MB & AR

[1999] FamCA 1222

[1999] FamCA 1222

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No.SA14 OF 1999

File No. ML 9231 X OF 1998

IN THE MATTER OF:  MB

Appellant

AND:  AR

Respondent

CORAM:    Nicholson CJ, Coleman and Martin JJ

DATE OF HEARING:          18 August 1999

DATE OF JUDGMENT:       18 August 1999

JUDGMENT OF THE COURT

Appearances:            Mr Eidelson of Counsel instructed by Jeanne Gorman Solicitors, DX 16611, Oakleigh, appeared for the respondent mother.

The appellant father of 8 Gardeners Road, East Benletigh 3165, appeared in person.

Name of Appeal                   MB and AR
Appeal Number  SA 14 of 1999
Date of Appeal  18 August 1999
Date of Judgment                18 August 1999
Appeal Coram  Nicholson CJ, Coleman and Martin JJ

Catchwords:

Family Law - Interim Residence - Interim contact

Family Law - Evidence - Application to admit further evidence at appeal

Family Law - Practice and Procedure - Adequacy of reasons

This was an appeal by the against orders made by Kay J on 13 October 1998 in respect of interim arrangements for the children of the parties pending final determination of their contested applications for final orders. His Honour ordered that the children live with the mother with specified contact to the father, and that she be responsible for their day to day care, welfare and development. 

The proceedings had been commenced by the mother by an ex parte application on 18 September 1998 seeking orders to ensure that the father did not remove the children to France.  Since that date, the children aged 6  and 2.5 had lived with the mother, and orders for contact with the father were made soon after.

Before Kay J, counsel for the father disputed that the mother had been the primary caregiver and drew attention to evidence as to medical assessments of the mother's mental instability and evidence as to her violence.   There was also before his Honour, a report from a treating psychiatrist.

On appeal, the father challenged his Honour's approach to the interim determinations and the treatment of the medical evidence.  He also alleged that Kay J had accepted the presumption that the mother had been the primary caregiver and further submitted that the holiday contact orders he had made were "grossly unbalanced".  There was also an attack on the adequacy of his Honour's reasons for judgment.

The father also sought leave to adduce further evidence in respect of the mother's psychological health and her alleged violence towards him.  The application was not opposed. The further evidence that he sought to introduce was: the evidence of a statement made by him to a policeman as to what he alleged was a violent incident between himself and the mother; the evidence of complaints that he had made to a doctor, and the doctor's observations of what appear to have been comparatively minor injuries sustained by him in relation to that incident;  and evidence in relation to a parenting allowance of which he had been in receipt that he sought to rely upon to establish that he was the primary carer of the child.

Held: appeal dismissed

1. In the context of interim proceedings, the further evidence was not relevant.

1. The principles in relation to interim proceedings applied by his Honour, were the principles set out in Cowling and Cowling (1998) FLC 92-801. Although he did not spell them out in the course of the discussion that led to the making of the orders, he correctly applied the principles to the case and did not apply any presumptions or make findings on contested issues.

1. His Honour was perfectly entitled to take the evidence of the mother's treating psychiatrist as indicative of the fact that whatever may have been the situation in the past the children were at no risk from living with the mother in the meantime.

1. In respect of the allegations of violence, there was nothing in the history as outlined by the father that would necessarily lead to a decision that the mother was in any way unsuitable to care for the children pending trial, particularly since the violence was alleged to largely have occurred between the parties and they would no longer be living together in the household during the relevant period.

1. The father's contention in respect of contact was wrong as his Honour had broadly reserved the question of contact.

1. His Honour did give reasons for decision in a shorthand way.  The Full Court was able to examine the reasoning that his Honour brought to bear in relation to the decision that he made.  The requirement to give reasons is not a requirement that looms as large in interim proceedings but in the determination of interim residence proceedings, it is normally desirable for short reasons to be given at the end of the hearing.

Reportable

1. NICHOLSON CJ:   This is an appeal by the father who appeared before us in person, against orders made by Kay J, on 13 October 1998 in respect of interim arrangements for the children of the parties pending final determination of their contested applications for final orders. 

1. It appears the parties commenced cohabitation while living in San Francisco in December of 1991.  The mother had previously resided in Australia for a short period having originally come from El Salvador.  The father who is of French origin came to Australia with the mother and, as I understand it, they returned to France in 1993, sought permission to migrate and arrived in Australia in January of 1994.  They thereafter lived together until they separated on 1 September 1998.

1. There are two children of the relationship, [a boy aged 6 and a girl aged 2 and 1/2 years].

1. The background to the matter is that following the separation on 18 September 1998, the matter came on before Hannon J on an ex parte application by the mother in which she sought orders seeking to protect herself from a situation where the children may be removed to France by the father.  His Honour made orders that the children live with her and she be responsible for their day to day care, welfare and development.  He made orders restraining the father until further order from removing or attempting to remove the children from Australia, and orders in relation to the father surrendering his French and Australian passports, and a restraining order restraining the father from harassing or intimidating the mother and the children and from coming within 20 metres of any place where the mother and the children reside. 

1. The further hearing of the proceedings was adjourned to 30 September 1998 on which day the matter came before Burton J.  His Honour adjourned the matter again to the Registrar's duty list and made orders for contact between the father and the children pending further order.

1. The next step in the proceedings was the hearing of matters that came before Kay J, on 13 October 1998.  Both parties were represented before his Honour on that occasion.  Both parties had issued applications for final orders and interim orders and the matters that were before his Honour were an application by the mother for interim residence filed on 18 September 1998, and an opposing application by the father also seeking interim residence. 

1. When the matter came before his Honour, his Honour discussed these issues and, in substance, what his Honour was dealing with were competing applications for interim residence and contact.

1. The appellant's grounds of appeal are as follows:

1.His Honour erred in acting upon the being that the interim determination is but a holding arrangement pending a wide-ranging investigation prior to the fully considered verdict.

2.His Honour erred in endeavouring to preserve the status quo above all other considerations through his refusal to admit most of the evidence available, in light of the fact that current Family Court circumstances do not allow a “full hearing of the issues within a reasonable time”.

3.His Honour erred by failing to decide the case on its own facts.

4.His Honour failed to hold the best interest of the children as the paramount consideration in his determination:

(a)By giving undue weight and sole consideration to Dr. C’s psychiatric report dated 7^th October 1998, which covers a period of four months only;

(b)By disregarding two concurring independent psychiatric diagnoses, made by Dr. S in 1994 and by Dr. G in 1998, which openly contradict Dr. C’s findings;

(c)By excluding the evidence submitted, which details the respondent’s ongoing physically and psychologically violent behaviour;

(d)By not giving any weight to the extensive body of medical evidence accumulated over a period of five years, and which openly contradicts the findings of Dr. C’s report.

5.His Honour erred by accepting the presumption that the respondent was the primary care giver of the children.

6.His Honour erred by making a grossly unbalanced holiday residence order, which gives the respondent an unfair and arbitrary possibility to limit the applicant’s residency periods to a bare minimum, and openly favours one party over the other.

7.The exclusion of evidence by His Honour could have an effect on the ultimate outcome of the case.

1. Interestingly enough, the orders sought by the appellant in relation to the appeal were that the children reside with the father, save for periods of contact when they should reside with the mother and that she should have alternate weekend residence from Friday at the conclusion of school until the commencement of school the following Monday, every Wednesday, and that residence be equally shared during the period of the children's school holidays.  There were other orders sought but I do not think it necessary for this purpose to deal with those additional orders.

10. Before us, however, the appellant indicated that he did not seek that this Court reverse the residence orders made by Kay J in favour of the mother, but rather that the matter be returned to another Judge, as I understand it, to rehear the interim applications.  That would be a somewhat cumbersome proceeding and I should have thought entirely unsatisfactory.  

11. The Court indicated that the matter could be given priority in terms of hearing, but the father preferred to continue with the appeal before us rather than avail himself of that opportunity.

12. In the proceedings before his Honour, there  was considerable discussion between his Honour and counsel as to various aspects of the matter and of the affidavit material.  Much of what was said by his Honour in the course of this discussion was the subject of complaint and criticism by the appellant before us.  However, what is apparent in relation to the appellant's case is that it proceeds upon the basis of a complete misunderstanding of the principles upon which interim residence and contact orders are made. 

13. In support of his argument he referred to decisions such as that of the High Court in Gronow v Gronow (1980) FLC 90-716 and also decisions in relation to the giving of reasons for judgment in cases such as Towns and Towns (1991) FLC 92 -199. However those cases were cases dealing with final orders that had been made in what was then termed custody proceedings. There has long been a significant distinction between the treatment of matters that come on for final hearing and matters that come on for the making of interim orders. Indeed the latter are particularly numerous and impose a considerable burden upon the Court's resources.

14. The principles in relation to interim proceedings that were applied by his Honour, although he did not spell them out in the course of the discussion that led to the making of the orders, were the principles that are set out in Cowling and Cowling (1998) FLC 92-801.

15. In the course of the discussion with counsel, his Honour made reference to that decision and said that he was bound by it.  His Honour had a discussion with Ms Mandelert for the father who said that:

"…notwithstanding what the mother has said, my client has been effectively at least a 50 per cent, if not more carer."

16. His Honour pointed out that that was the position as put by the father, but that that was a matter that was in issue. His Honour said:

"Beyond that I cannot make a finding on the contested evidence.  The children are left in their mother's care.  Cowling's case means that they stay there and the only issue as I perceive it, is what contact your client should have.  Call it residence, does not make any difference, to what degree should these children be shared, given that one is 2 1/2 and one is 6…"

17. Perhaps it may be useful for this purpose to summarise and quote from the decision in Cowling's case.  In that case, the Full Court made it clear that authorities relating to issues of interim custody given prior to the passage of the Family Law Reform Act 1995 remained good law. Secondly, their Honours agreed with the procedure for dealing with interim applications considered by D and Y (1995) FLC 92-581 and C and C (1996) FLC 92561. And at pages 85-006 they said:

"19. Having regard to the earlier authorities of the Court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows:-

20. Firstly, having regard to the provisions of s.65E, in determining what interim parenting order should be made, the Court must regard the best interests of the child as the paramount consideration.

21. Secondly, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.

22. Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child's stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child's welfare to the contrary. Such indications would include but are not limited to convincing proof that the child's welfare would be really endangered by his/her remaining in that environment.

23. Fourthly, the Court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the Court to take account of the circumstances giving rise to the current status quo. In particular, the Court may examine the following issues:-

·    whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.

·    whether the current arrangements have been unilaterally imposed by one party upon the other.

·    the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.

24. Fifthly, where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s.68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child's best interests. In undertaking that evaluation, regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (supra).

25. Finally, in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:-

·    the wishes, age and level of maturity of the child.

·    the current and proposed arrangements for the day to day care of the child.

·    the period during which the child has lived in the environment.

·    whether the child has any siblings and where they reside.

·    the nature of the relationship between the child, each parent, any other significant adult and his or her siblings.

·    the educational needs of the child. "  

18. It therefore should be understood that when his Honour was referring to Cowling's case as he did in the course of discussion with counsel, he was indicating that he was applying the principles set out in Cowling's case to the circumstances of this case.  His Honour, is an experienced trial Judge and had read the material that was before him from the parties and their various witnesses.  It is clear that the issues that the father sought to rely upon was what he suggested was his role as the primary carer of the child, alleged violence and instability on the part of the mother, and he sought to rely in relation to the latter matter upon psychiatric evidence.

19. So far as the issue of violence was concerned, his Honour was inclined to dismiss the significance of those allegations insofar as the proceedings before him were concerned.  His Honour was, of course, concerned with the welfare of the children at that stage, and when one examines the allegations of violence that had been made by the father, it is quite apparent that they were isolated incidents occurring over a considerable period and were of little significance, I should have thought, so far as the welfare of the child is concerned in the context where the matter was the subject of an interim determination.

20. Of course, those issues may well take on a greater significance at the final hearing of the matter, and this I think is where the father has misunderstood the nature of these proceedings.  In my view there would be nothing in the history as outlined by him that would necessarily lead to a decision that the mother was in any way unsuitable to care for the children pending trial, particularly since the violence was alleged to largely have occurred between her and him, and seeing that he would no longer be living in the household during the relevant period.

21. So far as the mother's alleged instability is concerned, the difficulty about the evidence that the father relied upon in that regard, was that it was directly contradicted by the evidence of the treating Psychiatrist, Dr C, who had seen the mother on a significant number of occasions running up to the time of the hearing.  In those circumstances, it was not a case of his Honour preferring the evidence of Dr C to other evidence. His Honour was perfectly entitled, in my view, to take the evidence of Dr C as indicative of the fact that whatever may have been the situation in the past, and however it should be treated, the children were at no risk from living with the mother in the meantime.

22. The father sought to introduce further evidence before this Court, and that was not opposed by counsel for the mother. The further evidence that he sought to introduce was: the evidence of a statement made by him to a policeman as to what he alleged was a violent incident between himself and the mother; the evidence of complaints that he had made to a doctor, and the doctor's observations of what appear to have been comparatively minor injuries sustained by him in relation to that incident;  and evidence in relation to a parenting allowance of which he had been in receipt that he sought to rely upon to establish that he was the primary carer of the child.

23. As I pointed out to him during the course of argument, the evidence of what he said to the policeman in no way was particularly useful for the purposes of any determination that we might make in this proceeding.  It may, of course as I say, be a relevant matter when dealt with at trial. The mother and he can give their respective versions of that incident and the trial Judge can draw such conclusions as he or she may wish to do so in relation to it.  It is of no moment, however, in my opinion so far as these proceedings are concerned.

24. Similarly so far as the dispute about the primary carer concept is concerned, again that was a matter that, as his Honour correctly pointed out, was the subject of debate and dispute on the evidence before him.  It was not something that he could determine in the context of interim proceedings, and in my view, the additional evidence advanced by the father takes the matter no further.  The mother was in receipt of an Austudy allowance and would, therefore, have been unable, it was conceded by the father, to have obtained a parenting allowance.  The father was not working, so it was quite obvious that in order to obtain the maximum benefits from the social security system, one received one allowance and one received another.  It does not take the issue so far as this Court is concerned forward one iota and for those reasons I said to the father during the course of argument that it was irrelevant. 

25. I turn now briefly to the grounds of appeal and the other arguments advanced by the father. 

26. In respect of the first ground concerning his Honour's approach to the interim hearing, I indicated during the course of argument and in the course of this decision his Honour was correct insofar as that was concerned. 

27. The second ground says that his Honour "erred in endeavouring to preserve the status quo above all other considerations through his refusal to admit most of the evidence available, in light of the fact that current Family Court circumstances do not allow a 'full hearing of the issues within a reasonable time'."  His Honour, as again I pointed out in the course of argument, correctly in my view applied the principles as stated in cases such as Cilento and Cilento (1980) FLC 90-847 and more recently in Cowling and C v C.

28. The father attempted to rely upon a first instance decision of Rowlands J, Tate v Tate (1997) FLC 92-724 but that decision has been over-ruled by the Full Court and has no validity or weight.

29. Thirdly, it was argued that his Honour erred by failing to decide the case on its own facts.  It is quite clear, of course, that his Honour did decide the case on its own facts and on those facts and on the material before him arrived at the conclusion that he did.  In my view, it was well within the range of his Honour's discretion to do so.

30. The fourth ground of appeal states that:

"His Honour failed to hold the best interest of the children as the paramount consideration in his determination:

(a)       By giving undue weight and sole consideration to Dr. C’s psychiatric report dated 7^th October 1998, which covers a period of four months only;
(b)       By disregarding two concurring independent psychiatric diagnoses, made by Dr. S in 1994 and by Dr. G in 1998, which openly contradict Dr. C’s findings;
(c)       By excluding the evidence submitted, which details the respondent’s ongoing physically and psychologically violent behaviour;

(d)       By not giving any weight to the extensive body of medical evidence accumulated over a period of five years, and which openly contradicts the findings of Dr. C’s report."

31. Again, as I pointed out previously in the course of giving these reasons and in the course of argument, his Honour was entitled to weigh the evidence of Dr C against that other evidence in determining what the child's best interests were. Given the fact that the evidence was current I see no reason to suggest that his Honour applied any wrong principle, or unduly favoured one view or the other.  The point is that there was a contested issue before his Honour as to the mother's condition which no doubt again can be the subject of examination at trial.  So far as his Honour was concerned, however, on the principles already stated, he was only concerned with the interim situation so far as the children were concerned and was entitled to rely upon Dr C's report in that regard.

32. The fifth ground asserts that his Honour erred by accepting the presumption that the respondent was the primary caregiver of the children.  His Honour quite clearly did not apply any such presumption.  His Honour was entitled to look at the competing claims of the parties and their witnesses and arrive at such decision as he felt best looked after the children's interests. 

33. The sixth ground was an attack upon his Honour's holiday residence order which the appellant thought was unfair and gave the respondent an unfair and arbitrary possibility to limit his residency periods to a bare minimum, and openly favours one party over the other.  This contention is quite clearly wrong. His Honour broadly reserved the question of contact and that is a matter that can be, and no doubt will be, argued in due course.

34. The final ground of appeal was that the exclusion of evidence by his Honour could have had an effect on the ultimate outcome of the case.  Again for reasons stated in argument I see no basis for finding that his Honour was in error in that regard. 

35. The appellant spent a considerable time arguing that his Honour did not give reasons for judgment.  The requirement to give reasons is not a requirement that looms as large in interim proceedings as it does in final proceedings for obvious reasons because they do not finally determine the issue in the case.

36. On the other hand it is, I think, fair to say that it is normally desirable for short reasons to be given in the determination of interim residence proceedings.  In fact, his Honour, did so if one examines the discussion between his Honour and counsel, and did so in a shorthand way.  It certainly, in my view, enables this Court to examine the reasoning that his Honour brought to bear in relation to the decision that he made. 

37. Speaking personally, however, I would have preferred, and indeed it may have been clearer to the appellant, if his Honour had given a short statement of reasons at the end rather than proceeding in the shorthand way that he did.

38. It does not, however, in my view amount to an error of law on the part of his Honour and I do not accept the arguments that have been advanced in that regard.  For all those reasons, therefore, I consider that the appeal should be dismissed.

39. COLEMAN J:   I agree that the appeal should be dismissed for the reasons given by the Chief Justice.  I have nothing to add.

40. MARTIN J:   I agree that the appeal should be dismissed also for the reasons given by the Chief Justice. 

41. NICHOLSON CJ:   Very well.  The order of the Court, therefore, will be that the appeal is dismissed.

I certify that the proceeding 41 paragraphs are a true copy of the reasons for judgment delivered by  this Honourable Full Court

Danny Sandor
Senior Legal Associate to the Chief Justice