Mink & Lamb
[2008] FamCAFC 78
•6 June 2008
FAMILY COURT OF AUSTRALIA
| MINK & LAMB | [2008] FamCAFC 78 |
| FAMILY LAW – APPEAL – Parenting – With whom a child spends time – Father sought additional time with children amounting to four nights per fortnight – Father appealed on the basis that the reasons provided were inadequate and the chain of reasoning and weight attributed to s60CC considerations was incapable of discernment – Appeal dismissed FAMILY LAW - COSTS – Appellant to pay respondents costs |
| Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| Aktibolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411 |
| APPELLANT: | MR MINK |
| RESPONDENT: | MS LAMB |
| FILE NUMBER: | NCF | 570 | of | 2003 |
| APPEAL NUMBER: | NA | 46 | of | 2007 |
| DATE DELIVERED: | 06 June 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, May & Carmody JJ |
| HEARING DATE: | 9 November 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 June 2007 |
| LOWER COURT MNC: | [2007] FamCA 715 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Laurie |
| SOLICITOR FOR THE APPELLANT: | Piper Craig Henry Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Priestley |
| SOLICITOR FOR THE RESPONDENT: | Susan Green Solicitors |
Orders
That the appeal be dismissed.
That the appellant pay the respondent’s costs of and incidental to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Mink & Lamb is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 46 of 2007
File Number: NCF 570 of 2003
| MR MINK |
Appellant
And
| MS LAMB |
Respondent
REASONS FOR JUDGMENT
WARNICK J
I have read the reasons for judgment of May and Carmody JJ. I agree with the result and all orders proposed and the essential conclusion that, in the particular circumstances in which the case presented to his Honour, set out in their Honour's judgment, Bell J's reasons are adequate. I agree also that there is no merit in the other grounds. I agree with the reason for the costs order.
may & carmody jj
Introduction
The question posed by this appeal, is whether the reasons provided by the trial judge, Bell J were sufficient. He refused the father’s application that the children spend four nights a fortnight rather than one. The order, in effect provided that the father spend alternate Saturday nights with his 11-year-old daughter B and son P aged 10.
On 25 August 2004 final parenting orders were made by Moore J for the children to spend time with the father every second weekend from Saturday morning to Sunday afternoon in an area in the Northern Rivers plus half school holidays and on special occasions.
The father first filed an application to vary those orders in 2005 seeking to commence fortnightly weekend contact on Friday night instead of the Saturday morning and add an overnight on the alternate Wednesday in line with the terms of earlier consent orders in 2000. This would have resulted in four nights per fortnight instead of one. The application with which his Honour dealt was filed on 13 June 2007 and asked for a range of orders dependent on where the father was living.
Orders were made by Bell J at Coffs Harbour on 29 June 2007 as follows:
1.The mother have sole parental responsibility for the children B […] born […] December 1995 and P […] born […] May 1997.
2.The Order of 25 August 2004 be varied to provide that the father communicate by telephone with the children from 6.30pm until 7.00pm on Tuesday of each week.
3.The mother is to facilitate any attempt on the part of the children to communicate with their father by telephone.
4.For the purpose of the time the children spend with the father in accordance with the Order of 25 August 2004, the father is to be responsible for collecting the children from and returning the children to the mother’s residence.
The Notice of Appeal raises 11 grounds but these can be distilled to 3. The first is a compendious complaint that for no proper reason and without giving the necessary reasons the learned trial judge improperly departed from the requirements of the Family Law Act 1975 (Cth) (‘the Act’). It is suggested that he failed to apply the presumption in s 61DA(1) or comply with the mandatory provisions of s 65DAA of the Act. Following that, it is submitted his Honour failed to consider s 65DAA and the matters contained in s 60CC. (Grounds 1 – 6 and 9).
The second is that the reasons for judgment are inadequate (Ground 11). The third is that his Honour must have failed to consider the evidence of an expert, Dr P. (Ground 10) It was also argued that the judgment appears to be based on the father bearing an onus to demonstrate why earlier orders should not continue rather than considering the children’s best interests (Ground 7).
The appellant’s contention is that having wrongly refused to apply the presumption of equal shared parental responsibility his Honour did not, as he should have, then gone on to consider whether the children should spend equal or substantial and significant time with both parents as he was bound to do by s65DAA(1) and (2) of the Act. It is argued that if he had done so he would have had regard to the best interests factors in s 60CC(2)-(4) and the considerations relating to reasonable practicability referred to in s 65DAA(5) and may well have reached a different conclusion and made a more generous parenting time order.
The validity of this argument largely hinges on whether his Honour was wrong in law in not applying the presumption and all that follows.
Both the reasoning and the result have to be considered in light of the parties’ competing proposals and in the overall context of “all the circumstances”.
It is important we remind ourselves of our role and function in reviewing a discretionary judgment based on factual conclusions on a relatively narrow issue. Particular attention in this case needs to be given to the nature of the issue to be decided, one night a fortnight or four nights a fortnight. Secondly, the fact that the father’s case was bereft of detail raising any particular matters, such as factors relevant under s60CC, which required determination and, thirdly that, on the approach taken by the Judge, namely finding that the presumption of equal shared responsibility was rebutted, it was not necessary to move through the steps that would have been required had the presumption been given effect to. Our capacity to allow an appeal and make different orders or order a re-hearing in such circumstances are limited.
The proposals of the parties
It is important to observe that the father asked that there be an order that the children live with the mother with ‘joint responsibility’ for long term decision making and ‘sole responsibility’ for day to day decisions for each of them whilst the child was in their respective care.
The mother responded by asking for time spent with the father to be reduced to one fixed and non-negotiable weekend a term but to retain the same block holiday contact. The mother also asked for sole responsibility.
The orders made by Bell J effectively continued the orders of Moore J. These orders are that the children spend time with the father each alternate weekend from the Saturday morning to the Sunday afternoon. Thus, there currently is one night overnight per fortnight.
As explained by the High Court in U v U (2002) 211 CLR 238 the court is not limited to merely choosing between the proposals of the parties. It must devise, if necessary, its own set of arrangements by reference to the matters stated in s60CC and elsewhere in the Act.
The trial was conducted over two days. Both parties were legally represented. The orders appealed against were made on 29 June 2007. On 13 August, 2007 the order was amended by his Honour adding two further paragraphs restraining the parents from filing further applications for parenting orders without leave. The grounds of appeal did not address these orders.
On the mother’s case as presented at the trial, spending any more time with the father than the orders of August 2004 provided would do the children more harm than good because of the father’s controlling and narcissistic personality. The mother was very concerned about what she thought were odd behaviours including the purchase by the father of a little black dress for B, sending her a card, his acquisition of a pack of school photographs of her, the two of them tasting marshmallows together on the beach to the exclusion of her brother, and instances of excessive kissing and cuddling. The mother asked that the time be reduced.
Reasons of the trial judge
We will deal, at least in part with ground 11 at the outset that his Honour erred in failing to give adequate reasons for his decision. This will allow us to set out parts of the judgment and will illuminate the other grounds. We will then deal with the grounds relating to the provision of equal shared parental responsibility, equal time and substantial and significant time. In relation to the question of reasons we think we can do no better than refer first to the collection of statements in relation to adequacy of reasons as summarised in Crispen & Crispen [2008] FamCAFC 14:
11.Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274:
… A fact is found in a particular case if the judge is satisfied that it is so. … The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective considerations. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a judge should or can set forth the reasoning process he has followed from one fact to another.
The Full Court of this Court said in A v J (1995) FLC 92-619 at 82,232:
It is important to guard against too zealous an application of the requirement to give reasons, particularly in circumstances where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to a finding of a material or an ultimate fact: see Soulemezis per Mahoney JA.
In Strbak v Newton (NSWCA,18 July 1989, unreported) Samuels JA (with Gleeson CJ and Priestly JA agreeing) said:
What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.
In the present case, the reasons are certainly succinct; but that is often to be regarded as a judicial virtue…
Giles JA said in Athens & Anor v Randwick City Council [2002] NSWCA 83:
The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning: indeed, in the decision-making process there are often judgmental steps which can only be stated without elaboration…
In Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447 at [62] Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The Full Court of this Court said in Bennett and Bennett (1991) FLC 92-191 at 78, 267:
…In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached. (emphasis added).
In this matter his Honour at the outset discussed the nature of the father’s application and dealt with the argument that the father should fail because he had not demonstrated a change in circumstances, described by his Honour as a Rice & Asplund (1979) FLC 90-725 problem.
We will set out some of his Honour’s judgment in that respect as it connects with the argument contained in ground seven of the appeal, that his Honour erred in that he based his order on the father’s failure to provide a basis for changing the existing orders rather than applying the statutory prescribed method of determining what order was in the best interests of the children. His Honour referred to the father’s application as a variation which was a correct description of the application as filed by him, amended on various occasions as the document itself reveals. In relation to the father’s application his Honour remarked:
7.The material which he has put before the Court in relation to the variation of this order of August 2004 is, as far as I am concerned, pitiful. It puts little or no material before the Court which would enable me to come to the conclusion that the order should be varied. …
Rejecting the submission made by counsel for the mother that the father’s application should not be heard his Honour said:
11.…I consider that there are two reasons why I should revisit. One is because there has been three years almost that has evaporated since the time of the main order, [B] and [P] were three years younger. And, secondly - in fact there has been a vast change in the residence area of the father. He now is living some comparatively short distance from where the children are residing at [M], albeit he is some considerable distance, some 40 odd minutes, I think it is, from his present occupation which is at [T] as [an employee at a local school]. …
12.I consider that the principles as enunciated in Rice v Asplund do apply that in so far as the applicant father is concerned, he has overcome the hurdle. … Consequently I consider that the matter is at large.
His Honour next referred to the amendments to the children’s provisions of the Act and said:
13.… I have to first of all consider the presumption which is set out in that Act and that is for shared parental responsibility. It is faintly touched upon by Laurie of counsel for the applicant father, that in fact there should be a shared parenting.
His Honour then moved to the question of shared parental responsibility. He dealt with that matter in one paragraph which is thus critical to the question of the adequacy of his reasons and we will therefore set it out in full later. His Honour concluded that the presumption was rebutted, because it was not in the best interests of the children to apply it.
His Honour then moved to the question of the time the children should spend with the parents saying:
15.The question of spending time with is an entirely different matter. I have read the Act on numerous occasions as amended and the various matters that I have to consider are set out therein. They have been touched upon, quite properly, by Priestley of counsel in his written submissions, the larger of the two, not the joint case summary, and I commend him for the amount of work that he has done in it. The concerns which the mother has are particularised at paragraph 19.6 and in particular 19.7.
His Honour then dealt with the issue raised by the mother that the father either had sexually abused his daughter or that his behaviour was likely to lead to this or at the very least was inappropriate. In dealing with the allegation his Honour referred to the mother’s evidence, that of two experts, a family consultant and Dr P, a psychiatrist, quoting some of their reports. As to the father’s evidence, his Honour said in paragraph 20 after referring to the critical matters contained in reports from the psychiatrist:
20.…The father has had that report for a considerable period and has read it. The thing that concerns me particularly about his evidence is not only is there not any explanation in his affidavit of June of this year in relation to [B], but neither is there any mention that in fact this overtly affectionate behaviour towards himself has been modified as he said in his evidence. In his evidence in the Court he said that he no longer is as affectionate towards [B]. He no longer cuddles her, as it is alleged for excessive periods up to five minutes and kisses her for that length of time. He now gives her a cuddle at the commencement of his periods of spending time with and at the cessation thereof. This was not mentioned at all.
Further in relation to the father’s evidence the judge said:
21.The only improvement he says is in relation to another complaint of the mother and that is the telephone conversations which she says put enormous and inordinate pressure upon not only [B], but upon [P]. He mentions the fact that he has now limited such telephone – I would have thought that the telephone complaint was minimal in relation to the complaint which I clearly am able to infer from the facts could be classed as grooming of his daughter, and that of itself is something which is terrifying to any mother. It would be terrifying, I would have thought, to any parent that one of the parents is grooming a child of the opposite sex with a view to sexual behaviour of an inappropriate nature taking place. I am not for one moment finding that, but I make that quite clear. Dr [P] also says that. He says that there is no evidence of abuse but the concern is that it is either; (1) grooming, or (2) it is totally inappropriate behaviour for [B].
Clearly addressing the question of the children’s best interests and the provisions of s 60CC his Honour said in paragraph 24:
24.What evidence has he put before me that it is in the interests of the children? I emphasise that, notwithstanding the political masters have set out a long list of subparagraphs which looks more like the Income Tax Act than anything else in relation to the matters we have to consider, I consider that the most important thing in any case in relation to children is to decide what is in the best interest. What does he put forward that it is going to advance the children by having longer periods with him? Nothing that I can see. Nothing of any persuasiveness, nothing germane to his argument.
Further, in relation to the matters to be decided in relation to that provision and giving attention to evidence about the other child P the judge said in paragraph 26:
26.The marshmellow incident. The father takes the daughter off to the beach to have a barbeque and toast marshmellows. Wonderful. I think it is a lovely idea. [P] was not invited. He said, as I interpret, "This is a bonding thing between myself and my daughter." What about [P]? Dr [P] was embarrassed that [P] seems to be ignored. How is an increase in time going to advance his welfare if in fact he is feeling out of it? It would make it worse, it would magnify. I am not convinced in any way whatsoever that the amount of time that the father spends with the children should be increased. The next question is whether it should be decreased.
As to the mother’s argument that the time which the father spends with the children be reduced his Honour commented:
29.…One of the rights of the children is the right to get to know their parents, and I consider that if I was persuaded by the mother to lessen the time within which the children spend time with their father, that that would not be advancing their welfare, but there is another point which the mother has brought up and that is the continual - perhaps it is not a word that has been used by anybody else, but I will use it - sniping by the father of her. This is set out in the chronology put forward by, once again, Priestley. He has, on numerous occasions, sought variations of the order.
It seems that this prompted his Honour to make the order restraining both parties from being able to further apply as his Honour said in paragraph 30:
30.On one of the occasions he sought some 10 days subsequent to the final order being made in 2004. There is evidence before me that I am quite satisfied that he has been, I use the word "sniping", in endeavours to vary these various orders. In fact, in his final affidavit he says that the reason why he brought this application for variation of the orders was that he could spend time with [P], I think it was, on his birthday. I am not satisfied that, as I have said, he should have any further time. I am concerned about the so-called, as I use the word advisedly, "sniping", and I will be making an order that in fact no order for any relief under the Family Law Act by either of the parties will be made in the first instance other than ex parte before me. Do you understand that, Ms Green, Ms Filewood? And as a result thereof I will consider the matter and if, in fact, the material put before me convinces me on a prima facie basis that the application should be proceeded with, I will then call upon the respondent to such application to file material.
Ultimately in paragraph 31 his Honour said:
31.I do not think that the children's welfare would be advanced by lessening the period of time they spend with their father. In other words I am in the position where I would not make any other order other than the order which is at present is in existence save in relation to the telephone calls. These telephone calls I think are being very difficult for the children, in particular, [B]. The father has referred to this in his e-mail, exhibit 6 of 10 September and, consequently, I consider that the telephone conversation should be limited to once per week. …
And then directly dealing with the evidence of Dr P at paragraph 32 and ultimately in paragraph 33.
32.I must touch upon one further thing. Another matter which has arisen which I had overlooked, and I must say I considered very important. Dr [P] was of the opinion there should be no increase. I have found for other reasons there should not be any increase, but he believes there should not be any increase in the time spent by the father with the children unless the children are approached and their wishes are ascertained by way, I assume, of a subsequent family report.
33.There is some evidence before me that the children find it boring to be with their father since some complaint that he takes them only to the bird park. I do not believe that this matter should in fact be adjourned to enable the preparation of a further family report. If in fact at a later stage it is considered by either of the parties that such a report will be of assistance in coming to a conclusion that would advance the welfare of the children, such application can be made and of course it will be made to me in accordance with the order I have already made.
Evidence of experts
The trial judge had the benefit of reports from a Child and Family Mediator, Ms D, and a psychiatrist, Dr P. Ms D, wrote a report dated 13 February 2004. After interviewing the parents and the children she concluded that the father has “many personality problems” including being “obsessive and rigid … extremely narcissistic”.
13.Mr. [Mink] presented in an extremely evasive and self-promoting fashion. He tended to rave and could not be distracted. These scattered accounts of whatever he chose to relay often ended in tears. Mr. [Mink] regards himself as a victim and displays grandiose ideas as well as a sense of entitlement. He is primarily concerned with self and is extremely narcissistic.
Ms D recommended time with the father for half school holidays and one mid-term weekend if the father was living at the Gold Coast.
Dr P, a consultant psychiatrist, observed the interaction between the father and his two children on 9 October 2006 and said in his report:
5.2Whilst observing the interaction between the father and the two children I felt quite uncomfortable in the obvious preference that the father showed towards B. He appeared enamoured by her. His body language was such that he leaned towards he and touched her more frequently than his son. The conversation also tended to focus on B to the extent that I found myself intentionally including P in the conversation.
The doctors observations were that the father “appeared enamoured” of her in “an unhealthy way”. Dr P stated that the unchallenged hugging and kissing episodes and other dubious behaviours described by the mother in her trial affidavit and at interview, were “inappropriate” and should “cease”. The report is dated 30 October 2006.
Dr P agreed with Ms D’s assessment of the father and thought it “… could lead to a high level of conflict” as the children reached their teens. At paragraph 6.9 of the report Dr P said:
6.9I do not consider that access to the father should be further increased.
In his report Dr P found that the children loved and had a meaningful relationship with both parents. He did not recommend any increase in the father’s “access”. Under cross-examination, the doctor expressed the opinion that time with the father could be increased in the children’s best interests given an improvement in the father’s behaviour (Transcript l 20 – 27):
DR [P]: I would have to accept that there is some objective – objective evidence there has been a change in behaviour pattern and in a usual situation I would probably have the chance to speak with the children and look at other information that’s been gathered and if that objective evidence supports that the position, then that would be in keeping with what was said before, that if there be a staged approach and the staged approach was to bring about a change in behaviour, if that – that (indistinct) then fair enough, then perhaps an increase (indistinct) will be considered under those circumstances, but I find (indistinct) some objective evidence.
The trial judge found, in effect, that none of the risk indicators relied on by the mother either alone or in combination led to the conclusion that the father had sexually abused B. But his Honour did say at paragraph 21 (as quoted earlier):
21. …I am not for one moment finding that, but I make that quite clear. Dr [P] also says that. He says that there is no evidence of abuse but the concern is that it is either; (1) grooming, or (2) it is totally inappropriate behaviour for [B].
The evidence of the doctor was (Transcript l 11-13):
DR [P]: …The second thing is even if there is no, like overt sexual contact, the – the type of relationship that you are describing to me is just inappropriate. …
The presumption of equal shared parental responsibility – Grounds 1–3: Adequacy of Reasons
Although the summary of argument on behalf of the father asked for shared responsibility submissions were made as follows (Transcript p209):
HIS HONOUR: You are still prosecuting the shared parenting arrangements? ---That would be my desire, yes, but ---
But you’re prosecuting, you’re seeking an order to that effect? --- That’s what I would desire your Honour
MR LAURIE: I am sorry, your Honour, that is the witness’ preferred option however his formal application is for ultimate [sic] weekends.
The learned trial judge decided in his reasons for judgment not to “enforce” the presumption because the “welfare of the children” did not require it “in all the circumstances” including “not only” the fact that the children have resided with the mother since birth and “the … concerns… expressed in relation to the father’s attitude towards [B]”. We repeat here the key paragraphs:
13.As a result of that of course I feel as though I am now faced with the amendments to the Act which took place last year, I think the 73rd substantial amendment to the Family Law Act in a period of 30 years, and I have to first of all consider the presumption which is set out in that Act and that is for shared parental responsibility. It is faintly touched upon by Laurie of counsel for the applicant father, that in fact there should be a shared parenting.
14.I am more than satisfied in all the circumstances taking into consideration not only the fact that the children have resided with the mother in her care and, shall we say, her established care ever since the day they were born, and the fact that there are concerns, I do not say there is sufficient evidence at this stage, there are concerns expressed in relation to the father's attitude towards [B], that I do not think that the welfare of the children would require me to enforce the presumption which is set out in the Act and which has been included by our political masters. I consequently feel that it is large for me to decide who should parent the children and I make it quite clear, and as I think it in effect was conceded by Laurie, that should I be against him on the presumption that in fact the mother should be the person who has the sole parenting of the children, I so order.
Parenting time – Grounds 4, 5 & 6
In our view the trial Judge did address the s60CC factors that were relevant to the case.
The additional considerations are set out in par 60CC(3). Of those, the most pertinent to this case are: the nature of the father’s relationship with the children and the mother, the likely positive and negative effects of varying the parenting time arrangement, any practical difficulties connected with any changes, the father’s capacity to meet all the relevant needs (including emotional) of the children, demonstrated attitude to the children and parental responsibility, the father’s post separation record of participation and spending time with the children.
His Honour was well aware of the contents of the statutory checklist in s 60CC of the Act when considering the amount of parenting time that is in the best interests of the subject children. Notably, his Honour expressly acknowledged the 2006 amendments and his obligation to “consider the presumption … set out in that Act … for shared parental responsibility” at paragraph 13 of his reasons and later at paragraph 15.
It is clear from an objective contextual reading of the record that the learned trial judge chose not to apply the presumption because he was satisfied by the totality of the evidence that it was not in the best interests of the children to do so. He singled out the substantial and long-term ‘live with’ arrangements and the concern expressed by the mother and the two experts of the father’s “unhealthy” attitudes and actions towards B and his converse lack of interest in P but made it clear that there were other influential factors he did not identify explicitly.
It is implicit in what his Honour said that he accepted the evidence and recommendations of Ms D and Dr P as well as the mother’s unanswered evidence in chief relating to the husband’s past behaviour in relation to B. A psychiatrist felt uncomfortable with the situation he witnessed and concluded, in a case where excessive kissing and cuddling was alleged and not denied, thought that the father appeared “enamoured” of his daughter and overtly less partial to his son.
After criticising the “pitiful” amount of material put up by the father and his failure to advance any “pertinent argument” as to why “contact” should be increased (Paragraph 8 Reasons) the specific matters mentioned by his Honour together with “all the circumstances of the case” meant that it was open to his Honour to reach this conclusion. The reasons for judgment are adequate enough to explain, expressly or by implication, why the presumption should be displaced in this case.
His Honour referred to Ms D and Dr P’s reports and, of the latter, commented that it was “of great importance” and “very, very difficult for the father to overcome” (Paragraph 16 Reasons). His Honour also expressed his concern that the father failed to adequately address or explain in his subsequent affidavit the concerns relating to B identified by Dr P in his earlier report.
Ms D was not required for cross-examination. Nor was the mother’s daughter L who supported concerns about the father’s ability to keep within appropriate boundaries. The bulk of the mother’s evidence was largely left unchallenged, unanswered and unexplained.
At paragraphs 21 to 23 of the reasons for judgment his Honour questions the husband’s reference to a complaint about telephone contact in his affidavit but makes no mention at all of any modification of his signs of affection to B.
At paragraph 24 of his reasons his Honour makes an obvious reference to the catalogue of criteria in s 60CC(2)-(4) of the Act but goes on to say that he considers the most important thing in any case in relation to children to be what is in their best interests. In this connection, he concludes, the husband advances nothing about how the children are going to benefit from spending longer periods of time with him.
At paragraph 30 he refers to the husband’s “sniping” (meaning serial attempts to vary existing orders) as being bad enough to warrant restriction in the future. His Honour also, with obvious scepticism, noted that in his final affidavit the father says that the reason why he bought the application for variation of orders in the first place was to spend more time with P on his birthday.
At paragraph 32 his Honour, almost as an afterthought, referred to Dr P’s “very important” opinion that there should be no increase in parenting time with the father at least until their wishes have been ascertained and reported on.
Having determined that the evidence did not justify an increase in the father’s parenting time (Paragraph 26) the judge then goes on to consider whether a decrease in time spent by the children with the father was warranted. At paragraph 27 his Honour refers to the mother’s counsel as having “put a particularly strong argument” for a decrease in time. His Honour notes quite rightly that for the mother to concede that any more time with the father was in the best interests of these children in light of her suspicions was illogical.
At paragraph 29 his Honour recognised the children’s right to “get to know their parents” and concluded that lessening the amount of time the children spent with their father would be contrary to their welfare.
Having considered these factors his Honour reached the position that he would not make an order increasing or decreasing the existing parenting time orders except in relation to a reduction of telephone communication to once a week.
Appellate principles
Discretionary decision-making involves matters of opinion and degree which can never be completely right or wrong. Appeals against discretionary decisions should only be allowed if it has been clearly established that in conducting the necessary balancing exercise a Judge has taken into account matters which are irrelevant or ignored others which were relevant or otherwise arrived at a conclusion which is plainly wrong and unsustainable (Gronow v Gronow (1979) 144 CLR 513; House v The King (1936) 55 CLR 499; CVJ v VAJ (1988) 197 CLR 172.)
The reasons for appellate restraint in the family law area are well known. It is, as Kirby J recognised in CVJ v VAJ (1998) 197 CLR 172 at 230-231 the very nature of the intensely personal questions that have to be decided that any two decision-makers may with complete integrity and upon the same material often come to different conclusions. The reasons given for a decision can never express the entire range of matters that a decision-maker has taken into account. In matters of evaluation and discretion this would be impossible to achieve and undesirable to attempt. Judicial reasons, while they must be adequate for the purpose of any exercise of rights of appeal, cannot possibly catalogue all the subtle considerations that have influenced the judicial decision.
As Kirby J noted in Aktibolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411 at 448 [97] any exposition of judicial reasons explaining factual findings is “inherently an incomplete statement of the impression which was made upon him [the judge] by the primary evidence (Biogen Inc v Medeva Plc [1997] RPC 1 at 45 per Lord Hoffman)”.
In Suvaal v Cessnock City Council (2003) 77 ALJR 1449 at [75] citing Fox v Percy (2003) 77 ALJR 989 at 993-994 [23]; 197 ALR 201 at 207, McHugh and Kirby JJ remarked the way appeals are usually conducted sometimes impedes an appreciation:
"of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share.”
Although it might have been more helpful if his Honour had disclosed more of his reasoning and linked his conclusions to relevant paragraphs of s 60CC his failure to do so does not in itself amount to appellable error. The facts and circumstances that his Honour did mention are more than adequate to satisfy us that in dismissing the father’s application his Honour took into account everything that he should have and nothing that he should not. That another judge may have reached a different view is an unauthorised basis for interfering with a single judge’s decision.
His Honour’s judgment demonstrated that he had the important features of the case fully in mind and concluded that additional time with the father at this stage was unwarranted and undesirable.
The court held in Fennessy and Sanchez (2007) FLC 93-330 that any failure to specifically address the matters referred to in Goode was not necessarily an appellable error.
While admittedly made in the context of an interim rather than final determination this statement at par 55 of Fennessy and Sanchez (supra) bears repeating:
The necessity to refer in reasons for judgment to the provisions of Part VII of the Act varies according to the facts and circumstances of each case. If his Honour in fact entertained and determined the father’s application for interim parenting orders, we are not satisfied that the failure to address the matters referred to in Goode and Goode constitutes, in the circumstances of this case, an appellable error. It is apparent that his Honour would have reached the same conclusion had he approached the issue in the manner suggested by the Full Court in Goode and Goode, and been justified in doing so. The evidence upon which the father relied was the same as the evidence upon which he relied on [in the earlier application].
Further submissions
In a request from the solicitors for the mother dated 15 November 2007 to be allowed to respond to a question raised during the hearing of the appeal which was in effect “Why was time with the father on alternate Wednesdays not ordered?” we made directions on 27 March 2008 that:
1.That the appellant father have fourteen (14) days from today to, should he wish to do so, file and serve submissions:
(i)as to whether leave should be granted to the respondent mother to make a supplementary submission in form forwarded to the Appeals Registrar under cover letter of 15 November 2007 from Susan Green, solicitor;
(ii)that he would wish to make by way of reply, in any event leave is granted.
In a letter to the mother’s solicitors dated 12 November 2007 the solicitors for the father stated that they had no objection to our considering that part of the correspondence submitted to the court under the title of “Correction”. In relation to the issue of further submissions there was objection.
We do not see that the proposed submissions of the appellant would make any difference to the outcome of the appeal. The evidence referred to was before his Honour, and he did not make an order in relation to mid week time. The evidence of Dr P was accepted by the judge. This evidence would contraindicate more time.
Conclusion
We are satisfied, having regard to the relatively limited forensic inquiry his Honour was called on to conduct, that it is sufficiently evident from his reasons that he considered the matter from a best interests viewpoint by reference to the relevant statutory criteria and was left unconvinced by the evidence that any change in time spent with the father was currently in the children’s best interests.
If displacement of the presumption was a precondition to the orders his Honour made, the totality of the evidence was more than sufficient to justify its rebuttal.
We readily adopt the reasoning in Fennessy and Sanchez and have reached the same conclusion.
The appeal should be dismissed and we order accordingly.
Costs
At the conclusion of the hearing of the appeal counsel for the respondent asked for costs should the appeal not succeed. Mr Laurie, counsel for the father correctly, we think submitted that if the appeal was unsuccessful (Transcript l 21-23 p 49):
MR LAURIE: If the appeal was unsuccessful I’d be taking your Honours hopefully to my clients financial position, but I think I would have some difficulty in resisting a costs order.
The appeal is from a discretionary judgment. While it could not be said that there were not proper matters to argue the appeal has failed. In the circumstances of this case, including that the father is employed we are of the view that an order should be made that the appellant pay the respondents costs.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 06.06.08
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