RESTON & JARRY
[2019] FamCAFC 241
•11 December 2019
FAMILY COURT OF AUSTRALIA
| RESTON & JARRY | [2019] FamCAFC 241 |
| FAMILY LAW – APPEAL – APPLICATION IN A CASE – Where the father sought that the appeal be dismissed on the basis the mother failed to comply with several deadlines – Where the mother’s non-compliance did not prejudice the father – Application dismissed. FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders providing that the father have sole parental responsibility and supervised time between the mother and the child – Undefended hearing – Where the primary judge erred by failing to explain why the presumption of equal shared parental responsibility was rebutted – Where the primary judge’s reasoning in relation to s 61DA is inadequate – Appeal allowed – Matter remitted for rehearing – Where the orders of the primary judge will continue pending rehearing – Costs certificate granted to the respondent. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, s 65DAA and 69ZT Federal Proceedings (Costs) Act 1981 (Cth) s 6 |
| Bennett and Bennett (1991) FLC 92-191 Goode v Goode [2006] FLC 93-286; [2006] FamCA 1346 Gronow v Gronow (1979) 144 CLR 513; [1976] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48 Sun Alliance Insurance Ltd v Massoud (1990) 94 ALR 11; (1989) VR 8 |
| APPELLANT: | Ms Reston |
| RESPONDENT: | Mr Jarry |
| FILE NUMBER: | TVC | 196 | of | 2019 |
| APPEAL NUMBER: | NOA | 45 | of | 2019 |
| DATE DELIVERED: | 11 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 13 November 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 April 2019 |
| LOWER COURT MNC: | [2019] FCCA 1824 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Pack |
| SOLICITOR FOR THE RESPONDENT: | Ruddy Tomlins & Baxter |
Orders
That the Appellant’s Amended Notice of Appeal filed 17 October 2019 be allowed in part.
That the Application in an Appeal filed 6 November 2019 be dismissed.
That the orders of the primary judge made 18 April 2019 be set aside.
That the matter be remitted for rehearing before a Federal Circuit Court judge other than the primary judge.
That notwithstanding order 3, the primary judge’s orders continue to operate until the rehearing under order 4 hereof.
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 him in relation to the appeal.
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 Reston & Jarry 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS |
Appeal Number: NOA 45 of 2019
File Number: TVC 196 of 2019
| Ms Reston |
Appellant
And
| Mr Jarry |
Respondent
REASONS FOR JUDGMENT
introduction
On 18 April 2019, at the conclusion of an undefended hearing, the primary Federal Circuit Court judge made final parenting orders, pursuant to which Mr Jarry (“the father”) was afforded sole parental responsibility for the parties’ only child, X (“the child”) then six and a half years of age. Further, his Honour ordered that the child live with the father, and spend such supervised time with Ms Reston (“the mother”) as may be nominated by the father. He also made a suite of orders requiring the mother to submit to random drug testing until 31 December 2021, and in the event that the mother tested positive, that her time with the child under the orders was suspended, and each party had liberty to apply at short notice.
From those orders, the mother now appeals. The father resists that appeal. For the reasons which follow, the appeal must be allowed.
Also listed for determination at the same time of the appeal, was the father’s Application in an Appeal, seeking that the mother’s appeal be dismissed under rule 22.45(2) of the Family Law Rules. At the hearing, I dismissed that application for reasons to be published later. I will incorporate those reasons in this judgment.
Background
The father is presently 27 years of age, the mother 33. The parties commenced a relationship in March 2011, when they were respectively 18 and 24 years of age. The child was born in 2012. The parties then finally separated in late 2013 when the child was a little over 12 months of age. According to the unchallenged findings of the primary judge, post separation the child lived with the mother, and spent a mix of weekday and weekend time with the father.
The primary judge found that in March 2014 the mother relocated from Town B to Town F, and that thereafter the parties arranged for the father to spend alternate weekend time with the child.
Whilst according to the father’s affidavit filed 20 February 2019, at the time that the parties’ relationship commenced, the mother had been a long-term user of marijuana, by August 2016 he had become suspicious that she was then using hard drugs. On one occasion his concerns led him to refuse the return the child to the mother at the changeover location. Police attended, but no action was taken, and the child was in fact returned to the mother.
In September 2016 the mother returned to live in Town B, and it seems that the child resumed spending more frequent time with the father. However the father’s concerns about the mother’s drug use escalated. For instance, there was one occasion where the mother failed to collect the child from school, there were strange allegations and behaviour by the mother, and the father asserts that the mother was arrested by police in relation to drug offences in late December 2018.
Ultimately, the father’s concerns reached the point where, having unsuccessfully sought to have the mother agree that the child move into his primary care, he commenced proceedings in the Federal Circuit Court on 20 February 2019. Simultaneously, as that court’s rules require, he filed a Notice of Risk, in which he identified that the child was at risk of harm by virtue of, amongst other things, the mother’s drug use. On 22 February 2019 the mother was served with those documents, which advised that the first return date before a Registrar was on 2 April 2019. Not only did the mother not attend that event, but she had not filed any Response by then, and indeed never has.
On 2 April 2019, the Registrar listed the matter for interim hearing before the primary judge at 9.30 am on 18 April 2019. Under the Registrar’s orders, the father’s legal representatives were required to send a copy of the orders to the mother, together with a letter identifying that, if the mother continued in her failure to file material or attend court, the matter may then proceed on an undefended basis. Before the primary judge, there was an affidavit from the father’s solicitor attesting to her having sent the orders and letter to the mother.
By 18 April 2019, the mother had still not filed any material, and when the matter was called on at 9.31 am, there was no appearance either by her, or on her behalf. The father’s legal representatives sought that the matter proceed on an undefended basis, and the primary judge acceded to that application. At the conclusion of the hearing, his Honour made the orders I have already identified at the commencement of these reasons. However, significantly, there was a notation to the orders in the following terms:
A.That these orders were made in the absence of the mother and that pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 the mother may apply within 28 days of today to have these orders set aside.
No such application as contemplated by that notation was ever made by the mother. Rather, on 16 May 2019 she lodged a Notice of Appeal, and later an Amended Notice of Appeal was filed on 17 October 2019.
The primary judge’s decision
In his ex tempore reasons for judgment delivered on 18 April 2019,[1] the primary judge set out the relevant background, considered whether or not to proceed on an undefended basis, and implicitly determined to do so. His Honour then referred to s 61DA of the Family Law Act 1975 (Cth) (“the Act”) which “deals with the presumption of equal shared parental responsibility (at [13]).” Although his Honour thereafter did not consider whether or not the presumption applied, or if it did, was rebutted, it seems that his Honour was satisfied that the order for sole parental responsibility in favour of the father was in the child’s best interests.
[1] Although the written version of the reasons appear to have been settled on 28 June 2019.
His Honour then addressed the relevant considerations under s 60CC of the Act, and noted particularly the relevance of s 60CC(2A) of the Act, which requires that more weight be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b) of the Act) than the benefit of having a meaningful relationship with both parents. His Honour then addressed the relevant additional considerations, and made pertinent observations and findings in relation to them. Finally, his Honour determined that the orders proposed by the father, with one minor alteration, were in the child’s best interests, and therefore made them.
The father’s application for dismissal
By Application in an Appeal filed 7 November 2019, the father sought that the appeal be dismissed on the basis that the mother had failed to comply with several deadlines in timetables ordered by a Registrar, designed to ready the appeal for hearing. For instance, in the father’s affidavit filed in support of that application, he identified that the mother filed and served her Summary of Argument one day late, filed and served her Amended Notice of Appeal 26 days late, and filed transcript six days late.
However two countervailing considerations are deserving of weight. The first is that, by the time the father’s Application in an Appeal was filed, in fact the mother had undertaken all the matters required of her, albeit, as the father says, almost invariably late. The second is that the father did not assert that the mother’s non-compliance thereby occasioned him any irremediable prejudice, which was amply demonstrated by the fact that, on 13 November 2019, when both the appeal and the father’s application were listed, the father did not claim that the appeal was not then able to proceed.
The mother is a self-represented litigant, who lives in a regional city. It is unlikely that she has any familiarity with appellate processes, or has ready access to resources to assist her in preparing material. It would be a significant thing to deprive her of her appeal, merely because she did not comply with relevant timetables, particularly when her non-compliance did not prejudice the father, or mean that the appeal could not proceed when it had been listed for hearing.
That is all the more so when the orders under appeal removed the parties’ child from her care, and severely restricted the prospect of her maintaining a meaningful relationship with her thereafter.
It was for those reasons that, on 13 November 2019, I dismissed the father’s Application in an Appeal filed on 7 November 2019.
The appeal generally
The appeal ran to 7 grounds. Although before me the mother self-represented, it appears as though she may have had the assistance of someone with legal training or experience in drafting her grounds of appeal, and her Summary of Argument.
Ground 1
This ground provided:
Judge failed to accord procedural fairness.
(As per the original)
As expanded upon in the mother’s Summary of Argument filed 21 October 2019 at page 3, it is said that she was not afforded the opportunity to be heard before the orders were made, as she was hospitalised with Ross River Fever, “nor could I file any response material as I was seeking legal representation and was unable to find assistance in writing any response material.”
As to her illness, she says that, notwithstanding that she had advised the Registry via a telephone call and an email that she was unwell, “[t]his was not passed on to the trial judge” (Mother’s Summary of Argument, page 3).
As to the alleged hospitalisation of the mother, not only was there no evidence of that before the primary judge, but there was no evidence of it before me either, other than the mother’s bare assertions in her Summary of Argument. In any event, all that procedural fairness requires is that the opportunity to be heard be afforded to the litigant, and there is no obligation on a judge to insist upon a party availing themselves of that opportunity.
The lack of legal representation is an inadequate reason for failing to file response material as required, not only by the Federal Circuit Court Rules, but as advised to the mother by the terms of the Initiating Application itself. This aspect of this ground has no merit.
Ground 1 accordingly fails.
Ground 2
This ground provides:
Judge made a decision that was plainly wrong.
(As per the original)
The difficulties with challenges to discretionary decisions, such as that of the primary judge, are well known. In House v The King (1936) 55 CLR 499 at 504-505 (“House v The King”), the High Court 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…
The particular argument advanced by the mother in her Summary of Argument at page 3, to demonstrate that the decision was “plainly wrong” is as follows:
The trial judge made a decision to remove [the child] from her primary carer that being her mother and the rights of [the child] has not been protected…
The chain of reasoning embarked upon by his Honour in concluding that the orders he pronounced were in the child’s best interests was as follows:
(a)There was evidence of probable drug misuse by the mother, which misuse impaired the mother’s capacity to care for the child, and consequently led to the child’s neglect and abuse (at [15]);
(b)Section 60CC(2A) mandates that the need to protect the child from harm be given greater weight than the benefit which the child would obtain from a meaning relationship with both parents (at [16]);
(c)The evidence disclosed that the child has a loving relationship with both the mother and the father (at [19]);
(d)The child had an 11 year old half-brother living with the mother, and it was important that the child be able to continue that relationship, as well as with her paternal grandparents and extended paternal family (at [19]);
(e)There was no practical difficulty or expense in the child maintaining relations with both parents, as both reside in Town B (at [20]);
(f)The father has in the past sought to foster and encourage a relationship between the child and the mother, which informed the prospect that he would likely continue to do so in the future (at [22]).
Unless those findings of fact are successfully challenged, it could not be said that the outcome was plainly wrong. It is not to the point that an appellate court may have reached a different conclusion; that is not the test of error (Gronow v Gronow (1979) 144 CLR 513).
This ground of appeal is not made out.
Ground 3
This ground provides:
Judge made a finding of a fact or facts that could not be supported by the evidence, or exercised his discretion to arrive at a decision that was clearly wrong.
(As per the original)
As refined in her Summary of Argument at page 3, the mother particularly relied upon an allegation that the trial judge placed “insufficient weight on the evidence relating to the child’s relationship with her sibling and the significant attachment to our family unit” (as per the original).
Further, she said that there was no evidence to support the conclusion that she posed a risk of abuse or violence to the child. Particularly, she emphasised that in the father’s Notice of Risk, he explicitly denied that there had been child abuse or that there was any risk of child abuse, by a party to the proceedings. Rather she said that the father’s suspicions of her drug use, stemming from 2016, were merely suspicions, and not evidence. She said that there was “no evidence supporting the allegations of illicit drug abuse” (Mother’s Summary of Argument, page 5) and that a photograph that had been annexed to the father’s affidavit of her holding a ‘“glass margarita straw”’ (Mother’s Summary of Argument, page 5), was not evidence of any unlawful activity by her.
It is plain from the reasons of the primary judge that the central matter which underpinned his Honour’s conclusion that the child should move from the mother’s primary care to the father’s primary care, was the level of risk which he assessed the mother posed to the child. Implicitly, his Honour must have determined that the risk the mother posed was an unacceptable one, unless her time with the child was supervised, albeit not professionally, by the father or someone else that he nominated.
At [14] of the reasons, in the context of evaluating the risk of harm which the mother posed, the primary judge referred to, but did not recite, paragraphs [17] to [41] of the father’s affidavit filed 20 February 2019. Whilst it is unnecessary to recite them all here, nonetheless it is useful to set out some of the more salient paragraphs:
27. Soon after this [the mother] moved back to [Town B] and started working on a local farm. I am unsure of what her role was but I think she was a general labourer. [The mother] would stay out on the farm with the kids sometimes for up to a week despite the fact that her role was not a live in one. I recall times when I would have to drop [the child] to the farm to [the mother] and I would see many known drug users and dealers all hanging around. This made me very concerned for [the child’s] safety. [The child] would tell me stories about when she was at the farm, and she and any other kids that were there would be locked out of the room the adults were in and that the adults were smoking in there and counting money.
…
29. There would be times that I would try to drop [the child] off at our agreed time and place and [the mother] would not be there and wouldn’t answer her phone. Other times if she didn’t answer her phone I would not bother with trying to drop [the child] off and eventually [the mother] would call me and scream at and abuse me.
30. By mid 2017 I decided to start keeping a diary of events that concerned me about [the mother]. I made the following entries:
…
(e)On 8 April 2018 when I dropped [the child] to [the mother’s] house she told me that someone had slashed her tyres and she suspected it was one of her ex-boyfriend’s. She also told me that she thought people were jumping over her fence and breaking into her yard and house. As a result she had taped knives to her fence posts and stairs as a ‘trap’. She pointed out the knives to me and I looked and noticed she had two knives strapped to once (sic) fence post near her stairs.
(f)On 16 April 2018 [the mother] asked to borrow my [motor vehicle]. I borrowed $30,000 on a personal loan in my name to but the car. I had made all the loan repayments on the vehicle and I had retained it at separation since I had been paying for it. She told me she needed it for a few days to move house. The vehicle was still registered in joint names from when we were in a relationship. [The mother] took the car and used it to move house, but never gave it back, despite the arrangement to only have it for a few days. I have no idea what has happened to the vehicle, but I do know the registration has now expired. I am still receiving emails from the Department of Transport advising the registration has now expired. I don’t expect to see this vehicle again.
…
(h)On 25 November 2018, [the child] told me that someone had broken into their home and ripped the head of one of her teddy bears and left it in her bed. She said they stole a speaker from the house. Whilst [the child] was telling me this, she was crying and upset as she is very attached to her teddy bears.
(i)On 31 December 2018, [the child] told me that the Police had come to their house the night before when she with [the mother] and the Police said she was under arrest. She said the Police told her to go watch tv in the other room and that when she was in the other room, she could hear raised voices. She was crying when she told me and asked me if [the mother] was going to jail.
…
33. In mid September 2018, [the mother] called me at 3.30 pm and told me that she had slept in, and that she was having car trouble and could not pick [the child] up from school. School finishes at 2.55pm. I was at work but raced into town to pick [the child] up. [The child] was very upset when I got there and was sitting with another child’s mother who was trying to console her. I later found out that [the mother] wasn’t even in [Town B] that day, she was in [Town C] and did not get home until 7.00pm. I ended up keeping [the child] for the night and took her to school the next day.
…
36. On 8 November 2018, [the child] had a mouldy sandwich in her lunch box, so the school provided her with lunch. The school tried to contact [the mother] regarding this but were unsuccessful…
…
39. In addition to the incidents I have witnessed myself, [the child] has made concerning disclosures to me including:
(a)One time when they were driving home from Kindy their car broke down. The police were right behind them and the police let [Z] and [the child] sit in the back of the police car while they spoke to [the mother]. They gave [the mother] a “yucky lolly” and then they had to walk home. I never really go the whole story about that event but [the mother] did lose her licence around that time for three months, but she told me it was from unpaid fines.
(b)[The child] has described seeing [the mother] smoking from a small glass tube with a black end.
(c)[The child] has seen a bottle with a hose poking out of the side of it. She describes that, every time she goes into her mum’s room without knocking she is smoking it and then hides it behind her mirror next to her bed.
(d)[The child] says the bottle with the hose poking out of it is still behind the mirror.
(e)Sometimes [the mother] will sleep all day in her room either by herself or with one of her friend’s and [the child] and [Z] have to look after themselves. Sometimes [the mother] doesn’t even make them tea.
…
(h)[The child] has disclosed that she has spent nights from time to time with [the mother’s] friends because [the mother] has been at the police station.
40. I am aware that [the mother] has been charged with many drug related offences over the last few months. She has been charged with drug driving and has lost her licence for a long time. I believe that [the mother] also was caught for driving whilst not holding a licence. I am also aware that [the mother] has been charged with possessing drugs.
41. I hold grave concerns for the safety of [the child] while she is in [the mother’s] care. [The mother] is not making positive choices in her life and has not done for a long time. It is not in [the child’s] best interests to continue to reside with [the mother].
(As per the original)
There was therefore ample evidence before the primary judge which spoke to an alarming level of risk to a six year old child left in the mother’s care.
This ground of appeal therefore fails.
Ground 4
This ground asserts:
There was a denial of natural justice.
As expanded in her Summary of Argument at page 5, the mother said:
I was denied the right to natural justice as I was unable to defend myself as I could not acquire legal assistance from any free legal service and do not have the means to afford a private lawyer.
This ground appears to be largely a repetition of ground 1. However natural justice does not require the provision of legal services, free or otherwise, but rather the opportunity to be heard. As I have already observed, the mother was afforded such an opportunity, but did not avail herself of it. That is not a denial of natural justice.
Ground 4 fails.
Ground 5
This ground asserts:
Judge gave inadequate reasons for the decision.
(As per the original)
The obligation to provide reasons is well established. In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8:
…
“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.”
As argued, this ground became a complaint that, firstly, there was an irrelevant conversation that took place between the judge and the solicitor for the father during the hearing, which the mother thinks was “highly inappropriate” (Mother’s Summary of Argument, page 5), and secondly, that the hearing only went for 20 minutes, 18 of which was the judge giving his ex tempore reasons, such that the mother feels “that a two minute discussion is an insufficient amount of time to arrive at a decision that has such a great impact on the lives of those in question” (Mother’s Summary of Argument, page 5).
The impugned conversation arose when the solicitor for the father, indicated that she was about to commence reading aloud the Outline of Submissions, which she had filed in support of the undefended hearing. The primary judge stopped her by saying:
I graduated from school and [D University], and I’m well and truly capable of reading the English language.
There was nothing “highly inappropriate” (Mother’s Summary of Argument, page 5) in that utterance, in that the primary judge was simply attempting to dissuade the father’s solicitor from reading a document to him, which he had clearly already read for himself.
As to the complaint that the amount of time which the judge devoted to the case was insufficient, it is plain from the reading of the transcript that his Honour was familiar with the material, doubtless having read it in chambers before he commenced to sit. Further, he had considered the Outline of Submissions filed by the solicitor for the father, and in the circumstances, there was little, if anything, more that the solicitor for the father could do, or say. It was not incumbent upon the primary judge to interrogate the solicitor for the father if the material had provisionally satisfied him as to the appropriate result.
However, when considering the general adequacy of the primary judge’s reasons, there is a troubling omission, even accepting that his Honour was delivering his judgment ex tempore. At [13] his Honour said:
13. We are dealing with a parenting matter so essentially we are dealing with best interests, particularly section 60CA tells us that we need to have regard to the objects. 61DA deals with the presumption of equal shared parental responsibility. If that applies, we will need to look at 65DAA but we are really looking at section 60CC. Now, in this case, focus is really brought to bear on section 60CC(2)(b) which is what is colloquially known as the risk consideration but its actual wording talks about:
…the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 61DA of the Act provides as follows:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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 for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) 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.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis altered)
The “legislative pathway” which starts with s 61DA is well settled, as expressed in Goode v Goode [2006] FLC 93-286 at [65]:
In summary, the amendments to Pt VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties. The child’s best interests remain the overriding consideration.
11.The child’s best interests remain the overriding consideration.
I have already noted the absence of any allegation of abuse of the child, and likewise there was no allegation of family violence made by the father either. His case was all about the future risk of harm, not past, actual harm.
Therefore the presumption of equal shared parental responsibility applied, unless it was rebutted. Any such rebuttal required a careful explanation as to why such risk of harm as the mother then posed, required her to be removed from any decision making in relation to the child until she turned 18.
Absent such a rebuttal, as the primary judge clearly acknowledged, he would need to consider s 65DAA of the Act, and thus whether equal time, or substantial and significant time, with each parent, was both reasonably practicable and in the child’s best interests.
What is missing in the reasons is any direct consideration of s 61DA(4) of the Act, which on the facts, necessarily required determination.
Rather the primary judge proceeded to traverse the primary and additional considerations, before concluding at [23] as follows:
23.Those seems to me to be the main considerations relevant to my determination as to whether these orders are in the best interests of the child. And, again, I thank the solicitor, [Ms E], for the applicant for her very helpful outline in that regard. I turn to the orders that are sought. And I propose to make those, but I have some difficulty certainly I think with one of those. When I get to Order 5, what I am proposing there is ‘from using illicit drugs’ rather than drugs of abuse. But subject to that, I am more than content to make those orders as being in the child’s best interests and so do.
Unfortunately, the outline which his Honour refers to in that paragraph makes no reference to s 61DA of the Act, and hence it is not possible to augment paragraph [23] by the implicit adoption of anything in that document. Moreover, whilst his Honour was generally persuaded that the father’s proposed orders – including for sole parental responsibility – were in the child’s best interests, it is simply not possible to construe [23] as the direct and necessary consideration of s 61DA(4) of the Act, particularly given his Honour’s comment at [13] “if [s 61DA] applies, we will need to look at s 65DAA.”
The statutory scheme established in the Act makes the application, or otherwise, of the presumption of equal shared parental responsibility, the critical first step in any judicial determination of parenting proceedings. Therefore, the reasoning behind the decision as to whether presumption applies or not, and if not, why not, must be adequately exposed to scrutiny.
Whilst I have considered whether, there is a necessary implication by virtue of paragraph [23] that the primary judge must have regarded the presumption as rebutted under s 61DA(4) of the Act, there is no explanation why that was so, or indeed, further advertence to s 61DA of the Act after [13]. I have also taken into account that the matter was primarily listed for an interim, not final, hearing, and that his Honour, likely at the start of a busy duty list, nonetheless expeditiously heard the matter on an undefended basis, and immediately pronounced orders and delivered ex tempore reasons.
However, even taking all of those matters into account, the reasoning in relation to s 61DA of the Act is inadequate in circumstances where the mother is deprived of any future decision making role in relation to the child.
This ground of appeal is therefore established.
Ground 6
This ground provides:
Judge was biased.
(As per the original)
The Summary of Argument filed by the mother at page 6 reads:
The judge came to a conclusion and formed a bias[ed] opinion of me based solely on hearsay including the respondents affidavit and was not supported by [any] facts. As I was not present at court I was unable to defend myself and respond to the [damning] allegations made against me in my absence.
(As per the original)
The High Court in Johnson & Johnson (2000) 201 CLR 488 (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) stated at 488 that the test for apprehended judicial bias is:
[W]hether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(Footnotes omitted)
At 492-493 their Honours continued:
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
(Footnotes omitted)
There is no factual or other basis from which one could conclude that the primary judge approached this hearing other than in an impartial and unbiased manner. There is nothing in his conduct of the case, nor in the expressions in his reasons for judgment, which could possible lead a fair minded lay observer to conclude that his Honour was anything other than open minded.
Further, by virtue of s 69ZT of the Act, the rules of evidence, including the rule against hearsay, do not apply in parenting proceedings unless there is an order to that effect. The primary judge was therefore entitled to have regard to hearsay, and by doing so, could not possibly excite any reasonable apprehension of bias.
This ground of appeal fails.
Ground 7
This ground reads:
The decision made was not in the best interests of the child. The child was removed from the primary parents care (mother) with no visitation rights.
In her Summary of Argument, the mother advanced arguments in support of this ground by reference to the additional considerations listed in s 60CC(3) of the Act, but did not address the primary considerations, and particularly, the finding that she posed a risk of harm to the child, which inferentially the primary judge was satisfied could only be sufficiently mitigated by supervision of her time.
I have already observed that it cannot be said that the decision of the primary judge was plainly wrong. Necessarily, that disposes of this aspect of the appeal, in that error of the kind identified in House v The King needs to be established. Again, it is not to the point that an appellate court may have reached a different conclusion than did the primary judge on the same material.
Moreover, the notation to the primary judge’s orders on its face advised the mother of the appropriate avenue, should she wish to have the orders reconsidered, namely that she could apply to have them set aside. The mother did not do so, but filed this appeal instead. If the mother wished to agitate the weight that should be given to the various additional considerations, then an application to set aside the orders was the appropriate course for her. An appeal against a discretionary decision does not afford her that opportunity.
This ground of appeal fails.
Outcome
Ground 5 has been made out. Absent any material having been filed by the mother, the matter must be remitted. Further, given the pivotal importance of parental responsibility in children’s matters, the whole of the orders of the primary judge must be set aside.
That then raises the vexed question of what orders should prevail until the matter is again before the Federal Circuit Court. No submissions as to this were addressed to me, however on a practical level, to now make any change to the child’s arrangements seems fraught with the real risk of considerably destabilising her.
I will therefore order that, pending the rehearing, the orders of the primary judge continue until further order of the Federal Circuit Court.
Costs
In the event that the appeal succeeded, the mother sought no order as to costs, however the father sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The appeal has succeeded on a question of law. I am satisfied that, in those circumstances, it is appropriate that a certificate should issue in relation to the father’s costs in the appeal.
I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 11 December 2019.
Associate:
Date: 11 December 2019
3
2