Muldoon & Carlyle
[2012] FamCAFC 135
•29 August 2012
FAMILY COURT OF AUSTRALIA
| MULDOON & CARLYLE | [2012] FamCAFC 135 |
| FAMILY LAW – APPEAL – CHILDREN – with whom children live – relocation – intended relocation by mother to a town two hours’ drive from father’s residence – held at first instance that it was in the children’s best interests to continue living with their mother, even if she relocated – substantial and significant time with father not practicable – orders that children live with mother and spend time alternate weekends with father – father argued on appeal that first instance judge had failed to allow counsel to pursue enquiry into the mother’s motivations for moving, the necessity of the move and the possibility of her remaining at her current location – held on appeal that first instance judge correctly identified that the mother was free to move wherever she chose – issue was with which parent the children should live, having regard to their best interests – appeal dismissed. FAMILY LAW – APPEAL – EVIDENCE – family report – father asserted that first instance judge failed to provide sufficient reasons for accepting the family consultant’s evidence – held on appeal that careful and extensive reasons were given, and that quoting from a family report, where the judge’s own observations coincide, does not constitute appellable error. |
| Family Law Act 1975 (Cth) ss 60CC, 65DAA, 117 |
| AMSv AIF (1999) 199 CLR 160 Andrew & Delaine [2009] FamCAFC 182 Bartlett and Bartlett (1994) FLC 92-455 Bennett and Bennett (1991) FLC 92-191 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Collins and Collins (1985) FLC 91-603 D & D (Costs) (No 2) (2010) FLC 93-435 D & P [2006] FamCA 170 D and SV (2003) FLC 93-137 Fennessy &Gregorian (2009) FLC 93-399 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Friscioni & Friscioni [2010] FamCAFC 108 Goode and Goode (2006) FLC 93-286 Hall and Hall (1979) FLC 90-713 Hannigan & Sorraw [2010] FamCAFC 257 Kohan and Kohan (1993) FLC 92-340 Limousin & Limousin(Costs) (2007) 38 Fam LR 478 MRR v GR (2010) 240 CLR 461 Munday v Bowman (1997) FLC 92-784 Stephens v Stephensand Anor (2010) 44 Fam LR 117 Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 |
| APPELLANT: | Mr Muldoon |
| RESPONDENT: | Ms Carlyle |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRF | 1472 | of | 2004 |
| APPEAL NUMBER: | NA | 44 | of | 2011 |
| DATE DELIVERED: | 29 August 2012 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Finn & Strickland JJ |
| HEARING DATE: | 3 November 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 February 2011 |
| LOWER COURT MNC: | [2011] FamCA 51 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Clutterbuck |
| SOLICITOR FOR THE APPELLANT: | Sanderson & Parks |
| COUNSEL FOR THE RESPONDENT: | Mr George with Mr Mould |
| SOLICITOR FOR THE RESPONDENT: | Family Law Doyle Keyworth & Harris |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron with Ms Heaney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The appeal be dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the appeal.
The appellant father pay the costs of the independent children’s lawyer of and incidental to the appeal.
The costs referred to in Orders 2 and 3 be in an amount as agreed by the parties within 48 days of the date of these orders, and failing such agreement, as assessed on a party-party basis by a registrar of the Family Court of Australia.
IT IS NOTED that publication of this judgment by this Full Court under the pseudonym Muldoon & Carlyle 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 BRISBANE |
Appeal Number: NA 44 of 2011
File Number: BRF 1472 of 2004
| Mr MULDOON |
Appellant
And
| Ms CARLYLE |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Muldoon (“the father”) against orders made by O’Reilly J on 11 February 2011, the effect of which was to permit Ms Carlyle (“the mother”) to relocate to R, approximately two hours’ drive from the rural community of O in which the parties had previously lived, and which provided that the children were to live predominantly with the mother and to spend time with the father on alternate weekends and during school holiday periods.
The orders under appeal also provide for the parties to have equal shared parental responsibility for all long-term matters related to the children save for medical and education matters, for which the mother has sole parental responsibility. Other associated orders were made in relation to changeover, care and upbringing.
The children the subject of the orders are L, born in 2001 and aged 10 years at the time of the appeal hearing, and S, born in 2003 and aged
8 years at the time of the appeal hearing.
The parties have two older children: A, aged 22 years, and N, aged 20 years.
The child L is a special needs child, having been assessed as having Attention Deficit Hyperactivity Disorder (“ADHD”) and possibly also Autistic Spectrum Disorder (“ASD”).
Background
In 1985, the parties commenced a relationship. They married in
September 1986, separated in February 2004 and were divorced in March 2006.
The mother was 42 years of age and the father 52 years of age at the time of the trial.
For the whole of the parties’ relationship and marriage they lived in O.
As to the older children, A is married and lives with her husband and their two small children about 12 kilometres south of O. N is employed in O.
Before the parties’ separation, the family lived on a farming and grazing property at the outskirts of O, on which the father continues to live and work as a farmer and grazier. The mother and children remained living in the O area following separation.
Between the separation in February 2004 and the first of the interim orders made on 28 May 2004, the children spent no time with the father. Interim orders were made in May 2004 providing for the father to have contact with the children. Further orders were made in March 2006 which provided essentially that the children spend each alternate weekend and half holiday periods with their father, although the youngest child was to spend slightly less time with the father during the Christmas holidays.
Her Honour noted (at [36] to [38]) that, with some exceptions, the children spent time with the father in accordance with the orders referred to.
The mother wished to move to R to live with her partner, Mr B, with whom she has been in a relationship for several years. Mr B has a house in R and works as an underground mining contractor, working, at the time of trial, four or five days on and four or five days off.
The father’s mother and sister, and other members of his extended family live in or near O. The mother’s parents live about 40 kilometres from O and Mr B’s parents also live in the O area.
The mother sought a “new beginning” away from O where she felt “miserable” and under constant scrutiny from the father’s family. As well as Mr B, the mother has several friends and relatives in R and its surrounds.
Although the proceedings were commenced in 2004, her Honour noted at [32] in her reasons for judgment, that, “for whatever reason”, the parties had not been able to come to trial before November 2010, which was nearly seven years after the parties’ separation. This, her Honour noted, was “regrettable” (at [32]).
In addition to lay evidence, her Honour was assisted by a family report (which, her Honour noted, was undated but appeared to have been prepared in mid-2010), a psychiatric assessment of each of the mother and father by Dr F, and report by Dr M, a consultant paediatrician in relation to the child L.
The family consultant who prepared the expert report described the parties’ relationship as “toxic” (family report, at [85]). Her Honour noted that the parties had regrettably not spoken to each other since separation except for one occasion.
The appeal was opposed by the mother and the independent children’s lawyer, who both submitted that no error had been established in what was a discretionary judgment.
Reasons of the Trial Judge
Her Honour commenced the judgment by setting out the legislative pathway she was obliged to follow. There is no challenge to this part of the judgment.
Her Honour then turned to the various proposals of the parties and carefully set out what proposals each party was making for the children and the various options she had to consider.
At [6], her Honour described the father’s original five proposals as having been distilled, by the conclusion of the trial, to four options:
1.The children live with the father in O and spend time with the mother.
2.The children live with the father and the mother in O on the equal time basis.
3.The children live with the mother in O and spend time with the father.
4.The children live with the mother in R and spend time with the father (implicitly, in relation to the fourth option, in accordance with the fifth proposal).
Her Honour noted at [7] that counsel for the father had said:
…that the father’s case “has always been advanced” on the basis that he considers that the children’s best interests will be met by an order that the children remain living in [O], as his primary case; that they live in [O] with him; in the alternative they live in [O] with the father and the mother on the equal time basis; or in the further alternative they live in or near [O] with the mother; such that the father’s fifth proposal (fourth option) was out on the basis specifically and only if I should determine that the children’s best interests would be met by living with the mother in [R]. (original emphasis)
Her Honour further noted that the mother confirmed that if there should be an order that the children live with the father in O, she would not move to R.
Her Honour observed that the mother’s proposal was singular, namely that the children live with her in R and spend alternate weekend and holiday time with the father. Notwithstanding that counsel for the mother said there were really only two alternatives, her Honour noted at [10] that authority dictates that the broader options raised by the father’s counsel would require consideration.
Her Honour had evidence from a family consultant, Mr H, who was the single expert in the case and whose report was introduced into evidence.
Her Honour’s findings were largely supported by the family consultant’s recommendations.
Importantly, her Honour observed at [73] that “[i]t is not in dispute that the children presently have a meaningful relationship with both of their parents, and that prospectively there is benefit to the children in ensuring that such is maintained”.
In considering whether this relationship would potentially be damaged or compromised, the family consultant said:
It’s my assessment that if they move to [R] and they continue to visit him, that they will maintain the relationship with him in the same way.
…
I don’t think that that reduction in time is going to significantly diminish their relationship with him from their perspective, from the children’s perspective.
(transcript 2 November 2010, page 245, lines 33 – 34; lines 44 – 46)
Her Honour observed that the family consultant had been involved with the family since mid-2009 and there was “no rational basis to exclude or not accept [his] careful evidence” (at [76]). Her Honour’s acceptance of it is not now challenged. Her Honour concluded that the children’s meaningful relationship with the father would not be disturbed if the children were to live in R.
Her Honour then went on to consider that, if the children were to live in R, during the children’s soccer season (February – September in each year) there would potentially be “an additional night’s ‘reduction’ from the time the children presently spend with the father, namely the Friday nights in alternate weekends” (at [77]). However, her Honour observed at [77] that
…the father also would have opportunity, potentially, to participate in the children’s soccer on Saturdays not only in relation to the children’s alternate weekend time with him but potentially also the intervening weekends, subject to his ability to afford travel and accommodation for that purpose. (original emphasis)
Her Honour said at [77] that she did this because
…the “reduction in time” the subject of [the family consultant’s] evidence specifically was loss of the alternate weekend Sunday night, whereas potentially during the soccer season unless the father were able to spend Friday nights in the alternate weekends in [R], for example, in a motel with the children and take them to soccer on Saturdays, his time with them would commence on those Saturdays at the commencement of the soccer games rather than 4.00pm on the Fridays. However, there are two observations about this. First, the strength and tenor of the [family consultant’s] evidence remains. Secondly, there is no necessary conclusion that the father would not be able to spend at least some if not all of the alternate Friday nights in a motel in [R] with the children during the soccer season, and indeed … potentially he would have the ability to participate in the children’s lives during the soccer season on the intervening Saturdays as well. (original emphasis)
Later in the judgment, her Honour acknowledged that this would have some financial impact on the father, but held that given his evidence that he was well-off financially, the observations and conclusions she had made remained valid.
Her Honour accepted that if the children should live in or near O on any of the bases proposed by the father, their meaningful relationship with him would not be disturbed. However, her Honour noted there was no specific evidence as to the prospective effect on the children’s meaningful relationship with the mother if the children should live in or near O primarily with the father, or on an equal time basis with the father and mother.
In this context, her Honour gave consideration to the various relevant matters in s 60CC(2). In considering the need to protect the children from physical or psychological harm, her Honour focussed particularly on L’s autism and whether there was any danger to him on the father’s farm. Her Honour concluded that there was not, but also concluded that the mother had a better understanding of the autism, which was only reluctantly acknowledged by the father under cross-examination. Her Honour found at [95] that the father’s demeanour and body language in response to questioning about his son’s autism gave her Honour “no confidence that in truth the father accepted
Dr G’s opinions and recommendations”. Ultimately, however, her Honour emphasised that nothing turned on these findings.
Pursuant to the additional considerations of s 60CC(3), her Honour considered whether any views had been expressed by the children. Her Honour noted that L, in particular, did not wish to state a view and “that he would ‘prefer that the adults make a decision’” (at [100]). S, too, did not express an opinion “as to where she would prefer to live” (at [102], quoting from the family report).
Her Honour found, and this is not the subject of challenge, that the children were not yet of an age or maturity to express meaningful views.
As to the nature of the relationship of the children with each of the parents,
her Honour found that the children “are strongly attached to each of their parents and have a meaningful relationship” with each other (at [104]).
Her Honour found, too, that the mother “is and always has been the children’s primary carer” (at [105]). Again, these findings are not attacked.
Her Honour considered at some length the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and other parent. While noting the considerable difficulties the parents have with each other, including the fact that they have not spoken since separation (at [33]), her Honour concluded at [119] that “despite the parties’ own differences and attitudes to each other, each of the mother and the father has both willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent”. This led her Honour to ultimately find that contrary to the father’s claims, the mother was not likely to turn the children against the father. That the mother had not done so to date was evidenced by the children’s close and positive relationship with their father. Her Honour concluded at [122]:
In short, the parties’ [sic] have negativity towards each other. Even if, however, the children should perceive that, I am satisfied on all of the evidence that each of the parties, whilst being critical of the other, nonetheless will ensure that they facilitate and encourage a close and continuing relationship between the children and the other parent.
Her Honour turned to consider the likely effect of any changes in the children’s circumstances. Her Honour observed that if the children continued to live in O with the mother and spent substantial and significant time with the father – this potentially being more time than spent at present – there would not be a significant change. Her Honour found that if the children were to live in O with the father on his farming property, this would be a significant change for the children as they would cease to live primarily with the mother, who has always been their primary carer. Her Honour noted that the mother had clearly indicated that if such an order was made, she would not move to R but remain in O or in the O area.
Her Honour further noted that an equal time arrangement with both parties living in or near O would amount to a significant change for the children, but not to the same extent as if they lived in O with the father.
Finally, her Honour noted that if the children were to live in R the mother would continue as their primary carer and they would live as a family unit at Mr B’s home. Nonetheless, change would be unavoidable. There would not just be a shift in location from O to R, but also a transition to Mr B being part of the family living in one household.
Her Honour found, too, that if the children lived in R there would be a significant change from their current “rural” lifestyle to a “small city” lifestyle. Her Honour observed that the children would attend school in R, which would also be a change. Her Honour canvassed the family consultant’s evidence that L’s special needs mean he would require a “lot of support” to adjust to the changes associated with living in R, starting at a new school and joining a new soccer team (at [134], citing the family report). The family consultant assessed the mother as being able to provide the requisite support.
Her Honour concluded at [137] that the children would be unable to spend substantial and significant time, as defined by s 65DAA(3), with the father if they were to live in R and attend school there:
… they would not be able to spend time with him on “days that do not fall on weekends or holidays” (apart from Fridays from 4.00pm on alternate weekends, which effectively is evening or night time, rather than day time).
Her Honour found, however, that subject to the father’s ability to afford travel and accommodation expenses, there would be no reason why the father could not make the two hour, 144 kilometre journey to R to attend significant school and extra curricular activities.
Her Honour recognised that if the children lived in R, the changeovers between parents would involve the children travelling two hours each way on each Friday and Sunday of every second weekend. Her Honour accepted the evidence of the family consultant in relation to the travel that “it would not be a difficulty for the children ‘if they are kept busy’” (at [138]). Her Honour then referred at [139] to the family consultant’s evidence that:
… although there would be a reduction of time the children would spend with the father on alternate weekends compared with the time they presently spend with him, by one night per fortnight, such would not impact on their existing meaningful relationship with him, or perception of or attachment to him.
Her Honour considered the practical difficulties and expense of the children spending time and communicating with each of the parents, if the children were to move to R with the mother. In particular, her Honour examined the father’s financial circumstances and his contention that a move to R would affect the children’s right to maintain a personal relationship with him, and would prevent contact with him. Her Honour ultimately concluded (at [147]):
Be that as it may there is no reason to think that the father, by reason of financial hardship, would not be able to avail himself of at least some of the alternate Friday nights in R during soccer season, to enjoy such time with the children. (original emphasis)
This finding is not the subject of challenge.
Her Honour considered the capacity of each party to provide for the children’s needs. Whilst finding the mother had a better capacity to attend to the children’s intellectual needs and to L’s special needs, her Honour found that nevertheless the children “very much enjoy the father’s company” and have a “strong attachment to him”. Her Honour observed that this indicates “some considerable ability on his part to provide for their emotional needs” (at [155]).
Her Honour then evaluated each of the parents’ demonstrated attitudes to the children and to the responsibilities of parenthood. Her Honour considered the difficult and “toxic” relationship between the parties (at [165]). Her Honour concluded, contrary to the submissions of the husband’s counsel, that the mother was child-focussed and was fulfilling her responsibilities as a parent. In particular, her Honour said at [167]:
The father’s allegations that she actively is seeking to estrange the children from him beggars belief as inconsistent with the factual circumstance that despite the parties’ own toxic relationship the children have a strong attachment to the father and a continuing meaningful relationship with him, as explained by [the family consultant]. If the father’s allegations should be correct, such meaningful relationship between the children and the father is unlikely to have been maintained.
Her Honour considered the issues of family violence but ultimately found that the issues seemed confined to the past and were not a current concern. Although her Honour was pressed by counsel for the mother to make specific findings about the past occurrence of violence, her Honour said that was not necessary as the case was “not one in which findings are necessary to dispose of the matter” (at [183]). At that same paragraph, her Honour continued:
This is because, in relation to the presumption in s61DA(1), even if it applied, as not being ousted on the basis of reasonable grounds to believe that the father has perpetrated family violence on the mother, in any event having regard to s61DA(4) in my determination the presumption would be and is rebutted by evidence which satisfies me that it would not be in the children’s best interests for the parents to have equal shared parental responsibility, that is, equal shared parental responsibility within the meaning of “parental responsibility” in s61B, which provides that parental responsibility in relation to a child means all of the duties, powers, responsibilities and authority which by law parents have in relation to children. (original emphasis)
Her Honour then went on to find that the presumption of equal shared parental responsibility was rebutted because of the parties’ difficult relationship and their history of not having spoken since separation. Her Honour found that decisions in relation to the children’s health and education, being the “most significant major long-term issues for the children identified in the case”, should be the subject of sole parental responsibility, either by the mother or the father (at [186]). Her Honour opined that those two areas of responsibility are “the ones likely to require reasonable frequency of decision making, and are of such importance as to need to be able to be made without risk of discord” (at [186]). Her Honour concluded that there should be “an order that the mother, rather than the father, have sole parental responsibility for the children’s health and education”, and that such an order was in the best interests of the children and was “the order least likely to lead to other proceedings concerning the children’s health and education” (at [187]).
Her Honour proceeded in this way because the mother was, and had been for many years, the primary carer for the children. Also, in relation to education, the father acknowledged that the mother would make the “right decision” (at [187]). In relation to the children’s health, her Honour found that the mother had to date taken responsibility for L’s health issues and special needs, with the father showing little understanding of these matters.
These factual issues are not the subject of challenge.
As to the remaining aspects of parental responsibility, her Honour found that the parties should have equal shared parental responsibility for decisions in relation to “major long-term issues” other than health and education (at [188]).
Her Honour then turned to the question of equal time. Referring to the argument advanced by counsel for the mother that ss 65DAA(1) and (2) would not be engaged by orders which effectively compartmentalised various aspects of parental responsibility, her Honour, whilst indicating that the argument was attractive, said that she did not need to decide the point because she intended to treat the matter as if ss 65DAA(1) and/or (2) applied. This was in part because the father had sought, as one of his options, an equal time order and this required her Honour to consider whether such an order would be in the children’s best interests (Goode and Goode (2006) FLC 93-286 at [82]).
Thus her Honour opined that she must first consider whether the children spending equal time with each of the parents would be in the children’s best interests and reasonably practicable, and if so, consider making an order to that effect.
In considering whether an order for equal time was in the children’s best interests, her Honour referred in detail to a number of paragraphs in the family consultant’s report. At [202], her Honour stated:
I accept [the family consultant’s] evidence and opinion that a shared parenting arrangement is not in the children’s best interests, so that, plainly enough, an equal time order is not in their best interests. … Apart from my acceptance of [the family consultant’s] strongly held views and my own independent conclusion in this particular case, it is well established that usually equal time orders are made when parents have similar parenting styles and are able to communicate with and co-operate with each other. That is not the case here.
Her Honour thus concluded that an equal time order was not in the children’s best interests.
Her Honour then went on to consider whether equal time would be reasonably practicable, although her Honour noted it was probably not strictly necessary to do this. Her Honour examined first whether an equal time order would be reasonably practicable if the parties both lived in O, as compared to R. After setting out in detail the meaning of reasonable practicability and how it is to be applied (following MRR v GR (2010) 240 CLR 461), her Honour concluded that if the mother lived in O an equal time order would be reasonably practicable in relation to distance. If, however, the mother lived in R, she would live two hours’ driving distance away from the father and an equal time order would not be reasonably practicable, particularly as the children need to attend school in one location and “could not possibly attend school one week in [O] and one week in [R]” (at [218]). Her Honour then looked at the parties’ current and future capacity to implement an arrangement for the children to spend time with each of the parents and concluded that they did not have this capacity. Similarly, her Honour found they did not have the capacity to communicate with each other to resolve difficulties that might arise in implementing an arrangement for equal time and that such an arrangement would impact adversely on the children. Her Honour therefore concluded that an order for equal time was not in the children’s best interests and not reasonably practicable.
Next, her Honour considered whether a substantial and significant time order was in the children’s best interests. Her Honour again examined in detail the evidence of the family consultant, noting he recommended an arrangement that did “not ‘literally comply’ with the requirements in s65DAA(3)” on the basis that “something less than substantial and significant time … is the “maximum” with which [L] can cope” (at [232]) (original emphasis). Her Honour accepted the evidence of the family consultant that a substantial and significant time order was not in the children’s best interests.
Her Honour went on to conclude that, for the same reasons as in relation to equal time, a substantial and significant time order would not be reasonably practicable.
Her Honour then turned to consider what order would be in the best interests of the children. Under this rubric, her Honour dealt with the various proposals of the parties.
First she dealt with, and considered the evidence in relation to, the father’s proposal that the children live with him in O. Her Honour noted, in particular, that the mother had always been the children’s primary carer and that it would be a significant change for the children to transition to the primary care of the father. Consistent with the family report, her Honour also found that the mother was the parent more likely to be able to fully meet L’s needs.
Evaluated next was the father’s proposal that the children live with the mother in O. Her Honour considered the effect on the children of this arrangement, recognising that “[t]here would be minimal change for them, from their lives at present” (at [257]). Her Honour took into account the mother’s evidence as to her feelings about remaining in O and wrote:
259.Despite these matters, I have referred to the mother’s evidence that she is “miserable” in [O] and feels “under the constant scrutiny of the [Muldoon] family”, describing her life as “like living in a fishbowl”. Whilst the mother would not suffer financial hardship if she were to live in [O] or in the [O] area, could rent a property in [O] or in the [O] area, potentially could find employment in or near [O], or in the [O] area, and potentially pursue her study interests by “off campus” methods, and would not live in “diminished” circumstances physically, [the family consultant] said is his family report, par 20:
20.…She feels that living in [O] is making it more difficult for her to move on with her life, both practically and emotionally. She considers [O] to be a small community where most people she deals with are aware of the disputes between herself and Mr. [Muldoon] and that in order for herself to be able to emotionally escape from the pressure these disputes place on her she needs to move away from that community. If required to remain living in [O] Ms. [Carlyle] would feel some resentment, that her life was being controlled by Mr [Muldoon], and that she was being restricted in moving on with her life.
260.Further [the family consultant] observed that both the mother and Mr [B] considered that if the mother does not move away from [O], there would be stress on their relationship:
55.Due to both their shared [the] [sic] goal in wanting to relocate to [R], their shared desire to move away from [O] and make some changes in their lives, and the practical advantages for them [and] [sic] living in [R] they consider it would place some stress on their relationship should Ms. [Carlyle] be unable to move. While both felt they would very much wish to continue in their relationship they feel it would place a long-term stress on them.
Her Honour then considered the mother’s proposal that the children live with her in R. Her Honour observed that this would represent a significant change for the children but noted the family consultant’s view that the mother would be able to ensure the children were supported. Importantly, her Honour noted that according to the family consultant’s evidence, which her Honour accepted, the children’s meaningful relationship with their father would not be disturbed by spending less time with him than at present. Her Honour also observed that there were increased support services for L in R, according to the mother’s uncontested evidence.
Her Honour stated that having carefully considered all of the evidence, the submissions and the obligatory statutory matters, the children’s best interests would be met by living with the mother. This was because the mother had always been the children’s primary carer and was also the parent with the greater capacity to meet the children’s needs, and in particular L’s special needs. These findings were not the subject of challenge.
Her Honour then went on to assess whether the children should live with the mother in O or in R. Her Honour noted that if the children lived with their mother in R, they would not spend less time with the father than the maximum time the family consultant had assessed that L could cope with, this being alternate weekends and half school holiday periods.
Her Honour observed that according to the mother’s proposal they would spend alternate weekends with the father from 4 pm Friday until 4 pm Sunday, half of the Easter and Christmas school holiday periods and all of the June/July and September/October school holiday periods. Thus her Honour found that the maximum time that the family consultant thought L could cope with would be met by this proposal, and that in particular all of the June/July and all of the September/October school holidays would be spent with the father, which would go some way to ameliorating the difference between the “3 night” alternate weekends (Friday, Saturday and Sunday nights) and the “2 night” alternate weekends (Saturday and Sunday).
More importantly, her Honour noted that “if the children should live in [R], their existing meaningful relationship with the father, prospectively, would not be disturbed” (at [272]). Her Honour considered whether there would be any detriment to the children in moving to R, and thought that “there seems to be none which ultimately would affect adversely on them” (at [274]).
Noting the comments of Kirby J in AMSv AIF (1999) 199 CLR 160 at 207-8 that the mother’s legitimate interests not be disregarded, her Honour concluded that having regard to all of these matters there was no basis not to give effect to the mother’s desire to live in R and to alleviate the difficulties and stresses of her present situation. Her Honour explained, at [277], that “[b]oth of the parties, properly, should be allowed to ‘get on with their lives’, in the best way they see fit”. Her Honour observed at [279] that there was “no good reason, in the children’s best interests, to restrict the mother’s freedom of movement, especially as it is ‘over a relatively short distance’” (following D and SV (2003) FLC 93-137). Having determined that the children’s best interests would be met by continuing to live with the mother, given that the mother wished to live in R, and in light of the finding that the mother’s intention did not conflict with the children’s best interests – and, indeed, that it might potentially be beneficial, especially in regard to L’s special needs – her Honour concluded the children’s best interests would be met by an order that they live with their mother in R.
Grounds of Appeal
The father relied on the following grounds:
1.The learned trial Judge erred in failing to properly consider
s. 65DAA of the Family Law Act 1975 (“the Act”) and thereby then failed to make Orders that provided the children to have equal or substantial or significant time with their Father by:-a)Failing to consider or properly consider s. 60CC of the Act;
b)Erring by placing the Mother’s interests and needs before those of the children;
c)Failing to properly consider the evidence and properly apply the reasonable practicability requirements of
s. 65DAA of “the Act”.2.The learned trial Judge erred in pre-determining the issues that were the subject of dispute between the parties without hearing evidence.
3.The learned trial Judge erred in failing to permit counsel to agitate or enquire into relevant matters and thereby then made findings on an incorrect premise.
4.The learned trial Judge erred in making preliminary findings with respect to parental responsibility and thereby then indicating her position, the effect of which was to deny the parties cross-examination of relevant issues and making contrary findings with respect to those preliminary determinations.
5.The learned trial Judge failed to consider and to make findings to the benefit of the children.
6.The learned trial Judge erred in failing to give any or any adequate or sufficient reasons as required to demonstrate that her Honour applied the relevant criteria as required by s. 65DAA and s. 60CC of the Act.
The father sought that the appeal be granted, the orders of O’Reilly J of
11 February 2011 be set aside and the matter be reheard and determined by a judge of the Family Court of Australia other than O’Reilly J.
At the hearing of the appeal, counsel abandoned Grounds 1 and 5, and provided us with an amended outline of submissions in which the remaining grounds of appeal were summarised in the following way:
a)whether any issues had been predetermined by her Honour that “were the subject of the dispute between the parties without hearing evidence”, and whether there was any error by her Honour in failing “to permit counsel to agitate or inquire into relevant matters” (Grounds 2 and 3) (father’s amended outline of submissions, at [44])
b)whether her Honour erred in making “preliminary findings with respect to parental responsibility” and thereby indicating her position, which had the effect of deflecting exploration of that issue during the trial, before making contrary findings with respect to those preliminary determinations; and whether her Honour erred in failing “to give any or any adequate or sufficient reasons as required to demonstrate that her Honour applied relevant criteria as required” by s 65DAA and s 60CC of the Act (Grounds 4 and 6) (father’s amended outline of submissions, at [47] and above [54]).
Somewhat more prosaically, counsel said there were three areas of complaint warranting appellate intervention:
a)how the trial was conducted
b)how parental responsibility was assigned
c)failure to give reasons for accepting the family report and the inferred conclusions.
Given the abandonment of Grounds 1 and 5, it is unnecessary for us to traverse the matters complained of in those grounds. However, as they have some overlap with Ground 6, to which we will return, we observe that we have already set out her Honour’s chain of reasoning and the manner in which, in our view, she carefully dealt with each of the relevant matters in s60CC and
s 65DAA of the Act. In our view these submissions have no merit.
Grounds 2 and 3
These grounds assert that her Honour pre-determined issues, failed to permit counsel to agitate or enquire into relevant matters, and “shut down” a reasonable line of enquiry. Counsel relied on Bartlett and Bartlett (1994) FLC 92-455 at 80,711, observing, at [8] in the father’s submissions in reply, that “in considering the role of a trial Judge in ‘custody’ proceedings” Bartlett is authority for the proposition that:
In deciding a custody case it is incumbent upon a Judge to make an order which reflects the concept of paramountcy of the welfare of the child. It is difficult therefore to see how this can be achieved in a number of cases if the judge is entitled to rule that a party be limited to one set of proposals or by his conduct of the trial, effectively prevents counsel from so doing … Further, such an approach appears to be contrary to the positive obligations cast upon a Judge in the conduct of such litigation.
Counsel for the father relied upon a number of remarks made by her Honour in the course of the hearing, as a basis for asserting (at [46] of his amended outline of submissions) that
…it can be seen that her Honour would not have regard during the course of the trial to anything other than the mother intending to relocate to [R], and that issue itself fettered the decision-making process to the effect that it removed from consideration matters relevant to s. 65DAA and s. 60CC such that the concept of the children spending equal time with both parents and/or substantial or significant time with each parent was entirely removed from the equation.
As counsel explained during oral submissions, the complaint was that
her Honour had prevented counsel from trying to extract a concession from the mother that she would not move to R. It is thus necessary to examine the transcript to see how this issue arose.
At the outset of the case, her Honour identified with counsel the various proposals of the parties. Her Honour then said to both counsel:
Now, let everybody get this clearly in their heads, the mother will be moving to [R] with Mr [B] and living in [R]. The father will be living on the property which, I understand, is 15 kilometres outside [O], and is west, north, east or south of [O]?
To which counsel for the father replied:
It’s five kilometres south of [O].
(transcript 1 November 2010, p 11, lines 7 – 13)
From a fair and full reading of this part of the transcript and passages following, we do not consider her Honour was indicating that she had made a decision that the mother would be moving to R, but rather that that was the mother’s firm proposal. After some minor exchanges between
her Honour and counsel, her Honour continued:
Now, it’s relatively clear from [the family consultant’s] report that nobody has suggested splitting these siblings. Given that the mother will be living in [R], and the father in [O], it would be reasonably plain, I should think – correct me if I’m wrong – but it would be reasonably plain that shared parenting week about would be a physical impossibility for these little children. Put simply, Mr [Muldoon] and Ms [Carlyle], they can’t attend school in [R] one week and school in [O] the next week. These children have to attend one school. So, by way of preliminary observation, on the plain basis, I would have thought, that they can’t live week about when the parents live two hours apart and they have to attend a school in [R], or a school in [O], it really comes down to this, with which parent are the children primarily going to live, and it follows as night follows day that they spend time with the other parent, and, given the distances, and given the fact that we don’t want to keep them out of school, that would seem to me to be alternative weekends and half holidays, or perhaps even the whole of some holidays, like the whole of the June/July, for example, and half of the rest.
(transcript 1 November 2010, p 11, lines 33 – 47)
Her Honour continued, and addressed her next comments to counsel for the father:
But the father’s four alternatives are based on “if she lives in [R]” or “if she lives in [O]”. No ifs or buts about it. This lady is a free Australian citizen, and she will live where she wishes to live. So, I really ask you, when you’re thinking about the issues in your minds, I suppose you can’t think about them other than in your minds, it really does come down to this. Are these little children’s best interests going to be served by living with the mother in [R], attending school in [R], and spending alternate weekends and holidays in [O] with the father; or, living on the farm in [O] with the father, going to school in [O], and spending alternate weekends and half holidays with the mother in [R].
(transcript 1 November 2011, p 12, lines 6 – 15)
Shortly after cross-examination of the mother commenced counsel for the father started to cross-examine the mother about her work plans if she was in R and whether she had sought employment in O. Her Honour stopped her and the following exchange took place:
HER HONOUR: Look, this is not a financial case, Ms Kirkman-Scroope. Where is this going to?
MS KIRKMAN-SCROOPE: It’s really going to the necessity, I suppose, your Honour, of moving to [R].
HER HONOUR: It is not a matter of necessity. She has explained extensively. Her case – the woman is moving to [R].
MS KIRKMAN-SCROOPE: Yes, your Honour.
HER HONOUR: She can do it out of necessity, or emotional reasons, or on a whim. She has fully explained, in her affidavit material, that it is a small town and she feels very uncomfortable living there because the [Muldoon] family is extensive, has extensive relatives, and she can’t even go to the supermarket without feeling that they are perving at her and she is embarrassed.
MS KIRKMAN-SCROOPE: Yes, your Honour.
HER HONOUR: So I won’t allow this line of cross-examination. It is utterly irrelevant. She is an adult, Australian citizen, who is entitled to live where she likes.
MS KIRKMAN-SCROOPE: Thank you, your Honour. I - - -
HER HONOUR: She will be living in [R].
MS KIRKMAN-SCROOPE: Yes, I will move on from that point, then.
(transcript 1 November 2010, p 22, lines 31 – 46; p 23, lines 1 – 10)
We again note that the proposition formed by her Honour that the mother “will be living in [R]” was in the context of the exchanges merely putting forward the mother’s proposals. From examination of the transcript, as we will indicate, it seems that counsel for the father was really suggesting that the mother should be required to remain in O absent “necessity” for a move, a proposition that her Honour put to counsel later. The following exchange gives some indication of that position:
HER HONOUR: In other words, if there was a changeover at [D], [L] would then get to the mother at 5.30 in [R], or the last hour with the mother would be in the car [D] to [R]. So he still would have two hours travel on the alternate Friday afternoons.
MS KIRKMAN-SCROOPE: Yes, your Honour. I take your Honour’s point. But [L] is going to get sick of the travel. Do you think [L] is going to get sick of the travel?---No, I don't.
HER HONOUR: What is the alternative, Ms Kirkman-Scroope?
MS KIRKMAN-SCROOPE: Well, it is difficult, your Honour, because if the father stays in [O] and the mother goes to [R], there is no alternative.
HER HONOUR: No, but see, this is it. It is not, “if” the mother goes to [R].
MS KIRKMAN-SCROOPE: She is, I- - -
HER HONOUR: And “if” the father goes to [O]. I mean, there is no more reason to be critical of the mother for wanting to live in [R] than to be critical of the father for wanting to live at [O]. I mean, he might say, “But I've lived there for generations. It is my blood, it is my heritage,” but I think you have got to get out of your mind that there is something wrong with the mother moving to [R]. I mean, sometimes in the court we have got children living in Paris and children living in Sydney.
MS KIRKMAN-SCROOPE: Yes, your Honour.
(transcript 1 November 2010, p 25, lines 18 – 45)
And further:
HER HONOUR: Or parents living in Paris or Sydney or parents in Hobart and Townsville. You know. The kids have to take their parents as they find them; they didn’t choose their parents.
MS KIRKMAN-SCROOPE: Yes, your Honour.
HER HONOUR: And they can’t choose where their parents live. So, I think you have got to change your attitude here, that there is – that the mother is doing something wrong by the children by living her life and getting on with her life.
(transcript 1 November 2010, p 26, lines 1 – 9)
We pause to comment at this point that we cannot see anything objectionable about what her Honour was putting to counsel.
Counsel then asked the mother whether, if the court ordered that the children live with their father, she would still go to R. The mother responded, “No, I don’t believe I would” (transcript 1 November 2010, p 26, line 13). After a few further exchanges, her Honour said to counsel:
You cannot indirectly pressure a parent to live somewhere else. You are well familiar with the facts of that case where the mother said that if the children couldn’t live with her in Sydney, would she live in Mount Isa – and she said, “Yes,” and the magistrate said, “Right, well, the kids are in Mount Isa and you have to live in Mount Isa.” You can't indirectly force a parent to live somewhere else either.
(transcript 1 November 2010, p 26, lines 24 – 29)
Despite the exchanges we have identified, the issue continued to be agitated by counsel for the father. While the father was being cross-examined by counsel for the mother this exchange took place between her Honour and the father’s counsel:
HER HONOUR: … I think he said today he’s no longer seeking full time.
MS KIRKMAN-SCROOPE: Well, on the basis that your Honour has said the mother is going to [R], there can be no argument that the children would spend a week in [R] and a week in [O]. It just- - -
HER HONOUR: Yes. Does the father accept that? I thought he said at the beginning of his evidence that he did. Just let me have a look.
MS KIRKMAN-SCROOPE: Your Honour, yes. He said he’s only seeking the residence on the basis that the mother is moving to [R].
HER HONOUR: Yes, he said that.
MS KIRKMAN-SCROOPE: If she’s not going to [R] but, your Honour, has said quite plainly at the beginning she is and the trial has proceeded on the basis that she is. So, therefore, I can’t put any logical or lawful argument to your Honour for equal time - - -
HER HONOUR: No, but the thing is, if you raise it, I have to deal with it laboriously in several pages of judgment. I’m really just asking, given that the mother will be living in [R], is the father now not pursuing his application for equal time week about?
MS KIRKMAN-SCROOPE: No, because it just wouldn’t work, it couldn’t work.
HER HONOUR: All right. …
(transcript 1 November 2010, p 131, lines 31 – 47; p 132, lines 1 – 9)
A little later another similar exchange occurred:
HER HONOUR: The second alternative at page 2(n) is equal shared care. So that’s now no longer sought. That was week about, 3 o’clock on Fridays.
MS KIRKMAN-SCROOPE: Not if we have proceeded with the trial on the basis the mother is living in [R].
HER HONOUR: Well, she said she wants to live in [R]. I can’t force her to live anywhere else.
MS KIRKMAN-SCROOPE: What I would say, your Honour, is that given that we have proceeded on that basis, my client would be seeking something to – he seeks equal time if the children remain in [O] – sorry – if the mother remains in [O].
HER HONOUR: But this is putting the cart before the horse. I have to make a decision as to the children’s best interests according to where the parents want to live. This is what the High Court explained in – what’s the name of the case, JHL or something?
MS KIRKMAN-SCROOPE: MRR or---
HER HONOUR: MRR.
MR GEORGE: Roses [sic] case.
HER HONOUR: Roses [sic] case. This is what the High Court explained, you see. Now, I have to make a decision of the children’s best interests based on the mother living in [R] and the father living in [O]. If the mother has said – if I order that the children live with the father in [O], she won’t move to [R], she will stay in [O]. But we don’t have then another trial. This is what Roses [sic] case is all about. Do you understand that? We don’t then have another trial and say, “Oh gosh, the mother happens to be in [O]. Let’s have another trial to see if we can try for equal shared care.” Do you understand that?
MS KIRKMAN-SCROOPE: Equal time.
HER HONOUR: Sorry. I’m sorry. It’s late in the day. I mean equal time. It’s plain I mean equal time.
MS KIRKMAN-SCROOPE: Well, then that is my client's case then because if she stays in [O], he wants them equal time. That’s what he has sought since 2004.
(transcript 1 November 2010, p 132, lines 25 – 46; p 133, lines 1 – 18)
On appeal, counsel for the mother’s response to the father’s submissions was that it was not the mother’s case that she wished to move to R because of necessity, so cross-examination on the question of necessity could not be relevant. He pointed out that the mother had given substantial reasons for why she wished to move, reasons adverted to by her Honour and those reasons were not tested in cross-examination.
Counsel for the independent children’s lawyer supported the upholding of the decision and opposed the appeal. Counsel submitted that somehow counsel for the father had become “fixated” upon the mother needing to show reasons why she should move to R, a proposition which her Honour rightly rejected. He submitted, as did counsel for the mother, that her Honour had correctly identified the issues to be determined, namely with which parent the children should live, having regard to their best interests, and that her Honour had correctly indicated to counsel that there was no probative value in pursuing a line of cross-examination which tended to suggest that its ultimate aim was to persuade the court to prevent the mother from leaving O.
We agree with these submissions.
We have fully considered the contentions of the father on this point and the matters to which we were taken by all counsel in the transcript. It seems to us that the argument on behalf of the father is a circular one. It is plain that the mother’s case was that she wished to live in R and that was her primary proposal. She proffered, as her Honour noted in her reasons for judgment, as many parents do, that if the court determined that it was in the best interests of the children to remain in O with the father then she would not relocate to R.
Her Honour was obliged to consider all of the proposals put by the parties having regard to the matters in s 60CC and she did so.
Her Honour was not in error in postulating that it was not up to the court to restrain the mother from leaving O and that she was entitled to make that proposal. In doing so her Honour was following what the High Court said in AMS (supra) per Hayne J at 231-2:
217 Of course, the decision of a parent who is about to move and who seeks custody may well be affected (often it will be determined) by whether he or she will have custody of the child if that proposed move is carried out. And it is, then, not surprising that counsel for the mother told the primary judge (in effect) that if the mother’s having custody of the child depended upon her staying in Perth then she would not move to Darwin. But that does not mean that the question for the Court is whether the mother is to be permitted to move to Darwin. And it does not mean that the question is whether the mother has shown a “good” or a “compelling” reason for wanting to move.
218To translate the question into this form — has the mother shown a good, or good enough, reason for wanting to move — focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child — to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin. If the mother had wished to move to marry and establish a new family in Darwin, or to take up new and better employment or training in Darwin, it may well have been possible to conclude that in all the circumstances the child’s welfare would be advanced by his being committed to the mother’s custody. The circumstances to be considered would include not only the fact of relocation but also all of the consequences that would follow — separation from the non-custodial parent, the creation of a new family in which the child would thereafter live (with all the concomitant advantages and disadvantages), the better economic position of the custodial parent, and so on. In that sense, inquiring about why the mother wished to move was relevant but it was only one inquiry among the many that go into deciding the ultimate question. The complexity (and difficulty) of the inquiries required by that question is well illustrated (in a different legislative context) by the decision of the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995. But as that decision rightly shows, the inquiries are directed to ascertaining what is in the best interests of the child.
219 The complexity and difficulty of the inquiries which must be made is increased when, as was the case here, a parent’s wish to move is expressed conditionally — I will go unless I cannot then have custody. It is more complex and difficult because there are then three competing possibilities for consideration. In these circumstances to focus, as the primary judge did in this case, on the reasons for the mother wishing to move, may have wrongly reduced the inquiry to two competing possibilities (of the mother having custody in Darwin or in Perth) but, more importantly, it turned it into an inquiry about whether the mother should be permitted to move. By turning it into an inquiry about whether she should be permitted to move, attention was distracted (wrongly) from what would promote the welfare of the child. (original emphasis) (footnote omitted)
Her Honour correctly identified, and dealt with in considerable detail in her judgment, the question of which of the proposals put forward by the parties was going to best promote the interests of the children. Her Honour, in our view, was correct when she pointed out to counsel for the father, as occurred on numerous occasions, that it was not going to be of any assistance, in the decision she had to make, for counsel to cross-examine on the reasons why the mother ought not to leave, when the mother’s case was that she wished to do so. It is also important to record that the reasons the mother gave for wishing to leave were in fact not challenged.
We are satisfied that there was no relevant ground of cross-examination
her Honour sought to “shut down”. Her Honour was appropriately seeking to ensure that the hearing was not prolonged by unnecessary and irrelevant cross-examination and that the parties focussed only on issues that were relevant. In fact, as is apparent from the passages we have described, her Honour painstakingly, in our view, tried to ensure that it was abundantly clear what the realistic options for the parties were, and tried to encourage counsel to direct the evidence and submissions to those matters. Accordingly, we find no merit in Grounds 2 and 3.
Grounds 4 and 6
Ground 4 asserts that her Honour erred in making preliminary findings with respect to parental responsibility in a manner that led counsel to believe that there was no issue of rebuttal of the presumption of equal shared parental responsibility and thus no need to consider relevant matters in s 60CC of the Act. The complaint seems to be that her Honour then subsequently in her reasons found that the presumption was rebutted, in so far as health and education issues were concerned, leading, we infer, to some procedural irregularity.
This complaint can be disposed of simply. Her Honour squarely raised the issue with counsel prior to any of the parties being called:
Simple as, so, as to parental responsibility, [the family consultant] expressed the opinion that, initially, that because they can't talk to each other, that equal shared parental responsibility is out of the question.
(transcript 1 November 2010, p 12, lines 17 – 19)
After then indicating that it was unusual to make an order for sole parental responsibility, her Honour said:
HER HONOUR: … Health and education, you can either have equal shared parental responsibility for health, education and religion, on the basis that you text each other with the issues, but I should think, if the children are going to live in [O] with the father, then the choice would be a prospect, where they are, or moving into [O]. If they could move to [R] with the mother, the choice will be between the schools that she has nominated, the Christian schools, or, I don’t know if – I don’t know, Ms Kirkman-Scroope. If the mother – if I decide the children’s best interests are to live with the mother in [R], does the father oppose their attendance at the school that she nominates? The private Christian school?
MS KIRKMAN-SCROOPE: No, your Honour.
HER HONOUR: All right, well, there we are. No problem with equal shared parental responsibility. That decision will be made. …
(transcript 1 November 2011, p 12, lines 45 – 47; p 13, lines 1 -
Her Honour continued to discuss the matter:
HER HONOUR: … I mean, it may be – I think [the family consultant], at the end, recommended that if the children live with the mother, she have sole parental responsibility for matters concerning their health, and that all other matters be the subject of equal joint shared parental responsibility. But that’s something to be discussed at the bar table. All right. Now, Mr George, you’re about to rise?
MR GEORGE: I was – no, your Honour then covered the area upon which I was going to - --
HER HONOUR: That [the family consultant] mentioned sole for health.
MR GEORGE: Particularly in relation to health.
HER HONOUR: I understand that, with [L’s] difficulties.
MR GEORGE: Yes.
(transcript 1 November 2010, p 13, lines 25 – 41)
We think it is clear that the question of whether her Honour would make an order for equal shared parental responsibility or sole parental responsibility in relation to schooling and health was a live matter that was to be determined and was in issue at the commencement of the trial. Nothing her Honour said, in our view, suggests that she gave the wrong impression to the parties or prevented them from calling evidence in relation to this issue.
In fact to the contrary, in closing submissions the following exchange occurred:
HER HONOUR: … You say that equal shared parental responsibility is what was sought by the father, and also by the mother, and it has been canvassed in the proceedings. And you say although the application was not amended that the mother may seek sole parental responsibility with respect to children’s health and education.
MS KIRKMAN-SCROOPE: I'm not - - -
HER HONOUR: Now – sorry, just for a minute. This is not a court of pleading. It’s a superior court, but the court has applications and responses in which parties set out the relief they are seeking. But it is well understood that in child cases, proposals can change. And the important question is, but has it been litigated. Now, I want to ask you this, please. Do you agree that the question of the mother having sole parental responsibility for health and education, has been fully litigated?
MS KIRKMAN-SCROOPE: I agree with that.
(transcript 3 November 2010, p 32, lines 37 – 47; p 33, lines 1 – 4)
It is difficult to see how, in light of this passage, the father could succeed with the complaint on appeal that he was in any way taken by surprise by the order made by her Honour.
The second part of Ground 4 challenges her Honour’s conclusion that the presumption of equal shared parental responsibility should have been rebutted in respect of issues of health and education, and that in determining this issue, her Honour “paid no regard to s. 60CC” (appellant’s amended outline of submissions, at [48]).
This argument cannot be sustained. Her Honour made clear findings in relation to all of the matters in s 60CC and specifically dealt with the matters in
s 65DAA. We have previously set these out at [41]-[58]. Her Honour did so before coming to any determination about parental responsibility and her conclusions on that issue must be seen as having been informed by her earlier findings.
In Ground 6, which is a reasons ground, it is contended that her Honour failed to explain “why her Honour’s fact finding coincided” with that of the family consultant (appellant’s amended outline of submissions, at [55]). In the father’s written submissions at [31], it is said that,”[t]his is particularly important, where Her Honour seemed, without hesitation, to accept the ‘[family consultant’s] recommendations’”.
In oral submissions, counsel submitted that vast tracts of the family consultant’s evidence have been quoted and that other evidence was not taken into account. However counsel did not take us to any other matters which might have contradicted the family consultant’s evidence.
It is not in doubt that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight. Departure from it in such circumstances requires careful consideration; however the ultimate decision must be that of the trial judge: Friscioni & Friscioni [2010] FamCAFC 108, Hall and Hall (1979) FLC 90-713 at 78,819, D & P [2006] FamCA 170, Andrew & Delaine [2009] FamCAFC 182, and Hannigan & Sorraw [2010] FamCAFC 257 at [136].
In this case, her Honour saw and heard the parties giving evidence and being cross-examined. Her Honour made a number of comments about the evidence of the family consultant in respect of the relevant provisions of
ss 60CC(2) and (3). It appears that most of the family consultant’s evidence was not the subject of challenge and certainly we were not taken to any passages in the transcript by counsel for the father that would indicate that
her Honour had incorrectly accepted the family consultant’s evidence or that the weight of evidence was against it.
When it came to a shared parenting arrangement, her Honour said at [202]:
I accept [the family consultant’s] evidence and opinion that a shared parenting arrangement is not in the children’s best interests, so that, plainly enough, an equal time order is not in their best interests. Whilst there is “no magic in a family report”, as well aired in the authorities, [the family consultant’s] view, further, coincides with my own independent view that the level of discord between the parties and the children’s need for consistency, in particular [L’s] need for consistency, and need for minimised exposure to the parties’ own conflict has effect that the children should live primarily with one parent and spend time with the other parent. Apart from my acceptance of [the family consultant’s] strongly held views and my own independent conclusion in this particular case, it is well established that usually equal time orders are made when parents have similar parenting styles and are able to communicate with and co-operate with each other. That is not the case here.
The reasons for accepting the family consultant’s evidence were made plain by her Honour, who indicated that her own conclusions corresponded with his. The fact that her Honour quoted from the family report, where her own observations coincided, does not constitute appellable error. We thus do not accept that her Honour gave insufficient reasons for her conclusion. The principles relating to adequacy of reasons requires little discussion and an appellate court must be able to “discern either expressly or by implication the path by which the result has been reached” (Bennett and Bennett (1991) FLC 92-191 at 78,267). Her Honour’s careful and extensive reasons for judgment demonstrate the path by which her Honour reached the decision to accept the evidence of the family consultant on various issues arising in the case.
Accordingly this ground must fail. As we have found no merit in any of the grounds of appeal, the appeal will be dismissed.
Costs
In the event that the appeal was unsuccessful, counsel for the mother and counsel for the independent children’s lawyer each sought an order that the father pay their costs. Counsel for the mother sought an order for costs on an indemnity basis. In support of his application for costs, counsel for the independent children’s lawyer pointed to the fact that Legal Aid had briefed a member of the private Bar on the appeal and therefore external fees had been paid.
Counsel for the father opposed any order for costs.
Section 117(1) of the Act governs costs, subject, inter alia, to subsection (2), namely the existence of circumstances that justify the Court in departing from the position that each party pay their own costs. This statutory mandate applies equally to appeals before the Full Court as it applies to first instance decisions.
The discretion conferred by s 117 is a broad one and the factors to which the Court is to have regard in s 117(2A) should not be read in a restrictive way (Collins and Collins (1985) FLC 91-603). Any one of the factors referred to in
s 117(2A) may be the sole foundation for an order for costs (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41]).In this matter, the father was wholly unsuccessful and in our view should pay the costs of the mother and independent children’s lawyer.
It is beyond doubt that in order to justify an award of indemnity costs, it must be demonstrated that there are exceptional circumstances, such that the usual order for party-party costs should be departed from (Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; Kohan and Kohan (1993) FLC 92-340; Munday v Bowman (1997) FLC 92-784; Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; Limousin & Limousin(Costs) (2007) 38 Fam LR 478; Fennessy &Gregorian (2009) FLC 93-399; D & D (Costs) (No 2) (2010) FLC 93-435, Stephens v Stephensand Anor (2010) 44 Fam LR 117). As was said by the Full Court in Stephens (at [67]):
An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages …
In support of the application for indemnity costs, counsel pointed only to the fact that it was always apparent there was no merit in the appeal. This is in our view not an exceptional circumstance as would justify an order for indemnity costs.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 29 August 2012.
Legal Associate:
Date: 29 August 2012
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