Newlands & Newlands
[2007] FamCA 168
•13 March 2007
FAMILY COURT OF AUSTRALIA
| NEWLANDS & NEWLANDS | [2007] FamCA 168 |
| APPEAL – CHILDREN - PARENTING ORDERS - Proceedings heard prior to commencement of Family Law (Shared Parental Responsibility) Act 2006 (Cth) - Judgment delivered and orders made after commencement of Act - Whether trial Judge failed to provide natural justice by not affording husband opportunity to make submissions as to effect of amending Act on his application – Trial Judge made order in chambers inviting written submissions as to impact of amending Act – Wide publicity in respect of changes to Act –Circulation of Practice Direction No.1 of 2006 - No breach of rules of natural justice – Trial Judge afforded husband appropriate opportunity to make submissions – No merit in this ground. Whether trial Judge misapprehended nature of husband’s application and whether this permeated and affected whole judgment – Trial Judge prima facie appears to have misunderstood nature of husband’s application before her – That misapprehension vitiated trial Judge’s discretion in assessing parties’ competing proposals – Appeal must succeed on this ground. Whether trial Judge erred in her findings in respect of family violence – Trial Judge’s findings not open on the evidence. Equal shared parental responsibility - Whether trial Judge erred in her findings in respect of the rebuttal of the presumption of equal shared parental responsibility - Section 61DA – Not clear whether trial Judge either declined to apply presumption or found presumption rebutted – Finding presumption did not apply because of family violence not open on the evidence. Whether trial Judge denied husband natural justice on basis that order for wife to have sole parental responsibility for decision making in respect of education was not an order sought by either party and husband not afforded opportunity to make submissions in respect of it – Neither party sought an order that they have any particular aspect of parental responsibility – Open to her Honour, if in best interests of children, to make an order that an aspect of parental responsibility be exercised solely by one parent if parties afforded procedural fairness by inviting submissions – Husband had no opportunity to be heard in respect of proposed order – Failure to do so constitutes appealable error. Trial Judge made order except for one aspect of parental responsibility for “joint” parental responsibility – Act does not refer to “joint” but rather “parental responsibility” and “equal shared parental responsibility” – Effect of s 61C – Consideration of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 – Consideration of Goode and Goode (2006) FLC 93-286 – Discussion in Goode did not address situation arising in this case where trial Judge allocated one portion of parental responsibility to one parent only - Having done so, issue of how remaining aspects of parental responsibility were to be allocated arose – Unclear whether trial Judge intended parental responsibility (other than education) was to be shared equally and thus exercised jointly, that is, in consultation, or whether parental responsibility was to be exercised in accordance with ss 61C and 61D and exercised either jointly or independently. Whether trial Judge failed to discuss and give reasons for rejecting family consultant’s recommendations – Evidence of and recommendations by a family consultant requires careful examination by a trial Judge – Trial Judge’s failure to examine and give reasons for her rejection of the family consultant’s evidence constitutes appealable error. Appeal in respect of parenting orders allowed. Matter remitted for rehearing. APPEAL – PROPERTY - Whether property orders made by trial Judge outside reasonable ambit of discretion – Parties conceded in event appeal successful in respect of parenting orders, new trial would be required on all issues – Parenting orders ultimately made for children will impact on assessment of factors under s 75(2) – Property orders cannot stand. STAY – Oral application made for stay – Not necessary to determine stay application as appeal allowed. COSTS – Appropriate to grant certificates under Federal Proceedings (Costs) Act 1981 (Cth) in respect of appeal and rehearing. |
| Family Law Act 1975 (Cth), ss 60CC, 61C, 61D, 61DA, 64B, 65DAA, 65DAC, 75(2) and 79 |
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Bolitho and Cohen (2005) FLC 93-224
Goode and Goode (2006) FLC 93-286
Jones v National Coal Board [1957] 2 QB 55
L and L [2002] FamCA 537
N and N [2004] FamCA 706
Stead v State Government Insurance Commission (1986) 161 CLR 141
U v U (2002) 211 CLR 238; (2002) FLC 93-112
| APPELLANT: | Newlands |
| RESPONDENT: | Newlands |
| FILE NUMBER: | SYF | 4717 | of | 2004 |
| APPEAL NUMBER: | EA | 91 | of | 2006 |
| DATE DELIVERED: | 13 March 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn & Boland JJ |
| HEARING DATE: | 2 November 2006 |
| DATE OF RECEIPT OF SUBMISSIONS: | 18 December 2006 and 20 December 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 August 2006 |
| LOWER COURT MNC: | [2006] FamCA 842 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC with Ms Winfield |
| SOLICITOR FOR THE APPELLANT: | Tonkin Drysdale Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Maiden SC |
| SOLICITOR FOR THE RESPONDENT: | D J Chapman |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Newlands v Newlands.
Orders
The appeal is allowed.
That Orders 1, 2, 3, 5 and 6 of the orders made by the Honourable Justice Lawrie on 17 August 2006 be set aside.
That the husband’s application for parenting orders and property settlement be remitted for retrial as soon as possible by a Judge in the Sydney Registry other than the Honourable Justice Lawrie.
That the Court grants to the husband a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband in respect of such part as the Attorney-General considers appropriate of the costs incurred by the husband in relation to the appeal.
That the Court grants to the wife a costs certificate in relation to the appeal pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect of such part as the Attorney-General considers appropriate of the costs incurred by the wife in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 91 of 2006
File Number: SYF 4717 of 2004
| Newlands |
Appellant
And
| Newlands |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the husband, against parenting and property orders made by Lawrie J on 17 August 2006. The appeal is opposed by the wife.
The trial Judge’s orders provided for the parties’ two children B aged 6 years and J aged 3 years at the date of the hearing to live at all times with the wife except on alternate weekends, from the conclusion of school on Friday until commencement of school on Monday, and in the other week overnight on a Thursday evening, as well as for half of all school holidays and on other special occasions. During those times the children were to live with the husband. The trial Judge also ordered that “except in matters of education in which the mother will have sole parental responsibility the parties will have joint parental responsibility”. The trial Judge divided the property of the parties, which she found to have a value of $613,131.00, equally between them.
The proceedings were heard by the trial Judge prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) on 1 July 2006 (“the amending Act”). Her Honour’s reasons were published and orders made after the commencement of the amending Act.
Although the husband’s further amended Notice of Appeal filed on 16 October 2006 comprised some 20 grounds of appeal, and we permitted further amendment by the addition of two further grounds, before us the husband’s senior counsel based his challenges to the trial Judge’s reasons for judgment in respect of the parenting orders under essentially four topics:
·an asserted failure to provide natural justice by not affording the parties an opportunity to address the trial Judge as to the effect of amendments to the Family Law Act 1975 (Cth) (“the Act”) as a result of the commencement of operation of the amending Act on the competing applications (ground 22);
·an asserted failure to deal with the husband’s application for orders as sought at trial (ground 1);
·an asserted error in findings in respect of family violence and the rebuttal of the presumption of equal shared parental responsibility (grounds 11 and 21); and
·an asserted failure to discuss and give reasons for rejecting the family consultant’s recommendations (ground 2).
Senior counsel for the husband also submitted that the property orders made by the trial Judge were outside the reasonable ambit of her discretion (grounds 16, 17 and 20).
Before us, senior counsel for the wife conceded that in the event the appeal succeeded in respect of the parenting orders, little consideration would be required of the appeal against the trial Judge’s property orders. Both parties’ counsel conceded in the event that the appeal was successful there would need to be a retrial of all issues.
At the conclusion of the hearing before us, senior counsel for the husband made an oral application for a stay of the trial Judge’s parenting orders. We propose to deliver our reasons in respect of the stay sought with these reasons.
Background history
The following factual matters appear from the trial Judge’s reasons and the Court record and are not in dispute.
The wife was born in 1968 in the Philippines. The husband was born in 1970 in Australia. The parties met in 1989 and became formally engaged in 1993. The parties commenced cohabitation in 1993 initially living with the husband’s parents in Sydney. In 1996 the parties were married.
In 1995 the parties purchased a property on the Central Coast (“the matrimonial home”) for a purchase price of $137,000.00. The purchase price was funded by a deposit of $13,700.00 and the balance of the purchase price was borrowed from the Commonwealth Bank.
The husband asserted in 1997 he received a gift from his parents of the sum of $50,000.00.
On 14 June 1998 the husband was injured in an industrial accident.
In 1999 the parties’ eldest child B was born.
On 6 July 2001 the husband was retrenched from his employment.
In 2002 the parties’ second child J was born.
The husband compromised a common law claim commenced in the District Court of New South Wales on 13 June 2001, and pursuant to consent orders made in late 2002, the husband received total funds of $362,131.03 in settlement of his claim.
In September 2002 the husband used $100,933.02 from the settlement funds to discharge the mortgage secured over the matrimonial home.
On 15 October 2002 the husband paid the sum of $36,005.40 to his parents.
In November 2004 the parties separated.
On 21 December 2004 orders were made by consent in the Local Court at Woy Woy. Pursuant to the orders the children resided each week with the husband from 12 noon each Wednesday until 5.00 pm each Saturday and with the wife at all other times.
The shared care of the children remained in place from December 2004 until the orders of the trial Judge of 17 August 2006, whereafter the children’s living arrangements were in accordance with her Honour’s orders.
The parenting judgment
Trial Judge’s reasons
Having set out the background history referred to above, the trial Judge noted:
The husband by his Amended Application sought that the children live with him and the wife have reasonable contact. (paragraph 4)
The trial Judge then set out the orders sought by the wife in her case summary document, namely that the children live with her and the husband have contact each alternate weekend and additionally have contact for one half of school holiday periods.
The trial Judge recorded that the Act was amended in 2006 after the hearing before her, but before the orders were made and noted, correctly “[t]he law to be applied is therefore the post 2006 amendments”.
The trial Judge referred to s 60CA which provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration, and then set out the objects provisions in Part VII (s 60B). Her Honour thereafter noted the requirement to consider the matters set out in s 60CC of the Act in determining what was in the best interests of the children. When discussing the primary considerations referred to in s 60CC her Honour said:
… it would be to the benefit to the children to have a meaningful relationship with both of their parents as set out in subparagraph (a). They are described in the family report as having a close attachment to both of their parents. At the appointment for the family report, they moved ‘freely from one parent to the other and did not exhibit distress about being separated from one, to be with the other. In addition the children appeared to have a close and affectionate relationship with their parental grandparents’. (paragraph 14)
The trial Judge noted the requirement in subparagraph (b) of s 60CC(2) to protect children from physical or psychological harm from being subjected to or exposed to family violence. Her Honour said “[t]here was some family violence during the closing stages of the relationship, and the wife says it has continued”. Having set out the definition of family violence inserted by the amending Act, and referred to research literature of the impact of violence on spouses and children, her Honour said “[t]here was no physical violence towards the children, but they were aware of some between the parents. The wife says that the husband invariably argues with her at the changeover, and has repeatedly undermined her authority in front of the children. I accept that evidence. He says that the communication problems are her fault”. Her Honour concluded:
This is something that the children need to be protected from. One way of doing this is to have the changeovers at school, where one parent drops them off in the morning and the other collects them in the afternoon. This seems desirable in the present situation. (paragraph 20)
The trial Judge thereafter set out and made findings about factual issues under each of the additional considerations listed in s 60CC. We now set out the most important of her Honour’s findings under s 60CC. In her consideration of these factors the trial Judge noted “[a]s indicated above the children have a loving and happy relationship with all the members of their family, and they are particularly close to their paternal grandparents”.
In discussing her findings in respect of the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent, her Honour said “I would not see one as being significantly better than the other”.
In considering the likely effect of any change in the children’s circumstances her Honour found:
If the children don’t have significant time with each of their parents, and with their extended family, they would be likely to be distressed. However a more structured time such as proposed by the wife would not be likely to cause any distress to the children, and by eliminating exposure to arguments between their parents, may lower their level of distress. In broad terms, they are likely to want to see as much of their parents as they do now. (paragraph 25)
In dealing with the capacity of each of the parents, the trial Judge made findings that “[t]he mother’s capacity for providing for the physical and educational needs does appear to be greater than the father’s. He has some physical limitations because of his injuries”. Her Honour also recorded her findings in respect of the husband’s attitude towards resuming a relationship with a former girlfriend, and the emotional impact of that relationship on the children.
In relation to s 60CC(3)(i) (the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents) her Honour noted the wife had “a more active attitude to the responsibilities of parenthood, and is more in the role of leader and parent than the father who is more prepared to ‘go along’ with what the children want to do, and also, I am satisfied, involve others such as his parents in their care”.
Her Honour then turned to the question of parental responsibility. Later we will discuss more fully her Honour’s approach to this question. It is sufficient here to say that her conclusions were:
37.This is a case where I am satisfied it would not be in the best interest of the children for their parents to have equal shared parental responsibility. It is also a case where there has been domestic violence, which also makes it an exception. The very different approaches of the parents and the communication difficulties are such, that this is not a situation where a shared caring pattern is a good idea.
…
47.In this case I do not think that the parties are able to achieve making a joint decision about the children’s education. On the other hand I do not think it is appropriate for the mother to have the sole control of the children’s health, religious and cultural upbringing, their name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a partner.
Finally, her Honour concluded that it would be in the best interests of the children “if they were to live with their mother during most of the school week and see their father for alternative weekends, with an overnight stay on the Thursday before the weekends that they do not spend with their father”. She also said “[t]he parents should share the school holidays, and make provision for special occasions”.
Grounds of Appeal
As we have already noted, at the commencement of the appeal, senior counsel for the husband sought, and was granted leave to further amend the further amended Notice of Appeal filed on 16 October 2006. The additional grounds of appeal are as follows:
Ground 21
That the learned trial judge erred in law in having correctly found that the amendments to the Act commencing 1 July 2006 applied to her determination failing thereafter properly to consider and make determinations pursuant to s.61DA(1) and unless rebutted, s.65DAA.
Ground 22
That the learned trial judge erred in law in failing to afford the parties an opportunity to address the Court on any matter arising out of the amendments to Part 7 [sic] of the Family Law Act which came into force on 1 July 2006.
Senior counsel for the husband also sought, without objection, to further amend ground 2 as set out below:
Ground 2
“Her Honour erred in failing to take into account the recommendation of the Court Counsellor, [Ms G], that an equal shared living arrangement continue for [B] and [J]. And further failed to address at all the fact that this was the husband’s application made at trial.”
Because of the late notice of amendments to the grounds of appeal we permitted senior counsel for the wife the opportunity to provide written submissions in respect of the amended grounds of appeal, such written submissions being received by us on 18 December 2006.
We find it convenient to discuss the grounds of appeal under the topics previously identified in the introduction to these reasons.
Natural Justice Grounds
The hearing before the trial Judge took place over three days commencing on 18 April 2006. That is, prior to the amendments to the Act. Her Honour’s reasons for judgment were delivered on 17 August 2006 and therefore involved determination of the parties’ competing parenting applications in accordance with the amendments which came into force on 1 July 2006.
The essential thrust of senior counsel for the husband’s argument on this point was that the husband had been denied an opportunity to make submissions to the trial Judge of the effect of the amending Act on his application. Counsel referred us to the decision of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146. In that case Mason, Wilson, Brennan, Deane and Dawson JJ referred to the English Court of Appeal decision in Jones v National Coal Board [1957] 2 QB 55 at 67 in respect of a fair trial, and said:
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
Their Honours further noted, however:
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
The facts in this instance about the opportunity to make submissions are not in dispute. On 12 May 2006 Bryant CJ issued Practice Direction No. 1 of 2006 – Family Law Amendment (Shared Parental Responsibility) Act 2006 Transition Directions – Parenting Cases currently listed for Trial. The Practice Direction dealt with applications then currently listed for trial in the period from the date of issue of the Practice Direction to 30 June 2006, and parenting cases listed for trial on or after 1 July 2006. In the former case the Practice Direction noted “parties are expected to ensure that the evidence presented, orders sought, submissions made and summaries of argument filed also address the Family Law Act 1975, as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006”.
We accept that this case did not fall directly into the cases referred to in the first category in the Practice Direction. However, on 4 July 2006 the trial Judge’s associate wrote by facsimile to each of the parties in the following terms:
I refer to the hearing of this matter before Justice Lawrie.
Would you kindly note that Her Honour made the following direction in Chambers on 3 July 2006:
“1.That any submissions in relation to the impact of amendments to the Family Law Act may be made by email or fax by 4.00 pm on Monday, 17 July 2006.”
In the case of the husband, the facsimile was sent to his solicitors, who remained the solicitors on the record until 22 September 2006.
In view of the circulation of the Practice Direction, wide publicity by the Australian Government in respect of the changes in the legislation, but particularly because of the direct notification by the trial Judge’s associate to the solicitors on the record for the husband inviting submissions, we are satisfied that there was no breach of the rules of natural justice insofar as the husband was concerned. We are satisfied the trial Judge afforded the husband an appropriate opportunity to make any submissions on the effect of the changes introduced by the amending Act. Accordingly we find no merit in this ground.
The husband also asserts a denial of natural justice on the basis that her Honour’s order for the wife to have sole responsibility for decision making in respect of the children’s education was an order not sought by either party, and that he was not afforded an opportunity to make submissions in respect of it. We find it is convenient to deal with this ground when we consider her Honour’s reasons in respect of shared parental responsibility.
Asserted failure to deal with the husband’s application for orders as sought at the trial
As noted by the trial Judge, the husband’s formal application before the Court was an amended Application for Final Orders filed on 14 February 2005. In paragraph 4 of her reasons for judgment, the trial Judge noted “[t]he husband by his Amended Application sought that the children live with him and the wife have reasonable contact”.
The husband filed a list of documents, chronology and assets on 23 January 2006. However, by the commencement of the hearing, the husband’s position in respect of parenting orders sought was quite clear, namely that he sought that orders, which had been made by consent on 21 December 2004, should continue as final orders. Counsel for the husband made the husband’s position clear at the commencement of the hearing when in answer to a question from the trial Judge about the parties’ applications, she said:
[COUNSEL FOR THE HUSBAND]: Yes. However, the husband would be content to maintain the arrangement as it is, which is basically the recommendation of the family report. Your Honour’s read the family report?
HER HONOUR: Yes, I’ve read the family report.
[COUNSEL FOR THE HUSBAND]: Yes. So the husband would be content that the children have that shared arrangement. At the moment it’s from Wednesday midday until 5 pm Saturday with the husband so that the week is evenly split. Some shared arrangement – the husband is not exactly wedded to that particular arrangement. Might be more suitable when the children are a little older for an arrangement where they have maybe week about rather than split the week but especially with [J] not even being four at the moment, the family reporter refers to short periods of time being more appropriate at this time. (transcript, 18 April 2006, page 3)
The husband’s position in respect of the orders he was seeking was confirmed by him in cross examination as follows:
You didn’t know what the hours were? All right. So when these proceedings are over, if the children are placed in your care – sorry, in your care – because you’re asking for the children to live with you is that right? --- No, I’m asking for the – keep the existing arrangements. (transcript, 18 April 2006, page 18)
Further, at the conclusion of the hearing in their submissions both counsel confirmed the husband’s position. The wife’s counsel said:
Your Honour, the father’s position is; he says there should be a shared arrangement, continuation of the current circumstances. (transcript, 20 April 2006, page 202)
At the conclusion of her submissions, counsel for the husband said:
Your Honour, in my submission the children are shared and in that respect it’s my submission that arrangement should continue. The court counsellor suggests maybe a week about arrangement when they’re a bit older. (transcript, 20 April 2006, page 241)
Significantly in her closing submissions the husband’s counsel said:
The father’s position has been – he made an application for residence. But having read the Family Report, he said, “Well, taking on board what the Family Report says, I’m prepared to go with that.” It’s not his preferred option, his preferred option is that the children live with him, but – in accordance with his general approach to life, wanting to be reasonable, wanting to be fair, says, “Well, I’ll go with what the court report says and I’ll back off and share the children equally, so as not to disrupt the arrangement that has now in been in place since December 2004.” (transcript, 20 April 2006, page 228)
We accept that the trial Judge appears, having regard to paragraph 4 of her reasons, to have proceeded on the basis that the application before her was one in which the husband sought orders that the children live with him, rather than a continuation of the shared care regime which had been in place since December 2004.
Before us senior counsel for the husband drew attention to the trial Judge’s discussion in paragraphs 35 to 40 of her Honour’s reasons, and submitted her Honour’s discussion focussed on the presumption of equal shared parental responsibility, and perhaps time the children should spend with each parent, but did not address the issue of the shared care regime which had been in place for approximately 16 months.
At paragraph 35 of her reasons, the trial Judge set out s 61DA of the Act (which we will later set out).
At paragraph 37 of her reasons for judgment, her Honour said “[t]his is a case where I am satisfied it would not be in the best interest of the children for their parents to have equal shared parental responsibility”.
Later in the same paragraph her Honour said “[t]he very different approaches of the parents and the communication difficulties are such, that this is not a situation where a shared caring pattern is a good idea”.
Her Honour then went on to deal with matters relevant to day to day routines in parties’ households, and at paragraph 40 of her reasons discussed the parties’ roles in the children’s education.
It appears to us that in the paragraphs referred to her Honour was principally discussing matters relating to equal shared parental responsibility, rather than the time the children should spend with each of their parents.
The major thrust of senior counsel for the husband’s submission on this ground was that the trial Judge had misapprehended the nature of the husband’s application, and that misapprehension permeated and affected the whole judgment.
We will, later in our reasons, discuss the manner in which the trial Judge considered the relevant statutory provisions. We find merit in the submissions made by senior counsel for the husband that her Honour prima facie appears to have misunderstood the nature of the husband’s application before her, and that this misapprehension may have vitiated her Honour’s discretion in assessing the parties’ competing proposals. It is particularly concerning that her Honour misunderstood the husband’s application was for orders for shared parenting time given the prominence that that concept now has in the legislation in
s 65DAA (which we will also later set out).Whilst it appears the appeal must succeed on this ground, thus obviating the necessity to consider the remaining areas of challenge to the trial Judge’s parenting orders, we consider it appropriate to examine the remaining issues in respect of the parenting proceedings argued before us. We do not propose to deal with specific details contained in or raised in each ground of appeal directed to the parenting orders. We do however propose to consider the three of four issues argued by senior counsel as identified by us in paragraph four (and which included the additional or amended grounds which we have set out in paragraph 38).
Asserted error in respect of the findings of violence and rebuttal of the presumption of equal shared parental responsibility
Family violence
It will be recalled that early in her reasons having set out the factual background and the parties’ applications, her Honour referred to the provisions of s 60CC (how a court determines what is in a child’s best interests), and made findings about each of the matters referred to in that section which were in issue.
Subsections 60CC(1), (2) and (3) provide:
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
At the commencement of her discussion of s 60CC, the trial Judge considered the primary considerations in s 60CC(2) and set out the definition of family violence contained in s 4 of the Act. The trial Judge referred to research material available on the Family Court website. As we earlier recorded her findings in this context were that “[t]here was some family violence during the closing stages of the relationship, and the wife says it has continued” (paragraph 15) and that “[t]here was no physical violence towards the children… [t]he wife says that the husband invariably argues with her at the changeover, and has repeatedly undermined her authority in front of the children. I accept that evidence” (paragraph 19). Later in her reasons, when dealing specifically with s 60CC(3)(j), her Honour said that she had already dealt with the issue of family violence at some length.
Before us, it was submitted on behalf of the husband that the trial Judge’s apparent conclusion that there was family violence was not open to her on the evidence.
In written submissions, junior counsel for the husband submitted the husband denied any violence to the wife in his affidavit in chief, and that he was not cross examined on his denial, or on any of the allegations in the wife’s affidavit. It was further submitted that counsel for the wife made no reference to violence in his submissions to the trial Judge.
The wife referred in her affidavit to two incidents. First she asserted there was an argument between the parties, and that the husband had grabbed her. After that incident the wife called the police. No charges were laid, and the husband voluntarily left the home that evening. The second incident occurred in October 2004 when, after the parties’ separation, the wife deposed to an argument occurring when the husband was speaking to his then girlfriend on his mobile phone.
In the interview with the family consultant the wife was noted to advise “that there was not ongoing violence during their relationship although she did state that she had been ‘terrified’ on 2 occasions at the time of the separation when she alleges that [the husband] ‘pinned’ her down ‘with full force’”. Ms G, the family consultant commented “[i]t seems that the context to these incidents was the affair [the wife] alleges [the husband] was having with her friend…[the wife] said that at present she is not frightened of [the husband]”.
Whilst her Honour referred to “some family violence during the closing stages of the relationship, and the wife says it has continued”, she noted “[t]here was no physical violence towards the children, but they were aware of some between the parents”. This finding appears to relate to the parties’ alleged conduct at change over periods rather than the two incidents referred to by the wife and denied by the husband. Ms G noted when discussing change over matters with the parents “[t]hey advised, however, that the changeovers now go well unless they have a discussion about the children in which they each do not agree”.
We accept the submission made by the husband’s senior counsel before us that the trial Judge’s finding in respect of family violence was in the circumstances not open on the evidence.
Equal Shared Parental Responsibility
Section 61DA of the Act provides that:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Goode and Goode (2006) FLC 93-286, the Full Court noted that the presumption of equal shared parental responsibility contained in s 61DA where it applied (and an order is made or proposed to be made for equal shared parental responsibility), triggers the operation of s 65DAA, which is in the following terms:
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Subsection 61DA(2) provides the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe a parent of the child has engaged in, inter alia, family violence. Subsection (4) provides that the presumption may be rebutted if evidence satisfies the Court it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
In his written submissions senior counsel for the wife submitted:
Crucially in this particular matter the Court made findings specifically that at AB36 paragraph 37: “I am satisfied that it would not be in the best interest of the children for their parents to have equal shared responsibility. This being a matter where there has been domestic violence”. Her Honour formed the view that a shared caring pattern is not a good idea and accepted the wife’s application that she should have the responsibility for accommodating the children subject to the orders for contact. [our emphasis]
We further note that the quote appearing in senior counsel for the wife’s submission does not accurately reflect her Honour’s reasons for judgment in paragraph 37. Her Honour said:
This is a case where I am satisfied it would not be in the best interest of the children for their parents to have equal shared parental responsibility. It is also a case where there has been domestic violence, which also makes it an exception. [our emphasis]
Her Honour’s reasons admit of two bases for rejecting the presumption under s 61DA. It appears to us that her Honour either declined to apply the presumption and make an order for equal shared parental responsibility, or she found the presumption was rebutted. It is not precisely clear from her Honour’s reasons whether she formed the view that the presumption did not apply because of family violence or whether she determined, after her examination of factual matters under s 60CC, that it was not appropriate for the parties to have equal shared parental responsibility because it was not in the best interests of the children to do so.
As we have already concluded that her Honour’s finding of family violence was not open on the evidence, s 61DA(2)(b) could have had no application.
It appears to us, however, from her Honour’s reasons that she principally declined to make an order for equal shared parental responsibility on the basis of “[t]he very different approaches of the parents and the communication difficulties”. The latter finding is difficult to reconcile with the evidence of the family consultant who said at paragraph 31 of her report:
Positively, however, [the wife and the husband] identified that with time their communication has slowly improved post separation and that the degree of conflict at changeover has reduced. In addition, it is commendable that in spite of this Court dispute it seems that there have been occasions when they have been able to exercise some flexibility dependant upon the children’s needs at the time.
We will return to this aspect of her Honour’s judgment when considering the fourth issue in respect of the parenting orders identified by senior counsel for the husband.
Further in relation to the issue of parental responsibility in this case, we note that, in the husband’s amended Application, which was of course filed prior to the legislative amendments, he did not seek any orders in respect of parental responsibility and in paragraph 2 of her amended Response filed 14 March 2005, the wife sought an order “[t]hat the parties share the long-term responsibility for the said children”. However, in the case summary document filed on behalf of the wife she sought to amend her Response to provide for orders that the children live with her and that “the wife have the sole responsibility for the daily care, welfare and development of the children during the children’s period of residence with the wife”. The wife did not repeat her application for an order for the sharing of long term responsibility for the children. Thus at the commencement of the hearing it appears that each party was still relying on the provisions of s 61C of the Act which is as follows:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
There is no doubt that as a result of the legislative amendments, that the trial Judge was required in making a parenting order under the Act (as she was being asked to do in this case), to apply the presumption in s 61DA(1) unless the factors in subsection (2) and/or (4) of that section were applicable. (Section 61DA has earlier been set out).
The legislation also provides that a parenting order may be made which deals with “the allocation of parental responsibility for a child” (s 64B(2)(c)) and that such an order “may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child” (s 64B(3)).
However, as we have noted, neither party sought an order that they have any particular aspect of parental responsibility. We further note that we were informed at the appeal hearing there was no disagreement between the parties about the school at which the younger child was to be enrolled.
We accept that it was open to her Honour, if she concluded, on the evidence, that it was in the best interests of the children that an aspect of parental responsibility be exercised solely by one parent, to make such an order provided the parties were afforded procedural fairness by raising with them her intention to do so and inviting submissions (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho and Cohen (2005) FLC 93-224).
Whilst we accept an opportunity was extended to the parties to make submissions about the new legislation, which was not taken up by the husband, that opportunity did not put the husband on notice that the trial Judge had formed the view, or was considering making an order, giving one significant aspect of parental responsibility to the wife in circumstances where neither party had sought such an order. As the husband had no opportunity to be heard in respect of the proposed order, we accept the failure to do so constitutes appealable error.
We also note that the trial Judge made an order “[t]hat except in matters of education in which the mother will have sole parental responsibility the parties will have joint parental responsibility”. The Act does not refer to “joint parental responsibility” but rather to “parental responsibility” and “equal shared parental responsibility”. The effect of s 61C which operates if no order is made by the Court was extensively discussed in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 and further discussed in Goode (supra). In the former case the Full Court said at paragraph 9.29 to 9.30:
9.29 In the absence of a specific issues order, we think it unlikely that the Parliament intended that separated parents could only exercise all or any of their powers or discharge all or any of their parenting responsibilities jointly in relation to all matters. This is never the case when parents are living together in relation to day to day matters, and the impracticability of such a requirement when they are living separately only has to be stated to be appreciated.
9.30 As a matter of practical necessity either the resident parent or the contact parent will have to make individual decisions about such matters when they have the sole physical care of the children. On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like. We believe that this accords with the intention of the legislation.
In Goode (supra), having cited these paragraphs from B and B (supra), the Full Court said at paragraphs 35 - 39:
35.Whilst we consider this is still a correct description of the concomitance of parental responsibility where no order has been made by a court, we do not think in light of the amending legislation it has application once an order for equal shared parental responsibility is made by the Court. This is made clear by the provisions of ss 61C, 61D and 61DA.
36.While it may be self-evident from the provisions of s 61C, note 1 makes it clear that the legal position prevails only to the extent it is not displaced by a parenting order made by the Court. Note 1 states:
“This section states that [sic] the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and section 61D(2) for the effect of a parenting order.”
37.Thus, where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force.
38.Section 65DAC sets out the effect of a parenting order that provides for shared parental responsibility. The section requires decisions about major long-term issues about children to be made jointly by those persons who are to share parental responsibility and that they are required:
“(a)to consult the other person in relation to the decisions to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.”
Section 65DAE provides that if a child is spending time with a person under a parenting order, then that person is not required to consult with a parent or other person who shares parental responsibility about decisions that are not major long-term issues, unless the Court has made a contrary order.
39.We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
That discussion did not address the situation which arises in this case where the trial Judge decided to allocate one portion of parental responsibility (education) to one party only. This decision was reached by her Honour after she had decided that the presumption of equal shared parental responsibility did not apply or was rebutted.
Having allocated one aspect of parental responsibility to the wife (which she could then exercise solely), the issue of how the remaining aspects of parental responsibility were to be allocated arose. It seems to us that in such a situation there would be two possibilities (although we note that we have not had the benefit of full argument on this issue).
The first possibility (although perhaps not available in this case because of her Honour’s earlier conclusion that it would not be in the children’s best interests for there to be equal shared parental responsibility) would be an order that the parties have equal shared parental responsibility for the remaining aspects of parental responsibility, which would require them to make decisions about those remaining aspects jointly as is required by s 65DAC. Section 65DAC provides as follows:
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The second possibility would be for the order to be silent as to the remaining aspects of parental responsibility in which case s 61C and s 61D would have effect and the remaining aspects of parental responsibility would be exercised by both parents either jointly or independently. We have already set out s 61C. Section 61D provides as follows:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
In this case the trial Judge did not make either of these possible orders. She made an order for “joint parental responsibility” after giving the wife “sole parental responsibility” for education. As we said earlier, the Act does not speak of “joint parental responsibility”. It appears to us by not following the legislation, her Honour created uncertainty about the outcome. We cannot be certain that her Honour intended that parental responsibility (other than education) was to be shared equally and thus exercised jointly (that is, in consultation) or whether parental responsibility was to be exercised in accordance with s 61C and s 61D and exercised either jointly or independently.
Asserted failure to deal with evidence of the family consultant and her recommendations
The trial Judge had the benefit of a Family Report prepared by a well qualified and experienced family consultant. The family consultant was subject to cross examination by both parties’ legal representatives.
At the time of the family consultant’s report, the children had been living in a shared arrangement pursuant to consent orders for approximately 10 months. By the date of the hearing those arrangements had been in place for in excess of 16 months. Significant matters considered and reported on by the family consultant in her report were that:
· the risk of future physical violence between the parties was minimal;
· the parties’ communication had slowly improved since separation and the degree of conflict at changeover had reduced;
· the parties had differences in their parenting styles and counselling may assist to manage parenting and communication;
· an assessment of the children indicated a close and loving attachment to both parents; and
· the children’s current relationship with each parent needed to be maintained.
The family consultant recommended “that a shared residence arrangement continue for [J] and [B] to enable the children to maintain their close attachment to both of their parents”. The family consultant analysed the advantages and disadvantages of the current arrangement, compared to a week about arrangement. The family consultant concluded “[t]his option, however, was discussed with the parents, who felt that the time between contact with each parent would be too long. It is assessed that this might not be as much of an issue for the children as they get older”. The family consultant also considered the advantages and disadvantages of the children spending Monday to Friday with one parent and weekends with the other.
An examination of the cross examination of the family consultant by the wife’s counsel reveals the following:
In your recommendations you’ve said that the benefit of the current arrangement is that the children have substantial and frequent time with each parent. That arrangement has now been in place since December 2004 which is now a substantial period of time, isn’t it?---Yes, it is.
All things being equal, it would be preferable to continue that arrangement at least for the time being?---That would be – I think that would be the practical option.
Possibly when both the girls are at school it may be better to go to possibly a week about arrangement?---Yes, that’s why I suggested the other options…
I thought reading your report, although you gave three options, that was something that was in your mind, that continue the arrangement as it is with the three and a half day arrangement at the moment but then change it to, I guess, seven day arrangement later on?---Yes. The question I had was – because in my assessment I couldn’t see any reason really to change the current arrangement and part of the options was to give the parents another option as well but, you know, the seven day arrangement both parents felt would be unsuitable because it was too long for the children in between having time with each parent.
But when they’re a little older it might be more appropriate?---Yes.
…
Yes, it makes it almost impossible for a shared care arrangement to work if the parents have different styles of parenting, they can’t communicate and they don’t get along well together?---I don’t believe it makes it more impossible for a shared arrangement than other arrangements.
It’s not just that shared care has become fashionable amongst the counselling fraternity, is it?---No, it’s not.
Always been something that’s been recommended by – I know you’ve got to deal with each case on its own facts but you don’t think it’s something that’s become more recommended since it’s become perhaps even more publicity in the political circles?---No, I think it’s something that as counsellors and in my experience as a counsellor, the children who I have seen who have had shared arrangements, and this is many years beyond the current changes in the legislation, are children that are often – either they don’t have the same sense of loss of parents and they have much more – in my experience, the children I’ve seen who have shared arrangements have had very secure relationships with both their parents, that I agree that the challenge for the parents is that they are then required to manage and deal with their conflict and it actually places much more emphasis on responsibilities of the parents to deal with those issues rather than the children having to instead experience a loss of a more secure relationship with the parent. (transcript, 19 April 2006, pages 126, 127 and 129)
The trial Judge briefly mentioned the Family Report at paragraph 14 of her reasons when she noted the report disclosed the children had a close attachment to each of their parents and an affectionate relationship with the paternal grandparents. Her Honour did not otherwise discuss the Family Report, the family consultant’s evidence or her recommendations.
The weight and importance to be attached to the evidence of a family consultant is subject of well settled authority. Whilst ultimately the decision of what is in the best interest of a particular child is that of the trial Judge who has the benefit of seeing all of the witnesses and considering all of the evidence, the evidence of, and important recommendations made by, a family consultant require careful examination by the trial Judge (see N and N [2004] FamCA 706 and L and L [2002] FamCA 537).
In this case the trial Judge made orders in different terms to those recommended by the family consultant in circumstances where an existing arrangement which appeared to be working well for the children had been in place for approximately 16 months at the date of the hearing. The trial Judge failed to analyse the family consultant’s evidence and recommendations and give reasons why she proposed to reject her recommendations.
We are satisfied the trial Judge’s failure to examine, and give reasons for her rejection of the family consultant’s evidence constitutes an appealable error.
Conclusion – parenting orders
We are satisfied, for the reasons set out above, the appeal in respect of the parenting orders must be allowed and the parenting orders be set aside. We note that both parties’ counsel conceded if the appeal was allowed it would be necessary for the matter to be remitted for rehearing.
The property judgment
Trial Judge’s reasons
After setting out the relevant principles and statutory provisions in respect of alteration of property interests, the trial Judge listed under the heading “the pool of property”, a list of items which excluded a boat purchased by the husband’s father. The trial Judge discussed the evidence relating to the purchase of the boat by the husband’s father, and the husband’s assertion that he had no interest in the boat. The trial Judge did not accept the husband’s evidence that he had repaid his father a loan in the sum of $36,000.00, and concluded that the husband had a half interest in the boat. The trial Judge therefore included a one half interest in the boat in the parties’ list of assets and liabilities available for division.
Her Honour thereafter rejected evidence of the wife about loans which she asserted had been incurred for living expenses post separation, and said she found the wife’s evidence “very unconvincing”.
The trial Judge set out the history of the parties’ contributions throughout the marriage. Her Honour concluded in respect of financial contributions made by the husband that he had “contributed greater capital, namely the $50,000 received after his parents sold their home, and the $332,379 which was received as compensation for his injury”. The trial Judge then noted that following the husband’s injury the wife was working full time. She found the wife made a greater contribution to the welfare of the family both “in the extra difficulties that the husband had which required greater effort from her, and also because of the disabilities that the husband had”.
The trial Judge assessed the husband’s contributions at 55 per cent and the wife’s contributions at 45 per cent.
The trial Judge discussed relevant s 75(2) factors specifically noting “[t]he most significant factors are that the wife will have a somewhat greater role in the care of the children, and the husband carries the burden of the injuries for which the compensation was received”. Although her Honour found that the two significant circumstances “nearly balance each other out” she determined the wife should receive a “small adjustment” of 5 per cent leading to an overall equal distribution of the parties’ property.
Conclusion in relation to property orders
We have already noted at the commencement of our reasons both parties’ counsel conceded in the event that the appeal was successful in respect of the parenting orders, a new trial would be required on all issues. Ground 16 attacks the trial Judge’s overall exercise of discretion under s 79 in finding the wife was entitled to receive 50 per cent of the parties’ net assets.
As we have already recorded, the trial Judge made an adjustment under s 75(2) in the wife’s favour of 5 per cent, noting that the most significant factors under that section were the wife’s greater role in the care of the children and the husband’s injuries sustained in an industrial accident. The trial Judge found that the wife was likely to have to “support the children without contribution from the husband”.
It is clear that the parenting orders ultimately made for the children will impact on assessment of factors under s 75(2), and that the property orders made by the trial Judge cannot stand.
Stay application
An application for a stay of the trial Judge’s orders pending the appeal was heard by Rose J. When we enquired about the stay, senior counsel for the husband said “[t]he situation at present is that the stay is still before the Court. The orders have been complied with. A stay has been granted in terms of the property settlement”.
When we enquired as to whether there had been an appeal against the stay judgment, the husband’s senior counsel replied “[n]o, the stay hasn’t been refused, it hasn’t been dealt with”. The following discussion took place:
BOLAND J: It hasn’t been heard [?]
[SENIOR COUNSEL FOR THE HUSBAND]: That’s right. His Honour Rose J I gather was not at the time the stay went before him satisfied with the grounds of appeal in relation to residence. So he dealt with the property by granting a stay in respect of it and left the other issue to be relisted. Endeavours have been made, as I understand, to have it relisted. (transcript, 2 November 2006, page 33, line 1)
We thereafter adjourned briefly and permitted the husband to make an oral application for a stay before us.
After we provided a timetable for written submissions in respect of the amended grounds of appeal we received submissions from senior counsel for the wife dated 18 December 2006. No submissions were addressed to the question of a stay.
On 20 December 2006 the husband’s solicitors forwarded correspondence to the Appeals Registrar in which they noted no submissions were made in respect of the stay application. The letter concluded “[a]ccordingly, our instructions are to request that the Full Court deliver their judgment in respect of the Appellant’s application for a stay of orders”.
A letter was forwarded to the Appeals Registrar by the wife’s solicitors dated 20 December 2006 enclosing a copy of ex tempore reasons for judgment of Rose J. In the letter, which we propose to treat as a submission, the solicitor said:
It should be noted that at paragraph 11, His Honour did not exercise his discretion.
In consultation with Mr [H] of counsel, it appears that the father should have appealed the decision of Judge [sic] Rose within the statutory period.
The appeal was heard on 2 November 2006 and the time [to] lodge an appeal in respect to Jude [sic] Rose[’s] decision was out of time.
It is our respectful view that the oral application has no legal basis, given the decision of Judge [sic] Rose.
In his judgment, Rose J noted that a stay was sought in relation to parenting orders and property orders made by the trial Judge on 17 August 2006. Having referred to the affidavits of the parties and written submissions of counsel, his Honour referred to the relevant rule (22.12) of the Family Law Rules 2004 (“the rules”) and the principles relevant to the grant of a stay. At paragraph 11 of his reasons Rose J said “[t]urning to the appeal in relation to parenting orders, I am not satisfied that my discretion should be exercised for the purpose of granting the stay sought”. Having referred to deficiencies in the then grounds of appeal, Rose J said at paragraph 14:
In addition, I take into account that the orders made by the trial Judge do provide for substantial periods of time to be spent between the two children and the husband in that Order 2 contains provision for them to live with the husband each alternate weekend from after school on Thursday in the week in which weekend time to be spent does not occur, as well as half of school holiday periods.
His Honour concluded that the children would spend substantial periods of time with the husband. His Honour then dealt with matters relevant to the stay in respect of the property orders and made the orders which we have set out at the commencement of our reasons for judgment.
It appears that senior counsel for the husband, who appeared on the appeal, but not before Rose J, did not have the benefit of his Honour’s ex tempore reasons and misunderstood the status of the stay proceedings before Rose J.
It is apparent to us that Rose J refused a stay in respect of the parenting orders and no appeal was brought against that decision.
However, as we have determined the orders made by the trial Judge on 17 August 2006 should be set aside (and a new trial ordered as soon as possible), we propose to proceed on the basis that the consent orders made in December 2004 will be the operative orders (see R and R [2002] FamCA 323). It is therefore unnecessary for us to consider a further stay pending the rehearing.
Costs
At the conclusion of the appeal before us we sought submissions from counsel in respect of costs of the appeal.
Both counsel submitted that in the event the appeal was successful that certificates should be granted under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of both the appeal and the rehearing. In the circumstances of this case we find it is appropriate to grant certificates in respect of the appeal, and the rehearing.
I certify that the preceding one hundred and twenty two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 13 March 2007
28
3
3