Pagett & Pagett
[2009] FamCAFC 24
•12 February 2009
FAMILY COURT OF AUSTRALIA
| PAGETT & PAGETT | [2009 ] FamCAFC 24 |
| FAMILY LAW - APPEAL – Application to adduce further evidence refused (CDJ v VAJ (1998) 157 ALR 686). FAMILY LAW - APPEAL – Delay – Not established that the delay of one year between the trial and judgment provided the basis for appeal in the circumstances of this case. FAMILY LAW - APPEAL – Parenting proceedings – Not established that the Federal Magistrate erred in declining to adopt the recommendations of the Family Consultant – Not established that the Federal Magistrate erred in making an order for equal shared parental responsibility – Not established that the Federal Magistrate erred in failing to give sufficient weight to the wishes of the child – Not established that the Federal Magistrate erred in failing to give sufficient weight to the practical difficulties of the orders – Not established that the Federal Magistrate failed to give adequate reasons. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 157 ALR 686 House v The King (1936) 55 CLR 499 Gronow v Gronow (1979) 144 CLR 513 R v Maxwell (1998) 217 ALR 452 |
| APPELLANT: | Mrs PAGETT |
| RESPONDENT: | Mr PAGETT |
| FILE NUMBER: | NCM | 519 | of | 2006 |
| APPEAL NUMBER: | EA | 71 | of | 2008 |
| DATE DELIVERED: | 12 February 2009 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | STEVENSON J |
| HEARING DATE: | 3 October 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 March 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 265 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kelly |
| SOLICITOR FOR THE APPELLANT: | Maclean & Curtis Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Commission of New South Wales |
Orders
That the appeal is dismissed.
That there is no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Pagett and Pagett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 71 of 2008
File Number: NCM 519 of 2006
| Mrs PAGETT |
Appellant
And
| Mr PAGETT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal against orders made by Federal Magistrate Coakes on 14 March 2008. These orders related to the parties’ two children:
The child P born in 2000 (8) and
The child E born in 2003 (5).
Essentially, the orders provided that the children live with the father and spend time with the mother for half of all school holidays and, during school terms, in a three week cycle as follows:
Week 1 – Monday afternoon until Wednesday morning
Week 2 – Friday afternoon until Tuesday morning
Week 3 – Friday afternoon until Tuesday morning
The orders provided, further, that the children spent four additional days per school term with the mother.
In the event of a successful appeal, the mother sought a re-exercise of the discretion. She proposed orders to the effect that the children live with her and spend time with the father for five nights per fortnight and half of all school holidays. Counsel for the mother acknowledged that it may be more appropriate that the matter be remitted to the Federal Magistrates Court for re-hearing, in the event that the appeal succeeds.
The father sought the dismissal of the appeal. Both parties were legally aided and it was agreed, therefore, that there would be no issue as to the costs of the appeal.
Background
The mother, who is 31, and the father, who is 35, began a relationship in 1999. They married in 2003 and separated in 2005. At that time the family lived at C, which is a small town approximately 35 kilometres south-west of T.
On 23 March 2006 the Federal Magistrates Court made interim orders by consent. These orders provided that the children live with the father and spend time with the mother on two out of every three weekends, each third Tuesday night and for half of all school holidays.
In June 2006 the mother purchased a home at M, which is a town some 35 kilometres north of T. The children continued to live with the father at C.
The Application to Adduce Further Evidence on Appeal
Before me, the mother sought to adduce further evidence pursuant to section 93A(2) of the Family Law Act. This evidence consisted of her affidavit sworn on 11 September 2008 and an affidavit of Ms B sworn on 1 October 2008. The application was opposed by the father. If the application was granted, the father sought to adduce further evidence, consisting of his affidavit sworn on 26 September 2008.
The affidavit of the mother set out a number of incidents, alleged to have occurred since the orders of 14 March 2008. There was annexed a copy of an apprehended violence order, made for the protection of the mother, on 24 July 2008. Also annexed to the affidavit was a copy of the application for the apprehended violence order. This document included allegations about the father’s behaviour, dating back to the start of the parties’ relationship. Obviously, this material well preceded the trial in the Federal Magistrates Court. Some of these allegations were couched in very general terms and, in my view, had the potential to be highly prejudicial to the father and of scant probative value.
None of the material contained in this annexure was the direct evidence of the mother. The document was prepared by a police officer, apparently on the basis of information provided by the mother.
The father strongly disputed the mother’s allegations that he has directed threatening and intimidating behaviour toward her and caused conflict between the parties since 14 March 2008. He gave his version of these events in his affidavit sworn on 26 September 2008.
The affidavit of Ms B annexed a transcript which she prepared, after listening to a recording of the apprehended violence proceedings in the Local Court. This transcript included the ex tempore judgment of the presiding magistrate. On behalf of the mother, it was submitted that this material is relevant for present purposes, as the learned magistrate “made damning findings” against the father. It should be noted that the father has lodged an appeal to the District Court.
The power of the court to receive further evidence on appeal is expressed by section 93A(2) to be discretionary in nature. The proper exercise of this discretion was considered by the High Court of Australia in CDJ v VAJ (1998)157 ALR 686. The judgment of McHugh, Gummow and Callinan JJ includes the following passages:
104. In the exercise of discretion conferred by a power such as section 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion, and
109. One consideration in construing section 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence if that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures….. and
111. Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court’s jurisdiction is neither purely appellate nor purely original. In Attorney General v Sillem Lord Westbury LC pointed out that ‘an appeal is the right of entering the superior court, and invoking its aid and interposition to redress the error of the court below’. Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing of the appeal. Speaking of a similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a ‘trial over again, on the evidence used in the court below; but there is a special power to receive further evidence.’ Nevertheless, it is highly unlikely that parliament in conferring jurisdiction on the Full Court to hear appeals intended that section 93A(2) should be construed in the way to have a practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interest of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial and
114. No doubt the court will readily admit further evidence which is not in dispute and which the court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings reheard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial….. and
115. Other limitations on the exercise of the power arise from the fact that the discretion which section 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it must only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
At the outset of the appeal I asked counsel for the mother whether the more appropriate course would be an application to vary the orders of the Federal Magistrates Court, rather than to seek to adduce further evidence before me. Counsel conceded that it was open to the mother to make an application to vary the existing orders. I was then told that she did not wish to do so, because enquiries had revealed that there would be a lengthy delay in obtaining further hearing time in the Federal Magistrates Court. Such delay, which I accept is highly probable, would not assist the mother’s application if the further evidence which she sought to adduce should not be admitted.
There was an abundance of evidence as to the conflict between the parties and allegedly threatening and intimidating behaviour on the part of the father before the Federal Magistrate. The further evidence which the mother sought to adduce could reasonably be summarised as additional material of this nature, together with the transcript of the apprehended violence proceedings in the Local Court.
It seems to me that the copy of the application for an apprehended violence order should not be admitted into evidence. As noted, this document is the creation of a police officer and contains material dating back to 1999. Its contents certainly would be prejudicial to the father. In my view this prejudice far outweighs probative value of the contents of the document.
Obviously, the further evidence of the father would have to be admitted if the mother’s application were successful. There would then need to be cross-examination of each of the parties before me. I am conscious of the observations of the High Court of Australia, in CDJ v VAJ, in relation to the practical result of obliterating the distinction between appellate and original jurisdiction. In my view, that consequence would flow if I were to admit the further evidence in this appeal. It seems to me that the appropriate course would be for this evidence to be tested at trial, in an application to vary the existing orders.
I consider that the transcript of the apprehended violence proceedings in the Local Court should not be admitted. It should be remembered that the father has lodged an appeal against these orders. Leaving aside the question of its admissibility per se, this evidence would be most prejudicial to him in these circumstances.
I indicated during the hearing that, in the exercise of my discretion, I refused the mother’s application to adduce further evidence on appeal. I have now set out my reasons for that decision.
The Grounds of Appeal
The Notice of Appeal contained 19 grounds, 11 of which raised complaints as to the weight attached by the learned Federal Magistrate to various aspects of the evidence. Without objection, leave was granted to the appellant to add the following additional ground:
“that his Honour failed to give adequate reasons for his decision”.
In his Summary of Argument counsel for the mother wrote:
while there are some 20 grounds of appeal, the mother’s appeal effectively rests on the following:
(a)the effect of the one year delay between the hearing and judgment on the reliability of his Honour’s exercise of his discretion
(b)whether his Honour erred in rejecting the evaluation and recommendation of the Family Report writer that the children should live with the mother for the majority of the time despite the risk of the father reducing his time with the children because orders were made adverse to his current position (reducing the time the children spend with him)
(c)the reliability of his Honour’s observation of the father that if orders were made that reduce the children’s time with him the father would reduce that time even further
(d)whether an order for equal shared parental responsibility (and hence equal time) was appropriate given:
(i) the high level of conflict of the parents
(ii) the differing parenting styles
(iii) the finding of family violence of the father
(e)whether his Honour erred in ignoring [the child P]’s wishes that he wished to spend more time with his father
(f)whether his Honour erred in ignoring the practical difficulties of children spending essentially equal time with parents who live some 80 kilometres apart.
Obviously, the reference to the child P’s wish to spend more time with his “father” should be a reference to his “mother”.
I was grateful for this summary of the grounds of appeal. I will consider the competing submissions with this useful framework.
In his written Summary of Argument, counsel for the mother acknowledged that “the appeal is from a discretionary judgment”. He then cited very well known passages, setting out the legal principles which govern the determination of appeals against discretionary judgments, in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513. I will here repeat only the extract from the decision in House v The King, which appeared in the Summaries of Argument on behalf of both of the parties, as follows:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in a position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon the wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion, which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The Effect of the Delay Between Trial and Delivery of Judgment
The Summary of Argument on behalf of the mother first addressed ground 19, which was as follows:
His Honour’s findings as to (a) the character of the father and (b) the credit of the father are unsafe having regard to the length of time between the giving of evidence by the father and the giving of judgment.
It was properly conceded that delay of itself does not constitute a ground of appeal.
Counsel for the mother relied upon certain passages from the decision of the Court of Appeal of the Supreme Court of New South Wales in R v Maxwell: (1998) 217 ALR 452. Spigelman CJ, Sperling and Hidden JJ said (at p.463):
Indeed, a delay of the order of 10 months is, of itself, such as to require more comprehensive statement of the relevant evidence than would normally be required, in order to manifest, for the parties and the public, that the delay has not affected the decision and
We adopt the analysis of the English Court of Appeal in Goose v Wilson Sandford where their Lordships said:
Because of the delay in giving judgment, it has been incumbent on us to look with special care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witness has an advantage, denied to an appellate court, which is likely to prove decisive on appeal unless it can be shown that he failed to use or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge’s advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when it comes to study the evidence, (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months Harman J denied himself the opportunity of making this further check in any meaningful way.
In his written Summary of Argument counsel for the mother expressed the gravamen of this aspect of the appeal as follows:
His Honour relies on his observations of the father whilst he gave evidence to reject a large amount of expert evidence given by the Family Report writer, Mr [T], as well as evidence given by the father that even if his Honour made orders that he spend time with the children as little as one day per month he will not reduce the time he would spend with the children pursuant to any orders made.
It was submitted that:
His Honour has not given sufficient reasons as to what observations he made of the father, or Mr [T], or any other witness that enabled him to reject the evidence of Mr [T] and indeed the father himself.
Counsel for the mother then drew attention to paragraph 71 of his Honour’s reasons, which stated:
Having observed the father very carefully while he have his evidence, I conclude that the father will feel a very great sense of loss if there is a significant reduction in the amount of time he spends with the children and to such an extent, that on the balance of probabilities, he is likely to reduce the time he could spend with the children, or there will at least be a very real risk of that occurring. My reasoning is that he has spent three years being a devoted parent to both children, half of which has continued since separation and that he has been effective in such role. He may perceive that the mother will undermine all that he has done, and in my view is likely to be resentful toward her. This will result in either the father spending less time with the children and perhaps more significantly and more likely the conflict between the parents escalating, both of which are to be avoided.
As appears below, I am of the view that the reasoning process by which the learned Federal Magistrate reached the conclusions set out in paragraph 71 can be clearly discerned from the judgment. One factor in the Federal Magistrate’s reasoning was his own observations of the father as he gave his evidence. There were additional matters taken into account by the Federal Magistrate in reaching these conclusions, which appear below in these reasons. I am not satisfied that there is substance to the grounds of appeal which raise delay between trial and judgment.
Rejection of the Recommendations of the Family Consultant and Insufficiency of Reasons
A Family Consultant, Mr T, prepared a Family Report dated 3 March 2007. Mr T gave oral evidence during the trial.
Counsel for the mother referred to paragraph 73 of the Family Report, which read:
However the benefits of having increased time with their mother are more than likely to offset this loss. This is particularly true if Ms [Pagett] undertakes professional adjustment counselling she has indicated she is aware she would benefit from engaging. The children are very likely to deteriorate in their behaviour and have their development impeded if they do not have increased time with their mother, since they would suffer a strong sense of rejection and no significant hope of change in the future that they can perceive.
In my view it is necessary to have regard to the two paragraphs which immediately precede this passage in the Family Report, which read as follows:
71. The discussion in this evaluation has indicated that there is a strong argument for increasing the time the children spend living with Ms [Pagett] beyond half of the available time in the evaluation of the children’s needs.
72. Mr [Pagett’s] response to such an arrangement will be one of great disappointment and force substantial changes on his lifestyle. He does not expect to be able to find suitable employment readily in the area and he would suffer a reduction in income as outlined below. This will be a major impact upon him and if he were placed in this position his response to the welfare and development of the children is critical. If he feels that the loss is too great and elects to further reduce his time with the children this would give them a sense of rejection and a sense of responsibility for their father’s apparent distress. Such responses in the children are likely to be of significant negative impact on the children.
It is also necessary to have regard to certain oral evidence given by Mr T, in response to questions put by the father in cross-examination. He asked:
Can you honestly say that removing her [the child E] more than 50 per cent of her available time from me is not going to have a negative impact on [the child E]?
Mr T answered:
No, I couldn’t say it wouldn’t have any negative impact on [the child E] at this time.
A short time later Mr T said:
Yes but as I said before and I will keep returning to this particularly with reference to these children, all that is somewhat less relevant than the context of the parents’ relationship. If the parents were getting on very well, the impact would be very small. If the parents were actually getting on worse as the result of the change, well then the impact would be worse again. If the parents remain at the same level of interaction, it is not an impossible move to accomplish and it would appear to have – because in [the child E]’s case that is why you are asking that, she would still be with her brother, it would appear her brother would be happy and she is still living with her mother who, by your own statement, she did spend the first five months of her life with that - in that situation as you described it and continued to have her mother’s assistance at some level while you two were together which was up to while [the child E] would be – what 18 months.
He continued:
The point I was making is there’s the same level of – if the same interactions continue between the parents there is going to be a greater negative impact from that than there is from the moving of her between cooperative parents.
In paragraphs 64 and 66 of his judgment, the Federal Magistrate set out Mr T’s recommendation that the children spend more than half of their time with their mother. He then quoted Mr T’s reply to a question from the father, as to whether it would be preferable for the children to spend the majority of their time with their mother in each two weeks rather than equal time with each parent. Mr T said:
At this time, given the relationship between you and the mother, I would have to say yes because the children will be too often exposed, if history is repeated, of the difficulties you have which will again be emotionally disturbing. It is in their best interest to minimise the time where they will experience hostility between their parents.
The Federal Magistrate then summarised the Family Consultant’s concerns that the father would reduce his time with the children if there were orders that they live with the mother for more than half of every two week period. He said:
Mr [T] concluded that if the father felt that the loss is too great and elects to further reduce his time with the children then this will give them a sense of rejection and a sense of responsibility for their father’s apparent distress. Mr [T] concluded that such responses in the children are likely to be significant and result in a negative impact on the children. Mr [T] concluded further that the benefits of the increased time with their mother are more than likely to offset such a loss, particularly as the mother undertakes the professional adjustment, counselling he has suggested.
The Federal Magistrate then considered the father’s evidence that he would not reduce his time with the children, if the outcome of the proceedings was contrary to his wishes. It is useful to set out what the father said, in response to questions by the mother’s legal representative:
Should the court be concerned that you would walk away from your children?...No.
That is, if the orders were made that the children live for a majority of the time with [Ms Pagett] you would still be there to support your children?...Yes.
You would still be there to love your children?...Yes.
You would do everything you can, I take it, to reinforce your position as the father of those children. Is that right?...Yes.
So whatever order is made there is no possibility at all is there that you are simply going to disappear off into the never never?...No, it doesn’t matter what order is made, it can’t stop me from loving my children, it can’t stop me from seeing my children and it can’t stop my children from loving me.
Yes that’s right. So your unequivocal love for your children is not dependent upon the outcome of these proceedings, is that right?...No. Yes, that is right. I would like to have – to see a 50/50 split.
We know that, yes?...But no, if you gave me one night a month nothing would change.
Nonetheless, the Federal Magistrate concluded that it was likely that the father would reduce his time with the children or that there would be a very real risk that he would do so. At this point the Federal Magistrate referred to his “having observed the father very carefully while he gave his evidence”. There followed a clear statement of the reasoning which led to this conclusion which I have set out in paragraph 26 above.
The Federal Magistrate had the advantage of observing the demeanour of the father when he said the words set out above and generally when he gave his evidence. At paragraph 90 of the judgment the Federal Magistrate said:
If my assessment of the father’s character and nature is correct, he will not cope well with the loss of the children as he would perceive it, and this is likely in my view to lead to increased parental conflict, whether or not the children spend each weekend with him and some mid-week time, or longer periods with him.
It is thus apparent that, in assessing the likelihood of his reducing time with the children in the event of a result unfavourable to him, the Federal Magistrate elected not to take the father at his word. The Federal Magistrate had the unique advantage of observing the father while he gave his evidence and, clearly, was in a position to form an impression of his “character and nature”. The Federal Magistrate evaluated the weight to be given to the father’s evidence in a proper manner.
In the penultimate paragraph of his judgment, the Federal Magistrate gave his reasons for declining to adopt the recommendations of the Family Consultant, as follows:
In coming to this conclusion I find that it is not appropriate to adopt Mr [T]’s recommendation that the children live with their mother for the majority of the time each two weeks. I have read and re-read the Family Report several times and again considered very carefully Mr [T]’s evidence during the trial. The court is not bound to accept Mr [T]’s recommendations, although it is important that appropriate weight be given to them, and some I will adopt. Mr [T] did not have the benefit of observing both parties giving evidence in the witness box as I did, and in my view, whilst correctly considering the effect on the father of a change in the present arrangements did not give sufficient weight to the consequences of the effect upon the children of being removed from the primary care of their father and the place where they currently live and of spending less time with him.
It seems to me that this paragraph clearly sets out the reasons the Federal Magistrate elected not to follow the recommendations of the Family Consultant. Mr T’s evidence was one element only of the material before the Federal Magistrate. I am not satisfied that there is substance to the grounds of appeal which complain of rejection of the recommendations of the Family Consultant.
Order for Equal Shared Parental Responsibility
This complaint seems to be that the Federal Magistrate should not have made an order that the parties have equal shared parental responsibility, although that order was sought in both the application and response. It was submitted to me that the Federal Magistrate was not bound by the proposals of the parties and should, of his own volition, declined to make an order for equal shared parental responsibility. It was said that the evidence of violence directed at the mother by the father could lead only to that result.
The mother at no stage sought an order that she have sole parental responsibility. In final submissions her legal representative made a suggestion that there should not be an order for equal shared parental responsibility. The following exchange took place:
Mr Khan: One might have thought, your Honour, that with the way the evidence had come about that the application that in fact may be made was for there not to be shared parental responsibility. And your Honour might think that there are plainly going to be difficulties for these parties going into the future in terms of communication and therefore the need for there to be counselling and the like to overcome some of these difficulties. And of course, if one goes for the path of shared parental responsibility, it raises the presumptions of equal time and therefore your Honour’s considerations. Could I say in that regard, your Honour, that if one needs to embark upon that exercise one might argue that the proposal that is put forward by the mother in all the circumstances constitutes substantial time for the purposes of the act. If, however, your Honour was against me in that respect could I say this? The history of …
Federal Magistrate: Let me stop you there.
Mr Khan: Yes.
Federal Magistrate: I am left with the impression that an order for equal shared parental responsibility is appropriate.
Mr Khan: Yes.
Federal Magistrate: I am also left with the impression that if I decided something other than equal time, then certainly substantial and significant time is appropriate.
Mr Khan: Yes.
There was no attempt at that stage or at any other time to dissuade the Federal Magistrate from making an order for equal shared parental responsibility. There was never an oral application for leave to amend the orders sought on behalf of the mother. On the contrary, the mother’s legal representative ultimately acquiesced to the making of an order for equal shared parental responsibility.
The argument put to the Federal Magistrate seemed to be that the parents’ inability to cooperate and their unsatisfactory level of communication meant that consideration should be given to an order for sole parental responsibility in favour of the mother. At trial, this submission seemed to be that there was sufficient evidence, for the purposes of s.61DA(4), to rebut the presumption on the basis that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
It was also put to the Federal Magistrate that there was sufficient evidence to warrant a finding that there was a need to protect the children from physical or psychological harm from being subject to, or being exposed to, abuse, neglect or family violence within the meaning of s.60CC(2)(b). In final submissions the legal representative for the mother reviewed the evidence in relation to violence and submitted:
All of them have exposed the children, in my submission, to unnecessary harm for which the results, in my submission, are evident today.
This submission was put in the context of the primary considerations set out in section 60CC(2).
Before me, it was submitted on behalf of the mother that the presumption of equal shared parenting responsibility does not apply because there are reasonable grounds to believe that the father has engaged in family violence. This proposition, which rests on section 61DA(2), was never put to the Federal Magistrate.
The judgment dealt carefully and in detail with the allegations of violence on the part of the father. The Federal Magistrate recorded that the father denied the “general allegations of violence…..with the exception of one incident which occurred on 4 September 2005 and which precipitated the parties’ separation”. It was noted that the mother lost her temper and slapped the father on this occasion, which involved an exchange of insults and accusations of infidelity. The findings were that the father grabbed the mother’s arm and pushed her against a door; that he kicked her in the region of her left hip and that she suffered pain.
The Federal Magistrate referred to another incident which occurred late in 2004. The findings were that the father kicked the mother in the lower back while she was sitting on the verandah, causing her to fall to the ground.
In the context of section 60CC(2), while dealing with the primary considerations, the Federal Magistrate made these findings as to violence on the part of the father:
I have referred to the instances of physical violence between the parents and the extensive verbal abuse and arguments. I find on the balance of probabilities that the likelihood of recurrence of physical abuse is extremely remote. Whilst the evidence indicates that the frequency of verbal abuse has decreased significantly since the interim parenting orders were made in March 2006, there exists nevertheless a possibility of recurrence and irrespective of where the children will be spending most of their time.
These findings, which appear in paragraph 77 of the judgment, were not challenged before me.
The Federal Magistrate carefully considered the impact of his findings as to family violence on the presumption of equal shared parental responsibility. Paragraph 119 of the judgment stated:
Whilst the father has engaged in family violence, it is open to the court in my view, to make an order for equal shared parental responsibility and I am satisfied that it is appropriate to do so in this case. In my view, both parents have the capacity and ability to communicate effectively to make decisions relating to the children’s education, their religious and cultural upbringing, their health, their name if it becomes an issue and changes to the children’s living arrangements which may make it significantly more difficult to spend time with a parent and other matters concerning their care, welfare and development of a long term nature.
As well as the findings of physical violence to which I have already referred, this paragraph dealt with the interaction of the parties in the period after the separation. The Federal Magistrate made the following findings:
33. I find on the evidence that in the first few months following separation the father behaved irrationally and with a complete lack of insight as to the effect upon the children when he made insulting statements to the mother in their presence. I find on balance that during this period from separation until February 2006 the mother endeavoured to avoid confrontation in front of the children but, nevertheless, engaged in continued arguments with the father from time to time.
34. I find on the evidence that immediately following separation, both parents entertained the prospects of the relationship continuing and concluded after further arguments that it was impossible. It is inevitable under those circumstances, in my view, that there would be anger, bitterness, recriminations and a great deal of confusion experienced by both parents.
35. I find that this is the most likely explanation for the aberrant behaviour of the father during this period. That is not to excuse at all the responsibility for what occurred during that period when it is clear that he behaved badly toward the mother with a complete disregard on many occasions of the effect upon the children, especially [the child P].
36. Since the interim parenting orders were made in March 2006, it is clear on the evidence that the relationship between the parents has improved very significantly. This had led to very few incidents between the parents in front of the children and I am satisfied on the evidence that there has been an increasing degree of cooperation between them, and which is acknowledged by both the father and the mother.
38. …I was left with the impression from the father’s evidence that he continues to lack understanding as to the necessity for communication without conflict with the mother. Whilst this is significantly less than the period prior to the interim orders being made in March 2006, it nevertheless continues in pockets.
39. …I am left with the distinct impression having had the opportunity to observe the father give evidence in the witness box and listen to his responses, that he does now have a much greater awareness of the importance of successful communication with the mother.
These findings, and the conclusions as to the extent of the family violence in which the father engaged, were well open to the Federal Magistrate. An order for equal shared parental responsibility was, therefore, a proper result. I note again that, at trial, the mother’s legal representative acquiesced to the making of such an order.
The child P’s Wishes
This complaint appeared in Ground 6 of the Notice of Appeal, which stated that “his Honour failed to give sufficient weight to the wishes of [the child P] as to his wish to live with the mother”. In the Summary of Argument counsel for the mother expressed this complaint as follows:
Whether his Honour erred in ignoring [the child P]’s wishes that he wished to spend more time with his father.
As noted already, the reference to “father” should clearly read “mother”. Pursuant to the current legislation, the Federal Magistrate in fact was bound to consider:
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 (section 60CC(3)(a)).
In relation to the child P’s views, the Family Consultant reported:
[The child P] clearly asserted that he didn’t believe that he had sufficient time with his mother and that he preferred to live with his mother and see his dad each weekend. While [the child P] used his own language and told of his wishes in his own way he has chosen an arrangement that is apparently the same as his mother’s preference. It is likely that [the child P] is aware of his mother’s preference for the living arrangements of the children.
The child P was six years old at the time of this assessment.
In cross-examination the Family Consultant said, in response to questions by the Federal Magistrate:
Federal Magistrate: In other words, were you left with the impression that what he was telling you was his own wish?... I do, your Honour.
Uninfluenced by his mother or anybody else?...Well, when dealing with children, your Honour, there would be some influence but I am quite convinced that it was certainly the greater part of his wish, if – that he wanted to spend more time with his mother, this was one of dealing with – with gaining that, and therefore it became his.
During final submissions this exchange occurred between the mother’s legal representative and the Federal Magistrate, in relation to the evidence as to the child P’s views:
Mr Khan: It is my submission that with respect to [the child P], clearly he has expressed a view as to what he sees is appropriate. One would have to concede that his age, he is 6 or 7, but nevertheless this is a context where the child appears to have expressed a quite firm view with regards to …
Federal Magistrate: As to what I would do, Mr Khan, about that evidence, I cannot disregard it, it does not have a lot of weight by itself.
Mr Khan: Yes.
Federal Magistrate: Because of his age. But I certainly can’t disregard it.
Mr Khan: Yes.
The Federal Magistrate’s analysis of the evidence as to the child P’s views appeared in paragraph 80 of the judgment, which stated:
It is clear on the evidence that [the child P] has expressed a wish to live with his mother as opposed to his father and see his father each weekend. I have given that expressed wish some weight, not to such an extent that it is determinative of the outcome. It is likely that he is well aware of his mother’s preference and that he is reflecting that preference, as indeed Mr [T] confirmed. That is not to say that his mother has influenced [the child P]’s wishes and I find on the evidence that she has not done so. I find on the balance of probability that [the child P] is caught in the conflict between his parents and he perceives both of them as responsible for his dilemma. This probably accounts for the wishes he expressed to Mr [T].
It is thus clear that the Federal Magistrate evaluated the child P’s stated views, as he was required to do in the context of the whole of the evidence. The Federal Magistrate carried out his statutory obligation to assess the weight to be given to the child P’s stated views. In my view, this ground of appeal lacks substance.
Practical Difficulties
The submission in relation to this Ground of Appeal in the Summary of Argument of counsel for the mother was simply a statement of fact as to where the parties live and what school the child P attends. There then follows the very general complaint that the Final Orders are “essentially a continuation of the difficult regime, in terms of travel for the children to attend school, made in the Consent Orders made on 23 March 2006.” I am far from persuaded that there is any substance to this ground of appeal.
Conclusion
The written and oral submissions on behalf of the mother otherwise did not address the grounds set out in the Notice of Appeal. It seemed to me to be implicit in the formulation of paragraph 12 of the written Summary of Argument of counsel for the mother that the remaining grounds of appeal were not pressed.
For these reasons, the appeal is dismissed.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate:
Date: 12 February 2009
0
3
1