ROSETTI & MORRIS - [2016] FamCAFC 208

FAMILY COURT OF AUSTRALIA

ROSETTI & MORRIS

[2016] FamCAFC 208

FAMILY LAW – APPEAL – CHILDREN – Appeal against interim orders for the child to spend time with the father – Appeal conceded by the father – Parts of the orders were not sought by either of the parties or recommended by the family report writer – His Honour failed to explain why the orders were in the child’s best interests and failed to afford procedural fairness to the parties – Appeal allowed – Matter remitted for rehearing – Costs certificates granted.

Family Law Act 1975 (Cth) – s 60CC
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Ms Rosetti

RESPONDENT:

Mr Morris

FILE NUMBER:

TVC

700

2015

APPEAL NUMBER:

2016

DATE DELIVERED:

1 August 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Ainslie-Wallace & Kent JJ

HEARING DATE:

1 August 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 March 2016

LOWER COURT MNC:

[2016] FCCA 845

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms McMillan QC

SOLICITOR FOR THE APPELLANT:

Bassano Law

COUNSEL FOR THE RESPONDENT:

Mr Betts

SOLICITOR FOR THE RESPONDENT:

Anderson Fredericks Turner

Orders

By consent, the appeal be allowed.
By consent, paragraphs 7(A) to (J) of the orders made on 11 March 2016 be discharged.
Until further order, the child spend time with the father as agreed between the parents, but failing agreement, for one period in each calendar month at Town H as follows:
(a)from 8.00 am until 5.00 pm on day 1;
(b)from 8.00 am on day 2 until 5.00 pm on day 3; and
(c)8.00 am on day 4 until 5.00 pm on day 6.
The matter be remitted to the Federal Circuit Court, to be listed before a judge other than Judge Coker with such urgency as the Federal Circuit Court may determine.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of 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 her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of 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.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

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 Rossetti & Morris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 22 of 2016
File Number: TVC 700 of 2015

Ms Rosetti

Appellant

And

Mr Morris

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

Before the Full Court today is the amended Notice of Appeal of Ms Rosetti (“the mother”), which was filed on 20 April 2016. The appeal has been opposed by Mr Morris (“the father”). The orders appealed are those made by Judge Coker in the Federal Circuit Court on 11 March 2016 in relation to the child N, born in 2013, who is not yet three years of age.
The focus of the complaint relates to his Honour’s determination concerning the time the child is to spend with the father pending the final resolution of parenting issues. Those orders are somewhat complicated in their terms, as were the terms of the proposal put forward by the father. Some of the orders that are challenged are now moot, because they provided for a contact regime that was to commence in April 2016 and extend to the Christmas holidays in 2017. The father has already spent time with the child in accordance with the earlier part of the orders.
We were originally invited to find error and then discharge the orders from paragraphs 7(C) to (J). As a result of what has passed between the bench and the bar today, the father’s counsel has obtained what I respectfully suggest are very sensible instructions from the father to concede the appeal and have the matter remitted for hearing by another judge of the Federal Circuit Court.
We have given the parties the opportunity to discuss, at some length, the proposed orders to take them through from now until such time as the matter can be heard again by another Federal Circuit Court judge. We received advice that the matter may proceed to an interim hearing before the end of 2016 if there is urgency, or early 2017 if there is not urgency. Further, while the matter cannot be heard at a final hearing this year, it might be heard in May 2017.
Unfortunately, the parties have only been able to agree what ought to occur in the month of August, with the agreement to extend beyond that date on a temporary basis. As I perceive the position, the parties want to continue their discussions with a view to reaching an agreement about the precise terms of contact between now and when the matter next comes before a judge in the Federal Circuit Court.
One matter to be taken into account by the parties is whether there should be some special arrangement in October 2016, when the mother will be attending a course in Town C. The father has previously expressed considerable interest in the contact occurring in Town C, because it is easier for him to get there from where he is in Town T than having to go to Town H. Another matter to be considered is the trip that the mother wants to take with the child to attend her brother’s wedding overseas. She has proposed that the father have three consecutive nights with the child in Town T in November on their way overseas, and two nights on their way back. A further matter is the mother’s proposal for the father to have the child on Christmas Day and Boxing Day, as the Federal Circuit Court has already ordered.
All of these matters provide a good basis for the parties to discuss a way forward that might get them to a final agreement, or to a trial without the necessity for a further interim hearing. Today we are invited to make an order that will lay down a basic guarantee of contact between the father and the child pending the hearing, and this order will be made on the basis that the parties are still in the midst of negotiations about an alternative arrangement for the father to continue to see the child.
In order for us to grant cost certificates under the Federal Proceedings (Costs) Act 1981 (Cth), we must be satisfied that the appeal has succeeded on a question of law, there being no doubt that this is a federal matter and that the matter has been heard by the Full Court.
The mother in these proceedings is a 38-year-old public servant who lives on Town H, where she has lived since December 2011. The father is a 36-year-old officer in the Australian Defence Force. He is currently located in Town T, although there was some discussion in the evidence and his Honour’s reasons about the possibility that the father may be transferred in the future.
The parties’ relationship started in late 2012 when they were both posted at Town H and it ended in early 2013. The mother was pregnant with the child at the time of the separation and he was born in September 2013. During the first few months of the child’s life, the father and mother cooperated in ensuring that the father had an opportunity to spend time with the child and to begin to build a relationship with him.
The parties’ level of cooperation was such that they were coming to agreements about spending alternate Christmases together with their families and ensuring that the father had an important role to play in the child’s life. As a result, the parties spent time together in the home of the paternal grandparents in Sydney, and there were periods when the mother took the child to Town T and when the father went to Town H. During these periods, each stayed in the home of the other. Remarkably, in the midst of mediation, the parties also travelled together to Europe, from where the mother’s family comes, and spent time living in the home of the maternal grandparents. In that period, and at other times, the father has formed a good relationship with the mother’s family.
Hence, it might be thought that in what might otherwise have been a very difficult period following the breakdown of a short relationship, the parties made a remarkably good effort to ensure that the father played an important role in the life of the boy.
What has caused some of the difficulties in the matter is that, relatively early in the child’s life, the father was transferred from Town H to Town T, a journey of some 1000 kilometres. In those circumstances, even with the best will in the world, it would be difficult to work out a suitable visiting arrangement for a child of N’s age. The father was removed from the child’s life by force of his employment, and the child was then growing up with the father being a relatively infrequent visitor. The child was therefore likely to be forming a stronger attachment to the mother than the father.
The relatively harmonious arrangements between the parties came to an end at around the time that the father commenced these proceedings in the Federal Circuit Court. The father was concerned that the mother was travelling to Europe, and he feared that his much-loved son might be kept there longer than he hoped, or potentially indefinitely.
In the early stages of the proceedings, Judge Coker made orders for the father to spend some quite short periods with the child, including a little overnight contact. His Honour then ordered the preparation of a family report to be made available to him prior to the next hearing in November 2015. On 26 September 2015, the report writer met with the parents and the child, and was able to briefly observe the relationships between them. His Honour had before him the report of the report writer dated 7 October 2015.
Towards the end of her report, the report writer set out some recommendations and observations in relation to the family. She commented on the positive arrangements that had been made between them in the early part of the child’s life, and also commented on the deterioration of those arrangements in recent times, corresponding with the commencement of the proceedings.
At paragraph 83 of the report, the report writer said that from her perspective, “[The child’s] familiarity with [the father] combined with his resilience to be separated from [the mother] needed to be considered when assessing the appropriateness of overnight time with [the father]”. She went on to say:
84.Familiarity is typically associated with frequent interaction. [The father’s] posting to [Town T] has limited his ability to spend frequent time with [the child]. …
85.For [the child] to be comfortable, he needs to be familiar with the person who is caring for him. …
86.Developmentally, it is in [the child’s] best interests that he be familiar with [the father] prior to spending an extended period of time, including overnights, with [the father]. …
The report writer then commented on what each of the parents had told her about how the child had coped with his recent introduction to overnight contact with his father. From the father’s perspective, the little boy slept through the night and nothing untoward was reported. From the mother’s perspective, the child was distressed. In an interim hearing, it was not possible for his Honour to determine where the truth lay.
Significantly, the report writer next said:
87.During this assessment, [the father] proposed that [the child] spends from December 20^th 2015 to December 27^th 2015 (seven consecutive nights) with him. From the writer’s perspective the shift from one overnight to seven consecutive nights would not be in [the child’s] best interest. The writer strongly encourages both [the father] and [the mother] [to] adopt an approach whereby [the child’s] time with [the father] be increased incrementally over time.
Later in her report, she set out certain recommendations:
100.Consistent with [the father’s] proposal and [the mother’s] proposal, the writer recommends [the child] live with [the mother] and spend time with [the father].
101.The writer recommends in the immediate future, [the child] spend up to five days per month with [the father] with such time to be restricted to day time on day 1, overnight on day 2 (returning to [the mother] on the afternoon of day 3) and overnight on day 4 (returning to [the mother] on the afternoon of day 5). In the event [N’s] time with his father was to extend beyond day 5, the writer recommends this pattern be repeated for the duration of their time together.
102.The writer recommends at the conclusion of three block periods as detailed in paragraph 101, that [the child’s] time with [the father] progress to two consecutive overnights on days 2 and 3 (returning to [the mother] on the afternoon of day 4) followed by day time on day 5. In the event [the child’s] time with [the father] was to extend beyond day 5, the writer recommends [the child] spend overnight on days 6 and 8 and with a further two consecutive overnights on days 10 and 11.
103.The writer recommends the arrangements detailed in paragraph 102 be continued until a decision is made regarding [the father’s] proposal that [the mother] relocate.
There is some controversy as to how the report writer came to be of the view that the father was actually seeking that the mother relocate, but this need not trouble us further this afternoon. She then said that “until issues of relocation and financial responsibility for travel associated with [the child’s] time with [the father] are resolved, the writer is unable to recommend a long term schedule for [the child’s] living arrangements”.
When the matter came before the court on 16 November 2015 for what was anticipated to be an interim hearing, consent orders were made between the parents for the father to spend up to five days with the child at Town H between 1 December 2015 and 31 January 2016. The five days would be spent in a block period with the father having two non-consecutive overnight periods with the child. Unfortunately, there was a deficiency in the order to which the parties agreed, in that it did not specify the timing of the commencement and conclusion of each of the visits. As a result, there was a breakdown between the parties as to what they considered would be the best arrangement for the child. His Honour later commented in his reasons about his view in relation to what transpired on this occasion.
At the time the consent orders were made, the matter was set on the path towards trial, but orders were made for there to be a further interim hearing on 2 March 2016. That hearing led to the orders which are now under appeal. It is readily apparent that the court in which his Honour was sitting was under immense pressure. The matter was meant to commence at 2.15 pm, but it did not get underway properly until 5.00 pm. His Honour then sat until after 6.00 pm, in order to accommodate counsel who had come from Brisbane, and then reserved his decision. One can feel for his Honour for having to conduct the matter in that fashion and make a decision as important as this on the basis of submissions that took a little over an hour. In allowing this appeal by consent, every consideration should be given to his Honour for the efficiency with which he went about his duty and the commendably quick time in which he produced his reasons.
In endeavouring to understand the error that I perceive his Honour made, it is important to recognise what the father himself was seeking, which his Honour set out at [17] of his judgment. As I perceive it, the father was very sensibly endeavouring to take on board what the report writer had said, by structuring his proposals around her recommendations. It is true that the father perhaps went further than what the report writer recommended, but his Honour himself commented on the fact that the basis of the father’s proposals was in alignment with what the report writer had said. What is notable about the father’s proposals in relation to the period with which we are now concerned is that he did not seek to spend such a long period of time with the child as his Honour ordered.
His Honour approached his task by first accepting that it was in the best interests of the child for there to be a regime similar to that which the report writer had recommended and which the father was seeking, where the child initially did not spend extended periods of time away from his mother, but rather went between the two parents every night or two. Speaking for myself, that is a very sensible arrangement for a child of this age, given the history of his upbringing by these parents, who separated prior to his birth.
However, his Honour then recognised in his reasons that as a result of what the mother had done, she may not be able to accommodate the orders that he had in mind, which were for the mother to leave Town H, where she is in full-time employment, and travel to Town T for relatively extended periods. It would be fair to say that his Honour was very critical of the mother, and took the view that her actions should not predetermine the amount of time that the father was to spend with the child. As a result, his Honour put in place a default provision, which the father had not sought, that if the mother did not accompany the child to Town T and stay there throughout the contact period, then the child would somehow arrive in Town T and spend a week or two with the father.
In my respectful opinion, his Honour failed to clearly explain why it was in the child’s best interests for the short visiting schedule to be extended to one or two full weeks of living with the person who was not his primary carer. His Honour did refer, without mentioning them specifically, to many of the factors that the court is obliged to take into account in s 60CC of the Family Law Act 1975 (Cth). However, in my respectful opinion, he did not refer to them adequately, or place sufficient weight on the nature of the relationship that the boy had with the mother and the consequences of a child of those tender years potentially being separated from his primary carer for a period of two weeks, in circumstances where the father himself had not even sought that.
Although it is not formally a ground of appeal, the issue does arise as to whether the mother was given procedural fairness. The first that she learned of the potential for such an order to be made was when she received his Honour’s reasons. It is true, without doubt, that a judge is not bound by the proposals put by both of the parties, but it is equally true, in my view, that if a judge proposes to depart significantly from the parameters laid down by the parties in their proposals, they should be alerted to that fact.

In his eloquent submissions this afternoon, counsel for the father pointed out that the mother was implacably opposed to the father initially having overnight time, but certainly any extended overnight time. By inference, he asks us to query what more the mother could have said. Those representing the mother could have asked his Honour to pay closer attention to what the report writer had said about the necessity to consider the resilience of this boy and the relatively limited extent that his father had spent time with him. They could have asked his Honour to reflect on whether the alleged bad conduct of the mother ought to be visited upon the child by imposing a regime not sought by the father and not otherwise indicated by the evidence as being appropriate.
In making those observations, I note that there is nothing to suggest that the father is not capable of looking after the child. The father set out in his evidence the arrangements that he would make to care for the child, and in my view, he has demonstrated a remarkably good attitude to this boy. Having said this, I recognise it is not possible to be conclusive about any of these matters until such time as there has been a trial.
One would anticipate that if the matter gets to trial, the judge will have the opportunity to assess the parties and hopefully lay down a regime where the father’s time with the child, in an appropriate time period, will move to the sort of timeframes that his Honour had in mind. However, speaking for myself, I consider that his Honour has taken the matter more quickly than the circumstances warranted. His failure to adequately explain why he has done so and his failure to give notice to the parties of his intention to do so, in my view, constitutes an error of law. Hence, I consider it is appropriate that the appeal be allowed and for costs certificates to issue.
The parties have agreed that there should be an order in terms of paragraph 1(A) of the minute handed up by counsel for the mother today, so there is a concession to ensure that the father will at least have some time with the child between now and the matter being either agreed or re-determined. I would make that order until further order.

Ainslie-Wallace J

I agree with the reasons for and the orders proposed by Thackray J.

Kent J

I agree with the orders proposed by his Honour and with his Honour’s reasons.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Kent JJ) delivered on 1 August 2016, edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 31 October 2016