Reece & Reece
[2011] FamCAFC 24
•17 February 2011
FAMILY COURT OF AUSTRALIA
| REECE & REECE | [2011] FamCAFC 24 |
| FAMILY LAW - APPEAL – CHILDREN – appeal from interim parenting orders – whether the Federal Magistrate erred in the interpretation and application of the relevant principles, in particular those enunciated in Goode and Goode (2006) FLC 93-286 – whether the Federal Magistrate erred in failing to consider the family report – whether the Federal Magistrate failed to adequately consider s 61DA and s 65DAA of the Family Law Act 1975 (Cth) – whether the Federal Magistrate failed to provide any or adequate reasons – whether the Federal Magistrate erred in making findings and orders that were not supported by or which were contrary to the evidence – whether the Federal Magistrate failed to take into account all relevant matters – where the final hearing is listed to commence shortly – where there is no utility in allowing the appeal – appeal dismissed. FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – applications by both parties to adduce further evidence – applications dismissed. FAMILY LAW – COSTS - COSTS OF THE APPEAL – no order as to costs. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 93A & 117 Federal Proceedings (Costs) Act 1981 (Cth) |
| Allesch v Maunz (2000) FLC 93-033 Bennett and Bennett (1991) FLC 92-191 CDJ v VAJ (1998) 197 CLR 172 Goode and Goode (2006) FLC 93-286 Marvel v Marvel (2010) 43 Fam LR 348 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Wen & Thom [2010] FamCAFC 81 |
| APPELLANT: | Ms Reece |
| RESPONDENT: | Mr Reece |
| FILE NUMBER: | MLC | 4711 | of | 2010 |
| APPEAL NUMBER: | SA | 62 | of | 2010 |
| DATE DELIVERED: | 17 February 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 18 November 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 August 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 937 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr MacFarlane |
| SOLICITOR FOR THE APPELLANT: | Kelly & Associates Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Cantwell |
| SOLICITOR FOR THE RESPONDENT: | Hogg and Reid |
Orders
The Application in a Case filed by the wife on 3 November 2010 and the Response to an Application in a Case filed by the husband on 12 November 2010 be dismissed.
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Reece & Reece is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 62 of 2010
File Number: MLC 4711 of 2010
| Ms Reece |
Appellant
And
| Mr Reece |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Reece (“the wife”) against interim parenting orders made by Federal Magistrate Turner on 5 August 2010 with respect to the parties’ child M who was born in March 2001 and is now aged 9 years. The respondent to the appeal is Mr Reece (“the husband”). The wife also has an older child from a previous relationship, J, who is now aged 17 years and is not the subject of the parenting orders made by the Federal Magistrate.
The orders of the Federal Magistrate, in summary, discharged previous orders made on 1 June 2010 and provided for the child to live with the husband and spend time with the wife each alternate weekend, after school each Wednesday and during school holidays. Orders were also made for the wife to communicate with the child by telephone on two occasions each week. The parties, the child and the wife’s son, J, were also to undergo therapeutic counselling.
The matter is listed for final hearing before the Federal Magistrate commencing on 15 March 2011.
This appeal is being determined by me as a single judge, following a direction by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Background
The Federal Magistrate’s ex tempore reasons include only limited detail regarding the background of this matter. The following brief background is therefore taken from the parties’ affidavits and documents filed in the Federal Magistrates Court which were before me, much of which does not appear to be controversial.
The wife is aged 46 years and the husband is aged 68 years. There appears to be some dispute as to whether or not the husband is currently in good health.
The parties commenced cohabitation in approximately 1994 and were married in June 1999.
The wife has a son from a previous marriage, J, who was born in March 1993 and is now aged 17 years. The husband has two adult children from a previous marriage.
The parties’ only child M was born in March 2001 and is now aged 9 years.
In July 2009 the husband and wife separated under the one roof. On 20 July 2009 the husband left the former matrimonial home. Following separation M and J remained living with the wife in the former matrimonial home and spent time with the husband.
In November 2009 the parties entered a binding financial agreement which also outlined a parenting arrangement reached by the parties. The agreement (Annexure ‘…R1’ to the husband’s affidavit filed on 24 May 2010) provided that the husband was to spend time with M and J on Tuesday, Thursday and Saturday nights and also spend time with J on Friday nights. The children were otherwise to live with the wife. Provision was also made for the payment of school fees, private health insurance and day to day expenses as well as in relation to the parties’ overseas travel with the children. The wife agrees that she signed the agreement, but alleges she did so under duress.
In December 2009 the wife’s new partner, Mr Q, moved into the wife’s home.
In approximately late December 2009 J commenced living with the husband and thereafter has refused to spend time with the wife.
On 30 December 2009 the wife obtained an interim ex parte intervention order against the husband and J.
On 12 May 2010 the wife’s solicitors sent a letter to the husband advising that the wife was making allegations regarding J’s behaviour towards M.
On 17 May 2010 the wife removed the child from I College where he had been attending and enrolled the child at M Primary school. The husband says the wife did so without his knowledge or consent. The child was returned to I College by his father on 24 May 2010. An incident allegedly occurred at the school on this date when the wife attended at the school and the police were called.
On 24 May 2010 the husband filed an Initiating Application in the Federal Magistrates Court seeking interim and final parenting orders. The husband sought an urgent hearing and on an interim basis sought, inter alia, that he have sole parental responsibility for M, that the wife’s time and communication with the child be suspended, and that the child be forthwith re-enrolled at I College. The husband also sought orders for the wife to be psychiatrically assessed and for the preparation of a family report.
On 24 May 2010 the husband also filed a Notice of Child Abuse or Family Violence in which it is alleged that the wife physically disciplined M and J with a whip and that M is fearful of his mother. In the notice reference is made to the allegations as contained in the husband’s affidavit and also disclosures made by the children to Mr W, a school counsellor at I College. The husband also filed on this date an affidavit of Mr W, to which is annexed a report prepared by him regarding his involvement with the family.
On 24 May 2010 the husband obtained an interim intervention order against the wife on behalf of J and himself.
On 1 June 2010 interim orders were made by Federal Magistrate Turner. Those orders provided, inter alia, for the child M to live with the husband until 4 August 2010 (the adjourned hearing date) and spend time with the wife from 9:00am to 5:00pm on Saturday and Sunday in each alternate weekend and each Wednesday from 3:30pm to 8:00pm. The wife’s time with the child was to be supervised by her current partner Mr Q. Orders were also made by consent providing for the child to remain at I College, appointing an Independent Children’s Lawyer to represent the child and for the parties to attend upon Dr N for the purposes of the preparation of a family report.
On 4 June 2010 both the husband and the wife obtained intervention orders against each other under the Family Violence Protection Act 2008 (Vic). Both the husband and the wife consented to the intervention orders without admission of the allegations. The order obtained by the husband included M and J as protected persons. Both orders operate for a period of twelve months.
On 3 August 2010 Dr N provided a family report recommending that M “return to a shared care arrangement”.
The hearing on 4 August 2010 was adjourned to 5 August 2010. On this date, following lengthy submissions on behalf of the parties, the Federal Magistrate delivered ex tempore reasons for judgment and made the interim orders which are the subject of this appeal.
Reasons for judgment of the Federal Magistrate
After outlining the current arrangement between the parties concerning the care of M, the Federal Magistrate recorded the proposals of the parties. The wife proposed the child spend seven out of fourteen nights with her, or if that was not accepted, five nights out of fourteen. The husband opposed both of these proposals. The wife also sought telephone contact on Tuesday and Wednesday nights when the child was with the husband. The wife also sought that the child spend half of the summer school holidays with her, which the husband also opposed. The parties agreed on the arrangement for Christmas Eve/Christmas Day.
The Federal Magistrate recorded that there were limited uncontested facts in the matter, but that it was agreed that the wife had taken out an intervention order against J, that the wife had unilaterally removed M from I College and that J had reported that he had been whipped by his mother. It was also agreed that the child had a good relationship with his father and that the wife had not offered to contribute towards the costs of providing for him.
The Federal Magistrate identified that the main issues in dispute were whether M had suffered violence with his mother and thus the amount of time he should spend with his mother pending the final hearing.
The Federal Magistrate then dealt in turn with each of the considerations in s 60CC(2) and (3). His Honour found it would be of benefit to the child to have a meaningful relationship with both his parents, but, by reference to the complaints made to Mr W, Dr N and the husband, there was a need to protect M from family violence. The child wanted to spend time with both his parents and although he has a good relationship with his father, the Federal Magistrate was doubtful whether he had a good relationship with his mother at that time.
The Federal Magistrate determined both parents were willing for the child to spend some time with the other parent, but that there would be adverse consequences for M if he was to be separated from his father and brother J more than was necessary, to which his Honour said he would give “great weight”.
The Federal Magistrate was satisfied the husband could provide for the emotional and intellectual needs of M, but was doubtful as to the wife’s current ability.
His Honour had regard to the fact that the husband had taken over full responsibility for J, who is not his biological child, and also accepted major responsibility for M, as well as being predominantly financially responsible for both children.
Addressing the issue of violence in this matter, the Federal Magistrate could not make any finding as all the evidence was contested, but noted the disclosures made by J and the family violence orders made against both the wife and the husband.
In considering any other relevant fact or circumstance under paragraph (m), his Honour recorded that the family was “dysfunctional” and that M’s relationship with his mother needed to be facilitated.
The Federal Magistrate found that the husband had fulfilled his responsibilities to both J and M, and although the wife fulfilled her responsibilities to M when he is her care, she had not otherwise offered to contribute towards his care and support. His Honour found both parties attempted to communicate with the child when he was not in their care, however, the wife had failed to involve the husband when she removed the child from I College.
His Honour observed the communication between the parties was getting more difficult, and that the children were “enmeshed” in the parents’ conflict.
Ultimately, the Federal Magistrate found that the child would benefit from spending time in a stable environment with the husband and J. His Honour considered the most important factors to be the need to protect the child from physical harm or being subjected to family violence and the likely effect of a change in the child’s circumstances. His Honour found it was not in the child’s best interests to be separated from his brother or his father more than was necessary to enable there to be a meaningful relationship between M and his mother. Thus his Honour concluded it was in the child’s best interests for the child to spend time with the wife according to the husband’s proposals.
Orders made on 5 August 2010
The formal order made by the Federal Magistrate on 5 August 2010 relevantly provides as follows:
1. Interim parenting orders are made in accordance with the Minutes of Orders dated 5 August 2010 and placed on the Court file.
2. The solicitors for the Applicant file three clean typescript copies of those minutes within 7 days to be certified as a true copy of the original.
3. The parties and the children [M] born … March 2001 and [J] born … March 1993 attend upon [Mr P] for the purposes of non-reportable therapeutic counselling with the cost to be shared by the parties and the [husband] is to use his best endeavours to ensure that [M] and [J] attend that counselling.
4. The parties are free to provide [Mr P] with a copy of all the documents on the Court file, including the report of [Dr N] dated 3 August 2010.
5. The Court authorises the release of all subpoenaed material to the parties and [Mr P] by consent.
6. The matter be fixed for final hearing at 10am on 15 March 2011 with an estimated hearing time of three days.
…
The Minutes of Order to which order 1 above relates contains the relevant parenting orders as follows:
Upon the undertaking given by [Mr Q] that he will not re-apply for the return of the firearms previously in his possession:
IT IS ORDERED
1. The Orders dated 1 June 2010 be discharged.
UNTIL FURTHER ORDER:
2. That the child [M] born … March 2001 live with the Husband.
3. That the said child spend time with and communicate with the Wife as follows:
(i)each alternate weekend from 9am on Saturday to 5pm Sunday commencing 7 August 2010;
(ii)such other times as may be agreed in writing;
(iii)by telephone on Tuesday and Thursday between 6pm and 8pm with such call to be made to the child’s mobile telephone number, […];
(iv)from 3pm Christmas Eve to 3pm Christmas Day 2010;
(v)for two weeks during the long summer school holidays at such times as agreed but failing agreement for the first and third week of such holiday period;
(vi)each Wednesday from 3.30pm or after school until 8pm commencing Wednesday 11 August 2010;
4. That the Husband shall be entitled to communicate via telephone each Tuesday and Thursday between 6pm and 8pm when the child is in the care of the Wife and such call to be made to the said child’s mobile telephone.
5. That all changeovers shall occur at the [C] Police Station save when changeover is able to be facilitated at school on a Wednesday afternoon.
6. That the parties, together with [M] and [J] attend upon [Mr P] for the purpose of non-reportable therapeutic counselling and the cost of which shall be born equally between the parties provided that the Husband shall use his best endeavours to ensure that [J] attends such counselling.
7. That the parties be granted leave to provide to [Mr P]:
(a)copies of all material filed in the Court;
(b)Copy report from [Dr N] dated 3 August 2010;
(c)Copy subpoenaed material;
…
The wife has indicated in her Amended Notice of Appeal that she appeals orders 2, 3 and 4. Although not specified, given the nature of the appeal, this must refer to orders 2, 3 and 4 as contained in the Minutes of Order above.
This highlights a common problem where minutes of order are presented and the formal order of the court is that orders are made in accordance with those minutes. Confusion inevitably follows and in my view what should happen is one order should be promulgated incorporating the specific terms of the minutes of order.
Grounds of appeal
The wife’s Amended Notice of Appeal filed on 3 November 2010 contains the following grounds of appeal:
1. The learned Federal Magistrate misdirected himself as to the application of the relevant legal principals [sic] and in particular erred in his interpretation and application of the principles enunciated in Goode and Goode [2006] FamCA 1346.
2. The learned Federal Magistrate erred in the exercise of his discretion and/or, at law, by making orders which were not supported by the evidence or were against the weight of the evidence or omitted to take into account relevant matters.
3. The learned Federal Magistrate gave no, or inadequate, reasons from which the Court can discern either expressly or by implication, the path by which His Honour concluded that it was in [M]’s best interest to spend time with his Mother each alternate weekend from 9am Saturday to 5pm Sunday, each Wednesday from 3:30pm until 8pm and for 2 weeks during the long summer school holiday and failing agreement for the first and third weeks of such holiday.
4. The findings made by the learned Federal Magistrate were:-
b.Contrary to the evidence and / or against the weight of The [sic] evidence
c.Were wrong at law
d.Were, in all of the circumstances of this case, not a finding reasonably open to the Federal Magistrate
5. There is no or little evaluation by the learned Federal Magistrate of the evidence as it relates to each of the relevant sections of the Family Law Act under section 60CC(2).
6. The learned Federal Magistrate erred in his application of section 65DAA of the Family Law Act
7. The learned Federal Magistrate erred in failing to take into consideration the contents and recommendations of the Family Report prepared by [Dr N] dated 3 August 2010.
8. The learned Federal Magistrate failed to relate the evidence to the legal principles applicable to the determination of the matter.
The wife sought in the event her appeal was successful that I re-determine the matter, rather than remit this matter to the Federal Magistrates Court for re-hearing. The wife specifically sought the following orders:
1. The Appeal be allowed.
2. That paragraphs 2,3 and 4 of the Orders made by the Federal Magistrate on 5 August 2010 be discharged.
3. That until further order the child [M] born … March 2001 live with the Husband and the Wife on a week about basis with changeover taking place at the children’s school each Friday at the conclusion of school commencing on the first Friday following the making of these Orders.
4. That notwithstanding the above, in the event that the child is living with the Husband during the following periods the Wife spend time with the child:-
4.1from 3:00pm Christmas Eve to 3:00pm Christmas Day
4.2From 6.00pm on the evening before Mother’s day to the commencement of school on the Monday following Mother’s day
4.3On the child’s birthday and the Wife’s birthday from after school to 8.00pm if a weekday or from 3.00pm to 8.00pm if a weekend or public holiday
4.4As may be otherwise agreed between the parties.
5. That notwithstanding the above, in the even that the child is living with the Wife during the following periods the Husband spend time with the child:-
5.1from 3:00pm Christmas Eve to 3:00pm Christmas Day
5.2From 6.00pm on the evening before Father’s day to the commencement of school on the Monday following Father’s day
5.3On the child’s birthday and the Husband’s birthday from after school to 8.00pm if a weekday or from 3.00pm to 8.00pm if a weekend or public holiday
5.4As may be otherwise agreed between the parties.
6. That the non-resident parent may be at liberty to communicate with the child by telephone on Tuesdays and Thursdays between 6:00pm and 8:00pm with such call to be made to the child’s mobile telephone number […].
7. That all changeovers not taking place at the child’s school take place at [C] Police Station. (Emphasis in original)
The husband seeks that the wife’s appeal be dismissed.
Applications in the appeal
On 3 November 2010 the wife filed an Application in a Case seeking to adduce further evidence in the appeal. That evidence sought to be adduced was in the nature of an affidavit filed by the wife on the same date. No objection was raised to this application being made by way of an Application in a Case rather than an Application in an Appeal as required by the Family Law Rules 2004 (Cth).
On 12 November 2010 the husband filed a Response to an Application in a Case seeking that he also have leave to adduce further evidence as contained in an affidavit filed by him on the same date.
At the hearing before me counsel for the husband clarified that he opposed the wife’s application to adduce further evidence, and in the event that the application was dismissed the husband would not be pursuing his application as contained in his response. Counsel for the wife did not oppose the husband’s application in the event that the wife’s application to adduce further evidence was granted.
I indicated to counsel at the hearing that I would not be allowing either party to adduce the further evidence as sought and would incorporate my reasons for this determination in my final reasons for judgment on the substantive appeal.
As mentioned, the wife wishes to adduce evidence as contained in her affidavit filed on 3 November 2010. The affidavit addresses three issues.
Firstly, the wife responds to an affidavit filed by the husband on 4 August 2010, namely the day before the hearing before the Federal Magistrate. Counsel for the wife submitted that the husband’s affidavit was filed late in the proceedings and was admitted into evidence and considered by the Federal Magistrate without the wife having an opportunity to respond to this affidavit. Counsel for the wife conceded, however, that no application was made before the Federal Magistrate seeking an adjournment to respond to this affidavit. In this regard counsel for the wife submitted that she took a “pragmatic approach” before the Federal Magistrate in relation to the issue of the late filing of the affidavit.
The wife’s affidavit also raises matters that have occurred between the parties since the hearing before the Federal Magistrate.
Finally, attached to the affidavit are two annexures which consist of subpoenaed material that was not before the Federal Magistrate. Annexure …R1 consists of records from the child’s school and Annexure …R2 is a record of the child’s attendance at hospital on 4 June 2009.
In opposing the wife’s application, counsel for the husband highlighted the fact that there was no application to the Federal Magistrate for an adjournment by the wife, that by seeking to adduce the material in the affidavit she is effectively seeking a continuation of the hearing before the Federal Magistrate and that, with reference to the amended grounds of appeal, the affidavit material does not take the matters raised on appeal any further.
Section 93A(2) of the Act provides that on appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. The principles relevant to the adducing of further evidence on appeal were outlined by the High Court (McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172 at 200:
104. In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry.
…
107. The discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way. In particular, the subsection contains no requirement, comparable with that often found in statutes conferring power on an appellate court to receive further evidence, that “special grounds” or “special leave” be shown before the evidence can be adduced. Nor, in contrast to the common law position, must the motion to receive the evidence be designed to set aside the verdict at first instance. Nothing in s 93A(2), for example, prevents the respondent to the appeal from bringing a motion to adduce further evidence to support the orders made.
108. When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion. The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation. That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered, a point recognised by the Full Court in In the Marriage of Abdo. Although the discretion to admit further evidence is not attended by any express words of limitation, the subject matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.
109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
113. In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section. (Footnotes omitted)
I observe that the discretion to admit further evidence should be exercised sparingly.
I agree with the submission of counsel for the husband that the material sought to be adduced by the wife in her affidavit will not assist the Court in determining this appeal, and that the affidavit smacks of an attempt to, in effect, continue the hearing before the Federal Magistrate. That is clearly not the purpose of an appeal. I consider it significant that the wife did not seek an adjournment before the Federal Magistrate to allow her to respond to the husband’s affidavit. In such circumstances the wife should not be permitted to adduce such evidence on appeal. I therefore propose to dismiss the wife’s application.
To repeat, the husband did not seek to pursue his application to adduce further evidence in the event that the wife’s application was dismissed. It is therefore unnecessary to consider this application as contained in the husband’s response or the material contained in the husband’s affidavit filed on 12 November 2010.
Relevant law applicable to interim parenting applications
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the court is to take into account in determining what is in the best interests of the child.
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 there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In relation to interim parenting orders s 61DA(3) provides:
When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
If the presumption in s 61DA is to apply, 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.
In Goode and Goode (2006) FLC 93-286 the Full Court (Bryant CJ, Finn and Boland JJ) discussed the application of the presumption in s 61DA to interim proceedings at 80,897:
56. In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
The Full Court also outlined (at 80,903) how interim proceedings should be conducted in light of the amendments made to Part VII in 2006:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion
A number of the grounds of appeal are inter-related, and the wife’s complaints can be summarised as follows:
1. The Federal Magistrate erred in the interpretation and application of the relevant principles, in particular those enunciated in Goode and Goode, and in failing to consider the family report (grounds 1, 7 and 8)
2. The Federal Magistrate failed to adequately consider s 61DA and s 65DAA and failed to provide any or adequate reasons (grounds 3 and 6)
3. The Federal Magistrate erred in making findings and orders not supported by or which were contrary to the evidence and failing to take into account all relevant matters (grounds 2, 4 and 5)
The Federal Magistrate erred in the interpretation and application of the relevant principles, in particular those enunciated in Goode and Goode, and in failing to consider the family report (grounds 1, 7 and 8)
Firstly, it was submitted by counsel for the wife that the Federal Magistrate erred in his interpretation of the principles enunciated by the Full Court in Goode and Goode (outlined above), primarily in determining that he could only take into account matters that were not contested, and then determining that he could not take into account the report of Dr N because it was contested.
Dr N prepared a family report dated 3 August 2010 pursuant to the order made on 1 June 2010. A report had also been provided by Mr W dated 20 May 2010 (annexed to the affidavit of Mr W filed on 24 May 2010). As previously mentioned, Mr W is a counsellor at the child’s school.
In her report Dr N made a number of observations and recommendations. It is useful to now set out some of those observations (commencing at p 19 of the report):
What is clear is that the relationships in this family are grossly conflictual and there are antipathies and divided loyalties between almost all family members. My assessment indicated that this family has had chronic and serious levels of conflict between the parents for many years and this has pervaded all the relationships within the family. Both parents impress as strong minded and intractable. The children appear to have been raised in a toxic environment, pervaded by feelings of hostility and a lack of respect by each parent for the other …
…
My observations of the children with their mother indicated that neither child is fearful of [the wife] and, indeed, [M] showed supreme confidence in each of his parents, and [Mr Q]. [M]’s behaviour with his mother and [Mr Q] suggested that his expressed opinions did not represent his true feelings or his relationships with them …
…
Unfortunately, I am very sceptical of the allegations of the children being whipped by their mother and I have some concerns about [Mr W’s] interpretation of events. Even if there has been some physical disciplining of the children that might be considered excessive, on my assessment, this does not appear to be a major factor or, at least, not a current problem.
I consider that this family would be better served by having any long term decisions being postponed for the interim until counselling has an opportunity to address the conflicts between the children and their mother. I recommend that [the wife], [M] and [J] should attend family therapy counselling. Any counselling by [Mr W] would seem to be counter productive due to [the wife’s] lack of trust in him …
In my assessment [the wife’s] mental health did not appear to be an issue and I do not consider that [M] requires supervision in her care.
In terms of immediate arrangements for [M], it is my opinion that [M] needs to have a meaningful relationship with both his parents and currently his relationship with his mother is being undermined by his sense of empowerment over her. [M] also needs some time to adjust to the new circumstances in his family.
As a result, I recommend that [M] should return to a shared care arrangement, but consider that due to the conflict and animosity between the parents something like a week about arrangement would be better for him than the previous arrangement.
I also consider that both parents, but perhaps [the husband] to a greater degree, have considerable difficulty placing the children’s needs as a priority over their own agenda and disputes with the other parent. I have little hope that any mechanism could assist these parents to repair their own relationship, but consider they might benefit from attendance at a ‘Post Separation Parenting Course’.
The report prepared by Dr N was the subject of significant discussion between counsel for both parties and his Honour during the hearing. It is clear from these discussions that the report was contested by the husband and that he sought to cross-examine Dr N (transcript pp 28 - 30).
The Federal Magistrate did not make specific reference in his reasons for judgment to the findings and comments in either report, nor, importantly, the recommendations of Dr N who had interviewed the parties and the children and observed interactions between each of the parties and the children. His Honour indicated on a number of occasions that he could not take into account Dr N’s report as the evidence was contested (transcript p 38, line 40).
In his reasons, the Federal Magistrate made reference to the two reports in the context of discussing the allegations of violence. At paragraph 5, in relation to s 60CC(2)(b), his Honour said that with respect to the need to protect the child from abuse or family violence, he relied on the fact that complaints had been made to Mr W, Dr N and the husband. His Honour again recorded that disclosures of abuse had been made to Mr W in addressing s 60CC(3)(j), and, at paragraph 7, that disclosures had been made to both Mr W and Dr N.
Counsel for the wife, both before the Federal Magistrate and before me, challenged Mr W’s qualifications, and thus the reliance that should have been placed on his report. It was submitted that there was no evidence before the court as to his qualifications, only that he was a counsellor. Conversely, it was submitted that Dr N’s qualifications were not in doubt.
Aside from the issue of Mr W’s qualifications, counsel for the wife also submitted that Mr W had only seen M and J and had had limited contact with the wife. On the other hand, Dr N had interviewed all parties and had observed interactions with the children, including, importantly, interactions between the wife and M, and that formed an important basis for Dr N’s recommendations.
Mr Cantwell for the husband submitted before the Federal Magistrate that Dr N’s report was so biased that the court should not take any of the observations into account, and that there was nothing in the report that could be accepted as an uncontested fact (transcript p 60, line 28). On appeal counsel further submitted that the evidence of the husband, Mr W and J was “diametrically opposed” to the evidence of the wife and Dr N and that until all had been the subject of cross-examination, there could be no finding of fact other than with respect to those facts that were agreed. In support of this contention counsel for the husband referred to the following extract from Goode and Goode:
68. In our view some of the comments of the Full Court in paragraph 18 [of Cowling v Cowling (1998) FLC 92-801] are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
It was ultimately submitted on behalf of the husband that given the evidence was challenged and needed to be tested under cross-examination, it was thus not possible for the Federal Magistrate to rely on the report of Dr N and it was reasonable for the Federal Magistrate to have adopted the course that he did.
As outlined above, the Full Court in Goode and Goode (at paragraph 82) provided a “framework” as to how interim applications for parenting orders are to be determined. This included:
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place); (emphasis added)
In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), at 375, discussed the difficulties associated with making findings on contested evidence, with reference to the decision of SS & AH [2010] FamCAFC 13 as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121. The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions (see Goode at paragraph 82(d)).
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
While a judicial officer does therefore need to be cautious in relation to the use of contested evidence at an interim hearing and making findings on contested issues, in this case I consider that there is merit in the wife’s complaint regarding the Federal Magistrate’s failure to have regard to the report of Dr N. Although the family report was clearly in dispute and would be the subject of cross-examination at trial, the report and Dr N’s recommendations should nonetheless have been considered by the Federal Magistrate at the interim hearing. Dr N is a qualified clinical psychologist and had been tasked with preparing a family report in this matter. She had conducted interviews with the wife, the husband, the two children and the wife’s partner Mr Q, and had observed interactions between the husband and the children, the wife and the children and also the wife with M and Mr Q. Although the report could not be tested at an interim hearing, I consider that the Federal Magistrate fell into appealable error by failing to have regard to this report and the observations and recommendations of Dr N.
The Federal Magistrate failed to adequately consider s 61DA and s 65DAA and failed to provide any or adequate reasons (grounds 3 and 6)
By ground 3 the wife complains that the Federal Magistrate gave no or inadequate reasons for why the parenting orders he made were in the child’s best interests. In the course of the hearing, the focus of the submissions was on the alleged lack of reasons in relation to the Federal Magistrate’s consideration of s 61DA and s 65DAA, which necessarily flows into why the proposed orders were in the child’s best interests.
It was submitted on behalf of the wife that it is unclear from his Honour’s reasons whether the presumption in s 61DA ought to apply, whether the Federal Magistrate found reasonable grounds for the presumption to be excluded (sub-s (2)) or whether the Federal Magistrate excluded the presumption as it was not appropriate on an interim basis (sub-s (3)). Counsel submitted that while it may be implicit from his Honour’s orders that his Honour considered the presumption ought not apply, his reasons for so concluding are not provided or are unclear. Counsel submitted that equally it may be that his Honour completely ignored s 61DA, as there is no mention of the section in either the Federal Magistrate’s reasons or the transcript.
It was in effect submitted that the Federal Magistrate moved straight to a consideration of the s 60CC factors and to his conclusion as to the appropriate orders, and did not address s 61DA or s 65DAA.
In Marvel v Marvel the Full Court said in relation to the need to consider whether the presumption in 61DA applies in interim proceedings:
105. Even if we are wrong in our interpretation, we are satisfied the legislation required his Honour to turn his mind to whether or not the presumption applied, or whether under s 61DA(3) he should not determine that issue. That he did not do.
106. We have already alluded to the fact that the legislation, after the amending Act, imposes on a judicial officer determining a parenting application, be it interim or final, consideration of a number of provisions of Part VII. We are conscious, particularly for judicial officers determining interim parenting matters in a busy court, such as the Federal Magistrates Court, and where issues may be narrowly confined, or there is only a single issue to be determined, that the requirements of Part VII are onerous, particularly if an order for equal shared parental responsibility has been or is to be made. However the legislation mandates the path which must be followed.
107. Although s 61DA(3) should not be applied in a broad exclusionary manner in interim proceedings, it appears to us that it is likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue. The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied. We accept the task involved in a final hearing when only narrow issues are to be determined, nevertheless requires the legislative path in all its complexity to be followed if an order for equal shared parental responsibility has been or is to be made. (Emphasis added)
With respect to ground 6, it was clarified that the wife was complaining that the Federal Magistrate failed to apply or consider s 65DAA, rather than that the Federal Magistrate erred in his application of the section.
Counsel for the wife submitted that, as with s 61DA, the Federal Magistrate did not make any reference to s 65DAA, and again, that it is not apparent whether this section was considered by the Federal Magistrate.
While it was conceded that if the presumption in s 61DA did not apply, the Federal Magistrate was not required to consider s 65DAA, counsel for the wife submitted that in any event, on the authority of Goode and Goode, the court still needs to consider whether equal or substantial and significant time is in the best interests of the child.
In response to this submission counsel for the husband again submitted that it can be inferred that the Federal Magistrate considered the provisions of s 65DAA(2) in relation to whether the child should spend substantial and significant time with his mother in determining what orders he would make.
There is an obligation upon a judicial officer to provide adequate reasons for his or her decision. The law with respect to this is well settled.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA said at 279 that:
without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In Bennett and Bennett (1991) FLC 92-191, the Full Court (Nicholson CJ, Simpson and Finn JJ) said at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.’
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
Their Honours continued at 78,267:
At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
As Coleman J recently observed in Wen & Thom [2010] FamCAFC 81 with respect to adequacy of reasons:
57. As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
I am mindful that the Federal Magistrate’s reasons were delivered ex tempore in the context of an interim hearing, and that due to the “circumscribed nature of the proceedings” the reasons given at such a hearing may be brief (see Goode and Goode at paragraph 74).
However, the Federal Magistrate did not discuss s 61DA specifically or the issue of parental responsibility at all in his reasons, despite both parties seeking an order for sole parental responsibility on an interim basis. The Federal Magistrate in fact made no order in respect of parental responsibility, and in the absence of such an order s 61C provides that each of the parents has parental responsibility for the child.
Further, despite the submission of the respondent, it is not evident from the Federal Magistrate’s reasons that he considered whether equal or substantial and significant time was in the child’s best interests. However, his Honour concluded that it was in the child’s best interests that he not be separated from his father and brother more than was necessary to enable a meaningful relationship with the mother and that it was in his best interests that he spend time with the wife in accordance with the father’s proposal.
Thus I also consider that there is merit in these grounds. Although this was an interim hearing, the Federal Magistrate was still required to make at least some reference to s 61DA (see Marvel v Marvel). Further, irrespective of whether the presumption in s 61DA was to apply, the Federal Magistrate should have addressed whether it was in the child’s best interests to spend equal or substantial and significant time with each parent (see paragraph 82(k) of Goode and Goode). It cannot be discerned from the Federal Magistrate’s reasons whether he gave any consideration to s 61DA and his Honour gave inadequate reasons in relation to what time would be in the child’s best interests. Although the Federal Magistrate’s reasons did not need to be extensive given this was an interim judgment delivered ex tempore, in my view more needed to be said by the Federal Magistrate to explain the orders made.
The Federal Magistrate erred in making findings and orders not supported by or which were contrary to the evidence and failing to take into account all relevant matters (grounds 2, 4 and 5)
In contending that the Federal Magistrate erred in making findings and/or failed to take into account relevant matters, counsel for the wife referred the Court to the Federal Magistrate’s consideration of the relevant s 60CC factors. That consideration is found at paragraphs 5 to 8 of his Honour’s reasons.
Counsel for the wife made the following submissions:
1. That the Federal Magistrate failed to adequately consider how the child having a meaningful relationship with and wanting to spend time with both his parents could be best achieved.
2. That in addressing the paragraphs dealing with abuse and family violence (sub-ss (2)(b), (3)(j) and (3)(k)) the Federal Magistrate failed to consider the family violence directed to M by J and failed to consider the evidence of family violence as contained in the family report, the report of Mr W and the wife’s affidavits. It was also submitted that the Federal Magistrate failed to adequately take into account the family violence orders in operation. It was in effect contended that the Federal Magistrate only looked at one side of the allegations regarding violence, namely that of the husband.
3. That the Federal Magistrate’s finding in relation to s 60CC(3)(b), namely that is was doubtful the child had a good relationship with his mother, was not supported by the evidence, particularly the observations of Dr N of the interactions between the wife and child.
4. That the Federal Magistrate undertook very little or no analysis of the parties’ willingness to facilitate the child spending time with the other parent as required by s 60CC(3)(c).
5. That the Federal Magistrate’s findings in relation to s 60CC(3)(d) demonstrate a serious flaw in the Federal Magistrate’s reasoning, in that there was no evidence to support his Honour’s finding that there would be any adverse consequences to the child if he was separated “more than is necessary” from the husband and J. There was also no explanation by his Honour as to what adverse consequences he was referring to, and in any event, the suggestion of there being such consequences was contrary to the evidence of Dr N. It was also submitted in the context of this paragraph that there was no analysis undertaken by the Federal Magistrate as to what would be sufficient for a meaningful relationship to “exist” between the wife and M. It was submitted that the Federal Magistrate’s approach is inconsistent with the principle in s 60B(1)(a), which refers to children having “the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent” (emphasis added), not the minimum amount required to ensure a meaningful relationship, and that the Federal Magistrate therefore applied the wrong test.
6. That the findings in relation to s 60CC(3)(f), specifically that his Honour was doubtful that the wife could provide for the child’s needs, were again not open on the evidence and were contrary to Dr N’s conclusions.
7. That there was nothing to support the finding in relation to s 60CC(3)(g) that it was of benefit to the child to spend as much time as he can with his brother J. In this context, the Federal Magistrate had relied on paragraph 11 of the husband’s affidavit filed on 4 August 2010. It was submitted that the Federal Magistrate failed to appreciate or acknowledge that these statements by the husband as to the nature of the relationship between M and J were disputed by the wife.
8. That, in relation to the Federal Magistrate’s finding under s 60CC(4A) that the child would benefit from spending time in the stable environment with the husband and J, there was no evidence before the court to support this finding, but rather there was evidence of many arguments between the husband and J, and thus the finding was contrary to the evidence.
9. Finally, that the Federal Magistrate failed to consider the alternative proposals of the wife, namely that the child spend seven out of fourteen days, five nights out of nine or five nights out of fourteen with her.
There appears to be some merit in many of the wife’s complaints in this regard. To the extent that the wife complains that the Federal Magistrate erred in failing to consider the evidence of Dr N, this has already been addressed above. By not referring to this report, the Federal Magistrate has necessarily failed to have regard to all relevant evidence available at the time. Dr N specifically addressed the relationships between each of the parents and the child and the allegations of violence.
I also consider there is merit in the wife’s complaints regarding the Federal Magistrate’s consideration of the child having a meaningful relationship with both parents. Although the Federal Magistrate said that it “would not be in [M’s] best interests to separate him from his brother, [J], or from their father, more than is necessary to enable a meaningful relationship to exist between [M] and his mother”, the Federal Magistrate did not outline what would constitute a meaningful relationship in this case.
In relation to his Honour’s consideration of family violence, the Federal Magistrate did record that there were family violence orders in operation against both the husband and the wife and that there was a need to protect the child. Importantly, however, the Federal Magistrate did not record the allegations that had been raised by the mother (and addressed by Mr W and Dr N in their reports) that J hit and bullied M [see the wife’s affidavit filed 28 May 2010 at [2(f)]] or other allegations made regarding the husband’s conduct towards the wife [see the wife’s affidavit filed 28 May 2010 at [2(k)]]. Indeed, while the Federal Magistrate recorded the evidence of the husband that the children got on well and that M received great assistance from J, no reference was made to the fact that the wife had concerns regarding J’s behaviour towards M. These allegations were also of particular relevance to the Federal Magistrate’s conclusion that the child would benefit from spending as much time as possible with his brother.
As identified by counsel for the wife, the Federal Magistrate also did not have regard to the evidence of alleged difficulties between the husband and J when finding that the environment with the husband and J was “stable” and that such an environment would be of benefit to M. In this respect, Dr N recorded in her report that J had conceded to her that life in the husband’s home was “far from perfect” and that he had “many arguments” with the husband.
With respect to the Federal Magistrate’s findings in relation to sub-s (3)(d), to repeat, the Federal Magistrate did not record what the adverse consequence would be to the child being separated from his father and brother, and no such adverse consequences were identified by Dr N in her report. Similarly, no concerns were raised by Dr N regarding the wife’s ability to provide for the child, and indeed, Dr N recommended that the child return to a shared care arrangement.
Thus, again I find appealable error by the Federal Magistrate.
Conclusion and outcome of the appeal
I am satisfied that there is merit in the wife’s grounds of appeal, and that the Federal Magistrate fell into error.
However, although I consider there is merit in the wife’s appeal, there is a real question as to the utility in allowing this appeal in the circumstances of this case.
In the event that the appeal was allowed the wife sought that I re-exercise the discretion rather than remit it to the Federal Magistrate for re-hearing. As set out at paragraph 41 above, the wife sought orders that the child live week about with each parent as recommended by Dr N, with handovers to occur at the child’s school, other than during school holidays, to minimise the face to face interaction between the parties.
As required by Allesch v Maunz (2000) FLC 93-033, I enquired of counsel whether they would seek to adduce further evidence in the event I was to re-determine the matter. Counsel for the wife submitted that in re-determining the matter I should consider all the evidence before me, including the affidavits of the wife and the husband filed in the appeal, which I declined to accept as further evidence in determining the appeal.
Counsel for the husband also indicated he would wish to put further evidence before me in the event that I was to re-determine this matter, and proposed that the matter proceed by way of further submissions, all of which would necessitate another hearing.
I am acutely aware that the final hearing in this matter is listed to commence on 15 March 2011. Given that time frame, there would not be sufficient time for a further hearing before me to take place for the parties to present further evidence and to make further submissions to enable me to re-determine the matter prior to that final hearing. Likewise, there would be insufficient time for any re-hearing to take place if instead I determined to remit the matter, although I note neither party promoted this course. Given this, there is no utility in allowing the appeal. Such a result could have no practical effect in relation to the parenting orders in this matter.
This case highlights the difficulties associated with appeals from interim parenting orders where a final hearing has been listed to commence within a relatively short time frame. At the hearing I specifically raised with counsel the apparent futility of this appeal given the time frame and the listing of the final hearing, however, counsel still wished to proceed with the appeal.
Thus given that the final hearing is to commence on 15 March 2011, I consider it to be of no utility to allow the appeal. Accordingly, despite my conclusions that it has been established that the Federal Magistrate erred, the appeal will be dismissed.
Costs
At the conclusion of the hearing I sought submissions from the parties in relation to the costs of the appeal.
In the event the appeal was allowed both parties sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).
In the event the appeal was dismissed, counsel for the husband sought an order for costs, which was opposed by the wife.
In this matter I consider that there should be no order for costs. Although the appeal is to be dismissed, it could not be said that any of the matters contained in s 117(2A) of the Act justifying an order for costs are satisfied. I have found that there is merit in the appeal, however, due to the futility in allowing the appeal, it is to be dismissed.
There will therefore be no order as to costs.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 17 February 2011.
Legal Associate:
Date: 17 February 2011
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