PS & at

[2005] FamCA 769

[2005] FamCA 769

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No. EA132 of 2004

File No. CAM905 of 2003

BETWEEN:

PS

(Appellant Father)

and

AT

(Respondent Mother)

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:          26 July 2005

DATE OF JUDGMENT:      26 July 2005

REASONS FOR JUDGMENT

APPEARANCES:

Mr Wraith of Counsel, instructed by Hogg & Reid, Solicitors, DX 38234, Flagstaff appeared on behalf of the appellant father.

The respondent mother in person.

PS & AT
EA132 of 2004
CORAM:  KAY J
DATE OF HEARING:  26 July 2005
DATE OF JUDGMENT:                26 July 2005

Catchwords:  APPEAL – CHILDREN – contact – adequacy of reasons - father’s appeal against orders pertaining to the level of contact he have to his two children – children suffer from Attention Deficit Disorders and have been prescribed medication – on several Monday mornings the eldest child attended school after weekend contact with the father and required medication - asserted that the Federal Magistrate failed to provide adequate reasons for the contact orders that did not allow the father to have Monday morning before school and mid-week overnight  contact during the school term either collectively or on an individual basis and limiting school holiday block contact – appeal allowed in part - issues of individual, midweek and holiday contact not properly and adequately explained or explored by the Federal Magistrate – issues remitted 

1. I have before me an appeal from orders made by Brewster FM in Canberra on 26 November 2004.  The orders concern contact arrangements between the appellant father and his children, M born in 1994, and G born in 1997.

1. Although the amended Notice of Appeal purports to appeal against all of the orders made on that day, the grounds of appeal only concern the level of contact to occur rather than other matters. 

1. The orders made by the Magistrate were as follows:

(1)That all previous orders concerning residence and contact with respect to the children be discharged.

(2)That the children reside with the mother.

(3)That the father have contact with the children as follows:

(a)During school term from 3 pm Friday until noon on Sunday each alternate weekend and from noon until 6 pm on Sunday in the alternate week.

(b)During school holidays:

(i)For five days in each of the school holidays that occur at the end of the first and third terms, commencing at 10 am on the Saturday at the end of the first week of that school holiday until 6 pm on the following Wednesday.

(ii)For two periods of five days in the holidays occurring at the end of second term, being from 10 am on the first day after school breaks up until 6 pm on the fifth day and from 10am on the day seven days before school resumes until 6pm on the second last day before the children return to school.

(iii)For two periods of four nights and five days commencing at 10 am on Saturday until 6 pm on the following Wednesday during the second and third weeks of January.

(iv)From noon on 25 December to noon on 27 December in 2004 and each alternate year thereafter and from noon on 23 December to noon on 25 December in 2005 and each alternate year thereafter.

(c)For two hours on each of the children's birthdays if that day is a school day and for four hours if the birthday falls on a non-school day that is not ordinarily a contact day.

(4)In the event that Anzac Day falls on the Friday of a contact weekend contact will commence on Thursday at 3 pm and in the event that the Monday of a contact weekend is a public holiday contact will conclude 6 pm on the Monday.

(5)That weekend contact is suspended during school holidays.

(6)That if Mother’s Day falls on a contact weekend contact shell not occur on that weekend but will occur in lieu on the following weekend.

(7)That if Fathers Day falls on a non contact weekend contact on the previous weekend will not occur and in lieu will occur on the weekend of Fathers Day.

1. The gravamen of the appeal is that the Magistrate has effectively failed to provide adequate reasons for the making of the contact orders in paragraph 3. In the circumstances it is said that the matter needs to be remitted for a re‑hearing.  That is the appellant's view.  The respondent mother has endeavoured to demonstrate that the orders are well understood when one has reference to the manner in which the trial was conducted and the matters that were in issue. 

1. Far be it for this court to be critical of the Magistrate in endeavouring to keep a tight focus on the matters in issue and to produce a short and understandable judgment confined to the fairly narrow band of dispute that was between the parties.  But there is a minimum requirement of explanation needed by a judicial officer by way of the provision of appropriate reasons.  The requirement is flexible, having regard to the manner in which the case is presented to the judicial officer, but basically there is a duty to explain the decision arrived at and to give appropriate reasons for the orders which are made.  I refer particularly to the cases set out and discussed in Peters (aka Eustace) v Castura (1994) FLC 92‑500 at 81,211 and following.

Background.

1. The parties were married in 1993 and separated in 1998.  The children resided with their mother in the Australian Capital Territory until earlier this year and informal arrangements were made between the father and the mother for contact to take place.  They were fairly flexible arrangements but they fell into some conflict relating to the arrangements, brought about by, I would say as politely as I can, differences in the views of each of the parties and their method of resolving those differences. 

1. The father asserted, and it does not necessarily appear to be much conflict to this exercise, that of recent years, at least in 2002, the father was collecting the children after school for some days each week and had contact with them most weekends from Saturday until Sunday.  Some nights of the week the children would stay with their father, by agreement, and there was some school holiday contact but it was not formalised.  It was not necessarily regular. 

1. The father became concerned about contact not being provided for him along the terms that he wanted, and he chose a rather unusual course of refusing to have the children on Saturday nights, saying they would see them on Saturday and Sunday but he was not going to look after them on Saturday nights.  There was a series of negotiations between the parties in an attempt to resolve the impasse that had arisen and that led to applications being brought in the middle of 2003. 

1. There was a consent order made on 25 August 2003 that the father would have contact with the children on alternate weekends from Friday night to Sunday, on the other weekends from Sunday until Monday, and each week overnight on a Tuesday.  No provision was made for school holiday contact in that order.

1. The contact went basically along the lines that the parties had agreed to until the end of 2003.  In the school holidays in September 2003 the father had the children with him for a five‑day period and subsequently the week after the school holidays the children also stayed with the father.  The parties were unable to agree about the December holidays in 2003 and there was some proceedings that took place in the courtroom in January 2004 that did not resolve the issue. 

1. There was then further contact in accordance with the earlier orders until April 2004, save that the child, G, began to go home on Sunday nights in alternate weeks rather than stay through to the Monday, and that left M alone with his father to be returned to school on the Monday morning. 

1. The midweek contact seemed to be of concern to the mother and the parties reached some agreement on an informal basis that there would be extended holiday contact in lieu of the Tuesday night contact.  There was then some contact in April school holidays with the father and G, the father taking the child to South Australia while the mother sent M I think to New Zealand.  There were some arrangements made for some contact in the July holidays for four days and that took place. 

1. The matter came on for hearing before the Magistrate on 23 July 2004 and it continued for hearing on 25 August 2004.  The father was represented and the mother appeared in person.  The documentation that was relied upon by the parties was, to say the least, somewhat confusing and full of material that was in inadmissible form.  It was considered expedient by the Magistrate to suggest to counsel for the husband at the commencement of the proceedings that, rather than rule on admissibility of the evidence, it was appropriate that the Magistrate would be left relying upon his own capacity to sort out the wheat from the chaff.  The following exchange took place - Mr Gill for the father:

“MR GILL:   The first issue might be the material that [AT] wishes to rely upon.  I have received her documents which indicate she is relying on a large number of affidavits filed since January of this year.

FEDERAL MAGISTRATE:   Yes, I know.  I at some stage made an order which was intended to mean for the hearing there'd be one omnibus stand‑alone affidavit, but unfortunately the hearing never took place.  The time has ticked away, thus giving an opportunity for filing of multiple affidavits, so I am regretful that I didn't foresee that. 

MR GILL:   What that will also mean, unfortunately in this case, is that the bulk of the material is simply not admissible because most of it is either a lay opinion or hearsay. 

FEDERAL MAGISTRATE:   I don't know that you need to take me through that, I must say.  I didn't come down with the last shower and I'm not likely to be swayed by opinions or submissions.  You can if you want to but we've got to finish the case.

MR GILL:   I don't want to.  The difficulty, your Honour, is seeing what is left after that's removed.  There's actually very little information in the case about (a) what the problems might be, and I think there's almost no information as to what the arrangements will be for the children. “

1. It is in that background that the matter then commenced. The mother was cross‑examined, the father was cross‑examined and eventually there were some final addresses made.  In the course of the proceedings attention was drawn to material that was provided, mainly as annexures to the mother's affidavit material, but sometimes by way of documents tendered from different sources.  There was a reliance upon an affidavit of the psychiatrist treating the husband and there was reference to some reports relating to the children. 

1. It is important I think for my purposes to understand that the material relating to the husband and the children raised some serious concerns. 

1. There was an affidavit from Dr T, who said he was a psychiatrist who had been practising since 1975 and he had seen the father first in May 1996 and had seen him as recently as March 2004.  He summarised his clinical notes relating to the father's history and ultimately determined as follows:

“As far as can be ascertained he satisfies the diagnostic criteria for

A.Attention Deficit Disorder. (I will leave the reference out)  This has been present all his life and its origins are totally unrelated to work but its existence may have impacted on all his relationships and on all his work performance prior to and to some extent since the commencement of its treatment in November 1999. 

Other probably diagnoses are 

B.       Personality Disorder (Dependent Type)…

C.       Dysthymic Disorder (Recurrent)...

The possibility, but in my opinion not the probability, is that he also suffers from

D.       Recurrent Major Depressive Disorder...”

1. He went on to say:

“It would seem most probable that in response to his suddenly perceiving himself to be experiencing insult, especially from his wife or his supervisor, or misfortune, he experiences sudden ‘plunges’ into states of dysthymia, or deeply depressed moods, sometimes with somewhat melodramatic behaviours and suicidal thoughts.”

1. The doctor concluded that:

“He has continued to attend and has remained totally cooperative with medication for his Attention Deficit Disorder.  He is on no other medication.  It is reasonable to suppose, now, that his only disorder, if ADD can be considered a ‘disorder’, is ADD.  In my clinical judgment he has not at any time suffered from any ‘categorical’ or ‘clinical’ mental illness, despite it having been suspected initially that he might have.

…

As far as can be ascertained by talking with him on many occasions over the years he has a perfectly good and appropriate relationship with the children of the marriage.  There is no reason to suppose that he abuses the medication or has any other illegal medication now.”

1. The doctor was not required to give any evidence in the sense he was not required for cross‑examination and the evidence that the doctor might have been able to give relating to the ramifications of the father's history and prognosis and its possible consequences for caring for the children were just not available to the Magistrate.

1. The other evidence of significance of a medical nature related to the children themselves.  There were reports from a Dr S.  Dr S was not required to give any oral evidence in the proceedings.  He indicated that he was treating both of the children and in his recent reports he said that he saw M in May 2004.  He had prescribed for him Ritalin, one tablet after breakfast and one tablet at midday.  His neurophysiological profile showed a steady progress.  His reading comprehension was above the 98th percentile, while his spelling was age appropriate.  He was progressing well on the present dose and could take a half a tablet of Ritalin on return from school.

1. He said of G that he was taking a 36 milligram Concerta tablet and this seemed to help him.  He was pleased to receive a letter from the school principal reporting how much better he has been with this medication.  His neurophysiological profile showed improvement while his reading and spelling had also shown progress.  He went on to say he is pleased with G's response to Concerta and he had made no change to treatment and his next review was in six months' time. 

1. This was to be seen in the background of both of the children having been diagnosed with Attention Deficit Disorders and the children being involved in some very bizarre behaviour at school that would have no doubt made the Magistrate gravely concerned for their wellbeing. 

1. One can only read with admiration of the capacity of the teachers to meet the needs of the children, the way they had responded to various crises that are set out in the course of the material that have arisen particularly with G. He has  difficulties in reacting appropriately in the presence of other pupils and indeed reacting to appropriate discipline necessary for the proper functioning of the school.  It seemed to be common material before the trial Magistrate that if the children were adequately and appropriately medicated, their situation could be kept basically in check. 

1. Further complicating features in the case concerned themselves with the father's inability to provide for the support of the children through his own incapacity to hold down employment and the ramifications that that seemed to have on his entitlement to receive social security and a necessity for him to then make an application for child support based on the amount of time that he was spending with the children.  This seemed to be something that he thought was particularly aggravating for the mother and eventually he obtained a dispensation from the Child Support Agency requiring him to actually make a claim against her.  This seemed to be one of the underlying themes that he said was influencing the outcome of the mother's reaction to the ongoing contact regime.  It was a matter that was not ultimately pressed in final address by counsel for the husband but it seems to be a matter the pervaded the proceedings to some degree. 

The judgment.

1. In his reasons for judgment, which are, as I have indicated, mercifully brief, the Magistrate first said that the difference between the parties' proposals was comparatively minor and accordingly he was not going to make a full judgment setting out s 68F(2) factors.  He said that his decision depended on one particular issue which would emerge in the judgment.  He then set out the competing proposals, the father's being

“(a)     Each alternate weekend from 3 pm Friday until 9 am Monday.

(b)Each other week from 3 pm on Wednesday to 9 am on Thursday.

(c)For half of each term holiday period.

(d)For five periods of four days in the 2004 Christmas school holidays and thereafter for one half of each Christmas school holiday period.

(e)In addition to contact provided for above, contact with [G] each alternate week on Tuesday from 3 pm until 9 am Wednesday.

(f)In addition to the contact provided for above, contact with [M] each alternate week on Tuesday from 3 pm until 9 am Wednesday.”

and then the mother's being:

“a)From 3 pm each alternate Friday until noon on Sunday.

b)From noon to 6 pm on Sunday in the alternate week.

c)For four nights in each of the mid year school holidays and two periods of four nights in January.

The mother's proposals also make provision for special days.”

1. The Magistrate indicated that although the mother was about to move to Victoria, the litigation was being conducted on that basis and the outcome was not going to be affected by that move. 

1. There were effectively four matters in issue.  One was the duration of the weekend contact, whether it should complete itself on Sunday or continue to Monday.  Another was the issue of midweek contact to both of the boys once a week.  Another was the issue of separate midweek contact to each of the boys once a fortnight.  Finally there was the issue of contact relating to school holidays, both as to frequency and duration.

1. The Magistrate dismissed the issue of the separate contact to the children once a fortnight midweek in one paragraph.  He said:

“I indicate at the outset that I do not intend to make orders that the father have contact with the children individually as he seeks.  I understand the reasons why he seeks to do this but I do not believe that splitting the children in this way for the purpose of contact is appropriate.”

1. That is the entirety of the discussion relating to the claim for the father to see the children on a one‑on‑one basis for one period a fortnight each.  The father's evidence was that at least from the beginning of 2004 M had been with him on Sunday nights while Gr had gone home; then G also stopped coming on Tuesdays in April 2004; that he had a separate holiday with G in April, taking him to South Australia; that he had M on his own for a few days.  He swore as follows:

“The children are very close but very competitive.  [AT] and I used to try and spend time with each of the boys on their own so that they have special time with each parent.  I am still able to do this with [M] on a Sunday night, however, I am no longer able to do this with [G].”

Discussion

1. I should say that it seems to me that the issue of whether or not it is appropriate for there to be a one‑on‑one individual contact with the children is a matter that deserves proper consideration.  It is not an issue of splitting the children, as defined by the Magistrate, but it is an issue of determining whether it is in the interests of each child - there may be competing interests here, but whether it is in the interests of each child to have an opportunity to spend time on a one‑on‑one basis with each of the child's parents.  It may be that it would be inappropriate to make such an order looking at the interests of each of these particular children for reasons that are appropriate, either having regard to their health or regard to the difficulties involved in the logistics of the situation or the disruptive nature that such an arrangement may have to their education. But in my view the simple statement that “I do not believe the splitting of children is appropriate” is an inadequate response to the issue that the Magistrate had to determine.  To that extent, in my view, the issue has not been properly and judicially decided and unfortunately will need to be remitted for the purpose of determining whether it is or it is not appropriate in this case that such contact take place and if so the basis upon which the contact should take place.

1. The second of the four matters that I have described, and perhaps the other overnight midweek contact at least, was dealt with by the Magistrate, firstly making reference to the fact that the father suffered from an Attention Deficit Disorder and that G suffered from an Oppositional Deficit Disorder for which he is prescribed medication, and went on to say:

“There have been occasions when the husband has overlooked providing [G] with his medication.  For these reasons I have reservations about making orders which would involve his taking [G] to school.  Furthermore, I am sure that a regime whereby there was midweek contact would not adversely impact on the stability [G] needs if his condition is to be stabilised.”

1. I should say in relation to that passage that the evidence was not that the father/husband had overlooked providing G with his medication, but the evidence was that the father had in fact overlooked giving M his medication.  

1. It is the mother's evidence that there had been several Monday mornings recorded in the school records in 2004 where the child, M, had come to school after spending the night with his father and had been administered a dose of medication by the school around about 9 o'clock in the morning.  On some occasions the mother had greeted the child at school in the morning and on other occasions the teachers had thought it appropriate that they contact her before giving the child medication.  On each occasion the relevant staff were of the view it would appear that the child required the medication.

1. The mother also gave evidence both in her affidavit and in viva voce evidence that she could see from the child's reaction when she saw him that he was in need of medication and that the child had said that he and dad had forgotten to give him the medication.  The father had denied that he had been neglectful of giving the child the medication.

1. It was apparent from the evidence that it was essential for these children to have regular medication for them to function appropriately within the  school environment and, whilst the finding may have been stronger than was necessary that “there have been occasions when the husband has overlooked providing [G] with his medication”, whilst that is the wrong finding in terms of identifying the chid, it was certainly open to the Magistrate on my view to have properly found there may have been occasions when the husband had overlooked providing one of the children with the medication and that the risks that were attendant upon that were so great that the potential advantage to extending weekend contact into a Monday morning that would run into a school day were outweighed by the need for the children to be guaranteed their medication, and the person best able to do that was the mother.  So whilst there is an attack upon the finding and a suggestion that it was an inadequate finding to explain why the Magistrate reached the conclusion he did, in my view, there is very little more that could be said about it. 

1. Of course there may have been reasons why it might have been appropriate to continue the existence of a situation, at least in respect of M, that had existed for some months, namely, allowing the child to be returned to school on a Monday morning rather than a Sunday evening, but that was a matter for individual discretion. It would be inappropriate for an appellate court to interfere.  It was a conclusion that was open and in my view it is adequately explained as to why that conclusion was reached. 

1. Midweek contact seems to fall within the same purview but I am a little bit more concerned that an inadequate test has been provided in relation to the midweek contact.  In a sense the midweek contact was put before the Magistrate as an all or nothing.  The father was seeking the order along his terms, namely, that midweek contact be 3 pm Wednesday to 9 am Thursday in each week and then in alternate weeks, that is, once a fortnight, in respect of each child, on Tuesday from 3 pm until Wednesday, 9 am. 

1. The evidence was not made available from the children's doctor as to the likely effect upon the children's stability or state of health in providing for such an arrangement, nor was the evidence made available as to what lesser period of midweek contact might be appropriate, say, from after school till 7 o'clock at night, say, once a fortnight or once a week in respect of each child.  There just was a dearth of evidence relating to it, and it was not a matter that seemed to be focused on particularly by counsel in final address, other than generally saying, "This is what my client wants," without focusing on the whys and wherefores of the matter.  However, that may go some of the way to explaining the inadequacy of the reasons but in my view the midweek contact is rejected for two bases:  one, the taking of the children to school and the risk that there would be inappropriate medication provided and secondly that the midweek contact might effectively adversely impact upon the stability G needed, if his condition was to be stabilised. 

1. As I already indicated, that did not, however, absolve the Magistrate from perhaps exploring other options that were open in relation to shorter periods of midweek contact and endeavouring to structure as best the Magistrate could, within the confines of the case as presented to him, issues relating to how the welfare of these children would best be advanced.  I am not satisfied that the midweek contact issue has been fully and adequately explained or explored by the Magistrate and in those circumstances that issue together as part and parcel effectively of the splitting issue needs to be examined again. 

1. Finally, there is the holiday contact.  The reasons for judgment are as follows:

15.The mother also has concerns that the father will have difficulty managing the children if they are with him for extended periods of time. I share those concerns.  I believe that, in the particular circumstances of this case, orders along the lines sought by the mother are appropriate and I propose to make orders which are more or less in line with the orders she seeks.  The only significant difference is that I have allowed two short block periods of contact during the second midyear holiday rather than the one period she sought.”

1. A difficulty that a reader has of determining whether or not the Magistrate has properly dealt with the issue is that the Magistrate does not enlighten us as to what are the concerns of the mother in the circumstances and how those concerns appropriately manifest themselves on the evidence, how the welfare of the children will be adversely affected if the concerns manifest themselves, nor how the welfare of the children will be detrimentally affected if the contact that is sought is not given. 

1. Ultimately there will have to be some subjective determination of what is an appropriate contact arrangement for the summertime or the school holidays and it may well be that minds will differ on what is appropriate.  But it is in my view inadequate to simply say there are concerns and therefore I will act conservatively rather than identifying the nature of the concerns and the reasons why the conservative behaviour is required.  The Magistrate again can be excused effectively in relation to the way in which the case was presented, but ultimately the responsibility is on the judicial officer to explain why it is that one result is reached rather than another so that outcome can be properly examined by an appellate court. 

1. In the circumstances, I think that the appeal must succeed in part, in relation to the issues that concern midweek contact and holiday contact and I propose to remit those matters for reconsideration by a Federal Magistrate, I gather at Melbourne Registry.  The mother has brought an application seeking that I have reference to some updating material but it seems it is a more appropriate matter to be dealt with by the magistrate sitting at first instance rather than my siting as an appellate court.  I propose to make the following orders.

1. In the matter of PS v AT, I make the following orders:

1.The appeal be allowed in part;

2.That Order 3(b) of the orders made by Brewster FM on 26 November 2004 be set aside;

3.That the applications by the father seeking contact to the children, M and G  midweek during school term either on an individual basis or collectively, and seeking school holiday contact be remitted for re‑hearing before a federal magistrate at the Melbourne registry of the Federal Magistrates Court;

4.That order 3(b) of the orders made by Brewster FM on 26 November 2004 remain in full force and effect as interim orders until such time as the matters can be listed for hearing;

5.The usual costs certificate for the appellant under section 9; 

6.Further order for a section 6 costs certificate in favour of the respondent. 

7.Further, that the appellant also have a section 8 costs certificate. 

I certify that the preceding 44 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
The 17th day of August 2005
Associate: Elizabeth Hore