Mazurka & Mazurka
[2011] FamCAFC 68
•5 April 2011 1 July 2010 (date of orders)
FAMILY COURT OF AUSTRALIA
| MAZURKA & MAZURKA | [2011] FamCAFC 68 |
| FAMILY LAW - APPEAL – CHILDREN – Appeal from interim parenting orders – Where orders were made by a Family Law Magistrate increasing the father’s time with the child – Whether the Magistrate erred in failing to apply the presumption in s 61DA – Application of the presumption in interim proceedings discussed – Whether the Magistrate erred in not providing sufficient reasons – The Magistrate failed to provide adequate reasons for increasing the father’s time with the child - Appeal allowed – No order for costs – Costs certificates granted to both parties |
| Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Bennett & Bennett (1991) FLC 92‑191 CDJ v VAJ (1998) 197 CLR 172 Chappell & Chappell (2008) FLC 93-382 Goode and Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Marvel & Marvel (2010) 43 Fam LR 348 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Moose & Moose (2008) FLC 93-375 Mulvany & Lane (2009) FLC 93-404 Salvati & Donato [2010] FamCAFC 263 |
| APPELLANT: | Ms Mazurka |
| RESPONDENT: | Mr Mazurka |
| FILE NUMBER: | PTW | 652 | of | 2008 |
| APPEAL NUMBER: | WA | 29 | of | 2009 |
| DATE DELIVERED: | 5 April 2011 1 July 2010 (date of orders) |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray, Strickland & Crisford JJ |
| HEARING DATE: | 1 July 2010 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 17 December 2009 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms T A Farmer |
| SOLICITORS FOR THE APPELLANT | Bannerman Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr A R Godecke |
| SOLICITORS FOR THE RESPONDENT | Griffiths & Godecke |
Orders
The appellant’s oral application to introduce further evidence be dismissed.
The appeal be allowed.
Paragraphs 2 and 3 of the orders of the Magistrates Court of Western Australia made on 17 December 2009 are discharged.
The proceedings be remitted to the Magistrates Court of Western Australia with a request for the matter to be listed for trial on an expedited basis before a Judicial Officer other than Magistrate Moroni.
There be no order for costs in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of 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.
The Court grants to the respondent 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.
IT IS NOTED that publication of this judgment under the pseudonym Mazurka & Mazurka 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 PERTH |
Appeal Number: WA 29 of 2009
File Number: PTW 652 of 2008
| Ms Mazurka |
Appellant
And
| Mr Mazurka |
Respondent
REASONS FOR JUDGMENT
Thackray J
Introduction
This is an appeal by the mother, Ms Mazurka, against an interim order made by Family Law Magistrate Moroni on 17 December 2009 in parenting proceedings. The respondent to the appeal is the father, Mr Mazurka.
The appeal concerns the time, pending trial, the father will spend with the only child of his marriage to the mother. The Magistrate decided two consecutive nights each week would be appropriate. The child was born after her parents separated, and she was less than two years old when the order was made.
On 1 July 2010 the Full Court made an order allowing the appeal and remitted the matter for trial on an expedited basis. In separate reasons for decision, Crisford J has set out the background and given her reasons for allowing the appeal. I agree the appeal should be allowed, but wish to make some observations of my own concerning two aspects of the matter.
The complaint concerning application of s 65DAA
As Crisford J has noted, there was no ground of appeal directed against the failure of Magistrate Moroni to follow the “legislative pathway” described by the Full Court in Goode and Goode (2006) FLC 93‑286. This issue first arose in the course of the written submissions.
In the mother’s written Summary of Argument, it was contended his Honour had departed from the prescribed pathway by failing “to properly analyse and address the primary consideration, namely the promotion of a meaningful relationship with the Child”. It was also said that one of the issues the Full Court would have to consider was:
whether the learned Magistrate failed to give proper reasons as to why an extension of overnight time in light of the evidence before him was in the best interests of the Child, thereby erring in the application of section 65DAA of the Act.
I have difficulty in understanding the reference to s 65DAA in this context. Section 65DAA is triggered only in a case in which the court makes an order, or proposes to make an order, for equal shared parental responsibility. His Honour decided he would not make such an order and, as I will explain below, the mother did not seek such an order at the time the matter came before him in December 2009. Nor did the mother’s Notice of Appeal suggest that an order for equal shared parental responsibility should be made if the appeal was allowed. Unsurprisingly, the mother’s counsel, in her oral submissions, did not suggest his Honour had erred in failing to make such an order, and therefore she did not suggest his Honour had erred in not applying s 65DAA. Instead her oral submissions concentrated on what she asserted was the failure of the Magistrate to address the factors in s 60CC of the Act.
Although the father’s written submissions did not say so expressly, they proceeded on the basis that his Honour strayed from the prescribed pathway. This is apparent from paragraphs 19 to 23 of the Summary of Argument, in which it was submitted that the issue of the father’s time with the child fell to be determined pursuant to s 65DAA, and that there was “nothing to indicate that the presumption of equal shared parental responsibility does not apply”. The difficulty with that proposition, as an argument advanced in support of the Magistrate’s decision, is that his Honour expressly decided not to determine the matter by reference to s 65DAA, and specifically said he was not applying the presumption of equal shared parental responsibility. In any event, it seems this argument was advanced as explaining why, if equal time was not appropriate, his Honour was entitled to decide that the father should have substantial and significant time with the child.
In order to understand the approach adopted by the Magistrate to the issue of parental responsibility, it is necessary first to understand what had been sought (and not sought) on that topic in the various documents filed.
The husband filed his application for final orders in February 2008. That document made no reference to parental responsibility. Similarly, no orders were sought on that topic in the father’s interim application, which was filed with his application for final orders.
When the mother filed her responses to both the father’s application for final orders and his application for interim orders, she sought an order that “The parties have joint parental responsibilities regarding the long term care, welfare and development of the [J]”. Apart from the manifest errors in the proposed order, the use of the expression “long-term care, welfare and development” is no longer appropriate in parenting disputes: Chappell & Chappell (2008) FLC 93-382 at [50].
Notwithstanding the infelicity of expression, I agree with Crisford J that the mother’s application should have been interpreted as indicating she proposed equal shared parental responsibility. However, as the Magistrate pointed out in his reasons delivered on 17 December 2009, the father’s application for interim orders, and the mother’s response to that application, had both been formally dismissed when his Honour made his interim orders on 13 March 2009.
Notwithstanding there was no formal application for interim orders on foot, the matter came before his Honour for further interim determination on 17 December 2009. In his reasons, his Honour recorded that he had realised, when preparing for the hearing, that the formal applications for interim relief had been earlier dismissed. He therefore said that the orders he proposed making would be made on the basis of the father’s application for final orders and the mother’s response to that application.
His Honour also recorded that both parties had filed a Minute prior to the December 2009 hearing. The mother’s “Minute of Interim Orders Sought” made no reference to parental responsibility. The father’s “Minute of Proposed Orders” sought an order that “Both parties have responsibility for all decisions concerning the long‑term care, welfare and development of the said child”. Again, the relief sought did not correspond with the statutory language, but it is clear the father was seeking equal shared parental responsibility.
Neither counsel made any reference to the allocation of parental responsibility in the course of argument on 17 December 2009. There was therefore no explanation why the mother had originally sought an order for shared parental responsibility, but had not sought such an order in the Minute she had provided prior to this hearing. Given that she had not amended her Form 1A response, in which she had sought an order for sharing of parental responsibility, it is perhaps unfortunate that enquiry was not made as to whether the failure to refer to this issue in her Minute was an oversight or by design. If it was an oversight, clearly his Honour would have been in a position to make a consent order granting equal shared parental responsibility.
I assume the Magistrate did not enquire about the mother’s current position regarding parental responsibility because of the evidence concerning what he described as the “high level of conflict and antagonism” (which would have placed obstacles in the way of shared parental responsibility). In any event, by the time the matter came before the Court in December 2009, only one party was formally seeking an interim order for equal shared parental responsibility.
Crisford J has pointed out that even if neither party had been seeking an order for parental responsibility, his Honour nevertheless had to consider that issue. This is because s 61DA(1) provides that whenever a court is proposing to make parenting orders it must apply a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility. There are, however, specific circumstances in which the presumption does not apply (s 61DA(2)). Furthermore, 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 parents to have equal shared parental responsibility (s 61DA(4)).
The presumption applies not only when the court is making final orders, but also when it is making interim orders – but in interim proceedings the court is not obliged to apply the presumption if it decides it would “not be appropriate in the circumstances for the presumption to be applied” (s 61DA(3)). There is no guidance in the Act as to the circumstances that would justify the court in determining it is not appropriate to apply the presumption in interim proceedings, but the Full Court in Goode and Goode (supra) at [78], has made clear that the proviso in s 61DA(3) should not be exercised in a “broad exclusionary manner”.
The Full Court has recently had occasion to explain further the application of s 61DA(3). In Marvel & Marvel (2010) 43 Fam LR 348; 240 FLR 367, the Full Court said (my emphasis added):
107.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. ...
In explaining his decision not to make any order in relation to parental responsibility, Magistrate Moroni said (my emphasis added):
The Court when delivering its judgment on 13 March 2009 did not follow the basic architecture as contemplated by the Full Court in Goode’s case. This is a case where family violence has been alleged against one of the parties. No findings have yet been made in that direction and if the case proceeds to trial that will have to be one of the issues for exploration at that time.
In the result the Court has not made any order at all in relation to parental responsibility and it did not in its reasons delivered on 13 March 2009 analyse the issue of whether or not the presumption should or should not be applied, or whether or not it consider (sic) that it would be in the child’s best interest for the presumption to apply.
It will be seen that his Honour admitted that he had not analysed whether he should apply the presumption in favour of equal shared parental responsibility. If that is indeed the approach his Honour adopted then he erred, because in every case in which parenting orders are sought the court must undertake some analysis of whether or not the presumption applies: Marvel & Marvel (supra).
In my view, however, and notwithstanding the way in which the Magistrate expressed himself, what his Honour actually did was to decide, as he was authorised to do by s 61DA(3), that it was not appropriate in the circumstances to apply the presumption at this interim hearing. The use by his Honour of the words “In the result”, which appear at the commencement of the second of the two cited paragraphs above, indicates that he was linking the observations in the first paragraph with those in the second. His Honour was saying that he had not been able to make any findings concerning the allegations of family violence; hence he could not determine whether the presumption did or did not apply; therefore, it would not be appropriate to apply the presumption.
Whilst his Honour could have expressed himself more clearly, it has to be remembered that he was giving his reasons ex tempore. The Family Law Magistrates sit in a very busy court. Unless a significant percentage of judgments are delivered orally, the burden of reserved judgments and the delays in delivering them would quickly become unacceptable. It is to be expected that judgments given immediately following the conclusion of submissions will not be as elegant as those that are reserved. Making allowances for the fact that the decision was given ex tempore, in my view it is sufficiently clear that his Honour did not apply the presumption because he was not able to determine the accuracy of the allegations of family violence.
I recognise that in his ex tempore reasons for decision given on 13 March 2009, which were expressly incorporated in the reasons given on 17 December 2009, the Magistrate said his understanding of the law was that in interim proceedings there is “no mandatory requirement” for the court to consider “the subject of parental responsibility”. Whilst I repeat there is an obligation on the court to consider that issue, I once again apprehend that this was his Honour’s way of drawing attention to s 61DA(3), which permits the court not to apply the presumption in interim proceedings if is not “appropriate in the circumstances for the presumption to be applied”. Indeed, his Honour may be seen as following the language of s 61DA(3) when he went on to say, in his reasons of 13 March 2009, that “in the particular circumstances of this case the court was quite comfortable in leaving it [i.e. the issue of parental responsibility] to one side for the time being”.
It is important to observe that the fact the presumption is found not to apply does not necessarily mean an order for equal shared parental responsibility should not be made. There may, for example, be cases where family violence has been established, but where it is nevertheless found to be in the best interests of the child for the parents to have equal shared parental responsibility. Given the father had applied for an interim order for parental responsibility, it was appropriate his Honour should provide at least some brief explanation of why an order was not made, even if the presumption was not to be applied.
His Honour identified, in my view correctly, that the real issue here was not the allocation of parental responsibility, but rather the amount of overnight time the father should spend with the child. He therefore found, in his reasons delivered on 13 March 2009, that there was “no need for the court to rule on an interim basis on the subject of parental responsibility”. At that stage the father had not even sought an order for parental responsibility. His Honour also recorded that counsel had not sought to argue whether the presumption should be applied. Although the father subsequently filed a Minute in which he sought parental responsibility, his counsel once again did not seek to agitate that issue on 17 December 2009.
In these circumstances, his Honour was entitled to determine not only that the presumption should not be applied, but also that there would be no interim order for equal shared parental responsibility. In the absence of such an order, s 65DAA had no application.
The recommendation of the Family Consultant
Subject to one proviso, I agree with the reasons given by Crisford J for concluding the Magistrate erred in determining it was appropriate to increase the child’s overnight time with the father at the hearing on 17 December 2009, so soon after the commencement of overnight time in August 2009.
The one proviso concerns the Magistrate’s treatment of the report of the Family Consultant. Whilst I accept that the interpretation Crisford J has placed on his Honour’s comments concerning the report is open, I would respectfully not adopt that interpretation.
The point at which his Honour made reference to the report of the Family Consultant in his reasons was after he had made a number of observations strongly indicative of an intention to extend the father’s time. Having made those observations, he then referred to the report of the Family Consultant as indicating that “the next step” was to progress the father’s time from one night to two nights per week. That was indeed the recommendation, but the Family Consultant had stressed this would be the next step only if there was to be an increase in the number of nights the father was to spend with the child.
Reference to the transcript shows that the Magistrate understood this was the basis on which the Family Consultant had made his recommendation. During the course of hearing submissions on 17 December 2009, his Honour said this (my emphasis added):
All right. Well, I think I understand the applicant’s case. Can I just ask you this? In the event that the court was to follow the recommendation of the family consultant, which was that if there was to be an extension it should be one night at a time. So, if the court was going to go to two nights, what does the applicant say should happen to the midweek visits, the short midweek visits? What does he say those two nights should be?
His Honour made these remarks only shortly before delivering his reasons for decision. Whilst he could have expressed the relevant part of his reasons with greater precision, it is again important to recall this was an ex tempore judgment. I am satisfied his Honour had not, by the time he delivered his reasons, forgotten the import of what the Family Consultant had said in his report.
Conclusion
I otherwise record my agreement with the reasons given by Crisford J in relation to the adequacy of the Magistrate’s reasons. I also agree with her reasons concerning the introduction of further evidence and the granting of costs certificates.
I have also now had the benefit of reading the reasons given by Strickland J. Although the matters to which his Honour has referred were not raised in the Grounds of Appeal, I am in agreement with the observations he has made.
Strickland J
I have had the considerable advantage of reading in draft the extensive reasons for judgment of Crisford J and the short reasons for judgment of Thackray J. I agree that the appeal should be allowed, and my reasons accord generally with the reasons of both Thackray J and Crisford J. However, I wish to make some brief comments about two particular issues arising in this case.
The reference by the Magistrate to unidentified expert evidence
I observe that an unfortunate trend has recently become apparent amongst first instance judicial officers, and particularly federal magistrates, of referring to and relying on information in the form of expert opinion which was not in fact in evidence before the particular judicial officer and, importantly, upon which none of the parties were given an opportunity to make submissions. This has led to a number of comments being made in various Full Court decisions decrying this inappropriate practice. For example, I refer to the Full Court decision of Salvati & Donato [2010] FamCAFC 263, and to the useful summary at paragraphs 102 to 113.
Here, in his reasons for judgment given on 13 March 2009, the Magistrate referred generally to unidentified expert evidence which was clearly not before him, in relation to the “right time for a child to be supervised.” Fortunately, it appears that the Magistrate did not rely on this “evidence” when making the orders appealed against, but to raise the prospect of relying on material that was not in evidence and upon which the parties were not given the opportunity to make submissions is clearly unwise.
The recommendation of the Family Consultant
Regardless of how the comments made by the Family Consultant are interpreted, what has been overlooked by everyone, including the Magistrate, is that it was not open to take into account any “opinion” expressed by the Family Consultant because that opinion was not given as sworn evidence and there was no consent by the parties for it to be taken into account. Section 69ZU of the Act provides as follows:
The court must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence.
Although there was no ground of appeal directed to this issue, the fact is that the Magistrate has erred in taking into account what he interpreted as being a recommendation by the Family Consultant in these circumstances.
Crisford J
Introduction
This is an appeal by the mother, Ms Mazurka, against an order made by Magistrate Moroni on 17 December 2009 in parenting proceedings. The respondent to the appeal is the father, Mr Mazurka.
The orders made on 17 December 2009 are as follows:
1The substantive Child Related Proceedings be heard with the substantive financial proceedings and the procedural orders made by the Registrar on 4 November 2009 be and are hereby extended to apply also to the substantive Child Related Proceedings.
2The provisions of paragraph 3 of the orders made 13 March 2009 be and are hereby discharged.
3Until further order of the Court, the child, [J] born [February 2008], spend time with the Applicant, [Mr Mazurka]:-
(a)each Tuesday from 3.30pm until 7.00pm, commencing 22 December 2009; and
(b)each weekend from 4.00pm Friday until 2.00pm Sunday, commencing 18 December 2009.
4The provisions of paragraph 4 of the orders made 13 March 2009 remain in full force and effect.
5Until further order of the Court, each of the parties notify the other, as soon as practicable, of any medical treatment undertaken by the said child whilst in his/her respective care.
6As soon as practicable, the said Applicant write to the solicitors for the Respondent, [Ms Mazurka], with his proposals for the said child’s pre‑schooling in 2010.
7In the event the parties are not able to reach agreement on the subject of the said child’s pre‑schooling in 2010, then both parties have liberty to apply for the listing of a further child dispute conference.
8The said proceedings otherwise stand adjourned generally and be transferred to the Family Court of Western Australia.
On 22 December 2009 the mother filed a Notice of Appeal against order 3(b) of those orders.
On 1 July 2010 at the conclusion of the hearing of the appeal the Court made the following orders;
1The appellant’s oral application to introduce further evidence be dismissed.
2 The appeal be allowed.
3Paragraphs 2 and 3 of the orders of the Magistrates Court of Western Australia made on 17 December 2009 are discharged.
4The proceedings be remitted to the Magistrates Court of Western Australia with a request for the matter to be listed for trial on an expedited basis before a Judicial Officer other than Magistrate Moroni.
5 There be no order for costs in relation to the appeal.
6The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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.
7The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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.
I now publish my reasons.
Further evidence
At the beginning of the appeal hearing the mother’s counsel made an oral application for leave to introduce further evidence relying upon an affidavit the mother swore on 21 June 2010, ostensibly to update the Court about matters which had transpired since the orders of 17 December 2009. This affidavit was filed on 25 June 2010. It contained a litany of complaints against the father, a considerable number of which had been raised in her earlier affidavit material.
The application was opposed by the father.
The mother complained about the child’s general lack of hygiene and her tiredness on return from visits with her father. She confirmed that her own poor relationship with the father continued and the child was now reluctant to attend visits.
Pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) the Full Court is empowered, in its discretion, to receive further evidence on questions of fact in an appeal. In CDJ v VAJ (1998) 197 CLR 172 the High Court majority, McHugh, Gummow and Callinan JJ said (at 201):
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court the discretion to admit further evidence to buttress the findings already made.
Their Honours also said (at 202 – 203):
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re‑heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge’s decision. In that context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
The affidavit and ensuing application were received both by the Court and the father very late in the course of the appeal. The father had no opportunity to respond to what can only be categorised as controversial material. Accordingly, this material was not likely to assist the Court in the determination of the appeal. The application was therefore dismissed.
Background
It is useful to set out the circumstances as they were leading up to and at the time of the making of the order now appealed.
The parties began cohabitation in July 2006. They were married in January 2007. At that stage the father was 40 years of age and the mother was 31 years of age. They were both born in Macedonia. They separated in November 2007 and their daughter J was born in February 2008.
The mother says that after separation she initially lived in a refuge. She obtained an ex parte interim Violence Restraining Order against the father on 3 December 2007. This was cancelled on 7 February 2008. The mother did not attend the court on that date.
The father commenced proceedings in the Family Court of Western Australia on 13 February 2008 and the mother filed a response to his application on 26 March 2008.
In his application for final orders the father sought a variety of orders which are largely unrelated to the matter presently before the Court. Relevantly he did seek:
…
6. The child reside with the wife.
7.The child do spend time with the Husband and the Husband do file a minute of proposed orders defining the proposed time to be spent within 28 days.
At the same time he filed an Application in a Case seeking exactly the same orders.
The mother sought the following orders in her response to the father’s initiating application:
1.The child of the relationship [J] born [February 2008] ([J]) live with the mother.
2.The parties have joint parental responsibilities regarding the long term care, welfare and development of the J [sic].
3.The parties have sole parental responsibility for the day to day care, welfare and development of the [J] [sic] during the periods she is in the care of that party.
4. [J] spend time with the father as follows
a) From 6 months to 1 years of age:
i)Each Saturday and Sunday from 8.00 am until 1.00 pm; and
ii) Such further contact as agreed between the parties.
b) From 1 years of age until the child is 18 months:
i)Each Saturday and Sunday from 8.00 am until 4.30 pm; and
ii) Such further contact as agreed between the parties.
c) From 18 months of age until the child is 3 years of age;
i)Each Saturday from 8.00am until Sunday 4.30 pm; and
ii) Such further contact as agreed between the parties.
d)From 3 years of age until the child commences full time schooling;
i)Each alternate Friday from 3.00 pm until 5.30 pm Sunday;
ii)Mid week contact as agreed between the parties; and
iii) Such further contact as agreed between the parties.
5.For the purposes of handover the father collect and deliver the child from the mother’s current residence at the commencement and conclusion of his spend time period.
6.The parties inform each other of any significant medical issues concerning the [J] [sic] including the details of any treating practitioner and the mother shall authorise any treating practitioner and any other organisation assisting in the care of [J] to discuss with the father, [J’s] medical issues progress and treatment.
7.The father not consume alcohol in the presence of the child during any period the child spends time with him.
8. Such further order as the Court deems necessary.
In her response to the father’s Application in a Case the mother made some very minor changes to the orders she had sought on a final basis. I have set these out in full where relevant later in my judgment.
On 15 February 2008 the father and members of his family attended the mother’s home with the intention of meeting the child. The mother deposes to the father yelling at her and her family to bring the child out and calling them “animals” as he left the property. The father admits he called her family “animals” and that he was incensed. He did not see the child on that occasion.
The mother then obtained a further ex parte interim Violence Restraining Order which was served on the father on 18 February 2008. He lodged an objection to the order. The order was dismissed on 21 May 2008.
On 12 March 2008 the parties entered into consent orders in the Family Court proceedings. The father was to spend supervised time with the child every Saturday and Sunday from 3.30 pm to 6.00 pm. There were difficulties in arranging a supervisor.
The father first met the child on 3 May 2008 and thereafter spent unsupervised time with her every Saturday from 10.00 am to 1.00 pm and each Tuesday and Thursday from 3.30 pm to 6.30 pm.
Commencing 2 August 2008 the mother agreed to the father seeing the child every Saturday from 10.00 am to 3.00 pm and each Tuesday and Thursday from 3.30 pm to 7.30 pm.
A Child Dispute Conference was held on 18 December 2008. The parties were unable to agree the amount of time the child should spend with her father. The Family Consultant reported the father wanted some additional time to include overnight contact. The mother wanted the then current arrangement to remain in place. She would agree to overnight time once the child “was ready” which the Family Consultant took to mean between the age of 18 months and 2 years. The father relisted the matter for a judicial determination.
On 29 January 2009 the father filed a Minute of Proposed Orders in advance of the hearing which ultimately took place on 10 March 2009. He proposed that the following orders be made:
1.The child of the marriage [J] born [February 2008] live with the mother until further order.
2.Both parties have responsibility for all decisions concerning the long-term care, welfare and development of the said child.
3.All previous orders made prescribing the time which the said child is to spend with the applicant husband be discharged.
4.In lieu of the said previous orders, until further order of the court, the child spend time with the applicant husband as follows:
(a)on each Tuesday and Thursday between the hours of 3:30 pm and 7:30 pm;
(b)from 10:00 am on each Saturday until 2:00 pm on each Sunday;
…
Before the Court on this occasion was the mother’s response to the father’s Application in a Case which she had filed on 26 March 2008. In that response she sought, relevantly, the following orders:
…
2.The parties have joint parental responsibilities regarding the long term care, welfare and development the [J] [sic].
…
4. [J] spend time with the father as follows
…
b) From 6 months to 1 years of age:
i)Each Saturday and Sunday from 8.00 am until 1.00 pm; and
ii) Such further contact as agreed between the parties.
…
8.The father not consume alcohol in the presence of the child during any period the child spends with him.
…
At the time of this hearing the child was approximately 13 months old. The mother’s response to the father’s application, which had been filed over a year earlier, did not cover the then age of the child. However, in an affidavit she swore on 25 February 2009 she proposed the following:
Baby
a) every Wednesday from 3:30pm to 7:30pm
b) every second Saturday and Sunday from 10:00am to 3:00pm
c) Father’s Day from 10:00am to 1:00pm
d)all other holidays shared by each party so the child can spend time with each parent
All the above until such time that the baby is able to say herself when she is hungry, sleepy, etc, perhaps until she reaches 2 years of age.
After hearing argument on 10 March 2009 the Magistrate made orders on 13 March 2009 as follows:
1The provisions of the parenting orders made on 12 March 2008 be and are hereby discharged.
2Pending disposal of the proceedings, the child, [J] born [February 2008], live with the Respondent, [Ms Mazurka].
3Until further order of the Court, the said child spend time with the Applicant, [Mr Mazurka]:-
(a)on each Tuesday and Thursday between the hours of 3.30pm and 7.00pm; and
(b)on each Saturday from 10.00am to 5.00pm, extending to 2.00pm Sunday with effect from the weekend of 1/2 August 2009.
4Pending disposal of the proceedings, and without admission, the said Applicant be and is hereby restrained by injunction from consuming any alcohol during any period the said child is in his care and/or any eight-hour period immediately preceding such period.
5The parties attend a child dispute conference with a Family Consultant on a date to be fixed following a written request made by either party no sooner than 17 August 2009.
6As soon as practicable, the parties commence and complete participation, if practicable, in the parenting course known as “Mums & Dads Forever”.
7The said Form 2 application and Form 2A response otherwise be and are hereby dismissed.
8The said proceedings otherwise stand adjourned generally and be transferred to the Family Court of Western Australia.
Although at the time these orders were made the child was 13 months of age, she was about 18 months of age when the first period of overnight contact with her father started in early August 2009.
In accordance with paragraph 5 of the orders a Child Dispute Conference was held on 8 September 2009. At the conference the father was seeking an increase in time with the child from one overnight each week to three overnights each week. The mother wanted a reduction of time to one overnight each fortnight.
The Family Consultant notes a “high degree of conflict within the parental relationship”. [Appeal Book 145] He reports he suggested to the parties that if there was to be an increase in the number of nights the child spent with her father it should be a gradual increase by one night at a time.
As a result of the impasse the matter was set down for hearing before the Magistrate on 17 December 2009.
On 5 November 2009 the mother filed a Minute of Interim Orders Sought, as follows:
1.The provisions of the parenting orders made on 13 March 2009 be and are hereby discharged.
2.The child of the marriage, namely [J] born [February 2008] (“[J]”) live with the Respondent Mother.
3.Until further order, [J] spend time with the Applicant Father defined to include:-
(a)on each Tuesday and Thursday between the hours of 3.30pm and 7.00pm; and
(b) each alternate Saturday from 10.00am to 5.00pm.
4.The Applicant Father be restrained and an injunction be granted restraining him from:
(a)consuming any alcohol during any period [J] is in his care and for any eight-hour period immediately preceding such time; and
(b)from leaving [J] in the care of the paternal grandmother.
5.As soon as practicable, the Applicant Father commence and complete participation in the Ngala parenting courses known as “Skilled Dads” and “Guiding Children’s Behaviour 2-5 years”.
6.Upon the Respondent Mother receiving written confirmation of the Applicant Father’s completion of the courses set out in paragraph 5 hereof, the Applicant Father’s time with [J] as defined in paragraph 3(b) hereof be extended to 10.00am on Sunday morning each week.
7.The parties forthwith make use of a communications book, the content of which to be limited to issues relating to the day-to-day care and needs of [J], such communications book to be exchanged between the parties at handover.
8.The parties be restrained and an injunction be granted restraining them from removing [J] from the State of Western Australia without the other parent’s written consent or further Order of the Court.
9.The proceedings with respect to child welfare issues be adjourned with liberty to the parties’ to relist the matter no sooner than upon the Applicant Father’s completion of the courses set out in paragraph 5 hereof.
10. Such further or other Orders as the Court deems appropriate.
The father filed a minute of the orders he was seeking on 27 November 2009. Relevantly he sought the following:
1.Both parties have responsibility for all decisions concerning the long-term care, welfare and development of the said child.
2.All previous orders made prescribed the time which the said child is to spend with the applicant husband be discharged.
3.In lieu of the said previous orders, and until further order of the court, the child shall live with the applicant husband from 3.30pm until 3.30pm for a continuous period of three days and therafter [sic] with the wife for a continuous perid [sic] of three days. Therafter [sic], the child shall live with the Husband for each alternate period of three days and with the wife during each intervening three day period.
…
At the time of the hearing on 17 December 2009 the child was 22 months old. She had spent one night each week with her father since the beginning of August 2009.
The decision of the Family Law Magistrate
In his ex tempore reasons of 17 December 2009 the Magistrate incorporated any findings of fact he had made in his earlier ex tempore decision of 13 March 2009. His Honour wanted his earlier reasons to be read in conjunction with the reasons he was then giving.
Given both hearings focus around an issue of narrow compass, namely the time the child was to spend with her father, the earlier reasons assist in providing a background to the later orders. I will deal with these first.
In his reasons given on 13 March 2009 the Magistrate eschewed what he termed as the architecture set out in Goode’s case, referring to the Full Court decision of Goode and Goode (2006) FLC 93-286. His Honour noted that neither party had sought equal or substantial and significant time. His reasons for not dealing with the issue of parental responsibility at this stage were:
•there was no mandatory requirement that it be dealt with in an interim determination, and
•in the circumstances of this particular case he was “comfortable in leaving it to one side”. [Appeal Book 164]
The Magistrate identified the respective positions of the parties. His Honour recorded the mother’s concern that the Court “tread warily” in extending the present time to overnight stays as the child was so young. She urged a cautious approach. To the contrary, the Magistrate identified the father as seeing the mother’s attitude as obstructive to his developing a meaningful relationship with the child.
His Honour went on to observe there were a number of matters to consider. In particular, he noted: [Appeal Book 171]
The first thing the court needs to say is that there is a number of considerations which must be factored into the mix before a decision is made today. The first of course is a generic consideration and that relates to the general body of evidence which the court would take into account in determining the right time for a child to be separated from a primary caregiver.
The Magistrate then went on to accept that whilst the general body of evidence provides some “very broad guidelines, there is no magical age at which a child can be comfortably separated from the primary caregiver overnight”.
His Honour continued:
Lawyers will often submit that the consensus of expert opinion is that the age of about two years is generally right, but there is also fairly persuasive evidence that younger children can cope with separation from a primary caregiver and there is expert opinion suggesting that an age closer to 18 months is probably just as safe.
The Magistrate identified the mother’s further concerns as twofold. Firstly, she complained that the father’s intake of alcohol prevented him from caring adequately for the child whilst she was with him. Secondly, the mother complained that the father did not adhere to the routines she had in place, in particular, as it related to the child’s morning and afternoon sleeping pattern. [Appeal Book 174]
In my view his Honour correctly identified that the evidence in relation to alcohol intake was conflicting and uncertain. However, he accepted it was appropriate to make injunctions preventing the father’s consumption of alcohol around the time of contact.
His Honour did not accept that any difficulties relating to the child’s sleeping routine were a result of the father’s general irresponsibility or insensitivity to the child’s needs. He observed the mother was best placed to communicate with the father:
… in a non-threatening, non-accusatory way, in an educational way to help him meet [J’s] needs when the child is in his care. There is no reason to believe that if politely requested the applicant would deny any reasonable request made by the respondent for him to adhere to the child’s routine when she is with him. [Appeal Book 175]
His Honour then again identified the main issue as being the age of this child. He concluded:
It seems to the court that the better approach is to follow the expert opinion and to give some weight to the concession made by the respondent herself at the child dispute conference conducted in December. It seems to the court that given that there is regular contact between the applicant and the child it would be safe to commence overnight contact at the bottom of the range estimated as being reasonable by the respondent herself, and that is to say the age of 18 months.
The Magistrate then pronounced the orders I have set out in full earlier in my reasons.
At the hearing on 17 December 2009 the Magistrate again identified that on 13 March 2009 he:
… did not follow the basic architecture as contemplated by the Full Court in Goode’s case. This is a case where family violence has been alleged against one of the parties. No findings have yet been made in that direction and if the case proceeds to trial that will have to be one of the issues for exploration at that time. [Appeal Book 13]
His Honour again confirmed that he made no order at all in relation to parental responsibility and had not previously analysed the issue of whether the presumption that each parent have equal shared parental responsibility should apply.
The Magistrate identified that the focus of his judgment on 13 March 2009 had been to establish a platform for the building of an appropriate relationship between the child and her father.
The Magistrate identified his present task as an assessment of the father’s capacity to meet the child’s ongoing needs given the “deadlock” of the parties about the time she should spend with him.
The Magistrate noted that despite order 6 of the orders he made on 13 March 2009 that the parties commence and complete participation, if practicable, in a parenting course, the father had not completed such a course. His Honour correctly recorded that one of the reasons this had not been completed was that it conflicted with the time he spent with the child. The Magistrate again, correctly in my view, went on to observe that the father needed to complete it as it was not only in his interests to do so, but also in the child’s best interests.
His Honour returned to the ongoing problem of the inability of the parties to communicate. He again noted that as the mother was the primary caregiver she was best placed to know the child’s needs. Given this, she needed to impart her knowledge to the father. He recommended that the father seek her knowledge and receive it in good grace.
His Honour identified the main area of dispute as being the father’s lack of appropriate caring skills. The mother had complained of:
· the father’s inability to understand the need to implement appropriate hygiene routines for the child; and
· the father’s inability to adhere to the child’s routine such that she returned overly tired at the conclusion of periods with him.
These claims were denied by the father. [Appeal Book 19]
The Magistrate recorded the likelihood of exaggeration due to the poor relationship between the parties. His Honour noted that without the benefit of cross-examination it was difficult to understand what the truth was.
His Honour identified the father’s long term aim as being for a regime of equal shared care of the child.
His Honour noted that given the evidence before him he was not satisfied that he should take a step backwards from what was currently taking place. On the other hand he was not satisfied it was an appropriate time to commence an equal shared care regime. [Appeal Book 22]
His Honour was satisfied that the father possessed the appropriate “raw materials” given, inter alia, that he was a 43 year old man who lived with his mother. He was in full-time employment and appeared to be a fully functioning individual. [Appeal Book 20]
The Magistrate then moved to what he saw as the next step. His Honour referred to the report of the Family Consultant of 8 September 2009 and said any increase needed to be steady and ordered. On this basis the father would spend two nights each week with the child.
Due to the mother’s ongoing concern about the father’s consumption of alcohol he extended the injunction he had previously made on 13 March 2009.
His Honour then made the order the subject of the present appeal.
Relevant principles
The Notice of Appeal, which I will shortly deal with in detail, asserted among other matters that the Magistrate had failed to give adequate reasons and essentially had erred in the exercise of his discretion. At this point in my reasons I refer to the relevant appellate principles to be applied in an appeal against a discretionary judgment.
The principles concerning discretionary decisions may be briefly stated.In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said (at 504-505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J stated (at 519):
The constant emphasis of the cases is that before a reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
The statement of principle from House v The King was supported Kirby J in AMS v AIF (1999) 199 CLR 160 (at 211):
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial. (Footnotes omitted)
In CDJ v VAJ (supra) Kirby J said (at 230 – 232):
A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self-restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations. (footnotes omitted)
Grounds of appeal
In her Notice of Appeal the mother has set out three grounds as follows:
1.The learned Magistrate failed to take into account the extreme youth of the Child.
2.The learned Magistrate filed to give proper weight to the evidence of the Wife that the Child was suffering a significant detriment from the extension of contact to include overnight time which had been operating for approximately 3 months.
3.The learned Magistrate failed to give proper reasons as to why an extension of overnight time in light of the evidence before him was in the best interests of the Child.
It became apparent on hearing the oral submissions that, when distilled, the primary challenge to his Honour’s order was his failure to provide adequate reasons for the making of it.
Despite not being a ground of appeal, it was also asserted that the Magistrate failed to address the legislative requirements set out in the Act and in doing so did not follow the pathway discussed by the Full Court in Goode (supra).
The father sought the appeal be dismissed.
Discussion
Although the primary challenge to the Magistrate’s order was a failure to give adequate reasons for the decision he made, I intend to canvass the asserted error of law in failing to properly address the legislation first as I am of the view this informs the other ground relied upon.
Failure to address legislative requirements
The Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) (“the Amending Act”) came into effect on 1 July 2006 and the Act as thereby amended governed the Magistrate’s decision. The Amending Act builds upon the framework of the legislation as it was prior to 1 July 2006.
The mother’s counsel identified two issues in her summary of argument where it is asserted the Magistrate fell into error:
•a failure to properly analyse and address s 60CC(2)(a) of the Act; and
•a failure to properly apply s 65DAA of the Act.
After hearing the oral submissions of the mother’s counsel it became apparent that the first issue was really intertwined with her argument about the Magistrate’s failure to give adequate reasons. It is preferable I deal with that aspect later in my judgment.
Both counsel in their written submissions address what they consider to be the application by the Magistrate of s 65DAA of the Act. Section 65DAA sets out that a court must consider a child spending equal or substantial and significant time with each parent if it makes an order that a child’s parents are to have equal shared parental responsibility for the child.
Before moving on to consider the precise terms of the legislation and its practical application in this case it is useful to review the basis upon which the proceedings of 17 December 2009 were conducted.
In his Minute filed 27 November 2009 the father was seeking an order that the parties have the child on a three day about basis. This is, in effect, an equal sharing of time. This was very different from what he had originally been seeking when he commenced proceedings.
He also sought that “both parties have responsibility for all decisions concerning the long term care, welfare and development of the said child”. Although this terminology does not reflect either the current legislation, it is terminology that was previously quite common, and translating it into today’s terminology it is another way of seeking an order for equal shared parental responsibility.
Although not sought in her Minute filed 5 November 2009 prior to this hearing, in her Response to an Application in a Case filed 26 March 2008 the mother had sought:
…
2.The parties have joint parental responsibilities regarding the long term care, welfare and development of the [J] [sic].
…
There were no submissions made at the hearing in relation to the particular issue of the allocation of parental responsibility. No orders were made in relation to it, but as referred to above the Magistrate did comment on it briefly.
I now turn to consider the legislative requirements applicable to the issues before his Honour.
In this regard the Act has recently been considered by the Full Court in Marvel & Marvel (2010) 43 Fam LR 348. This case provides a helpful guide to the practical interpretation and implementation of the imperatives set out in the Act. Faulks DCJ, Boland and Stevenson JJ observed at 364:
76.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.
77. 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.
78.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).
79.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.
80.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. (original emphasis)
I am in no doubt that the legislation mandates the application of a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility. Although the presumption does not apply or may be rebutted in certain circumstances, it must still be squarely addressed.
Despite the lack of clarity in the terminology used by the parties, the issue of equal shared parental responsibility was a pivotal issue simply because both parties were seeking parenting orders.
The Magistrate initially dealt with the issue of parental responsibility in his reasons given on 13 March 2009. His Honour did so after he had fully considered the amount of time the child should spend with the father and immediately prior to formally pronouncing orders. He noted that he had not made any decision about parental responsibility. He expressed his reasons in the following terms:
The court is well aware of the Full Court ruling in Goode’s case and is mindful of the type of architectural structure that would normally be followed in a court giving reasons in this case.
That is to say, ordinarily what the court would do is examine the issue of parental responsibility and then if the presumption was applied and upheld, the court would work through the issues of possibly ordering equal time, possibly ordering substantial and significant time.
In the particular circumstances of this case, the court has not followed that pathway. The parties’ counsel themselves did not seek to argue whether or not the presumption of parental responsibility should be applied and whether or not the normal pathway should be followed, and that was quite sensible because in this case the applicant has not asked for equal time, he has not asked for significant and substantial time. The child is only very young. The focus of the parties was on the sole issue of when would be the appropriate time to introduce overnight separation.
In the particular circumstances of this case, there really is no need for the court to rule on an interim basis on the subject of parental responsibility. It would not have assisted the court in making its decision about overnight contact at this stage. It is an issue which can be left for another day. It may well be an issue that the parties can agree in the fullness of time.
So the court just wanted to records its reasons for not spending any time on the subject of parental responsibility. As it understands the law, there is no mandatory requirement for it to do so in the context of an interim dispute and in the particular circumstances of this case the court was quite comfortable in leaving it to one side for the time being. (emphasis added)
I note here that by the time of the hearing on 17 December 2009 the father was seeking an equal sharing of time with the child. Whilst that in itself is of little relevance to the argument now before me, it is to be borne in mind that the presumption of equal shared parental responsibility must be applied no matter what each party is seeking in terms of any time to be spent with a child. In revisiting the issue of parental responsibility on 17 December 2009 the Magistrate recorded:
The Court when delivering its judgment on 13 March 2009 did not follow the basic architecture as contemplated by the Full Court in Goode’s case. This is a case where family violence has been alleged against one of the parties. No findings have yet been made in that direction and if the case proceeds to trial that will have to be one of the issues for exploration at that time.
In the result the Court has not made any order at all in relation to parental responsibility and it did not in its reasons delivered on 13 March 2009 analyse the issue of whether or not the presumption should or should not be applied, or whether or not it consider that it would be in the child’s best interest for the presumption to apply.
Obviously the making of an order for equal shared parental responsibilities has consequences in terms of the Court then needing to follow the pathway set out in section 65DAA of the Family Law Act. The Court’s focus on 13 March 2009 was really upon establishing a platform for the building of an appropriate relationship between the subject child and the applicant. (emphasis added)
It matters not whether the orders sought are on an interim or final basis, the approach mandated in the legislation 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).
For convenience, I will repeat here the provision of s 61DA(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.
Although there are circumstances where it may be inappropriate to apply the presumption and s 61DA(3) will come into play, that decision is “not to be exercised in a broad exclusionary manner” (see Goode (supra) at [78]). An analysis of the Magistrate’s judgments indicates the apparent reason he did not apply the presumption was that, in his view, there was no mandatory requirement that it be applied.
True it is the matter was not argued by counsel at either interim hearing, although the issue was raised by both parties in their interim applications and by the father in his Minute of Orders Sought filed in advance of the December hearing. Merely because the parties chose not to argue parental responsibility does not relieve the Court of its obligation to address it in a meaningful way. Depending on the circumstances of a particular case it may, of course, be addressed in a circumscribed way.
Whilst a court can choose not to apply the presumption of equal shared parental responsibility in interim proceedings, the reasons for not doing so here were not adequately identified by the Magistrate, even making allowance for the fact he was giving reasons ex tempore.
This leads to the general approach to the legislation the Magistrate adopted in this case. His Honour, correctly in my view, identified the case of Goode (supra) as setting out a basic pathway. However, there is an important distinction to be drawn between the legislation itself and what the Magistrate termed the “basic architecture” of Goode’s case.
In that case the Full Court sets out a framework which may be used by judicial officers determining applications for interim parenting orders in the following terms:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. 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.
This gives an effective summary and analysis of the legislation. It provides a suggested approach to be followed in interim hearings. It is simply a suggested approach although one which, in my view, has merit. It can be expanded or pared down depending on the circumstances of each case.
In eschewing the approach set out in Goode’s case the Magistrate fell into error in that he also eschewed, on his own admission, aspects of the legislation itself. His Honour was not at liberty to ignore the legislative requirements.
In my view there is substance to the complaint that the Magistrate failed to address the legislative requirements, although not in exactly the same terms as put to the Court by the mother’s counsel. I am of the view that the disquiet of both counsel about the application of s 65DAA of the Act is misplaced given the Magistrate did not ever address the issue of the allocation of parental responsibility as he should have. Reference here by counsel to s 65DAA merely confirms some of the difficulties I have earlier referred to in understanding and applying the legislation.
I accept the Magistrate did not consider all the mandatory requirements of the Act when making parenting orders about the child and this constitutes appealable error.
Failure to provide any adequate reasons for the orders which were made as to the father’s increase in time with the child
In Bennett & Bennett (1991) FLC 92‑191, the Full Court stated (at 78,266):
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:–
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
Their Honours went on to say (at 78,267):
At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge’s discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
By virtue of the orders of 13 March 2009 the father was seeing the child from 3.00 pm until 7.00 pm each Tuesday and Thursday. He also saw her each Saturday from 10.00 am until 5.00 pm. In early August 2009 this Saturday time was to be extended until 2.00 pm on each Sunday. This gave the father one overnight period each week with the child.
The orders of 17 December 2009 in paragraph 3(b) again extended the weekly overnight time such that it started at 4.00 pm each Friday. This regime was to commence immediately. The Thursday afternoon time was foregone and the mother takes no issue with this.
The practical outcome of the order made by the Magistrate was that the child, then not quite 2 years of age, was spending time with the father for two consecutive nights and for almost two full days each week. This reflected an increase of one night to a regime that had only commenced some four and a half months earlier when the child was aged 18 months. It was common ground the parties had a highly conflicted relationship, had difficulties in communicating and the mother was the primary attachment figure for the child given the parties separated well prior to her birth.
There is a clear obligation upon a judicial officer to provide sufficient reasons for the decision given. Simply put, the reasons need to show why the case was decided in the way it was.
My analysis of his Honour’s judgment suggests it was principally directed at ensuring that the child would have a meaningful relationship with both her parents, the benefit of which he needed to consider pursuant to s 60CC(2)(a) of the Act. His Honour appears to have considered that the more time the child had with the father, the more likely it would be that a meaningful relationship would develop. He observed:
The structure of the Act is clear and that is that generally, all things being equal, there is a clear legislative intent for both parents of a child to have a substantial involvement in the lives of that child consistent with the best interests principle.
The aspects of the benefits and the rights of children in having both parents play significant roles in their life and the days of taking a minimalist approach to the time a non-carer parent spends with the child certainly, in the Court’s view, are well and truly gone. (emphasis added) [Appeal Book 22]
It is unnecessary for me in the context of this judgment to revisit the authorities highlighting the importance of the quality of the time a parent spends with a child rather than concentrating on the quantity of that time. This has been fully canvassed previously in Mazorski v Albright (2007) 37 Fam LR 518 per Brown J at [26] and subsequently approved in a number of decisions (see McCall & Clark (2009) FLC 93-405 at [115]; Mulvany & Lane (2009) FLC 93-404 at [90]; and Moose & Moose (2008) FLC 93-375 at [67] to [69]).
Suffice it to say the Magistrate was persuaded on the basis of the affidavit material before him there were no contra indications to an increase in time the father should spend with the child. In particular, he found the following:
• the father was not an immature person or a young tearaway;
• he appeared to have a functional lifestyle;
• there was no suggestion he was a law breaker;
• he held down a responsible job earning a fairly good wage;
• he had the raw materials for good parenting; and
• his affection for the child appeared normal.
However, as early as 25 February 2009 when the mother first swore an affidavit, allegations of family violence were raised. Specifically these allegations include:
• physical maltreatment and the mother’s removal by the father from the former matrimonial home;
• bruising to her arms inflicted by the father when pregnant with the child and of which there are photographs;
• threats by the father to have her returned to Macedonia and of which there is a recording;
• the father driving erratically when she was in the car, pushing her out of the car; and
• threats by the father to beat her and remove the child from her.
The issue of family violence was again raised in the mother’s affidavit sworn 8 December 2009. She there reports a specific instance of verbal abuse and says that she had taken to recording such specific incidences. She also says that when the parties initially separated she had to live in a women’s refuge due to the physical abuse she had suffered at the father’s hands whilst pregnant with the child.
The mother was granted two interim ex parte Violence Restraining Orders which did not proceed further. The circumstances surrounding both the granting of the orders and the mother not pursuing final orders were not dealt with in any depth in the affidavit material.
Both counsel referred to the issue of family violence in addressing the Magistrate on 17 December 2009. However, no mention was made of the issue in the reasons he gave on 13 March 2009. Save to say that it was an issue for final determination, the matter was again not dealt with in his reasons given on 17 December 2009.
Although I accept some of the allegations are vague and speculative, some are detailed. They were not addressed in the father’s affidavit material. The allegations required some analysis and then explanation why they should have no bearing on the approach taken to the interim orders. The allegations of family violence run counter, in almost all respects, to the findings of the Magistrate that I have previously noted.
The Act takes the issue of family violence seriously. It is dealt with as a primary consideration in s 60CC(2)(b) which identifies:
The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
It also requires further attention pursuant to s 60CC(3)(j) where the Court must consider:
Any family violence involving the child or a member of the child’s family.
Specifically, s 60K deals with the necessity of a court to take prompt action in relation to allegations of family violence where, in children’s issues, inter alia, allegations are made that there has been family violence by one of the parties to the proceedings. In these circumstances the court must consider what interim or procedural orders should be made to enable appropriate evidence about the allegation to be obtained as expeditiously as possible. This section imposes a general obligation on the court to deal with or facilitate allegations of violence being dealt with without delay.
In my view, the Magistrate did not either consider, weigh or assess the evidence in relation to family violence and deal with it in accordance with s 60K.
On 13 March 2009 the Magistrate made an order that the parties were to commence and complete, if practicable, a Mums & Dads Forever parenting course. The mother commenced and completed that course. The father, although commencing it, did not complete it. He deposes to having had difficulties in attending due to his employment and that the timing of the course conflicted with the time he was spending with the child. He said the mother would not accommodate a change in his time with the child to enable him to complete it. This was denied by the mother who said she had tried to accommodate the father, but he had not been willing to agree to her suggested compromise.
The issue of the father’s ability to parent the child in an age appropriate and caring manner was a pivotal part of the mother’s case. She had consistently raised parenting issues in her affidavit material. Despite this, after nine months, the father had not completed the course.
The Magistrate observed that the mother was the primary caregiver for the child and had the requisite knowledge about her needs and routines. His Honour made it clear that she should impart this knowledge in an appropriate fashion to the father. In making his observations he failed to take into account the mother’s evidence that the father has been completely unresponsive to her attempts to discuss such matters.
In her affidavit the mother gives details of these complaints. She alleges the father has been closed to discussion about the child’s sleeping and eating routines. She had proposed a communication book to facilitate the communication. She referred to occasions where the father had refused to speak about health issues.
The basis upon which the Magistrate found it was incumbent upon the mother to communicate in an adult fashion to the father, in light of her evidence, was never adequately identified or explained.
Whilst his Honour referred, correctly in my view, to the position of each party - the father wanting an increase in his time with the child and the mother wanting to decrease that time - he failed to explain why the increase sought by the father was appropriate.
The unresolved issues of family violence and the father’s parenting ability were factors which indicated it may well be in the child’s best interests for the existing orders to continue to operate until such time as these issues were addressed.
The Magistrate referred to and appeared to rely upon what he considered to be the recommendation of the Family Consultant articulated in his report of 8 September 2009. The report sets out:
… the Family Consultant suggested to both parents that if there was an increase in the number of nights Mr [Mazurka] spent with J that this should increase gradually, by one night at a time. (emphasis added)
The Magistrate observed in his reasons of 17 December 2009:
The family consultant made the point in his report of 8 September 2009, which presumably both parties have read, that the next step for the applicant is to progress from one night per week to two nights per week, or at least two nights consecutively.
The Court is inclined to accept the family consultant’s recommendations in that regard. What needs to happen here is for the time the applicant spends with the child to be built steadily in an ordered and considered fashion... [Appeal Book 23]
As is apparent, I am of the view that there was no real analysis of the evidence upon which the Magistrate relied as being appropriate to justify an increase in the time this young child was to spend with the father. The Family Consultant was providing a method of increasing the time if and only if it was considered appropriate to do so. The Magistrate has transformed a possible way forward, if there was a proper basis to do so, into a firm recommendation.
The Magistrate does not explain sufficiently in his judgment the basis upon which he prefers the evidence of the father to that of the mother. I again return to the desirability of addressing the legislative pathway in a manner suggested in Goode (supra). Such an approach is likely to invite attention to the issues I have identified. This may assist in understanding the chain of reasoning that informs a decision.
I consider that it was incumbent upon the Magistrate to articulate his reasons such that this Court could understand how the end result was arrived at. I find there is merit in this ground.
Conclusion
There being merit in the mother’s complaints, I would allow the appeal. The Court determined it was appropriate to make a request in the orders for the matter to be listed for trial on an expedited basis rather than remitting the matter for another interim hearing. It is only at trial that the various allegations can be properly considered, particularly the mother’s assertions of family violence.
Counsel for the mother initially submitted that the father should pay the mother’s costs if the appeal was allowed. However, on reflection she advised that her “primary application” was that the parties should each receive a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). Counsel for the father submitted there should be no order for costs if the appeal succeeded, but joined in the application for costs certificates.
I was not satisfied this was a proper case for a costs order, but I did consider that the parties should be granted costs certificates, since the appeal succeeded on questions of law.
I certify that the preceding one hundred and sixty eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Crisford JJ) delivered on 5 April 2011.
Associate:
Date:
3
6
3