Reese & Ralston
[2021] FedCFamC1A 99
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Reese & Ralston [2021] FedCFamC1A 99
Appeal from: Reese & Ralston [2021] FCCA 1617 Appeal number(s): SOA 54 of 2021 File number(s): HBC 868 of 2019 Judgment of: TREE J Date of judgment: 22 December 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders in relation to the child’s school and school term time spending arrangements – Mistake of fact – Error of law – Where the primary judge mistook the fact that the parents had agreed on the child’s school – Where the error was material in that it led the primary judge to not adjudicate the issue – Where the error potentially impacts upon the time spending arrangements – Appeal allowed – Orders set aside – Matter remitted on specific issues – Costs certificates issued. Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 39 Date of hearing: 16 December 2021 Place: Cairns (via video link) Counsel for the Appellant: Mr Foster Solicitor for the Appellant: Murdoch Clarke The Respondent: Litigant in person ORDERS
SOA 54 of 2021
HBC 868 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR REESE
Appellant
AND: MS RALSTON
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
22 DECEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Orders 2(a) and 6 of the orders of the Federal Circuit Court of Australia made on 6 August 2021 be set aside.
3.The questions of the primary school which the child, X born … 2014, attends, and the time which he spends with each parent during school terms, be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
6.The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reese & Ralston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
By Notice of Appeal filed 26 August 2021, Mr Reese (“the father”) appeals from final parenting orders made on 6 August 2021 by a judge of the then Federal Circuit Court of Australia. Particularly the orders appealed from are Order 2(a), which provided that the parties’ only child, X (“the child”), presently seven years of age, spend time during school terms with the father from after school on Friday until the beginning of school on Wednesday in each alternate week, and Order 6, which removed all outstanding applications and responses from the list of cases awaiting finalisation.
In the event that the appeal succeeds, then the father seeks that the matter be remitted for rehearing.
For her part, Ms Ralston (“the mother”) opposes the appeal, and in the event the appeal succeeds, seeks that I re-exercise the discretion rather than remit.
BACKGROUND
The father was born in 1977 and is presently 44 years of age. The mother was born in 1980 and is presently 41 years of age. The parties commenced a relationship in late 2010 and separated in April 2019, at which time the child was not yet five years of age.
At the time of the hearing before the primary judge, the mother and child lived at Suburb B, a City A suburb approximately 45 minutes’ drive from the City A CBD, whilst the father and his new partner were residing in West City A, which is close to the City A CBD. The mother was working full time, albeit flexibly, which arrangements saw her obliged to only travel to her employer’s place of business at Suburb C three days a week. The father was employed full time in the City A CBD.
At the commencement of the trial before the primary judge on 18 March 2021, many of the parenting orders ultimately made by the primary judge were able to be agreed. What remained in disagreement was whether the extant arrangements, which saw the child live with the mother for nine nights a fortnight, and with the father for the remaining five nights, should continue, or whether there should be an equal time arrangement. The second matter was whether the child should continue in his present primary school at Suburb B, or be required to move to a primary school within a 5 kilometre radius of the City A CBD, as the father sought.
The primary judge ultimately ordered a continuation of the 9/5 split, and the practical effect of his Honour’s orders was that the child would continue to attend the Suburb B Primary School.
THE APPEAL
Generally
The appeal challenges the orders made in the exercise of the primary judge’s discretion. At the outset, it is useful to restate the well-known principles applicable to appeals from discretionary judgments. In House v The King (1936) 55 CLR 499 (“House”) at 504–505, it was said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Grounds 1 and 2a
These grounds provide as follows:
1.That the learned trial Judge made an error of fact in finding (para. 40) that the parents had agreed that [the child] should remain enrolled at Suburb B Primary School.
2. That the learned trial Judge made the following errors of law:
a.The learned Judge failed to determine the father’s application for an order that [the child] attend school within 5 kilometres of the City A General Post Office and that the mother not enrol [the child] in a school without the father’s consent (para.6).
(As per the original)
It is convenient to deal with both of these grounds jointly, as they relate to the same contended error.
At [6] of the primary judge’s reasons his Honour noted that “[t]he father sought on a final basis… an order for [the child] to attend school within 5kms of the City A general post office and that the mother not enrol [the child] in a school without the father’s consent”.
However at [10], having traversed the orders which had been made by consent on 18 March 2021, the primary judge said:
The issues remaining to be determined [were] therefore:
•For what quantity of time during school term time is [the child] to be in the care of each parent?
•For what quantity of time is [the child] to spend with each parent during Term 4 school holidays?
Later at [40] the primary judge said:
[The child] has attended Suburb B Primary School since commencement of school. He is now in his third year at that school, well settled at school and progressing well academically. It is sensible the parents have agreed he should remain enrolled at that school.
It is difficult to understand what material the primary judge had in mind when he concluded that the parties had agreed the child remain at Suburb B Primary School. True it is that one of the consent orders made on 18 March 2021 restrained the parties from changing the child’s primary school without the prior written consent of the other party, but it is plain that the issue of what that primary school should be remained live before the primary judge for determination.
That much is clear because, after announcing the agreed orders, counsel for the father identified that the “two issues between the parties are schooling and whether or not the father during term time should have five days in every fortnight or seven as he would prefer” (Transcript 18 March 2021, p.3 lines 31–33). Thereafter there was considerable cross-examination of the parties as to the appropriate school, and submissions were made directed to that issue. Indeed during submissions, the primary judge himself noted that the parties “can’t now agree as to the most basic things: schooling, where he lives” (Transcript 18 March 2021, p.95 lines 13–14). Later, his Honour reiterated his acknowledgment that schooling was an issue for his determination where he said:
So if I concluded on the best interest [principles] using all of those factors … that Suburb B, because of reasons of his settledness and his existence within the cohort of friendship should be maintained, what do I then do?…
(Transcript 18 March 2021, p.100 lines 6–9)
It is perplexing then that in the primary judge’s reasons at [40] he expressed the clearly mistaken view that the parties had agreed that the child should remain enrolled at the Suburb B Primary School. There was no such agreement.
The existence or otherwise of an agreement is a matter of fact. It is plain that the primary judge made a mistake of fact. It was a material error, in that it led the primary judge to not adjudicate upon the father’s claim that the child should move schools to a school within 5 kilometres within the City A General Post Office.
The failure to adjudicate that issue is an error of law.
It therefore follows that Grounds 1 and 2a are made out.
Ground 2b
This ground provides:
2. …
b.That in determining that [the child] should spend more of his time with his mother than with his father and that he should not have equal time with each of his parents the learned trial Judge gave insufficient weight to his findings that the mother has distorted and false views of the father and that she has emotionally enmeshed with [the child] (see para. 20, 39, 47 and 49).
(As per the original)
This ground may be shortly dealt with. Appeals which challenge the sufficiency of weight afforded to relevant considerations face particular difficulty (Gronow v Gronow (1979) 144 CLR 513). That is because questions of weight are exquisitely matters for the primary judge. More, as House makes clear, it is not enough that an appeal court might have reached a different outcome on the same material. Rather there is a strong presumption that the decision the subject of the appeal is correct unless and until error is established (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627).
In this case it is plain that the primary judge was mindful of the evidence relating to the mother’s anxiety and the child’s emotional enmeshment with the mother. That said, at [45] the primary judge concluded that “[the child] has likely become less enmeshed with his mother by virtue of spending more time with his father”.
Moreover, the gravamen of the rationale for maintaining the 9/5 split is contained within [50] to [57] of the primary judge’s reasons as follows:
50.Equal time for [the child] with his parents is not now, nor is it in the foreseeable future, in [the child’s] best interest.
51.The parents have no demonstrated capacity to manage such equal time co‑operative parenting arrangement.
52.They live too far apart to manage those types of parenting arrangement with ease given their poor communication and the mother’s jaundiced view of the father.
53.The current parenting arrangements whereby [the child] has 9 nights with the mother and 5 nights with the father have been in place for 8 months.
54. [The child] seems to have adapted well to that new arrangement.
55.If the parents lived closer to each other a small increase in [the child’s] time with the father might have been possible. Because they do not live close, and for reasons that follow, that increase is not in [the child’s] best interest.
56.Changing the settled circumstances of the last 8 months is not something that is likely to enhance [the child’s] relationship with each parent.
57.The current parenting arrangements are reasonably consistent with the expert opinion of [the family report writer], except that the period is occurring as a single block.
Given those considerations, it was quintessentially a matter for the primary judge as to what weight the mother’s views of the father, and her emotional enmeshment with the child, deserved. The fact that I may have given them different weight does not establish error.
Ground 2b fails.
Ground 2c
This ground provides as follows:
2. …
c.Given that the parenting orders made by the learned trial Judge and the orders for equal time sought by the father had the same implications in terms of the parents’ capacity to co-parent and the distance between their respective homes the learned trial Judge gave excessive weight to the findings that he made in paragraphs 51 and 52 about capacity to manage shared time and the distance between the parents’ homes as a reason not to order equal time..
(As per the original)
Again this is a challenge to weight. However it is important to realise that no challenge is made by this appeal to the findings in [51] and [52]. Rather it is said that those matters were given excessive weight.
As with the previous ground, the fact that I may have given those matters different weight does not establish error; it was quintessentially a matter for the primary judge. Again this ground is without merit and fails.
Ground 2d
This ground provides as follows:
2. …
d.The learned trial Judge failed to give sufficient reasons for his conclusion that equal care was not in the best interests of [the child].
In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 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 primary judge’s reasons for refusing to make an equal time order have been set out earlier in these reasons. They are a succinct, but sufficient, articulation of the path of reasoning by which his Honour concluded that the continuation of the 9/5 regime, rather than a change to equal time, was in the child’s best interests.
It follows that there is no merit in this ground and it fails.
OUTCOME
Grounds 1 and 2a succeed, and therefore the appeal must be allowed.
In the event that the appeal succeeded, counsel for the father, contrary to what was foreshadowed in his Notice of Appeal, sought that the matter be remitted for rehearing.
Although only the grounds relating to the child’s school have succeeded, the location of his school does potentially impact on the time which the child spends with each parent during school term, as the primary judge himself observed, saying “[t]he time issue has its practical difficulty if [the child] remains at Suburb B Primary School, for your client” (Transcript 18 March 2021, p.97 lines 1–2).
Further, the primary judge at [40] referred to the child’s attendance at Suburb B Primary School in the course of determining the appropriate split of term time between the parents. It cannot be said, therefore, that the mistake as to an agreement about the child’s school had no impact on the time spending orders. Therefore, not only must the question of the child’s school be reconsidered, but so must the school term time spending arrangements. It follows that both Orders 2(a) and 6 must be set aside.
Counsel for the husband contended that the lapse of time between the trial and the appeal, especially given the age of the child, meant that a re-exercise was not possible, in that both parties would need to put on updated evidence which would likely be contentious. Indeed, the mother sought to tender updating material before me at the hearing of the appeal. I agree that for that reason alone, re-exercise is not a viable option. Further, the family report is now quite old, being dated 3 April 2020.
The matters which either were determined by the primary judge, or ought to have been determined, will therefore need to be remitted for rehearing before another judge. The mother’s attempt to tender further material therefore falls away.
COSTS
As I have said, by failing to determine the father’s application to change the child’s school, the primary judge erred in law. In the event that the appeal succeeded on that basis, neither party sought any costs orders, but rather both sought costs certificates for the appeal and the rehearing. That is appropriate and those certificates will issue.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 22 December 2021
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