Pinton & Burnett
[2009] FamCAFC 7
•22 January 2009
FAMILY COURT OF AUSTRALIA
| PINTON & BURNETT | [2009] FamCAFC 7 |
| FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATE DECISION – PARENTING – Discretionary judgment - Whether the trial judge failed to give sufficient weight to the Family Report – Whether the trial judge failed to give adequate reasons for departing from the recommendations of the Family Report FAMILY LAW - EXPERT EVIDENCE – Adequacy of reasons in considering expert evidence – Lack of discernable path FAMILY LAW - COSTS – No order – Parties financial circumstance |
| Family Law Act 1975 (Cth) |
| Bennett and Bennett (1991) FLC 92-191 |
| APPELLANT: | MR PINTON |
| RESPONDENT: | MS BURNETT |
| FILE NUMBER: | BRM | 302 | of | 2006 |
| APPEAL NUMBER: | NA | 78 | of | 2007 |
| DATE DELIVERED: | 22 January 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 25 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 19 October 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 1011 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr R. Hamwood |
| SOLICITOR FOR THE APPELLANT: | Simonidis Shoebridge Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr S. McConnel |
| SOLICITOR FOR THE RESPONDENT: | Fairlie Legal Services |
Orders
The appeal is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Pinton & Burnett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 78 of 2007
File Number: BRM 302 of 2006
| MR PINTON |
Appellant
And
| MS BURNETT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from parenting orders made by Federal Magistrate Slack on 19 October 2007.
The appeal was heard by me as a single Judge of the Family Court pursuant to arrangements made under section 94AAA(3) of the Family Law Act 1975 (“the Act”).
This appeal centres on the parenting arrangements of the only child of the parties, T Pinton born July 2004, now aged 4, to be 5 in July.
The orders from which the appellant father appeals are contained in paragraph 9, providing a regime for the time the child has with the father:
Time with the other parent
(9)That the child is to spend time with (and/or live) and/or communicate with the Father as agreed between the parents and if they fail to agree then as follows:
(a) Until the end of July 2008:
(i)each Tuesday from 5:30pm until 7:30pm;
(ii)on Friday from 5:30pm until 2:00pm Saturday in Week 1; and
(iii)on Saturday from 9.00am until 5.00pm Sunday in Week 2;
(a) From July 2008 until the end of December 2008:
(i) each Tuesday from 5:30pm until 7:30pm
(ii)on Friday from 5:30pm until 2:00pm Saturday in Week 1; and
(iii)on Friday from 5:30pm until 5.00pm Sunday in Week 2;
(b) During 2009:
(i)on Thursday from 5:30pm until 8.00am Friday in Week 1; and
(ii)on Thursday from 5:30pm until 5.00pm Sunday in Week 2;
(iii)during 2009 the Father, at his election and upon giving the Mother 28 days’ notice, can extend the time in Week 2 so that that time concludes at 5.00pm Wednesday in the months of April, June, August, October and December;
(c)Order 9(a), (b), (c) and (d) may be suspended by the Mother upon giving 28 days’ notice to the Father for up to four (4) single weeks in each year to enable the Mother to have a holiday with the child;
Orders were also made for provision of time with each of the parents for Christmas and Boxing Day, the child’s birthday, Fathers Day and Mothers Day.
The general ground of appeal is that the trial judge erred in the exercise of his discretion. Specifically, that the trial judge did not give sufficient weight to the family report of Mr Trudinger, in making the parenting orders and also that the reasons for departing from the recommendations of the clinical psychologist contained in the Family Report were inadequate.
The Federal Magistrate ordered that Mr Trudinger be appointed a court expert as part of the process for resolving disputes “about the terms or operation of these orders”. Further, that apart from what was described as “emergent circumstances” the parties were to consult with Mr Trudinger before returning to court. (para 15).
The orders contained in paragraph 16 and 17 are of some significance:
(16)That during 2009, the parties shall attend Mr Trudinger or such other Family Dispute Resolution Practitioner as agreed to attempt to agree the parenting arrangements of the child beyond the end of 2009.
(17)That in the event that they are unable to agree after genuine attempts to reach an agreement, then the parties shall have liberty to apply to vary these Orders, provided that these Orders shall continue until further Order of the Court.
The father asks that should the appeal be allowed the matter be remitted for re-hearing.
Background
The essential facts of the case as they relate to the appeal are not the subject of controversy and can best be described by reference to the judgment:
7. The parties commenced a relationship […] October 2001 and separated […] June 2005. The mother contends that the relationship was not a significant one and that although they lived together they maintained separate bedrooms and separate financial dealings.
…
9.The parenting arrangements for [T] during the relationship were that the mother was predominantly responsible for the care of the child. There is a dispute between the parties about the father's involvement. It appears that he did work away for significant periods during the time that the parties were together after the birth of the child and the father acknowledges in the evidence that for a time after the birth of the child he was somewhat ambivalent about his involvement with the child and his future intended involvement with the child.
10.After the parties ended their relationship the child lived with the mother. The mother now lives with her parents at Noosaville in Queensland. She derives an income from a small business undertaking. She does creative works and works mainly at [the local] Markets on Saturdays.
11.The parties disagree about the level of involvement of the father in the child's life, but since at least the beginning of 2006, the father has been having regular contact with [T] and that has included some overnight time.
…
14.As I indicated, the mother resides with her parents at Noosaville. She intends to continue this arrangement.
15.Although during the course of the hearing she indicated an intention to change her working arrangements, I do not know when or how those arrangements will change. She will at least continue to work on Saturdays until the end of this year. She continues to receive support from her parents and, as I understand it, is not in any new relationship.
16.The father lives nearby to the mother. He works between Monday and Friday as a [technician]. His hours of work are between 8.30am and 5.00pm. He is not in any new relationship. As I understand it, he has a two bedroom unit and one of those bedrooms is established and set up for [T’s] needs.
Reasons for Judgment
In view of the submission that the reasons were inadequate it is necessary to set out substantial parts of the judgment.
A significant issue between the parties was the child’s health and diet. The Federal magistrate set out the evidence in some detail:
12.The child is not currently in any day care arrangement and the mother does not have any specific intentions in relation to that. The child has some speech delays that will need some ongoing therapy and rectification. The mother continues to breastfeed the child. There is a dispute between the parties in relation to the health of the child. The mother contends that the child is both lactose and wheat intolerant. She contends that the breast milk is necessary to maintain his calcium levels. The father does not agree that [T] has any food allergies and unfortunately in this matter, there was no medical evidence that assists me to determine that issue.
13.The material filed by the parents is of limited assistance to allow me to understand the health needs of the child. I gave some consideration as to whether I should adjourn this matter to receive a report from a paediatrician in relation to the needs of the child. Ultimately, I did not consider that adjourning the matter was necessary for me to determine the application.
…
34.The father contends that the mother does not support his relationship with the child. The child has maintained contact with the father for a significant period of time. The mother, for reasons that she gives in her material, is opposed to any significant extension of the time that the child spends with the father. She gives as reasons for that that she is concerned that the child suffers food allergies which the father will not accept; secondly, that it is not in his interests to be changing households as frequently as the father requests; and thirdly, she expresses concerns about the father's past commitment to the child and whether he has an intention to maintain his commitment to the child in the future.
35.As I indicated at the outset, there is an ongoing debate between the parties as to whether the child suffers food allergies. Of significance to me in this matter is that the parties disagree about that issue and do not seem to be able to communicate in a way that would allow them to receive information that might assist them both to understand whether the child does in fact have any particular difficulties. There is no medical evidence on this issue.
36.Nevertheless, it continues to be a source of conflict between the parents and, in my view, it will likely continue to be a source of conflict between the parents. The level of their ability to communicate is poor and this issue is testament to the fact that for whatever reason, they have an inability to put their conflict aside so that they can manage the issue about their son's health in a positive way that would ultimately allow them both to move forward in relation to their child's overall development.
…
41.Ultimately, I was not satisfied that the father deliberately ignores the mother's concerns about the child's health and I was not satisfied that the father's position with respect to the health of the child was unreasonable or that he would act in an unreasonable way with respect to not only the health issues with respect to the child, but also with respect to the mother's requests with respect to the child. Again, there is no significant medical evidence on this issue that assists me.
…
46.Whilst there is this ongoing issue about the child's health and how that is impacted as a result of the conflict between the parties nevertheless I am not satisfied that that issue of itself should not allow the relationship between the child and father to move forward and develop in an appropriate way. As I ultimately hope in most cases, the end of these proceedings will allow the parties to hopefully establish a more sensible ability to communicate with each other about this issue and to more sensibly manage this issue in the future.
The other disputes between the parties emanated from the history of the relationship and the father’s involvement with the child.
17.During the relationship the mother alleges that the father threatened to “kill her and the child” and that that occurred shortly after the parties ended their relationship. The mother also alleges that the father was verbally threatening and abusive during the relationship. The father denies these allegations. There is no dispute that the parties have a poor relationship and they unfortunately do not communicate in a positive way.
18.The mother alleges that the father continues to harbour a desire to reconcile and has a habit of following her from time to time. The mother, however, does not seek to constrain the father's relationship with the child and supports the collection of the child by the father from her home.
19.There was no cross-examination during the course of the hearing on these allegations and it is difficult for me to come to any conclusions about these matters. As I understand the way that the parties presented their respective cases they both acknowledge that it is appropriate for the child's relationship with the father to develop and continue to develop and that, as I indicated, the mother did not seek, apart from seeking to make submissions and give evidence about the needs of the child in terms of how frequently and the periods of time that he spent with his father, did not in any significant way seek any constraint on the father's relationship with the child such as supervised time or the like.
In relation to the various disputes the Federal Magistrate made the following findings:
37.The mother has experienced some ambivalence from the father in his relationship with his son in the past and it is fair to say that she does not wholeheartedly embrace the relationship between [T] and his father. Nevertheless, the mother has to date largely complied with orders and there have been no significant concerns expressed about [T's] transition for the purposes of spending time with his father.
38.Whilst I have had some concerns about the mother's capacity to promote and fully embrace the relationship between [T] and his father, I am nevertheless satisfied that she does understand the need for [T] to have a positive relationship with his father; that she has demonstrated a capacity to comply with orders of the Court; and the reasons that she gives in terms of wanting to move more slowly than the father in the development of this relationship are, in my view, not unreasonable and are understandable in the circumstances, particularly in light of the history of the parties' relationship with each other.
…
44.In summary, therefore, I am satisfied with respect to the following considerations. The mother, although she does not wholeheartedly embrace the child's relationship with the father, the factors associated with that are not entirely unreasonable and I am satisfied that she does see the value for the child in having a relationship with his father and will comply with the orders of the Court once she is aware of those orders.
45.I am satisfied that the father has a commitment to being involved with the ongoing care, welfare and development of his son. I am satisfied, as this was not really in dispute, that both parties have the capacity to provide for the child's daily needs.
…
47. In summary, therefore, I am satisfied with respect to the following considerations. The mother, although she does not wholeheartedly embrace the child's relationship with the father, the factors associated with that are not entirely unreasonable and I am satisfied that she does see the value for the child in having a relationship with his father and will comply with the orders of the Court once she is aware of those orders.
The Federal Magistrate explained why he did intend to apply the presumption of equal shared parental responsibility and said:
51.The parties seem to me to be committed to the care, welfare and development of the child. They seem to have similar aspirations for the child. There is no significant disagreement about long-term issues. They live in the same locality and are able to practically communicate.
52.Although there are significant communication difficulties there will be orders in place in relation to the child and what I intend by these orders ultimately is that the parties should come together at around the time that the child is to commence his school so that they can have some further discussions in relation to the arrangements for the child in the future.
After observing that the father did not ask for orders for equal time his Honour then considered what orders should be made referring to his conclusions in relation to the evidence and the evidence of Mr Trudinger.
The direct references in the judgment to the evidence of Mr Trudinger are contained in the following paragraphs:
23.In this matter there was a family report prepared by Mr Phillip Trudinger, Psychologist.
…
31.I find and accept that the child does have a close and loving relationship with both parents. He has a significant attachment to the mother's parents. It is likely that his closest attachment is to his mother and I accept Mr Trudinger's opinion that he derives his emotional security from her and that it is not in his interests to jeopardise that emotional security.
…
64.In that regard I have had consideration of the opinions expressed by Mr Trudinger. I am conscious of not wanting to undermine the emotional security that the child gains from his mother. The time that the child will spend with his father will be time at least every three or four days with no significant gap.
The essence of his Honour’s reasons are contained in the following paragraphs:
59.As a consequence, ultimately the orders I propose will be that the parties do come together during 2009 in an endeavour to discuss the future parenting arrangements and I propose that Mr Trudinger continue as the Court Expert in the matter to try to assist the parties to come to an agreement during 2009 as to the future arrangements for the child.
60.What I intend to do is to put into place arrangements for the child between now and that time and to give the parties the opportunity to try to agree in relation to the matter. If they are unable to agree then they will have liberty to apply back to the Court to vary the orders.
…
62.The orders that I will soon publish set out the orders that I propose for the child. It does involve an increase in the time that the child spends with the father.
63.The reasons that I have come to the orders that I have, and I acknowledge that they are different to the orders that are proposed by both parties, are that they will allow the child, in view of his age and level of development to spend time with and develop his relationship with his father in an appropriate way.
…
65.I am concerned about the number of changes that were originally proposed by the father. My orders will mean that at least until the end of July 2008 the father will spend time with the child each Tuesday from 5.30pm until 7.30pm, on Fridays from 5.30pm until 2.00pm Saturday in Week 1 and from Saturday 9.00am until Sunday 5.00pm in Week 2. That will mean the father will have time with the child each week overnight.
66.It will mean time on most weekends and, in my view, that meets the needs of the child at this time. That will increase from July 2008 such that the father will have two nights in Week 2.
67.In 2009 I intend to increase the time such that the father has four nights in each fortnight, but there will still be contact each week on Thursday night and then from Thursday to Sunday.
68.In coming to that position I do take account of the fact that that will mean that there will not be significant changes of household for the child on a weekly basis.
69.I am also conscious of the fact that these parties continue to have hostility towards each other.
70.I also take into account that the mother is quite anxious about the health of the child and this is a cause of continuing conflict between the parties.
71.The mother, in my view, is more likely to be supportive of the time if it proceeds relatively smoothly for her and, in my view, the orders that I intend to make will allow a regular transition for the child such that it will become part of his routine. It will increase over time and, in my view, will not unduly interfere with the mother's parenting and household and will not, as was raised by Mr Trudinger, affect or challenge the emotional security that the child derives from his mother at the present time.
Principles relating to appeals from discretionary judgments
Counsel for the father submitted there is a ground for reviewing the decision, as in House v The King (1936) 55 CLR 499, because the trial judge:
a)Did not give sufficient weight to the Family Report, dated 21 May 2007; and
b)Did not give adequate reasons for departing from the recommendations of the Family Report and the application of the father, in particular why the orders made by the Federal Magistrate were preferable to that suggested by Mr Trudinger.
The law in respect of appeals from a discretionary judgment is well established. A summary of the cases is contained in Krassas & Krassas [2005] FamCA 803 at 43-49:
43. In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J describes the appropriate level of restraint that an appellate court should exercise in respect of discretionary matters as follows:
There is a strong presumption in favour of the correctness of the decision appealed from and that that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.
44.It was clearly enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
45. In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
46.Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing Watt J’s discretionary decision consistent with these principles. If there is then, unless the result is plainly right notwithstanding an appellable error, per Gibbs J (as he then was) in De Winter v De Winter (1979) FLC 90-605 at 78,091, we are obliged to allow the appeal, set the orders aside and, if possible, substitute our own decision after considering the matter afresh, as was explained by Kirby J in AMS v AIF (1999) FLC 92-852, who said at 86-043:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
47.The original decision and orders will stand unless they are manifestly wrong or unjust even though no obvious legal or factual error can be identified. In Mallett v Mallett (1984) FLC 91-507 at 79,111 the Full Court said:
It is necessary for the Court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.
Disagreement only on matters of weight or a preference for a different result do not usually justify the reversal of a first instance discretionary judgment.
48.In the case of discretionary decisions, it is only where the effect of the orders exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere, per Brennan J in Norbis v Norbis (1986) FLC 91-712 at 75,178.
49.As some of the grounds of appeal attack the adequacy of his Honour’s reasons, it is appropriate that we refer to the following passage from the decision of the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266-267:
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.
In Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656, Gibbs CJ gave qualified support to the principles established by Pettitt v Dunkley. In Palmer & Ors v Clarke & Ors (1989) 19 NSWLR 158, the New South Wales Court of Appeal, consisting of Kirby P, Samuels and Priestley JJA, again held that a failure to give adequate reasons was an appellable error of law which, of itself, was sufficient to require a judgment to be set aside.
What did Mr Trudinger recommend?
It is submitted that the Federal Magistrate should have made orders consistent with those recommended by the family report of Mr Trudinger, allowing him to spend more time with the child. The report recommended incremental increases in time every six months. This would amount to five or six nights to be spent with the father by the time the child commences preparatory school, this year.
At the outset of the report (para 8) Mr Trudinger set out the questions to be addressed many of which were referred to in the judgment, albeit using different expressions.
In his report Mr Trudinger discussed the issues between the parties and in a similar vein to the Federal Magistrate said:
58.It does appear there are many historical issues and concerns which continue to hold weight and carry some emotional component for each of the parties. It is my opinion that many of the issues raised by the parents should not impact on the day to day care of [T], and the relationships each of the parents have with him. It is my opinion that each of the parents are overly and overtly preoccupied by perceived negative aspects of the parent, attempting to highlight those negative attributes in order to make the other “look” bad , and possibly negate any additional time either parent may have with [T].
As to the child’s health Mr Trudinger recommended an independent re-assessment:
65.It is my opinion Ms [Burnett’s] frustration towards Mr [Pinton] and his decision not to participate in her view that [T] has dietary intolerances is an artefact of her experiences of Mr [Pinton’s] lack of interest and input towards [T], and her need to be responsible for early decision making and care. It will be important for the parents now and into the future to be able to undertake cooperation with regard to health issues, child care issues and education issues. For example in the current issue of possible dietary difficulties, a full independent re-assessment of [T’s] diet and intolerances needs to be undertaken where both parents are equally involved.
Specifically the psychologist suggested in his report, dated 21 May 2007:
69.… In this particular Matter [sic] given [T’s] age and experiences to date with his father, it would be appropriate for there to be a progressive and graduated increase in the time and type of contact [T] spends with Mr [Pinton] in the coming two years, rather than moving to a shared situation immediately or even in the short term.
70. Children aged between 2 1/2 years to 5 years of age are more able to handle and cope with longer periods of time away from primary carers. However it is important to maintain time with a primary carer in order to reassure the child’s emotional security. Children of this age can spend 2-3 days with the other parent, allowing the child to experience more caretaking responsibilities from the other parent. As the child moves closer towards 5 years of age children can be away for half to full week contact visits. Telephone contact should occur frequently between the child and each of the parents, which allows the younger child to become aware that each parent is only a telephone call away. Children in this age range are best helped by having very predictable and standardised routines and care arrangements. Increases in time need to be progressed and introduced gradually, and routines, where possible should be shared across household. … (emphasis added)
71. In my opinion [T] is at an age where he can have overnight contact and visitation with his father. This has occurred in the past. There is nothing to indicate that should not recommence. In my opinion there should be some build up in the contact time [T] has with his father at one time before recommencing overnight contact. I would recommend some short period of time where [T] spends approximately 8 hours with Mr [Pinton], before adding overnight to the contact routine. Three to four visits of eight hours should take place before the addition of over night contact.
72. When overnight visitation commences, I would suggest lead in time of four hours contact prior to the overnight, with morning contact time until 10 or 11am. I would suggest fortnightly overnight contact as outlined above, and another contact day during the week following the overnight between Mr [Pinton] and [T]. After eight overnight contact visits, overnight contact could be extended to occur each week, and as well maintain contact periods of other days between Mr [Pinton] and [T]. It will be important for regular frequent contact to occur over the course of the next 12 months between Mr [Pinton] and [T]. Following a six month period of weekly overnight contact, I would recommend an addition of a second overnight contact on a fortnightly basis while maintaining one overnight in the alternate week.
73.From that point I recommend adding further over night contact to the fortnightly two night contact, to three nights and later four nights. Such contact is likely best to take place for Wednesday or Thursday afternoon through to Sunday afternoon or Monday morning, when [T] would return to his mother’s home.
74.By the commencement of [T’] Preparatory Year he could be having five to six overnight contact [sic] with Mr [Pinton] each fortnight, and he could be in a position for a consideration of 50-50 shared care arrangement during the following school year.
During the oral evidence of Mr Trudinger he was asked about the father’s proposal including that for this year that the child would be with the father six nights per fortnight. Mr Trudinger indicated he agreed with such a proposal.
Mr Trudinger also said that while ideally parents should agree, the arrangements could be reviewed by visits to him up to every six months. He emphasised the difficulty of making long term arrangements or orders especially for very young children.
The Federal Magistrate alerted Mr Trudinger to the concerns of the mother that on the father’s plans the child would be changing households frequently. Mr Trudinger conceded that moving between the households every two days could be disruptive but not necessarily.
Appellant’s submissions on the evidence of Mr Trudinger
In written submissions counsel for the father submits that the report by the psychologist and his examination in chief amounted to an opinion by him that:
9. … whilst he did not believe that it was best to make a long term Order concerning [T’s] care, he did agree with Counsel’s suggestion that the court could make an Order prescribing for [T] to spend equal time with the parties when he commenced Grade 1, with the operation of such Orders to be subject to agreement between the parties at the time, or if no agreement could be reached, the further Application to the court to be either party.
It was correctly submitted that in his cross-examination Mr Trudinger did not deviate from his recommendations as listed in his report of 21 May 2007.
Counsel for the father submitted that during the mother’s cross examination, she acknowledged support for the father’s time with the child increasing and that her only caveat was to ensure that the child coped with these increases as they occurred. (T/s page 26, lines 17-45) In my view, the reasons for judgment to which reference has been made extensively, demonstrate that his Honour understood the evidence of the mother.
It was also submitted:
19.Whilst his honour gave liberty to relist the matter, his Honour did not take account of the evidence of Mr Trudinger that it may be best to make an Order for the parties to share the care of [T] when he commenced school, with the interpretation of how the Order operated to be as agreed between the parties or determined by the court. Such an Order, it is submitted by the Appellant, would have been an Order which would least likely lead to further litigation in the matter.
I do not understand paragraph 74 of Mr Trudinger’s report to mean that such an order was one of his suggestions.
Respondent’s submissions on the evidence of Mr Trudinger
The respondent mother submitted that FM Slack, in making the orders, considered the best interests of the child and balanced the evidence presented before the court.
Further the mother submits that the parenting orders were within the discretion of the Federal Magistrate and cited CDJ v VAJ (1998) 197 CLR 172 where McHugh, Gummow and Callinan JJ said in relation to such orders, at page 218-219:
…The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. …
And Kirby J further commented at page 230-231:
Discretionary and evaluative decisions
A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified. (footnotes omitted)
I would add the following paragraphs of Kirby J’s judgment:
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self-restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationship of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationship with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations. (footnotes omitted)
Counsel for the mother, in her summary of argument submits that the weight to be attributed to the family report in determining the child’s best interests is also discretionary and further, that no ‘special weight’ should be given to the psychologist’s evidence.
6. The question of weight to be given to the Family Report prepared by Mr Trudinger dated 21 May 2007, depends not only on the contents of the report itself and the evidence of the report writer in cross-examination (together “Mr Trudinger’s evidence”), but also the weight to be given to other relevant evidence of what is in the best interests of the child in the context of considering equal or substantial and significant time with each parent.
7.There is no presumption that the recommendations of the Family Report must be followed. To do so would imply that no other evidence is relevant in determining what is in the child’s best interests with regard to orders for time spent with parents. This is clearly not the case. The court must exercise its discretion in considering all of the evidence and giving it the weight it considers appropriate. His honour sets out his conclusions relating to the best interests of the child, based on the evidence before him, at paragraphs 26 to 47 of his honour’s Reasons for Judgment dated 19 October 2007. In reaching those conclusions reference has been made to Mr Trudinger’s evidence.
Counsel for the mother at the hearing emphasised that it was within the ambit of the trial judge’s discretion to look at the evidence before him and then come to a decision about how to utilise it in making his decision. Without reference to any authority it was submitted that it is unnecessary to set out extracts of the report and then set out specific reasons for rejecting it.
Adequacy of reasons of the trial judge
The father submits that the trial judge did not give adequate reasons for why orders were made which departed from the recommendations contained within the family report. To some extent these arguments are the same as those referred to already however the general question of sufficient reasons was argued separately.
The matters to be considered in relation to adequacy of reasons are well settled and summarised in Crispen & Crispen [2008] FamCAFC 14:
11.Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274:
… A fact is found in a particular case if the judge is satisfied that it is so. … The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective considerations. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a judge should or can set forth the reasoning process he has followed from one fact to another.
The Full Court of this Court said in A v J (1995) FLC 92-619 at 82,232:
It is important to guard against too zealous an application of the requirement to give reasons, particularly in circumstances where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to a finding of a material or an ultimate fact: see Soulemezis per Mahoney JA.
In Strbak v Newton (NSWCA,18 July 1989, unreported) Samuels JA (with Gleeson CJ and Priestly JA agreeing) said:
What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.
In the present case, the reasons are certainly succinct; but that is often to be regarded as a judicial virtue…
Giles JA said in Athens & Anor v Randwick City Council [2002] NSWCA 83:
The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning: indeed, in the decision-making process there are often judgmental steps which can only be stated without elaboration…
In Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447 at [62] Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The Full Court of this Court said in Bennett and Bennett (1991) FLC 92-191 at 78, 267:
…In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached. (emphasis added).
Is it correct to say that if the reasons are inadequate then the judgment itself may be incorrect and should be reviewed. In De Winter v De Winter (1979) FLC 90-605 the High Court per Gibbs at 78,092 says:
A discretionary judgment which has proceeded upon a mistake of fact should not be upheld simply because the order made was well within the range of discretion of the primary judge.
…
But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily by upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
Chief Justice Evatt at drew upon the judgment of House v R (1936) 55 CLR 499 at 504-5:
The principles which should govern an appellant court hearing an appeal against an exercise of discretion are well settled.
“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. (at p588)
Counsel for the father submitted that there was no discernable pathway in the judgment of the trial judge indicating why his orders were more appropriate than those sought by the father or why the father’s proposed orders were not in the best interests of the child.
Counsel submitted that the appellant’s argument in respect of the inadequacy of reasons ground was best stated by the editors of CCH Family Law in their headnote in the matter of Bennett and Bennett (1991) FLC 92-191 at 78, 253:
Failure to give adequate reasons
(l) Her Honour’s reasons for making the orders which she did were plainly inadequate. 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.
Reasons need not be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial. In the present case her Honour’s reasons were voluminous and carefully traversed the evidence, contained her findings about disputed questions of fact, and her assessment of the relative strengths and weaknesses of the parties. The defect in her judgment was that she then moved directly to a conclusion without indicating the process of reasoning which led her to that conclusion. 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 was done.
In my view the reasons for his Honours orders can easily be extracted from the judgment and are as follows:
·The conflict between the parents about the child’s health and diet (para 70) and poor communication between the parents (para 17, 36 & 69);
·The issue about the child’s health should not impede the child’s relationship with the father (para 46);
·The mother’s reasons for wanting the progress of time with the father to move more slowly was found to be not unreasonable in the circumstances of the history of the parties relationship (para 38,44 & 47);
·The findings in relation to the child’s attachment to the parents and Mr Trudinger’s opinion about the child’s relationship with each of the parents (para 31 & 64);
·The orders “will allow the child, in view of his age and level of development to spend time with and develop his relationship with his father in an appropriate way” (para 63);
·To avoid frequent changes (para 65 & 68).
To the extent that the appeal relies on an absence of reasons that ground is rejected.
Conclusions
Apart from the general question of adequacy of reasons with which I have dealt, the questions raised by the appeal are:
1.Whether the Federal Magistrate sufficiently explained why he did not adopt the suggestions of Mr Trudinger and inferentially the father’s case; and
2.Whether the orders made by the Federal Magistrate were outside his discretion.
To some extent the answer to these questions involves the same considerations.
Analysing the evidence and the reasons for judgment it can be seen that in relation to the current period (about which the appeal focussed) Mr Trudinger recommended five to six nights per fortnight with the father whereas the orders provided for one night in the first week and three nights in the second week. There was also provision for a further night on notice. No orders were made for 2010 although it was also recommended that the parties work towards equal time when the child commenced school.
A central question in this matter is whether the trial Judge should have departed from the expert evidence of the family consultant.
Although neither counsel referred to any case authorities on this issue a consideration of the following cases are instructive.
The matter of Newlands v Newlands (2007) 37 FamLR 103 was an appeal against property and parenting orders. The parties had two children and shared their care for about 16 months after separation.
The trial judge made orders that both children, aged 6 and 3 years, live with the mother and that they spend alternate weekends, one overnight a fortnight and half of the school holidays and special occasions with their father.
A ground of appeal was that the trial judge had erred in failing to take into account the recommendation of the Court Counsellor. The orders made were not consistent with the orders sought by the father at trial, nor with the recommendations of the family consultant. The family consultant’s report recommended that the shared care arrangement continue.
On appeal the Full Court said at paragraphs 97-101 of their reasons:
[97] The trial judge briefly mentioned the Family Report at paragraph 14 of her reasons when she noted the report disclosed the children had a close attachment to each of their parents and an affectionate relationship with the paternal grandparents. Her Honour did not otherwise discuss the Family Report, the family consultant’s evidence or her recommendations.
[98] The weight and importance to be attached to the evidence of a family consultant is subject of well settled authority. Whilst ultimately the decision of what is in the best interest of a particular child is that of the trial Judge who has the benefit of seeing all of the witnesses and considering all of the evidence, the evidence of, and important recommendations made by, a family consultant require careful examination by the trial judge: (see N and N [2004] FamCA 706 and L and L [2002] FamCA 537).
[99] In this case the trial judge made orders in different terms to those recommended by the family consultant in circumstances where an existing arrangement which appeared to be working well for the children had been in place for approximately 16 months at the date of the hearing. The trial judge failed to analyse the family consultant’s evidence and recommendations and give reasons why she proposed to reject her recommendations.
[100] We are satisfied the trial judge’s failure to examine, and give reasons for her rejection of the family consultant’s evidence constitutes an appealable error.
In the matter of N v N [2004] FamCA 706 (Unreported) referred to by the Full Court in Newlands v Newlands (supra), Kay, Warnick and O’Ryan JJ heard an appeal where orders departed from recommendations in a report.
In that matter the parties had three children all of whom lived with the mother since separation and spent weekends with their father, seeing him regularly throughout the week.
At the interim hearing the mother wished to reduce the amount of time the children spent with their father to once a fortnight and the father proposed orders that amounted to equal shared parenting.
A family report was prepared by a psychologist who assessed the relationships that the children had with each of their parents.
The appeal was allowed. Kay J said, Warnick and O’Ryan JJ agreeing in separate reasons:
[32] In the circumstances where his Honour was faced with an established routine, a successful routine and the recommendations of the psychologist, plus the confines that were put into this family because of the husband’s working obligations, it seems to me that it was inadequate to say simply in general principles that children require a fixed and firm home base and where there is high conflict I should provide as little disruption to the children’s daily lives as possible.
[33] These are no doubt matters that are properly weighed up in the circumstances of a case but need to be weighed against other matters and where there is to be change from an existing circumstance and the failure to follow the recommendation of the psychologist in the circumstances, at least it needs proper explanation and almost very strong circumstances would exist to reach some other conclusion.
In this appeal, it is the appellant father’s concern that the reasons of the trial judge were not adequate in explaining a departure from the recommendations of the family consultant. The facts of this case and the orders sought by each party certainly warranted a careful consideration of the recommendations made by Mr Trudinger.
In my view, the Federal Magistrate clearly understood the proposals of each of the parties and the evidence of Mr Trudinger. The evidence of the parties was described at length as set out in this judgment. The Federal Magistrate carefully considered the various proposals and for the reasons summarised at paragraph 43 of this judgment, made the orders.
This was not a case where there were existing arrangements working well and for no apparent reason the time with one parent was reduced.
It was not necessary for the Federal Magistrate to say that Mr Trudinger was wrong. Instead, in placing emphasis on the matters to which I have referred he ordered less time than proposed by the expert. In addition, the Federal Magistrate put in place a mechanism to deal with future disputes including in 2009 and thereafter.
No doubt many things have happened since October 2007. Counsel informed me that there have been some contravention proceedings which were successful against the mother.
I would observe that the terms of the orders allow the parties to return to court this year should the parents be unable to resolve their differences with the assistance of Mr Trudinger. An application may be made to vary the orders which are applicable for this year and to ask for orders beyond 2009.
There being no discernible error made by the Federal Magistrate the appeal is dismissed.
Costs
At the conclusion of the submissions in relation to the appeal counsel made submissions regarding costs.
Counsel for the respondent asked for a certificate even if the appeal is dismissed. He described the mother’s limited financial circumstances.
The appellant is employed and has a modest income but no assets. The respondent was legally aided.
Although the appeal has been unsuccessful there are no features which would attract consideration of an order for costs.
Each party should pay their own costs.
I certify that the preceding Sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 22.01.09
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