PJC & MHC
[2008] FamCAFC 203
•16 December 2008
FAMILY COURT OF AUSTRALIA
| PJC & MHC | [2008] FamCAFC 203 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Orders made by Federal Magistrate in 2006 after the operation of Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced – Father appealed and appeal allowed – Remitted to the Federal Magistrate for the application to the facts as found to the correct law– Federal Magistrate made orders dismissing both the father’s and mother’s applications having the effect that earlier consent orders remained the operative orders – Father appealed the dismissal of his application – Whether a miscarriage of the Federal Magistrate’s exercise of discretion – Whether the Federal Magistrate failed to give any weight or any proper weight to the evidence before him of the relevant factors under the family law legislation – Whether the Federal Magistrate failed to have any or any proper regard to the best interests of the children on the evidence before him – Whether the Federal Magistrate failed or refused to have regard to relevant evidence, by failing to or refusing to appoint a single court expert to report as to the children’s best interests – Whether the Federal Magistrate failed to have regard to relevant evidence of the best interests of the children and had regard to irrelevant evidence and errors of fact in determining the best interests of the children – Appeal dismissed – Appellant to pay the respondent’s costs of and incidental to the appeal FAMILY LAW - APPEAL – From decision of Federal Magistrate – Application to adduce further evidence – The father sought to adduce further evidence in the appeal in relation to Christmas School holidays, school and health issues in relation to the children and that in the mother’s household there had been violent treatment of the children – The mother sought in her response that the application be dismissed – Respective considerations of CDJ and VAJ (1988) FLC 92-828 – Application rejected by majority of Full Court 2:1 |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| CDJ & VAJ(No 1) (1998) FLC 92-828 Goode & Goode (2006) FLC 93-286 Rice and Asplund (1979) FLC 90-725 |
| APPELLANT: | PJC |
| RESPONDENT: | MHC |
| FILE NUMBER: | SYM | 4265 | of | 2002 |
| APPEAL NUMBER: | NA | 45 | of | 2007 |
| DATE DELIVERED: | 16 December 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, May & Boland JJ |
| HEARING DATE: | 6 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 June 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 371 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Mr Cooper |
| SOLICITORS FOR THE RESPONDENT: | Barry & Nilsson Lawyers |
Orders
That the appeal be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym PJC & MHC is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 45 of 2007
File Number: SYM 4265 of 2002
| PJC |
Appellant
And
| MHC |
Respondent
REASONS FOR JUDGMENT
WARNICK AND BOLAND JJ:
We have had the advantage of reading in draft the reasons of May J. Save for her Honour’s treatment of the application by the father (appellant) to adduce further evidence, we agree with her Honour’s reasoning in respect of the other grounds and arguments raised. However, since the admission of the further evidence which May J would permit is the basis upon which her Honour would allow the appeal, the effect of our contrary opinion is that we would disallow the appeal.
The further evidence which the father sought to adduce was, in the words of May J “…in relation to the children being excessively disciplined on various dates commencing on 9 August 2007.” We would reject the application to adduce that further evidence, for these reasons:
(i)the allegations contained in the further evidence depend upon information said by the father to come from statements made to him by one or other of the children;
(ii)some allegations have been reported to a “Child Safety Service Centre”. There is no evidence from that Centre put forward;
(iii)the “allegations” are not new, in the sense that allegations of their nature have not only arisen since the trial before Lindsay FM in mid-2006. The incidents described in paragraph 6 of the father’s affidavit containing the further evidence were said by the father to have been the latest in “abusive incidents of this kind” which “have occurred on a regular basis since at least 2004”;
(iv)as May J points out, (paragraph 34) the hearing leading to the judgment appealed was limited by the terms of remission in Warnick J’s order of 17 October 2006, to the application of the law to the facts as found by the Federal Magistrate in July 2006. However, in our view, nothing of relevance to the further evidence question flows from that limitation, because the father was not so limited in what he put before the learned Magistrate in the hearing in mid-2006, when all the factual findings, upon which the orders appealed were based, were made. Of the evidence leading to those findings, in his reasons for the orders now appealed, Lindsay FM said:
I heard the father’s evidence about occasions when he suggested the children had reported inappropriate physical discipline in the mother’s household and I did not regard it as reliable.
Later, the Federal Magistrate referred to a conclusion reached in the mid-2006 decision that in respect of matters relating to the children’s welfare, the father had a “general disposition to calibrate too finely, perhaps even obsessively”; and
(v)in our view, contrary to that expressed by May J, rather than an approach which may avoid the application, to any further “case” which the father seeks to mount, of the principle in Rice & Asplund (1979) FLC 90-725 we see no reason why, if invoked, unfettered consideration to the application of that principle should not be given.
In our view, rejection of the request to adduce further evidence is consistent with the following passage from the judgment of McHugh, Gummow and Callinan JJ in CDJ and VAJ (1988) FLC 92-828 (We have emphasised the portions which we think apposite to the circumstances here):
150.In some exceptional cases — those concerned with allegations of physical or psychological abuse of a child are an example — it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal. However, assuming such cases are an exception to the general rule, they are quite different from cases where there is merely a difference of opinion as to whether the child's best interests require him or her to be in the care of one parent rather than the other.
We would dismiss the appeal and order the father to pay the mother's costs. Despite material and submissions from the father showing a marked disparity in the financial circumstances of the parties, we consider the nature of the proceedings and result calls for a costs order.
May J:
Introduction
The parties in this appeal have children who were respectively less than four and a little over a year old when the parents separated on 1 May 2001. Since 2002 the parents have been litigating in the Family Court and the Federal Magistrates Court.
This appeal by the father relates to orders made by a Federal Magistrate dismissing both the father’s and mother’s applications having the effect that orders made by consent in June 2004 remain the operative orders.
Background
After a trial in June, on 5 July 2006, Federal Magistrate Lindsay made final orders relating to the parties’ children, “M”, born in November 1997 and “H”, born in February 2000. On 1 July 2006 the operation of Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced. The father appealed. The first ground of that appeal was:
1.The Federal Magistrate failed to apply the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006.
The appeal in relation to those orders was heard by Warnick J, his Honour sat as a single judge. Reasons were delivered on 17 October 2006 and the appeal was allowed. Orders were made including:
3.That the applications of the father upon which the orders set aside were made be remitted to Federal Magistrate Lindsay, on the facts as found by him in accordance with his reasons for judgment delivered 5 July 2006, for determination according to law.
Federal Magistrate Lindsay received written submissions from each of the parties. Those submissions raised multiple issues. The Federal Magistrate also heard further oral submissions on 19 March 2007. The trial judge delivered his reasons for judgment on 14 June 2007 and ordered as follows:
(1)The father’s application for variation of the orders of 25 June 2004 contained in his Further Amended Application of 7 June 2006, in his Amended Application of 2 June 2006 or in his Application of 13 July 2005 does stand dismissed.
(2)The mother’s application for orders in relation to the schooling of the children [M] born [in] November 1997 and [H] born [in] February 2000 contained in her Amended Response filed on 10 May 2006 does stand dismissed.
(3)The father’s oral application for the preparation of a family assessment report directed to the wishes of the children does stand dismissed.
It is from these orders that the present appeal by the father arises. The mother did not cross-appeal.
The father’s grounds of appeal are as follows:
1.The Federal Magistrate failed to give any weight or any proper weight to the evidence before him of the relevant factors either under the Family Law Act 1975 and/or the Family Law Amendment (Shared Parental Responsibility) Act 2006.
2.The Federal magistrate failed to have any or any proper regard to the best interests of the children, on the evidence before him.
3.The Federal Magistrate failed or refused to have regard to relevant evidence, by failing to or refusing to appoint a single court expert to report as to the children’s best interests.
4.The Federal Magistrate failed to have regard to relevant evidence of the best interests of the children, and had regard to irrelevant evidence and factual error in determining the best interests of the children.
To appreciate the arguments of the father now agitated, I also set out the orders the father seeks should the appeal be allowed and the court re-exercise the discretion of the Federal Magistrate:
1. (a) That the children reside with the parties on an equal shared time, one week on, one week off basis.
(b)That in the alternative, following non-contact weekends the children reside with the Applicant from end of school at 3pm on Monday until the commencement of school at 9am on Tuesday; and that during contact weekends the children continue to reside with the Applicant from 3pm on Sunday until the commencement of school at 9am on Monday.
2.That the parties do not physically chastise or cause or permit others to physically chastise the children.
3.That failing agreement the children shall reside with the Applicant for the first half of the summer school holidays in even numbered years and for the second half in odd numbered years.
In asserting that the discretion of the Federal Magistrate miscarried, the issues raised by the father, who appeared for himself, and by the solicitor for the mother in the course of the hearing of the appeal were that in dismissing the parties’ applications:
1)No provision was made for the children to have time with the father on Tuesdays;
2)The trial judge should have ordered a family report to ascertain the views of the children about Tuesday night contact. If I accepted the father’s further evidence application, the report should extend to issues relevant to allegations by the father about family violence. Associated with those allegations the father submitted that the existing order should have been altered to prevent any form of physical chastisement;
3)Christmas holiday time with the father was not adjusted to make provision for overseas visits to family (the father did not challenge the Federal Magistrate’s dismissal of his application for immediate “compensatory” overseas contact);
It seems that the school the children attend remains an issue, however the mother’s application before the Federal Magistrate was dismissed.
As I have already mentioned, the history of the matter is complicated and although it appears cumbersome it is necessary to set out some of the history to appreciate the arguments raised in the appeal. The orders in relation to the children at the time of the trial were those made by consent dated 28 June 2004. (Appeal Book 128) The relevant orders then provided as follows:
1. That the children [M] born [in] November 1997 and [H] born [in] February 2000 hereinafter referred to as “The children” reside with the Respondent wife other than as provided in orders 4 and 6 hereof.
2. That the parties have joint parental responsibility for the long term care, welfare and development of the children.
3.That commencing the 10 July 2004, the wife be permitted to relocate the children’s residence to South East Queensland.
4. That once the wife relocates to South East Queensland the children shall reside with the husband as follows:
(a) every second weekend by collecting them at the conclusion of school on Thursday and returning them to the wife at 3.00 pm the following Sunday; with the first period of residence in Queensland to commence on the 22 July 2004
(b) in the week in which he will not have residence over the weekend, by collecting them at the conclusion of school on Thursday afternoon and delivering them to school at the commencement of school on Friday with the first period of residence in Queensland to commence on the 29 July 2004;
(c) one half of all school holidays;
…
(f)until the conclusion of the school year in 2004:
(i)with [H] each Tuesday by collecting him from pre school at 11.30 am and returning him to the wife at 2.30 pm; with the first period in Queensland to commence on the 20 July 2004
(ii) with [M] each Tuesday by collecting him from school at 3.00 pm and returning him to the wife at 7.00pm; with the first period in Queensland to commence on the 20 July 2004
5That within 6 weeks of the commencement of the 2005 school term the parties do all acts and things necessary to have a meeting with Doctor [W] and following such meetings request Dr [W] to make a recommendation in respect of the continuation, amendment, or otherwise of the Tuesday contact referred to in Order 4(f)(i) and (ii). That for the purposes of the parties compliance with this order, the wife and the husband shall share the costs of Doctor [W] in connection with the said interview(s) and recommendations as referred to above.
6. In relation to the school holidays, excluding the Christmas School holiday, failing agreement the children shall reside with the husband as follows:
(a) for the first half of the school holidays in even numbered years and the second half in odd numbered years;
(b)in relation to the Christmas school holidays contact shall be as follows:
(i) in even numbered years at 10.00am on the second day of school holidays until 10.00am on the day being one half of the period from the second day of school holidays to 18 December, from 10.00am on 18 December to 3.00 pm on 25 December and from 12.00 noon on 1 January to 10.00am on the day representing one half of the period from 1 January to the day before commencement of school;
(ii)in odd numbered years the wife shall have contact as provided for the husband in order 6(b)(i) above and the husband shall have contact for the balance of the holidays;
(iii) From 2005, the wife shall be entitled on giving the husband one months notice to have contact with the children from 10.00am on 22 December to a day representing one half of the total school holidays in which case the husband’s contact shall be:
(A) from 10.00am on the second day of the school holidays to 10.00am on 22 December;
(B) from the day of the conclusion of the wife’s contact pursuant to (A) above until the day before commencement of school in term 1.
(C)This right may not be exercised by the wife in consecutive years.
(iv) From 2005, the husband shall be entitled on giving the wife one months notice to have contact with the children from 10.00am on 22 December to a day representing one half of the total school holidays in which case the wife’s contact shall be:
(A) from 10.00am on the second day of the school holidays to 10.00am on 22 December;
(B) from the day of the conclusion of the husband’s contact pursuant to (A) above until the day before commencement of school in term 1.
(C)This right may not be exercised by the husband in consecutive years.
…
10. That the parties comply with the dietary requirements for [M] as advised from time to time by [M]’s dietician or other treating physician.
11. That neither party shall use excessive discipline upon the children or cause or permit any other person to use excessive discipline.
The application, which was resolved by these consent orders, was an application by the mother to relocate from Sydney to Queensland. Both parties were represented at the time, and had the benefit of an expert report (pursuant to Order 30A of the Family Law Rules 1984) of Dr R W dated 20 May 2004.
The effect of the orders made on 14 June 2007 was that the consent orders remained unchanged and no further provision was made for time on Tuesdays.
Application to adduce further evidence
On 15 February 2008 the father filed an Application in a Case seeking to adduce further evidence in the appeal in relation to Christmas School holidays, school and health issues in relation to the children and that in the mother’s household there had been violent treatment of the children. The mother asked in her response filed 27 February 2008 that the application be dismissed.
Section 93A(2) confers on the court an express power to receive further evidence upon questions of fact. In CDJ & VAJ(No 1) (1998) FLC 92-828 the High Court said of the admission of the further evidence under the heading of s 93A(2) at para 104:
In the exercise of the discretion conferred by a power such as s 93A(2) the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.
And in par 109:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellant procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
And in par 111, and I quote in part from that paragraph:
… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
I will deal with the application and the evidence as these discrete topics are dealt with in this judgment.
The Judgment
The judgment of the Federal Magistrate is provided under headings relating to the issues as presented by the appellant. The essence of the submissions in each case was that the Federal Magistrate in not making the orders as asked by the father failed to make orders in the best interests of the children and failed to pay proper regard to the evidence.
Tuesday
It can be seen from the consent orders, especially paragraph 5 that it was expected that Dr W would make recommendations in relation to Tuesday. The only report of Dr W is dated 20 May 2004 obtained prior to the consent order. No further report or recommendations were obtained as envisaged by the order. The transcript of the hearing before the Federal Magistrate on 19 March 2007 reveals a discussion about Tuesdays and the father’s application for equal time. The father did not complain that no further report had been obtained from Dr W.
The only evidence of Dr W was that before the Federal Magistrate in June the previous year attached to the father’s affidavit filed 11 May 2006 being part of the report. The four pages annexed the recommendations as follows:
Subject to the father’s relocation in an area of proximity to the mother’s new residence ( as he agreed to in discussions with me )
1. That the arrangement agreed to by the parties stand : - viz -
(a)For the children to continue to reside with the mother and [Mr K]
(b) For the father to have contact :
(i) with both [M] and [H] each Thursday night
(ii)alternate weekends from Friday afternoon, Saturday, returning Sunday 3 p.m.
(iii) with [H] Tuesdays 11.30 until 2.30
(iv) with [M] Tuesdays at 3 until 7p.m
After the consent orders were made the parties saw Dr W on 8 February 2005 (Appeal Book pp. 243 & 244). They disagreed about the outcome of the consultation with Dr W. The mother asserted he made no further recommendations beyond telling the parties that they should agree and failing agreement return to court. The father asserted Dr W advised them to make a further appointment.
Prior to dealing with the question of Tuesday directly, the Federal Magistrate asked the question in paragraph 23 of his judgment:
23.Is the order one which provides for equal shared parental responsibility? “Equal shared parental responsibility” is not a phrase that is defined in the Act. So we must look to find whether the order has the characteristics of an order to which such description applies. …
His Honour said in relation to the father’s application
27.I find, then, that the existing order in relation to joint parental responsibility is an order that provides for the child’s parents to have equal shared parental responsibility for the child. That being the case, I must give consideration to the matters prescribed by s.65DAA. This is a curious position. The trial proceeded before me on certain specific areas of controversy (which I will detail shortly), notably whether or not there should be a re-introduction of a period of time for the children to live with the father on Tuesday evenings. Notwithstanding that, because historically the parties have agreed to orders which have the effect of orders for equal shared parental responsibility I must consider whether or not to make an order for equal time, which was not an order sought by either party at the trial before me.
28.Complicating this issue further is the father’s contention that he now seeks an order for equal share [sic] parental responsibility. I have doubts as to whether, as a matter of fact, he has actually sought such an order even now. Paragraph 18 of his written submission suggests that he has. He says:
Contrary to the respondent’s submission, there is an application for equal contact time.
But he could not, when asked on 19 March 2007 at the hearing at which oral submissions were taken, take me to any part of the submissions or the evidence which raised that issue or which was directed to such issue.
29.In any event, he conceded that it had not been agitated before me at the trial last year. The remitter confines me to those factual findings made at that hearing in accordance with my reasons for judgment.
…
32.I do not think that an order for equal time would be in their best interests. The evidence taken at the trial established to my satisfaction that the respective households of the parents were in conflict over a range of issues (see my findings at para. [42]). They had different attitudes as to whether there should be any physical discipline of the children at all. They had different perspectives on the kind of education the children should be provided. The father was suspicious of the mother’s commitment to the exercise and dietary regimes in relation to the child [M]. In paras.[40] and [41] of his written submission the father acknowledges the various issues giving rise to conflict between the households. He contends that the issues with respect to [M]’s diet and exercise are life and death issues and that the parties are in fundamental disagreement about them. Nevertheless, he says that all couples dispute about some matters. He says that the volume and content of the email communications between the parties is a reflection of his desire to quarantine the discussion of such issues from the children.
33.In fact, the father’s view is that the difficulties in the relationship have their root in the mother’s nature. He says that she is “melodramatic and agonistic by nature” (see para.[49] of his written submission).
34.These are not the circumstances in which to introduce an equal time regime. The father continues to believe that the continuing absence of Tuesday night time with the children is a matter that is gravely impacting upon the welfare of the boys and the father. A good summary of his assessment of the magnitude of this issue to be found in para.[23] of his written submissions:
I have alluded to my sons’ melancholia and constant questioning of why Tuesday contact ended, their loss of self-esteem and self-confidence (predicted by Dr [W] in his Order30A (sic) report), my eldest son’s ongoing visits to school counsellors, the fact that he doesn’t sleep well at his mother’s house, has developed black shadows under his eyes, suffers from migraine, has lost his natural lustre, seeks out comfort foods, keeps insisting that he must speak with the judge directly. I am at a loss to know what more I should add to this sorry litany in which my children are clearly suffering and suffering unnecessarily. If it is a question of my credibility in describing these manifestations, a new family report is warranted.
35.I agree with the father that it is simplifying the nature of the conflict between the parties to suggest that it can be reduced only by reducing the amount of interface between the two households. Certainly the reduction of the number of occasions for exchange of the children was a matter relied upon in my judgment for not re-introducing the Tuesday night arrangements. But the issue is more fundamental than simply conflict at handover. It was clear from the evidence (and I am fortified in this conclusion by the father’s written submissions) that the parties disagree at very fundamental levels about the parenting of the boys. There is a high level of mutual distrust and suspicion. The father is of the view that the children are emotionally bullied in the mother’s household and that she has behaved in ways since separation designed to make the children feel uncomfortable in the father’s presence.
The Federal Magistrate then found that the terms of the existing order (without Tuesdays) would allow the father to have a “meaningful relationship” with the children (para 40) and provided “substantial and significant time to the father” (para 43). The Federal Magistrate then observed:
44.The principle area of dispute at trial was the issue of Tuesday night time with the boys being spent by the father. Time with each of the boys on Tuesdays was a matter that was dealt with in the orders made by consent in the Family Court on 28 June 2004. Essentially, he spent three hours with [H] and four hours with [M] on the Tuesday of each week but the order was expressed to operate only until the conclusion of the 2004 school year. The parties were then to meet with a Dr [W] (“within six weeks of the commencement of the 2005 school term”) and Dr [W] was to make a “recommendation” with respect to Tuesday contact. The order is ambiguous and imprecise. For that reason the submission of the mother’s counsel at the trial that the principle expressed in cases such as Rice v Asplund (1979) FLC 90-725 and King & Finneran (2001) FamCA 344 applied to the father’s application before me to re-open the consent orders, was rejected.
45.I found at the trial that Dr [W], who to make matters worse did not provide a written report, did not make a recommendation in favour of ongoing Tuesday contact. Other than that, it was unclear what he did recommend.
46.The parties persevered with the Tuesday contact but on a fortnightly basis for some time between February 2005 and either May or July 2005. The parties disagreed about that latter date.
47.I summarised the concerns of the mother in relation to the Tuesday interaction at para.[30] of my judgment. I was very far from accepting all of the complaints of the mother (see para.[31]) but even allowing for exaggeration on her part there were real and not imaginary problems relating to such matters as the father’s failure to ensure the children attended their regular extra-curricular activities, for example. Many of her complaints were really general complaints about the impact on the children of the father’s attitude to her and the level of disputation between them and the Tuesday time was in reality from her point of view simply an extended opportunity for these problems to manifest themselves.
48.At the trial and in accordance with the former provisions of Part VII of the Act and in particular s.68F(2), as it then stood, I found that the restoration of Tuesday time was not in the best interests of the children. That matter is addressed at paras.[23] to [48] (inclusive) of my judgment.
…
52.The father’s written submissions have obliged me to re-consider the appropriateness of my conclusions at the trial about the weight to be given to the issue of the conflict between the parties in deciding whether Tuesday time should be re-introduced. The father properly makes the point that residual hostility between the parties should not in itself provide the basis for a reduction of time spent by one parent but by the time of trial before me Tuesday contact had not been occurring for approximately twelve months and it is now approximately two years since it occurred. It was not a case of reduction of time, so much as extension of time. Secondly, the reduction of interface between the households was not designed solely to address conflict at handover but to minimise the children having to experience an adjustment between two households who were in such fundamental disagreement about the parenting of the children and who were mutually mistrustful and suspicious. It should be readily acknowledged that no matter how carefully the evidence is harkened to, the making of a finding such as whether extension of time spent by a parent would give rise to adjustment difficulties on the part of children is always an imperfect exercise. Inferences are drawn and findings made about important matters such as these having regard to the evidence but there is always an element of prognostication involved. It is clear that I had misgivings, given all I knew about the mother and father’s attitude towards each other and their disagreements about the parenting of the children, about the children having to adjust to life within what I described as “disparate” households. The written submissions of the father, and especially those parts that I have highlighted when considering the issue of equal time herein, only fortify me in those concerns.
53.Against the background of my findings I do not think that a consideration of all of the matters described in s.60CC leads to a conclusion that the introduction of further time with the father on a Tuesday is in the best interests of the children. I find that it is more likely to be disruptive than beneficial. I acknowledge the requirement to give some consideration to equal time in the context of an evaluation of what is in the children’s best interests even if the presumption has not been applied (see para.[65.10] of the judgment of the Full Court in Goode). But as I do not consider the extension of the father’s time to include time on Tuesdays to be beneficial to the children for the reasons given, then a fortiori an extension to equal time would not be beneficial to them.
In the absence of any evidence to the contrary, especially expert independent evidence, I do not see any error by the Federal Magistrate. There is no basis for the appeal in this respect. I would observe however that it is indeed unfortunate that a further report was not obtained by the parties from an expert.
Although at the commencement of the hearing the father sought to make an oral application for a family report, he did not pursue this application either during or at the conclusion of the hearing by seeking an adjournment for that purpose. In those circumstances the Federal Magistrate could hardly be criticised.
Discipline of the children
The Federal Magistrate made specific findings about the father’s allegations of violence in the mother’s household and the orders as asked by the father. In his submissions to the Federal Magistrate the father asked for orders prohibiting any physical chastisement:
54.The next issue dealt with at trial was the question of whether the consent order which provided that “neither parent should use excessive discipline upon the children or cause or permit any other person so to do” should be changed to an order which expressly forbade any form of discipline, by which the father meant physical discipline. My concern with the injunction sought by him was that it would increase the opportunity for further litigation, especially given what I found to be the father’s absorption with issues of parental responsibility. I heard the father’s evidence about occasions when he suggested the children had reported inappropriate physical discipline in the mother’s household and I did not regard it as reliable.
…
56.There was no evidence adduced indicative or even tending to suggest that the children were at risk of physical abuse in the household of the mother. Given what I found to be the father’s “general disposition to calibrate too finely, perhaps even obsessively” matters relating to the children’s welfare, I was concerned that making an such order as is sought by him might give rise to the likelihood of further litigation. I remain of that view. This is a finding that is made even though I bear in mind that one of the primary considerations identified in s.60CC is the need to protect children from inter alia physical abuse or family violence. The evidence adduced by the father on this topic fell well short of that required to satisfy me that the injunction sought ought to be made.
I respectfully agree with the Federal Magistrate and see no basis for the appeal in this respect. However, I will revisit these matters when considering the application for further evidence to be adduced.
Application for a family report
As I have already mentioned at the commencement of the hearing before the Federal Magistrate on 7 June 2006 the father made an oral application for the preparation of a family report directed to the sole issue of the views of the children about Tuesday night contact (as it was then described in the legislation). The Federal Magistrate in his reasons on this topic said:
62.The next matter dealt with at trial was the oral application of the father for a further family report to be ordered. His evidence at trial (repeated in his written submissions now) is that the children have expressed views to him about matters in dispute between the parties and especially the question of Tuesday time. The mother disputed this. The wishes of the children remain a consideration to be given weight under the existing provisions of the Act (s.60CC(3)(a)) as they did under s.68F(2)(a). The former Act talks of “views”; the existing Act talks of “wishes” but the provisions are otherwise the same. My concern at trial was that I was not satisfied that in making his report to me of the children’s wishes the father was properly distinguishing his own views from those of the children. His written submissions spoke of the depth of the children’s feelings in relation to the issue of contact but I have concerns based upon the evidence at trial that it is the depth of his own feelings about the issues in dispute that are actuating his desire to have the children interviewed. The children are now aged nine and a half years and seven years.
63.Whether the steps should be taken of having the children participate in a family assessment report is a matter that has to be considered against the background of the issues in dispute. It is the Tuesday contact issue which is the one most likely to give scope for the views of the children to be taken into account. I think that it is important not to over-estimate the inconvenience to children from engaging in such a process. The Court should infer that family consultants will go about their tasks in a sensitive way. Their views in a case such as this where we know the father has such a striking level of commitment to the agitation of parenting issues between the parties and in the Court are unlikely to be determinative but are likely to be given some weight. I do have concerns that the prospect of them being interviewed would give rise to there being an incentive to promote or inculcate the existence of views and opinions on the part of the children by one or possibly both of the parents. An order for a family report would certainly generate the risk of that occurring. Given the limited scope of the dispute and against the background of my findings as to the father’s general disposition, I do not think that it is a risk that is worth taking. The best interests of the two boys are my paramount consideration and on balance I do not think that their best interests would be achieved by obliging them to participate in a process that requires them to express views about matters in dispute between their parents. There is a risk that by failing to facilitate the assessment the father seeks I will thwart an opportunity the children wish to take to express views they hold about these matters. I acknowledge that risk. I do not think that it is of the same magnitude as the risk of their parents or one of them using such an occasion to generate the further involvement of the children in their conflict. The mother does not press her application for orders relating to schooling and, in that context, the application will be dismissed. The position will continue to be regulated by the order that provided for the parties to have joint responsibility for such matters. They appear to have effected a change of schooling for [M], pro tem at least.
I note that his Honour has reversed the language used prior to and post the amending Act (see s 60CC(3)) which now requires a Court to consider any views expressed by a child.
In relation to the use of further evidence to support this aspect of the appeal I would refer to two other paragraphs of CDJ & VAJ (supra), where the High Court said:
149.In exercising the discretion to receive the further evidence in this case, the Full Court had to bear in mind the purpose to which that evidence was directed. That purpose was to provide the evidentiary ground for setting aside the order of the primary judge and ordering a new hearing of the husband's application, it being common ground that, if the appeal should be allowed, the Full Court could not determine the matter. The Full Court also had to bear in mind that, in the context of a case such as this one, the relevant purpose of s 93A(2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.
150. In some exceptional cases — those concerned with allegations of physical or psychological abuse of a child are an example — it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal. However, assuming such cases are an exception to the general rule, they are quite different from cases where there is merely a difference of opinion as to whether the child's best interests require him or her to be in the care of one parent rather than the other.
The father included in his affidavit seeking to adduce further evidence details in relation to the children being excessively disciplined on various dates commencing on 9 August 2007. Certainly, if correct these are serious matters. Paragraph 6 of the affidavit falls into the category of evidence that should be admitted on appeal as it may demonstrate that the order under appeal is erroneous and directly impacts on the safety of the children. To refuse the admission of this evidence and dismiss the appeal the only alternative for the father is to commence further proceedings. In the circumstances of the history of the litigation in this case, the father may be met by a Rice and Asplund (1979) FLC 90-725 argument should he wish to agitate these matters further.
The oral application of the father, made the first day of the hearing for a family report limited to the views of the children about Tuesday night contact, was dismissed by the Federal Magistrate. In his reasons his Honour, understandably, limited his discussion of the rationale for the report to the father’s application for Tuesday night contact. He did not consider, nor at that time was he asked to consider, whether such a report should address issues of asserted inappropriate discipline of the children, or the change of the children’s school. The Federal Magistrate did not have the benefit, as do I, of the father’s further affidavit material in which he makes assertions of serious physical abuse of the children by the mother’s present husband, which reports possibly corroborate earlier evidence of the father of reports of abuse by the children. I am satisfied that there is merit in ground 3. I note also the very unsatisfactory way the issue of the change of schooling arrangements for both children arose (substantially after the close of evidence and receipt of written submissions).
While recognising that generally, it would be more appropriate for a party to be placed in the position of returning to court to argue that there had been a change of circumstances, such that there should be a new trial, the circumstances of this case are somewhat unusual. In my view, there could be considerable unfairness to the father in this case in that the evidence before the Federal Magistrate was limited by the remitter itself. Further, the evidence at the trial linked to the issue of a further family report was then limited to the issue about Tuesday evenings rather than family violence.
In my view, to a limited extent the appeal should be allowed. The difficulties for these children as described in the Federal Magistrate’s judgment under the various headings make it necessary to order a re-hearing. I am mindful that there may be other issues, including the children’s schooling which the parties might seek to be included as matters also the subject of an expert report.
Therefore, I would remit the matter to the Federal Magistrates Court for directions and orders in relation to the preparation of a family report but would leave it to that court to decide who will hear the matter, the issues to be included in such a report and the course of the litigation thereafter.
Christmas holidays
His Honour correctly understood the existing orders (paragraph 6(b)) and the application made by the father and said:
57.The existing orders in relation to Christmas holiday contact provide for different provisions in even numbered years and odd numbered years. In even numbered years, the most extensive period of consecutive time the parties have with the children is approximately two weeks. The position of the parties is reversed in odd numbered years. However, since 2005 the father has been able to give the mother a month’s notice to have the children for one half of the whole school holidays commencing on 22 December but he is not able to do this in consecutive years. The mother has the same entitlement. (I should add that this is my summary of the provisions of para.[6(b)].) The father’s complaint at trial was that he would not be able to arrange for the children to see his family in the United Kingdom until 2007. I found that to be the ordinary consequence of the orders he consented to but any concern about the matter was somewhat assuaged by his concession in cross-examination that he did not at the time of trial have the finances to arrange the three week overseas holiday with the children that he had sought.
58.The actual order sought by the father at trial was that the holidays be simply divided in half each year alternating first and second halves with each parent. In addition he sought an order for a “three week contact period” within the next three months in which to take the children to visit overseas relatives. The latter order sought was simply not open on the evidence given as to his finances at the time. The father gave evidence of his desire to return to Britain in each and every Christmas holiday period and there was evidence, not contested, that his mother was unable to travel in an aeroplane.
59.Section 60B(2)(b) of the existing legislation has been set forth at para.[11] hereof. It is an express recognition that an opportunity to spend time with members of the father’s extended family is a right of a child which forms a principle underlying the very objects of Part VII of the Act. As against that consideration, I note that the existing orders, poorly expressed in some respects as they are, were consent orders agreed upon when the parties had the opportunity to proceed to trial and when they were represented by solicitor and counsel. The father says in his written submissions that he overlooked the fact that long summer holidays in Australia occurred at Christmas and at a different time in the United Kingdom (see para.[84] of his written submissions). I had evidence from the parties that they both travelled overseas to the [sic] Europe in 2005 and that the children saw various members of each family by agreement during that period. There is a possibility that they could agree to such excursions between themselves in the future. If they are unable to agree then an application can be made to court if the proposal is actually viable at the time in a practical and financial sense. The parties specifically agreed that in Christmas holidays in alternate years the children would not be absent from the other parent for a period of more than approximately two weeks. The father now seeks to vary that arrangement.
60.The matter needs to be re-assessed in the light of the changes to s.60B aforesaid. Furthermore, s.60CC(3)(b)(ii) now makes a specific reference to the nature of the relationship of the child with a grandparent or other relative. To be precise, grandparents are given as [sic] example of the “other persons” the nature of whose relationship with the child must be considered.
61.This is an acutely finely balanced exercise. On balance, however, I think the father has failed to furnish sufficient evidence to persuade me that it is in the best interests of the children to vary the consent order in the manner proposed by him. The children will be able to spend extended time with their grandmother in alternate Christmas holiday periods and a lesser time with her in the alternate years. The need to ensure that consent orders are not to be departed from unless a proper basis for doing so has been established is a matter I think the Court is entitled to take into account under s.60CC(3)(m) of the Act.
The further evidence sought to be admitted on this topic fails to pass the necessary test. The issues raised by the father are not capable of leading me to conclude that in the context of an appeal from a discretionary judgment the orders were incorrect.
The school the children attend
The mother’s original application in relation to this topic was dismissed because she indicated that she did not wish to seek orders (See para 63 of judgment). However, as can be seen from the transcript there were events subsequent to the hearing of the evidence referred to in the father’s submissions. The following paragraphs from the judgment appear to me to correctly summarise what was said at the further hearing:
38.… This raises an aspect of the matter that causes me considerable concern. When I heard oral submissions in March of this year the father reported to me that the mother had unilaterally changed the school that [M] attended. She had moved him from [S] State School, which was close to where the father lived, and sent him to a school located an hour’s drive away from him. This was in direct contravention of my orders of 6 July 2005. This submission had been adumbrated in his written submission.
39.Further inquiry at the oral hearing, however, established that the matter was somewhat more ambiguous. The mother contended that that father had agreed to the change of school and had executed a document authorising the change of school. The father had acknowledged that he had signed a document but said that parts of it were illegible and in any event the mother had represented to him that she would not relying on it until [M] was at least in Year 8. It turned out that the school to which [M] had been sent ([X] School) was a school at which the father may be seeking employment. The father’s final position before me was that he was going to see how [M] liked the school and decide on his position at the end of the first term. All of these matters suggest that far from being a unilateral act on the part of the mother, the father has at least acquiesced in the move and possibly gone as far as encouraging and implementing it. I told him at the oral hearing that I thought his position might be fairly categorised, to use the vernacular, as “having a bob each way”. In other words, he was reserving his right to bring the matter up at a later stage but not prepared to seek an order requiring the child to return to his former school in the meantime. These sorts of circumstances are pregnant with the possibility of litigation and conflict.
…
64.The final issue agitated at trial was the mother’s application to be able to enrol the children at [Z] College some time over the next few years. As far as [M] is concerned, events have superseded my order. I am concerned that my order has been not adhered to by the mother. I am also concerned about the inconsistencies in the father’s position as described to me on 19 March 2007. He says that she flouted the orders but he has chosen to do nothing about it. He says that he signed a document authorising the change but only because the mother represented that she would not rely on it until [M] was in Year 8. The school the child is attending is a school that he may have promoted as suitable for [M] albeit in future years and one which he has considered as suitable for him to teach at. This is a curious state of affairs. I am not asked by either party to vary the order I made by [sic] I know that it has been departed from as far as [M] is concerned. That is, the change to [M]’s schooling has been effected without an order of the Court being sought. I interpreted the father’s present attitude to be one of reserving his right to bring an application to reverse this arrangement at some unspecified time in the future and it remains a significant concern that such an application might be brought when the child has settled into his new school. It was not explained by the father why he had not brought an application to have [M] remain at the school he was attending, particularly when it was so conveniently close to his own residence. Nevertheless, I am not asked by either party to reconsider this issue at the present time.
The evidence that the father wishes to place before us on this topic is contained in his affidavit.
Apart from there being no formal grounds of appeal directed to this issue it is apparent from the father’s lengthy submissions that whilst he wishes to complain about how this issue was dealt with by the Federal Magistrate he did not seek any orders or any different result at that time. (Appeal Book 649, T/s p.20 l.10-18) I therefore am of the view that there is no utility in commenting any further on this issue, including allowing those parts of his affidavit seeking to adduce further evidence.
Conclusions
Grounds 1, 2 & 4
To a considerable extent these grounds were covered in the relevant parts of the judgment to which I have already referred and my comments upon them.
It was said by the applicant father in his written submissions that the Federal Magistrate had failed to address each of the factors contained in s 65DAA and did not demonstrate the legal reasoning by which he drew his conclusions and decisions. The Federal Magistrate in paragraph 27 concluded:
27.I find, then, that the existing order in relation to joint parental responsibility is an order that provides for the child’s parents to have equal shared parental responsibility for the child. That being the case, I must give consideration to the matters prescribed by s.65DAA. This is a curious position. The trial proceeded before me on certain specific areas of controversy (which I will detail shortly), notably whether or not there should be a re-introduction of a period of time for the children to live with the father on Tuesday evenings. Notwithstanding that, because historically the parties have agreed to orders which have the effect of orders for equal shared parental responsibility I must consider whether or not to make an order for equal time, which was not an order sought by either party at the trial before me.
It is also contended that there was no consideration of s 60CC. In my view the Federal Magistrate dealt with the relevant s 60CC matters as he dealt with each of the issues before him. It is not necessary for the judge to deal with them seriatim and it is entirely clear to us how his Honour came to conclusions which he did in relation to each of the matters he was asked to determine.
It was also argued by the appellant that the trial judge failed to have regard to the “health issues” affecting the children. In paragraph 32 of the judgment there was considerable discussion about the differences of opinion of the parents and in particular the father’s concern about the child [M]’s diet. Having made these observations I do not see that in some way his Honour failed to take into account the children’s best interests.
In my view there is no merit in grounds 1, 2 and 4.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 16 December 2008
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