Oakley & Cooper
[2009] FamCAFC 133
•30 July 2009
FAMILY COURT OF AUSTRALIA
| OAKLEY & COOPER | [2009] FamCAFC 133 |
| FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the Federal magistrate erred by giving insufficient weight to issues of family violence – Where there was no challenge to the adequacy of the Federal Magistrate’s reasons – Where there was no notice asserting abuse or family violence under s 60K of the Family Law Act 1975 (Cth) – Where the issue of family violence was significant – Where allegations of family violence established – Full Court referred to, and discussed, the Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged – Where Family Report or expert evidence indicates that therapeutic intervention is appropriate, consideration to be given to making an appropriate order – Where the Federal Magistrate found both parties had engaged in verbal and physical abuse in the presence of the children – Where the Federal Magistrate gave weight to each party’s inappropriate conduct – No appealable error – Whether the Federal Magistrate gave insufficient weight to the influence of the mother’s former partner on the children – Where the Federal Magistrate considered the concerns of the father – No appealable error – Whether the Federal Magistrate erred in the weight given to the importance of maintaining the children’s relationships with half-siblings – Where the Federal Magistrate found the siblings’ relationship was important to the children – Where the importance of sibling relationships is well recognised – No error – Whether the Federal Magistrate erred in the weight given to the Family Report – No merit to ground – Whether the Federal Magistrate erred in finding that the mother would not breach orders in the future – Ground not established. FAMILY LAW - APPEAL – Appeal dismissed. FAMILY LAW - COSTS – No order as to costs. |
| Family Law Act 1975 (Cth) – s 60B, s 60CA, s 60CC (2), s 60CC(3), s 60K, s 65DAA, s 69ZN(5), s 69ZQ(1), s 69ZX(1), Division 12A Federal Magistrates Act 1999 (Cth) – s 3 |
| Bennett & Bennett (1991) FLC 92–191 Family Court of Australia, Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged, March 2009. |
| APPELLANT: | Mr Oakley |
| RESPONDENT: | Ms Cooper |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRM | 5744 | of | 2006 |
| APPEAL NUMBER: | NA | 13 | of | 2008 |
DATE DELIVERED: | 30 July 2009 |
| PLACE DELIVERED: |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, Boland & Murphy JJ |
| HEARING DATE: | 17 February 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 December 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 1137 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Oakley appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Smith |
| SOLICITOR FOR THE RESPONDENT: | Chris Wlodarczyk & Co Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
That the appeal be dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Oakley & Cooper 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 13 of 2008
File Number: BRM 5744 of 2006
| Mr Oakley |
Appellant
And
| Ms Cooper |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Oakley and Ms Cooper are the parents of two young boys M aged 9 years and X aged 7 years. Parenting proceedings about the children’s care and living arrangements were heard by Federal Magistrate Baumann in September 2007. On 21 December 2007 the Federal Magistrate delivered oral reasons for judgment. Orders were made on 18 January 2008 which provide for the parents to have equal shared parental responsibility for the children, for the children to live with the mother nine nights per fortnight and to spend time with the father five nights each fortnight. This is the father’s appeal against the Federal Magistrate’s orders.
The mother resisted the appeal. Her position was supported by the Independent Children’s Lawyer (“the ICL”).
In his Notice of Appeal filed on 13 February 2008 the father, who was self represented before the Federal Magistrate, (and also before us) sought to appeal all orders made by the Federal Magistrate. On hearing the appeal it became obvious that the father did not seek to challenge a number of the Federal Magistrate’s orders including:
·the order for equal shared parental responsibility (Order 2);
·for the parents to equally share school holidays (Order 4(c));
·for the mother to provide the children with appropriate clothing and footwear when they are to spend time with the father (Order 11); and
·orders dealing with provision of information to the father dealing with issues such as schools, medical treatment, and any proposal to move (Orders 12-15).
In his Notice of Appeal the father sought orders, in the event his appeal was allowed, that the children live with him and spend time with the mother each alternate week from after school on Thursday until the commencement of school the following Monday, and in the other week that the children spend time with the mother from Wednesday after school to the commencement of school on Friday. The father, however, sought that the mother’s time to be spent with the children be subject to a condition that she get “help for her violence”.
The father’s appeal was listed before a Full Court (May, Thackray and Benjamin JJ) (“the first Full Court”) on 4 August 2008. On 25 August 2008 the first Full Court made orders dismissing the father’s application that the Court provide, at its expense, transcript of the proceedings before the Federal Magistrate. Their Honours noted the only matter advanced by the father in support of his application was his assertion of lack of funds. In their reasons refusing the father’s application the first Full Court explained that the ICL agreed to prepare the appeal book, but was not in a position to procure the transcript. Subsequently the appeal book, which did not contain any transcript, was prepared by the ICL.
The first Full Court, having explained their understanding of the father’s grounds of appeal, and in particular his assertion that the Federal Magistrate had failed to give adequate weight to the evidence of violent conduct of the mother, recorded, at paragraph 10 of their reasons, their impression from the father’s submissions that perhaps there had been serious incidents involving the children since the making of the Federal Magistrate’s orders.
Before us the father alluded to other matters including asserted contraventions of the orders. But as those matters were not before us, nor was there any application to adduce further evidence, we do not comment further on the father’s assertions of events occurring since the making of the orders.
Background
The Federal Magistrate’s reasons for judgment contained only a brief background to the parties and their dispute. We have extracted relevant background material from the helpful chronology contained in the mother’s Outline of Case document.
The father was born in May 1962 and was aged 45 years at the date of the hearing.
The mother was born in December 1962 and was aged 44 years at the date of the hearing.
The mother has six children from prior relationships, namely J, T, A, B, C and D. They were aged 26, 24, 21, 19, 12 and 10 years respectively at the date of the hearing.
The parties commenced cohabitation in about May 1999 and they finally separated in about March 2006. The parties never married.
In April 2000 the parties’ elder child, M was born.
In May 2002 the parties’ younger child, X was born.
In the period July to December 2005 the father was engaged in employment as a truck driver in Northern Queensland. He did not during this period live with the mother and the children. During this period the mother worked in a convenience store acquired by the father.
On 25 July 2006 the father filed an application seeking parenting orders.
On 26 October 2006 the mother filed a response to the father’s application.
On 30 October 2006 Federal Magistrate Baumann made interim orders that the children live with the mother and spend time with the father each alternate weekend.
On 25 January 2007 Federal Magistrate Baumann’s interim orders were varied to provide for time spent by the father to commence and conclude at a children’s contact centre.
A family report was prepared by Mr R (“the report writer”) in April 2007.
Federal magistrate’s reasons for judgment
The Federal Magistrate commenced his reasons by recording that the two children the subject of these proceedings had been witnesses to and endured “chronic conflict” between their parents all of their lives. The Federal Magistrate explained, in his opening paragraph, that the parents were shown to lack child focus and insight.
Immediately thereafter, the Federal Magistrate recorded that the parties’ “extremely volatile relationship” finally came to an end in March 2006 in an incident of domestic violence. The Federal Magistrate noted that the father was removed from the home in circumstances which the father perceived as unfair.
At paragraph 3 of his reasons the Federal Magistrate said of the mother:
She, herself, finds use of violence seemingly acceptable. She hits the father; she has smacked the children. The mother has not only [M] and [X] in her primary care, but also [C] aged 12, and [D] aged 10. These children were fathered by a Mr [K].
The Federal Magistrate went on to immediately note the friction between the father and Mr K (who is the mother’s second husband) and the fact that the father had been convicted in 2000 of assaulting Mr K.
In paragraph 5 of his reasons, the Federal Magistrate detailed the father’s major complaints about the mother as being:
·her continuing relationship with Mr K;
·the people the father alleged she associated with;
·her capacity to care for the children; and
·the denigration and minimisation of his role as the father, both by the mother and her older children.
The Federal Magistrate went on to note that the father sought at the “very least” he should have the children for equal time, asserting he was better able to raise the children than the mother. The Federal Magistrate thereafter, in paragraph 6, summarised the orders sought by the mother, namely that the children should stay in her care as part of an intact sibling unit and the father should spend time with the children each alternate weekend from after school Friday to Sunday. He also noted the mother’s proposals to extend the father’s time with the children if he lived within 10 kilometres of her residence. The Federal Magistrate then recorded “[t]hey seemingly also agree that there should be equal shared parental responsibility”.
The Federal Magistrate explained that as he was delivering his reasons orally there was no need to expand significantly his exposition of the “clear law”.
Having briefly referred to the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”) and the decision of the Full Court in Goode & Goode (2006) FLC 93-286, he went on to explain he would consider the primary considerations (s 60CC(2)) and the additional considerations (s 60CC(3)).
In paragraph 8 of his reasons the Federal Magistrate set out findings he made after seeing the parties give evidence and the father present his case. Those findings included findings that:
·the parents lacked an ability to communicate civilly with interactions between them being “aggressive, provocative, and in many ways, despite their age, show a lack of maturity and complete absence of child focus”;
·each party blamed the other for their chronic conflict but the Federal Magistrate was satisfied they had both contributed, and “to a slight degree the mother’s actions now are slightly more provocative”;
·both parties had involved the children in their dispute (the Federal Magistrate noting that the mother’s behaviour at a changeover at a police station on 12 August 2007 “was appalling and did severely distress the children”);
·during the parties’ relationship they were often verbally abusive to each other and on occasions physically abusive. The parties’ behaviour had a traumatising effect on the children;
·the mother used physical discipline on the children at times and that Ms S (a friend of the father who lived on the same property as the father and the paternal grandmother) had used physical discipline on the children;
·during the parties’ relationship the father was a strict disciplinarian towards the mother’s older children and those children now had little respect for the father;
·he was not satisfied that the mother was capable or even willing to shield the children from the negative comments of their older siblings;
·neither party was in a personally happy situation – the father had no present intentions to return to work as a result of a long-standing back injury;
·the mother had suffered depression since 2006, and having had eight children, showed “all the signs of being worn out”; and
·he did not accept the mother had sexually abused the children.
The Federal Magistrate, at paragraph 9 of his reasons, explained he found the report of “the social worker” most helpful. As the father has challenged the report writer’s evidence we describe the Federal Magistrate’s discussion of it:
In this case I have little hesitation in giving the succinct, well-reasoned, and considered report significant weight. Mr [R], despite the father accusing him of bias (which I totally reject) has in his report based his opinions on some underlying facts which I have myself found supported by the evidence I have heard.
His observations, particularly those of the children, and his, I have no doubt, accurate recording of the children’s feelings and perspectives (see paragraphs 58 to 70) found the general opinion that the children present as pleasant, cooperative, and engaging youngsters who “have positive attachments to both parents, but experience some trauma associated with the continuing conflict in their parents’ relationship.” (paragraphs 10 & 11) (original emphasis)
The Federal Magistrate went on, at paragraph 12, to state “I agree with what Mr [R] says at paragraph 83, which is supported by my findings above”. At paragraph 83 of his report the report writer said:
There is significant evidence of violence in the parents’ relationship and doubtlessly some of this has been witnessed by the children. Although independently it may be that both parents are broadly competent they do appear to bring out the worst in each other. Furthermore, neither parent provided any indication that they appreciate the negative impact of family violence on the children. Consequently, in my opinion the most significant risk to the children lies in the parents’ hostility towards each other, the lack of insight in regard to [M] and [X’s] needs, and the deficiencies of both in regard to their capacity to regulate their behaviour.
Under the heading “Equal Time” the Federal Magistrate turned to consider, as he was obliged to do pursuant to s 65DAA (the parties having agreed an order for equal shared parental responsibility should be made), the children spending equal time with each of the parents. Having referred to his earlier findings, further supported by paragraph 89 of the Family Report, he determined that an equal time regime was not in the children’s best interests.
The Federal Magistrate, having explained the father’s position about his parental capacity, said at paragraph 15:
Unfortunately, even though each party may be as deficient in some respects as the other, that rarely satisfies the test of making an order in the children’s best interests.
The Federal Magistrate went on to note he adopted the opinion of the report writer at paragraphs 87 and 88 of his report (which we will shortly set out) and said:
…I think the opportunity to be raised with their siblings is an important factor in favour of the mother’s proposal that she be the primary carer. However, I am satisfied - subject to receiving submissions about where the father is now living and the closeness of his home to the children’s schools - that the father should spend substantial and significant time with the children and more than recommended by Mr [R]. (paragraph 16)
The Federal Magistrate later explained he had structured his reasons to assist the father understand his decision. He also explained that the father, as a self represented litigant, did not appear to have read the provisions of ss 60CC(2) and (3) (primary and additional considerations), and said notwithstanding he had not “slavishly” considered ss 60CC(2) and (3) that he was satisfied all of the relevant factors had been covered.
Having noted the mother had agreed in cross-examination that the children should not be left alone with Mr K, the Federal Magistrate recorded he proposed to make an order to that effect.
The Federal Magistrate completed his reasons by referring to the fact that changeovers should continue to occur as provided in his interim orders, that is, at a contact centre, and, at paragraph 25 of his reasons, concluded the judgment by very briefly dealing with the father’s assertions that the mother did not and would not obey court orders saying:
For completeness, I am aware the mother has suspended and therefore not facilitated all the contact, but I am satisfied the mother is likely to comply with the order I propose to make. She is well aware of the sanctions that can be imposed upon her if she does not do so.
Grounds of appeal
The father’s grounds of appeal are set out in his Notice of Appeal filed 13 February 2008 as follows:
1.Violence by mother towards children and father in front of children during relationship and after.
2.Two breachs [sic] of D.V.O. Mother commited [sic] while father was collecting children for access in front of children.
3.The mother did not take other partys [sic] who have subsanial [sic] influence on childrens [sic] upbringing her older children and Mr [K] and her boyfriend.
4.She has continualy [sic] shown she is unwilling to abide by any orders.
In his Notice of Appeal the father seeks, in the event the appeal is allowed, we re-exercise the discretion and make orders that the children live with him, and that the time the children spend with the mother be identical to that provided to him in the Federal Magistrate’s orders but subject to the proviso set out earlier by us.
Although his grounds are not framed as recognisable grounds of appeal, we discerned from his oral argument and written submissions that the father’s complaints were that the Federal Magistrate had:
a)given insufficient weight to the mother’s behaviour including physical chastisement of the children, and breaches of domestic violence orders made in his favour, and to incidents of violence occurring in the presence of the children;
b)given insufficient or no weight to Mr K’s influence on the children;
c)given disproportionate weight to the benefit to the children of maintenance of a family unit including their half siblings;
d)erred in accepting the evidence of the report writer because his methodology was flawed; and
e)erred in finding that the mother would not contravene the orders, as such finding was contrary to the evidence.
The father also pointed out that he had been in a position of disadvantage in the proceedings because the mother was legally represented, but he did not have legal representation. However, he made no assertion of any procedural unfairness by the Federal Magistrate in his conduct of the proceedings.
We propose to deal with the father’s complaints by first addressing what we will describe as the “weight grounds” with principal emphasis on the issue of the Federal Magistrate’s treatment of the very significant issue of family violence. In our discussion we will touch on the issue of how the Federal Magistrate dealt with the father’s assertions about Mr K and the other identified “weight” issue – the maintenance of the children’s relationship with their half siblings. Second, we will discuss the complaints about the report writer, and the Federal Magistrate’s adoption of the report writer’s opinions, albeit that he did not ultimately make orders as recommended by the report writer. We will finally deal with the issue of the Federal Magistrate’s consideration of whether the mother would obey orders in the future.
Appellate principles
We endeavoured to explain to the father at the hearing of the appeal the limitations on an appeal court overturning a discretionary judgment. The principles we referred to are well known. It is appropriate that we now set out those principles, particularly as they relate to cases involving decisions about children. In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J at 519 explained the limitations on appellate inference as follows:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Kirby J in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 said at 230 – 231 (footnotes omitted):
A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision- makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self - restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.
The weight grounds
Asserted lack of weight given to issues of family violence
In his written submissions the father referred to the Federal Magistrate’s introductory remarks in paragraph 3 of his reasons where he said:
She, herself, finds use of violence seemingly acceptable. She hits the father; she has smacked the children. …
The father said in his written submissions “I don’t think myself or my children should have to accept it like we had to before trial and since and still happens”.
The Federal Magistrate’s oral reasons on the topic were brief. In paragraph 8(d) the Federal Magistrate referred to a police report (Exhibit 1). The Federal Magistrate made the following finding:
…The father was playing games to a little degree about where the handover should occur. It upset the mother. Her reaction, however, as recorded in the police notes, (see Exhibit 1) was appalling, and did severely distress the children;
In the following sub-paragraph the Federal Magistrate made the following finding in respect of the parties’ behaviour:
I have no doubt at all during the relationship that the parents were often verbally abusive to each other and on occasions physically abusive. They both are prepared to use aggressive actions to make their point, irrespective of the traumatising effect of this on these two young children. I accept that the mother uses physical discipline on the children at times, as they report to Mr [R]. …
Exhibit 1 contained a note from a police officer about an incident which occurred at a police station during handover of the children. The report disclosed:
…
FURTHER INFO FROM CONST [F] THAT INF TURNED UP AT STN AND WAS EXTREMELY RUDE AND ABUSIVE. SHE DRAGGED THE KIDS OUT OF THE STN CAUSING ONE OF THEM TO FALL INTO THE DRINK MACHINE. KIDS WERE CRYING UNCONTROLLABLY. INF LEFT BEHIND A SUITCASE OF THE CHILDREN’S CLOTHING. [MR OAKLEY] INFORMED POLICE OF INF FORGETTING THE CASE AND TOOK IT WITH HIM. WISHED POLICE TO NOTE IN CASE ALLEGATIONS MADE MADE./KB
The informant was the mother.
Although we accept the father relied on an appeal ground which challenges the weight afforded by the Federal Magistrate to the Family Report on the basis that the report writer was biased and his methodology was flawed, for reasons we will explain shortly we found no merit in that ground. The Federal Magistrate placed significant weight on the opinion of the report writer. The report writer set out in his report, at paragraphs 39 to 41, the parties’ assertions of violence perpetrated during their relationship. The report writer summarised his views of the behaviour in paragraph 57 of his family report as follows:
In summary, Mr [Oakley] and Ms [Cooper] are somewhat uncomplicated parents with limited insight, poor impulse control and difficulty regulating their behaviour. There is significant evidence that their relationship was marked by conflict and instability. Theoretically, these parents may have become emotionally enmeshed as a consequence of the level to which each depended on the other to have their emotional and psychological needs met. In such a situation separation could result in considerable angst for each of them.
In recording his record of interview with the parties’ two children, the report writer noted, at paragraph 63, as follows:
[M] and [X] are aware of conflict in their parents’ relationship. [M] commented that his parents argue, swear and sometimes hit each other. In this regard he assesses that his mother does most of the hitting but both parents will sometimes hit. [M] claims that he feels sad and sometimes scared when his parents fight, and that he and [X] often cry. [X] agreed with this comment.
Of significance are the report writer’s opinions which appear in his report under the heading “Summary” at paragraphs 83 and 88 as follows:
83.There is significant evidence of violence in the parents’ relationship and doubtlessly some of this has been witnessed by the children. Although independently it may be that both parents are broadly competent they do appear to bring out the worst in each other. Furthermore, neither parent provided any indication that they appreciate the negative impact of family violence on the children. Consequently, in my opinion the most significant risk to the children lies in the parents’ hostility towards each other, the lack of insight in regard to [M] and [X’s] needs, and the deficiencies of both in regard to their capacity to regulate their behaviour.
…
88.On balance it does appear to be clear that Ms [Cooper] has greater parenting experience than Mr [Oakley]. Furthermore, she can provide the opportunity for [M] and [X] to be raised with their siblings. On balance, there is no evidence of a net benefit to the children associated with a change in regard to which parent they live with.
As paragraph 87 of the report was accepted by the Federal Magistrate we also set out that paragraph:
Although [M] and [X] did express some preference for their mother’s care they are not of an age and developmental stage where it is appropriate to attach significant weight to their views. Nevertheless, their articulated position could be seen as indicative of some level of comfort and safety with Ms [Cooper]. Alternatively, they may simply have accommodated a long-standing pattern and be resistant to change.
Ultimately the report writer recommended the children remain living with the mother and that they spend substantial and significant time in the father’s care.
Part VII of the Act was substantially amended in 2006. However, the fundamental principle which guides a judicial officer making a parenting order is that a court must regard the best interests of the child as the paramount consideration (s 60CA). This section (formerly s 65E) was not amended. New factors for determining what is in a child’s best interests are now found in ss 60CC(2) and (3) (the primary and additional considerations). These subsections are informed by the objects and principles in ss 60B(1) and (2) of the Act. Those sections provide:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). (our emphasis)
Section 60CC(2) sets out the primary considerations. It provides as follows:
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. (our emphasis)
Section 60CC(3)(j) and (k) of the additional considerations are as follows:
(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;
The legislature has spelt out in the Act a clear direction to a court hearing a parenting application and making parenting orders to ensure when considering children’s best interests that they be protected from physical or psychological harm as a result of being exposed to, amongst other matters, family violence.
The appeal book did not contain a notice made under s 60K of the Act asserting abuse of the children or that there had been family violence by the mother. On 6 March 2009, that is, after the completion of the proceedings before his Honour, the Attorney-General, the Honourable Robert McClelland MP launched the Family Court of Australia’s “Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged”. The principles in that document are relevant to situations where abuse is alleged to have occurred regardless of whether a notice under s 60K has been filed. Section F of the principles sets out a number of matters which may be considered where the Court orders that a child should spend time with a parent against whom findings have been made that allegations of family violence or abuse are proven.
We accept, of course, that the Federal Magistrate did not have the benefit of guidance from the document now published. But, the issue of family violence is, as is made abundantly clear by the Act, extremely important. Highlighting, some of the recommended considerations in the document just referred to, as we will now do, serves to illustrate how they might be of assistance to courts in framing orders which could assist the future well being of children in cases whose facts are similar to those before the Federal Magistrate in this case. For example:
…
(iii)What conditions (for example by way of seeking advice or treatment) should be complied with by the party in whose favour the order has been made.
…
(vi)Whether the order should be supervised by a Family Consultant for a limited period of time or referred to an external Parenting Orders Program for longer term supervision and support.
(vii)Whether a Family Consultant should be directed to give one or both parties assistance to comply with the parenting order.
(viii)Whether any parenting order or injunction is inconsistent with a family violence order and the extent of any inconsistency.
The question directly relevant to the instant appeal is, in the circumstances of this case, whether or not the Federal Magistrate gave sufficient weight to the father’s evidence of family violence perpetrated by the mother and balanced and gave appropriate weight to that factor (having regard to the mother’s evidence of violence she asserted was perpetrated by the father, and other factors she asserted weighed against making the orders the father was seeking).
We consider the issue of family violence in this matter was a significant, if not the most significant, factor requiring consideration by the Federal Magistrate. We have already noted that the Federal Magistrate’s reasons were given orally and were brief, comprising in total 26 paragraphs. However, there is no challenge by the father to the adequacy of the Federal Magistrate’s reasons.
There was significant evidence in the affidavits, Exhibit 1, and the Family Report before the Federal Magistrate of family violence, including evidence of a domestic violence order made for the protection of the father against the mother, and similar orders in favour of the mother against the father. The evidence in Exhibit 1 (which we have extracted earlier in these reasons), was referred to by the Federal Magistrate who found the mother’s behaviour at the police station at an occasion of changeover to be “appalling”. There was also evidence before the Federal Magistrate that the father too had engaged in family violence and inappropriate behaviour, including his behaviour at the I Children’s Contact Centre.
The father’s application before the Federal Magistrate did not seek orders that the children live with him and have supervised time with the mother, or that she should undergo therapeutic treatment as a condition of the children living with or spending time with her (this is to be contrasted with the father’s position before us, which was, in the event that the appeal was allowed, that the children should spend substantial and significant time with the mother but such order be conditional upon “the mother getting help for her violence”).
Given the serious allegations of violence raised in the proceedings, the transcript, particularly the cross examination of each party and the reporter may have been enlightening. But the father did not suggest his principal assertions about the mother’s behaviour were not recorded by the Federal Magistrate or that anything of importance, not referred to by the Federal Magistrate, was elicited in cross-examination of any witnesses. His complaint was directed to the weight given to those matters.
We are aware from the written submissions of the ICL that the Federal Magistrate, on delivery of his oral reasons shortly before Christmas, requested the ICL to provide a Minute of Orders to reflect his reasons for judgment. We take this opportunity to note, given the Federal Magistrate’s acceptance of the report writer’s evidence and his findings of the impact of the parties’ behaviour on the children, an order for suitable therapeutic interventions for the children and referral suitable counselling or attendance post separation programs for the parents as a condition of the parenting orders seemed warranted. In this context we note what the report writer recorded at paragraph 84 of his report:
The reported enuresis and encopresis which the children experience is particularly concerning and in the absence of a clear diagnosis it is fair to consider that such behaviour could be a reflection of emotional distress, most likely associated with the parental conflict. Clearly the best interests of these children will be served by Mr [Oakley] and Ms [Cooper] developing the ability to communicate and cooperate and to be respectful in their behaviour towards each other. However, I consider it doubtful that this could be achieved without professional assistance.
We also think it important to record that while s 3 of the Federal Magistrates Act1999 (Cth) includes in the objects of that Act that the Court operate as informally as possible in the exercise of judicial power and use streamlined procedures, those objects must be carefully balanced against the need to ensure that children’s proceedings conducted under the Act where serious allegations of violence are raised are not unduly truncated, and opportunity is afforded, particularly to an ICL, to adduce evidence of appropriate protective or therapeutic programs or measures likely to avoid or minimise, as far as possible, the risk of harm to the children the subject of the proceedings where family violence affecting a child is identified. The allegations may be so serious that the proceedings should be transferred to the Magellan list in the Family Court of Australia. Also relevant in the context of this discussion are the provisions of Division 12A of Part VII of the Act. We draw attention to the principles to be applied in interpreting this Division including in particular s 69ZN(5), and certain provisions of the division which enable proceedings to be conducted in a manner appropriate to the matters in issue (see in particular s 69ZQ(1), and s 69ZX(1)). We do not suggest in this matter that the proceedings before the Federal Magistrate were inappropriately truncated, and again record that the father did not assert any issue of procedural unfairness. Our comments are intended to reflect the important and deserved prominence given by the Act to the issue of family violence and to ensure that children the subject of proceedings under the Act, are protected so far as possible by orders designed to shield them from physical or psychological abuse and which, in appropriate circumstances, facilitate suitable therapeutic measures.
In his submissions, counsel for the mother referred to his Honour’s reasons, including the discussion of weight given to the issue of family violence and likely compliance with orders, as being “clipped”. We agree. But we do not consider appealable error is established, as we will now explain.
We have already referred to the limited circumstances in which an appeal court can interfere with a discretionary judgment where the complaint is the matter of weight afforded to a particular factor.
The evidence before the Federal Magistrate included the Family Report. The evidence disclosed both parties hit the children. The Federal Magistrate accepted that evidence. Further, he found the father’s friend, Ms S, had hit the children. He also found both parties had engaged in verbal and physical abuse in the presence of the children, irrespective of the traumatising effect of this on the children. This was not a case of one parent only engaging in conduct which was detrimental to a child. His Honour took into account the violence involved both parties, and that the mother’s behaviour was at times worse than that of the father. Ultimately however when weighing all the relevant factors to determine these children’s best interests, the Federal Magistrate concluded it was not in their best interests to move to the father’s predominant care.
We were not referred to any irrelevant matter which the Federal Magistrate took into account in the exercise of his discretion. His Honour gave the weight he saw appropriate to each party’s inappropriate conduct. Reading his reasons overall, particularly in conjunction with the report writer’s evidence contained in the Family Report, we discern no appealable error in the weight ultimately given to this important factor by the Federal Magistrate.
Asserted inappropriate weight given to Mr K’s influence
The father’s complaint about Mr K may be disposed of shortly. The Federal Magistrate did consider the father’s concerns about Mr K’s influence on the children. Mr K’s influence was one of the many factors taken into account by the Federal Magistrate and cannot be considered in isolation. The mother conceded an order should be made preventing the children being left alone with Mr K. Such an order was made. We do not consider the Federal Magistrate was required to do more in the circumstances.
Asserted error in weight given to the maintenance of the children’s relationship with their half siblings
The father asserted the Federal Magistrate had given inappropriate weight to this factor. In his interview with the report writer the father conceded he had a poor relationship with the mother’s adult children, and he made complaint about asserted marihuana use by A, and excessive alcohol use by B. A was not living in the mother’s household at the relevant time. The Federal Magistrate considered the siblings’ relationships were important to the children. He based this finding on the Family Report. In the Family Report, the mother described the children as having a close relationship with all her children, but particularly the child D (who was then aged 10). At paragraph 88, the report writer opined the children should remain living with the mother. Although we have earlier set out this paragraph it is useful we repeat it:
On balance it does appear to be clear that Ms [Cooper] has greater parenting experience than Mr [Oakley]. Furthermore, she can provide the opportunity for [M] and [X] to be raised with their siblings. On balance, there is no evidence of a net benefit to the children associated with a change in regard to which parent they live with.
The importance of sibling relationships to a child is well recognised (see Bennett & Bennett (1991) FLC 92–191). We are satisfied that the fact of the children’s relationship with their half siblings was a matter which the Federal Magistrate was able to take into account. We discern no error in the weight afforded to this factor which was one only of the factors his Honour took into account.
Asserted error in the Federal Magistrate accepting the family report writer’s evidence
In his written submissions the father asserted that the report writer’s report was unfair and biased, and as a corollary, the Federal Magistrate should not have placed the weight he did on the report and the recommendations of its author.
The father’s criticism of the report writer included:
·asserted failure by the mother to comply with the report writer’s advice the parties should bring persons involved in the children’s upbringing to the interviews. The father asserted he had brought his mother and her friend, Ms S, a family friend who lived with the father and the paternal grandmother, to the interviews but the mother had failed to bring all persons living in her household and her former husband, Mr K who regularly stayed with her, to be interviewed;
·that the report writer “favoured [the] mothers [sic] lies” (implicit in this submission was the assertion that the father’s lack of legal representation prevented effective cross-examination of the mother and/or the report writer).
Although we do not have the benefit of the transcript of the proceedings before the Federal Magistrate, it appears from his reasons the father raised matters relating to the report process and/or objectivity of the report writer with the Federal Magistrate. In paragraph 10 of his reasons, the Federal Magistrate said:
In this case I have little hesitation in giving the succinct, well-reasoned, and considered report significant weight. Mr [R], despite the father accusing him of bias (which I totally reject) has in his report based his opinions on some underlying facts which I have myself found supported by the evidence I have heard.
Whilst we understand the father’s concern that the mother did not appear to comply with his understanding of a request made by the report writer about relevant persons to attend the interview process, there is nothing to suggest that the report writer adopted inappropriate methodology in the preparation of his report. Further, as found by the Federal Magistrate, some of the report writer’s underlining factual considerations on which he based his opinion were supported by the evidence heard by the Federal Magistrate. Thus we are satisfied there is no merit in this ground.
Asserted error by the Federal Magistrate in finding that the mother would not breach orders in the future
The father submitted there was no evidence before the Federal Magistrate which supported his conclusion that the mother would be likely to abide orders of the Court in the future. To the contrary, he asserted the mother had not abided by interim orders and had been “found guilty of seven breachs [sic] of D.V.O.”
Counsel for the mother in his written submissions referred to the fact that without transcript it was “far from clear” if, or to what degree, the father raised the issue of purported non-compliance with orders in the cross-examination of the mother (or by inference in his submissions to the Federal Magistrate). Counsel also referred to a lack of any contravention proceedings instituted by the father, or reference to non-compliance with orders in his affidavit material or in the family report interviews. Thus he submitted it was “open to conclude that his Honour’s finding at para.25 of his judgment was open and no error in the exercise of his discretion is demonstrated” (mother’s submissions, paragraphs 10-12).
In his written submissions counsel for the ICL acknowledged that the mother had suspended and not facilitated all the contact. However, he then referred to the fact that the Federal Magistrate had explained that the mother was well aware of the sanctions which could be imposed if she did not comply with orders. He further asserted that the father’s reference to seven breaches of domestic violence orders by the mother was an attempt to have new evidence considered, which evidence was subsequent to the trial and therefore not before the Federal Magistrate (or before us). We accept the thrust of these submissions.
We are unable to identify in any of the father’s affidavits filed respectively 25 July 2006, 30 August 2007 and 11 September 2007 serious complaints of non-compliance with orders, although the father did refer to difficulties during and in respect of telephone contact with the children in his affidavit filed 30 August 2007.
We accept, however, that the father did not raise the issue of non-compliance with orders with the report writer. This may be explicable because the father’s primary contention was the issue relating to his assertions of violence and other inappropriate behaviour of the mother in her care of the children.
The Federal Magistrate had the unique opportunity to see and hear the mother in the witness box. In circumstances where we were not directed to any challenge raised by the father before the Federal Magistrate about the mother’s non-compliance with orders in the past, directed to cross-examination on that topic, or referred to admissible evidence of contravention applications and/or convictions, we do not find this ground established.
Conclusions
No appealable error having been demonstrated by the Federal Magistrate the appeal must be dismissed.
Costs
At the conclusion of the hearing we sought submissions from the parties in respect of costs of the appeal.
The mother’s counsel did not seek costs, nor was there any formal application made for costs by counsel for the ICL. Accordingly we do not propose to make any order for costs.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
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