Parry and Deakin
[2008] FamCAFC 114
•31 July 2008
FAMILY COURT OF AUSTRALIA
| PARRY & DEAKIN | [2008] FamCAFC 114 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – With whom a child spends time – In 2006 parenting orders made by consent that the parents have equal shared parental responsibility for the major long term issues, that the child live with the mother and that the father spend time with the child – In 2008 the trial of issues about property settlement between the mother and father came on for hearing in the Federal Magistrates Court – Mother sought that the hearing be adjourned – Other applications were listed before Federal Magistrate that day which were relevant to the mother’s request for an adjournment including an amended response by the father – The father had brought witnesses to court in respect of parenting issues – Also pending were the father’s proceedings in respect of allegations of contravention and contempt of the parenting orders by the mother – The Federal Magistrate concluded that it was appropriate that there be a review of parenting orders – Made orders for interim parenting arrangements – Federal Magistrate ordered that all parenting orders be suspended and that the father spend supervised time with the child for periods of not less than two hours duration each alternate weekend – Father appealed – Father argued predominantly that the exercise of discretion was unreasonable and unjust – Whether a miscarriage of discretion – No merits in arguments on appeal – Appeal dismissed |
| Family Law Act 1975 (Cth), s 60B, s 60CC |
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 Norbis v Norbis (1986) FLC 91‑712 Rice & Asplund (1979) FLC 90-725 |
| APPELLANT: | MR PARRY |
| RESPONDENT: | MS DEAKIN |
| APPEAL NUMBER: | NA | 53 | of | 2008 |
| FILE NUMBER: | BRC | 7391 | of | 2007 |
| DATE DELIVERED: | 31 July 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | WARNICK J |
| HEARING DATE: | 28 July 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 May 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 590 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Bell Dixon Butler |
Orders
That the appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Parry & Deakin is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 53 of 2008
File Number: BRC 7391 of 2007
| MR PARRY |
Appellant
And
| MS DEAKIN |
Respondent
REASONS FOR JUDGMENT
Ms Deakin and Mr Parry have one child, A, born in 2001. On 8 August 2006 the mother, father and Independent Children’s Lawyer, by consent, obtained parenting orders relating to A in the Federal Magistrates Court. The orders provided that the parents have equal shared parental responsibility for the major long term issues, that the child live with the mother and that the father spend time with the child each alternate weekend, Friday afternoon until Sunday afternoon, for half of school holidays, on special occasions and regularly by telephone. Many other orders related to specific aspects of the child’s care, to communication between the parents and to restrictions on actions by each parent.
On 15 May 2008, the trial of issues about property settlement between the mother and father came on before Federal Magistrate Burnett for hearing. The mother sought that the hearing be adjourned. It appears also that various other applications were either listed before the Federal Magistrate that day, or were at least relevant to the decision about the mother’s request for an adjournment. One such application was an amended response filed by the father in April 2008. Among final orders that he there sought was that during 2008 the child live with him and spend time with the mother. As an interim order, he sought:
1.That both parents obey the current court orders which were agreed before Mr Slack in August 2006.
On the day in question before Burnett FM, the father had brought witnesses to court, in respect of parenting issues.
Also pending were the father’s proceedings in respect of 37 allegations of contravention and seven of contempt of the parenting orders.
In respect of the adjournment application, Burnett FM said:
2.…that there are serious issues in relation to the way in which the original parenting orders have progressed.
3.It is premised upon that difficulty and the difficulty with parenting orders that Mr Page contends, first, that by reason of the matters of credit which will have to be resolved in respect of the contravention applications, it would be inappropriate for me as the judicial officer assigned to hear that case to hear the property case if it were to be adjourned or, in any event, that by reason of the contribution issues that will arise out of a necessary review which is contended for in respect of parenting orders that, in any event, the property matter should not proceed today.
4.… I think there is something in the submission made that in respect of the resolution of parenting orders such should occur before property orders are resolved …
In further considering the application for the adjournment, the learned Magistrate posed for himself the question of whether there was a real basis for there to be a review of the parenting orders made on 8 August 2006. He said:
5.… That requires, really, at the outset, for me to have regard to the principles in Rice v Asplund in respect of the review of parenting orders. A significant change of circumstances has to be identified. In this case, it seems to me, having regard to the history of this case premised upon the contraventions alleged, premised upon the fact that the parties have not been able to agree in relation to simple matters such as overseas travel and premised upon the matters which are contended for by the father in his submissions today, it is more than apparent to me that the regime which is presently in place is entirely unworkable for reasons that I am not going to investigate today.
Federal Magistrate Burnett concluded that the mother had “…successfully hurdled the Rice & Asplund barrier and accordingly it is appropriate that there be a review of parenting orders.” He concluded that this review should be determined either contemporaneously with the question of property settlement or before it. The learned Magistrate then turned to the question of interim parenting arrangements. He ordered that all parenting orders be suspended and that the father spend time with the child:
for periods of not less than two hours duration each alternate weekend which shall be spent at and supervised by the [X] Contact Centre.
The orders also provided that the father be at liberty to telephone the child on Wednesday and Saturday. The proceedings for property settlement were adjourned to a date to be fixed.
The proceedings before me, to which these reasons relate, are the father’s appeal against three of the orders relating to the child to which I have referred above, namely that previous orders be suspended, that the child live with the mother, and that providing for the supervised time the child spend with the father on alternate weekends.
The grounds of appeal relied upon are as follows:
1.There was no good reason given to the court as to why the father should be restricted in his contacts with the child. The child/father relationship is as perfect as is possible to be.
2.Magistrate Burnett has shown obvious bias in his attitude to the participants in this case on this date and previously. [ABANDONED]
3.The magistrate refused to hear five witnesses who were waiting and who could have given useful information to support the father.
4.The magistrate failed to take into account the fact that the mother is a very serious previous offender with numerous offences and proven lies while the father has no contraventions previous or pending.
Notwithstanding these grounds, the father, who was not legally represented before Burnett FM or before me, in his written submissions and even more so orally, argued predominantly that the exercise of discretion was unreasonable and unjust. The grounds of appeal, especially 1 and 4, really just identified factors that the learned Magistrate ought have taken into account.
Mr Page SC, who appeared for the mother, did not argue that the father should not have all of his contentions addressed.
Ground 1. There was no good reason given to the court as to why the father should be restricted in his contacts with the child. The child/father relationship is as perfect as is possible to be.
The father deposed that in March 2007 the mother was found to have contravened the parenting orders on 13 occasions. The father further said that since that time he had only spent time with the child on a few occasions, the last of which was in the school holidays in June 2007.
This ground relates to the father’s claim that the only reason given to Burnett FM for the mother’s denials to the father of time with the child was a fear that the father would flee with the child. While that contention seems accurate, the mother’s fear must be seen in the context of her deposition about the father’s behaviour, including her claims about his denigration of her, about his expression of hatred towards her, claims by the father that her partner at the time had sexually abused the chid and that the mother had defrauded Legal Aid.
The mother also deposed:
23.[A] has expressed to me on numerous occasions, especially since after she witnessed her Father being arrested and handcuffed by the Police in [M] Park near [B] in January of 2007, after they were called as he was attempting to snatch [A] at that time, her fear of her Father not returning her to my care.
An added complication, in respect to the failure of the provisions for time spent between father and child in the orders of August 2006, was that at the time they were made, both parents lived in B. However, the father moved to Brisbane in about September 2007. While he said to me that thereafter he could spend time with the child in B he did not suggest that he had made that clear to the mother or to the Federal Magistrate.
I do not think it appropriate at this point to conclude whether the “reason” for restriction of contact was “good” or not, as that is not necessarily a question which must be answered in isolation. The essential question is whether, considering that reason and all other relevant factors, the Federal Magistrate’s exercise of discretion was open to him.
Ground 3. The magistrate refused to hear five witnesses who were waiting and who could have given useful information to support the father.
In his written summary, the father said:
19.I had five witnesses who were at court ready to give evidence supporting my parenting skills but the magistrate refused to hear them. My other daughter was present and would have given evidence that I am an excellent father to my daughters. The mother had some witnesses who did not have any evidence of abuse of the child.
The transcript discloses that at the outset of the hearing the father told the Federal Magistrate the identity of the five witnesses and the father relied upon affidavits by them. As the father’s submission itself indicates, the material was in the way of “references” as to his parenting skills. Other features, later discussed, likely reduced the comparative weight of this material to minimal.
Ground 4. The magistrate failed to take into account the fact that the mother is a very serious previous offender with numerous offences and proven lies while the father has no contraventions previous or pending.
This ground refers to the findings, earlier referred to, in March 2007 of contravention by the mother (which were acknowledged by the mother before Burnett FM). However, no reasons for judgment in respect of any such conclusions were before Burnett FM. While in the father’s material he contended that, in the contravention proceedings, as in the proceedings culminating in the orders of August 2006, allegations by the mother that the father had sexually abused the child and been violent had been proved false, this was not established before Burnett FM. In any event, whatever those contentions were, and however they had been dealt with, the position between the parties had moved on and other factors had become the substantial considerations.
Did the learned Magistrate’s discretion miscarry?
Turning to the “Parenting Issues”, Burnett FM noted that the mother requested that the orders be suspended until further hearing. The father contended at least for the continuation of the August 2006 orders.
The learned Magistrate then acknowledged the starting point of the enquiry as the objects set out in s 60B of the Family Law Act 1975 (Cth) (“the Act”) and the presumption of equal shared parental responsibility. In this regard he addressed a concern of psychological abuse of the child by reason of the conduct of the parties and he referred to matters set out in the father’s contravention applications. Burnett FM said:
19.… One only has to look at the allegations in the contravention application made by the father to develop an appreciation of that matter. For instance, it is alleged that in May and June, on numerous occasions, the respondent has terrorised the child by her conduct. Likewise, the mother has taught the child to lie to the father.
20.The events that have been related by the father in the course of his submissions to me lend support to all of that by the manner in which he says that the parties have been tearing at the child in a manner which seems similar to that of two children tearing at a rag doll. It is quite clear that in those circumstances, where the parties cannot agree upon even the simplest of matters, that it would be quite inappropriate for there to be, at least on an interim basis, an arrangement which involves equal shared parental responsibility, and that is without regard to questions of whether there be equal time or significant and substantial time as one would ordinarily be time to address if the presumption was to apply.
Shortly after, he continued:
22.On that basis, then, it leaves me to resolve these interim arrangements on the basis of what are simply the best interests considerations, bearing in mind that the Court must have regard to the best interests of the child as a paramount consideration.
He then said:
23.Bearing in mind that there will be a trial later this year in relation to parenting orders, I am giving that matter consideration against that background. I am not assisted, unfortunately, with any contemporary family reporting, or any family report to assist me in this regard, but irrespective, it strikes me that having regard to the toxic relationship that exists between both the husband and the wife in this instance it seems to me that the only reasonable arrangement that can be put in place is one that involves the intervention of third parties to ensure that the child is able to make seamless transition from one parent to the other on occasions where there is to be time spent. To that end I think that the intervention of a contact centre is appropriate and is clearly in the child's best interests, at least until this matter can be further investigated and, on that basis, the wife's application appears to present the best interests arrangement.
The learned Magistrate then turned to the “Additional considerations” in s 60CC of the Act, making comment about most, but few findings, understandably given the nature of the hearing and the contentious material, but his observations of significance include:
28.In this instance the arrangement which is proposed on the part of the wife will largely see what could be regarded as the present situation prevailing, although one would hope that in the context of there being an appropriate supervised transition there will be now more contact between the child and her father than there has been to date, and to that end, again, when one has regard to the fact that the present arrangement which is contended for by the father has utterly failed, it can only be said that the proposal advanced by the mother is clearly the better of the two proposals. (emphasis added)
29.Since the time of the original orders it seems the father has relocated to Brisbane and resides on his boat in Brisbane. The mother continues to reside at [B]. It seems the [X] Contact Centre is about halfway – perhaps a little closer to [B] than to Brisbane, but if so, only by a margin – and it seems that as a halfway point it represents, again, an equal difficulty to both parties but certainly one that is not impractical and not unreasonably expensive from the perspective of both parties and accordingly, when contrasted to an unworkable arrangement which otherwise existed, represents to my mind, having regard to the practical issues involved, the best proposal. (emphasis added)
…
34.The ongoing contravention applications speak for themselves. The earlier orders are clearly far too complicated for these parties by reason of their own toxic relationship. It is inevitable that if I simply leave the earlier regime in place it is more likely than not that there will be further contravention applications brought and accordingly it seems to me that having regard to that consideration the best proposal is that which is afforded by the wife.
The learned Magistrate’s decision was a discretionary one. Of the approach of an appellate court in respect of challenges to such decisions, Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345, stated the rationale as follows:
… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
Similarly, Brennan J, in Norbis v Norbis (1986) FLC 91‑712 at 75,178 said:
The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
The learned Magistrate was confronted with the stark proposition that, notwithstanding that the consent orders had been in place for nearly two years, very little time had been spent by the child with the father. In these circumstances he opted, without judging the case of either party as to why this was so, to limit the prospect of conflict for the child and, as he reasoned, by making a very limited order, maximising the chances of the child spending at least some time with the father. In my view, this exercise of discretion was open to him.
The father raised as an aspect of error in the discretionary exercise that the supervised visits were a drastic measure and no expedition of the final hearing was granted. The interim order does put the child and the father in a position which, in my opinion, ought be reviewed in a final hearing at the earliest opportunity. No order has been made for expedition. However, since matters of case management are peculiarly for the court in which the proceedings lie, I do not conclude that the absence of an order for prompt hearing renders the decision wrong.
Conclusion
In my view, none of the three grounds of appeal or the contention that the Federal Magistrate’s decision was outside a reasonable exercise of discretion ultimately has merit and the appeal should be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.
Associate:
Date: 31 July 2008
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