PENRICE & HORTON - [2014] FamCAFC 72

FAMILY COURT OF AUSTRALIA

PENRICE & HORTON

[2014] FamCAFC 72

FAMILY LAW – APPEAL – whether the Federal Magistrate erred in fact – where the Federal Magistrate did not err in fact.

FAMILY LAW – APPEAL – Leave to reopen for the purpose of making further submissions – where the party is self-represented - where leave to reopen is granted.

FAMILY LAW – COSTS – where the appellant is wholly unsuccessful – where the respondent did not participate – where both parties were self represented – where there is no order for costs.

Family Law Rules 2004 (Cth)
Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Champness & Hanson (2009) FLC 93-407
De Winter and De Winter (1979) FLC 90-605
Edwards v Noble (1971) 125 CLR 296
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Vakauta v Kelly (1989) 167 CLR 568
Whisler & Whisler [2010] FamCAFC 18
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447

APPELLANT:

Mr Penrice

RESPONDENT:

Ms Horton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

1634

2009

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

1 May 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Faulks DCJ, Ainslie-Wallace &
Bennett JJ

HEARING DATES:

15 October 2013

6 March 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2012

LOWER COURT MNC:

[2012] FMCAfam 456

REPRESENTATION

COUNSEL FOR THE APPELLANT:	In person
COUNSEL FOR THE RESPONDENT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Not applicable
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Not applicable

Orders

Grant leave to husband to re-open the Appeal for the purpose of making further submissions.
The Amended Notice of Appeal filed 6 August 2013 be dismissed.
The oral application for leave to adduce further evidence be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Penrice & Horton 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 MELBOURNE

Appeal Number: SOA 47 of 2012
File Number: MLC 1634 of 2009

Mr Penrice

Appellant

And

Ms Horton

Respondent

REASONS FOR JUDGMENT

On 18 May 2012 Federal Magistrate McGuire (as he then was) made final parenting orders in relation to two children then aged 15 years and 12 and a half years. The orders provided that the mother have sole parental responsibility and the children live with her and spend time with the father regularly in block periods to coincide with school holiday or long weekends. The father appeals the orders. The mother opposed the appeal and seeks to maintain the Federal Magistrate’s orders. She made no submissions on the appeal. An Independent Children's Lawyer appeared in the trial. She did not appear on the appeal.

BACKGROUND

We understand the following background to be uncontentious.
The parties married in 1992 and separated in April 2008.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading PENRICE & HORTON

Details

AGLC: PENRICE & HORTON [2014] FamCAFC 72
Case: [2014] FamCAFC 72
Decision Date

CaseChat Overview and Summary

The case of Penrice & Horton involved a dispute between the parties, Mr Penrice and Ms Horton, regarding the care and custody of their children. The matter was heard in the Family Court of Australia, where the primary focus was to determine the children's best interests in light of the contentious relationship between the parents. The legal issues before the court encompassed the parents' respective roles in fostering the children's relationship with each other and the specific conditions under which the children should spend time with their father.

The court addressed several critical legal considerations, including the obligation of the mother to facilitate and encourage the children's relationship with their father, despite the dysfunctional dynamics within the family. His Honour emphasised that the mother's failure to meet this obligation was a significant shortcoming in her role as the primary caregiver. The court also scrutinized the father's shortcomings, particularly his inability to develop a meaningful relationship with the children, despite the court's orders. The judge noted that the father needed to acknowledge his failings, develop insight into his children's personalities and needs, and be more flexible and empathetic. Additionally, the court highlighted the impracticalities of the existing time-with regime, citing the distance between Northern Victoria and Melbourne as a significant barrier to a successful relationship between the father and the children.

Ultimately, the court concluded that the children's best interests were served by them remaining with their mother in Northern Victoria. However, the judge made it clear that this decision did not endorse or condone the mother's actions in obstructing the children's relationship with their father. The court formulated orders to facilitate a relationship between the children and their father, stressing the importance of quality over quantity of time spent together. The judge mandated that the father address his failings and develop a better understanding of his children's needs, while also acknowledging the challenges posed by the existing time-with regime. The orders aimed to create a practical and realistic framework for the children to spend time with their father, considering the unique circumstances of the family.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

His Honour concluded that:119.After much consideration and on balance I am of the view that the children’s best interests are served by them remaining with their mother in [Northern Victoria]. Such a determination should in no way be seen as this Court endorsing or giving sanction to the mother’s behaviour in deliberately thwarting the children’s relationship with their father. Whilst the peculiar and dysfunctional dynamics within this family seem now to be entrenched, the mother’s obligation at law and as primary parent of these children remains firmly, unequivocally, and unambiguously to facilitate and encourage the children’s relationship with their father. It is a positive rather than passive obligation. That obligation remains and indeed may become more onerous as the children become older and capable of independent thought. It is not however for children to be the authors and determiners of their own destinies and particularly so where these children have endured the influences, personality traits, and lengthy litigation of their two parents. The ages of these children and their own personalities may make Ms [Horton’s] job more difficult but it does not alleviate her of this important parental responsibility. … Neither parent escaped significant criticism by his Honour. His Honour was critical of the mother for not facilitating and encouraging the children’s relationship with their father. His Honour stated at [119] “I can put it no higher than simply to emphasise that she has failed as a parent in this regard thus far.” Later in his reasons, his Honour considered how to formulate orders for the children to spend time with the father and said:120.It remains for me to make orders for a regime of time for [the children] with their father in the hope that the few remaining years of their minority will allow for a successful relationship between children and father. I stress, however, and on the evidence before me, it is incumbent on Mr [Penrice] to address his failings. Firstly, he must acknowledge those failings. The experts in this matter have diagnosed and described his personality traits. He should understand that the mere making of a Court order does not create a relationship between a child and a parent. They provide only the framework. He must develop insight and understanding of his children’s own personalities and their needs. He may need to be flexible and less suspicious (although the mother’s behaviour has given him reason for his lack of trust). He needs to empathise with and enjoy his children rather than documenting their every move. 121.There are in my view a number of factors within the current time-with regime that have contributed to its downfall. The distance between [Northern Victoria] and Melbourne and the onerous travel for the children on a fortnightly basis can become prohibitive of successful time for them with their father. I accept that they are reluctant to endure this regular travel and this reluctance is independent of their mother’s influence. Similarly, the limited Monday time with the father in [Northern Victoria] has been unsuccessful. Its detriments far outweigh its benefits. There is little time for the children to settle. Inevitably they have other activities and interests which conflict with their time with Mr [Penrice]. The mother’s attitude impacts on time and hence the opportunity for conflict between father and children is increased.122.The Courts and the experts who assist them have long emphasised that successful relationships are built on quality of time rather than quantity. Whilst it is true that regularity and frequency are important for infants and young children in developing a bond with a parent, the ability to settle into a parent’s home and to balance obligations to a parent with the preferences and plethora of other tempting options for a teenager must be balanced. It is not the role of this Court to make theoretical optimal orders which are set up to fail. This Court does not operate within the world of the “ideal”. Rather, we are often confronted with a multitude of negative circumstances and hindrances to successful relationships which must be balanced and addressed in determining the best, not “ideal”, interests of children within their own particular and peculiar circumstances.