Melton and Maddison
[2014] FamCAFC 136
FAMILY COURT OF AUSTRALIA
| MELTON & MADDISON | [2014] FamCAFC 136 |
FAMILY LAW – APPEAL – CHILDREN – Whether the trial judge provided inadequate reasons for imposing a restraint on the child spending time with the father’s family members – Where the trial judge referred to ss 60CC(2)(b), and 60CC(3)(m) of the Family Law Act 1975 (Cth) when determining whether to impose the restraint – Where the evidence supporting the imposition of the restraint was uncontradicted – Where the trial judge was asked to consider the father’s living arrangements when making orders for the child to spend time with the father – Where the trial judge was entitled to frame orders for the future arrangements for the child, having regard to past conduct of the appellant father and his family – Where the trial judge’s discretion did not miscarry – Appeal dismissed.
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Melton |
| RESPONDENT: | Ms Maddison |
| FILE NUMBER: | CAC | 332 | of | 2012 |
| APPEAL NUMBER: | EA | 61 | of | 2013 |
| DATE DELIVERED: | 30 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Bryant CJ, Finn & Strickland JJ |
| HEARING DATE: | 15 October 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 April 2013 |
| LOWER COURT MNC: | [2013] FCCA 71 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Silk |
| SOLICITOR FOR THE APPELLANT: | Jeffrey Silk Barrister and Solicitor |
| COUNSEL FOR THE RESPONDENT: | Ms Curran |
| SOLICITOR FOR THE RESPONDENT: | ACT Legal Aid |
Orders
The appeal be dismissed.
There be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Melton & Maddison 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 CANBERRA |
Appeal Number: EA 61 of 2013
File Number: CAC 332 of 2012
| Mr Melton |
Appellant
And
| Ms Maddison |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an appeal by the father, Mr Melton, against certain of the parenting orders made by Judge Brewster of the Federal Circuit Court on 19 April 2013 in relation to the child of the father’s relationship with Ms Maddison, the mother, who is the respondent to the appeal.
The father was 26 at the time of his Honour’s orders and the mother was 25. They had been in a relationship in 2009 but had never lived together. The child was born in June 2010.
The father apparently saw something of the child after her birth, but those arrangements ceased when there were domestic violence proceedings between the parties.
On 5 March 2012 the father filed an application in the Federal Magistrates Court (as the Federal Circuit Court then was) in which he sought orders for the time which he could spend with the child.
On 30 April 2012 Brewster FM (as his Honour then was) made orders by consent for the child to spend two to four hours on a couple of days each week with the father, with such time progressing to overnight after six months.
There was then a one day hearing before his Honour on 12 March 2013. It emerges both from his Honour’s reasons for judgment following that hearing, which were delivered on 19 April 2013, and also from discussions at the hearing before us that before his Honour:
·there was no dispute that the child would live with the mother and his Honour ordered accordingly in Order 2 of his orders of 19 April 2013; there is no issue about that order on this appeal;
·the mother sought sole parental responsibility in relation to the child, but his Honour ordered that the parties have equal shared parental responsibility in Order 1 of his orders of 19 April 2013; again, there is no dispute about that order on this appeal;
·in relation to the time which the father would spend with the child, the mother proposed that :
- until 18 June 2014 the time be from 4 pm to 6 pm on Wednesday of one week and then in the following week 4 pm to 6 pm on Wednesday and 9 am to 6 pm on Saturday and Sunday;
- from 19 June 2014 to 20 June 2015 the time be from 4 pm to 6 pm each Wednesday and the alternate weekend contact be extended to overnight contact from 9 am Saturday to 6 pm Sunday;
- from 20 June 2015 onwards the alternate weekend contact would commence at 6 pm Friday;
as his Honour recorded in [9] of his reasons, the father “substantially” consented to these arrangements proposed by the mother, but there was dispute as to whether the overnight time should be conditional upon the father obtaining his own accommodation; Orders 3, 4 and 5 of his Honour’s orders of 19 April 2013 provided for the child to spend time with the father according to the mother’s three-stage proposal; however, under Orders 4 and 5 there could only be overnight time if
(as sought by the mother) the father was not living in a shared house and in accommodation where the child had her own room; Orders 4 and 5 are the subject of the appeal at least in so far as they impose a requirement on the father not to live in a shared house (the requirement for the child to have her own room having, we were told at the hearing of the appeal, been agreed at trial);
·
as to Christmas Day, the mother sought that the child should spend time with the father only from 9 am to 1 pm whereas the father had sought that in 2013 he have the child from 10 am to 4 pm, in 2014 from Christmas Eve to 11 am on Christmas Day, with this alternate-year pattern being repeated in the future; by Order 7 of his orders of 19 April 2013 his Honour implemented the mother’s proposal for the Christmas Day time to be
9 am to 1 pm each year; Order 7 is also the subject of the father’s appeal.
· The mother also sought an order that the father be restrained “from leaving the child in the sole care of any of his family members”; such an order was opposed by the father; however, his Honour made that order as Order 12 of his orders of 19 April 2013; that order is also the subject of this appeal.
Thus, as counsel for the father confirmed at the commencement of the hearing of the appeal, the following three issues arose on the appeal:
·whether the father should be restrained from leaving the child in the sole company of any of his family members;
·whether there should be overnight contact if the father was in shared accommodation; and
·whether the child should stay with the father overnight on Christmas Eve beginning in 2014 and in each alternate year thereafter.
We mention at this point that there was also a notation (Notation numbered 2) to his Honour’s orders of 19 April 2013 which provided: “[t]hat the parties agree to review these Orders when [the child] turns seven.”
The father’s Notice of Appeal purported to appeal this notation (in addition to the orders previously referred to). However, counsel for the father informed us at an early stage in the hearing of the appeal, that he was not pursuing the ground of appeal (Ground 9) directed to that notation. That was the correct approach by counsel given that only an order and not a notation can be appealed.
The restraint upon the father “leaving the child in the sole care of any of his family members”
This restraint was the subject of the first four of the eight grounds of appeal pursued by the father and was the complaint first addressed before us by his counsel.
In summary, and in addition to a non-specific claim of error in the exercise of discretion in making the restraint (Ground 2), the relevant grounds of appeal asserted that his Honour erred:
·in not adequately explaining “the need for such restraint … in relation to those family members mentioned” (Ground 1);
·in “that the restraint was too wide and absolute in [its] terms.”
(Ground 3);·“by ignoring the evidence of the father about his family members and the oral evidence of the mother whereby she could not articulate her concerns at least about the paternal grandfather.” (Ground 4).
Given that the father’s challenge to the restraint involves a challenge to the adequacy of his Honour’s reasons, it is necessary to consider the reasons which he gave for the restraint.
In his reasons for judgment after recording the applications which were before him, his Honour explained the principles contained in Part VII of the
Family Law Act 1975(Cth) (“the Act”) which govern the determination of parenting proceedings. He referred in particular to s 60CC(2)(b) which, as he said (at [14]), required him “to consider the need to protect the child from physical and psychological harm or being subjected to abuse, neglect or family violence.” His Honour then observed: “[t]his is relevant in relation to the father’s mother and his brother [D] and I will discuss this later in the judgment.”
His Honour also referred to s 60CC(3)(m) which required him “to consider any other fact or circumstance that [he thought] relevant”, and he then explained
(at [16]) that an important matter which had impacted on his decision “involves a series of Facebook exchanges that took place in July 2011.”
His Honour then set out (at [16] to [30] of his reasons) a series of Facebook exchanges, which counsel for the father conceded before us to be “very offensive”, involving the father, his friends and associates, the father’s mother and Ms S M. His Honour considered that the exchanges justified the mother’s reservations about the father’s mother (at [17] of his reasons).
His Honour also set out the affidavit evidence from Ms U, who is the former partner of the father’s brother, D, concerning an incident in April 2011 between Ms U and the father’s mother in which the father’s mother hit Ms U. His Honour observed (at [32]) that this further evidence caused him “additional concern about the father’s mother”.
His Honour then reached his conclusion regarding the need for the restraint on the child being left in the sole care of any members of the father’s family as sought by the mother:
33.Ms [U] also alleges that [D] had been physically violent towards her in front of the children. Ms [U] also says that she has observed the father’s father smoking inside his house while the children were in the house.
34.The father’s mother’s conduct in applauding the entries of the father’s friends causes me significant concern about her. And there is the uncontradicted allegation of violent behaviour by her. There is also the issue of violence said to have occurred between the father’s brother [D] and Ms [U] which was not contradicted. Also another brother, [A], has spent time in prison for sexual offences. And there is the issue of smoking in the presence of children.
35.None of the members of the father’s family filed an affidavit.
Ms [U] was not required for cross-examination.36.For these reasons I make an order that [the child] not be left alone with any of the father’s relatives.
The precise wording of the father’s first ground of appeal is:
His Honour erred in ordering a restraint upon the father leaving the child in sole care of any member of the father’s family as the need for such restraint was not adequately explained in relation to those family members mentioned.
In light of the submissions of counsel for the father, the words “in relation to those family members mentioned” can be understood as referring to those members of the father’s family who were referred to in his Honour’s reasons, being his mother, father and two of his brothers, A and D. The principal submission made in support of this ground was that it was not sufficient for his Honour just to state the fact of the conduct of those particular members of the father’s family, but it was necessary for him to explain how such conduct posed a risk to the child.
That submission may, as a general proposition, well have some substance. However, in our opinion, it was sufficient in the circumstances of this case for his Honour simply to state the evidence concerning the shortcomings of each of the persons in question as providing the reasons for the restraint. This was particularly so given that such evidence was uncontradicted, and also given that none of the persons in question had chosen to give any evidence in the proceedings notwithstanding that in the mother’s response, which was filed some eleven months prior to the trial, she had sought the restraint in the terms eventually granted. Put simply, in the circumstances of this case the uncontradicted evidence about the past behaviour of the persons in question would speak for itself in establishing the possibility of some risk to the child if she was left alone with any one of those persons.
A further submission made in support of this first ground of appeal focused on the position of the father’s father (as also did the fourth ground of appeal, although no submissions written or oral appeared to be addressed specifically to that ground), and was to the effect that the father’s father should not have been the subject of the restraint because the mother had conceded at trial that she had a reasonably good relationship with, and no specific or recent concerns about the father’s father. It was also submitted that the only concern which his Honour apparently had about the father’s father was that it was alleged that he had smoked inside his house while children were in the house.
In a somewhat similar vein, it was also submitted that there had been no evidence at all about the father’s third brother, J, and yet he also was subject to the restraint.
Paragraph [34] of his Honour’s reasons can well be read as suggesting that, in his Honour’s view, the environment of the father’s family was certainly one not suitable for a young child, and his Honour’s concerns in this regard appear to have been confirmed by the fact that, as he then stated in [35], none of the members of the father’s family had filed an affidavit; in other words, none of them had sought to remedy the unfavourable impressions that other evidence would create about them.
It would, of course, have been open to his Honour to have limited the restraint to the father’s mother and to the two brothers A and D, but an approach which singled out only certain members of the family might well have been undesirable.
We also observe in this context that although in [36] his Honour foreshadowed the restraint being imposed on “any of the father’s relatives”, what might be said to be the narrower expression “family members” was the term actually used in the order imposing the restraint.
A further submission made in challenging the restraint (principally, it would seem, in support of Ground 3) was the impracticality, or even impossibility, of the father’s complying with the restraint, in that there may well be emergency situations when the father might have to leave the child with a member of his family. But as we canvassed with the counsel for the father, if the father had to do this in a true emergency, then he would presumably have a reasonable excuse for a breach of the order. For our part, we are prepared to assume that his Honour can be taken to have weighed the possible practical inconveniences of the restraint against the risks to the child of what would be effectively unsupervised contact with members of the father’s family, who had chosen not to deny, or explain past inappropriate behaviour on their part.
Overall nothing put to us in support of the grounds challenging his Honour’s exercise of discretion in making the restraining order has persuaded us that his Honour’s discretion miscarried in a way which would justify our interference with that order, and therefore those grounds have not been established.
The need for the father to have his own accommodation
The father’s fifth, sixth and seventh grounds of appeal are directed to the requirement in Orders 4 and 5 of his Honour’s orders that the child could only spend overnight time with the father if he had his own accommodation (in the sense that he was not living in a shared house). Those grounds assert that his Honour erred:
· in relation to the overnight time commencement with the father being conditional on he not sharing accommodation with anyone, by placing too much weight on old evidence of facebook entries and concluding that the father could not be trusted to find or develop more appropriate housemates in the future. (Ground 5)
· by inferring that there must have been some risk to the child if the father shared accommodation with other persons from June 2014 that outweighed the overnight time as ordered in orders 4 & 5. (Ground 6)
· in ignoring the father’s preparedness to provide details of the persons that he may share a house and failing to give any weight to the father’s ability to afford his own accommodation. (Ground 7)
His Honour’s brief reasons for imposing this requirement were as follows:
37.I propose to accede to the mother’s application that overnight contact be conditional upon the father having his own residence. Put simply I do not trust his choice of friends. This is apparent from the Facebook exchange. He says that none of the people he currently lives with participated in that exchange. But that is not the point. He is plainly happy to have extremely undesirable people as friends or acquaintances.
The principal submissions made in support of these grounds were to the effect that taken to its extreme, the requirement would prevent the father forming a household with a new partner (appellant’s written submissions [33]); and that his Honour should have accepted the father’s proposal that he would provide the mother “with such reasonable information about his housemates from time to time as he could provide” and thus enable her to take the matter to court if she was concerned (appellant’s written submissions [34] and [38]).
As we discussed with counsel for the father at the hearing of the appeal, if the father wanted to establish a household with a new partner, or indeed with a new and appropriate friend or group of friends, that would be a change of circumstance on the basis of which the matter could be brought back to court if the parties were not able to agree to a variation of his Honour’s orders.
As to the father’s proposal that instead of the requirement that he have his own accommodation, there should have been a requirement that he provide information to the mother about the persons with whom he was sharing his accommodation, that proposal has the disadvantage, which again was canvassed with counsel for the father at the hearing of the appeal, that it would place an onus on the mother to come back to court if she was concerned about the persons with whom the father was living.
Again in relation to this matter of the father’s accommodation, as was the case in relation to the restraint in relation to members of the father’s family, his Honour was entitled to, indeed had no other option but to, frame his orders for secure future arrangements for the child on this basis of what had occurred in the past.
Accordingly Grounds 5, 6 and 7 do not have merit.
The time at Christmas
His Honour’s reasons for rejecting the father’s application for the child to stay with him on Christmas Eve night in each alternate year and from 10am to 4pm on Christmas day in the other year, and instead accepting the mother’s proposal that the child should only be with the father from 9am to 1pm on Christmas day each year, were as follows:
38.I have also made the orders the mother seeks in relation to Christmas Day. Normally I would make orders more or less along the lines of those sought by the father. However I do not trust the father’s family. It is notorious that in some families when they gather on Christmas Day and when they consume alcohol tensions can come to the surface and physical altercations occur. I told the parties’ lawyers during an exchange of an incident some years ago when I took my injured child to the Casualty Department of Canberra Hospital on the morning of Christmas Day. The staff explained to me that the mornings were a busy time treating children who had been injured playing with their presents. This was the situation in my case. They said that there would then be a lull for some hours before they became busy treating people injured in family fights. Whilst in this case I have no evidence whatsoever that such things have occurred in the father’s family the undesirable aspects of that family that have emerged in the evidence have led me to believe that there is an unacceptable risk that [the child] could be exposed to violence on Christmas Day if the orders sought by the father were made.
The ground of appeal (Ground 8) directed to this issue is that:
8. His Honour erred by taking into account his own personal experience in relation to Christmas Day and hospital attendances without having any evidence to decide that the father and or his family would pose any risk to the child by spending on Christmas Eve with the father.
Only brief submissions were put in support of this ground, and were to the effect that there was no evidence of the matters mentioned by his Honour in [38] of his reasons, particularly that there would be a greater risk to the child with the father’s family on Christmas Eve and Day than any other day.
While it is perhaps unfortunate that his Honour referred to his own experience at a hospital on one particular Christmas Day, he did expressly say that he had no evidence “whatsoever” that such things (presumably, as he had been told about at the hospital) had occurred in the father’s family.
In our opinion, it was not open to his Honour to say that “[i]t is notorious that in some families when they gather on Christmas Day and when they consume alcohol tensions can come to the surface and physical altercations occur”. However, having said that, his Honour’s later reasoning that “the undesirable aspects of [the father’s family] that have emerged” had led him “to believe that there is an unacceptable risk that [the child] could be exposed to violence on Christmas Day if the orders sought by the father were made” cannot be challenged.
Accordingly, and bearing in mind that the precise details of the time that a child is to spend with a parent under a court order, must be a matter very much within the discretion of the Judge making the order, we would not be disposed to interfere with his Honour’s orders in relation to Christmas Day. Therefore Ground 8 has not been established.
Conclusion in relation to the appeal and costs
As none of the grounds of appeal have succeeded the appeal must be dismissed.
Having regard to the content of the submissions made at the conclusion of the hearing of the appeal, we consider that the circumstances do not justify an order for costs.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 30 July 2014.
Associate:
Date: 30 July 2014
0
0