Nardello and Fillmore
[2009] FamCAFC 42
•25 March 2009
FAMILY COURT OF AUSTRALIA
| NARDELLO & FILLMORE | [2009] FamCAFC 42 |
| FAMILY LAW – APPEAL – FROM DECISION OF A FEDERAL MAGISTRATE – CHILDREN – With whom children live – Reasons for Judgment were delivered ten months after trial – In relation to the two youngest children of the parties orders were made that they live with the father – Mother appealed on multiple grounds including delay in delivering reasons and failure to properly consider family violence and primary attachment – The Federal Magistrate undertook discussion of the issue of violence but focussed on issue of risk of violence from the mother and failed to carry out a comparable assessment of risk of violence from the father despite this issue being raised in relation to both parties – Federal Magistrate erroneously encapsulated the evidence of the family consultant in relation to suggested safeguards against violence – Federal Magistrate did not discuss, in any direct way, the issue of primary attachment to the mother; a central factor. – Appeal allowed – Delay in delivering judgment and absence of transcript alone do not amount to a meritorious ground of appeal – No order as to costs |
| Family Law Act (1975) (Cth) s 61DA |
| Goode and Goode (2006) FLC 93-286 McCrossen and McCrossen (2006) FLC 93-283 Rice and Asplund (1979) FLC 90-725 |
| APPELLANT: | MS NARDELLO |
| RESPONDENT: | MR FILLMORE |
| APPEAL NUMBER: | NA | 85 | of | 2008 |
| FILE NUMBER: | BRC | 2130 | of | 2007 |
| DATE DELIVERED: | 25 March 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, O'Ryan and Murphy JJ |
| HEARING DATE: | 16 February 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 August 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 862 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Carmody |
| SOLICITOR FOR THE APPELLANT: | Legal Aid Ipswich |
| COUNSEL FOR THE RESPONDENT: | Mr Sara |
| SOLICITOR FOR THE RESPONDENT: | Aylwood Game Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S REPRESENTATIVE: | Mr Dick |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S REPRESENTATIVE: | DA Family Law |
Orders
That the appeal be allowed.
That Orders 1 to 5 inclusive of the orders of Federal Magistrate Wilson made 15 August 2008 be set aside.
That the applications for parenting orders in respect of the children, F born in January 2000 and T born in November 2002 be remitted to the Federal Magistrates Court of Australia for rehearing by a Federal Magistrate other than Federal Magistrate Wilson.
That there be no order as to costs of the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Nardello & Fillmore 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 85 of 2008
File Number: BRC 2130 of 2007
| MS NARDELLO |
Appellant
And
| MR FILLMORE |
Respondent
REASONS FOR JUDGMENT
On 21 and 22 September and 12 October 2007, Federal Magistrate Wilson presided over the trial of issues about the parenting orders which should be made in respect of the children of Mr Fillmore and Ms Nardello.
On 15 August 2008, that is, some ten months later, the Federal Magistrate delivered reasons for judgment and made final orders. This appeal by the mother, as it presented on the documents, focused attention on the delay between trial and judgment.
The four children of the parties and their approximate ages at the time of judgment in the Federal Magistrates Court are their daughter S, sixteen years and their sons, V, fourteen years, F, eight years and T, nearly seven years.
On the evidence before Wilson FM, S was living with her mother and preferred to stay there. The Federal Magistrate so ordered. There is no cross-appeal against that order. The mother did not oppose V staying with the father, as he preferred. However, each parent sought that the two young boys live with him or her.
The “tenor” of the case at trial and the essential reasoning of the Federal Magistrate appear from the following passages of his reasons:
3.… Often the choice confronting the court in parenting cases is between alternatives, both of which are less than optimal.
4.That is so in the present case where each parent focussed on the shortcomings of the other: in the case of the mother a history of physically abusive behaviour towards some of the children; and in the case of the father a history of little or no involvement in the children’s care and upbringing.
5.As Mr Sean Moriarty, the family consultant who prepared a Family Report, and whose evidence is referred to in greater detail later in these Reasons, observed this is a complex matter, with a mixture of older and younger children, … and a paucity of insight exhibited by both parents.
…
13.The mother has plainly perpetrated family violence against one or more of the children. …
…
52.… Mr Moriarty considered that there was an element of enmeshment in the boys’ relationship with their mother that was unhealthy.
53.I accept that both boys have a normal sibling relationship with [V] and [S]. There is no presumption against separating siblings. I would have thought however that the two younger boys may gain more being in the household of their father and older brother than in the mother’s household. As they grow older there is the concern that if they present challenging behaviour, as [V] did towards the mother, that will increase the risk that the mother will resort to inappropriate physical discipline in an effort to deal with them.
…
65.In my view the availability of the father after school and during the evenings to care for the two younger boys is a factor weighing heavily in favour of the boys living with him during the week.
At trial, the family consultant recommended, for reasons discussed later, that the two young boys live with the mother. That was also the submission of the Independent Children’s Lawyer (ICL). Wilson FM ordered that the two young boys live with the father.
There are 18 grounds of appeal, between them containing some 53 separate particulars of error. A few have been grouped in the lengthy Summary of Argument on behalf of the mother, but not in a way that we will adopt.
On the hearing of the appeal, Mr Dick, counsel for the ICL, who supported the appeal, attempted another grouping. We do not adopt that grouping either.
Ms Carmody, counsel for the mother on appeal, did not abandon any grounds, but moved away from the focus on delay in delivery of judgment to concentrate on allegedly inadequate consideration of a few factors bearing (she argued) on the children’s best interests. We summarise her oral submissions as that the learned Magistrate failed to give proper consideration to:
(a)the risk of violence in the father’s household; and
(b)the primary attachment of the younger boys to their mother.
We find merit in these arguments and intend to allow the appeal. After we have dealt with them, we will briefly categorise and address the other arguments.
Only a brief description of historical events is necessary before we return to the arguments on appeal.
In his reasons, Wilson FM said:
9.The parties separated on 9 January 2003. I accept that, following separation, all four children lived with their mother until 19 February 2007. I accept the mother’s evidence, which was not meaningfully contradicted by the father that until February 2007 the father saw the children infrequently, perhaps once or twice a month and usually at weekends to fit in with his work commitments. The father moved accommodation a number of times in this period, and often lived where there were not suitable facilities for the children, or all of them, to spend time with him overnight. Under cross examination the father was unable to recall how much time he spent with the children following separation. He contended that he did spend overnight time with the two younger children.
The learned Magistrate then recounted how, on 16 February 2007, the oldest child messaged the father and asked him to collect the children from the mother’s residence. Upon the father contacting the children, V told him that the mother had given him “a big hiding with the buckle of a belt”. The father later collected the children and instituted proceedings.
However, a few months later, S returned to live with the mother, in circumstances and with the aftermath described by the learned Magistrate as follows:
39.On 20 April 2007, whilst in the father’s care another significant event occurred. [V] misbehaved. The father struck him forcefully to the head. This led to an altercation between [S] and the father. The father acknowledges that his actions upset the children. The incident had occurred at the father’s partner’s home. When they were driving home, [S] insisted on being returned to her mother’s home. The father reacted angrily. At 11pm he dropped all of the children other than [V] at the mother’s sister’s residence.
40.Both the striking of [V] and the abandonment of the children in this manner late at night was highly inappropriate. The father went to retrieve the children in the following days. [S] refused to return with the father and has since returned to live with her mother.
41.Since April 2007 [S] has lived with the mother, and the three other children have lived with the father and spent time with the mother, essentially on alternate weekends.
Did the learned Magistrate adequately address the risk of violence in the father’s household?
In respect of the risk of violence in each parent’s household, Wilson FM said:
11.During the final hearing much was made by the father’s counsel of the mother’s physical abuse of the children, in particular [S] and [V]. The court does not condone such behaviour. The mother, I accept, now realises that such behaviour was entirely inappropriate. Whether she is able to modify her behaviour is of course a different matter. However, two things must be borne in mind when considering the mother’s behaviour in the wider context. First, as the father himself said, such behaviour occurred during the marriage. The father was aware of it. The father said in his evidence that when he attended the mother’s residence in 2003 and 2004 he would often hear the mother verbally abusing the children.
12.Secondly, the father himself has resorted to physical discipline, although I accept not to the same extent or severity as the mother. The father was prepared to leave all of the children with the mother for over three years. Either he was not unduly concerned as to the well being of his children, or he was indifferent to their protection. Neither alternative casts the father in a good light.
13.The mother has plainly perpetrated family violence against one or more of the children. Indeed, some of her actions constitute child abuse, by whatever standard is applied.
…
22.I accept that on 16 February 2007 the mother physically abused [V] with the buckle of a belt. She admits to striking him three or four times. The reason she gave for doing so, namely that [V] was being aggressive to his younger brothers, does not justify what the mother did. [V] suffered an injury to his right shoulder, documented in the records of the [N] Medical Centre (exhibit 3).
…
27.The records of the Department of Child Safety were put into evidence (exhibit 2). The mother was extensively cross examined about previous incidents of family violence. The records disclose, and I accept that:
a)On 17 October 2000 the mother struck [S] twice on the leg with the metal pipe of a vacuum cleaner causing bruising and swelling of the leg;
b)At the time the complaint was made of this incident, [S] told Departmental officers that she often “gets smacks” with the stick from her father. [S] said she was smacked about ten times a week (but didn’t specify by which parent);
c)The Department made an assessment of substantiated physical abuse by the mother against [S];
d)On 13 November 2001 [S] was struck by the mother approximately five times with a metal stick on the bottom;
…
g)On 9 November 2004 [V] had a bruise under his right eye and welts on either side of his chin. He said his mother had hit him with an implement and caused the bruise to his eye and his father had caused the welts to either side of the chin.
28.In her evidence the mother admitted using physical discipline with both [S] and [V]. She denied striking the children with a closed fist or hitting [V] with a weight bar. In my view, that does not matter. The mother used metal pipes, a wooden spoon and a belt with a metal buckle to strike the children. Whether she used a closed fist or an open hand to smack then is really beside the point. I accept that the mother perpetrated family violence against both [S] and [V].
…
32.The mother said she has always disciplined the children by smacking them on the bottom when they are naughty. She says the father never had any problems with this. She says he also smacked the children, although she says he did not do so very often. The mother says the children do not resist their father as they will be hit again every time they resist. Usually it is enough for their father to speak to them.
…
34.The father says that the maternal grandmother has also perpetrated acts of abuse against the children. He refers to her hitting [S] with the leg of a chair. …
35.The maternal grandmother, … is 67 years of age. She says that since she has been living with her daughter she has disciplined by smacking about twice a year, mostly to [V] who can be very disobedient. She said that the mother smacks the children either with her hand or a thong.
36.The mother accepted that the maternal grandmother smacked the children. The maternal grandmother, who gave evidence through an interpreter, said that she had seen the mother smacking [S] many times.
37.After hearing both parties give their evidence, I gained the impression that the mother has struggled to cope with parenting the four children, particularly [V]. She has resorted to the use of physical discipline, on occasions to excess. Hopefully for the futures of the four children concerned I think that two positive things have come out of these proceedings: the preparedness of the father to take more of a role in his children’s lives, and the realisation by the mother that her past behaviour was inappropriate. At paragraph 72 of the mother’s affidavit filed 17 August 2007 she says:
“I understand that physical discipline is not ideal and I am prepared to work to learn alternate discipline strategies, and better ways to deal with my teenagers and their attitudes. I have undertaken to the court that I will not use physical discipline against the children when they are in my care.”
And, as already seen:
39.On 20 April 2007, whilst in the father’s care another significant event occurred. [V] misbehaved. The father struck him forcefully to the head. …
40.Both the striking of [V] and the abandonment of the children in this manner late at night was highly inappropriate. …
Wilson FM also summarised the evidence on point of the family consultant, Mr Moriarty, in the following way:
42.… In his report, Mr Moriarty:
f)Reports the father stating that he has always been concerned about physical abuse of the children by the mother and members of her family;
g)…
h)Records the mother stating that she raised the children with little help from the father;
…
l)… [S] said that her mother now appeared to have changed and didn’t ‘get mental or real angry’.…;
…
p)Opined that there are clear issues of child abuse in this family. The mother has been excessive and inappropriate in her physical discipline of the children, and this pattern has existed over some years. The mother has deferred to other members of her family for the children’s care, and the quality of this care has been suspect;
q)States that the further context to the family is the disengaged relationship the father has had with the child rearing process;
r)Expresses the view that the mother has mostly struggled alone with the children;
s)Opines that although the mother has physically abused the children, it is possible to consider that there is also a degree of risk with their father. It is more difficult to ascertain if it is the same degree of risk;
t)…
u)Considers that a relevant consideration to the mother’s behaviour is the stress under which she lives;
v)Expresses the view that with appropriate undertakings the risks associated with the mother’s care of the children could be managed or reduced
w)Says, at paragraph 71 of his report:
“There are no clear options in this matter due to the number of issues of abuse, physical and emotional, that occur on both sides of the family. I think that the best option for the younger children would be if they were able to return to the care of their mother with the appropriate safeguards, with regular time with their father. The older children could remain in the same arrangement – [V] with his father and [S] with her mother.”
…
46.The presumption of equal shared parental responsibility referred to in s.61DA(1) of the Act does not apply in this case. It is made inapplicable because, as provided for in s.61DA(2), there has been family violence perpetrated at least by the mother, and she also physically abused at least two of the children. …
47.… He [Mr Moriarty] also concludes that there is a risk of harm to the children in both households. …
…
49.… Historically the mother has had trouble coping with [V]. [V] has been diagnosed with an intellectual impairment. …
…
51.That leaves the two younger boys. Mr Moriarty opines that they should live with their mother as the best option. Mr Moriarty says that this should only occur with appropriate safeguards. Unfortunately Mr Moriarty does not give any explanation as to why this is the best option, nor what safeguards are appropriate. In my view, the additional considerations referred to in s.60CC(3) of the Act tend in the contrary direction to Mr Moriarty’s opinion.
52.… Perhaps due to their younger age neither of the younger boys have been subject to physical abuse by either parent. …
53.… As they grow older there is the concern that if they present challenging behaviour, as [V] did towards the mother, that will increase the risk that the mother will resort to inappropriate physical discipline in an effort to deal with them.
…
69.Both parents have in the past demonstrated a less than acceptable attitude to their responsibilities of parenthood: the father by his lack of involvement, and the mother by her abuse of the two older children. The father has demonstrated that he now wishes to play a greater role in the children’s lives. The mother says she recognises the error of her ways, but her resolve in that regard is untested. [S] told Mr Moriarty that her mother was less angry than previously. Perhaps that is because she has not had the majority of the care of the three boys.
…
71.I have already dealt at length with the mother’s history of family violence, and the father’s more limited episodes thereof. The risk that must be countenanced is that as the two younger boys grow older they will behave in a manner that the mother has difficulty dealing with. She may then resort to inappropriate physical discipline. Mr Moriarty says that both parents’ behaviour is well entrenched.
72.In my view, the court should err on the side of caution where the risk of abuse of children is concerned. That means that where, as has happened here, one parent has a proven history of inappropriate behaviour, and there is a risk that such behaviour will be repeated if children are in that parent’s care, the court should fashion parenting orders to minimise that risk. In this case that means that the two younger boys should live with their father, and spend time with their mother on a regular basis.
…
75.… I have consciously not made an order that neither party physically discipline the children. In my view, given the issues that have been ventilated at the trial, such an order is unnecessary. Both parties now know full well that such conduct is inappropriate.
In our view, while as demonstrated in the passages quoted, there is considerable discussion of the issue of violence by the parents, there are three ways in which the learned Magistrate’s consideration was erroneous or insufficient:
(i)Paragraph 75, the last in the judgment, in which Wilson FM says that he has consciously not made an order that neither party physically discipline the children because, given the issues that have been ventilated at trial, such an order is unnecessary and “both parties now know full well that such conduct is inappropriate” is quite inconsistent with the balance of the learned Magistrate’s assessment of risk in the mother’s household.
(ii)Secondly, that part of his judgment where he indicated that he rejected Mr Moriarty’s recommendation as to where the children should live, because Mr Moriarty had said that should only occur with appropriate safeguards, as to which Wilson FM said Mr Moriarty had given no explanation of safeguards, is erroneous. As seen, the learned Magistrate set out paragraph 71 of Mr Moriarty’s evidence in which Mr Moriarty made the recommendation. However, in the very next paragraph, which was not quoted by the learned Magistrate, Mr Moriarty had said:
72.Apart from the normal undertakings not to physically discipline the children, both parents may benefit from a parenting program in addition to – if resources allow – individual counseling on parenting. (emphasis added)
Moreover, in his examination in chief, then counsel for the ICL asked Mr Moriarty about the “safeguards” referred to in his report and then asked:
“Is there anything else that can be put in place that you think would help?”
Mr Moriarty responded
“I would think that if the children are – if the younger children are in the care of their mother the most important aspect would be that the father is having continuing visits and time with the children, not only for the benefit of his relationship with them but also to relieve stress amongst the whole family and upon the mother.
(iii)While (save for the inconsistency referred to in the first point above) it may be that Wilson FM adequately addressed the question of risk of violence in the care of the mother and while from time to time he mentioned evidence of abusive behaviour by the father, of the older children, the learned Magistrate did not attempt to make any real assessment of risk of violence in the father’s household, despite Mr Moriarty’s opinion of that risk and ample evidence pointing to that as an issue.
For example, the father had no extended history of carrying the burdens of child rearing, but had still acted abusively towards V. In relation to that event involving V, leading to the husband abandoning the children late at night, Mr Moriarty had said:
68.…He [the father] appears to accept that this was inappropriate, but I doubt that this will prevent the same thing from occurring again.
In addition, the evidence from the Department of Child Safety included a number of allegations against the father.
We do not say that, properly weighed, a finding that risk of violence was less in the father’s household than in that of the mother might not have been open. Our conclusion is however, that the learned Magistrate’s assessment of comparative risk, in a case in which that was a critical factor, was inadequate.
Did Wilson FM adequately address the likely effect on the children of a change of primary residence?
As seen, the children had lived all of their lives, up until February 2007, primarily with the mother and, as the learned Magistrate seems to have accepted, with the father only lightly involved in their upbringing. Mr Moriarty reported:
69.The younger children are intensely attached to their mother. There is an enmeshed element to this bond, as demonstrated in her behaviour for these interviews, and this is an unhealthy aspect. However it is my view that their most primary attachment has been with her, partly due to the manner in which she shapes those attachments with her own behaviour, but also through the fact that they have spent the primacy of their lives solely in her care.
Of his assessment of F, Mr Moriarty had said:
59.He said it was fun at his father’s house, saying that they saw movies and ‘sometimes go to [the father’s partner’s] house’. He thought that he was living with his father because he loved him and was sad for him, adding ‘when he cries I cry’. Asked about his mother he said ‘I feel like living with her now, I miss her…I can’t stop thinking about her, I cry a lot…I feel like living with her right now’. He could not recall getting smacks from his mother. Sometimes his father smacked him when he was naughty.
And in respect of T:
60.[T] is a happy little boy. He spoke simply and played well with his siblings. I interviewed him only briefly due to his age. He demonstrated a very strong attachment to his mother, although his bond with his father was also notable.
Again, we think the children’s attachment to their mother was, as is made plain by the facts of this case and the terms of s 60CC of the Family Law Act 1975 (Cth) (“the Act”), a central factor for Wilson FM’s consideration. Yet, the learned Magistrate did not discuss this aspect of the decision to change the primary residence of the children, at least not in any direct way. Relevant passages of his judgment are as follows:
42.… In his report, Mr Moriarty:
…
n)Notes that [F] was a boisterous mostly happy boy. He spoke openly. He could not recall getting smacks from his mother. He said that sometimes his father smacked him if he was naughty. He was ambivalent about who he would like to live with;
o)Says that [T] was interviewed only briefly due to his age. He demonstrated a very strong attachment to his mother, although his bond with his father was also notable;
…
t)Opines that the younger children are intensely attached to their mother. There is an enmeshed element to this bond which is unhealthy;
…
52.Neither of the two younger children expressed any views that should be accorded any weight. Both younger children have a close and loving relationship with both of their parents. Perhaps due to their younger age neither of the younger boys have been subject to physical abuse by either parent. Mr Moriarty considered that there was an element of enmeshment in the boys’ relationship with their mother that was unhealthy.
Again, we do not say that, all factors properly considered, the orders made by the Federal Magistrate or orders like them would not have been in the children’s best interests. The learned Magistrate made a number of findings going against the mother’s case, which were unchallenged in the appeal. However, the factor of the children’s attachment to each parent and the likely effect upon the children of removal from residence with the mother was, as we have already said, a critical factor, which was to be addressed in a more complete way than that disclosed in the above passages.
It is also in this context that the question of the delay between the hearing and the delivery of judgment plays a part.
In McCrossen v McCrossen (2006) FLC 93-283, the Full Court of the Family Court of Australia discussed at length the question of the significance on appeal of a delay in the delivery of reasons for the orders appealed. Their Honours cited many authorities. We consider that the following passages are apposite to the present appeal:
[76] It was common ground that there was a delay of more than 13 months between the completion of the evidence and the delivery of reasons for judgment by the trial Judge. It was also common ground that correspondence was sent by the Executive Director of the Law Society of Tasmania, on behalf of the parties, and Mr Duncan Kerr MHR on the wife's behalf, to express concerns to the Chief Justice in relation to the delay of the delivery of the trial Judges reasons for judgment. It was common ground that on the 26 February 2005, reports appeared in the print and subsequently electronic media concerning, amongst other things, the delay by the trial Judge in the delivery of some reasons for judgments in other cases (but with no specific mention of this case). In R v Maxwell (1998) 217 ALR 452, Spigelman CJ, Sperling and Hidden JJ said that "although mere delay is not a ground of appeal, this Court must apply the strictest of scrutiny to a criminal judgment which may have been effected by the inevitably adverse consequences of delay".
[77] Their Honours adopted the analysis of the English Court of Appeal in Goose v Wilson Sandford and Co (1998) 142 SJLB 92. In Goose the delay was approximately 21 months. Their Lordships said (extracted in Maxwell at 463):
Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge’s advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. …
[79] In Hadden & Hadden & Osmond [2001] FamCA 113 the Full Court of the Family Court said “while we do not necessarily accept that the same considerations apply to proceedings in this Court as, for compelling reasons, apply to proceedings in Courts of criminal appeal, we have approach[ed] the issues in this appeal which involve challenges to the trial judges findings of fact, drawing of inferences and reaching conclusions, with ‘the strictest of scrutiny’” (at page 22).
[81] In Monie v The Commonwealth[2005] NSWCA 25 the New South Wales Court of Appeal … summarised the approach taken as follows:
…
(6) Where there has been significant delay, there can be no assumptions that statements of a general assertive character made by the judge are based on a sufficient consideration of the evidence, or that evidence relevant to a particular finding not considered in the judgment has not been overlooked by the judge in making that finding where that evidence, if accepted, could have supported a different finding.
…
(9) And, finally, the long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility that such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning.
Other arguments raised on appeal
We summarise these as follows:
·That the learned Magistrate failed to properly consider the presumption of equal shared parenting responsibility, and whether the children should spend equal time or significant or substantial time with the mother.
·That the learned Magistrate erred in failing after a delay of ten months to afford the mother an opportunity to make submissions before pronouncing the orders.
·That the learned Magistrate not availing himself of transcript, rendered the decision unsafe and unsatisfactory.
·That the learned Magistrate allowed the question of gender to “carry the day” in the placement of the two young boys with their brother and their father.
·A miscellany of complaints in the written summary of argument, such as that in Wilson FM’s reasons, there was minimal reference to the parties’ affidavit, material reliance on undisclosed documentary evidence, no reference to oral evidence, no assessment of the role played by the mother’s extended family, no resolution of certain disputes of fact, for example in relation to the children’s cultural heritage.
Of the last category we say no more than that, in so far as the complaints have not already been discussed, we have considered them but find no merit in them.
As to the asserted denial of an opportunity to the mother to make further submissions, before Wilson FM made the orders appealed, and to the asserted lack of recourse by Wilson FM to transcript, the mother seeks to put further evidence before us, detailing the way in which notice was given of the Federal Magistrate’s intention to hand down judgment, and information she gained from the transcription service that no transcript had been obtained before the appeal was instituted. We permitted that further evidence. It was not contentious and simply provided information relating to the court process below.
An absence of transcript does not, of course, of itself mean that a judge has no assistance in recalling oral evidence. A judge may take notes which may be extensive and which may record not just what a witness says, but impressions and other matters relating to that witness and characterisation of the evidence. There are several references within Wilson FM’s reasons to oral evidence.
9.…Under cross examination the father was unable to recall …
…
27.…The mother was extensively cross-examined …
37.After hearing both parties give their evidence …
…
55.It emerged in passing in the evidence that the father has a daughter [A] aged two. [A] does not spend overnight time with the father. The father sees her twice weekly. There was no evidence of any parenting orders or arrangements so far as [A] was concerned.
We do not think that delay and absence of transcript alone amount to a meritorious ground of appeal.
We reject the contention that the mother was not given an opportunity before delivery of judgment to put further evidence before the Federal Magistrate. The mother might have made such an application at any time prior to delivery of judgment, either before or after receiving notice that judgment was to be handed down. Moreover, there is nothing before us to indicate that there was any basis for such an application by either party and in those circumstances, the argument seems rather hypothetical.
In any event, any developments that could arguably have affected the outcome are likely to be matters best examined at first instance and a further application was an available course to the mother, upon which enquiry could be made as to any such developments. Provided there was a continuing effect of such developments, then the mother would not be disadvantaged in relation to any application of the principle in Rice and Asplund (1979) FLC 90-725 by virtue of the circumstances arising prior to an order, rather than subsequently.
In the written Summary of Argument, the mother argued that the learned Magistrate allowed the question of gender to “carry the day” in the placement of the two young boys with their brother and their father. We reject this proposition. That his Honour gave weight to that aspect does not of itself demonstrate that it was inappropriate weight.
As to whether Wilson FM failed to properly consider the presumption of equal shared parental responsibility, and that the mother have equal or significant and substantial time with the children, in his reasons, Wilson FM said:
46.The presumption of equal shared parental responsibility referred to in s.61DA(1) of the Act does not apply in this case. It is made inapplicable because, as provided for in s.61DA(2), there has been family violence perpetrated at least by the mother, and she also physically abused at least two of the children. That means each of the parents has parental responsibility for their children pursuant to s.61C of the Act. When children are in their respective care, that parent should exercise his or her parental responsibility.
We see no error in what is said in the first two sentences. If the last two sentences do not correctly express the law, it is of no consequence in this appeal, as the learned Magistrate did not rely on what is there said to make the orders appealed.
As to consideration of the mother having equal or significant and substantial time with the children, the learned Magistrate having found that the presumption of equal shared parental responsibility was rebutted by virtue of the terms of s 61DA(2) was not obliged by the Act to consider equal time or significant and substantial time. In Goode and Goode (2006) FLC 93-286, the Full Court said:
81. … the legislative pathway must be followed.
82. In an interim case that would involve the following:
…
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
…
There were obviously limitations within which the question of time to be spent by the mother with the children, fell for consideration. Wilson FM said:
73.As I have said, the mother’s working commitments, and the distance that the parties live apart, dictate that such time should be on alternate weekends. That gives both parents time on weekends to spend with the children.
We are not satisfied that the learned Magistrate failed to properly follow the “legislative pathway”.
Consequential orders
The appeal will be allowed. No counsel argued that we attempt a re-exercise of discretion. We consider that the passage of time of itself renders a remission necessary. That such a result is unfortunate need hardly be said and is, of course, a further consequence of the delay in delivering judgment.
Costs
All parties are legally aided. Ms Carmody sought costs in the event that has transpired. The appeal succeeds because of inadequate consideration of relevant factors, not necessarily because the result might not, on a proper consideration, be seen to be correct.
We consider that there should be no order as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 25 March 2009
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