse findings about [the father’s] parenting capacity except for the issue of his attitude to the grandmother” the benefits to the child of living with his father were addressed. These are described at [127] in the following terms:
There would be real benefits to [the child] in circumstances where his mother has let him down in knowing that he has a father who cares enough about him to take him into his home and provide for him through thick and thin in the difficult times and the easy times, and in my view the maternal grandmother and the step-grandfather being there for [the child] cannot really substitute for that.
By reference to what the family consultant said were the child’s views, the father and his wife’s parenting capacity and the child’s characteristics, the primary judge said there was a fairly limited risk that ordering the child to live with the father might not work. Because the findings in relation to this matter are integral to her Honour’s decision and the focus of some at least of the grounds of appeal, it is appropriate we set them out in full:
130.[The child] clearly understood when he spoke to [the family consultant] what the alternative proposals were. He did not express a view one way or the other. He said he could cope with any outcome. [The family consultant] commented that:
He appeared to be a resilient child who had learned to accept his circumstances. He had observed many changes in his family’s situation and had merely accepted that this was how it was. He continued to adopt that view regarding the current family law matter.
131.[The family consultant] certainly did not suggest that [the child] would not cope with a change.
132.I am going to order, distressing as it is going to be for the maternal grandmother, that [the child] commence living with the father but I want to say that I do not do it without some reservations, and the reason for my reservations is mainly because of my concern about the father’s attitude to the maternal grandmother.
133.[The child] is a child who is very reluctant to rock the boat. He wants to please people. The father has a blunted capacity to provide for [the child’s] emotional needs and I am concerned that [the child] might not be willing to press to see his maternal grandmother or his siblings if he knows that the father does not want that to happen or does not support it or does not like these people. (original emphasis)
We have already set out, the portion of the s 11F memorandum to which her Honour, at [130], makes reference. It is appropriate at this juncture to observe that her Honour’s findings do not accurately record that evidence and, omit from after the words “family’s situation” (many of them being very negative and inappropriate).
After the primary judge said that she would order the child to live with the father, on the basis that the relationship between the father and grandmother is poor, “… and that the maternal grandmother is a grandmother, not the other parent …” her Honour found that the appropriate order to make was for the father to have sole parental responsibility [138]. The order for sole parental responsibility was subject to an order the child continued to attend the school he currently attended and the agreed high school, unless the grandmother agreed he could be enrolled elsewhere.
Orders sought in the appeal
By her Amended Notice of Appeal filed 4 June 2014, the grandmother applied for orders that:
·the orders of the trial judge be discharged; and
·the matter be remitted for rehearing.
In the appellant’s Outline of Argument, filed 6 June 2014, senior counsel for the grandmother said, in effect, that we should set aside the orders made by the primary judge. However, because of the nature of the appeal and the fact that the primary judge dismissed the grandmother’s application for a stay as a consequence of which the child had commenced living with the father, it was conceded that a rehearing at first instance could not be avoided.
Grounds of appeal
The grounds of appeal are:
1.That the trial judge erred in that she failed to give any or adequate reasons for the orders made.
2.That the trial judge erred in applying the terms of s 60B of the Family Law Act as a justification for the orders made by her in the circumstances of this matter.
3.That the trial judge erred in finding that there existed circumstances which justified the consideration of the parenting arrangements for the child.
4.That the trial judge erred in failing to make any proper investigation into the attachments and wishes of the child.
We will discuss the grounds of appeal using the order adopted in addresses.
Was s 60B used impermissibly? (ground 2)
By ground 2, it is contended that the primary judge impermissibly used the objects and principles provisions of Part VII (s 60B) to make orders inconsistent with findings made under s 60CC (how a court determines what is in a child’s best interests). Sections 60B is subject to s 60CA (previously s 65E) which 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.
Section 60CC then provides how the Court determines what is in a child’s best interests.
Section 60B was introduced into the Act as part of a comprehensive suite of amendments concerning children made by the Family Law Reform Act 1995 (Cth) (“the Reform Act”). B & B: Family Law Reform Act 1995 (1997) FLC 92-755 is the leading case concerning the role and significance of s 60B in Part VII of the Act. On this issue the ratio is found in the following paragraphs at [84,219-84,221]:
9.51 In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
9.52 The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
…
9.54 Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub- section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
…
9.58 As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
…
9.60 In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.
…
Although this aspect of B & B: Family Law Reform Act 1995 has been the subject of critical comment (see Australian Family Law published by Lexis Nexis at [1284.1]) and has not been expressly overturned, we have been unable to find any subsequent decision of the Full Court in which this aspect of B & B: Family Law Reform Act 1995 is mentioned. It follows that although the primary judge did not refer to B & B: Family Law Reform Act 1995, if the effect of her judgment is that because the outcome of her s 60CC deliberations did not weigh in favour of either party, it was at least arguable that she could use s 60B to determine where the child would live.
However, the questions which must be answered are whether this aspect of B & B: Family Law Reform Act 1995 was correctly decided and represents the current law.
Courts have generally treated objects clauses and preambles in legislation in the same way. In effect, the former (and more recently “simplified outlines”) are contemporary versions of the latter. The proper approach to the role of preambles was considered in Wacando v The Commonwealth (1981) 148 CLR 1. At page 23, Mason J (as he then was) said:
…
It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. There is, however, one difficulty in seeking to restrict the generality of the operative provision by reference to a suggested restriction expressed in the preamble: it is that Parliament may intend to enact a provision which extends beyond the actual problem sought to be remedied. Recognition of this difficulty led Viscount Simonds in Attorney-General v. Prince Ernest Augustus of Hanover to say “that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it”. See also pp. 460-461, 462-463.
… (footnote omitted)
The Wacando principles have been widely applied to the use and scope of objects clauses. It follows that objects clauses can be used as an aid to the construction of words of legislation (Russo v Aiello (2003) 215 CLR 643). However, intention is to be gleaned from the whole Act and, in addition to objects clauses, regard must be had to other sections (Municipal Officers Assoc of Australia v Lancaster (1981) 37 ALR 559).
Applying Wacando, in S v Australian Crime Commission (2005) 144 FCR 431 at [22] Mansfield J said “[s]uch a [objects] clause cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear”. And, in Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at page 78, Cole JA said that “… whilst regard may be had to an objects clause to resolve uncertainty or unambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power”.
Wacando was decided before B & B: Family Law Reform Act 1995 but it seems, was not brought to the attention of the Full Court. We think it is highly unlikely that had the Full Court in B & B: Family Law Reform Act 1995 been invited to consider Wacando that this aspect of the case would have been decided the same way. With Wacando and the cases which follow it in mind, we must respectfully disagree with B & B: Family Law Reform Act 1995 to the extent that that decision held that s 60B does more than provide context, indicate the legislative purpose of the Part and operate as an aid to construction of the Act. Thus, we do not agree that in deciding a parenting case it was necessary to discuss the significance and weight of relevant s 60B factors or that where the outcome of s 60CC deliberations did not enable the court to determine a parenting order, s 60B may be decisive.
Section 60B has been significantly amended including by the Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth) which inserted at the commencement of s 60B the words “The objects of this Part are to ensure that the best interests of children are met by…” These words do no more than reinforce the relationship between s 60B and s 60CC and put beyond doubt that in relation to how a court determines what is in a particular child’s best interests, the facultative provisions are ss 60CA and 60CC and (where it applies) s 65AA. These words do not operate so as to elevate the role of s 60B beyond that envisaged by Wacando. The same must be said about the court’s ability to take into account “any other fact or circumstance” that the court thinks is relevant (s 60CC(3)(m)). Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.
The fact that at least one of the s 60B objects (s 60B(1)(b)) is replicated in s 60CC (s 60CC(2)(b)) reinforces the point that only one is facultative.
Our interpretation is consistent with the manner in which subsequent to the 2006 amendments, seminal authorities such as Goode v Goode (2006) FLC 93-286 and Aldridge v Keaton have approached Part VII. The point being that the legislative pathway for the determination of applications for parenting orders is, as described in [82] of Goode, that the Court:
· considers the matters in s 60CC that are relevant;
· decides whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies, does not apply or it would be inappropriate to apply the presumption;
· if the presumption does apply, decides whether it is rebutted because application of it would not be in the child’s best interests;
· if the presumption applies and is not rebutted, consider making an order that the child spend equal time with the parents unless as a result of the application of s 60CC it is contrary to the child’s best interests, or impracticable;
· if equal time is found not to be in the child’s best interests, consider making an order that the child spend substantial and significant time 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;
· if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders that are in the best interests of the child, as a result of consideration of s 60CC;
· 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
· 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.
As was said in SCVG & KLD [2014] FamCAFC 42, given that s 60CC(1) states that the purpose of s 60CC is to identify how a court determines “what is in a child’s best interests” and both ss 65DAA(1)(a) and (2)(c) require that the court considers whether equal time or substantial and significant time would be in the child’s best interests, s 60CC drives the application of ss 65DAA(1) and (2). Thus, the application of ss 65DAA(1)(a) and (2)(c) is reliant upon findings made pursuant to s 60CC (and not s 60B) in order to determine whether orders of that type would be in a child’s best interests.
It follows that the primary judge could not attach greater weight to the factors referred to in s 60B than she did to the outcome of her s 60CC deliberations. As would be apparent from our summary of the primary judge’s reasons,
her Honour’s findings made pursuant to s 60CC as to the father’s application to change where the child lives were predominately neutral or weighed heavily against change. They certainly did not culminate in findings that supported a change in where the child lives. Against this background, her Honour could not permissibly use the provisions in s 60B to order the child lives with the father because, contrary to the application of s 60CC, that outcome would “…better meet the objects and principles in s 60B” [118]. In other words, an order that the child lives with the father had to be driven by the application of s 60CC and not her Honour’s mistaken analysis of the role and scope of s 60B.
It follows that we are in full agreement with their Honours in Aldridge v Keaton at [49]:
..that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
Nor do we cavil with the well settled jurisprudence which establishes that in a parenting case undertaken between a parent and another person interested in the welfare of a child, the fact of parenthood requires careful consideration (Aldridge v Keaton). However, s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex. In our view, it is abundantly clear that the comparative significance for a particular child of the fact of parenthood (which may in an individual case be decisive) is to be considered and weighed along with the other matters identified in s 60CC (and if relevant s 65DAA). But not on the basis that the factors referred to in s 60B can be used in favour of a parent to deliver an outcome inconsistent with the proper application of s 60CC.
This ground is made out.
The child’s views and relationships (ground 4)
Central to this challenge is the manner in which the primary judge dealt with evidence concerning the child’s views and his relationship with the grandmother. According to senior counsel for the grandmother, the primary judge’s “… assessment … of [the child’s] real wishes and attachments was at best perfunctory” (Appellant’s Outline of Argument, filed 6 June 2014, [6]). It is argued that her Honour erred in treating the evidence contained in the s 11F memorandum as reliable evidence of the child’s views and giving that evidence real weight. Allied to this is the submission that her Honour should have acknowledged the caution raised by counsel for the grandmother that it would be unsafe to proceed further without a family report.
It is common ground that the primary judge gave real weight to the evidence contained in the s 11F memorandum concerning the child’s views. In particular, that:
·he did not wish to express any preference as to his future living arrangements;
·had no major concerns in either household; and
·he would be fine with either proposal.
As [130] of the primary judge’s reasons makes clear, pivotal to her Honour’s decision to order the child to live with the father, is that the s 11F memorandum established that the child “… did not express a view one way or the other. He said he could cope with any outcome”. Hence, her Honour was confident she could change with whom the child lived.
We agree with the submission advanced on behalf of the grandmother, that
her Honour should have approached the s 11F memorandum with caution. If there was any doubt about this, the family consultant’s memorandum itself makes the point. On the first page, the memorandum, filed 20 August 2013, says:
Note: This memorandum provides to the Court preliminary expert advice. Any views expressed or recommendations are, of necessity, limited.
The point being that the s 11F process does not involve a detailed examination of the child’s circumstances or entail the type of investigation and analysis involved in a s 62G(2) family report. As a consequence and unlike a family report, as occurred here, the s 11F memorandum would not usually contain recommendations concerning the ultimate disposition of the matter. It being understood that to do so based on the limited interviews and investigations involved in the s 11F process, may be unsafe.
As we indicated earlier, the primary judge was satisfied that “… either option was okay” with the child and that, although the s 11F interview revealed the child had a mild preference her Honour said she “… will never know what it was” [61]. The latter statement is palpably wrong. Although in the s 11F memorandum the family consultant said the child was noticeably relieved when told he did not have to express a view about where he lives, there are other aspects of the memorandum which strongly indicate this issue required further investigation. In particular, the family consultant’s evidence that the child (at page 2):
… had learnt to accept his circumstances. He had observed very many changes in his family situation (many of them being very negative and inappropriate) and had merely accepted that this is how it was. [The child] appears to continue to adopt that view regarding the current Family Law Court matter.
And (at page 1):
Both parties raise serious concerns about the other party and household. These issues were not canvassed by the family consultant.
It is important to understand there was no Independent Children’s Lawyer (“ICL”) appointed to represent the child’s interests and ensure his views were fully before the court (ss 68(L), 68LA(5)(b), P and P (1995) FLC 92-615). In our view, notwithstanding that the issues in the case did not come within the guidelines for the appointment of an ICL set out in Re K (1994) FLC 92-461, as the Full Court in Re K explained, the guidelines are not exhaustive. Clearly, there were a number of factors which cumulatively indicated the appointment of an ICL was appropriate. Namely the child’s age, a well settled living arrangement may be disrupted, he was separated from siblings and the concerning matters referred to in the s 11F memorandum. In deciding whether or not the appointment of an ICL is warranted, the court will take into account the availability of a family report. As was explained in Re K, the need for an ICL will normally be greater if the court does not have the advantage of a family or expert’s report (and vice versa).
The point being that in this case, the gravity of the issues and the absence of an ICL, made the case for a family report even stronger.
As our discussion reveals there are a variety of mechanisms available to the court which facilitates a child’s involvement in proceedings and, relevantly provide an appropriate mechanism to ascertain and understand the child’s views. The unarguable truth is this child was given very little opportunity to express his views in a neutral setting or for involvement in a case which was of fundamental importance to him.
There is a well developed body of case law which highlights the importance of children’s views and that the ascertainment of children’s views should not be done in a superficial way (Harrison and Woollard (1995)FLC 92-598, Brear and Corcoles-Alfaro (1997) FLC 92-768, R v R: Children’s Wishes (2000) FLC 93-000). Both the case law and now s 60CE provide that Part VII does not permit the court or any person, for example a family consultant, to require a child to express his or her views in relation to any matter. For example, with whom the child would prefer to live. Therefore, it can be seen that the Act and cases strike a careful balance between affording a proper opportunity to children, whose care, welfare and development is at issue, to say, for example, what outcome the child wants ordered while the child’s right to remain silent on the matter is preserved. Thus, a child caught between loved adults cannot be forced to say something which the child wants to remain private. In a similar vein, a child might decide that it would be unsafe to express a view contrary to that held by an adult of whom the child is afraid. It is because these dynamics have the potential to significantly impact on a child’s willingness and ability to discuss his or her circumstances and views that the ascertainment of children’s views should not be done in a superficial way.
These sensitivities having received recognition in the Act and jurisprudence the primary judge ought to have recognised that a more thorough investigation of the child’s views, maturity and characteristics and his attachments was required. Had the child been given this opportunity, he may have felt better able to disclose his “mild preference” and a skilled assessment undertaken about the effect on him of changing or not changing where he lives.
As we said earlier, the primary judge overlooked important aspects of the evidence contained in the s 11F memorandum and in our view erred in attaching to it significant weight in relation to the child’s views and in failing to recognise that properly considered, the contents of the memorandum were strongly persuasive of the need for further investigation in a family report.
Had a family report been ordered, the primary judge would have had the benefit of evidence in relation to the child’s maturity, sex, lifestyle and background more comprehensive than, what she saw as evidence which enabled her to do no more than determine his age and that he is “apparently easy going and adaptable”. In our view, in failing to give attention to the family consultant’s evidence concerning the “very negative and inappropriate” changes in the child’s life, as well as both parties having raised serious concerns about the other party and household, not only did her Honour fail to consider the evidence concerning the child’s views in context but also to establish what were the “serious” concerns to which the family consultant referred.
Ground 4 is established.
The remaining grounds
The remaining grounds concern the adequacy of the primary judge’s reasons for judgment and the circumstances which justified further consideration of the child’s living arrangements. Given the errors which have been established we do not consider there would be any utility in giving further consideration to the adequacy of her Honour’s reasons for judgment. However, it is appropriate that we indicate we agree with senior counsel for the grandmother that
her Honour failed to consider the effect on the child of being separated from his grandmother which was a fundamental issue in the case. Had it been necessary for us to address the challenges addressed to the adequacy of her Honour’s reasons, this omission was persuasive of error.
Ground 3 concerns the application of the rule in Rice & Asplund. As we indicated in [9] and [10], the primary judge considered the application of the rule and was satisfied that there was a change in circumstances sufficient to warrant a new hearing. This was a judgment delivered orally and we cannot join in criticism of her Honour’s failure to refer to the changes of circumstances as being “significant” or to expressly state that there was a likelihood the 2009 orders might be varied in a significant way (Marsden v Winch (2009) 42 Fam LR 1). In our view, a fair reading of the primary judge’s reasons for judgment makes it plain that she was satisfied the changes of circumstances were significant and the existing orders might (as indeed her Honour did) be significantly varied.
It follows, that ground 3 is not made out.
Conclusion and Costs
It is for these reasons that we decided the grandmother’s appeal against the orders made by Judge Terry on 9 April 2014 should be allowed.
We were concerned to hear from senior counsel for the grandmother that the primary judge dismissed the grandmother’s application for a stay of her orders pending appeal. Senior counsel informed us that because the appeal was listed quickly, in the interests of efficiency and to avoid unnecessary costs, the grandmother decided not to appeal the order dismissing her application for a stay. However, because the child had only recently moved to his father’s residence, we were persuaded that it was in the child’s best interests for her Honour’s orders to be set aside immediately. The effect of this is that the 2009 orders will operate until the father’s application is reheard or different interim orders are made.
The appeal having succeeded on a point of law, the grandmother said an order for costs against the impecunious father would not be proper. For his part, the father resisted an order for costs and joined with senior counsel for the grandmother in submitting that this was an appropriate case for costs certificates for the appeal and any rehearing. We agree.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 30 July 2014.
Associate:
Date: 30 July 2014
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