RAMSEY & HAYS
[2017] FamCAFC 54
•20 March 2017
FAMILY COURT OF AUSTRALIA
| RAMSEY & HAYS | [2017] FamCAFC 54 |
| FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – With whom a child spends time – Trial judge made orders for father to have sole parental responsibility and the child to live with the father and spend time with the mother – Earlier decision to deny the mother permission to rely upon the grandmother’s affidavit was unexceptional use of court’s power and did not result in error – Open to trial judge to make order for sole parental responsibility – Trial judge did not fail to consider s 61DA and s 60CC(2) of the Family Law Act 1975 (Cth); did not err in not appointing an Independent Children’s Lawyer; did not fail to consider the risk to the child of the father consuming alcohol – Appeal dismissed – No order as to costs. FAMILY LAW – APPEAL – Interpretation of s 61DA and s 65DAA – Save for the special case of interim proceedings, the presumption in s 61DA always applies except in the circumstances described in s 61DA(2) – The presumption may be rebutted in circumstances described in s 61DA(4) – Subsection 65DAA(6) only applies in circumstances where all aspects of the parenting order are being made by consent –The trial judge’s infelicitous paraphrase of the legislation did not require appellate intervention as he was clearly satisfied that an order for equal time would not promote the child’s best interests. FAMILY LAW – APPEAL –Application to adduce further evidence – Mother’s case would not have been advanced by being permitted to rely upon the evidence – Application dismissed. |
| Family Law Act 1975 (Cth) – s 60CC, s 61DA, s 65DAA |
| APPELLANT: | Ms Ramsey |
| RESPONDENT: | Mr Hays |
| FILE NUMBER: | NCC | 3176 | of | 2011 |
| APPEAL NUMBER: | EA | 86 | of | 2016 |
| DATE DELIVERED: | 20 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Strickland & Hogan JJ |
| HEARING DATE: | 20 March 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 May 2016 |
| LOWER COURT MNC: | [2016] FamCA 353 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Suchowersky |
| SOLICITOR FOR THE APPELLANT: | Northern Suburbs Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Levick |
| SOLICITOR FOR THE RESPONDENT: | Attwaters |
Orders
The appellant have leave to proceed without transcript.
The application of the appellant filed on 16 August 2016 for the court to provide transcript be dismissed.
The application of the appellant filed on 6 March 2017 to rely on further evidence be dismissed.
The time in which the respondent had to make an application to rely on further evidence be extended to today’s date and the application be allowed.
The appeal be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ramsey & Hays has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 86 of 2016
File Number: NCC 3176 of 2011
| Ms Ramsey |
Appellant
And
| Mr Hays |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Thackray J
By Notice of Appeal filed on 7 June 2016 the mother appeals against orders made by Foster J on 16 May 2016 relating to her daughter (“the child”), who was six at the time the orders were made. The child’s father opposes the appeal.
The orders were made in proceedings commenced by the mother seeking to vary consent orders made in February 2013 which provided for:
·the mother and father to have equal shared parental responsibility;
·the child to live with the father; and
·the mother to spend time with the child such that from the time she commenced school in 2015, the child would be with the mother on four nights each fortnight as well as time as agreed during school holidays.
The orders the subject of this appeal provided for:
·the father to have sole parental responsibility provided that he consults with the mother before making long-term decisions (Orders 2 and 3);
·the child to continue to live with the father (Order 4);
·the mother to spend time with the child on three nights each fortnight – or four nights if her time falls on a long weekend (Order 5(a)); and
·the father to ensure that the child is not in the company of the father’s brother “unless another adult known to the child is constantly personally present” (Order 20).
Amongst many other orders made by the trial judge that were not the subject of appeal was Order 5(c), which has relevance to the appeal since it provided for an equal sharing of the child’s time with the parents during Christmas holidays.
The mother was self-represented at trial, while the father had counsel. The mother drafted her own Grounds of Appeal, but had the assistance of a solicitor to prepare her Summary of Argument in support of her appeal. The solicitor also appeared on behalf of the mother today, acting pro bono for which I consider he should be commended. The father was represented by counsel.
Background
The father was 44 years of age at the time of trial and the mother was nearly 43. They commenced living together in 2006 and were married in 2007. The child, who was born in 2010, is their only child. She was only a baby when the mother left the family home in June 2010.
The child initially lived with the mother following separation and spent time with the father. She went to live with the father in July 2011 after the mother was observed to be “psychotic, distressed, having persecutory delusions and thought disorder and was scheduled to the mental health unit” (at [9] of his Honour’s reasons). After the mother was discharged, the father arranged for her to spend regular time with the child provided the mother was assisted by her own mother (“the maternal grandmother”).
In December 2011, the father commenced proceedings. Interim consent orders were made for the child to live with the father. In February 2013, final orders were made by consent in the terms above; however, some 16 months later the mother commenced the proceedings that now give rise to this appeal.
The father has not re-partnered but the mother is now married to another man, notwithstanding that orders were made in February 2013 restraining her from bringing the child into contact with that man. The new husband is a convicted drug dealer whose demeanour the trial judge described as “gruff, overly assertive, unnervingly self-confident and exhibiting an air of aggression” (at [81]).
The grounds of appeal
The mother relied on seven, poorly drafted, grounds of appeal. For reasons that follow, I consider they lack merit and that the appeal should be dismissed.
Ground 1- failure to consider the evidence of the maternal grandmother
This ground arises out of a reference made by the trial judge to the fact that the maternal grandmother had not given evidence in support of the mother’s case. To provide context I will set out the relevant extract from the reasons in which his Honour was discussing the factors arising under s 60CC of the Family Law Act 1975 (Cth) (“the Act”):
123.… The nature of the child’s relationships with other persons including extended maternal family is not the subject of evidence. Indeed during the course of the trial comment was made as to the absence of evidence from the maternal grandmother in support of her daughter.
The mother’s complaint is that her mother had, in fact, sworn an affidavit in support of her case but that Austin J (who was originally scheduled to hear the trial) “withdrew” the affidavit “for reasons unknown”. This was said to have occurred at a directions hearing on 30 July 2015.
I set out below the relevant part of the transcript of the hearing on 30 July 2015:
HIS HONOUR: … So who do you think should come along and give evidence that will support your case for you to have equal shared parental responsibility and for [the child] to live principally with you?
MS [RAMSEY]: My mother ... She has made an affidavit.
HIS HONOUR: Right. What’s she likely to tell me about this?
MS [RAMSEY]: I guess things that she’s witnessed and - - -
HIS HONOUR: What sort of things?
MS [RAMSEY]: Observing me as a mother.
HIS HONOUR: Well, her observations of you as a mother aren’t going to help me very much because that’s just going to be her opinion and I don’t want to sound nasty about this but she could be the world’s worst parent that you are the world’s best parent doesn’t really help [sic]. So the first thing you wanted her to say was things she’s observed. What sort of things did you have in mind? What - - -
MS [RAMSEY]: If that’s your opinion, your Honour, I would rather call my [new husband] as the witness, then.
HIS HONOUR: Yes. All right. Well I – that’s a reasonable proposal, because if you live together and [the child’s] going to be in that household I would like to hear something from [your new husband]. But I don’t want to shut you out without good reason. So if you want to call your mum you’ll need to give me a good reason. So is there anything thing [sic] that she’s seen, do you believe, that’s going to be relevant to the outcome of the case?
MS [RAMSEY]: Not that I can think of right now.
HIS HONOUR: All right. Well, it doesn’t immediately occur to me how she could help me very much because your proposal is that the father’s a good enough parent for [the child] to spend, you know, several days each fortnight with him and for half of [the] school holidays. This case seems to have been started by you because of a concern about [the child’s] safety with her paternal uncle. And the case being run by the father is that “[the child] won’t be allowed to have anything to do with my brother, at least – in the absence of a responsible adult like me or a paternal grandparent.” So your case, as you’ve told me, is that [the child] should spend substantial amounts of time with the father manifests your acceptance that he’s a capable parent.
So in that circumstance I can’t see how your mother can add much to the mix, as distinct from [your new husband]. The reason I have exceeded [sic] to the evidence being called from the paternal grandparents is because [counsel for the father] tells me they’re not coming along to give me any opinion evidence about how good a father the father is, or how bad a mother the mother is. They’re coming along to say what they observed in relation to certain allegations that have been made in relation to the paternal family. So they’re going to be high [sic] witnesses, if you like, giving evidence as to fact, not opinion. So unless there’s something else you can tell me about your mum, I won’t be persuaded to let you call her.
MS [RAMSEY]: She can give evidence in fact, as being a witness with the allegations against [the father’s brother].
HIS HONOUR: What sort of fact would she be able to tell me about?
MS [RAMSEY]: The behaviour she observed with [the child] and what happened at those times.
HIS HONOUR: But it’s not in contest, is it? Because the father, although the father and the paternal family might not accept the truth and veracity of all the allegations concerning [the father’s brother], they’re going to run the case on the basis that the mother’s desire for there to be an injunction preventing [the child] to have anything to do with [the father’s brother], other than under the supervision of another adult, is okay by us. Do you understand? So it doesn’t serve any purpose, in this case, for me to work out what, if anything, [the father’s brother] did, because the father conceded that an injunction, a restraining order should probably be made in the proceedings, placing an embargo upon the interaction between [the child] and [the father’s brother]. So it’s not a controversial fact anymore.
MS [RAMSEY]: I see.
HIS HONOUR: Anything else?
MS [RAMSEY]: No. Not at this stage, your Honour.
At the conclusion of the hearing on 30 July 2015, Austin J made various orders to ensure the matter was ready for trial in December 2015. Those orders gave leave to the mother to rely upon one affidavit by herself and one by her new husband (Order 6) and also gave leave to the father to rely upon one affidavit by himself and one by each of his parents (Order 7).
Order 8 made by Austin J provided as follows:
8.Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits, without the leave of the court.
These orders carried two notations, both of which are relevant to this appeal. The first notation concerns Ground 1 as it provided as follows:
Pursuant to ss 69ZN(4), 69ZP, 69ZQ(1)(a), 69ZX(1), and 69ZX(2) of the Family Law Act, the applicant mother was denied leave to adduce evidence from the maternal grandmother.
The sections of the Act to which his Honour referred are those which lay down the principles governing the conduct of child-related proceedings and the powers given to the court to give effect to those principles. These emphasise that it is for the court itself “to actively direct, control and manage the conduct of the proceedings” and to determine which issues require consideration and which witnesses are to be called in relation to those issues.
No appeal was brought against the orders of Austin J, nor is it suggested that at any point subsequently the mother sought leave to rely upon the affidavit that her mother had sworn on 12 December 2014.
The mother asserts in Ground 1 that:
Information contained in this affidavit provided support and co-oborrated [sic] the allegations of abuse to which the maternal grandmother was a witness to a disclosure. The maternal grandmother has worked with children at risk of abuse in her role as a nurse and has qualifications in this area to identify children at risk. The maternal grandmother was also witness to the kerbside intimidation and harassment at changeovers. There has been a loss of co-oborating [sic] evidence which should have been afforded to the mother at court including the applicants standard of parenting and her capacity to look after her child.
We have been asked to receive as further evidence a copy of the affidavit of the maternal grandmother in order to consider Ground 1. The affidavit attests to:
·the parenting capacity of the mother; the relationship between the mother and the child; and the activities undertaken during the visits which were supervised by the maternal grandmother (paragraphs 3 to 15);
·matters relevant to the assertion that the child had been abused by the father’s brother (paragraphs 17 to 23);
·a conversation relating to the date on which the child should commence school and the father’s willingness to waive the requirement for the mother’s overnight time with the child to be supervised (paragraph 24);
·the condition in which the child was delivered for visits (paragraphs 25 to 29); and
·the fact that when the maternal grandmother attended changeovers at the father’s home she had observed various members of the father’s family to be in the vicinity, including the father’s brother (paragraphs 30 to 31).
The issue of “abuse” referred to in Ground 1 related to the alleged conduct of the father’s brother. As Austin J pointed out at the directions hearing (and as the mother seemed to accept at the time) this was not expected to be an issue at trial because the father was prepared to consent to an order that he “shall not cause or permit the child to be in the company of [the father’s brother] unless another adult known to the child is constantly personally present”.
Furthermore, on the mother’s own case, the child was to spend half of her time living with the father – and the question of whether or not the father’s brother had abused the child was not said by anyone to be a relevant consideration in determining the time the child should spend with each of her parents.
As for the issue of “kerbside intimidation and harassment at changeovers” mentioned in Ground 1, the maternal grandmother made no reference to such matters in her affidavit, instead merely referring to the presence of members of the father’s family at changeovers.
The mother’s remaining concerns expressed in Ground 1 about the absence of corroborating evidence concerning her parenting and capacity to look after the child are, in my opinion, misplaced in circumstances where his Honour found:
·at [42] that mother and child “appear to have an active and engaging relationship”; and
·at [128] that “subject to appropriate engagement with her health professionals there is no evidence to suggest that the mother will not have capacity to provide for the needs of the child when the child is spending time with her”.
These findings need to be understood in light of the fact that the father’s case was not so much about the mother’s capacity to look after the child but rather about her fluctuating mental health which the Family Report writer considered could “at times impede her parenting capacity” (at paragraph 147 of her report recited by his Honour at [93]). It should also be observed that while the affidavit of the maternal grandmother was not in evidence before the trial judge, the Report Writer had read the affidavit and mentioned it in her report.
I am satisfied from my consideration of the maternal grandmother’s affidavit and his Honour’s reasons that the mother’s case would not have been advanced by being permitted to rely upon the affidavit. The decision of Austin J to deny the mother permission to rely upon the affidavit was, in my view, an entirely unexceptional use of the power of the court to ensure that the limited resources of the court are directed to the central issues in child-related proceedings.
It is unfortunate that the trial judge was apparently not made aware of the fact that the mother had not been permitted to rely upon the affidavit of the maternal grandmother. I accept that if his Honour had been advised of what had transpired at the directions hearing he would not have made the remark he did at [123]. It is apparent to me, however that what his Honour said at [123] was little more than a passing observation, and of relevance only to the issue of the nature of the child’s relationships with the mother’s extended family.
We were not taken to any part of the record to suggest that the child did not have a good relationship with her maternal grandmother, nor was any argument advanced to persuade me that the quality of the relationship would have made any difference to whether the child lived with her mother for three, four or seven days a fortnight.
For these reasons, I consider Ground 1 lacks merit.
Ground 2 – order for sole parental responsibility
This ground challenges the order made for the father to have sole parental responsibility for the child. The father had sought such an order, whereas the mother was proposing a continuation of the order made by consent in February 2013.
In dealing with the issue of parental responsibility, the trial judge set out at [93] this extract from the report of the Family Consultant:
147. This is not a matter suited to a shared care arrangement given the lack of trust between the parents and the animosity displayed by the mother and her partner towards the father and towards other members of the paternal family. It is further suggested that shared parental responsibility is not an option here, particularly in light of the mother’s unwillingness to abide by Orders or to respect the views held by the father. While the mother’s Bipolar Disorder can at times impede her parenting capacity, her personality traits along with her behaviour have also contributed towards the current difficulties with regard to the co-parenting relationship and these are viewed as unlikely to resolve in the near future. The Court may need to consider the option of awarding sole parental responsibility to the parent with whom the child is to live.
The Family Consultant went on to opine that it would be in the child’s best interests to spend time with the mother on only four occasions each year “for identity purposes only”. The Family Consultant in her oral evidence at trial moved away from the recommendation relating to such limited contact, but she maintained her concerns about equal shared parental responsibility as appears from the following extract from his Honour’s reasons at [97] where he recited the evidence given orally by the Family Consultant:
But you have some reservations about equal shared PR? Yes, I do.
And if there was an order for sole PR, but with an obligation to consult, but have the final decision, and also to authorise the provision of information, that might be something that would accommodate the mother? Yes.
Would that – do you think that would be appropriate? Yes, that would
It would send a clear signal? Certainly help.
His Honour commented that “this conclusion was further reinforced by the family reporter a short time later”.
His Honour went on at [106] and [107] to set out the relevant statutory provisions applicable to the allocation of parental responsibility. I will have something to say about this at the conclusion of these reasons but it was not argued on appeal that his Honour had misstated the law. His Honour’s discussion made clear that he understood that while there was a presumption in favour of equal shared parental responsibility, the presumption had to give way in the event he considered that an order for equal shared parental responsibility would not be in the child’s best interests.
The portion of his Honour’s reasons dealing specifically with the allocation of parental responsibility was very brief. His Honour said only this:
133.A consideration of the best interest factors above render it clear that shared parental responsibility is not in the child’s best interest. The Family Consultant makes considered recommendations as to the allocation of parental responsibility to the father. In the circumstances as discussed above it is entirely appropriate that such recommendation be implemented.
134.In such a circumstance the presumption of equal shared parental responsibility is rebutted.
It will thus be seen that his Honour determined that it was in the best interest of the child for the father to have sole parental responsibility because of the matters he had discussed when considering factors under s 60CC, and because he accepted the recommendation of the Family Consultant.
In arriving at his conclusion about parental responsibility, his Honour did not make any specific mention of this finding made earlier in his reasons:
50.There have been some communication difficulties between the parties particularly in relation to arrangements for the child by agreement outside the terms of the current interim orders. Notwithstanding, the mother and father have been able to agree in relation to the child’s education, religion and health needs.
We are, of course, left in doubt as to precisely which of the “best interest factors” his Honour had discussed which rendered it “clear that shared parental responsibility is not in the child’s best interest”. However, I accept that at least two of the findings provide a sufficient basis for his Honour’s decision, when combined with his acceptance of the opinion of the Family Consultant:
·“The father quite rightly has concerns as to the mother’s ability to control her emotional and psychological reactions that caused her to perceive, unnecessarily, that her relationship with the father is to be combative and protective of her concerns in relation to the child” (at [113]); and
·“The mother for her part appears to have limited reflective capacity as to the impact of her mental illness on her relationship with the father that to some extent continues to be conflictual and suspicious. It is hoped that the mother will maintain engagement with her mental health professionals such as she will have an appropriate attitude towards the child, particularly the child’s relationship with the father and to her responsibilities of parenthood” (at [129]).
Although his Honour found that the parents had been able to agree matters relating to education, religion and health, I nevertheless consider that it was open to him to determine that it was in the best interests of the child for the father to make future decisions concerning long-term issues relating to her welfare in circumstances where:
·he found at [112] that while the conflict between the mother and the father appeared to be “diminishing” it was nevertheless “ongoing”;
·the order for sole parental responsibility was accompanied by an order “that the father shall consult with the mother in regard to long-term decisions proposed to be made by him in respect of the child’s long term care, welfare and development and the father shall inform the mother in a timely fashion of those decisions which he makes”; and
·the Family Consultant’s earlier recommendation that the mother’s time be restricted to contact “for identity purposes only” had been made because it “would appear to be the only way to ensure that the child is able to experience a childhood free from ongoing conflict and ongoing emotional and psychological harm”.
Although his Honour did not expressly say so, I accept that the order he made relating to parental responsibility provided a circuit breaker for future conflict between the parents relating to long-term issues, thereby hopefully reducing the prospects of the child being harmed by ongoing conflict.
While I accept that his Honour might have provided more comprehensive reasons for varying the earlier consent order for equal shared parental responsibility, I consider his reasons are adequate and that appellate interference in his discretionary conclusion is not warranted.
For these reasons, Ground 2 fails.
Ground 3 – failure to ensure the child has a meaningful relationship with the mother
Ground 3 asserts that:
His honour failed to consider section 60CC in relation to time spent with the mother and having a meaningful relationship. Time in care has been reduced with the mother after these recent proceedings and telephone access has been limited to every second night.
The mother’s solicitor recast this complaint in the Summary of Argument to read that the trial judge had “failed to apply the provisions of Section 60CC in such a way as to permit the child to have the best opportunity to have a meaningful relationship with the mother”.
Whichever way the ground is framed, it comes up against the obstacle that his Honour did have regard to the primary consideration in s 60CC which deals with “the benefit to the child of having a meaningful relationship with both of the child’s parents”, since his Honour discussed this at [110] to [116] of his reasons. His Honour rejected the suggestion that the mother’s time with the child should be restricted to just four occasions a year for “identity purposes” and instead laid down a regime of regular visitation which ensured that the child spent time with the mother for part of every week and spoke to her every second day.
His Honour’s orders reflected the (revised) recommendation of the Family Consultant. Nothing put in argument persuaded me that the orders the subject of this appeal would prevent the child from maintaining a “meaningful relationship” with her mother.
This ground also fails.
Ground 4 – the proximity of the child to the father’s brother
This ground asserts a failure by the trial judge to consider the requirement in the Act relating to protecting children from harm by being subjected to abuse. This failure was said to be demonstrated by the fact that as a result of the orders made by the trial judge, the child would be living next door to the father’s brother.
This complaint is nonsensical when it is understood that the mother’s own proposal involved the child living half her time with the father in circumstances where the mother knew that the father’s brother lives next door to the father. In my view, the mother’s concerns were addressed appropriately by the injunction to which the father consented preventing the father’s brother being in the company of the child unless another adult known to her was “constantly personally present”.
This ground too must fail.
Ground 5 – failure to appoint an Independent Children’s Lawyer
By this ground it is asserted that the trial judge erred in not appointing an Independent Children’s Lawyer (“ICL”) and it was said that his Honour, seemingly as a result of this fact, “proceeded without adequate evidence”.
I earlier referred to the fact that the orders made by Austin J carried two notations. The second of these read as follows:
Although the Family Consultant recommended in the Family Report dated 21 July 2015 that an Independent Children’s Lawyer be appointed to represent the child’s interests in these proceedings, neither party was inclined to make application for such appointment and the Court declined to make such appointment of its own volition.
His Honour’s notation is thoroughly borne out by reference to the following extract from the transcript of the proceedings on 21 July 2015:
HIS HONOUR: … The second thing is, the family consultant recommends the appointment of an independent children’s lawyer. An independent children’s lawyer is a lawyer appointed by me, funded by the community, to appear in this case as the representative of [the child], without any regard for what you want, and without any regard for what the father wants, so that [the child] is independently represented. You might think that’s a good idea. Often it is, but you need to understand that there’s a cost. Even though that lawyer is funded by the community, the Legal Aid Commission that pays that lawyer expects you and the father to contribute to the costs of that, and that can run into several thousand dollars. You’re not receiving any legal aid, because if you were, you would have a lawyer here, representing you. [The father] is not receiving legal aid. He’s here, legally represented by his solicitor and his barrister, so there’s no obvious reason that I could see that the Legal Aid Commission would waive its usual requirement for the parties to contribute to the cost.
So, whether you would like me to appoint an independent children’s lawyer to look after the interests of [the child] would be influenced by you having to understand that you would likely be called upon to contribute several thousand dollars to the cost of that lawyer between now and the final hearing. Even though the family consultant … has recommended that an independent children’s lawyer for [the child] be appointed. The father is not making that application, so are you going to ask me to appoint an ICL for [the child]?
MS [RAMSEY]: I don’t think it’s – I agree with the recommendation, but after what you’ve said I don’t see that it could be necessary, as she is very young, to put her through that.
HIS HONOUR: Yes. All right. Well, if you’re not making an application for me to appoint the ICL, and the father’s not making an application for me to do so, I don’t think it’s appropriate in the circumstances, in this case, that I do so of my own volition.
MS [RAMSEY]: Okay.
Nothing put in argument suggested to me that it would have been in any way appropriate for the trial judge to appoint an ICL in circumstances where the parties themselves had previously declined to seek such an appointment. Quite apart from any other consideration, as the mother’s solicitor properly conceded today, had his Honour made such an appointment the trial would have had to be adjourned, in circumstances where it had been adjourned once already when it could not be reached in the list.
In the mother’s Summary of Argument, it was argued that if an ICL had been appointed, evidence would have been provided “from an independent source”. We were not told what that “source” might have been, or what further evidence might have been adduced which the parties themselves could not have adduced.
This ground is therefore entirely devoid of merit.
Ground 6 – failure to consider the risk of the father consuming liquor
By this ground the mother asserts that:
His honour erred in failing to consider the risk to the child of the father consuming intoxicating liquor whilst the child is in the father’s care. In the previous orders of 2013 there were orders abstaining the father from consuming alcohol within 12 hours of being in care of the child. (This order was also removed, even though it has never been proven that the father has abstained from his abuse of alcohol).
The trial judge was aware that the father’s use of alcohol was potentially a factor in the proceedings. Indeed at the outset of his reasons his Honour said:
2.The significant overshadowing circumstances in relation to these proceedings is the mother’s mental health in particular her Bipolar Disorder and the father’s abuse of alcohol.
His Honour went on to record that:
7.The father was admitted to … Private Hospital in April 2009 for assistance with his alcohol dependence. He had previously had two drink-driving offences in 2005/2006. After the commencement of their relationship the mother continued to have misgivings about the father’s alcohol abuse.
...
13.The father, reports the family consultant, ceased drinking in January 2011 and had remained abstinent until the time of the Report. The father further engaged with the Brighter Futures program when the child came into his care and was assisted with parenting advice.
His Honour went on to find as a fact that:
54.The father has not consumed alcohol since early 2011 except on one special occasion [in] November 2015.
It will be observed that the ground of appeal does not challenge this finding, notwithstanding that the mother herself continues to believe that the father consumes alcohol to excess. The failure of the mother to challenge this finding significantly erodes any potential merit in this ground. The difficulties confronting the complaint become insurmountable when it is recognised that:
·we do not have a transcript of the proceedings before his Honour and hence are unaware of the way in which the issue was dealt with during the course of the trial; and
·his Honour recorded at [14] that in “late October 2011 the mother reported that the father no longer drank and that he “is a great dad and doing a wonderful job with their daughter””.
This ground therefore also lacks merit.
Ground 7 – failure to consider denigration of the mother
This ground constitutes a specific complaint about the discharge of Order 13.3 of the consent orders made in February 2013 which restrained both parties from denigrating the other or any member of their family in the presence of the child.
The simple answer to this complaint is that the mother did not seek the continuation of this order.
His Honour’s treatment of the statutory provisions
Although I consider they are not material to the outcome of this appeal, I think it is necessary to make some observations concerning remarks made by the trial judge relating to the provisions of the Act dealing with parenting proceedings lest it be thought that I approve of all that he had to say.
When setting out the provisions of the Act, his Honour said:
106.Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b) In interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
107.If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time [s 65DAA(6)].
The language employed by his Honour dealing with the presumption in favour of equal shared parental responsibility was not entirely accurate. Save for the special case of interim proceedings, the presumption always applies except in the circumstances described in s 61DA(2), albeit the presumption may be rebutted in circumstances described in s 61DA(4).
Of greater concern, however, is his Honour’s paraphrase of s 65DAA(6), which might be seen as suggesting that, in contested parenting proceedings, the court is not obliged to consider equal or substantial and significant time if the parties have consented to an order for equal shared parental responsibility. If that is what his Honour was suggesting then he has, in my respectful opinion, misstated the law.
Subsection 65DAA(6) provides as follows:
(6) If:
(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
As should be apparent from the provision itself, it applies only in circumstances where all aspects of the parenting order are being made by consent, not just the order for equal shared parental responsibility.
I am troubled also by what his Honour said concerning the application of s 65DAA in the following paragraphs of his reasons:
Equal or substantial and significant time: s 65DAA
135.If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
136.In light of there being an order for the father to have parental responsibility, it is not required that consideration be given as to the child spending equal time or substantial and significant time with each of the parents.
137.Accordingly other orders to be made must be considered in the light of the best interest considerations.
With respect to his Honour, the statement at [136] overlooks the fact that it was the mother’s application that there be an order for equal time. Accordingly, the fact that an order had been made for the father to have sole parental responsibility did not of itself lead to the conclusion that there ought not to be an order for equal time. Although, in my opinion, his Honour’s choice of language is unfortunate, no ground of appeal was directed to this issue, and it is apparent from everything else his Honour found that he was satisfied that an order for equal time would not promote the child’s best interests.
The outcome and costs
There being, in my view, no merit in any of the complaints, the appeal should be dismissed.
The father sought an order for costs in the event the appeal was dismissed. We were informed that the costs incurred were $12,500. The father relied upon the fact that the mother would have been wholly unsuccessful if the appeal was dismissed, and there is of course no doubt that is the case.
The mother’s solicitor opposed the application for costs on the basis that the mother is an undischarged bankrupt and could not afford to meet the costs order. He also referred to her status as a self-represented litigant and he relied also on the impact an order for costs might have on his client who from time to time does not enjoy good mental health.
While the authorities are clear that impecuniosity is no bar to an order for costs, perhaps especially in appellate proceedings, I am persuaded by the submissions of the mother’s solicitor and would order that each party bear their own costs.
The orders that I would propose are these:
1.The appellant have leave to proceed without transcript.
2.The application of the appellant filed on 16 August 2016 for the court to provide transcript be dismissed.
3.The application of the appellant filed on 6 March 2017 to rely on further evidence be dismissed.
4.The time in which the respondent had to make an application to rely on further evidence be extended to today’s date and the application be allowed.
5.The appeal be dismissed.
6.There be no order as to costs.
Strickland J
I agree with the reasons provided by the presiding judge and with the orders proposed, and I have nothing to add.
Hogan J
I also agree with the orders proposed by the presiding judge and the reasons given for those orders and I too have nothing further to add.
Thackray J
For those reasons there will be orders as I foreshadowed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Hogan JJ) delivered on 20 March 2017.
Associate:
Date: 3 April 2017
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