Mellick & Mellick
[2014] FamCAFC 236
•8 December 2014
FAMILY COURT OF AUSTRALIA
| MELLICK & MELLICK | [2014] FamCAFC 236 |
| FAMILY LAW – APPEAL – CHILDREN – PARENTING ORDERS – Where a high degree of parental conflict existed between the parties – Where it was not considered in the children’s best interest to make an order for equal shared parental responsibility – Whether his Honour fully considered the presumption of equal shared parental responsibility under s 61DA – Whether the presumption applied so that the court had to be satisfied on the evidence that the presumption had been rebutted – Where on a fair reading of the judgment his Honour had understood that the presumption applied unless by reference to evidence it was rebutted – Where there was sufficient evidence to rebut the presumption – Whether it needed to be specifically indicated to the parties that he intended to make an order for sole parental responsibility as a matter of procedural fairness – Where it was evident from court exchanges that his Honour intended to make such an order – Where his Honour was aware of all of the salient facts when he made orders for the children’s time with the father – Appeal dismissed. |
| Evidence Act 1995 (Cth): s 140 Family Law Act 1975 (Cth): s 61DA, 61C, 65DAC, 65DAA, 60CC |
Bolitho & Cohen
(2005) FLC 93-224
(1986) 162 CLR 1
Dundas & Blake [2013] FamCAFC 133
(2006) FLC 93-286
(1985) 60 ALR 68
Pavli and Beffa (2013) 48 Fam LR 677
(2014) FLC 93-582
(2002) 211 CLR 238
(1988) 180 CLR 491
Coulton v Holcombe
Goode & Goode
Metwally v University of Wollongong
SCVG & KLD
U v U
Water Board v Moustakas
| APPELLANT: | Mr Mellick |
| RESPONDENT: | Ms Mellick |
| FILE NUMBER: | PAC | 2030 | of | 2009 |
| APPEAL NUMBER: | EA | 124 | of | 2012 |
| DATE DELIVERED: | 8 December 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ryan & Watts JJ |
| HEARING DATE: | 30 April 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 August 2012 |
LOWER COURT MNC: | [2012] FMCAfam 1241 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Othen by way of direct brief |
| FOR THE RESPONDENT: | Ms Mellick in person |
Orders
The appeal be dismissed.
The application in an appeal filed 19 June 2013 and the amended application filed 24 April 2014 be allowed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mellick & Mellick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 124 of 2012
File Number: PAC 2030 of 2009
| Mr Mellick |
Appellant
And
| Ms Mellick |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Mellick (“the father”) appeals against orders made by Federal Magistrate Harman (as his Honour then was) on 31 August 2012 in parenting proceedings with Ms Mellick (“the mother”) relating to their children, X aged seven and Y aged four at the conclusion of the trial (“the children”).
The focus of the proceedings was on with whom the children should primarily reside and the amount of time they should spend with their other parent. Although both parties proposed that they have equal shared parental responsibility, the primary judge was not bound by the orders as sought by them, and the issue of parental responsibility needed to be determined. On the basis that an order for equal shared parental responsibility would not be in the best interests of the children and it was in their best interests to live with the mother, an order that she have sole parental responsibility was made in her favour. It was further ordered that during term time the children spend time with the father each alternate weekend and for half the school holidays.
The father appeals against the sole parental responsibility order and what he says is the limited amount of time the children spend with him. He seeks that those orders be set aside and the determination of those issues be remitted for rehearing before a judge other than Judge Harman.
The mother resists the father’s appeal and seeks to maintain the orders.
Background Facts
It is necessary to provide some background facts in order to give context to the appeal.
The father was born in Sydney in 1976.
The mother was born overseas in 1977 and at some stage she and her family migrated to Australia.
The parties married and commenced cohabitation in 1999. The father is a health care professional and from when the parties commenced cohabitation in 1999 and until early 2009, he has worked full time in that role. The mother is a receptionist and health care assistant and in one or other of those areas of endeavour had part-time work from when the parties married until not long before their first child was born.
The child X was born in 2005. There was no dispute that for at least the first year following his birth the mother was at home full time until sometime in 2006 when she commenced part-time work (four-five hours per week) in a business owned by the father.
In late 2005, the parties moved into a home they owned at Suburb H.
In March 2007, the father was admitted to a psychiatric unit where he received treatment.
According to the mother, the parties separated on 15 November 2008, albeit they continued to reside with the children at Suburb H. Although the father denied the parties separated at this time, because the parties continued to share the same residence, it was not necessary for this issue to be determined. Although the date is somewhat uncertain, there is no doubt that by late 2008 the mother no longer worked in the business. She did not work again during the marriage.
Taking their son with him, the father left the family home on 30 April 2009. According to him, he did no more than the mother asked him of him. However, the mother said she was assaulted by the father and he removed their son without her consent. Whatever preceded the child’s removal there is no doubt that on 4 May 2009 the mother filed an application seeking orders under the Family Law Act 1975 (Cth) (“the Act”) for their son to be returned to her. The father and son returned to the family home on about 4 or 5 May 2009 and the mother’s application was discontinued.
Within a few days of the father having removed the child, the mother approached the police and an application for an apprehended domestic violence order for her protection from the father was made. An apprehended domestic violence order in accordance with that application was made by consent and without admissions by the father on 27 May 2009.
The child Y was born in 2009.
For one week in mid August 2009, the father moved out of the family home. The children remained with the mother.
In early December 2009, the family moved to Suburb A which is a suburb close to Suburb M where the mother’s family live. The mother has a difficult relationship with her father who, she said, has assaulted her and joined in with the father in attempting to coerce her to remain in the marriage. The father denied doing so, just as he denied he assaulted her in late September 2009.
In any event, shortly after the family moved to Suburb A the mother filed an application for divorce. Her application was served on 9 January 2010, following which the father moved in with his parents.
In February 2010, an application was made by police for an apprehended domestic violence order against the father and for the protection of the mother. An interim order for the mother’s protection was made.
It is at about this time that the father sold his business.
On 2 July 2010, the father consented, without admissions, to an apprehended domestic violence order being made against him for a period of 12 months.
In the meantime, the parties agreed that the children would live with the mother during the week and with the father on weekends. Precisely how that agreement came about was contentious but what is not in dispute is that by late April 2010 or early May 2010 those arrangements had broken down, following which the children spent very little time with the father.
The father was charged on 16 April 2010 with breaching the interim domestic violence order. Although there is no doubt that on 10 October 2011 he was convicted of breaching an apprehended domestic violence order, it is unclear whether that conviction relates to the 16 April 2010 charge or a similar charge laid in March 2011. His Honour was unable to determine whether an appeal lodged by the father against his conviction remained outstanding.
By order made on 6 May 2010, the parties were divorced. It follows that the court was satisfied the parties separated prior to 17 December 2008 and not, as the father alleged, in January 2010.
The father filed an application for parenting orders in the Federal Magistrates Court (now Federal Circuit Court) on 14 May 2010. By way of interim orders, he proposed that the parties have equal shared parental responsibility, and after a period of two months, during which the children lived with him for five consecutive nights each fortnight, the children then live in a week about shared care arrangement. It will be recalled their daughter was then 10 months old and their son had just turned five. By way of final order, the father wanted the children to live with him and during school term, spend time with the mother from after school Friday until before school Monday and for half school holidays plus other special occasions.
Two days after the father commenced proceedings, the mother and children moved to Suburb D to live with her now husband. In so doing the mother withdrew their son from S School at Suburb M, where he was in kindergarten and enrolled him in a school at Suburb C.
Having lived with his parents for the preceding six months, in June 2010, the father returned to live in the family home at Suburb H.
The father’s application for interim parenting orders was listed before
the primary judge on 29 June 2010. Although we will set out fully the interim parenting orders which his Honour made, it is important to note that over the mother’s opposition, the parties were required to return their son to his former school at Suburb M and were thereafter restrained from changing his school other than by agreement or pursuant to an order. Provided the father lived within 30 minutes of the school, it was ordered that their son live with the father from after school Friday until the commencement of school Monday. If the father lived more than 30 minutes from the school, the parties’ son was to return to the mother on Sunday evening. The child was also to spend time with his father from after school Wednesday until the commencement of school Thursday. During school holidays, his time was divided equally between the parties.
The parties’ daughter was ordered to live with the father initially for three days per week between 9.00 am and 5.00 pm and, commencing late August 2010 (when she would be 13 months of age), from Wednesday morning until Thursday morning and Saturday morning until Sunday evening. This was to incrementally increase from December 2010 (when she would be 17 months of age) by expanding her time with the father on weekends to 6.00 pm Friday until 6.00 pm Sunday. The orders provided that during school holidays she would live with the father for periods of one week.
The orders made on 29 June 2010 are set out below:
1.No later than the first day of term 3 2010 [X] is to be re-enrolled at [S School] and to thereafter attend that school.
2.PENDING FURTHER ORDER each of the parties is restrained from changing [X’s] school from [S School] save with further order of this Court or the written consent of both parents first having been obtained.
3.PENDING FURTHER ORDER that the child [X] is to live with his father:
a.during school terms from the conclusion of school Wednesday until the commencement of school the following day (Thursday) commencing Term 3 2010;
b.Each weekend from after school Friday until 6pm Sunday provided however that if the father is living within 30 minutes driving distance of [X’s] school such time will extend to the commencement of school Monday;
c.for one half each school holiday period commencing with the July 2010 school holidays and PFO being for the first half of such holidays being from conclusion of school Friday until 5pm on the middle Saturday;
d.for one half of the Christmas school holidays in each year on a week-about basis with [X] to live with the father in 2010 for the first week of the school holidays and to conclude 5pm Christmas Eve and thereafter on a week-about basis;
e.such further and or other period as is agreed between the parties from time to time.
4.That the child [Y] shall live with her father:
a.Until 27 August 2010, from 9am until 5pm each Wednesday and from 9am until 5pm each Saturday and Sunday;
b.From 27 August until 3 December 2010, in each week from 9am Wednesday from until 9am the next day (Thursday), and from 9am Saturday until 5pm Sunday;
c.From 3 December 2010, from 9am Wednesday until 9am Thursday (and during school holidays to occur in the weeks when [X] is living with his father) and from 6pm Friday until 6pm Sunday;
d. In addition to the above time and during school holidays, and whilst [X] is living with his father for periods of one week, that [Y] shall spend the above periods living with her father.
5.At all other times, save as provided in these orders for [X] and [Y] to live with their father, that [X] and [Y] shall live with the mother.
6.For the purpose of the children passing into the father’s care pursuant to the above orders the father shall for the weekend of 2 July 2010 collect the children from and return the children to [Shopping Centre], and thereafter changeovers shall occur:
a.In relation to [X] and where appropriate by collecting him from and returning him to his school at [Suburb M];
b.On all other occasions and for both children at McDonalds...
7.Each party shall notify the other forthwith and contemporaneous with the event of significant illness, accident or significant injury of either child and shall do all things, sign all documents and give all consents and authorities necessary to enable both parties to be fully advised and consulted regarding such treatment as is recommended or provided and to visit the child or children if hospitalised.
8.Each party shall advise the other forthwith upon becoming aware of same of any specialist medical appointment for either child and each party shall do all things, sign all documents and give all consents and authorities necessary to enable each parent to be fully and properly advised and consulted regarding such treatment.
9.That each party shall do all things, sign all documents and give all consents and authorities necessary to authorise and direct any school, preschool or day-care centre attended by either child to discuss with each parent the child’s attendance and progress, to provide copies of newsletters and reports and full access to all information for programs and activities to which parents are invited or entitled to participate in.
10.Each party shall keep the other advised at all times of their residential address at which the children will be living with them together with a contact telephone number provided however that each party shall refrain from contacting the other parent save:
a.to advise of any difficulty or delay in attending changeover; or
b.to advise information required by the above orders or to comply with those orders.
…
(original emphasis)
It can thus be seen that there was no order in relation to parental responsibility so each of the parties had parental responsibility (s 61C of the Act).
The mother filed a Notice of Appeal against the orders made on 29 June 2010 which, at some stage, she discontinued.
In the meantime, the matter again came before his Honour and, on
30 July 2010, the parties agreed to vary some of the orders made on
29 June 2010. By these orders it was agreed that during school term, their son live with the father during the week and one in every four weekends. The parties’ daughter was to continue to live with the mother but with the orders providing a slightly more graduated progression in her time with the father. This culminated in her spending three nights per week with him during term time to coincide with those periods when her brother was also in the father’s care. She would also be with the father on the weekend her brother was to be with him. No change was made to the arrangements during school holidays.
His Honour was concerned that the children would now be separated from each other and he ordered a family report.
Following interviews in February 2011, Family Consultant P published her report on 23 February 2011. For reasons we do not need to discuss, her report but not the recommendations she made, was admitted into evidence.
The apprehended domestic violence order made against the father was extended in March 2011 until a date in 2013.
There was a distressing incident at changeover on 26 April 2011. Precisely what took place is unclear but there is no doubt that in relation to it, his Honour preferred the evidence given by the mother and her husband.
The proceedings were listed for hearing to commence on 24 August 2011. As his Honour explained, the matter was unable to commence on that day and “regrettably” it was adjourned.
The father was convicted on 10 October 2011 of driving with a high range prescribed concentration of alcohol. He was disqualified from driving from 8 July 2011 (when it is assumed the offence occurred) until 7 July 2012.
On the father’s application, an order was made on 19 December 2011 for their son to be withdrawn from S School and enrolled at O School at Suburb K. The latter being much closer to where the father lived at Suburb H and, we understand, considerably closer to where the mother lived at Suburb D.
By then the dispute had grown to encompass the settlement of property which it would seem, was at least as complicated and conflicted as the parenting proceedings. In anticipation of the final hearing, another family report was ordered in relation to which interviews and observations took place in late December 2011. Family Consultant E provided a report dated 27 February 2012 which made the following observations and recommendations:
75.The children appeared to have a warm relationship with each other and [X] very clearly expressed a desire to live with [Y]. They would likely benefit greatly from the opportunity to live together. The Court would have to weigh up the potential benefits of this against the determinations made on the other issues in this case.
76.The parental conflict appeared to be toxic, involving allegations of infidelity with [mother’s] current partner, mental health issues, fraudulent behaviour and conflict over the financial settlement. [The mother] raised concerns about [the father’s] level of control over her life and collusion with the maternal family that she claimed led, in part, to her unilateral decision to relocate the children to [Suburb D]; allegedly on advice of the DVLO. These issues were not able to be determined in this assessment and are a matter for the Court.
77.It was assessed as highly likely that the high degree of parental conflict would continue into the future and that the children could be affected by this. It appeared that, whichever version of the facts was correct, the changeovers had been difficult for [X] and possibility (sic) for [Y]. It may assist if the changeovers occurred via a contact centre so that the children did not have to be exposed to anticipatory anxiety.
78.No clear recommendations could be made for the ‘spend time’ arrangements because these would be dependent on the Court’s determination of the facts with regards to the parent’s (sic) allegations and the subsequent Court Orders outlining whether the children are to live together or separately. It was assessed as detrimental for the children to have too many transitions due to the parental conflict; given this and the distance between the two homes, mid week time would not be beneficial for the children.
79.Liberal telephone contact could, unfortunately, not be recommended because of the parental conflict. The Court should determine the appropriate boundaries with regard to telephone time so as to reduce the stress on the children, based on a determination of the facts of the case.
RECOMMENDATIONS
§That the ‘live with’ and ‘spend time with’ arrangements for the children be subject to Judicial determination
§That consideration be given to changeovers being conducted via a contact centre
§That an Order be made that no one is to use physical discipline on the children
(Family Report, 27 February 2012, pp 22-24)
The hearing commenced on 3 April 2012. It did not finish within the time allocated and was adjourned for its second tranche in late August 2012. In the meantime, the property proceedings settled and his Honour, on 31 August 2012, made the final parenting orders which are the subject of this appeal.
The father filed a Notice of Appeal against the parenting orders on 28 September 2012. However, when his appeal was called on for hearing on 5 June 2013 only the mother was in attendance. A self-executing order was made which provided that the father had until 20 June 2013 to apply to relist his appeal and, should he fail to do so, the appeal would be dismissed. An application that the appeal be relisted was made within time and culminated in this hearing.
The grounds of appeal
In lieu of the grounds of appeal contained in his Notice of Appeal filed on 28 September 2012, the father was given leave to rely on the grounds of appeal attached to his Amended Application in an Appeal filed on 24 April 2014. The revised grounds are as follows:
·His Honour concluded as a matter of law that because his Honour did not consider it was in the children’s best interests to make an equal shared parental responsibility order, the presumption at s 61DA of the Family Law Act 1975 (Cth) did not apply. This conclusion was wrong at law (ground 1);
·Even if the Court is satisfied his Honour understood the law required his Honour to satisfy himself there was sufficient evidence to rebut the said presumption, there was insufficient evidence for the Court to be so satisfied, particularly in light of the fact both parties sought an order for equal shared parental responsibility (ground 2);
·The decision to make an order for sole parental responsibility in favour of the mother was wrong at law, denied procedural fairness to the appellant and insufficient evidence was available to the Court to make an order (ground 3);
·His Honour failed to give any or adequate reasons for determining that the spend time with orders were in the children’s best interests (ground 4); and
·On the evidence it was not available to his Honour to conclude, or alternatively it was manifestly outside the reasonable exercise of his Honour’s discretion to conclude, that to spend time with arrangements were in the children’s best interests (ground 6).
Grounds 5 and 7 were abandoned.
Although in his original Notice of Appeal the father invited the court to re-exercise the primary judge’s discretion, he abandoned that approach and before us sought that orders 1, 2, 3, 4, 5, 6 and 11 made on 31 August 2012 be set aside and the question of parental responsibility, the children’s living arrangements and where their son attends school be remitted for rehearing before a judge other than the primary judge. He proposed that pending any rehearing, the 31 August 2012 orders continue in operation.
The presumption of equal shared parental responsibility
Grounds 1-3 inclusive challenge the manner in which the primary judge dealt with the presumption of equal shared parental responsibility found in s 61DA of the Act and his decision to order that the mother has sole parental responsibility.
Before we discuss those grounds, it is necessary we set out the relevant provisions and make some observations about parental responsibility.
Section 61DA – presumption of equal shared parental responsibility when making parenting orders
61DA(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.
….
61DA(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.
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.
61DA(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.
As we have already mentioned, it also needs to be understood that where there is no order concerning parental responsibility, s 61C of the Act operates so that each parent has parental responsibility. As Watts J pointed out in Pavli and Beffa (2013) 48 Fam LR 677, s 61C does not provide for a child’s parents to share parental responsibility.
On the other hand, an order that parents have equal shared parental responsibility carries with it the obligations imposed by s 65DAC of the Act, namely, an obligation to consult, to make a genuine effort to come to a joint decision (s 65DAC(3) of the Act) and to jointly decide major long-term issues (s 65DAC(2) of the Act).
The phrase “major long-term issues” is defined in s 4 of the Act and means:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. (original emphasis)
An order that parents have equal shared parental responsibility triggers the application of s 65DAA (court to consider child spending equal time or substantial and significant time with each parent in certain circumstances) and influences in a real way how a court must approach the determination of parenting orders concerned with the amount of time a child will spend with his/her parents (Goode & Goode (2006) FLC 93-286).
Ground 1 – application or rebuttal of the presumption
By ground 1, the father challenges his Honour’s statement at [318] “[i]n that regard, I propose not to apply the presumption on the basis that I am satisfied that it is not in the children’s best interests to do so”. We note the paragraphs of his Honour’s reasons for judgment contained in the Appeal Books are numbered differently (paragraphs being one number out) to his Honour’s reasons which form part of the court record.
Although counsel for the father conceded that by way of precursor to
his Honour’s consideration of s 61DA, he said at [315] “I must then turn to and consider the presumption of equal shared parental responsibility pursuant to s 61DA” (our emphasis), it is submitted that his Honour failed to appreciate that in its terms, s 61DA(1) obliged his Honour to apply the presumption. The assertion being that his Honour did no more than “simply” decide the presumption does not apply, and “…had His Honour applied the presumption, and turned his mind to the fact, His Honour had to be satisfied on the evidence the presumption was rebutted, the result may well have been different” (Appellant’s supplementary summary of argument, filed 28 April 2014, at [6]).
We turn now to an examination of his Honour’s reasons for judgment.
His Honour’s discussion concerning the presumption commenced under the heading “Legislative Pathway”. As the passages which follow demonstrate,
his Honour followed what he understood to be the “legislative pathway” referred to in Goode, in particular at, [56] and [81]. Without considering what their Honours in Goode went on to say at [82], it would appear his Honour considered that the effect of Goode is that in an application for parenting orders it is necessary to indicate at the outset whether or not there will be an order for equal shared parental responsibility. However, as the Full Court in SCVG & KLD (2014) FLC 93-582 explained, to the extent that in Goode a starting point is identified, [82] of that judgment points to s 60CC and relevantly:
75.Given that s 60CC(1) states that the purpose of s 60CC is to identify how a court determines “what is in a child’s best interests” and both s 65DAA(1)(a) and (2)(c) require that the court considers whether equal time or substantial and significant time would be in the child’s best interests, s 60CC drives the application of s 65DAA(1) and (2). Thus, the application of s 65DAA(1)(a) and (2)(c) is reliant upon findings made pursuant to s 60CC in order to determine whether orders of that type would be in a child’s best interests. It is only when the application of findings made pursuant to s 60CC result in an affirmative answer to the questions posed in ss 65DAA(1)(a) and (2)(c) that (subject to compliance with the balance of s 65DAA) the court may make an order for either equal time or substantial and significant time (MRR v GR (2010) 240 CLR 461).
As we will shortly demonstrate, and notwithstanding that before the primary judge turned his attention to ss 60CC and 65DAA he indicated that it was not in the children’s best interests for the parties to have equal shared parental responsibility, it is his Honour’s findings made when addressing ss 60CC and 65DAA where the rationale is to be found for his conclusion that the presumption would not operate in the best interests of these children.
As we have already mentioned, reference was first made to the presumption at [315]. Although it may have been preferable, at least for the benefit of the parties, that his Honour state more fully the nature of the presumption and its operation, his specific reference to the section from which it is derived and the manner in which he ultimately approached the allocation of parental responsibility persuades us he was well aware of the manner in which the section and presumption operate. In particular that the question of parental responsibility was not at large and determination of that issue was governed by s 61DA.
Reference was then made by his Honour to U v U (2002) 211 CLR 238 where the High Court made it clear that a court exercising parenting power under the Act is not bound by the parties proposals and provided they are afforded procedural fairness, an order different to that which they proposed is permissible. The primary judge, having said he was satisfied the parties were aware he was concerned that the weight of evidence was against an order for equal shared parental responsibility operating in the children’s best interests, explained at [318], he was satisfied that such an order would not be in the children’s best interests.
At [319]-[320], the primary judge addressed s 61DA(2), that is, the circumstances in which the presumption does not apply. After he observed that he was not in a position to make findings of the type referred to in s 61DA(2) (i.e. abuse of a child or family violence), at [321], he said that “…for reasons that I will discuss with respect to time arrangements at large” he was satisfied the presumption had been rebutted (s 61DA(4)). Although his Honour did not use the word “rebutted” there can be no doubt that when [318] and [321] are read together, he was well aware of the distinction between the circumstances in which the presumption does not apply (s 61DA(2)) and when it is rebutted (s 61DA(4)).
In his analysis of s 60CC, the primary judge placed real weight on what he described as the children’s “horribly” disrupted childhood and the importance to them of reasonable stability in the future and as far as possible that they be protected from the effect of parental conflict. With this in mind and so as to make orders least likely to lead to the institution of future proceedings,
his Honour was satisfied “… it is preferable that orders to be made that are clear, certain and provide for the children to live primarily with one parent” [373].
Any arrangement which required “… any degree of mutual support, assistance, provision of information or co-operation” [379] was described as far more problematic. This segued into specific findings about why an order for equal shared parental responsibility would not be in the best interests of the children. His Honour said:
380.The difficulties that [the mother] has described with respect to schools and obtaining information and, accepting her evidence that they have occurred as she has described, has caused me some real reservation as to whether these parents are able to give any life or meaning, in any non-fictitious fashion, to equal shared parental responsibility.
381.They simply have not exchanged information, have not cooperated with each other, and have not told each other about any or most decisions that they have made. That has included information which, on [the mother’s] case, has caused some prejudice or potential prejudice to the health of at least of [the daughter]. In relation to [the son] this has led to the myriad of issues that have been described in the evidence surrounding [Mr B], difficulties at his previous school and other arrangements for his care, which has resulted in both his parents not being actively involved or consulted.
382.With respect to the parents’ current and future capacity to communicate, I accept the evidence of each of these parties, and as was put to [the mother] and accepted by her, that it is non-existent or virtually non-existent. Neither can opine as to how that will improve in the foreseeable future. If it cannot or will not improve and is accepted, as it is at present, as moribund and/or, as [Family Consultant E] has described it, “toxic”, it is difficult to understand how that which section 65DAC expects (as to the effect of a parenting order for equal shared parental responsibility) can apply.
383.That section requires that if two or more persons have responsibility, then they must consult with each other in respect to major issues, decisions as defined in section 4 of the legislation. That includes the school that a child attends and any change thereto, religious observance, the child’s health, the child’s name and changes to the child’s living arrangements that make it more difficult for one parent to spend time with the child.
384.Other than the absence of any Application by either of these parties to change the child’s name, the above four instances have all been called into question. When they have been matters that must be addressed, it has been abundantly clear that the parties cannot consult and have not been in any position to make a joint decision.
385.On that basis, I am not satisfied that there could be any real or meaningful order for equal shared parental responsibility.
It can be seen from these passages that the primary judge paid careful attention to the presumption and but for his failure to use the word “rebutted” contained in s 61DA(4), his judgment reflects an orthodox application of s 61DA. In circumstances where a fair reading of these lengthy and careful reasons demonstrates that the primary judge clearly understood that as a consequence of his findings pursuant to s 61DA(2) the presumption applied unless by reference to the evidence it was rebutted, the challenge raised by ground 1 must fail.
Ground 2 - was there sufficient evidence to rebut the presumption?
The challenge raised by ground 2 is that in the context of both parties proposing there be an order for equal shared parental responsibility, there was insufficient evidence to rebut the presumption.
Section 61DA proceeds on the assumption that when a court is asked to make a parenting order, it is in the interests of all children for the subject child’s parents to have equal shared parental responsibility. However, in certain circumstances that assumption either has no application or in accordance with s 61DA(4) can be rebutted. Understood in this fashion, we do not accept the argument advanced by counsel for the father that the presumption “… weights the evidence automatically in favour of what is presumed”. To the extent it is argued that the decision of the Full Court in Dundas & Blake [2013] FamCAFC 133 at [57] lends support for the proposition advanced by counsel for the father we cannot agree. At [57] their Honours merely explained that “Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply. In our view, that level of satisfaction could not have been reached in this case.” To construe those remarks as speaking in favour of an automatic weighting of the evidence in favour of what is presumed would be to extend the reach of their Honours words far beyond their ordinary meaning.
In our view, that the presumption has been rebutted requires such evidence as is required to establish any other fact. That is, by showing on the balance of probabilities that equal shared parental responsibility would not be in a child’s best interests (s 140 Evidence Act 1995 (Cth)). As the Full Court in Dundas & Blake explained at [61], the mandatory requirement to apply the presumption makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted. Contrary to the submissions made by counsel for the father, there is nothing in Dundas & Blake which supports the automatic weighting argument he advanced before us.
Unlike Dundas where there was no cross examination that demonstrated poor communication had led to problems with decision making, the inability of the parents in this case to co-operate in their children’s best interests was a significant feature.
As to whether there was sufficient evidence to rebut the presumption, it needs to be recalled that the primary judge presided over a hearing which lasted eight days and in which the parties laid bare their grievances with each other as parents and discussed with exquisite detail numerous instances where their disagreements about major long-term issues had been detrimental to the children. Reference need only be made to the evidence of Family Consultant E about the toxic nature of the parental relationship and its effect on their capacity to cooperate as parents and the parties’ disputes about where their son would attend school, unwarranted complaint to welfare authorities and their daughter’s hospitalisation to make the point. Albeit a decision made in the context of his Honour’s interim parenting orders dated 29 June 2010, their jointly made decision to separate the children was, as his Honour explained, one which imposed a horribly disrupted living arrangement on their two young children. None of those findings are under challenge in the appeal.
It follows that his Honour had a large body of evidence where important decisions made by the parents about the children were contrary to the children’s best interests and where their inability to communicate and agree on matters of real significance to the children’s immediate and long term welfare compromised their best interests. In addition, his Honour specifically doubted that had he made an order for equal shared parental responsibility, the parties could have carried out their obligations under that order. As previously mentioned, those obligations, imposed by s 65DAC, were to consult, to make a genuine effort to come to a joint decision and to jointly decide major long term issues.
There was ample evidence upon which his Honour could reach the conclusions that he did and error as asserted by ground 2, has not been established.
Ground 3 – the order for sole parental responsibility
By ground 3 the father challenges the order for sole parental responsibility made in favour of the mother. The challenges are two-pronged; namely that
his Honour denied the father procedural fairness by making an order contrary to the parties’ agreed position and with there being insufficient evidence for his decision to deprive the father of parental responsibility conferred by the Act.
We will address the procedural fairness challenge first. As we have already said and as was clearly appreciated by the primary judge, the father and the mother both applied for orders they have equal shared parental responsibility. Notwithstanding this agreement, his Honour was not provided with a consent order which would give effect to it, and instead, the parties embarked on an eight day hearing. The range of matters that were in dispute were helpfully summarised in Family Consultant E’s report. These were:
·with which parent the children should live;
·how much time the children should spend with the other parent;
·allegations the mother and her husband physically abused the parties’ son;
·allegations made by both parents that the other neglects the children;
·allegations that the father had influenced the son to view his mother negatively;
·allegations the father had colluded with the maternal family to physically assault and seek to control the mother;
·the high conflict and poor communication between the parents and its effect on the children;
·the children’s attachment relationships; and
·the children’s sibling relationships.
Against this background, early in closing addresses the primary judge invited submissions from counsel for the father concerning parental responsibility. In so doing, his Honour outlined his concern that an order for equal shared parental responsibility appeared to be in conflict with the evidence. His Honour said:
HIS HONOUR: I’m not trying to create a digression just for the sake of it but I have raised – I think on Monday but the week has got away – in terms of the starting point for the legislative process what do you say I should do about parental responsibility in light of the fact [Family Consultant E] describes communication as non-existent and toxic? Each of the parties seems to be proposing equal shared parental responsibility, and that’s my starting point per U v U but let me make very clear I’m failing to understand from either party’s evidence how that’s going to be other than a fiction unless it has clear and specific rules and regulations attached to it.
[Counsel for the father]: [Counsel for the respondent] and I had a discussion about that very point this morning. Can we just both take the opportunity.
HIS HONOUR: I’m very alive to – sorry. I will be quiet while everyone is speaking to their respective clients.
(Transcript, 30 August 2012, p 362)
The following exchanges then occurred:
[Counsel for the father]: I understand we both have instructions, and [counsel for the respondent] will jump to his feet and stop me before they came out of my mouth, but we both have instructions to seek equal shared parental responsibility.
HIS HONOUR: Very well. And I should be clear I don’t raise that on the basis of trying to flag to you subtly or otherwise that that’s the decision I will come to. It’s just the more I reflect on everyone’s evidence – the parties as well as [Family Consultant E] – [the respondent] describes that the – and in fact it was put to her yesterday in her cross-examination that the communication isn’t just poor, it’s almost non-existent. [The appellant] seems to suggest something similar and [Family Consultant E] is even starker in her appraisal of where she thinks communication is, ie, it’s floating face down in the water with sharks circling. So on that basis I’m just understanding how that’s actually going to be given life in a real world or why subsection (4) wouldn’t apply in terms if it’s not in the child’s best interests if the attempts at communication that happen create conflict, that the conflict seems to on everyone’s evidence be something we should avoid for these children, that it’s then accordingly, almost as an exercise of Euclidian logic, as forward as that may be in other terms – a foregone conclusion that it could not be in their best interests.
But certainly if that remains everyone’s application I will keep pondering that. And perhaps the second element, if that is to be so, whether there needs to be some prescription about it. I guess the other way of attacking it is section 61C and we’re silent as to it and everyone goes off and makes their own decisions but I’m conscious for these parties and the several days of cross-examination of each that probably just abdicates responsibility and says, “It’s all too hard and let’s just leave everyone to keep annoying each other”. Because I’m very alive to the fact it would be very annoying for each of them if the other goes off and makes decisions.
[Counsel for the father]: Indeed.
(Transcript, 30 August 2012, pp 362-363)
The exchanges between bench and bar continued:
HIS HONOUR: But I raised it for due process more than anything, that it’s certainly something alive in my mind.
[Counsel for the father]: Indeed. Yes.
HIS HONOUR: So I’m struggling to come to terms with how we reconcile the evidence with that position in terms of translating it into an outcome that can actually operate, in terms of reasonable practicality, if nothing else.
[Counsel for the father]: Indeed. Indeed.
HIS HONOUR: Very well. Sorry, I will stop talking, [counsel for the appellant]. This is your turn.
[Counsel for the father]: Not at all, your Honour. It was a matter that troubled [counsel for the respondent] and myself but we both have instructions which have now been confirmed. We are not at issue in relation to that.
HIS HONOUR: Very well.
[Counsel for the father]: But it’s clearly a matter that sits with your Honour. I don’t know that I can take it any further than that now.
HIS HONOUR: No, and I’m very appreciative for what you’ve raised.
(Transcript, 30 August 2012, pp 363-364)
When counsel for the mother commenced his closing addresses, he said:
[Counsel for the mother]: Your Honour, in relation to my submissions, I’m instructed not to make any submissions in relation to the issue of equal shared parental responsibility as sought by my client, noting however that your Honour has quite properly with respect ventilated and raised from the bench possibilities other than that which is sought in the application. Secondly, your Honour, my client certainly is of the view and it’s part of my instructions of course that the children should, after the conclusion of these proceedings, live together in either household as adjudged by your Honour. That then, your Honour, devolves to submissions in relation to live-with arrangements and by reference to section 60CC I shall address your Honour in relation to that particular issue.
(Transcript, 30 August 2012, p 376)
The gravamen of the submissions made by counsel for the father about the exchanges set out above is that although the primary judge expressed doubts that an order for equal shared parental responsibility was workable, he did no more than say he would continue to ponder the issue. The point being, that nowhere during those exchanges did the primary judge indicate that an order for sole parental responsibility in favour of the parent with whom the children would live was under active consideration.
We do not agree. It can be seen from the exchanges that the primary judge explained why he was concerned that an order for equal shared parental responsibility would not operate in the best interests of the children.
His Honour then addressed what would follow if he was satisfied the presumption of equal shared parental responsibility had been rebutted. Reference was made to s 61C and the possibility of there being no order in relation to parental responsibility. Thus, as his Honour explained, each of the parties would have parental responsibility for the children, albeit not constrained by the obligations to make decisions jointly and to consult.
With the difficulties which would be created by that scenario identified, and acknowledged by counsel for the father, only one possibility remained. Namely, an order for sole parental responsibility. In circumstances where the parties were each represented by counsel, his Honour provided a clear and unrestricted invitation for submissions concerning parental responsibility and with all but one option excluded during exchanges, it is clear that his Honour, albeit inferentially, invited submissions concerning parental responsibility reposed solely in one parent. We do not accept that in order to afford procedural fairness to the father, it was necessary for his Honour to specifically state that it followed the only option which remained was an order for parental responsibility solely in favour of the parent with whom the children would primarily reside.
We turn now to that aspect of ground 3 concerning the adequacy of the evidence upon which the primary judge relied to make the sole parental responsibility order. This challenge has an obvious nexus to ground 1 and the basis upon which his Honour was satisfied the presumption of equal shared parental responsibility had been rebutted. In our view, his Honour’s findings at [380]-[385] which have already been set out and in the interests of brevity, we will not repeat, provides ample justification for his decision to make the order that the mother has sole parental responsibility.
Ground 3 is not made out.
Grounds 4-6 – the children’s time with the father
By these grounds, the father challenges his Honour’s orders concerning the amount of time the children would spend with him. The focus of ground 4 is on the adequacy of his Honour’s reasons and by ground 6 it is argued that the orders are manifestly unjust.
It will be recalled and stated broadly, his Honour ordered that the children spend time with the father each alternate weekend during school term from after school Friday until the commencement of school Monday. During school holidays, the parties’ son would spend half with each parent with a block period put in place for their daughter which would culminate in an equal division of her time once she commenced primary school.
The focus of this challenge was on the amount of time the children would have with the father during school term. In the event it was ordered the children live primarily with the mother, it was her proposal the children spend time with the father on the first, second and third weekends in each month during term from after school Friday until the commencement of school Monday. She also floated the possibility the children spend time with the father on Wednesday from after school until 6.00 pm.
On the other hand, if the father obtained an order that the children live primarily with him, he sought orders that they spend time with the mother each alternate weekend from after school Friday until the commencement of school Monday and half school holidays. Both parties agreed that provision should be made (and it was) for the children to spend time with the other on special occasions.
However, there was no application by the father, nor indeed any proposal, for orders concerning the amount of time the children would spend with him if it was ordered they primarily live with the mother. Nor did he consent to orders along the lines of those which the mother proposed or identify parts which he thought were or would be appropriate. It is apparent that the primary judge adopted the same approach (but applied to his benefit) which the father advanced towards the children’s time with the mother. In so doing, his Honour chose between two reasonably similar proposals and it is thus important we do not embark on an overly critical analysis of his reasons; Bolitho & Cohen (2005) FLC 93-224.
It is equally relevant that there is no challenge to the primary judge’s determination the children should primarily live with the mother or those findings which emphasise the importance of having their living arrangements promote stability and the frequency of changeovers being minimised. That said, we also accept that his Honour’s findings that the parties do not live “very far apart in the overall context” (at [377]) and the children enjoyed excellent relationships with each of their parents, are factors which could weigh in favour of them having longer periods with the father during school term than was ordered. His Honour was cognisant of these matters and in reasons which demonstrate he understood the salient facts and which are replete with references to any orders being in the best interests of the children, we are not persuaded his Honour misapplied the relevant principles.
However, there is another reason why these challenges must fail. Namely the absence of proposals by the father concerning his time with the children. This is because a party is generally bound by the conduct of his or her case. The significance of this on appeal is that it is only in the most exceptional circumstances that a party will be permitted to raise a new argument (particularly in relation to factual matters which are contentious) which was not advanced in the court below (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1; Water Board v Moustakas (1988) 180 CLR 491). It would be inconsistent with those authorities for the father to be permitted to advance arguments of this type on appeal when he had the opportunity to do so in the court below, but did not.
It follows that grounds 4 and 6 will not succeed.
Conclusion
The father has failed to establish error by the primary judge and the appeal will be dismissed.
The mother appeared unrepresented and in circumstances where she did not incur legal expenses, there was no application by her for costs.
I certify that the preceding ninety one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 8 December 2014.
Associate:
Date: 8 December 2014
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