Ryan & Burnett
[2008] FamCAFC 72
•2 June 2008
FAMILY COURT OF AUSTRALIA
| RYAN & BURNETT | [2008] FamCAFC 72 |
| FAMILY LAW - APPEAL – CHILDREN – PARENTING ORDERS - Whether Federal Magistrate erred by failing to give adequate reasons - Whether Federal Magistrate erred in giving insufficient weight or inappropriate weight to the evidence – Where Federal Magistrate considered the evidence and made appropriate findings of fact – Where appropriate weight placed on evidence - Where appeal against a discretionary judgment - No error of principle established. FAMILY LAW - APPEAL – APPLICATION TO CHANGE CHILD’S NAME - Whether Federal Magistrate erred making order to change the child’s surname – Whether Federal Magistrate applied relevant principles - Discussion of Flanagan & Handcock (2001) FLC 93-074 for factors to consider in name change cases – No error of principle established. FAMILY LAW - APPEAL - INJUNCTIONS – SECTION 68B - Whether Federal Magistrate erred in making an order preventing the child being driven by a restricted licence holder for the purposes of “change-over” – Whether order made without regard to relevant principles – Consideration of s144 of the Evidence Act 1995 (Cth) – Where the injunction granted by the Federal Magistrate was final – Where the injunctive order was not limited to a named person - Where parties did not adduce evidence that the welfare of the child required she be driven by an unrestricted licence holder – Order restraining a restricted licence holder from driving the child set aside – Appeal allowed in part. FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE - Where mother sought to adduce further evidence about the order which provided for change to the child’s surname – Where father argued the evidence was available at the time of the hearing before the Federal Magistrate – Where mother had opportunity to address the name change issue before the Federal Magistrate - Where material contentious – Application of principles discussed in CDJ v VAJ (1998) 197 CLR 172 – Application to adduce further evidence dismissed. |
| Evidence Act 1995 (Cth) - s 144 Family Law Rules 2004 r 22.26(2)(c) |
Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172; FLC 92-828
Chapman & Palmer (1978) FLC 92-510
Flanagan & Handcock (2001) FLC 93-074
George & Radford (1976) FLC 90-060
Gronowv Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor (1983) 3 NSWLR 378
Johnson & Page (2007) FLC 93-344
Jones v Toben (2002) 71 ALD 629
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
| APPELLANT: | Ms Ryan |
| RESPONDENT: | Mr Burnett |
| FILE NUMBER: | SYM | 3944 | of | 2006 |
| APPEAL NUMBER: | EA | 150 | of | 2007 |
| DATE DELIVERED: | 2 June 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 21 April 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 November 2008 |
| LOWER COURT MNC: | [2007] FMCAfam 953 |
REPRESENTATION
COUNSEL FOR THE APPELLANT: | Mr Gould |
| SOLICITOR FOR THE APPELLANT: | Fox O’Brien |
| ADVOCATE FOR THE RESPONDENT: | Mr Burnett in person |
Orders
That the appeal is allowed in part.
That the mother’s application to adduce further evidence is dismissed.
That Order 26 made by Federal Magistrate Kemp on 21 November 2007 is discharged.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 21 days of the date hereof.
That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.
That each party endorse on the cover sheet of any submissions filed pursuant to Orders 4, 5 and 6, the date upon which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym Ryan & Burnett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 150 of 2007
File Number: SYM 3944 of 2006
| Ms Ryan |
Appellant
And
| Mr Burnett |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Ryan and Mr Burnett are the parents of C, a four year old girl. They were able to agree about a number of parenting orders which were made by Federal Magistrate Kemp on 21 November 2007 including that they should equally share parental responsibility for their daughter. They were however unable to agree about a number of issues, including the surname by which C should be known, the introduction of increased time to be spent by the child with the father until she commences school, the frequency of telephone contact, collection and delivery arrangements at the beginning and conclusion of periods the child is to spend with the father, and duration of holiday periods.
The Federal Magistrate made 35 parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The mother has appealed orders 9, 10, 13, 16, 26, 31 and 32. In summary those orders deal with:
·the periods the child is to spend with the father, but particularly the introduction of increased periods of time to be spent with the father until the child commences school;
·delivery and collection arrangements, including transport arrangements at the commencement and conclusion of the time the child is to spend with the parties;
·whether the father should be “substantially present” when the child spends time with him;
·the duration of school holiday contact once the child commences school;
·telephone contact between the parents and the child; and
·the child being known by the hyphenated surname of Burnett-Ryan
At the hearing of the appeal the parties agreed to vary one order made by Federal Magistrate Kemp (Order 9(b)(ii)), which dealt with commencement and conclusion of periods of time the child is to spend with the father, and later that day, an order was made by consent by Federal Magistrate Baumann amending this order.
I heard this appeal pursuant to a direction of Chief Justice Bryant dated 19 December 2007 under s 94AAA of the Act.
The mother’s Notice of Appeal contains seven grounds of appeal. The challenges to his Honour’s reasons fall essentially into three areas in which it is asserted the Federal Magistrate erred:
·by failing to give adequate reasons;
·in the exercise of his discretion in giving insufficient weight or inappropriate weight to the evidence; and
·making an order preventing the child being driven by a restricted licence holder for the purposes of “change-over” being an injunction which was unsupported by the evidence, and was made without regard to relevant principles.
At the hearing of the appeal the mother was represented by counsel, and the father appeared on his own behalf. The father sought to rely on submissions which far exceeded the 10 pages prescribed in the Family Law Rules 2004
(r 22.26(2)(c)). I dispensed with the requirements of the rule, and permitted the father to rely on his written submissions in lieu of extensive oral argument.
The mother sought to adduce further evidence on the appeal. I heard submissions in respect of that application, which was opposed by the father, reserved my decision, and indicated I would incorporate my determination in respect of that application into these reasons.
Background
The following background is set out in his Honour’s reasons and is not controversial.
The father was born in January 1978 and was accordingly aged 29 years at the date of the hearing.
The mother was born in March 1978 and was also aged 29 years at the date of the hearing.
The parties commenced cohabitation in 2002 in London. They separated at Christmas 2003 before the birth of the child.
The child, whose name was registered by the mother at birth as C G M Ryan, was born in March 2004. She was aged 3 years 7 months at the date of the hearing before his Honour.
The father is a police officer and the mother works in the building industry.
The child has primarily lived with the mother since her birth, and at the date of the hearing was attending pre-school four days per week. The father spent time with the child pursuant to interim consent orders made 26 April 2006.
The father has a child of a previous relationship F Burnett-Napa born in September 2001.
In September 2007 the father married Ms March. The father and Ms March (Burnett) commenced their relationship at the end of 2005.
The mother commenced a relationship with Mr Peters at the beginning of 2007.
Grounds of appeal
At the hearing of the appeal counsel for the mother most appropriately acknowledged that the appeal was an appeal against a discretionary judgment (see House v The King (1936) 55 CLR 499 and Gronowv Gronow (1979) 144 CLR 513) and conceded the limits on appellate interference in those circumstances.
Although counsel for the mother did not formally abandon grounds 3, 4 and 5, he readily acknowledged the difficulties inherent in establishing those grounds, and did not press grounds 4 and 5.
Sensibly, counsel for the mother argued his principal challenge to his Honour’s reasons, namely the challenge to this Honour’s orders requiring a change of the child’s surname at the time of commencement of her schooling, and thereafter argued the grounds directed to time to be spent with the father, the requirement that the father be substantially present during times to be spent with him, and the order (Order 26), described as the injunction, which order provides that “if a vehicle is used to collect or return the child for the purpose of changeover or transporting the child from one place to another…the driver of the vehicle...must have an unrestricted licence unless the child needs to be driven in the case of an emergency or with the prior agreement of the parties”.
I propose to address the challenges to his Honour’s orders in the same order as identified by the mother’s counsel.
Ground 7 – change of name
No order was sought in the mother’s Amended Application filed 28 May 2007 in respect of the child’s name, nor were orders sought in the father’s Amended Response filed 27 June 2007.
However, at the commencement of the hearing, the parties sought different orders and their proposed orders were marked as Exhibit “A” (the mother) and Exhibit “1” (the father). His Honour set the parties’ proposals out in full at the commencement of his reasons. The mother sought an order in the following terms:
That the father be restrained from using any name other than [C G M Ryan] in respect of the child.
The father sought orders:
Each of the father and mother henceforth exclusively use the name [C G M Burnett-Ryan] as the name of the child, until now known as [C G M Ryan] and not cause or permit any other person to use any name other than [Burnett-Ryan], as the child’s surname.
The father be authorised to apply to the Registrar of the Births Deaths & Marriages to change the name of the child previously registered as [C G M Ryan] to [C G M Burnett-Ryan] AND at all institutions and authorities at which the child’s name is recorded.
His Honour commenced his discussion of the competing proposals in respect of the child’s name at paragraph 56 of his reasons for judgment. His Honour said:
The mother set out in Exhibit B, her reasons as to why she believed the child’s surname should not be changed and these were to the following effect:-
His Honour thereafter set out, in summary form, a number of matters raised by the mother in her written submissions, and also summarised the father’s response to those submissions. His Honour noted:
·the mother’s assertion about an agreement reached at the time of the birth of the child that she would have the mother’s surname and two middle names, including the paternal grandmother’s name (his Honour noted the father’s contrary evidence, namely that he had completed the birth registration form in blank and the mother had signed her own surname after he signed the document);
·the child’s preference in light of her age and experience:
-that the child recognised the difference between her name and that of her half-brother, F (the mother’s submission referred to the child recognising the difference in her name and that of the father);
·that the child was comfortable with her surname as she was familiar with being called by her full name at pre-school;
·that the child referred to herself as a “Ryan” girl;
·the child’s questioning the fact the father had a different surname;
·that a change of name would cause confusion to the child;
·that the mother proposed in the event she remarried to maintain the name “Ryan” and that any children of a future marriage would also be named “Ryan”;
·the child’s advanced cognitive skills;
·that the father’s motivation to change the child’s surname was a manifestation of his controlling behaviour.
Although at the commencement of paragraph 56 his Honour explained that the reasons advanced by the mother were set out in the following sub-paragraphs (i) to (vii), in the course of summarising the mother’s written submissions his Honour made findings in respect of the matters raised by the mother. In particular, his Honour said:
i)…[t]he attachment of the name to the child belonging to the paternal grandmother does not identify the respective family names. The hyphenated from [sic] of [Burnett-Ryan] does at least identify both families [sic] surnames. The mother was also asked in cross-examination whether she would agree to the change in surname sought by the father and her response relevantly was “not at this stage”. This response was not a categorical “no” and appeared to reflect the mother’s understandable concern that at some point it maybe in the best interests of the child that she adopt in some form the father’s surname.
In commenting on the mother’s assertion that the child until now felt comfortable with her surname and was called C Ryan at school, his Honour said:
ii)…this is a matter that will take on greater importance when the child commences school. The child’s attachment to being a “[Ryan]” girl would not be affected by the hyphenated form [Burnett-Ryan].
Then dealing with the question of the father’s actions his Honour said:
[t]he mother gives evidence that at least as early as August this year, [C] had questioned the fact that her father had a different surname. It would appear that the child’s questioning of her surname arose after she realised [F] used the hyphenated surname. The Court accepts that the father did not in any sense push the use of his surname with the child and he gave evidence to the effect that he did not wish to confuse or concern the child in any way over this issue.
In considering the mother’s assertion that the child had undergone a number of recent transitions, and a change of name would cause unnecessary stress to the child, his Honour said:
…the Court accepts this position and accordingly will propose no change until 1 January 2009 which should give a suitable time period for the child to settle into the changes identified by the mother but at the same time have the change of name in place ready for her commencement of schooling. This time period will also enable the parties, as Dr [V] opined, to create a path for the change to occur.
In dealing with the mother’s assertion that she would not change her name and that any children she proposed to have in the future would have the Ryan surname his Honour said:
iii)…[t]his seemed an unrealistic position to adopt when it failed to consider the possibility of the differing wishes of the mother’s future partner.
His Honour, in considering the mother’s submission that a change of name would not enhance the child’s relationship with the father because she recognised that other important relatives had different names, said:
iv)…[t]he issue is, however, that this position is more than likely to change upon the child commencing school when the child will be exposed to more interactions with other children and the need to identify with the father and mother will become more important.
In dealing with the mother’s argument about the child’s cognitive ability his Honour said:
v)…[w]hilst this may be true, again the child has not yet commenced school notwithstanding her cognitive ability and that matter is of relevance in providing for the child’s identity within a school environment and to reflect the substantial agreement between the parties that the child will spend much greater time with the father particularly following the commencement of her schooling. The adoption of a hyphenated name would not break any connection with the mother and recognises her importance to the child as her primary attachment figure. There is no evidence that a change in name would threaten the child’s stability and security particularly if it is timed for her commencement of schooling.
His Honour then turned to the mother’s submission that the proposed name would cause difficulties, harassment or embarrassment and said:
vi)…[t]he identification of both the mother and the father’s names in the proposed name would, the Court believes, be a basis for less potential parental conflict than in simply recognising the mother’s name only.
Finally in dealing with the mother’s assertion of controlling behaviour his Honour said:
vii)…[t]here was no evidence to this effect and the Court accepts that the way the father has dealt with the matter with the child, has been supportive of the child’s identification of her own identity but the Court recognises that the time to be spent with the father as it is increasing in the future particularly post the start of her schooling, will have a greater effect on the child seeking to identify her links to the two family units.
At paragraph 57 of his reasons, his Honour considered the father’s submissions in respect of changing of the child’s surname, noting that the father had referred to a number of authorities on this topic. Although not referred to specifically by his Honour, the father had provided written submissions in respect of the change of name sought by him, which submissions became Exhibit “1A” before his Honour. His Honour recorded that the father’s submissions included the following:
·that the decision must be in the best interests of the child;
·the Court should weigh up the short term embarrassment against long term effects;
·the Court should avoid the child being placed in the position where there is confusion of identity and frequent or random changes of name should be avoided;
·as the father would spend increased time with the child a connection with the father’s surname would be supportive of the development of the relationship;
·a hyphenated surname would be supportive of the development of the child’s relationship with her half sibling, F (whose hyphenated name incorporates the father’s name).
In paragraph 57, sub-paragraph (ii) his Honour found that the evidence relating to the child’s birth certificate was not determinative and concluded:
…[t]he change of name proposed by the father is in the Court’s view likely to be of assistance to the child in the development of a close and loving relationship between both parents particularly as the father will be spending considerably more time with her and the child with his relatives and will satisfy what appears on the evidence to be the child’s questioning of her identity and relationship with the father’s son [F] but at the same time protects the child’s strong relationship with her mother and her identity as a “[Ryan]” girl.
The mother’s further evidence application relative to the name issue
The mother sought to rely on her affidavit filed 4 April 2008. Paragraphs 4 to 8 of the mother’s affidavit address the issue of the child’s name.
The father opposed the admission of the mother’s further evidence on the basis that the evidence was evidence which was available at the time of the hearing before the Federal Magistrate.
The mother’s counsel submitted that, due to the unusual way the issue of the child’s surname arose before the Court (not being in either party’s application or response), she had been unable to prepare adequate material to address the issue.
I am satisfied that the material contained in paragraphs 4, 5, 6 and 8 of the mother’s affidavit is merely a repetition of what was before the Federal Magistrate. I note that the Federal Magistrate was requested by her counsel, and without objection from the father’s counsel, to admit the mother’s written material in Exhibit “B” as her evidence on this topic.
In paragraph 7 of the mother’s affidavit she seeks to adduce evidence of photographs taken at the time of the child’s birth and a copy of her baptismal certificate which she asserts was signed by both parents. No signatures appear on the certificate being Annexure “C” to the mother’s affidavit.
Whilst I accept the issue of the child’s name was not subject of an order sought by either party until the commencement of the hearing, Exhibit “B” makes it clear that the mother had ample opportunity to put her arguments to his Honour as to why the child’s name should not be changed.
I consider the evidence now sought to be adduced would, if it had been before his Honour, have had little probative value, and would have been unlikely to have led to a different result. Having regard to the principles dealing with the admission of further evidence enunciated in CDJ v VAJ (1998) 197 CLR 172; FLC 92-828, I find this material should not be admitted on the appeal.
The applications as identified in the parties’ proposals before his Honour were the mother’s application, which was framed as injunctive relief to preclude the father from using any name other than her surname for the child, based it appears, on s 68B of the Act. Section 68B provides as follows:
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
In Flanagan & Handcock (2001) FLC 93-074 the Full Court dealt with an appeal by a father who asserted error by the trial Judge who refused to grant an injunction restraining the mother from using a surname, other than the father’s surname, for the parties’ children. Finn J, having regard to the terms of s 68(B) as was then operative, said:
…the requirement that the Court must regard the best interests of the child as the paramount consideration (which is imposed on the exercise of many of the Court’s powers under that Part) has not been expressly imposed on the exercise of the Court’s power to issue injunctions under s 68B(1). Rather, under that sub-section, the Court is empowered to “make such order or grant such injunction as it considers appropriate for the welfare of the child”.
Although s 68B was amended by the Family Law Amendment (Shared Responsibility) Act 2006 (Cth), the wording of sub-section (1) insofar as it delineates the Court’s power to grant an injunction in relation to a child was not altered. Therefore, in considering whether to grant the injunction sought by the mother, his Honour did not have to have regard to the best interests of the child as the paramount consideration (see s 60CA).
However, the father sought an order in respect of the child’s name which may be considered a parenting order. Section 64B(2) of the Act provides:
A parenting order may deal with one or more of the following:
…
(c) the allocation of parental responsibility for a child; …
Section 64B(3) provides:
Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long‑term issues in relation to the child.
Major long-term decisions are defined in s 4(1):
in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
…
(d) the child’s name; …
Thus, it appears to me the order his Honour was being asked to make by the father could be regarded as a parenting order dealing with one aspect of the allocation of parental responsibility rather than a mandatory injunction under
s 68B, where he was required to have the best interests of the child as the paramount consideration. But as I did not have the benefit of argument on this topic I do not express any concluded views. Clearly, the child’s best interests were a very relevant, if not the paramount consideration.
In Flanagan & Handcock the majority (Kay and Holden JJ) set out a useful summary of cases which have considered the question of a child’s name and the principles to be applied by a judge when determining such an application.
The factors considered in George & Radford (1976) FLC 90-060 by Watson J were set out in the father’s submissions. The father also identified the factors referred to by the Full Court in Chapman & Palmer (1978) FLC 92-510 which include the short and long-term effects of any change in the child’s name, any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control, any confusion of identity which may arise for the child if his or her name is changed or not changed, the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage, and the effect of frequent or random changes of name.
The challenge, articulated in paragraph 16 of the mother’s counsel’s submissions, asserted that his Honour failed “to expose adequate reasoning as to why such a name should be required from 1 January 2009 (see Order 31) when the child is aged almost five years”. Other attacks on his Honour’s orders by the mother’s counsel were:
·that the father brought no evidence in relation to a change of name until the time of the hearing;
·if the basis for the order was to reflect the child’s ongoing relationship with both parents and with F (a half sibling) “almost every child would be the subject of an order for a hyphenated name”; and
·the expert psychologist appeared to favour the retention of the child’s existing surname.
As was most appropriately conceded by the mother’s counsel at the commencement of the hearing, and as I have already noted, this was an appeal against a discretionary judgment.
As I have also already noted, the mother’s counsel submitted that the father filed no evidence to support his application for the change of name.
In Exhibit “1A” the father set out a number of paragraphs in the affidavits filed in his case on which he sought to rely to support the change of name. Careful examination of those paragraphs demonstrate that they do not deal specifically with the change of name issue.
The issue of the change of name sought by the father was raised by his counsel with the Federal Magistrate on the first day of the hearing. The following exchange occurred between counsel and the Federal Magistrate:
MR O’GORMAN: Yes. What the father is proposing is that the child be known by a hyphenated name, [Burnett-Ryan]. And that would be either [Ryan-Burnett] or [Burnett-Ryan], one or the other. And we would be saying, I guess on instructions but I think my instructions would be, your Honour, that we have some further time to put on some material in relation to that issue.
FEDERAL MAGISTRATE: I released a report on the weekend, or on Friday, and I am just struggling to remember whether Dr [V] referred to that issue.
MR O’GORMAN: He [sic] raised it as that the mother had a complaint about the father, that he was calling the child this name, [Burnett].
FEDERAL MAGISTRATE: That was as high as it went.
MR O’GORMAN: Yes. And so it has become more of an issue today. I don’t know whether it was in my learned friends’ original orders, I am not sure.
MR GOULD: It was in my client’s affidavit, and by letter of 31 August the father was put on notice the mother would be seeking that order. It has been around by a little while but you won’t be overburdened by evidence if it remains in its present state.
…
MR O’GORMAN: Apparently Mr [Burnett] is on the birth certificate. He said he wasn’t consulted – his argument is that he wasn’t consulted about the name that was given to the child on the birth certificate, although his name is on the birth certificate. So he would be seeking to put some evidence together, I understand, to have the issue ventilated or decided upon.
FEDERAL MAGISTRATE: Well, if that is an issue that perhaps if there is – I would like to hear Mr Gould on the evidence.
MR GOULD: I have to say, I would have to be put on notice as to costs, because we are here today on all issues, as I understand it.
FEDERAL MAGISTRATE: There was a direction to put on affidavit material.
MR GOULD: Yes, yes.
FEDERAL MAGISTRATE: But certainly one doesn’t want to get into a position where if one has got an expert of Dr [V’s] capacity, I potentially wouldn’t mind hearing from the doctor just on the issue of that. So if there was some short affidavit material, subject to Mr Gould’s position, if that could perhaps be put in maybe just a minute or a note to Dr [V], if these two proposals go to her this afternoon.
MR GOULD: Content for that, your Honour.
MR O’GORMAN: Yes.
FEDERAL MAGISTRATE: And then we can deal with that tomorrow, if it gets to that point.
MR O’GORMAN: Yes.
FEDERAL MAGISTRATE: Gentlemen - - -
MR GOULD: 10 tomorrow subject to the matter being resolved this afternoon, in which case we seek leave to invite you to make orders. (Transcript 29 October 2007, pp 11-12, lines 11-33, 40-47 and 1-28)
That afternoon the mother’s counsel advised the Federal Magistrate the matter was not resolved and the parties wished to proceed the following morning.
At the commencement of the hearing the following day the mother’s counsel said:
MR GOULD: Your Honour, in terms of what was discussed late yesterday could I seek to hand to your Honour a statement prepared by my client which would constitute, with your Honour’s leave, her evidence in relation to the question of change of name, together with a document seeking to highlight the particular paragraphs of my client’s affidavit and particular issues as to effectively proceed… (Transcript 30 October 2007, p 15, lines 15-20)
I am satisfied that the mother had the opportunity to, and did put, evidence before the Federal Magistrate by way of a statement in lieu of an affidavit, and she was cross examined on the document (Transcript 30 October 2007, p 22).
His Honour granted leave to the father to file in court, and rely on his affidavit and that of his present wife, both sworn 30 October 2007, dealing with issues relating to the change of name. These affidavits were admitted without objection. Accordingly, I do not accept the submission that there was no evidence before the Federal Magistrate on which he could determine the issue of the child’s change of name.
The mother’s final complaint is that his Honour’s decision was contrary to the evidence of the expert, Dr V. There was limited cross-examination of Dr V on this topic. When asked to comment whether or not a change of name was in the child’s interests she opined:
Well, I guess I can say at this stage, and especially, too, considering the conflict that exists between the parties, it could contribute to some confusion on [C’s] part. Considering that she perceives herself – has perceived herself as [C Ryan]. I guess it is introducing a new dimension quite suddenly, as well. And how much of this has to do with the ongoing power struggle between the parties? How much would it really be in [C’s] interests, I guess I would be questioning. I mean, certainly name is one of the ways in which identity can be kept alive, but I guess also it is nurtured and fostered in other ways. Through contact, through participation and not name exclusively… (Transcript 30 October 2007, p 48, lines 21-29)
When cross-examined about potential confusion for the child, Dr V agreed with the proposition that the child “is a bit confused now with [F] and the discussions she has had with him.” (Transcript 30 October 2007, p 54).
Dr V was the subject of cross-examination by counsel for the father on the issue of a change to the child’s name. An overall reading of Dr V’s evidence highlights that the issue, from her perspective, was whilst a change of name could be confusing to the child, an attitudinal shift was required in the parents, and that she had discerned the mother had “a strong need for control.” (Transcript 30 October 2007, p 57).
Although his Honour’s discussion of Dr V’s evidence is brief, I do not discern that he failed to have regard to her evidence, particularly where she did not make a firm recommendation in respect of the child’s name.
The principal challenge to his Honour’s orders, including the orders dealing with the child’s name, was mounted on the basis of lack of reasons. Authorities as to the provision of adequate reasons are well known and not a matter of controversy (see Bennett & Bennett (1991) FLC 92-191, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor (1983) 3 NSWLR 378).
Whilst the introduction to paragraphs 56 and 57 of his Honour’s reasons may appear confusing, given that the following sub-paragraphs contain both submissions and findings, on careful reading of these paragraphs his Honour’s path of reasoning is clearly discernable in the passages which I have already extracted. In summary, his Honour considered the arguments advanced by the mother in opposition to the parenting orders sought by the father and found:
·that the inclusion of the paternal grandmother’s middle name did not identify the child’s respective families;
·the mother may at some point in the longer term consider it to be in the best interests of the child if she adopt some form of the father’s surname;
·the child’s attachment to being known as a “Ryan” girl would not be affected by the hyphenated form Burnett-Ryan;
·that the deferring of the coming into effect of the order until 1 January 2009 would allow the child sufficient time to settle into her new home and pre-school before the introduction of the change of name;
·that the parties ought have sufficient time to “create a path” for change to occur;
·the mother’s position about maintaining the name of Ryan for future children was unrealistic;
·the fact of the child of identifying with the mother and father would increase upon her commencing school;
·the adoption of a hyphenated name would not sever the child’s connection with the mother and recognised her importance as the child’s primary attachment figure;
·the hyphenated name would be a basis for less parental conflict;
·with the child spending increasing time with the father, she being able to identify her links to the two family units;
·the name change would satisfy the child’s questioning of her identity and relationship with her half sibling.
It was not suggested by the mother’s counsel that there was any factor his Honour had erroneously taken into account, or any factor that he had failed to take into account.
As the majority in Flanagan & Handcock noted at paragraph 42:
This was a decision made in the exercise of a judicial discretion. Appellate courts can only interfere with an exercise of judicial discretion within certain well defined and confined limits. It is necessary to demonstrate an error of principle, an error of fact, or the arrival at a result which was plainly wrong…
In this case I am satisfied that no error of principle has been established and appellate interference is not warranted.
Ground 1 – challenge to his Honour’s orders for time to be spent between the child and the father
The mother’s challenge articulated in ground 1 of the Notice of Appeal was that:
·insufficient weight was given to the view of the mother of what was in the child’s best interests;
·his Honour failed to give adequate reasons for his conclusions; and
·the conclusions reached were outside the reasonable ambit of the discretion and were against the weight of the evidence.
After setting out relevant background material in his reasons for judgment, the Federal Magistrate summarised the salient parts of the evidence of Dr V. Under the heading “The time the child will spend with her father” his Honour set out the recommendations made by Dr V and then explained that in her oral evidence that Dr V had said:
…there was no magic in the time to be spent with the father in the period up until the child commences school…other than to the effect that it should be staged with gradual increases over time… (paragraph 47)
His Honour then noted the parties’ respective positions in light of their proposals for arrangements until the child commenced school in 2009. His Honour concluded that a variant of the proposals of the mother and the father would be in the best interests of the child. In so finding, the Federal Magistrate accepted the mother had left the child when she went overseas, and that the orders he proposed to implement were consistent with s 60CC(3)(b), (c), (d), (e), (f) and (l) of the Act.
Earlier in his reasons (at paragraph 42) his Honour made a finding “…that both parties appear to be deeply committed to the child.” I note that both parties sought that an order should be made that they have equal shared parental responsibility for the child.
His Honour was therefore obliged to consider, pursuant to s 65DAA, whether the child spending equal time with each of the parents would be in her best interests and reasonable practical, and if he was not going to make an order for equal time, whether spending substantial and significant time with each of the parents would be in her best interests and reasonably practicable.
Although his Honour’s reasons are brief, it is apparent his Honour found that both parties were committed to the child, and that whilst the expert, Dr V in her written report had made recommendations for increased time with the father more in line with the mother’s proposal, she qualified that recommendation in her oral evidence. His Honour also took into account that the mother had left the child with other persons for periods in excess of three days when she travelled overseas. His Honour did reject, as being appropriate for the child, the father’s proposal that holiday contact in December 2007 should be of seven nights’ duration, and accepted the mother’s evidence that such a period was not appropriate, as it would constitute too long a period away from the mother.
Whilst it would have been useful if his Honour had referred to the evidence and made findings about the matters under s 60CC(3)(b), (c), (d), (e), (f) and (l), to which he referred, it is possible to discern the path of his Honour’s reasoning in respect of the orders for time to be spent with the father. There is nothing to indicate in this narrow dispute that his Honour’s decision was outside the reasonable ambit of his discretion.
Ground 2 – asserted error by failing to make the child’s time with the father conditional upon the father being substantially present while the child is with him
The mother’s challenge to this order was essentially a challenge directed to weight afforded by his Honour to s 60CC(3)(l).
That section provides as follows:
Additional considerations are:
…
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The mother also asserted the Federal Magistrate had overlooked a concession made by the father that he would consent to an order requiring him to be substantially present if he could be absent for up to four hours.
In paragraph 50 of his reasons, his Honour set out the mother’s position namely that she was prepared to agree to an order which allowed the father to be absent for periods of one to four hours when the child was spending time with him. His Honour recorded Dr V’s evidence that the child attended day care, and that the mother had travelled overseas on two occasions leaving the child in the care of other persons. His Honour also recorded the father’s submission that the imposition required by the mother was further evidence of the mother “seeking to control matters”. His Honour agreed with the father’s submission. His Honour gave cogent reasons for refusing to make the order sought by the mother including:
·the father’s marriage and the child’s good relationship with the father’s wife;
·the father’s occupation as a police officer may require him to be absent in emergencies situation;
·that if the father was called out in an emergency there would be no risk to the child who would remain with Ms March (Burnett);
·that such an order could lead to contravention applications; and
·there were issues of practicality.
The transcript reveals that the father when questioned initially about the concept of “substantially present” said “I don’t like the concept”, but he eventually agreed with the mother’s proposal as follows:
[FEDERAL MAGISTRATE:] Do you understand the question? Mr Gould indicated that the mother in her evidence said that she accepted that you could be absent for a period of time? --- Yes.
And it ranged from between 1, 2, 3 and I think she said up to four hours would be acceptable when you would be called away. And Mr Gould just said if the concept of substantially present was defined, so that you could be absent for up to four hours with a breach, would that be acceptable to you?---Yes, that would be acceptable. (Transcript 30 October 2007, p 43, lines 28-39)
Although his Honour does not specifically mention the father’s concession set out above, his reasons demonstrate that he determined it was in the child’s best interests not to make such an order. As was acknowledged by counsel, this attack on his Honour’s orders was principally a challenge to the weight his Honour afforded to likely future contraventions which may find their genesis in such an order. I am satisfied that his Honour did not place undue weight on this factor, and that the challenge is not sustainable.
Grounds 3, 4 and 5
As I have already noted, counsel for the mother, whilst not formally abandoning these grounds, readily conceded each of the matters raised were matters within the discretion of the Federal Magistrate. The orders dealt with issues such as the conclusion of school holiday time with the father, telephone communication and transport sharing.
In CDJ v VAJ (1998) 197 CLR 172, Kirby J referred to the wide ambit of discretion available to a trial Judge and the limits on appellant interference with such decisions. His Honour said at 230 – 232 (footnotes omitted):
Discretionary and evaluative decisions
186. A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision- makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self - restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.
I am satisfied that the orders made were well within the reasonable ambit of discretion and that there is no merit in these grounds.
Ground 6 - challenge to his Honour’s order restraining the child from being driven by an unrestricted licensee
Ground 6, as contained in the Notice of Appeal, asserts that:
The Court erred in restraining the child from being driven by an “unrestricted licensee” in that:
(a)The injunction appears to be directed to the mother’s brother and yet there was “no evidence put before the Court specifically dealing with the mother’s brother” (see page 26.9 of Judgment) leading the Court to issue an injunction in circumstances where it could not have been satisfied that such injunction was necessary; and
(b)Inadequate reasons for the granting of such injunction were given.
In the mother’s counsel’s submissions in respect of this ground it is asserted there was:
…no proper application before the Court, no evidence in support of any oral application, and the matter was dealt with “on the run” and “at the heel of the hunt”… (Mother’s submissions, p 3, paragraph 13)
Further it was asserted:
[a]t paragraph 26 of the Judgment, the learned magistrate concedes that no evidence was put before the Court. To make an injunction in these circumstances is not an exercise of judicial function. The matter was ultra vires. (Mother’s submissions, p 3, paragraph 13)
It was further submitted:
[t]he imposition of the injunction may have the unintended effect of preventing the parties themselves, from transporting the child in the event that they lost one or both driver’s licences. (Mother’s submissions, p 3, paragraph 14)
In his Amended Response, the father sought an order in the following terms:
If a vehicle is used to collect or return the child for the purpose of changeover or transporting the child from one place to another then the driver of this vehicle must have an unrestricted licence. Such vehicle must be fitted with appropriate child restraints whilst the child is inside the vehicle as required by Australian road rules, regulations or laws existing at the given time. (Annexure “A” to Father’s Amended Response filed 27 June 2007, paragraph 24)
The orders sought were repeated in the father’s proposed Minute of Order which became Exhibit “1” before his Honour. Therefore, the assertion in the appellant’s submission that “there was no proper application before the Court”, prima facie, is not maintainable. However, I accept the order as sought was not in personam and as drafted would have been unenforceable. The relevant order as made is not in personam and is in the following terms:
(26)That if a vehicle is used to collect or return the child for the purpose of changeover or transporting the child from one place to another, then:
(i)such vehicle must be fitted with appropriate child restraints whilst the child is inside the vehicle as required by Australian road rules, regulations or laws existing at the given time;
(ii)the driver of the vehicle in (i) must have an unrestricted licence unless the child needs to be driven in the case of an emergency or with the prior agreement of the parties.
Each of the parties argued on the basis that this order was an injunction (therefore made under s 68B of the Act). I have already set out the terms of
s 68B(1) earlier in these reasons. It appears the parties imply words into the order, so as to bind them personally.
On this issue his Honour said:
This is a difficult question. The mother seeks no limitation as she wishes her 19 year old brother who does not hold an unrestricted licence to be able to drive the child. The father seeks a restriction. Nothing was put clearly to the father in cross examination as to this and whilst it may be seen as a device for control to being exercised by the father over the mother, the Court is aware of the statistics of young male drivers and their increased exposure to accidents. There was no evidence put before the Court specifically dealing with the mother’s brother and his driving experience and no adverse finding is made concerning him. However, the Court does believe that the father’s concern as expressed here must be given some weight. Whilst other parents may have no difficulty with respect to their child being driven by a person on a restricted licence, in the circumstances of this case, the father having expressed his concerns, the Court proposes to impose a restriction that the child not be driven by a person on a restricted drivers licence unless in the case of an emergency or with the prior consent of the parties. The Court considers this in particular under s.60CC(3)(n) [semble s 60CC(3)(m)] as a matter relevant to the best interests of the child. (paragraph 55)
At the appeal neither the father nor the mother referred me to any material relevant to the granting of an injunction, either in their affidavit material or by way of oral evidence adduced before the Federal Magistrate.
In his reasons his Honour noted no evidence was put before the Court dealing with the mother’s brother. His Honour referred to “statistics of young male drivers and their increased exposure to accidents”.
Section 144 of the Evidence Act 1995 (Cth) deals with notice of matters of common knowledge. It is in the following terms:
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
The authorities on judicial notice since the introduction of the Evidence Act1995 (Cth) are limited. Whilst in Jones v Toben (2002) 71 ALD 629, Branson J referred to the nature of the internet and world wide web as being a matter of common knowledge I was not referred to any authority which supported the proposition that motor accident statistics of young male drivers would fall within s 144.
If his Honour proposed to rely on such material it appears to me that he was obliged, pursuant to s 144(4), to give the parties an opportunity to refer to that material and, if desired, make submissions on it.
This injunction was not interlocutory, but final. As his Honour acknowledged, there was no evidence before him adduced by either party on which he could be satisfied that the welfare of the child required that she never be driven for the purposes of delivery or collection pursuant to the orders, by any person (the order not being limited to a named person) who did not have an unrestricted driver’s licence.
In Johnson & Page (2007) FLC 93-344 at paragraph 109 the Full Court noted the power to be exercised under s 68B is a “discretionary power only to be exercised in an appropriate case”. The Full Court, also, at paragraph 118 noted an application to discharge an injunction would involve the parties in ongoing proceedings and costs. Those comments are apposite to this case. I am satisfied therefore there is merit in ground 6, and that Order 26 must be set aside.
Application to adduce further evidence
I have already referred to parts of the mother’s affidavit material sought to be adduced by way of further evidence.
The mother sought to adduce further evidence about her observations of the child on her return from spending time with the father. I am satisfied this material is contentious and, in accordance with the principles discussed in CDJ v VAJ, it would not be appropriate to admit this evidence.
Costs of the appeal
Neither party has made to date submissions in respect of the costs of the appeal. I propose to provide a timetable for filing of written submission in respect of costs of the appeal should either party wish to avail themselves of the opportunity to do so.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date:
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