P & P

[2005] FamCA 678

[2005] FamCA 678

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA  Appeal No SA8 of 2005
AT MELBOURNE  File No DGF764 of 2004

BETWEEN:

P
Appellant Husband
- and -

P
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, WARNICK & MAY JJ
DATE OF HEARING:                 21 June 2005
DATE OF JUDGMENT:             21 June 2005

APPEARANCES:  The Appellant Husband in person.

Mr Eidelson of Counsel, instructed by Berry & Associates, DX 16105, Williamstown, appeared on behalf of the Respondent Wife.

P & P

SA8 of 2005

CORAM:  KAY, WARNICK & MAY JJ

DATE OF HEARING:         21 June 2005

DATE OF JUDGMENT:     21 June 2005

Catchwords:           CHILDREN – residence and contact – father's appeal against interim orders that the child reside with the mother and have substantial contact to the father – assertion that trial Judge failed to take into account many relevant matters and took into account irrelevant matters – further assertion that father inadequately represented at the proceedings - appeal dismissed with costs. 

KAY J:

1. This is an appeal against orders made by Watt J on 21 January 2005.  It concerns interim arrangements for the child T, who was born in 2000. 

1. The appellant is the child's father and the respondent the child's mother. 

Background

1. The parties, who are of Middle Eastern background, married in the Middle East in 1998.  The father had already settled in Australia before that date and he met his wife in the Middle East.  She followed him to Australia shortly after the marriage and they settled in Australia.  They separated, according to some material of the father in his initiating application, in about early 2003.  A shared arrangement relating to the time spent by the child with each parent has been in place at least since the middle of 2003 and that arrangement was ultimately put onto a more formal basis by some orders of this Court that were made on an interim basis in July 2004.  I will return to those orders in a moment.

1. The proceedings before the Court commenced with the father filing an application in June of 2004.  In that application he sought an order that T reside with him, that he have the sole responsibility for the child's day‑to‑day care, welfare and development and that there be contact with the mother on a supervised basis each alternate weekend, 4.00 Friday until 10.00 Sunday.  He also sought an order that T should be able to communicate by telephone to the other parent at any time she desires to do so, and at other important times  contact be equally shared during times to be agreed upon.  He sought some other orders relating to the non-removal of the child from Australia.

1. In a response the mother sought orders that the child reside with her and that the father have contact alternate weekends from 4.00 until 6.00 Sunday, each Wednesday from 4 till 8 pm, with the father to collect the child outside her home at the commencement of contact, she to collect the child outside his home at the conclusion of contact periods and that there be a welfare report prepared.

1. The matters came on for some form of interim hearing before Ramsden JR on 7 July 2004 and two sets of orders were made on that day.  In one set of orders there was an order made requesting the child be separately represented and the Department of Human Services be requested to intervene in the proceedings that were then adjourned off till 6 October 2004.  At the same time there were consent orders made that until the adjourned hearing, T should live with the father from 1 pm Friday until 11 am Monday of each week and otherwise as agreed in writing and that the child live with the mother at all other times.  It was further ordered that there be a report prepared by a clinical psychologist or counsellor and there were orders restraining the parties from discussing the proceedings with the child or in her hearing, the child being then barely four years of age, denigrating the other within the hearing of the child or removing the child from the state of Victoria.  An order was made that the father was to collect the child at the start of his period of residence from outside the mother’s home and the mother collect the child at the start of her period of residence from outside the father’s home.

1. On 6 October there was a further adjournment of the proceedings to December and there was an order made that the parties attend upon Mr P in November for the preparation of a welfare report.

1. What then appears to occur is that the father filed two applications asserting some contraventions of orders, again acting on his own behalf, one on 13 December 2004 and one on 17 December 2004, and that Mr P saw the parties and issued a report on 18 January 2005.

The interim hearing

1. By some process which is not abundantly clear from the appeal books, the matter came on for hearing on 21 January 2005.  The matters were called on early that morning just after 10 o'clock.  Mr Moore, solicitor, appeared on behalf of the father, Mr Eidelson appeared on behalf of the mother and Mr Williams announced his appearance on behalf of the child representative.  Mr Moore identified as the proceedings that were before the Court two matters:

“…There's some contempt matters, that will take quite some time and I presume wouldn't be dealt with today but would be transferred off, even though my client would like them dealt with.  Secondly, there's been a report ---“

1. Watt J indicated that he had a quick look at the contempt matters and there were some procedural difficulties about them, to which Mr Moore replied:

“I've only come into the matter fairly recently in this matter and there's been - - -

HIS HONOUR:   Yes.  Do have a look at that and turn your mind to that issue.  I'm only raising it because you're right, it probably wouldn't get a hearing today.  But before I send it off I'd want to look at that issue.”

1. That is a matter relating to the form of the contravention applications:

“MR MOORE:   Yes, I'm glad your Honour pointed that out to me.  The second aspect, your Honour, is that there's been a report prepared by [VP].  At the present time there's shared residence between the parties.

…

MOR [sic] MOORE:   My client wants to keep that happening.  It's not what's in the report but he says that there's very good reason why it should continue to happen and he has set out in an affidavit his reasons in relation to that that he's prepared himself that has been put together and sworn this morning.

HIS HONOUR:   Today's application seeks to change in accordance with what Mr [P's] recommended, does it?

MR EIDELSON:   That would be my application.”

1. There was then some further discussion.  The matter was stood down.  It was mentioned again just before midday when Mr Eidelson said that there was a question of schooling because the child had to start school in a week.  The matter was stood down again and came on after lunch.  At that time it was made clear that the child representative was supporting the recommendation of Mr P as reflected in the orders that were being sought by the mother in the proceedings and it became apparent that the contempt proceedings or the contravention proceedings could not go on. Mr Moore appeared quite amenable to that course being taken.  His Honour said:

“All I'm really saying is that I'm not about to embark upon a hearing of that application today.

MR MOORE:   No.

HIS HONOUR:   But if I am going to have to send it off anywhere I wouldn't want it to be burdened with untenable allegations, if you know what I mean.

MR MOORE:   Yes, I do.”

1. Then Mr Moore turned to what he called the substantive issues, being the interim care arrangements. The report of Mr P was identified as being prepared for the interim purposes and Mr Moore then set out the matters that he wanted his Honour to take into account on behalf of his client, saying:

“That regime has worked fairly well because he's been able to keep a close eye on and close contact with his daughter.  He says that where he is, where's he's living, the daughter has the ability to see the extended family and be involved with the extended family, particularly the uncle who lives in the same household and there's a grandfather too.”

1. It was then made apparent that the father was living in a suburb in southern Victoria and the mother also in southern Victoria that involved about a half-hour drive each way.  Each party was proposing the child go to a local Catholic school.  Mr Moore then addressed his Honour on why it was that he said the situation should continue even if it was going to cause some difficulties with the child attending school where the mother wanted the child to attend, suggesting that perhaps the parents  could meet halfway and there could be a swap over of the child or some kind of collection and delivery arrangement so the father still had an almost equal amount of time with the child.  He raised for serious consideration the ability of the mother to look after the child and the father's real concerns for the child. He submitted that the father did not want to be disenfranchised. He wanted to maintain some equal status in the child's life and saw an interim order as somehow disenfranchising him.

1. Mr Eidelson then addressed his Honour, pointing out the matters in the favour of the wife contained in the report, and Mr Eidelson indicated that he had prepared some minutes that the parties had some opportunity to consider and that orders should be made in accordance with the minutes.  He also indicated it was the child representative's view that it was appropriate the child reside with the mother and attend the local school where she has made appropriate arrangements.

1. Mr P's report was short, occupying some eight pages. It identified that there was serious conflict between the parties, the father expressing the view that the mother had longstanding psychiatric problems and was physically abusive of the child and the mother indicating from her perspective that the father was somebody who would be primarily motivated for financial gain. She asserted that she had been mistreated or maltreated by the father and, once having removed herself from physical proximity to him, she was a person who had rebuilt her life and was able to cope adequately as a parent.  The mother had felt that the shared residence arrangement was too unsettling and the child needed stability and security.

1. Mr P observed each of the parents with the child and read a great amount of material that had been presented to him, including a number of documents subpoenaed from the Department of Human Services and various medical practitioners who had treated the wife during the course of her relationship.  He concluded that whilst the father saw the mother's psychiatric state as a very significant concern, he could find nowhere in any subpoenaed documents any substantial concern about the mother and the child.  Those documents led him to conclude that the mother had sought assistance and support. She had accessed services. The child care records indicated significant gains had been maintained.  His observations were that the parents both had related very well with the child, although he found that the mother's style of relationship was relaxed and highly capable whilst the father's was more directive, controlling and much more task‑oriented.

1. He could not conclude that the child had been emotionally abused on the material that was before him but indicated that these were issues still for the Court. He ultimately concluded that given the transition into primary school and given the history and nature of allegations and counter‑allegations, a shared residence arrangement could not possibly work and it should not be in fact trialled and that given the mother had been the more significant parent in the child's caring to date, it was appropriate that she be the primary residence parent and that there be firm contact arrangements made.

The trial judgment

1. On the strength of that material, his Honour concluded by reference to the positions being taken by each party, but without any analysis of the competing factual positions, that it was appropriate to make the orders as recommended by Mr P.  He accepted Mr P's proposition that as the child was about to make her transition into primary school, that of itself added to the need for there to be a secure base from which the child moved into that new world and a secure understanding of where home was in relation to the new environment.  He was fortified in choosing the mother by Mr P's interpretation of the subpoenaed material that there was no current risk either from health or malicious abuse to the child in the care of the mother.

1. His Honour was conscious that while the father was very critical of Mr P's interpretation of the subpoenaed documents, the opinions derived from the secondary sources by Mr P were strongly corroborated and enhanced by Mr P's personal observations of the child with the mother and concluded that a shared residence position could not be continued, nor could an even more equally shared residence be trialed. His Honour concluded that given the very negative view the father had of the mother, it could not possibly be to the child's advantage to continue that.  In his Honour's view it could not be to the child's advantage to continue such an arrangement and that in the circumstances the welfare of the child would best be advanced by making an arrangement that would leave the child with the mother and by making arrangements for contact that would see the father having substantial contact, moving off what was six nights a fortnight down to four nights a fortnight but retaining of course or introducing for the first time shared holidays on a fairly even basis, partly marginalising the father but leaving him as a significant participant in the child's life pending the further disposition of the proceedings.

The appeal

1. The father's complaint in his material is twofold.  Firstly, he says that the trial Judge has failed to take into account many relevant matters, and he sets those out under some 18 headings, and that he took into account irrelevant matters, and he sets those out under three or four headings.  There has been extensive discussion in the course of the father's submissions this morning, he appearing for himself, in which the court has dealt with the matters raised by him and I do not think it is particularly beneficial to repeat those matters.

1. The trial judge's function at an interim hearing, on very limited basis of material and time, is to make an order that best advances the welfare of the child as the trial judge perceives it to be.  The criteria that are generally applied in interim hearings were set out in the case of Cowling (1998) FLC 92-801, where the Full Court there reminded us that the best interests of the children are the paramount consideration. Generally, those interests are met by promoting stability in the child's life pending a full hearing of the relevant issues, and that stability is frequently created by the continuation of well-settled arrangements unless it could be shown that the welfare would be endangered by remaining within those arrangements.

1. However, that rule has to be seen within the context of the surrounding circumstances, and in this particular case one of the significant factors was that the child was entering into her formal education and that the continuation of the existing arrangement that would see the child away from the mother during every weekend and with the mother only during the school week might not be seen to be to the advantage of the child and the relationship the child would have with the mother outside of the school week.

1. In addition, there was the continuing ongoing hostility of the parties particularly evidenced by the polarised situation that each party had taken. The father asserted that the mother effectively was quite incapable of caring for the child and indeed represented a danger to the child, as well as being a person who had operated from ulterior motives in many aspects of the relationship with the father in the ongoing litigation.  In those circumstances there was certainly scope for the trial Judge to conclude, aided by the welfare report and the child representative, that the welfare of the child required on an interim basis, at least until the issues could be properly determined, to be placed in the care of one or other of the parents, and in the circumstance the mother was chosen as being the more appropriate of the two.

Outcome

1. This is an appeal against a discretionary judgment.  The principles upon which an appellate court interferes in appeals from discretionary judgments are well known.  There has to be some effectively demonstrable error on behalf of the trial judge, either by the application of a wrong principle or a misunderstanding of the facts or the reaching a result which is plainly wrong.  I am not persuaded by anything that has been submitted in the course of these proceedings that such error has been demonstrated.

1. Just as a footnote, one of the other issues that seems to be raised by the father, although it is not specifically spelled out as a ground of appeal, is that somehow he was inadequately represented at the proceedings below and this matter should have been apparent to the trial Judge and ought to have impacted upon the outcome of the proceedings below or ought now be apparent to us and impact on the proceedings here.

1. The issue of the role of the question of competence of counsel in children's cases was dealt with by the Full Court in the decision of OP v TP and Anor (Conduct of Counsel) (2002) 30 Fam LR 281. There the Full Court, indicated that the principles that had been expressed by the Supreme Court of the United States in Strickland v Washington came into play and that it would be necessary for the appellant to demonstrate there was a reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  That requires, firstly, as the Full Court explained, demonstrating there were professional errors, and then, secondly, demonstrating that there would have been a different outcome but if it were not for those professional errors.

1. I would just like to comment that on the face of what I have read of the transcript in these proceedings there is nothing that is apparent to indicate that Mr Moore acted otherwise than appropriately in the circumstances, filtering out for his client's case matters that were appropriate to be stressed before the trial Judge, emphasising those matters and otherwise not arguing matters that were unlikely to have affected the outcome of the proceedings.  In the circumstances I would dismiss the appeal.

WARNICK J:  

1. I agree that the appeal should be dismissed and with the reasons given by his Honour, the learned presiding judge.  I wish to add a reference only to one proposition advanced by the father, that is, that the result was unfair because he will be disadvantaged as a result of the child caring arrangements between the order appealed and the final trial.  It may be so that the interim orders give rise to some advantage to the mother in achieving what she seeks as the final outcome and consequently some disadvantage to the father in that regard.  However, once a trial judge decides to change a pre‑existing arrangement or a status quo as the trial judge did here, for reasons which have been covered already by his Honour, the learned presiding judge, and once the correct principle has been applied, namely, the best interests of the child given paramountcy, then the position of disadvantage that arises for a parent such as the father is an unavoidable consequence.  It certainly could not be that the question of placement of the child between the parents in the interim was decided according to some idea that neither should be disadvantaged pending trial on a final basis.  As I say, that is simply an unavoidable consequence of a correct application of principle.

MAY J:  

1. I agree with the reasons given by the learned presiding judge and would also dismiss the appeal.

KAY J:  

1. The formal order of the court is:

1.    That the appeal be dismissed.

2.    That the appellant pay $3000 towards the respondent's costs.

I certify that the 31 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate