Pike & Pike

[2007] FamCA 419

FAMILY COURT OF AUSTRALIA

PIKE & PIKE [2007] FamCA 419

FAMILY LAW – CHILDREN - APPEAL – AGAINST FEDERAL MAGISTRATE’S ORDERS – Refusing father’s application for shared residence of child – challenges to Federal Magistrate’s conclusions with respect to numerous aspects of the care of the child unsuccessful – contention that an absence of reason for communications between the parents not improving in the future did not, in the light of evidence as to existing communication difficulties, oblige the Federal Magistrate to make a positive finding that the parties would in future be able to communicate at a level consistent with the requirements of a shared parenting regime – challenge to Federal Magistrate’s rejection of recommendation of family report writer unsuccessful – discussion of interaction between expert opinion evidence and fact finding by Federal Magistrate as ultimate trier of fact – appeal dismissed – costs reserved.

Family Law Act 1975 (Cth) Part VII

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and anor (1983) 3 NSWLR 378 at 385
Bennett and Bennett (1991) FLC 92-19
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354

APPELLANT: MR PIKE

RESPONDENT: MS PIKE

FILE NUMBER: NCM 2041 N of 2004

APPEAL NUMBER: EA 93 of 2006

DATE DELIVERED: 12 March 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: COLEMAN J.

HEARING DATE: 12 FEBRUARY 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 30 June 2006

LOWER COURT MNC: NCM 2041 of 2004

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Kevin Byrnes Byrnes Lawyers

COUNSEL FOR THE RESPONDENT: Mr. Tregilgis

SOLICITOR FOR THE RESPONDENT: Crane Butcher McKinnon

Orders

1. That the appeal be dismissed.

2. That within 28 days or such further time as the parties agree each party file written submissions with respect to the costs of the appeal and, within a further 14 days thereafter or such further time as the parties agree, each party respond to the submissions of the other party with respect to such costs.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Pike & Pike.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 93 of 2006
File Number: NCM 2041 of 2004

MR PIKE

Appellant

And

MS PIKE

Respondent

REASONS FOR JUDGMENT

1. By Notice of Appeal filed on or about 30 August 2006 Mr Pike, (hereinafter referred to as “the father”) appealed against orders made by a Federal Magistrate in proceedings between the father and Ms Pike (“the mother”) on 30 June 2006, the reasons for which decision were published on 19 July 2006. The time within which to lodge such appeal had previously been extended.

2. The orders of the learned Federal Magistrate of 30 June 2006 in essence provided that the child of the mother and father C Pike born November 2001 live with the mother and have contact with the father, relevantly for present purposes, during school terms each alternate weekend from 4pm Friday until the commencement of school Monday (Tuesday when falling on a long weekend), for half school holidays and on other specific events, such as Christmas Day, Mother’s Day, Father’s Day and other times.

3. In lieu of those orders the father sought that this Court re-exercise the discretion of the learned Federal Magistrate and make orders, in effect, providing that the child spend equal time with each of her parents.

4. The mother resisted the father’s appeal and sought to maintain the learned Federal Magistrate’s orders.

5. As a reading of the transcript would confirm, there arose by way of preliminary issue on the hearing of the appeal a question as to the relevant law for the purposes of the appeal.

6. There was ultimately consensus that the learned Federal Magistrate having delivered his Judgment on 30 June 2006 the determination of the proceedings which resulted in that decision was in accordance with Part VII of the Family Law Act (“the Act”) as it existed up to and including that date, notwithstanding that his Honour’s Reasons for Judgment were not published until 19 July 2006.

7. It was further agreed, correctly in the Court’s view, that the appeal related to the orders of the learned Federal Magistrate albeit an examination of the reasons for the orders was central to such challenge.

8. It was also agreed, correctly in the Court’s view, that the relevant law for the purpose of the appeal was Part VII of the Act as it existed prior to 1 July 2006 but that, should any question of a re-exercise of the discretion of the learned Federal Magistrate arise in the event of the appeal being successful, the provisions of Part VII of the Act which commenced on 1 July 2006 would govern such re-exercise of discretion, whether that be in this Court or on remitter to the Federal Magistrate’s Court.

Background

1. The parties commenced cohabitation in 1994, married in August 1999 and separated in August 2003.

2. As noted earlier, the child C was born  November 2001 and is accordingly a little over 5 years of age.

3. Also relevant to the proceedings, though not the subject of any orders sought in the proceedings was the child B, the child of the mother and a man other than the father who was born  July 1993 and had ordinarily been a member of the household of the father and the mother.

4. After the parties separated C continued to reside with the mother. Orders of the Local Court at … of 27 May 2004 confirmed the child’s residence with the mother.  The father was then awarded contact each alternate Sunday from 8 am to 4 pm, Tuesday from 6.30 to 8.30 and each alternative Saturday from 5.30pm to 8.30 pm.  A number of conditions were imposed upon such contact.

5. On 3 September 2004 the previous orders were varied by orders of the Federal Magistrate’s Court in Newcastle which provided that Tuesday and Saturday evening contact was suspended and, that there be contact from 10am to 5pm on the Saturday preceding Sunday contact.

6. Those orders were again varied in the Federal Magistrate’s Court at Newcastle on 22 December 2004, interim orders then being made providing that the father have contact each alternate weekend from 10am Saturday to 3pm Sunday and each alternate Sunday from 10am to 5pm, such contact to be supervised by the father’s parents.

7. On 14 July 2005 a number of applications for contravention brought by the father against the mother were heard and determined, the Court finding substantially in favour of the father in relation to such complaints and ordering compensatory contact  be given to the father.

8. Interim orders were again varied on 14 November 2005. The proceedings which give rise to this appeal were heard by the learned Federal Magistrate in March of 2006.

9. The child C commenced school at the beginning of the 2007 school year.

The Judgment of the learned Federal Magistrate

1. Having identified the competing applications and set out relevant matters of background and history, the learned Federal Magistrate identified, accurately there is no doubt, the issues arising for determination by him. His Honour further identified, accurately there is no doubt, the law which governed the proceedings before him.

2. Under the heading “the father’s case” the learned Federal Magistrate detailed the father’s proposal for the care of the child B. There is no suggestion that any inaccuracy was thereby entailed.

3. Significantly for the purpose of this appeal, the learned Federal Magistrate recorded that “the father describes communication and co-operation between he and the mother as poor both before and after separation but is hopeful this can be improved”.

4. Also significantly for the purpose of this appeal, his Honour recorded that “upon C attending school the father said that he would arrange his work hours to finish work at the time school finishes in the afternoon asserting that his employer offered flexible work hours”, noting that the father “did not adduce any corroborative evidence to this affect (sic) from his employer” and that it was “less than clear as to the care arrangements the father proposed in the morning”.

5. His Honour observed that he was “left with the distinct impression that the father had given very little thought to the practical implications of week about care of C vis-à-vis not only his work but also day to day care, reliance upon and a presumption that the mother would provide care, and a lack of insight as to the affect (sic) of complicated arrangements for C”.

6. The learned Federal Magistrate recorded that the father “admitted he had not been involved in the management of her (C’s) developmental behaviour” and had not been “aware she had been enrolled in the program and seemed to have little or no knowledge as to why she had been referred to the Royal Far West Children’s Health Scheme”.

7. His Honour concluded his consideration of the father’s case by recording “the mother may not have been as communicative as she could have been with the father concerning C’s health and the need for specialist monitoring, but…this is merely reflective of the parties’ inability to communicate with each other rather than the mother wilfully refusing to keep the father informed”.

8. Under the heading “The mother’s case” the trial Judge considered aspects of the mother’s health, concluding that there was “nothing to suggest that the mother’s health affects adversely her ability to care for C”. As no part of the appeal turns upon his Honour’s conclusions in relation to this topic, it is unnecessary and unhelpful to refer in any detail to his Honour’s reasons in relation to the health of the mother.

9. The learned Federal Magistrate regarded as “implausible” a number of the mother’s explanations in relation to restrictions on the father’s contact with the child. His Honour also noted that the mother did not accept that the father’s “lack of ability to care for C” had changed.

10. Reference was made to the mother’s previously undisclosed practice of leaving the child with a family day care provider on Fridays from after 9am until before 5pm although the child “attends such day care without any emotional difficulty following separation from her mother”.

11. The child’s attendances at preschool for two days per week and the mother’s “less than satisfactory” explanation in relation to nondisclosure of attendances by the child at day care on Fridays were discussed by the learned Federal Magistrate.

12. His Honour also referred to concessions made by the mother that she had “not allowed the father the opportunity to show he could manage work and look after C”, and to her inability to “point to one instance where the father had behaved inappropriately toward C prior to separation, nor one instance after separation”.

13. Reference was made to the mother’s concession that “there had been no instance of C being placed in danger because the father had failed to look after her properly”. The mother’s concession that the father was “an extremely affectionate and loving father” who would not harm the child intentionally was also referred to by the learned Federal Magistrate.

14. His Honour recorded his “distinct impression that the mother had involved B in the conflict” for reasons which he gave and which did not assume significance in this appeal.

15. Under the heading “The Family Report of Mr P”, the learned Federal Magistrate considered the expert opinion evidence of Mr P, a child psychologist who, essentially, supported the father’s claim that C share her time equally between the households of her two parents, both of which were located within close physical proximity of each other.

16. His Honour referred to the cross-examination of Mr P and recorded that he “agreed that the parents had a level of animosity between them and that they had difficulty in communicating with each other” and that it would “be of great benefit to the family if both parents had an attitudinal change and had counselling to enable them to put the long term interests of their children first”.

17. His Honour was “on the evidence” “not persuaded that the parents are likely to experience a metamorphosis of their present relationship and at best counselling might enable the parents to improve their understanding and ability to facilitate the child’s movement freely between the two households without stress” and the “development of strategies to deal with any ongoing practical difficulties”.

18. The learned Federal Magistrate also referred to evidence in cross-examination by Mr P that the mother did not “recognise the importance of the role the father is able to play in C’s upbringing” notwithstanding it was not in the child’s best interests to have only “minimal contact” with her father.

19. It was thus recorded, accurately there is no doubt, that Mr P “concluded that there was no reason why a shared care arrangement should not work provided that issues of marijuana, alcohol and communication were all addressed”. As will be seen, it is only the third of those “issues” which assumes significance in this appeal.

20. Having thus traversed the evidence, the learned Federal Magistrate directed his attention to “Relevant considerations under section 68F(2)”. Having regard to C’s “age and her maturity and her level of understanding” his Honour concluded that there was “no evidence of relevance as to her wishes to which any weight can be attached”. a conclusion not challenged in this appeal. His Honour found that the child had a “close attachment to both her parents and the paternal grandparents with her primary attachment being to her mother” a conclusion also not challenged in this appeal. The child was also considered to have a “close attachment to B” which is not controversial in this appeal.

21. His Honour concluded that the father had “the desire and the ability to look after her (C) and any affect (sic) will be minimal, if indeed there is any affect (sic) at all” in the event of the child continuing to attend preschool Thursday morning and day care on Fridays with her father taking her to such activities in addition to spending each alternate weekend with the father. The learned Federal Magistrate was “satisfied that both parents are able to meet not only her (C’s) physical needs but also her emotional and intellectual needs”.

22. For reasons which he gave, the learned Federal Magistrate concluded that both parents demonstrated “an appropriate attitude to their responsibilities, albeit the mother has been somewhat protective and perhaps over protective and not permitted the father’s relationship with C to develop as it should”.

23. The focus of attention then became Mr P’s recommendation in favour of “equally shared week about living arrangements for C”. His Honour concluded “on the evidence” that Mr P’s recommendation should not be accepted and proceeded to provide “reasons” for such conclusion. As will be seen, those reasons assume considerable significance in this appeal.

24. Given the effluxion of time and the reality that, as both Counsel agree is the fact, C has commenced to attend school in recent weeks, the focus of interest is on the findings and/or conclusions of the learned Federal Magistrate with respect to the time after the child commenced to attend school. His Honour found in that regard that the father’s proposals would be “unsettling and confusing and quite destabilising given the poor level of communication between the parents”.

25. His Honour was not satisfied on the evidence “given the father’s working hours, under his proposal, that he would be able to look after C every day until she goes to preschool or day care or school as the case may be” but was “satisfied however that he has the flexibility to make appropriate arrangements on some days”. Importantly, his Honour then recorded “having observed the parties give evidence over a number of days I do not share Mr P’s optimism that communication between the parents will improve to such an extent that equal shared parenting becomes viable, and such that it would operate in C’s best interests to the required level”.

26. The learned Federal Magistrate concluded that when C starts school “it is appropriate” that she be “met by her father at the end of school on the Wednesday and taken back to school the following morning each week until she completes her primary education” accordingly, upon the child commencing school (as has occurred) Thursday overnight contact would cease in favour of the child spending the whole of each alternate weekend with the father from Friday afternoon until the commencement of school the following Monday morning.

27. For the reasons he had given, his Honour concluded that Mr P was “unable to give sufficient consideration to the day-to-day practical arrangements for C’s care if she were to live week about with the father,” and referred to the “benefit of seeing and hearing the father give his evidence” which Mr P did not have “albeit he read the transcript of evidence”.

28. His Honour concluded that the father “tended to minimise or perhaps had not even given enough thought to looking after C each morning and juggling his work obligations”. His Honour thus concluded that the orders he had made on 30 June 2006 were in the best interests of the child C.

The Grounds of Appeal

1. A number of grounds of appeal were articulated in the father’s Notice of Appeal. The comprehensive Summary of Argument prepared by the father’s Counsel did not follow entirely the sequence of the Grounds of Appeal. The equally comprehensive submissions of Counsel for the mother responded to the contentions of Counsel for the father in essentially the sequence in which those contentions were advanced on behalf of the father. It is sensible in the circumstances to consider the competing contentions in the light of the manner in which Counsel for the parties have addressed the issues.

2. Grounds 1 to 4 of the Notice of Appeal provided:

   1.   The learned Federal Magistrate failed to have regard sufficiently or place sufficient weight on the recommendations of the author of the Family Report that the Court should order that the parties share the care of the child C.

   2.   The learned Federal Magistrate erred in that he failed to make Orders for shared care of C desite (sic) finding:

   i)The father was able to provide for C’s physical, emotional and intellectual needs;

   ii)That there were no issues of family violence, risk or protection regarding the father in respect of his relationship with C;

   iii)That the father had an appropriate attitude towards parenting;

   iv)That the mother’s concerns regrading the father’s alcohol and/or drug use were not sufficient to constitute an impediment to a shared care arrangement;

   v)That the parties lived in close proximity to one another;

   vi)That there was no evidence of C being reluctant to a shared care arrangements;

   vii)That the mother had demonstrated an inappropriate attitude towards parenting by obstructing contact following separation.

   3.   The learned Federal Magistrate erred in finding that the parties’ ability to communicate with one another in the future would not improve despite evidence to the contrary by both the mother and the father and the view to the contrary expressed by the author of the Family Report.

   4.   The learned Federal Magistrate erred in the exercise of his discretion by failing to make Orders whereby the care of C was shared equally between the parties because the father could not care for C before taking her to pre-school each day and that C would therefore have to be cared for by her mother for short periods of time in the morning during  weeks when the father would have had her in his care pursuant to a shared care arrangement.

3. Under the heading “the reasoning behind his Honour’s conclusion that a shared care arrangement was not in C’s best interests” Counsel for the father made a number of submissions to which reference should be made. These submissions can be seen as referrable in varying degrees to grounds 2, 3 and 4 of the father’s notice of appeal.

1. It was submitted that the learned Federal Magistrate had concluded (as he undoubtedly did) that an equal shared care arrangement was not in C’s best interest interests for three reasons. Those reasons were submitted to have been expressed in the following terms:- [para 4.4, subparas 1, 2 and 3 from page 922, Vol 5 of AB]

   (i)The arrangement proposed by the father whereby C would be looked after during the day by the mother (during weekdays when the father had the care of C pursuant to a “week about” arrangement) was “not appropriate” and “would be unsettling and confusing and possibly quite destabilising”. The reasons given by His Honour for that conclusion was “a poor level of communication between the parties”.

   (ii)The Appellant would not be able to look after C every day until she goes to preschool, daycare or school. His Honour found that the Appellant “has the flexibility to make appropriate arrangements on some days” but not on “every day”.

   (iii)The communication between the parties would not improve “to such an extent that equal shared parenting becomes viable”.

2. It was submitted that “two of the grounds upon which his Honour based his decision that an equal shared parenting arrangement was not appropriate related to the level of communication between the parties”.

3. It was, accurately, submitted that the trial Judge found there to be a “poor level of communication between the parties” and concluded that the parties ability to communicate “would not improve to the standard need for shared parenting”.

4. Importantly, it was conceded that the evidence before the trial Judge “allowed him to make a finding that the existing level of communication between the parties was “poor”.

5. One of the challenges to the learned Federal Magistrate’s conclusions with respect to the parties’ ability to communicate effectively in the future was that his Honour failed to reveal the reasoning process which led him to conclude that the communication between the parties “would not improve and would not reach the requisite standard for equal shared parenting”.

6. The second aspect of the communication issue was expressed to be that the learned Federal Magistrate’s conclusion with respect to the level of communication in the future “could not be made by him” on the evidence and was directly in contrast with his Honour’s finding. It was thus submitted that “the evidence presented to his Honour from both parties was overwhelmingly in support of the proposition that if a shared care arrangement were implemented the lines of communication between the parties would (emphasis added) improve to the required extent”.

7. It was submitted on behalf of the father that his case had been “that he would do what ever was necessary to implement a shared care arrangement including improving communication with the mother”.

8. Reliance was also placed upon evidence of the husband in his affidavit of evidence in chief sworn 7 July 2005 at paragraph 121 wherein he deposed: [para 4.14 AB page 923].

   “Despite the difficulties I have experienced in the past with the Respondent I believe we can work together in the best interests of C…if the court made the orders sought by me I would be willing to undergo counselling to assist in the resolution of any ongoing difficulties with the Respondent…I believe it is in C’s best interests that she have a close relationship with both her parents in the future.”

9. Reliance was placed upon the family report prepared by Mr P in which he stated [para 4.15 of AB page 923].

   “There is no doubt that with the parents living in close proximity to each other, and the fact that both parents are interested in improving their communication in matters regarding their daughter, it appears certainly possible and desirable that both parents could have C on a shared residence basis with a week about arrangement operating.”

10. It was submitted that “at no stage during the cross examination of the husband did he indicate that he would not be prepared to work towards better communication with the wife”. Whilst that proposition was not disputed by Counsel for the mother, the issue appears to have been less than one of what the parties would attempt in the future in relation to communication than one of what, on the balance of probabilities, they might achieve in that regard.

11. Reliance was placed upon evidence of the husband that the relationship between the parties was “getting a lot better” during the course of the proceedings and that the mother had been “a lot easier to get on with since the last occasion at Court”.

12. It was submitted that the mother had indicated during the course of her cross-examination “that if a shared care arrangement were ordered she would make the effort required to communicate appropriately with the husband”. That submission was supported by reference to page 515 of the transcript of the trial at lines 12-33 which, on a balanced reading, can be fairly seen as consistent with the submission advanced on behalf of the father as to the mother’s intentions with respect to communication in the future.

13. Reference was made to the evidence of Mr P in relation to this issue (lines 7 and following) on page 602 of the transcript of the trial. Objectively, whatever Mr P might have concluded in that regard, the issue was one for the learned Federal Magistrate as the “ultimate trier of fact”.

14. Reliance was placed upon cross-examination of Mr P by Counsel for the father (line 30 and following) page 603 of the transcript of the trial in which Mr P suggested that, once the proceedings in Court had concluded, he would expect both parents to communicate better than they had in the past. No scientific, academic or forensic basis for that opinion emerged from the evidence of Mr P. Notwithstanding that, as Counsel for the father correctly submitted, Mr P’s evidence was “unswervingly, that the communication between the parties would (emphasis added) improve to the requisite standard if the shared parenting arrangement were implemented”.

15. It was then submitted: [Para 4.24 on pages 926 & 927 of Vol 5 AB].

    4.24Further, during the course of the parties submissions His Honour enunciated a view entirely inconsistent with his abovementioned finding. In response to Counsel for the wife addressing on the parties poor communication with one another His Honour stated (at line 30 on page 663):

    “The trouble with that proposition Mr. Tregilgas is that there is no evidence that if on the cessation of these proceedings they will not be able to communicate about those issues. And that was the counsellor’s evidence. He was confident that with the cessation of the proceedings, which is the real difficulty between then and because they have been going on for so long…that there will be a need for then to communicate. And the counsellor was confidence they would. Whether C lives mostly with the mother or in a shared arrangement, if seemed to me from the counsellor’s evidence, didn’t really matter because they get on with it.”

16. The significance of this submission is twofold, the first being that the statements of the learned Federal Magistrate were submitted to be inconsistent with his ultimate conclusion in that regard, the second being in the nature of a natural justice complaint that the learned Federal Magistrate “did not raise the issue of communication with the solicitor for the father during the course of his submissions”. It was thus submitted to have been “not open to his Honour to make the findings referred to above in the first and third reasons given for his Honour’s decision”.

17. It was further submitted that the learned Federal Magistrate had erred in concluding as he did with respect to the father’s work situation and ability to “make appropriate arrangements on Sundays to care for C until she goes to…school.” It was submitted that the father had given detailed evidence as to his proposals for the child’s care at all material times and had not been cross-examined “about the care arrangements he would make for C when she commenced as school”. It was submitted to be of significance that the learned Federal Magistrate had found the father able to “physically and emotionally care for C” and that, in the “absence of evidence” his Honour should have inferred that the father had the ability which he asserted.

18. Reliance was placed upon an exchange between the learned Federal Magistrate and Counsel for the father in relation to the ability of the father to organise his work so as to be able to care for C at the times he asserted, the contention of Counsel for the father being that during such exchanges “there was no issue from his Honour that that issue required further clarification or that it was going to be a determinative issue”. Not insignificantly, the cogent submissions on behalf of the father in relation to these topics concluded with the reminder that “the husband was attempting to give evidence about circumstances into the future which, by necessity, must be somewhat uncertain”.

19. In his submissions in reply, Counsel for the mother addressed these issues, primarily in the context of addressing grounds 2 and 3 of the Notice of Appeal.

20. It was submitted in relation to the Reasons challenge that the learned Federal Magistrate had provided reasons for his conclusion with respect to the level of future communications.

21. Reliance was placed upon paragraphs 79, 80, 82, 100 and 103 of his Honour’s Reasons for Judgment. Those paragraphs provided:

    79.Mr P agreed that the parents had a level of animosity between them and that they had difficulty in communicating with each other. Mr P said that it would be of great benefit to the family if both parents had an attitudinal change and had counselling to enable them to put the long term interests of their children first.

    80.I find on the evidence, sadly, that I am not persuaded that the parents are likely to experience a metamorphosis of their present relationship. At the best, I am hopeful counselling will assist the parties to understand the importance of C being able to move freely between the two households without stress, and to develop strategies to deal with any ongoing practical difficulties.

    82.Mr P said it was not in C’s best interests for her to have minimal contact with her father. Mr P concluded that there was no reason why a shared care arrangement should not work provided that issues of marijuana, alcohol and communication were all addressed.

    101.The father is in regular full time paid employment. His proposals involve C, before she attends school, being looked after by the mother during his week’s period of residence. I find this is not appropriate and would be unsettling and confusing and possibly quite destabilising given the poor level of communication between the parents.

    102.The evidence does not establish, given the father’s working hours, under his proposal, that he would be able to look after C every day until she goes to preschool or day care or school as the case may be. I am satisfied however that he has the flexibility to make appropriate arrangements on some days.

    103.Having observed the parties give evidence over a number of days I do not share Mr P’s optimism that communication between the parents will improve to such an extent that equal shared parenting becomes viable, and such that it would operate in C’s best interests to the required level.

22. As had Counsel for the father, Counsel for the mother referred to the statement by the learned Federal Magistrate, during the course of submissions by Counsel for the mother, that there was “no evidence that on the cessation of these proceedings they (the parents) will not be able to communicate about those issues” and to the submission of Counsel for the father that the alleged lack of communication between the parties was not “an insurmountable difficulty”.

23. Counsel for the mother referred the Court to a number of parts of the evidence establishing post separation problems of communication and co-operation between the parties. Reference has previously been made to the most significant of those parts of the reasons for judgment and/or evidence of the parties and/or Mr P.

24. Implicit in the submission of Counsel for the mother was that, as the ultimate trier of fact, the learned Federal Magistrate was obliged to draw an inference or reach a conclusion as to the probable level of communication between the parents in the future, the relevance of which was that, as appears to have been sensibly accepted by both parties to the dispute, a shared parenting arrangement such as the father sought reasonably required a level of communication and co-operation in order to be in the child’s best interests.

25. As Counsel for the father submitted, no-one could actually “know” what the level of communication in the future would be. The case for the father, before the learned Federal Magistrate and in this Court, has essentially been that both parties wish to communicate and co-operate better in the future, both have expressed those desires in evidence which was, or should have been accepted and, as the learned Federal Magistrate accepted, or appeared to accept, the evidence does not provide a basis for concluding that communication and co-operation could not improve in the future. Implicit in the case for the father is the proposition that, absent reasons for communication and co-operation not improving, the learned Federal Magistrate was obliged to find affirmatively that they would improve.

26. The case for the mother in relation to this topic appears essentially to be that finding an absence of reason for something not to occur does not necessarily entail an affirmative finding on the balance of probabilities that it will occur. It was also implicit in the case for the mother that the learned Federal Magistrate had sufficient evidence of past and present communication difficulties to be able to conclude as he did with respect to communication in the future.

27. So far as the first issue is concerned, the Court accepts that finding an absence of reason for something not to occur does not necessarily lead to a finding on the balance of probabilities that it will occur. Many things in life do not occur despite an absence of reason for them not occurring. The Court does not accept that a finding of absence of reason for communication not improving in the future obliged the learned Federal Magistrate to find that it in fact would.

28. It is necessary when considering the evidentiary foundation for his Honour’s conclusion as to the future level of communication to have regard to the matters to which his Honour referred, which have already been identified, and also to the evidence relied upon by Counsel for the mother in that regard to which his Honour did not expressly refer.

29. Whilst Counsel for the mother provided the transcript references upon which he relied (paragraph 48), in the interests of economy, the Court simply refers to the matters which emerge from those transcript passages, Counsel’s submissions according closely with the actual evidence before the learned Federal Magistrate.

30. The father’s absence of a landline telephone number, and failure to provide his mobile telephone number to the mother are consistent with a communication difficulty, and its likely continuation.

31. The father’s concession in cross-examination that the level of co-operation between the parties had “probably stayed almost the same over the last two years”, which the father had earlier conceded to have not been satisfactory, and to have not improved, was a matter upon which the learned Federal Magistrate was entitled to rely when seeking to predict the future course of communication between the parties.

32. So too was the father’s concession that even with “arrangements in place there has still been a lack of co-operation about how ….orders should be put into place” and further concession that there was “some personal animosity” between the parties.

33. The failure of counselling to successfully resolve issues or improve communication was another matter of significance in terms of future dealings.

34. The father’s evidence that communication between the parties hadn’t “become any easier” was also a matter able to be relied upon by his Honour.

35. The evidence of the father in relation to an offer of contact on Father’s Day was further evidence of the difficulties which the learned Federal Magistrate was entitled to consider likely to beset future communication between the parties.

36. So too was the father’s evidence that concerns in relation to further AVO proceedings led him to being “concerned” about having full communications with the mother albeit the father suggested that “our communication was improving”.

37. It was submitted that the recommendation of Mr P, the family report writer, that the parties undergo joint counselling to improve their capacity to “work co-operatively” was evidence supportive of the learned Federal Magistrate’s conclusion with respect to future levels of communication. Predictably, reliance was placed upon the learned Federal Magistrate’s advantage as the trial Judge in having seen and heard the parties give evidence over a number of days.

38. Counsel for the mother referred the Court to the well-known and long-standing authorities in relation to the trial Judge’s advantages with respect to seeing and hearing the evidence of relevant witnesses. It has not been established that the learned Federal Magistrate transcended the generally accepted bounds of those “advantages”.

39. So far as the complaint with respect to future communications is concerned, on all of the evidence before him, notwithstanding the absence of any reason why communication could not improve in the future, it has not been established that it was not reasonably open to the learned Federal Magistrate to conclude as he did in that regard. It has not been established that there was insufficient direct and circumstantial evidence to support his Honour’s conclusion that communication would not, on the balance of probabilities, achieve the level necessary to render shared parenting for the child effective and consistent with the child’s best interests. His Honour may have reached a different conclusion, but that is not the test for present purposes.

40. So far as the challenge to the adequacy of the learned Federal Magistrate’s Reasons was concerned, Counsel for the mother submitted that his Honour’s reasoning process was adequate as that term has become known to the law. A number of authorities were relied upon in that regard.

41. The law relating to the adequacy of reasons is not in doubt and does not require extensive re-stating in this appeal.

42. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 at 279, McHugh JA said:

    … “without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.”

43. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and anor (1983) 3 NSWLR 378 at 385—6 Mahoney J said:-

    There is, in my opinion, an established course of decision in this State that, in certain circumstances, it is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law: see, for example, Wright v Australian Broadcasting Commission [1979] NSWLR 697; McCarroll v Fitzmaurice [1979] 2 NSWLR 100. The view that such a duty may exist has been adopted in other States: see, for example, Watson v Anderson (1976) 13 SASR 329; and in the Federal Court of Australia: Australian Timber Workers’ Union v Monaro Sawmills Pty Ltd (1980) 42 FLR 369, at 374, 380. Counsel have informed the court that there is no decision of the High Court of Australia in which the question has been considered. The matter has been referred to in the English courts: see, for example, R v Immigration Appeal Tribunal: Exparte K (Mahmud) [1983] QB 790, at 794, 795. See generally the cases collected in “University of Toronto Law Journal” (1983) 1.

    However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council: Ex parte Nilish Shah [1983] 2 AC 309, at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.

    However, the decision of a particular submission may be an essential part of the judge’s reasoning to his final conclusion. This may be so because it is necessarily so, ie, because he cannot come to his final conclusion without deciding it; or because the reasoning which in fact he follows makes it so. In such a case, the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them. (I put aside cases involving, for example, constitutional or jurisdictional issues, where special considerations may apply.) In my opinion. it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.

    In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion.  be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement: see Pettitt v Dunklev (at 387, 388). But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process. However, the fact that the function of the requirement is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will he a discharge of it. Thus, in some cases where ordinarily an appeal is not contemplated, there may not be a need for reasons. Thus, in England, it has been said that reasons need not be given in certain procedural applications: see Capital and Suburban Properties Ltd v Swycher [1976] Ch 319, at 325, 326. In such cases, and in cases of, eg, applications for leave, where the considerations of fact and law are clear, reasons need not ordinarily be given.

    Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O’Hara v Evans (Court of Appeal, 23rd September, 1976, unreported); Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). The Privy Council has said that, in criminal matters, it is not necessary for a judge to refer in his judgment to every possible defence: he may, for example; consider a defence “too plain for argument” and put it aside: see Mohamed Kunjo s/o Ramalan v Public Prosecutor [1979] AC 135, at 142. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] I WLR 585. at 587, 588; [1983] 1 All ER 824, at 826.

    But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.

    (Appeal dismissed by the Privy council (1984) 54 ALR 155)

1. In Bennett and Bennett (1991) FLC 92-19,. The Full Court of this Court said at 78,266:

   Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

2. In this case, the reasoning process of the learned Federal Magistrate in relation to communication issues has not been shown to have been inadequate. How his Honour reached his conclusion is reasonably discernible. This challenge fails.

3. The concession that it was open to the trial Judge to find that the level of communication had been as his Honour described it to the date of his Judgment is significant. When one looks at the evidence to which reference has been made, it can be seen that the learned Federal Magistrate had a significant amount of evidence which did not point conclusively to any inference with respect to future levels of communication between the parties. There being no reason why communication would not improve in the future, on the evidence before him, it was reasonably open to his Honour to conclude that communication would or would not improve without necessarily being in error.

4. For this Court to uphold this challenge to his Honour’s decision would be to do what the authorities make clear that this Court cannot do, that being to allow an appeal on the basis that, if deciding the matter for itself, this Court might reach a different conclusion, which is not to say that if it were deciding the issue for itself, this Court would in fact reach a conclusion differing from that of the learned Federal Magistrate. His Honour’s conclusion having not been shown to have been other than reasonably open to him, this challenge to his conclusion with respect to future levels of communication and co-operation fails.

5. To the extent that the complaints which have thus far been considered arising out of the course of submissions raises a procedural fairness or natural justice point, the Court is not persuaded that such complaint has substance. When the submissions are read in their entirety, it cannot fairly be said that the learned Federal Magistrate either denied Counsel for the father the opportunity to address in relation to any issue which he perceived to be of significance. Nor by anything which his Honour said, could he, be considered with hindsight, misled Counsel for the father as to what was or was not a matter in respect of which he should or could have usefully made submissions. The evidence had concluded. No submission could change the evidence. It is not suggested that his Honour’s comments were made at a time when further, or different, evidence could or would have resulted.

6. No finding of fact appearing in the learned Federal Magistrate’s Judgment appears inconsistent with any “indication” given by him to Counsel for the father during the course of submissions. It is not to be forgotten, to be helpful, to both Counsel and the Bench, submissions generally require a level of discussion or debate, the posing and testing of hypotheses, and an airing of possible conclusions or inferences. As the authorities made clear, the “silence of the Sphinx” was not required of his Honour.

7. With great respect to Counsel for the father, having read the submissions in their totality, this Court is not persuaded that anything then said, or not said, by the learned Federal Magistrate could have either led Counsel to make or not make any submission which, with hindsight, could be seen as potentially advantageous to his client’s case. As before this Court, Counsel before the learned Federal Magistrate presented his client’s case to best advantage in a clear, forthright and skilful way.

8. It remains with respect to this group of Grounds of Appeal to consider the challenge to the learned Federal Magistrate’s decision which is encapsulated in Ground 4 of the Notice of Appeal. In essence it was submitted with respect to the father’s ability to make arrangements to be available as he clearly genuinely wished to be for the care of the child, that there was evidence before the learned Federal Magistrate which permitted a number of findings, including that made by his Honour to which reference has earlier been made.

9. The learned Federal Magistrate’s finding that the father’s evidence as to his ability (as opposed to his intention) to work flexible hours to fit in with C’s needs if she lived with him week-about was not corroborated by his employer has not been challenged in this appeal. The evidence of the father could at most have been evidence of his intention. The intention of the father was not challenged. It does not follow that his capacity was thereby admitted. Only his employer could have given admissible evidence as to the ability of the father to carry out his intentions with respect to work hours in future. That did not happen.

10. The Court agrees with the submission on behalf of the mother that, whilst it would have been open to his Honour to conclude differently, it has not been shown that his Honour’s conclusion that the father’s ability to be available at the times he wished to be was not established on the balance of probabilities on the evidence before him was not reasonably open to him.

11. To the extent that reliance was placed upon the absence of anything to suggest that the father lacked the capacity to care for C in every relevant sense, that is not really in point in the appeal given that his Honour clearly found that the father had the capacity to do so but, also found, as was open to him, that the father had not in the past ever been the child’s primary carer. It does not follow that an absence of reason for reaching a conclusion necessarily involves reaching a positive conclusion in those terms. Moreover, the learned Federal Magistrate, in a number of places in his Judgment (paragraphs 5, 6, 35, 36, 37, 38, 49, 79, 80, 82, 101, 102, 103 and 111) expressed reservations about the future care of C were the shared care arrangement sought by the father to be ordered. The basis of those reservations has not been shown to have been unsound.

12. The history of limited contact, as submitted by Counsel for the mother, supported the learned Federal Magistrate’s conclusion with respect to the desirability of an equal shared care regime. The Court is not persuaded that the challenge in relation to this aspect of the learned Federal Magistrate’s decision has substance. Nor, to the extent that any denial of natural justice or procedural fairness is asserted to have occurred during the course of submissions has such challenge been made out. This Court’s reasons earlier given in relation to any procedural unfairness arising during the course of submissions also has application to this aspect of the appeal.

13. It remains to consider the challenge to the learned Federal Magistrate’s conclusions with respect to the Family Report raised by Counsel for the father by way of conclusion to his submissions in support of the appeal albeit the complaint finds expression in ground 1 of the father’s Notice of Appeal.

14. It was submitted that the learned Federal Magistrate “did not follow the recommendations of the author of the Family Report without giving adequate reasons as to why those recommendations were not followed”.

15. The other aspect of this challenge was that, quite apart from any alleged deficiency of reasons, it was not reasonably open on all of the evidence for the learned Federal Magistrate to reject the recommendations of the author of the Family Report.

16. It was submitted in support of this complaint that the author of the report was cross-examined “at some length” by both Counsel, was “unshaken” in his view that an equal shared parenting arrangement was in the child’s best interests, had the opportunity to interview both parties and had read the transcript of evidence at trial and that Mr P’s evidence was “the only expert evidence called in the proceedings”, no challenge being made to his expertise there being no suggestion that his report was “coloured by bias or some other factor”.

17. It was submitted that the trial Judge’s stated reasons for not agreeing with Mr P’s recommendations were inadequate and/or not supportable on the evidence. Pivotal to this issue is the likely level of future communications between the parents. It cannot be successfully suggested that Mr P’s recommendation could not be rejected if future communication was likely to be problematic. The key to this challenge is thus the outcome of the challenge to the learned Federal Magistrate’s conclusions with respect to future communications between the parties.

18. As the submissions of both Counsel make clear, the learned Federal Magistrate dealt with the question of Mr P’s recommendations shortly in the paragraphs which have earlier been referred to.

19. It is clear from the submissions of both Counsel that the level of communication of the parties in the future was seen by the learned Federal Magistrate as crucial to the success or failure of equal shared parenting of the child C, as clearly it was. The Court has previously dealt with the challenge to the learned Federal Magistrate’s conclusions with respect to the likely standard of communication between the parties in the future. This challenge could be shortly disposed of on that basis alone.

20. Notwithstanding that he did not identify communication levels between the parties as “issues in dispute” in the body of his report, Mr P, under the heading “Evaluation” said:

    41.There is no doubt that with the parents living in close proximity with each other, and the fact that both parents are interested in improving (emphasis added) their communication in matters regarding their daughter, it appears certainly possible (emphasis added) and desirable that both parents could have C on a shared residence basis, with a weekabout arrangement operating. Mr. Pike clearly values Ms. Pike’s knowledge and experience with children and he believes that it is important for both himself and Ms. Pike to remain integral in their daughter’s life.

21. Without wishing to be unduly critical of Mr P with the benefit of hindsight, the evidence before the learned Federal Magistrate in relation to communications between the parties, the significance the issue, rightly, assumed in the conduct of the case and the submissions of experienced Counsel for the parties, and the reality that communication levels between the parties were clearly pivotal to the success of any attempt at shared parenting, can be seen as providing further support for the learned Federal Magistrate’s conclusions with respect to Mr P’s recommendations.

22. In fairness to Mr P, as a balanced reading of the relevant paragraph of his report, set out above, makes clear, Mr P himself anticipated, at least at the stage when he wrote his considered written report, the viability or otherwise of shared parenting to be dependent upon matters which the learned Federal Magistrate was always going to be in a better position to assess than was Mr P.

23. The learned Federal Magistrate was in a better position to reach conclusions as to the likely future level of communication between the parties than was Mr P and was, as the ultimate trier of fact, charged with that task (See Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705. His Honour may have come to the same conclusion as Mr P, but he was not obliged to. His Honour’s reasoning process with respect to communications having withstood the challenge made on behalf of the father, this complaint cannot succeed. .

24. Although not strictly necessary for the purpose of determining this challenge, it is perhaps worth briefly referring to statements of principle which clarify the function of expert opinion evidence, and the differing roles of the expert witness and the learned Federal Magistrate in the decision making process.

25. As the judgment of Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles (supra) makes clear, an expert opinion must be based on facts observed by the expert which are identified and admissibly proved by the expert or, as was potentially the case with Mr P’s report, proved by other admissible evidence.

26. Mr P’s report did not attempt to prove the facts upon which his expert opinion was based in relation to future communication levels. It may well be that his opinion was intuitively based, and not able to be the subject of any admissible evidence of the facts upon which that opinion was based. Mr P’s opinion was thus necessarily dependent for its acceptance upon there being admissible evidence, accepted by the learned Federal Magistrate, which provided an underpinning for his expert opinion.

27. For reasons which have previously been given in this appeal, the learned Federal Magistrate made findings of fact which did not provide an underpinning for Mr P’s expert opinion, thereby leaving the opinion unsupported in that critical respect.

.

1. In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 Branson J held that:

   To be admissible the evidence [of expert opinion] must…be relevant. It is the requirement of relevance…that…most immediately makes proof of the facts on which the opinion is based necessary. If those facts are not…proved, or substantially proved,…it is unlikely that the evidence, if accepted, could rationally affect the assessment of the probability of the existence of the fact in issue in proceeding to which the evidence is directed.

2. The Australian Law Reform Commission, in its 2005 report Uniform Evidence Law suggests two “orthodox propositions” with respect to expert evidence”, they being firstly that “the lower the correlation between the facts proved and the facts assumed, the less weight can be given to the expert opinion evidence; and secondly, “where the facts proved and the facts assumed are substantially different, the point might be reached where the opinion evidence carries so little weight that it is not probative, and hence inadmissible”.

Conclusion

1. No ground of appeal having been made out, the appeal must be dismissed. In those circumstances it becomes unnecessary to consider the application on behalf of the mother to adduce further evidence in support of the learned Federal Magistrate’s decision.

Costs

1. It was agreed that the parties have leave to make written submissions with respect to costs once the Court’s Judgment in the appeal was published.

I certify that the preceding one hundred and twenty two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date: