PH & SG

[2006] FamCA 574

[2006] FamCA 574

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No. SA22 of 2006

File No MLM8293 of 2005

BETWEEN:

PH

(Appellant Father)

and

SG

(Respondent Wife)

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:          20 June 2006

DATE OF JUDGMENT:      20 June 2006

REASONS FOR JUDGMENT

APPEARANCES:

Ms Ben-Simon of Counsel, instructed by Clarke & Barwood, Lawyers, DX 250002, Colac, appeared on behalf of the appellant father.

Mr Wood of Counsel, instructed by Fogarty Lawyers, 198 Timor Street, Warrnambool, Vic 3280, appeared on behalf of the respondent mother.

PH & SG
SA22 of 2006
CORAM:  Kay J
DATE OF HEARING:           20 June 2006
DATE OF JUDGMENT:       20 June 2006

Catchwords:            EVIDENCE – Application to adduce further evidence – Non-compliance by party with filing dates – No material filed in support – Evidence likely to be contentious – Application refused.

REASONS – Inadequate reasons alleged – Where failure of recording equipment – Where document entitled ‘Reasons for judgment’ subsequently produced by Federal Magistrate from notes of proceedings – Found reasons as outlined in that document sufficient to discern basis upon which appeal was decided.

CHILDREN – Parenting – Appeal against orders of Federal Magistrate providing that children be in care of father for 10 nights out of 28 as opposed to an equal shared care arrangement as had been in place – Where shared care arrangement had been ‘imposed’ by the father on the mother – Where mother available to care for children on full time basis, preferable that they should be in her care rather than that of the paternal grandmother – Appeal dismissed.

1. This is an appeal from orders made by Connolly FM on 7 February 2006 whereby he ordered there be a shared arrangement relating to the care of the children but not on the terms that were being sought by the appellant father.  The father has filed a Notice of Appeal. 

1. On 17 May I directed that the matter be fixed for hearing today and further directed that, amongst other things, the appellant file and serve any application to lead further evidence and any material in support thereof on or before 31 May 2006 and granted the respondent the right to serve an application to lead further evidence and file material in support on or before 13 June.

1. The father has filed an application on 1 June 2006 seeking leave to give further evidence but has filed no material in support of the application.  The evidence that he outlines in his application for leave to provide is,

·    evidence as to changes in the incidence, nature and conduct of contact with the children - I have no idea what that refers to – and

·    changes in his working hours;

1. He wishes to subpoena the maternal grandmother to give evidence relating to "the incidence of her care of the children and to the respondent mother's working hours this year".

1. He seeks to subpoena the respondent mother's employers to give evidence as to her employment both this year and last year.

1. Finally, he seeks to be permitted to subpoena the children's school to give evidence relating to the children's attendance both this year and last.

1. There is no material, as I have indicated, filed in support of that application that gives me any indication of what that further evidence is likely to disclose other than it has been stated from the bar table that the mother has now moved to reside  some 65 kilometres from where she previously lived.  That appears to be a non-contentious statement of fact.  Any other matters that are sought to be determined and referred to are contentious matters about which I have not been given any detail.

1. As I have indicated, I made directions for the provision of material including material in support.  Those directions appear to have been ignored.  It seems to me that it would be inappropriate in the circumstances for me to grant leave to produce material, the nature of which I have no idea about and which is likely to be contentious. 

1. The matters that relate to post-order matters - that is, post the judgment - can be dealt with by a fresh application for a change in the orders if they are of sufficient moment to make the orders no longer appropriate as being in the best interests of the children.  The matters relating to pre‑order matters would normally be unlikely to be admitted into further evidence unless it could be explained as to why those matters were not given attention to before the Federal Magistrate, and even then it would be necessary to show that had the Federal Magistrate been aware of them, a different result would have been obtained.

1. As Ellis J explained in Briar v Vesperman [2002] FCA 141:

“6.The principles which govern an application to adduce further evidence upon questions of fact on the hearing of appeal were considered by the High Court in CDJ v VAJ (1998) FLC 92-828. In their joint judgments, McHugh, Gummow and Callinan JJ. pointed out that in determining whether or not to admit the further evidence, the effect that that evidence may have in determining what are in the best interests of the child is a factor of great weight and will be one of the most important discretionary considerations to which a Full Court of the Family Court must have regard. Their Honours subsequently observed at 85,447:

‘108.When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion.  The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation.  That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered, a point recognised by the Full Court in In the Marriage of Abdo [Abdo and Abdo (1989) FLC 92-013; (1989) 12 Fam LR 861]. Although the discretion to admit further evidence is not attended by any express words of limitation, the subject-matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.

109.One consideration in construing s 93A(2) is its remedial nature.  Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where 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.  A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made’.”

1. Their Honours went on to say at 85,448:-

“111.… The power to admit the 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 interests 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.”

1. Their Honours thereafter went on to differentiate between evidence which was disputed and evidence which was not disputed and stressed that the discretion to admit further evidence needs to be exercised with much care in parenting cases.  Thereafter, their Honours said at 85,449:

“118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations.  So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind.  The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.

119.Furthermore, the operation of s 65D, which contemplates subsequent applications, has to be taken into account:”

1. Their Honours then set out the provisions of ss.(1) and (2) of s 65D and continued:

“Applications for a variation of an order, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal.”

1. In the circumstances, in the absence of any material relating to what it is that the further evidence is likely to demonstrate, I have indicated that I will not grant the application.  I propose to dismiss it.

DISCUSSION

1. This is an appeal against orders made by Connolly FM on 7 February 2006 in parenting proceedings between the parties.  Those proceedings included initially as a party to the proceedings the paternal grandmother who had been named as a respondent in the initial proceedings which had commenced, it would appear, in the local Magistrates Court and then found their way to the Federal Magistrates Court sitting in circuit.  Somewhere along the way the maternal grandmother was lost as a party to the proceedings, and indeed in the Notice of Appeal before me she is not named as an appellant. 

1. The proceedings that before me are proceedings between the father as appellant and the mother as respondent.  They concern two children, A, born December 1996 and B, born January 2001. 

1. The appeal is against orders that were made by the Federal Magistrate on 7 February 2006 that provide that the parents are to retain the joint responsibility for the long-term care, welfare and development of the children.  The children are to live with their father

(a)      from 5 pm Saturday until 9 am Tuesday for three consecutive weeks in each four-week period during school terms,

(b)      from the conclusion of school on Monday in each fourth week until 9 am Tuesday during school terms and

(c)       they go on to provide for one half of all school holidays and for special occasions and telephone contact and the like.  They also contain a number of consent orders made relating to the logistics of contact.

1. By the appeal the father seeks to have reinstated an arrangement that had been reached where the children had spent weekabout with each parent rather than the orders that were imposed by the Federal Magistrate. 

1. The parties had separated in late 2004 and by February 2005 the father had imposed upon the mother, as Connolly FM found, a regime of weekabout residence where the children would live with him and his mother for one week and then would stay with their mother for the other week. 

1. The issue that presented itself to the Federal Magistrate was competing claims relating to the manner in which the future of the children and the time with each parent should be divided, their father urging upon the Federal Magistrate a continuation of the existing arrangement and the mother urging upon the Federal Magistrate - formally at least, in the orders that she sought, an alternate weekend arrangement plus half the school holidays and special days.

1. Ultimately, neither party received from the Federal Magistrate that which they urged upon him.  His Honour chose the second of two options that the welfare reporter had proposed, that being an arrangement that saw the children with their father for 10 nights out of each 28 rather than the 14 nights out of 28 that the father was urging and rather than the four nights out of 28 that the mother was urging.

1. The Federal Magistrate had before him evidence from each of the parties plus the paternal grandparents.  He had a welfare report prepared by a psychologist and counsellor.  The record of what occurred before the Magistrate has been lost in the sense that the recording equipment has failed.  There is no available transcript of the hearing, nor is there a transcript of the reasons that were delivered, although a new document has been created called "Reasons for Judgment" that is a reconstruction of what the Federal Magistrate either said or ought to have said.  I am not quite sure what interpretation I am asked to put on it, but the document now headed "Reasons for Judgment" stand as the reasons upon which this appeal either succeeds or fails.

1. I should say at the beginning that one of the issues that was raised by the mother in the proceedings before the Federal Magistrate was a possibility that she would be moving house to relocate from where the parties were living some 65 kilometres out of a town in rural Victoria, to go and live in in the town.  She sought an order that would enable her to give effect to that in the proceedings but it appears from the common ground of the parties that that issue was not followed up at the actual hearing before the Federal Magistrate, although the mother was leaving the possibility of a move to the town open in the future, and indeed the Federal Magistrate made reference to it in his reasons for judgment where he indicates that whilst the mother had no immediate plan, ultimately when she would have to leave the former matrimonial home which was on the market for sale.  His Honour said:

“It is not hard to understand that it may be to her benefit and that of the children to live in the larger [town] which has many more facilities and opportunities.”

1. It is now common ground before me as a result of admissions made, that in May of this year the mother and children have moved to the town.  That makes their continued education at the rural school problematic, it being a journey of 65 kilometres one way from where the children live to have to go to school each morning and be picked up in the afternoon.  That really cannot be expected to continue on any long-term basis, and indeed the mother's counsel now indicates that at the end this year she would like to change the school of the children.

1. It is conceded that as a result of the change in the physical residence arrangements new factors have arisen which would make it appropriate that the decision of the Federal Magistrate be revisited and that it would be not open to the mother to urge that the issue had been so finally closed that the revisiting of the issue now would be precluded as a matter of law.

1. In a sense this appeal is moot in that, the concession having been made, the future arrangements for the children will have to be looked at again at first instance to determine whether or not either a change in residence to live full-time with one parent or more substantial time with one parent than the other is now appropriate.  That would include an investigation of the various educational opportunities that each side would be proposing and, given the change in geography, whether a continuation of the shared-care arrangement in its present form is viable or whether some other arrangement would now become appropriate. 

1. These are matters that would have to be re‑examined.  It will be re‑examined shortly as a result in the change in circumstance brought about by the mother's move.  So in a sense this appeal becomes moot because the most that could be hoped if the appeal succeeded would be that the matter would be remitted for a rehearing based on the change in the circumstances of the parties.

1. That having been said, I still have to deal with the issues raised by the appeal.  In particular, the attack is on the sparsity of reasons of the Federal Magistrate.  They have to be evaluated in light of the case that was run and the fact that this was a case heard within a day at a circuit hearing, and the sparsity of reasons have to be again viewed in light of the breakdown of the communication equipment.  The original reasons may not be as sparse as the ones that I now have to deal with, but in light of what I have already said, I do have to deal with the ones that are before me.

1. As the Full Court observed in Merrimanv Merriman (1993) FLC 92-422 following the decisions of the Full Court of this Court in Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191, Horsley (1991) 14 Fam LR 550; (1991) FLC 92-205 and Bonnici (1991) 15 Fam LR 138; (1992) FLC 92-272 the principles governing the need for the giving of adequate reasons for the exercise of the discretion to alter interests in property under s 79 of the Family Law Act 1975 (Cth) are well established.  For present purposes they are perhaps best expressed in the following passage from the judgment in Horsley (at Fam LR 554; FLC 78,401):

“...Counsel for the wife contended that the trial Judge did not give adequate or any reasons for his decision and that his failure to do so amounted to an error of law and additionally contended that his Honour’s discretion had miscarried. In the Bennett (1990) 14 Fam LR 397; (1991) FLC 92-191 the Full Court considered a similar argument (also advanced in that case by the same counsel) and after referring to a number of authorities, including Pettitt v Dunkley (1971) 1 NSWLR 376, Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Public Service Board of NSW v Osmond (1986) 159 CLR 656; 63 ALR 559, Palmer v Clarke (1989) 19 NSWLR 158, referred to the judgment of the Full Court of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 and in particular to the passage in the principal judgment of Gray J where his Honour said:

‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:

(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b)justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.’”

1. In Bennett’s case the Full Court went on to say:

“…It is unnecessary to decide, in this case, whether the inadequacy of her Honour’s reasons was itself an error of law requiring her decision to be set aside, in that we have already determined that the appeal should succeed on the merits. The weight of judicial authority, however, suggests that it might well amount to such an error. At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.

In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the judge’s discretion. In general, the appellate court should be able to discern either expressly or by implication the path by which the result has been reached.”

1. The Court concluded on this topic:

“The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.”

1. I think that becomes abundantly clear from a reading of them; namely, that the learned Federal Magistrate concluded that in the circumstances where the mother was available as effectively a full-time carer to the children whilst the father was reliant significantly upon the care being offered by the paternal grandmother, it was more appropriate that the mother be given the lion's share of caring for the children in preference to the paternal grandmother, notwithstanding that there was no real criticism of anything the paternal grandmother had been doing in caring for the children and acknowledging that the children had a very close relationship with their paternal grandparents.  The Federal Magistrate concluded that it would be better for the children to have the opportunity of being in the care of the full-time available parent rather than in the equal care of the grandparent.

1. Those reasons become apparent when reading the judgment, and in my view they are adequate to explain why his Honour did what he did.  It was a result that was reached that was contrary to the primary recommendation of the welfare reporter; namely, that there was a sufficiently adequate arrangement in place from the position of the children that an appropriate outcome for the proceedings might be a continuation of the existing arrangement.  That being said, that was a recommendation that was couched appropriately with a degree of caution where the recommendations of the welfare reporter said:

“The writer believes that as the children are well settled in the current arrangement, it may be least disruptive to continue the present arrangement.”

1. However, the welfare officer then recommended that proper regard be had to determining the facts as to the mother's availability.  The Federal Magistrate did exactly that and accepted the mother's evidence as credible that she was available effectively full-time to care for the children, subject to some work arrangements that left her unavailable for one night a week, and that night a week is covered by the sharing arrangements that were made in favour of the father.  The recommendation  was also couched with some concern that for there to be a successful shared-care arrangement there needed to be a degree of cooperation between the parties, some of which was absent in light of some tensions that existed in this family.

1. Ultimately, it became an issue of degree.  It is hard to emphasise the tension between the parties because what has been created is a shared-care arrangement; it is just not an equal shared-care arrangement.  It is a 60:40 arrangement in favour of the mother but it is one that requires significant cooperation still, and the very issues that would counter there being a successful equal shared-care arrangement can arguably be said to be emphasised in a slightly unequal shared-care arrangement as this one is. 

1. So I do not make much of the criticism that was being levelled either by the counsellor in relation to that matter or endeavoured to be raised by the mother's counsel in these proceedings, emphasising why an equal shared-care arrangement was likely to be doomed to failure; that is, because of the inability of the parties to cooperate.  If that was taken to its logical conclusion, then one would see a dramatically different outcome to the proceedings than that which has been achieved and which appears to be viable.

1. It was urged upon me that the Federal Magistrate failed to pay attention to two matters in particular; namely, the good relationship that the child had with the paternal grandparents and the wishes of at least the elder child.  I do not think, in fairness to the learned Federal Magistrate, that that criticism is warranted.  It is clear that his Honour was aware of the relationship between the children and the paternal grandmother.  He quotes from the relevant part of the welfare report that emphasises it, and indeed in his conclusion speaks of the children as having "such a close relationship" with the grandparents. 

1. Having evaluated that issue, he still concluded that it would be better for the children to spend time with their mother who is available rather than with the grandmother. He speaks of the children as having a right to be cared by the mother if she is available. That is perhaps an overstatement of the position, although it is consistent with at least the literal meaning of s 60B of the Family Law Act, but ultimately I do not think that his decision turns upon some theoretical right, but rather, as he perceived, a better arrangement for the children than the existing one.

1. As to the wishes of the children, at least in relation to the elder child, it is clear that the elder child was content with the current arrangement and that the Federal Magistrate identified that as being the situation and that the child would have preferred a continuation of the current arrangement and was being put under some pressure by her mother to reject the current arrangement.  His Honour identified those issues and yet concluded that an order that did not coincide with the wishes of the child was appropriate in the circumstances.  Indeed, he expressed the view - which was shared by the counsellor - that it should not ultimately be the child who is making the decision in this case.

1. I think in stating that, it cannot be said that the Federal Magistrate has given inadequate weight to the child's wishes.  He has just indicated that they are not determinative of the proceedings and chose an outcome that was, in my view, open to him.  It may not necessarily have been an outcome that would be universally acclaimed or reached by other judicial officers, but this is an appeal against a discretionary judgment, and unless it can be shown to be clearly wrong or unless there has been an error of law or fact, then in my view the mere fact than another judicial officer may have come to a different decision is an inadequate basis for me to interfere.

1. In all of the circumstances, in my view the appeal must fail, and accordingly I propose to dismiss it.

DISCUSSION

1. There appear to me in this case to be circumstances that would make it appropriate that I make a costs order as the proceeding having been wholly unsuccessful.  I propose to order:

1.        That the appellant pay the sum of $2000 towards the respondent's costs.

1. This is a Federal Magistrates Court appeal and the amount of the claim for costs by the respondent ($6,000) seems to me to be enormously out of any rational proportionality with the matters involved or the professional costs that ought to have been incurred, but I say no more than that at this stage.  I am not being asked to deal with a taxing issue inter partes between solicitor and client, but it seems to me to be out of the realms of the reasonable.

   I certify that the preceding 43 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
   The 6th day of July 2006
   
   Associate: