Paggett & Cable - [2015] FamCAFC 186

FAMILY COURT OF AUSTRALIA

PAGGETT & CABLE

[2015] FamCAFC 186

FAMILY LAW – APPEAL – Where the appellant father appealed final parenting orders – Where the final hearing occurred in October 2013 but the evidence was re-opened in February 2015 and final orders made in March 2015 – Where the appellant contended that delay caused the trial judge’s discretion to miscarry – Where delay of itself does not manifest appealable error – Where the trial judge failed to give satisfactory reasons for ordering that the child spend less time with the father than he wanted, the Family Consultant recommended, and the mother proposed – Where the trial judge failed to properly engage with the evidence on that issue – Where the trial judge found the evidence rebutted the presumption of equal shared parental responsibility by reason of the parties’ incessant conflict but still made orders requiring the parties to consult over the child’s schooling – Where the underlying contradiction showed the exercise of discretion miscarried – Where the order made for the child’s time with the father to be supervised for a short period was not reflective of the evidence and the trial judge erred in making that order – Where the trial judge’s failure to make prescriptive and enforceable orders was a material error – Where appealable error established – Appeal allowed – Where there was no practicable option but to remit the proceedings for re-hearing – Where, pending further orders following re-hearing, the appealed orders shall apply – Where both parties were granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth), ss 61B, 61DA, 65DAC,
Federal Proceedings (Costs) Act 1981 (Cth), ss 6, 8, 9

Dundas & Blake (2013) FLC 93-552
Herridge v Handerson (2011) 46 Fam LR 367
McCrossen v McCrossen (2006) FLC 93-283
U v U (2002) 211 CLR 238

APPELLANT:

Mr Paggett

RESPONDENT:

Ms Cable

FILE NUMBER:

CAC

1013

2012

APPEAL NUMBER:

2015

DATE DELIVERED:

25 September 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland & Austin JJ

HEARING DATE:

2 September 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 March 2015

LOWER COURT MNC:

[2015] FamCA 173

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Millar

SOLICITOR FOR THE APPELLANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Mr Harper

SOLICITOR FOR THE RESPONDENT:

Pappas J Attorney

Orders made on 2 September 2015

Leave be granted to the appellant to amend the Notice of Appeal filed
9 April 2015 as follows:
(a) to include the words "and the Court failed to take into account and have regard to the expert evidence of Ms [E]" at the end of Ground 5; and
(b)to delete reference to “Order 7” as an order stated to be appealed in Part D of the Notice of Appeal.

Orders made on 25 September 2015

The appeal is allowed.
The orders made by the Family Court of Australia at Canberra on

17 March 2015 in File No. CAC 1013/2012 are set aside on and as from the date upon which further orders are made by the Court when the matter is re-heard pursuant to Order 4 hereof.
The matter is remitted to the Family Court of Australia for re-hearing by a Judge other than the Deputy Chief Justice.
There be no order as to costs.
The appellant father is granted a costs certificate pursuant to the provisions of

s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.
The respondent mother is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal.
Both the appellant father and respondent mother are granted costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant father and the respondent mother in respect of the costs incurred by them in relation to the re-hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paggett & Cable has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 51 of 2015
File Number: CAC 1013 of 2012

Mr Paggett

Appellant

And

Ms Cable

Respondent

REASONS FOR JUDGMENT

Finn & Strickland JJ

The factual background to and the issues raised on this appeal have been explained in detail in Austin J’s reasons for judgment.
We agree that the appeal must be allowed and the proceedings which gave rise to the appeal must be the subject of a re-hearing. This is essentially because the orders directed to parental responsibility issues appear to be based on an inconsistency of reasoning concerning the parties’ capacity to consult, and also because the orders concerning the time that the child is to spend with the father appear not to have been based on the available evidence.
We also agree that the trial Judge’s orders should remain in place pending the orders which will be made on a re-hearing, and that there should be no order for costs in relation to the appeal but that both parties should be granted costs certificates in respect of the appeal and the re-hearing.

Austin J

Introduction

Some, but not all, of the parenting orders made by the Family Court of Australia on 17 March 2015 in respect of the only child (“the child”) of the appellant father (“the father”) and respondent mother (“the mother”) were the subject of this appeal.
The orders generally made provision for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father. The father did not seek that the child live with him, but was aggrieved by his exclusion from the exercise of parental responsibility for her and the limited amount of time she would spend with him.
The gist of the appeal, which was resisted by the mother, was that the trial judge’s decision miscarried because of delay, misconception of the evidence, the failure to make prescriptive and enforceable orders, and the failure to provide adequate reasons.
For the reasons which follow, the appeal should be allowed. Given the antiquity of the existing evidence and the probable controversy over any fresh evidence that could be adduced, there was no pragmatic option but to remit the proceedings for re-hearing, which both parties eventually conceded.

Background

The subject child was born in 2011 and is now barely four years of age.
The parties’ relationship only lasted six months and it ended in March 2011 during the mother’s pregnancy, six months before the child was born.
The father commenced proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) seeking orders in respect of the child in July 2012.
Thereafter, a series of interim orders were made providing for the child to be introduced to the father and for her to spend some limited supervised time with him. The supervision was initially provided by a professional supervisor, later by the paternal grandmother or paternal aunt, and ultimately by any member of the paternal family.
The trial of the proceedings spanned two days in October 2013, after which judgment was reserved.
In early 2015, the parties inquired of the Court about the pronouncement of orders and the delivery of judgment. In response, the trial judge

re-listed the proceedings in February 2015 and the evidence was re-opened. After the fresh evidence was adduced judgment was again reserved.
On 17 March 2015, the orders were pronounced and reasons for the orders were delivered.
The appeal, which was filed on 9 April 2015, challenged the orders relating to:
(a)The allocation of parental responsibility for the child exclusively to the mother, subject to her consultation with the father about the child’s school enrolment (Orders 1 and 2);
(b)
The manner in which the child would spend time with the father

(Orders 8, 9, 10, 11, 12, and 16); and
(c)The requirement for a member of the paternal family to be present when the child spends time with the father overnight for approximately the next nine months (Order 17).
Although the Notice of Appeal nominated Order 7 (which related to the child’s name) as the subject of specific complaint, at the commencement of the hearing of the appeal the father conceded the reference to Order 7 was an error and leave was therefore granted to amend the Notice of Appeal by deletion of the reference to Order 7.
The appeal was argued by amalgamating some of the grounds, but not in the same permutations in which the grounds are now addressed in these reasons.

Grounds 1 and 2

These grounds of appeal were as follows:
1.The learned Trial Judge erred in that the delay between final hearing on 2 and 3 October 2013 and the making of the Orders and delivery of Reasons for same on 17 March 2015 impaired his capacity to assess the evidence and issues before him and the resulting parenting orders were, as a consequence, inappropriate when assessed against section 60CC of the Family Law Act 1975 (Cth).
2.The learned Trial Judge failed to make material relevant findings of fact, arising out of the evidence and cross-examination at trial by virtue of the time which elapsed between the conclusion of the evidence in the substantive hearing and the delivery of judgment and the conclusions reached by his Honour paid too much regard to the limited updating evidence provided orally at the further hearing on 27 February 2015.
The father’s essential contention was that the delay between the trial in

October 2013 and when the evidence was re-opened in February 2015 was so great that it caused the trial judge’s discretion to miscarry, but as the father properly recognised, delay of itself does not manifest appealable error. Appealable error is either demonstrated or it is not, though in instances of lengthy delay, the trial judge’s reasons will be subjected to even closer than usual scrutiny to determine whether any appealable error is established (see Herridge v Handerson (2011) 46 Fam LR 367 at [17]-[23]; McCrossen v McCrossen (2006) FLC 93-283 at [76]-[84], [89], [94]).
These grounds of appeal contend the delay in this instance caused the miscarriage of discretion in three ways: first, it impaired the trial judge’s capacity to properly assess all of the evidence; second, it caused the trial judge’s failure to make necessary findings of fact; and third, it caused the trial judge to pay too much regard to the fresh evidence adduced in February 2015.
The father’s submissions in support of those ground were, though, subtly different. It was submitted the trial judge:
(a)Overlooked evidence (which amounted to a submission of failure to take account of relevant and material considerations, by reason of which the decision was affected);
(b)Failed to make material findings of fact (which inferentially amounted to a submission of material factual mistake that affected the decision); and

(c)Failed to give adequate reasons.

Dealing with the first of those submissions, the father submitted the trial judge overlooked evidence concerning the issues of the child’s overseas travel, who would care for the child during school holidays, and the credibility of the mother’s expressed anxiety about the amount of time the child would spend with the father. The issue of overseas travel was apparently overlooked, but the other two issues were not.
Both parties proposed orders expressly dealing with prospective overseas travel by the child with the mother, though the evidence on the issue was much more confined. During the trial in October 2013, the mother proposed that she be permitted to take the child on a trip to Fiji during 2014, but when the evidence was re-opened in February 2015, the mother said during cross-examination that the opportunity for the mooted trip to Fiji had passed. Even so, both parties still sought orders regulating any future overseas travel by the child with the mother. The failure by the trial judge to make any orders at all in respect of that issue when both parties sought relatively complementary orders seems plainly to have been an oversight. The oversight served to invest the mother with overall control about future overseas travel because, as a consequence of her sole parental responsibility for the child, provided she adheres to the orders about when the child is obliged to spend time with the father, she is at liberty to procure a passport for the child and travel internationally with her when and where she likes.
The issue about how the child should spend her time with the parties during school holiday periods was not overlooked. The father tendered two different minutes of orders just before and at the trial in October 2013, both of which dealt extensively with the time the child should spend with him, including during school holidays. The minute of order filed by the mother just prior to the commencement of trial did not include any provision for the child to spend time with the father during future school holiday periods, but rather sought suspension of the child’s visits with the father for various periods throughout the year, including one week over Christmas. The orders made by the trial judge deliberately introduced a regime for the child’s visits to the father to incorporate school holiday periods from 2016, in addition to visits on alternate weekends and special occasions like Christmas, the child’s birthdays, and the parties’ birthdays.
The attack by the father upon the mother’s credibility was relatively pointless. The trial judge accepted the mother’s anxiety was subjectively real, but objectively baseless (at [26]). Even the father’s counsel ultimately submitted that the mother “had a vulnerability and a requirement for support” which inferentially affected the child’s ability to cope with incremental alteration of her visits with the father. It was consequently unnecessary for the trial judge to expressly refer to, or make any findings about, the mother’s credibility. Nonetheless, by reference to the mother’s anxiety about future interaction between the child and the father, the trial judge made an order perpetuating the need for the child to be supervised with the father during overnight stays for the following nine months (Order 17). The validity of that order is addressed later in these reasons in respect of different grounds of appeal. For present purposes, the trial judge did not overlook that the genuineness of the mother’s anxiety was the subject of challenge.
Dealing with the second submission of the father, the contention was that the trial judge’s reasons amounted to only “reflective comment” and “contained very little by way of findings of fact”. More particularly, he submitted the trial judge failed to make material findings of fact about the correctness of the single expert’s opinions.
Although the judgment discursively recounted the trial judge’s impressions of the parties and their predicament, his Honour did make findings of fact that influenced the orders made. Insofar as those findings concerned the evidence of the single expert, the trial judge found his assessment of the parties was corroborated by the single expert (at [12]-[14]) and the single expert’s earlier pessimism about the parties’ capacity to co-operate was ameliorated to some extent by reference to more recent evidence (at [15]-[16]). The single expert’s evidence was, therefore, assessed and findings made in relation thereto, so the father’s specific complaint fails. His more generalised complaint about the reflective style of the trial judge’s reasons must also fail, because it was otherwise devoid of particularisation or elaboration.
Dealing with the last submission, the father concentrated upon the conclusion of the trial judge to order that the child spend only one night each fortnight with him during school terms, but one whole week in each school holiday period. It was submitted that no, or at least insufficient, reasons were given for that inconsistent outcome in circumstances where the Family Consultant recommended the child could spend more time with the father and, in reliance upon the Family Consultant’s evidence, even the mother expected the child to spend more time with the father.
The child attains four years of age in September 2015. During the trial, the mother conceded the child could spend two nights each alternate weekend with the father during school terms once she attained four years of age, which the trial judge recognised (at [24]). The trial judge also recognised the mother placed faith in the opinions of the Family Consultant (at [25]). The Family Consultant recommended the child should not spend overnight time with the father until she attained three years of age, but thereafter the amount of time she spends with the father should slowly increase. The father wanted to accelerate the time the child would spend with him but, even though the trial judge preferred the father’s proposal to the mother’s (at [25]), his Honour ultimately ordered that the child spend even less time with him on alternate weekends than the mother proposed. His Honour ordered that the child indefinitely spend only one night each alternate weekend with the father.
The trial judge failed to give a satisfactory explanation for ordering that the child spend less time with the father than he wanted, the Family Consultant recommended, and even the mother proposed. That failure was especially acute, given the express finding that the father’s proposal was preferable to the mother’s. The error had significant ramifications because the orders were liable to dictate the child’s personal interaction with the father for the next 14 years.
The father therefore established appealable error, albeit not in the precise terms asserted in these grounds of appeal.

Grounds 3 and 4

These grounds of appeal addressed the manner in which parental responsibility for the child was allocated and were as follows:
3.The learned Trial Judge made an error of law in making an order for sole parental responsibility in circumstances where the evidence was not sufficient to rebut the presumption in s 61DA(1) of the
Family Law Act 1975 (Cth) that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
4.In making Orders 1 and 2 the learned Trial Judge erred:
a.In requiring the parties to “consult” on matters of parental responsibility in circumstances where no or inadequate reasons were provided as to why the parties’ ability to communicate (or lack thereof) was sufficient to rebut the presumption in
s 61DA(1) of the Family Law Act 1975 (Cth) but was not sufficient to render inappropriate an order requiring the parties to communicate on matters of parental responsibility; and
b.By requiring the parties to communicate but giving the mother sole capacity to make the ultimate decision, such that the Trial Judge negated the intention of Order 2 through the making of Order 1.
The orders provided for the mother to have sole parental responsibility for the child, subject to her consultation with the father about decisions concerning the child’s school enrolment and the limitation of her choice of school by reference to expense. The orders relevantly provided as follows:
(1)That the mother […] will have sole parental responsibility for
[the child].
(2)(a) Notwithstanding the last mentioned order, [the] mother will consult with [the] father about [the child’s] schooling and where she will attend school. Such consultation will occur either by telephone or by e-mail, unless the parties otherwise agree.
(b) Ultimately, if the parties cannot agree the mother will determine where [the child] will attend school but not so as to impose a financial burden upon the father additional to that which would be attributable to her attending a public school.

As the father submitted, the orders were flawed for several reasons. The same reasons informed the contradictory outcomes of, on the one hand, rebuttal of the presumption of equal shared parental responsibility because of an inability to consult, and on the other, the superimposition of the requirement for the parties to consult over the child’s education. The trial judge’s findings which underpinned those contradictory outcomes were themselves incongruent because his Honour accepted the parties’ long-standing inability to communicate effectively, but then seemingly expected from them relatively immediate improvement. Lastly, the terms of Order 2(b) failed to impose a clear and enforceable obligation on either party.
The trial judge made the following findings about the nature of the parties’ difficulties with communication:
16.I do not doubt that there will never be an effective relationship in cooperative parenting between [the] mother and father…
…
27.Although the mother agreed in her recent evidence that she felt she could communicate with the father by e-mail and by telephone it is obvious that communication between the parties has been strained to the point of non-existence. In the brief period of their relationship the parties had no time to develop mutual aspirations, hopes and expectations. Since that time, notwithstanding that neither has re-partnered, there has been no development of mutual goals and objectives. This is illustrated by the fact that the mother has not consulted the father about toilet training, has continued to send food with [the child] to the father’s place because she is concerned that the father will not feed her properly and in the proposed arrangements about [the child’s] schooling.
28.It was gratifying to find that the mother commented that she was happy to talk to the father about [a prospective] school and as each of the parents has reasons for their choices of schooling and given the failure to communicate effectively their views and aspirations in the past, this represents a hopeful sign that [the child] may benefit from appropriate communication between her parents.
29.Notwithstanding this faint glimmering of a dawn of (perhaps) new understanding it would be unrealistic for me to make an order which applied the presumption under the Family Law Act 1975 that there should be equal shared parental responsibility.
30.…It would be desirable that both parents contributed to decisions about [the child’s] long term welfare but it would be unrealistic at this point to dictate that there should be mutual consultation and cooperation in reaching joint decisions about [the child’s] future.
I hope that that situation may pertain in the future but it would depend upon a significant change in the attitudes of the parents, particularly those of the mother.
31.In my opinion, in [the child’s] best interests it is important that [the] parents should not be obliged to participate in a process of cooperative parenting when that seems beyond their capability and may be productive of more antipathy between the parents than benefit to [the child].
…
33.Although in my opinion it would be entirely appropriate in a theoretical sense for [the child’s] parents to cooperate in her parenting I accept at this point that it is not in her best interests because the parents should not be placed in a situation which may increase the potential for them to be in conflict. In my opinion, that is not a desirable situation but is realistic.
34.Notwithstanding that determination, it is imperative that the communication between the parents should be improved and that in particular there should be both notice and to some extent consultation between the parents about major matters affecting [the child’s] life. This includes, but is not limited to, her education, her educational progress, her health and her physical and psychological development. The presumption is rebutted in [the child’s] best interests.
The Act applies a presumption that the parties, as the child’s parents, should be allocated equal shared parental responsibility for the child (s 61DA(1)), but admits of circumstances in which the presumption either does not apply

(s 61DA(2)) or is rebutted (s 61DA(4)).
The trial judge made no findings that would render the presumption inapplicable under s 61DA(2) of the Act, so the decision not to allocate equal shared parental responsibility for the child to the parties could only be due to a finding that such an outcome would not be in the child’s best interests, thereby invoking s 61DA(4) of the Act.
The trial judge found that it would be “unrealistic” to apply the presumption of equal shared parental responsibility (at [29], [30]) and determined, therefore, that the presumption was rebutted (at [34]). Consequently, parental responsibility was allocated solely to the mother, since it was uncontentious the child would live with her.
Explicit and cogent reasons are required to displace the presumption of equal shared parental responsibility (see Dundas & Blake [2013] FamCAFC 133 at [61]). The father contended there were no such explicit and cogent reasons in this case but, in isolation, his Honour’s reasons for rebuttal of the presumption were sufficiently explanatory. It was quite plain the trial judge concluded the parties’ inability to communicate effectively would preclude their consultation in good faith, as the law would require of them if equal shared parental responsibility was ordered (s 65DAC). Ground 3 therefore fails.
The real problem lay not in the decision that the presumption of equal shared parental responsibility was rebutted, or the adequacy of reasons for that decision, but rather in the decision to overlay the allocation of sole parental responsibility with an obligation upon the mother to consult the father over the child’s school enrolment. Despite being persuaded by the evidence that the presumption of equal shared parental responsibility was rebutted, the trial judge then proceeded to make orders that required the parties to do exactly that which his Honour found they could not – consult.
In the face of a finding the parties would never be able to co-operatively parent the child (at [16]), the trial judge made an order which required them to consult over the schools the child should attend, and to factor into their discussions the father’s capacity to pay the school fees and expenses (Order 2), and furthermore, to confer over the child’s diet (Order 5). The reasons given by his Honour fell short of logical reconciliation of that contradiction. The contradiction could not be rationalised, as the mother attempted to, as a “pragmatic compromise”. If, as the trial judge found, the parties were so beset by animosity then his Honour’s expressed hope for improved communication between them in the future was entirely vain, or at least highly improbable.
The trial judge did find the mother was “happy to talk to the father” about the child’s school (at [28]), but in the midst of the other findings about their historical and current antipathy, that was not a firm enough foundation upon which to build Order 2.
In any event, Order 2(b) is unenforceable by reason of imprecision, which conclusion may be tested by posing the following questions: How are the comparable fees and expenses of the mother’s choice of school and an alternate public school to be calculated? Who will perform the calculation? Who selects the alternate public school for comparison? What happens if one party disputes the calculation? Who decides if the extra “financial burden” imposed upon the father is tolerable? None of those questions are capable of satisfactory answer, so if a dispute of that ilk arises between the parties the orders do not solve it.
The unenforceability of Order 2(b) compounded the underlying contradiction between its requirement for the parties’ consultation and the rebuttal of the presumption of equal shared parental responsibility by reason of their incessant conflict. Such errors infected the premise of Orders 1 and 2 and the exercise of discretion to make the orders in those terms miscarried. Ground 4 therefore succeeds.

Grounds 5, 6, 7, 9 and 11

These grounds were directed to the orders which made provision for the manner in which the child would spend time with the father.
The grounds of appeal were as follows:
5.The learned Trial Judge erred in failing to give proper consideration to the making of an order for the child to spend substantial and significant time with the father, particularly having regard to:
a.The father’s application for substantial and significant time; and
b.The existing order dated 4 July 2013 which provided for the child to spend time with her father as follows:
i.In week 1: On Monday for four hours and Thursday for three hours; and
ii.In Week 2: On Sunday for five hours and Thursday for three hours.
6.The learned Trial Judge erred in making parenting orders that were contrary to the best interests of the child in that they were contrary to His Honour’s findings in relation to the relevant factors in section 60CC of the Family Law Act 1975 (Cth).
7.The learned Trial Judge failed to give any or adequate reasons in support of Orders 8, 9 and 10 of the Orders.
9.The learned Trial Judge failed to give any or adequate reasons in support of the requirement in Order 17 that the child’s time with the Father should be supervised until 2016.
11.The learned Trial Judge erred in taking in account “…the anxiety and concerns of the mother” where the Trial Judge was not convinced that they were “necessarily based upon reality because they [were] part of her reality” [emphasis in original] at paragraph [26] and later at paragraphs [32]; [37] and [61] of his Honour’s reasons in circumstances where there was no expert evidence that the mother’s parenting would be so compromised that she would be unable to effectively parent the child as a result of those anxieties and concerns. The case did not fall within the principle elucidated in cases such as Russell & Close (unreported, Family Court of Australia Full Court, 25 June 1993) and A & A (1998) FLC 92-800).
The father sought and, with the mother’s consent, was granted leave at the appeal to amend Ground 5 to include a contention that the trial judge also failed to “take into account and have regard to” the expert evidence of the Family Consultant.
The gravamen of the father’s submissions was that the orders made by the trial judge did not satisfactorily correlate with the evidence, which contention was correct. Some of the trial judge’s findings were inconsistent and such inconsistency vitiated the orders.
As has already been explained in respect of Grounds 1 and 2, the trial judge failed to explain why orders were made providing for the child to spend less time with the father than was proposed by even the mother. The orders were incongruent with not only the evidence given by the mother, but also the more generous recommendations of the Family Consultant and the more expansive proposal of the father. The orders did not properly engage with the evidence on the issue.
The father additionally asserted the trial judge failed to properly evaluate his proposal, but that was not as evident as the failure to engage with the evidence. The father’s proposal provided for the gradual escalation of the child’s visits with him over a forward period of about four years. It was perhaps regrettable the trial judge did not recite or at least summarise the parties’ respective proposals, but the failure to do so did not necessarily manifest his Honour’s ignorance of them, as the father contended. The trial judge was alive to the father’s desire to immediately introduce overnight visits, to which his Honour was more sympathetic than he was to the mother’s desire to delay overnight visits until after the child attained four years of age (at [24]-[25]). The trial judge therefore made orders for the child to have only two introductory daytime visits with the father (Order 8), before overnight visits on alternate weekends began (Orders 9 and 10). The trial judge also made orders for the child to spend time with the father for one week in each school holiday period and on other special occasions (Order 11), in circumstances where the father proposed such additional time but the mother did not. However, the trial judge’s reasons for making orders in those terms were relatively scant in the face of the detailed regime proposed by the father.
The trial judge ordered that, for the remaining nine months of 2015, the child must be supervised by a member of the paternal family when spending overnight time with the father each alternate weekend (Order 17). That order was made despite his Honour finding that such a restriction, as was imposed by an earlier interim order to that general effect, was no longer necessary (at [25]). No aspect of the evidence suggested the child was in need of protection from any sort of harm while in the father’s care. The finite restriction was imposed simply as a salve for the mother (at [26], [37]), who initially proposed that the child be indefinitely supervised whenever she spent any time with the father, but ended the case by admitting she had “come to trust that [the child] will be safe in the care of [the father]” and proposing “unsupervised time” between them. The order made by the trial judge was not, therefore, reflective of any concern for the safety of the child ultimately held by the mother.
For those reasons, the trial judge erred in making at least Orders 8, 9, 10, and 17 in the terms his Honour did. The error manifest in Order 16 is separately addressed under Ground 8.

Ground 8

This ground of appeal was as follows:
8.The learned Trial Judge erred in making Order 16 in that the judicial decision making responsibility was transferred to the parties. In the alternative, Order 16 is unenforceable.
Order 16 provided as follows:
(16)After 2016, if the parties wish to do so, [the child] may spend one half of the longer school holidays with her father. This is dependent upon her father being able to have leave to be with [the child] during this period.
The order purports to restrain the parties from making any changes to the child’s care arrangements until “after 2016”, but permits the parties to thereafter agree upon the child spending more time with the father in holiday periods, but only if the father is able to “have leave to be with [the child] during this period”.
Insofar as the order purports to restrain the parties from privately reaching alternate agreement before the end of 2016, it is ineffective. The parties could agree upon alternate arrangements whenever they like, regardless of the orders imposed by the Court.
The invitation for the parties to reach their own agreement after 2016 sits awkwardly with the order which allocated parental responsibility for the child solely to the mother. Provided she complies with the particular orders that prescriptively dictate when and how the child spends time with the father, she is under no legal obligation to reach any agreement with the father about any expansion of that regime. Her parental responsibility for the child exclusively invests her with “all the duties, powers, responsibilities and authority” granted to her by law in relation to the child (s 61B). That authority would certainly encompass decisions about what extra time the child might spend with the father. An invitation for her to reach some other agreement with the father in the future does no more than invite her to unilaterally exercise the parental responsibility granted to her, which she may do as responsibly or as capriciously as she likes.
The grammatical construction of Order 16 is inherently problematic because it is aspirational rather than prescriptive and enforceable. As a consequence, if the parties’ clashing attitudes about the amount of time the child should spend with the father remain unchanged, the order will potentially serve to inflame rather than quell controversy between them. The father would have an expectation of the child spending increasing amounts of time with him which the mother could individually frustrate. She wanted the child to spend much less time with the father than he desired, so the imposition of an order that did not resolve the dispute and only expressed the expectation or hope for future consensus between the parties in respect of an issue about which they have argued for some years neither helps them or, more importantly, the child.
Relevantly, the dispute between the parties was the rate at which the time the child would spend with the father should accelerate. Shortly before trial, the mother proposed that the child should visit the father on four occasions each fortnight, each visit being of several hours duration, and that the expansion of that regime would depend upon the fulfilment of various conditions, though by the time of final submissions in October 2013 she was prepared to countenance expansion of the child’s visits with the father to alternate weekends comprising two overnight stays until the child attained five years of age some three years hence. The father proposed that the child visit him each weekend and on two other occasions of several hours duration each week, with the regime to graduate to an “equal time” residential arrangement by early 2018.
Given the child would attain five years of age in September 2016 and probably therefore commence school in early 2017, the issue about the amount of time the child would spend with the father during school holidays was therefore alive and the trial judge realised it. His Honour said:
48.In other words, I would hope that the parties will consider a more flexible attitude to the time that [the child] spends with her father as time goes by and an element of trust is established between them.
…
62.The parties have not come to grips with the concept of what might happen during school holidays later on. I have prompted their discussions about this matter to some extent with the Orders I have made. I recognise that these Orders are made in the circumstances where the parties have not had a proper opportunity to consider them.
63.Their introduction is of course postponed and may be regarded by the parties as appropriate when the orders begin to take effect. If there is a difference about the implementation of those orders or indeed if the parties wish to expand them to provide at an earlier point that [the child] should spend half of each school holidays with her father then obviously the parties may reach such an agreement without the benefit of further orders of this Court. If they are unable to agree, I accept that it must be inevitable that they will come back to Court to dispute the matter at some point.
In circumstances where the litigation had been on foot for nearly three years and the trial was conducted over three days spanning a period of some

16 months, it was unsatisfactory to expect the parties to engage in further litigation to secure a result it was within the power of the trial judge to give.
There was no impediment to a final decision being made by the trial judge about the time the child would spend with the father during holidays into the future, since another order directed itself to that very issue. Order 11 provided for the child to spend one week in each school holiday period with the father, commencing in 2016. Order 16, in the terms it was made, only envisaged the possible expansion of that regime from 2017 onwards.
The trial judge erred in failing to make prescriptive and enforceable orders, explained by satisfactory reasons, which determined that issue on the basis of the evidence adduced and the submissions made to that point in time.

Ground 10

This ground of appeal was as follows:
10.The learned Trial Judge erred in failing to provide procedural fairness to the parties prior to making parenting orders that were different to the proposals of either of the parties.
Neither this ground of appeal nor the submissions made in support of it identified the orders to which this complaint was directed. Such a generalised complaint cannot be sustained without some form of particularisation.
The trial judge did acknowledge (at [56]) that the orders which made specific provision for the time the child would respectively spend with the parties on special occasions such as Christmas were made in circumstances where the parties’ proposals were different, that little or no evidence was addressed to that discrete issue, and few if any submissions were made about it. But the trial judge’s acknowledgment that orders were made in those circumstances should not be interpreted as an admission of error in so doing because neither party was thereby deprived of procedural fairness. The parties knew the ambit of their dispute, including the differences between their proposed orders, before they embarked upon the trial. They voluntarily chose to not address that aspect of their dispute, or at best only give it perfunctory attention.
Paradoxically, this ground of appeal is misconceived for the same reasons that Ground 8 was sustained. The Court was obliged to quell the parties’ dispute on the material it was given. At trial, the parties made the proposals, adduced the evidence, and made the submissions upon which they desired their dispute to be determined. Once the parties were unable to reach a compromise and their dispute was litigated, the best interests of the child were the paramount consideration, irrespective of the parties’ competing proposals for her. The trial judge was not bound to selection between the options submitted by the parties. The fact the trial judge did not make orders that reflected the orders devised by either party does not vitiate the judgment or the orders (see U v U (2002) 211 CLR 238 at 284-285, 263).
Somewhat differently, the trial judge did additionally acknowledge (at [62]) that the parties had not had “a proper opportunity to consider” the order made relating to the time the child would spend with the father in future school holiday periods, but that was a relatively clear reference to Order 16, the successful challenge to which has already been explained under Ground 8. That order was erroneous for reasons other than deprivation of procedural fairness.

Conclusion and costs

The submissions made by the father in support of all grounds of appeal other than Grounds 3 and 10 established error on the part of the trial judge. The errors were not capable of rectification by the re-exercise of discretion by this Court, as both parties eventually recognised, in which case there was no practicable option but to remit the matter for re-trial.
The parties also agreed that, in the event the appeal was successful, the orders made by the trial judge should remain in place until fresh orders were made following the re-hearing, for otherwise there would be a vacuum of orders. The orders now made are designed to achieve that outcome.
The appeal succeeded on various questions of law. The mother was the recipient of a grant of legal aid and so no occasion arises to order her payment of the father’s costs, as he acknowledged. On his application, he is therefore granted certificates under ss 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth). Nor was there any reason for the father to pay the mother’s costs and so, on her application, she is granted certificates under ss 6 and 8 of the same Act.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Austin JJ) delivered on 25 September 2015.

Associate:

Date: 21 September 2015