Porter v Byrne
[2009] FamCAFC 8
•23 January 2009
FAMILY COURT OF AUSTRALIA
| PORTER & BYRNE | [2009] FamCAFC 8 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Children – With whom children live and spend time – ADEQUACY OF REASONS – Mother and children lived in Western Australia, Father remarried in Central Queensland where the family had lived before the parents separated – Father and children had little contact in the 18 months preceding the trial – Federal Magistrate made orders for two eventualities; in the event of the mother’s return to Central Queensland the children were to live with mother and spend 4 nights a week with the father, in the event the mother did not return, the children were to live with the father and spend some holiday time with the mother – Reasons clearly stated that the best interests of the children would be best met by the mother’s return to Central Queensland and creation of a closer relationship between father and children – Reasons did not support the order made in the event of the mother’s non-return to Central Queensland – Order made in event of non return was not compared to other proposals nor were the practicalities of either order properly explored – Discussion of Sampson v Hartnett (No 10) FLC 93-350 in relation to orders that effectively coerce a party to relocate – Reasons inadequate to support orders made – Federal Magistrate fell into error Appeal allowed – Inadequacy of reasons prevented re-exercise of discretion – Remitted for re-hearing – Costs certificates issued for both parties in relation to the appeal and re-hearing |
| Family Law Act 1975 (Cth) Part VII; s 60B(1)(a); s 60CC; s 65DAA; Federal Proceedings (Costs) Act 1981 (Cth) |
| Re F: Litigants in person guidelines (2001) FLC 93-072 Sampson and Hartnett (No.10) (2007) FLC 93-350 Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447 |
| APPELLANT: | Ms PORTER |
| RESPONDENT: | Mr BYRNE |
| FILE NUMBER: | ROC | 755 | of | 2007 |
| APPEAL NUMBER: | NA | 97 | of | 2008 |
| DATE DELIVERED: | 23 January 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 16 January 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 October 2008 |
| LOWER COURT MNC: | (2008) FMCAfam 1254 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Farmer by videolink |
| SOLICITOR FOR THE APPELLANT: | Slater & Gordon |
| COUNSEL FOR THE RESPONDENT: | Ms McLennan |
| SOLICITOR FOR THE RESPONDENT: | David Eaddy & Co |
Orders
That the appeal be allowed.
That orders 3 and 4 of the orders of Federal Magistrate Coker made 21 October 2008 be set aside.
That the father’s application for parenting orders filed 17 October 2007 be remitted to the Federal Magistrates Court of Australia for rehearing by a Federal Magistrate other than Coker FM.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
That the court grants to each of the appellant mother and the respondent father costs certificates pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 being certificates that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise payments under that Act to each of the appellant mother and the respondent father in respect of the costs incurred by each in relation to the new trial.
IT IS NOTED that publication of this judgment under the pseudonym Porter & Byrne 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 97 of 2008
File Number: ROC 755 of 2007
| Ms PORTER |
Appellant
And
| Mr BYRNE |
Respondent
REASONS FOR JUDGMENT
During their cohabitation of about 8 years, Ms Porter and Mr Byrne resided in and about Rockhampton in Central Queensland. Their twin boys were born there in December 2003. However, when the parents’ relationship broke down and they finally separated in May 2007, the mother left Australia with the children and moved to New Zealand. She did not tell the father she was going. The father caused proceedings to be commenced invoking the Hague Convention and after court order the mother returned to Australia in September 2007. However, she went with the children to Perth in Western Australia.
The father promptly instituted proceedings in the Federal Magistrates Court of Australia. During the 13 months or so between the mother’s return to Australia to reside in Perth and the trial before Federal Magistrate Coker in October 2008, the father had limited time with the children. For reasons Coker FM gave on the day of hearing, he ordered that, in the event the mother returned to Central Queensland, the children live with the mother and spend time with the father each school week from after school Thursday to before school Monday and for half of all school holiday periods. He further ordered that, in the event of the mother not returning to Central Queensland by a nominated date, the children live with the father, but spend some school holiday time with the mother. These reasons relate to the mother’s appeal against those orders.
The mother raised the following arguments:
That the Learned Federal Magistrate erred in not affording her procedural fairness
That the Learned Federal Magistrate failed to give sufficient reasons for the orders made
That the evidence before the Court did not support the conclusions reached by the Learned Federal Magistrate
The basic arguments in support of the last two contentions bear strong similarity to those dealt with by the Full Court in Sampson and Hartnett (No.10) (2007) FLC 93-350, a decision of which I will say more later.
Did the Learned Federal Magistrate err in not affording the mother procedural fairness?
At the hearing before Coker FM, the father was represented by solicitor and counsel. The mother was unrepresented, but had the assistance of a “support” person.
Ms Farmer, counsel for the mother in the appeal, argues that Coker FM failed to follow the guidelines for judges (adumbrated in Re F: Litigants in person guidelines (2001) FLC 93-072) in respect to unrepresented litigants, in two respects; that he should have advised the mother of her right to seek an adjournment and that he should have assisted her more in relation to cross-examination and submissions.
In written submissions, Ms Farmer had argued that the timing relating to when the mother received an affidavit of the father, was a reason for adjournment. However, in oral submissions she formulated the only basis as that an adjournment would have provided the mother the opportunity to obtain legal representation.
There is nothing to support that proposition and some indications to the contrary.
The mother did not ask for an adjournment. She had been represented by solicitors. She voiced some complaint about their performance but did not connect those matters to any suggestion that she wished an adjournment of proceedings. The following exchange suggests otherwise:
[FEDERAL MAGISTRATE]…[Ms Porter] did you have any queries in relation to how we’re going to proceed? I have some obligations that arise when a party acts on their own behalf to provide you with what limited assistance I can, in other words to advise you about technical matters and objections that can and can’t be taken, but I can’t of course, make your case. I can’t, for example, cross-examine or ask questions on your behalf.
[MS PORTER]: That’s fine. I’ve spoken to Lance Rundle [a solicitor] quite a bit over the last couple of weeks and I’ve seen him this morning and he’s sort of given me a run through of what’s going to happen today and how it’s going to proceed.
FEDERAL MAGISTRATE: I see.
[MS PORTER]: So I have a basic outline of what’s going to be going on.
FEDERAL MAGISTRATE: If you have any queries feel free to ask.
[MS PORTER]: Thank you.
As to the absence of questioning of the father by the learned Magistrate, I note that the submissions for the mother are put no more highly than that it was open to Coker FM to have asked questions. A failure not to take a course that was no more than “open” is unlikely to amount to appellable error.
In any event, the only two “issues” identified as ones in respect of which the learned Magistrate may have assisted the mother, by questioning the father, were domestic violence and irregular payments of child support.
In his reasons Coker FM discussed some counter-allegations in relation to violence, but did not rely on any conclusions against either party to found the orders appealed. In relation to allegedly irregular payments of child support, in his reasons Coker FM said:
…there are also criticisms made by the mother, though they were not more fully investigated, in relation to the father's provision for the financial support of the children. The fact is that parents have a multitude of responsibilities and obligations in relation to children and I am satisfied that both, unfortunately, at least to some degree, have failed to meet those obligations and responsibilities.
That passage indicates acceptance by Coker FM of the mother’s claims in relation to child support. However, it is apparent from his reasons overall that Coker FM regarded other issues as of far greater importance. I do not think the mother was denied procedural fairness by the absence of questioning of the father by the Federal Magistrate in relation to contentions in the mother’s case.
As to the mother’s submissions at trial, she covered a number of topics. Ms Farmer submitted that the mother’s submissions were deficient but has not demonstrated in what way.
In Re F (supra) the Full Court said:
228.The knowledge and skill base of litigants in person can vary widely. As pointed out in the recent publication of the Australian Institute of Judicial Administration (2001) Litigants in Person Management Plans: Issues for Courts and Tribunals, Carlton:
“Where a litigant appears in person they will ordinarily be at a disadvantage because of their lack of legal skill. The court has an obligation to diminish this disadvantage so as to ensure a fair and just trial. However this obligation is subject to the need for the court to maintain its position of neutrality in the proceedings. The court must not confer an advantage on the litigant in person over the represented party.
The extent of the obligation on the court to assist litigants in person is contextual and may depend on the litigant, the nature of the case and the litigant’s intelligence and understanding of the case. The court may also have regard to the position of the other party or parties concerned and the efficient conduct of the proceedings.” (at page 6, footnotes omitted).
229.With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case.
230.We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself. We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the Court’s obligation to provide procedural fairness and a fair trial. Thus, if in the circumstances of a particular case, a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.
I see no merit in these arguments for the mother.
Did the Learned Federal Magistrate fail to give sufficient reasons for the orders made?
Did the evidence before the Court not support the conclusions reached by the Learned Federal Magistrate?
These questions are connected.
As earlier indicated the learned Federal Magistrate gave reasons on the day of hearing. In written form the reasons are 28 pages, containing 113 paragraphs. Nonetheless, the reasons for which his Honour made the first order appealed, that providing for a close to equal sharing of the children’s care, but only if the mother returned to Central Queensland, can be readily summarised.
Towards the outset of his reasons, his Honour reviewed the orders that each party had sought in the documents each had initially filed and the elaboration of proposals that occurred in documents filed for the purposes of trial. The father’s proposals ranged from the children living with him and he having sole parental responsibility, through to the parties having equal time with the children. The mother proposed the parents “be jointly responsible for decisions concerning…long-term care, welfare and development”, but that she be permitted to relocate with the children to New Zealand. She proposed that the father spend time with the children on school holidays.
By trial, each of the parents had re-partnered. When reviewing the evidence, the learned Magistrate noted that each of the mother and father and each of their partners had given evidence. He made favourable comments in relation to the father’s partner, because she had deposed not only to the positive interaction between the children and their father but to the fact that one of the children had indicated that he had missed his mother and that the boys were given the opportunity for frequent contact with their mother by telephone while they were staying with the father and his partner, who encouraged the boys to speak with their mother.
As to the mother’s partner, Mr H, Coker FM observed on the brevity of the relationship, which he considered gave rise to “some concerns as to longevity of such a relationship”. His Honour described Mr H’s deposition as to the relationship between the mother and the children and as to the mother’s parenting capacities and his relationship and attitude towards the children, in terms that imply some concern in his Honour that Mr H had taken a rather naïve or superficial approach to the various relationships and that Mr H was deficient in his appreciation of the position of the father in the boys’ lives.
In his reasons for judgment, Coker FM said:
32.…I gained the distinct impression throughout the affidavit of [Mr H] and also, unfortunately I thought, through the affidavit and evidence of the mother, that there was a far greater importance placed on so many other people, in relation to the children's lives, than any real importance or recognition, particularly on the part of the mother, of the real importance and benefit to these boys, of a relationship with their father.
…
38.…there seemed again to be an appreciation by [Mr H], but I also thought, by the mother, in relation to this matter, that he had, at least to some extent, taken a substituted role in relation to the children.
…
42.[Mr H]…was without any real perspective in relation to that support, …[of the mother]
43.…as to the limited nature of the appreciation or recognition by [Mr H] of the importance of the father, in the lives of these children.
44.…I should indicate, for example, that I have absolutely no doubt as to the mother's love for the children or the father's love for the children.
45.…I was, …, in relation to the father's evidence, …, a little troubled as to the somewhat blasé approach that I think he took, in respect of suggesting that the children should be in his care.
46.…I think, to some degree, indicated by the evidence that is before me, that the mother is not as genuine or as forthright in the fostering and development of the relationship with the father, but I must say I was somewhat troubled by the fact that the father seemed to think that two little boys, not yet five years of age, having spent almost the entirety of their life primarily in the care of the mother and certainly the last 18 months or so almost exclusively in the care of the mother, would not be troubled by a radical change in circumstances involving a realignment of with whom they live and the parent with whom they spend time.
…
50.…I was not at all of a mind to think that [in the father] there was any malice or other motivation other than a real intent to ensure that the best interests of the boys were met, particularly as a result of ensuring that they had the opportunity for a full relationship, with both their mother and their father.
51.I also, of course, had the opportunity to consider the evidence of the mother in relation to this matter. As I indicated, I have absolutely no doubt as to the mother's love for the children, her capacity as a parent to meet the day to day needs of the children and to ensure that those day to day needs and interests are met. I must say, however, that I was obviously troubled by what I consider to be a very obvious lack of insight, on the part of the mother, into the importance of the father in the children's lives.
52.I gained the distinct impression, particularly during her oral evidence that she was very quick to be critical of the father,…
54.…I was also troubled by the mother's obvious and continued attempts to deflect any suggestion of irresponsibility or a lack of appropriate attitude to her, but rather to direct it to the father. …
55.…particularly from the mother's own evidence, was that the father was not the subject of conversation, he was not the subject of any real input by the mother or certainly encouragement by the mother, of the children appreciating their relationship with him.
…
57.…a concentration on what I would consider to be her own wishes, rather than the best interests of the children, troubled me significantly in relation to the decision to be made in relation to the matter.
…
60.[the mother]…could not even countenance a suggestion that it might be in the best interests of the children for them to be nearby to their father and to have very…
…
There is no issue in the appeal about the essential path taken by Coker FM, as required by Part VII of the Family Law Act 1975 (Cth). The learned Magistrate, having noted the paramountcy of the children’s best interests, moved to consider the presumption of equal shared parental responsibility and found that there was no rebuttal of the presumption. Primarily, while noting some sources of potential difficulty he “took both parents at their word” as to what they could co-operatively achieve in the future in relation to parental responsibility.
He then turned to consider the provisions of s 65DAA bearing upon the matter of the children spending equal time with each parent and if not, substantial and significant time. He concluded that if the mother relocated to New Zealand or remained in Western Australia with the children, either of the arrangements which the section addressed was impossible. He said:
88.The fact is, that both parents need to have the opportunity, and in fact the children should have the right, to have both parents involved in all aspects of their lives, and the move that is proposed by the mother would obviously preclude that from occurring and, of course, as I have indicated, if there were in place a strong bond that could be facilitated by other means it would be a different situation, but the fact is that for the last 18 months there has been, for whatever reasons, only very limited and cursory opportunities for the father to be involved in the children's lives. As I said, the mother's own submission to me was that the boys do not know him.
89.How there could be any suggestion, that with the mother living in another country, or thousands of kilometres from where the parties resided prior to separation, there could be a fostered and developed relationship with the father is entirely beyond me. I simply do not accept that there is any proper basis, upon which that could occur and certainly I do not accept, that it would be in the best interests of the children, when it is recognised by both parents that there must be a positive relationship with both parents fostered and developed by the other parent. The best of intents might be forthcoming by both parents, but my assessment in relation to the matter is that even if that were to occur, the tyranny of distance would eventually lead to the breakdown of the relationships that should be in place, to the benefit of the children.
The learned Magistrate then turned to consider the factors enumerated in s 60CC of the Act, and was led to say:
98.I am concerned that if there is not a far closer interaction between the parents and, of course, far closer locale in which they are situated, then the relationship that the children will have with the father can only deteriorate and that that is not in the best interests of the children.
I consider that the reasons why Coker FM made the order that was to operate if the mother returned to Central Queensland, taken alone, are clear. Nonetheless, two aspects raised by Ms Farmer about the sufficiency of the reasons for the first order still deserve mention, but I will defer discussion of them until after I have considered the adequacy of reasons for the second order, Order 4. That Order provided:
4.In the event of the Mother not returning to Central Queensland by 4:00pm on 13 November 2008, then in that event the children live with the Father and spend time with the Mother at all reasonable times as agreed between the parties and in particular:
a)for the whole of the end of Term 1, Term 2 and Term 3 Queensland gazetted school holiday periods commencing in 2009 and in each alternate year thereafter;
b)for the first four weeks or the last four weeks of the Queensland Christmas school holiday period in each year commencing with the last four weeks of the school year in 2008/2009 and the first four weeks of the school year in 2009/2010 and to alternate in each year thereafter.
The reasons supporting this order can be even more briefly summarised. Firstly, were the favourable findings earlier discussed about attitudes of the father and his partner towards fostering a relationship with the mother, particularly in comparison with the learned Magistrate’s assessment of the attitudes of the mother and her partner, in relation to the father. The other discussion relevant to placement of the children primarily with the father was:
103.…Just as clearly, however, there are real concerns that must arise if, the father's proposal were put into effect, it was the case that the children were to live with him and the mother was only to have limited opportunities to spend time with the children, even if that were, for example, perhaps from a week about perspective.
104.…There are enormous difficulties that will occur in the children's lives if they were to be removed from the care of the mother. …
Then, as seen earlier:
112.In my view, the only appropriate course in relation to this matter is for the mother to return to Central Queensland and to enable then the father to spend significant and substantial time with the children. …
Followed by the final paragraph:
113.Of course, it would be a tragedy if the mother determined, as she indicated in her evidence, though not without the children, that she would not return to Central Queensland. But there needs to be some certainty and stability in relation to these children's lives and at the moment there is not. In my view, therefore, the only appropriate orders and the orders that I intend to make in relation to the matter are as follows: …
Here I consider Coker FM fell into error.
He found:
· that the only appropriate course was for the mother to return to Central Queensland;
· that it would be a tragedy if the mother determined that she would not return to Central Queensland;
· that there were major concerns if the children were placed with the father and had limited opportunities to spend time with mother
and yet made Order 4, which, far from being supported by that reasoning is contrary to it. It seems likely that Order 4 was intended to be coercive in its effect.
Whereas, if Order 3 was, (as it clearly was) the provision which best served the children’s interests, one would expect Order 4 to provide for the arrangement which was second best. Save for the favourable view of the attitudes of the father and his partner, no reasoning pointed to that being so. But that favourable view, expressed early in the reasons, was not reported as the reason or a reason for Order 4. There was thus no balancing of it against the strongly-expressed countervailing factors. Put another way – as Ms Farmer did put it – the competing proposals, particularly the mother’s proposal that she relocate to New Zealand, while it may have been compared with the father’s proposal for equally shared care, was not compared to the arrangement put in place by order 4.
Ms Farmer’s submission that Coker FM also gave too much weight to the primary consideration of the benefit to the children of a meaningful relationship with the father, over additional considerations, is also largely subsumed in the contention that the competing proposals were not properly assessed.
Ms Farmer also made a further challenge to the terms of Order 4, that provided for time to be spent by the mother with the children. As expressed, a year could separate occasions of such time. No reasons support such a result and of itself this also constitutes appellable error.
Insofar as the true reason for Order 4 can be seen as coercion, in Sampson and Hartnett (No.10) (supra), the majority said:
6.This, the mother’s appeal against the parenting orders made by Moore J, raises significant questions; … and of the propriety of orders and the power to make them, that have a coercive impact, that seek to create a situation, rather than orders that derive from findings based upon the evidence and that are responsive to proposals of a party.
7.Ultimately though, the appeal’s outcome turns not so much on any question of power as whether all findings necessary to support the orders (whether taken in terms or in effect), were made, particularly findings about less intrusive alternatives and about the probability and practicability of the mother relocating to and living in Sydney.
These observations lead back to one of the two aspects raised by Ms Farmer in relation to the sufficiency of reasons in support of Order 3, namely, that in respect of the prospects that the mother would and/or could move back to Central Queensland to live, there were no findings of her financial capacity to do so and indeed, her evidence was that she would not move.
I consider that, in view of my conclusion in respect to the inadequacy of reasons to support Order 4 and the interconnection between Orders 3 and 4, I need express no concluded view of this further argument in so far as it relates to Order 3 alone. On the one hand, it seems highly desirable, if not necessary, for there to be findings about the probability of an order coming into effect but, on the other hand, it may be arguable that since the order was expressed to operate only “in the event” of the mother’s return to Central Queensland, there was no need for findings directed to practicalities and therefore, probabilities.
However, I accept that, taking Orders 3 and 4 together as effectively coercing the mother to relocate, the prospects of the mother returning to Central Queensland and her capacity to do so ought have been considered.
The Full Court in Sampson and Hartnett (No.10) said:
75.To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
76.This was a very difficult case. Had there been a well-developed relationship between the father and children, orders as commonly seen and as discussed at the outset, directed to the location of the children, not the parents, might have been made. The reason for an under-developed relationship between father and children rested with the mother’s attitude. Her Honour concluded (and no challenge has been made to the finding) that both parents ought be involved in the children’s day to day lives. This would only be possible if both lived in the same area. Neither parent offered to move.
77.We do not say that the true “effect” of her Honour’s orders was a wrong result. However, it was an extreme one and we think required an unusually stringent enquiry. While her Honour’s consideration was thorough and in one aspect of necessary enquiry she received little assistance, there are two respects in which, in our view, the proper level of enquiry was not achieved.
78.Insufficient scrutiny was given to alternatives to enable the development of the father/children relationship. Insufficient scrutiny was given to the practicality of the mother living in Sydney.
The second challenge to the adequacy of the reasons for Order 3 was in respect of the consequence that, under that order, the father had four nights out of each seven with the children during school term, whereas the Federal Magistrate’s reasoning supported the mother remaining primary carer if she lived in Central Queensland.
Again, I do not think I need to decide this argument. It might be said against it that the difference in time with each parent is minimal, but even so, given that in paragraph 103 of his reasons, as earlier seen, Coker FM indicted that he held some concern about a week about arrangement, that concern arising from the history of primary care by the mother, the arrangement ordered is unexplained.
As to the contention that the evidence did not support Coker FM’s conclusions, Ms Farmer argued that the learned Magistrate had failed to take into account the evidence in the mother’s case about steps she had taken to foster the children’s relationship with the father and about the father’s failure to take up opportunities to spend time with the children.
I do not accept this argument. Coker FM did make some references to the mother’s case on point (eg. paragraph 23). In any event, as Gleeson CJ, McHugh and Gummow JJ said in Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447 at 464
…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.
Further, as recognised, the reasons were given extempore. In a paper entitled “Practical Impediments to the Fulfilment of Judicial Duties” published in The Judicial Review Vol 6 number 4, Heydon J said:
Thirdly, appellate courts will make assumptions in favour of an ex tempore judgment which they will not make for a judgment reserved for some time. A failure to refer to evidence in an ex tempore judgment, or to analyse it fully, is more likely to be excused on the ground that the recency of its tender makes it unlikely that it was overlooked…
In my view, the other arguments put by Ms Farmer also carry no merit. The first was that the learned Magistrate applied a wrong principle when in paragraph 97 of his reasons, he said:
97.…I am troubled by the lack of application on the part of the mother who had to be, if you like, a better parent because of the position that she was in, with the children in her care, in fostering and developing the relationship with the father.
I do not consider that in so saying Coker FM was applying a legal principle relating to primary caregivers, but merely expressing a conclusion of fact.
Similarly, Ms Farmer argued that Coker FM erred in principle when he said:
34. …I, unfortunately, gained the distinct impression, that there was a far greater weight given by the mother, to the importance of the relationships that she considered important, than a recognition of the boys' absolute right to a relationship with their father.
In my view Coker FM was doing no more than paraphrasing the object of Part VII, contained in s 60B(1)(a). Though the term “absolute” was perhaps a little extravagant, it was used when assessing the attitudes of the mother, not when identifying and applying legal principle and in my view, no error affecting the orders made resulted.
However, as I have found merit in the essential arguments, the appeal will be allowed.
Remission or re-exercise of discretion
The inadequacy of reasons prevents a re-exercise of discretion and the parenting issues ought be remitted for rehearing.
Both parties requested certificates under the Federal Proceedings (Costs) Act 1981 and I consider a grant of such certificates proper.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.
Associate:
Date: 23 January 2009
9