Salvati & Donato
[2010] FamCAFC 263
•24 December 2010
FAMILY COURT OF AUSTRALIA
| SALVATI & DONATO | [2010] FamCAFC 263 |
| FAMILY LAW - APPEAL – CHILDREN – Expert Evidence – Adequacy of Reasons – where there was evidence from two experts before the Federal Magistrate – whether the Federal Magistrate failed to provide sufficient reasons for adopting the recommendations of one expert over the other – whether the Federal Magistrate failed to provide sufficient reasons for adopting the recommendations of the expert – no merit in grounds. FAMILY LAW - APPEAL – CHILDREN – whether the Federal Magistrate failed to provide sufficient reasons for why the child should commence to live with the father – whether the Federal Magistrate’s discretion miscarried in ordering a change in the child’s living arrangements and regarding the supervision of the maternal grandmother’s time with the child – no merit in grounds – appeal dismissed. FAMILY LAW - APPEAL – PROCEDURAL FAIRNESS – comment made on the Federal Magistrate’s reference to and use of social science research where such material was not tendered by the parties and in respect of which the parties did not have an opportunity to make submissions – where no ground of appeal was directed to this issue. FAMILY LAW - APPEAL – COSTS OF APPEAL – where the mother was wholly unsuccessful in the appeal – mother to pay the costs of the father and the Independent Children’s Lawyer. FAMILY LAW - APPEAL – COSTS OF CROSS-APPEAL – where the father withdrew his cross-appeal at the hearing – father to pay the mother’s costs of the cross-appeal. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, 69J, 69H, 69N & 117 Family Law Rules 2004 (Cth) |
| Allen v Green (2010) 42 Fam LR 538 Andrew & Delaine [2009] FamCAFC 182 Barclay & Orton [2009] FamCAFC 159 Bennett and Bennett (1991) FLC 92-191 Friscioni & Friscioni [2010] FamCAFC 108 Hall and Hall (1979) FLC 90-713 House v The King (1936) 55 CLR 499 Kennedy & Kennedy [2010] FamCAFC 195 Lamereaux & Noirot (2008) FLC 93-364 Malak & Mairie [2010] FamCAFC 170 McCall & Clark (2009) FLC 93-405 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Vance & Vance [2010] FamCAFC 250 Wen & Thom [2010] FamCAFC 81 |
| APPELLANT: | Ms Salvati |
| RESPONDENT: | Mr Donato |
| INDEPENDENT CHILDREN’S LAWYER: | John Meehan |
| FILE NUMBER: | SYM | 7919 | of | 2006 |
| APPEAL NUMBER: | EA | 109 | of | 2009 |
| DATE DELIVERED: | 24 December 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland, Strickland and Benjamin JJ |
| HEARING DATE: | 19 August 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 20 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 883 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Gillies |
| SOLICITOR FOR THE APPELLANT: | Tiyce & Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Friedlander |
| SOLICITOR FOR THE RESPONDENT: | Kells The Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Stollier |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | JPM Legal |
Orders
The appeal is dismissed.
The mother pay the father’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.
The mother pay the Independent Children’s Lawyer’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.
The father pay the mother’s costs in relation to the cross-appeal as agreed and in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Salvati & Donato 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 109 of 2009
File Number: SYM 7919 of 2006
| Ms Salvati |
Appellant
And
| Mr Donato |
Respondent
And
| Independent Children’s Lawyer |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Salvati (“the mother”) against final parenting orders made by Federal Magistrate Altobelli on 20 August 2009 in proceedings between the mother and Mr Donato (“the father”). The orders relate to the parties’ only child X born in November 2005 who was aged 3 years at the time the final orders were made.
The major issue for determination at trial was whether there was an unacceptable risk of abuse to the child in either parent’s home. Another significant issue was the mental health of Mrs Salvati (“the maternal grandmother”), with whom the mother lived at the commencement of the trial, and whether the maternal grandmother posed an unacceptable risk to the child.
In summary, the Federal Magistrate’s orders provided for the father to have sole parental responsibility, for the child to live with him and spend time with the mother, initially from after pre-school on Wednesday to Saturday morning each week, and when the child commences school from after school Wednesday to before school Tuesday each alternate week, as well as on special occasions. The mother was ordered to attend upon a specified psychiatrist for a period of 12 months. Orders were also made for the maternal grandmother to spend supervised time with the child. Such time was to continue to be supervised until the grandmother caused a report to be prepared by a psychiatrist as to her mental health.
The father cross-appealed the orders for the child to spend time with the mother, however, at the hearing of the appeal the cross-appeal was withdrawn.
Both the father and the Independent Children’s Lawyer seek that the mother’s appeal be dismissed.
Background
At the time of trial the mother was aged 25 years and the father was aged 30 years.
The parties commenced cohabitation in June 2005.
The parties’ child X was born in November 2005.
The parties separated in June 2006. Following separation the child remained in the care of her mother, and they lived at the mother’s parents’ home.
Proceedings were commenced by the mother in the Federal Magistrates Court shortly after separation.
On 1 June 2007 final parenting orders were made by Federal Magistrate Altobelli. These orders provided (as summarised by the Federal Magistrate at paragraph 3 of his Honour’s reasons) for the father to spend overnight time with the child on a “staggered” basis and time on special occasions. Restraints were placed on the maternal grandmother’s attendance at changeover, on the parents’ denigration of each other and their families, and on the parents’ consumption of alcohol. Both parties were to attend parenting courses.
On 28 August 2008 the mother filed an Initiating Application seeking to amend the existing parenting orders.
On 1 September 2008 all previous orders for the father to spend time with the child were suspended and orders were made for the father to spend supervised time with the child. An Independent Children’s Lawyer was appointed.
On 23 October 2008 further interim orders were made by consent, again with the father to have supervised time with the child. A family report was ordered.
On 12 February 2009 a family report by Dr S, clinical psychologist, was released.
On 13 March 2009 Dr K, psychiatrist, was appointed as an expert under Part 15 of the Family Law Rules 2004 (Cth) (“the Rules”) to prepare a report. This report was released in June 2009.
The final hearing came before the Federal Magistrate on 6 and 7 July 2009.
On 7 July 2009 the Federal Magistrate made interim orders for the child to live with the father from the conclusion of the proceedings on that day and to spend each weekend and overnight on Tuesdays with the mother. The mother was not to permit the maternal grandmother to be in the child’s presence without the mother or maternal grandfather also being present, and the maternal grandmother was not to be responsible for the child’s care.
Between the conclusion of the final hearing and the delivery of the Federal Magistrate’s judgment, the mother moved out of her parent’s home.
The Federal Magistrate delivered his reasons for judgment and made final orders on 20 August 2009.
Reasons for judgment of the Federal Magistrate
The Federal Magistrate commenced his reasons by providing a brief background of the proceedings and outlining the proposals of the parties and the Independent Children’s Lawyer. Each party sought that the child live with him or her and spend time with the other parent, initially supervised. Both parents proposed orders curtailing the maternal grandmother’s time with the child and the mother proposed that she would reside away from the maternal grandmother following the making of the orders. The Independent Children’s Lawyer supported that the child should live with the father and spend time with the mother, initially supervised, and also proposed orders for the maternal grandmother to spend supervised time with the child.
After outlining the relevant sections of the Family Law Act 1975 (Cth) (“the Act”), the Federal Magistrate referred to and cited in detail a number of journal articles, namely, firstly, under the heading “Significance of Time”, an article by Smyth, ‘Time to rethink time? The experience of time with children after divorce’ Family Matters No 76, Winter 2005, at p 4 and secondly, under the heading “Parental Conflict and Shared Parenting”, research on shared parenting arrangements in families where there are high levels of conflict, specifically articles by McIntosh and Chisholm ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20 (1) Australian Family Lawyer 3 and by Johnston ‘Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making’ (1995) 33 Family and Conciliation Courts Review 415.
The Federal Magistrate said that the extracts from the articles cited were “background material” to his “judgment” and not evidence. It was not material of which he took “judicial notice” and he said he made “no findings of fact as a result of this material.” His Honour further said it was “background material” that assisted “in understanding the expert evidence provided by the Family Consultant.”
His Honour outlined the applicable law in cases where there are sexual abuse allegations, before turning to the expert evidence in this case. His Honour first had regard to the evidence of the family consultant, Dr S, who prepared a report in February 2009. His Honour recorded Dr S’s observations of the maternal grandmother and the child’s interaction with family members. Dr S recommended equal shared parental responsibility, that the child live with the mother and spend time with the father “depending on the Court’s findings about the allegations made by the mother and the maternal grandmother.”
The Federal Magistrate found this report to be “significant”, even though it was perhaps “overshadowed” at trial by the later report of Dr K. His Honour concluded that the report was “very balanced” and that it should have raised in the minds of the mother and the maternal grandmother “at the very least an alternative hypothesis to explain [the child]’s behaviour and disclosures … and that [the child]’s observed interaction with both sets of families was inconsistent with the behaviour of an abused child.” His Honour found that the report should also have raised concerns in their minds regarding the maternal grandmother’s delusional behaviour. His Honour considered the report would, in the mind of a reasonable observer, have provided “a measure of reassurance about these matters and about [the child]’s safety”.
His Honour recorded at this point that in February 2009 the mother had also received, by way of an application made under the Freedom of Information Act 1989 (NSW), a copy of an internal email from the Department of Community Services (“DOCS”), which his Honour also considered should have provided the mother and maternal grandmother with a “measure of reassurance”, but which instead seemed to fuel the maternal grandmother’s belief of conspiracy on the part of DOCS. His Honour set out this email in full at paragraph 30 of his reasons.
His Honour found that the reasonableness of the mother’s beliefs since February 2009 was a significant issue in the case, and that “[a]nother more reasonable, objective and less suspicious parent would, after reading Dr S’s report and the DOCS internal document, have taken some reassurance from these documents in the sense that each presents in its own way alternate hypotheses to explain [the child]’s behaviour, as well as containing the views of independent persons … that raised serious doubts about the allegations [the child] had made.”
His Honour then outlined the evidence of Dr K, a Consultant Forensic Psychiatrist, who conducted psychiatric assessments of the parents, the child, the father’s partner and both sets of grandparents. In summary, Dr K concluded that the mother did not present with a psychiatric illness or mental disorder, however “the mental state irregularities described regarding [the mother’s] affect and thought form may indicate either an underlying psychosis of [sic] the future development of a psychotic illness.” He concluded that the maternal grandmother has a psychiatric diagnosis consistent with delusional disorder. He found that there was no psychiatric illness or mental disorder present in any other person interviewed.
Dr K concluded that the maternal grandmother’s delusions directly impact upon the child and her relationships with her father and his partner and family. He found the mother was easily influenced by the maternal grandmother. Dr K found that it was more likely than not that the child was coached or instructed by either the mother or the maternal grandmother to make repeated apparent disclosures of sexual abuse, and that little weight should be given to the alleged disclosures.
Dr K recommended that due to the maternal grandmother’s untreated psychiatric illness she should have only supervised contact with the child limited to a few hours per month, supervised by an external supervisor. He recommended that this supervised time may gradually increase upon the maternal grandmother receiving treatment. Given his findings that the mother had “mental irregularities” that may suggest either an underlying psychosis or the future development of one, he recommended a psychiatrist also monitor the mother. Dr K further recommended that the child continue to spend time with the mother for at least one day each week, preferably supervised, but that the child live mainly with the father.
Counsel for the mother submitted before the Federal Magistrate that minimal weight should be placed on Dr K’s report because:
a)Firstly, he gave his evidence in an “argumentative manner”. His Honour did not accept this, however, and in any event found if it could be considered argumentative, this would not detract from his evidence;
b)Secondly, there was a lack of any reasoning process to support the conclusions that the mother may have an underlying psychosis or develop one in the future. The Federal Magistrate did not accept this criticism;
c)Thirdly, the report in effect focused almost solely on the considerations in s 60CC(2) and gave little weight to the additional considerations in s 60CC(3). While his Honour accepted there may be some substance to this criticism, it was not such as to reduce the weight he would place on the report.
At the hearing before the Federal Magistrate counsel for the mother raised no challenge to Dr K’s observations and conclusions regarding the maternal grandmother, and unequivocally adopted his assessment of the mother having no psychiatric condition to support his assertion that the mother could therefore care for the child.
In summary his Honour did not accept the mother’s criticisms of the expert’s report and found that both the report and his oral evidence should be given weight.
His Honour said he found some of Dr K’s evidence about the need for supervision to be very helpful, as well as his evidence regarding whether the child was coached to make her disclosures. Dr K gave evidence that the child suffered from confusion, possible post-traumatic stress, was developing anxiety disorders and behavioural problems and possible later psychotic illness as a result of her home environment where she was exposed to denigration of the father and delusional thoughts about him.
The Federal Magistrate accepted Dr K’s report and evidence and found him to be a “forthright and impressive expert witness”.
Turning to address the s 60CC factors, the Federal Magistrate concluded that the child enjoyed a meaningful relationship with both her parents and that this was not a real issue in the case.
With respect to s 60CC(2)(b), the mother had originally submitted that there was an unacceptable risk of abuse to the child if she had anything other than supervised time with the father. The father’s case was that the child was at an unacceptable risk of abuse if left unattended with the maternal grandmother and, for a period of time, the mother also.
The Federal Magistrate said he preferred to approach the case under s 60CC(2)(b) “as if there is little distinction between it and the concept of ‘unacceptable risk of abuse’ as articulated in M & M [1988] FLC 91-979”.
In light of the “significant concessions” which the mother had made by the time of closing submissions in relation to the alleged abuse, and the entirety of the evidence (in particular the two expert reports), his Honour found there was no unacceptable risk of abuse to the child from her father or his family.
His Honour did conclude, however, that there was an unacceptable risk of abuse or harm if the child spent unsupervised time with the maternal grandmother, at least pending a review of her condition.
His Honour commented that whether there was an unacceptable risk of abuse or harm to the child by the mother was far more complex, however. In this respect, his Honour had particular regard to the closeness of the relationship between the mother and the maternal grandmother:
58. I accept that the evidence demonstrates the closeness of the relationship between the mother and grandmother in this case. I further accept that the mother has accepted her own mother’s concerns about [the child] almost without question and without independent consideration. I also accept that the mother continues to have subjective beliefs about these allegations, even though they have no objective basis. The difficulty I have in accepting the submission that there is an unacceptable risk of abuse to [the child] in her mother’s care is that it does not adequately take into account the evidence that the mother has actually moved out of her parent’s home.
Addressing the fact that the mother had moved out of her parents’ home following the final hearing and prior to the delivery of judgment, his Honour recognised that this was a significant change in the mother’s life given her clear reliance on the maternal grandmother. Although his Honour was mindful that the move had come very late in the proceedings, and that this could be seen as “perhaps an almost desperate last attempt by the mother to recover in a case that was so clearly going badly for her”, his Honour observed that:
60. … Tactical considerations aside, I must determine what is in [the child]’s best interests. The mother has been her primary carer since separation, and [the child] is closely attached to her.
His Honour determined that the concerns regarding the mother’s mental health could be dealt with by ongoing psychiatric assessment and concluded that provided the mother obtains the psychiatric treatment recommended, and does not live with the maternal grandmother whilst the child is with her, there was no unacceptable risk of abuse to the child in the mother’s care. His Honour expressly acknowledged that this finding was contrary to the submissions of both the Independent Children’s Lawyer and the father, however he was satisfied that appropriate safeguards could be put in place to protect the child and that by spending more time in the father’s household the child would be “shielded” from concerns about the mother’s household. The mother’s time with the child was to be significantly reduced, however.
Turning to s 60CC(3) factors, his Honour gave no weight to any views of the child and found that the child has a good relationship with both her parents, her grandparents and her extended family. With regard to paragraph (c), his Honour found the mother has “a significant lack of willingness and ability to facilitate and encourage a close and continuing relationship” between the child and the father, but that there were no concerns regarding the father in this respect.
The Federal Magistrate was mindful that the impact of change on the child in this case was a big concern, however, his Honour was also concerned at the consequences of not changing the parenting arrangements, in that the child would be exposed to the risk of unacceptable abuse or harm from the maternal grandmother as well as her mother (to the extent his Honour had previously discussed). His Honour also considered there would be a risk of the child’s relationship with her father being further undermined.
There was no issue of either parent’s capacity to provide for the physical or intellectual needs of the child, but the real focus was the child’s emotional or psychological needs. His Honour found the mother lacked the capacity to protect the child from the maternal grandmother’s delusional beliefs and the mother’s own beliefs and negative views of the father, and that this lack of capacity was also apparent from the mother’s actions in repeatedly taking the child to the doctor. His Honour concluded that the mother had a “total incapacity” to protect the child from the maternal grandmother’s delusional beliefs and the mother’s own “quite ill-founded” beliefs and that the best the court could do was to limit the child’s time with the mother and her grandmother, at least pending a review of the grandmother’s condition.
His Honour noted that the mother was quite young and immature, which his Honour commented may explain why she was so dependent on the maternal grandmother, but that this did not justify the mother’s behaviour. On the other hand, the Federal Magistrate found the father’s approach to resolving the conflict was mature and well considered.
In relation to s 60CC(3)(i), his Honour recorded there was a high level of conflict and distrust between the parties and that communication was virtually non-existent. The Federal Magistrate was impressed though with the father’s attitude about parenting.
Family violence was not a relevant consideration in the case.
The Federal Magistrate acknowledged that there was a high risk of further proceedings in this matter, and that the orders least likely to lead to this was for the child to live principally with the father and spend substantial and significant time with her mother, with the possibility that the orders may change in the future subject to the progress of the mother and the maternal grandmother. His Honour said the reporting to DOCS and the litigation in general needed to stop, and he was much more confident about the father’s ability in this regard than the mother’s.
Turning to consider parental responsibility, his Honour determined that the presumption in s 61DA was rebutted as equal shared parental responsibility was not in the child’s best interests, and that the father was to have sole parental responsibility. However, the order was to be modified so that the father was required to consult the mother and take into account her views to mitigate the risk of the mother being completely excluded from decision making.
Finally, his Honour addressed the orders he proposed to make. The child was to live predominantly with the father. However, his Honour said he preferred that there be block periods with the father and the mother to minimise the interaction of the parents at changeover and thus intended to give the mother three nights per week and the father four nights per week with the child. In outlining this, the Federal Magistrate said he appreciated that he was in effect ordering “shared care in a case where the lack of communication and trust has led to an order for sole parental responsibility”, and as such, he was acting contrary to the research of McIntosh and Chisholm to which he had earlier referred. His Honour said the facts of this case were “unique”, however.
Once the child started school his Honour proposed that she spend six nights with the mother and eight nights with the father in each fortnight.
The Federal Magistrate was mindful that the proposed orders were also contrary to the proposals of the father and the Independent Children’s Lawyer, in that they provided for much more time with the mother, and on an unsupervised basis, however, his Honour considered that the proposals of the father and Independent Children’s Lawyer underestimated the impact on the mother of moving away from the maternal grandmother and the impact of the proceedings on her. With further psychiatric evaluation of the mother and grandmother, his Honour was “as confident as one can be” about the benefit of the orders for the child.
Finally, with respect to the future psychiatric assessments of the mother and maternal grandmother, the Federal Magistrate agreed with the submissions by the father and the Independent Children’s Lawyer that the mother and maternal grandmother would “shop around” for a psychiatrist if permitted to choose. His Honour determined Dr K was in the best position to provide the assessment, but if he was not available, a psychiatrist as nominated by the Independent Children’s Lawyer was to undertake the assessments.
Orders made 20 August 2009
Federal Magistrate Altobelli made the following orders on 20 August 2009:
(1) The Father have sole parental responsibility for the Child [X] born […] November 2005 subject to the following:
(a)The Father should consult the mother about major long term decisions relating to [the child]; but
(b)If the Father and Mother are not able to reach agreement about the same, within a reasonable time frame (having regard to the nature of the decision to be made), the father’s decision will be final.
(2) The Child live with the Father.
(3) The Mother, for a period of 12 months attend at her own cost on a consultant psychiatrist, Dr [K] (or if he is unwilling or unable to assist, on a consultant psychiatrist nominated by the Independent Children’s Lawyer), at least every three months for assessment and monitoring in relation to an emerging psychotic disorder (if any).
(4) The report of the said psychiatrist is to be provided to the Independent Children’s Lawyer as soon as practicable after it has been prepared. The Independent Children’s Lawyer is then at liberty to:
(a)Make a copy available to the father; and
(b)Relist the matter before Federal Magistrate Altobelli on seven (7) days’ notice if any matter arises in relation to the welfare of [the child] out of the said report or reports.
(5) Commencing from Wednesday 26 August 2009, and until [the child] commences school, the Mother spend time with [the child] from after preschool, or from 4.00pm should [the child] not be attending preschool, each Wednesday to 10.00am on Saturday each week.
(6) The Father is not to enrol [the child] in preschool on more than one day that she spends with the Mother each week.
(7) Upon [the child] commencing school, the Mother spend time with [the child] from after school on Wednesday to before school Tuesday each alternate week.
(8) The Mother is also to spend time with [the child]:
(a)On Mother’s Day between 10.00am and 4.00pm if it is not already a contact weekend; and
(b)On the Mother’s birthday between 4.00pm and 6.00pm if it is a school day, and 2.00pm and 8.00pm if it is on a weekend, if the Mother’s birthday is not already on a contact day; and
(c)During odd numbered years, on Christmas Eve from 12 noon to Christmas Day at 12 noon, and during even numbered years on Christmas Day from 12 noon to Boxing Day at 12 noon.
(d)For one-half of each school holiday period and if the parents are unable to agree as to which half, during the second half of each school holiday period.
(e)The Mother’s time with [the child] is suspended during the Father’s half of all school holiday periods, and on the Father’s birthday between 4.00pm and 6.00pm if it is a school day, and 2.00pm and 8.00pm if it is on a weekend when [the child] would be with the Mother, and on Father’s day between 10.00am and 4.00pm if it is on a weekend when [the child] would be with the Mother.
(9) Where changeover pursuant to these orders does not take place at [the child]’s school or preschool, then the Mother is to collect [the child] from the father’s residence at the commencement of contact, and the Father to collect [the child] from the Mother’s residence at the conclusion of contact.
(10) The Maternal Grandmother [Mrs Salvati] is to spend time with [the child] for two hours per fortnight at a supervised contact centre or in another supervised setting as agreed between the parents, such time to continue until:
(a)The maternal grandmother has caused a report from Dr [K] (or if he is unwilling or unable to assist, a consultant psychiatrist nominated by the Independent Children’s Lawyer) at her own cost to be written indicating the maternal grandmother is not suffering from a psychiatric disorder, or she is being treated appropriately and [the child] is not at risk of emotional or psychological harm if [the child] spends time with the maternal grandmother unsupervised.
(b)The report in 10(a) above is to be provided to the mother, the father and Independent Children’s Lawyer before any proposed change to the time the maternal grandmother spends with [the child].
(c)Any time the maternal grandmother is to spend with [the child] following the report is only to be as agreed between the parties, or by Order of the Court.
(11) The Mother is to ensure the maternal grandmother [Mrs Salvati] is not present when the Mother spends time with [the child] except as per Order 10 above.
(12) Both parties are hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
(b)Discussing the proceedings or the relationship between the parents or any other party the presence or hearing of the children or permitting any other person to do so.
(13) Parties have leave to relist this matter before me as regards the interpretation and implementation of these orders.
The mother did not indicate in her Amended Notice of Appeal what specific orders she appeals, or whether she appeals all orders. However, given the orders sought in the Amended Notice, we proceed on the basis that all orders made by the Federal Magistrate are the subject of the appeal.
Grounds of Appeal
At the hearing of the appeal we granted the mother leave to make a minor amendment to ground 1 as outlined in her Amended Notice of Appeal filed on 28 January 2010, amending the name of the counsellor referred to in the ground. The mother’s grounds of appeal as amended are thus as follows:
(1) The Federal Magistrate gave no, or insufficient, reasons as to why the court judgment adopted the recommendations of Dr [K] over the recommendations of Dr [S], Counsellor, in her report released on 12 February 2009.
(2) That His Honour gave no or insufficient reasons for his adoption of the recommendation of Dr [K] [sic].
(3) That His Honour gave no or insufficient reasons for finding that the subject child should commence to live with the father.
(4) That on the evidence, His Honour’s discretion miscarried in ordering: (a) a change in the child’s living arrangements; (b) that the mother to seek the treatment of a psychiatrist; (c) ordering that the maternal grandmother not spend unsupervised time with the child.
The mother did not press ground 4(b) regarding the orders for psychiatric treatment of the mother.
We clarified with counsel for the mother at the hearing of the appeal the outcome that she sought in the event of her appeal being successful. Counsel explained that, despite the specific parenting orders sought in the Amended Notice of Appeal, in the event the appeal was successful the mother sought that the matter be remitted for re-hearing.
Discussion
Grounds 1 and 2
These two grounds can effectively be dealt with together as both assert that the Federal Magistrate gave no or insufficient reasons, firstly, for his adoption of the recommendations of Dr K, and secondly for why these recommendations were adopted over those of Dr S.
There is an obligation upon a judicial officer to provide adequate reasons for his or her decision.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA said at 279 that:
without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In Bennett and Bennett (1991) FLC 92-191, the Full Court (Nicholson CJ, Simpson and Finn JJ) said at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.’
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.
Their Honours continued at 78,267:
At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
Finally, as Coleman J recently observed in Wen & Thom [2010] FamCAFC 81:
57. As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
Here counsel for the mother submitted that the recommendations of Dr S were in stark contrast to those of Dr K, and that it is not possible to discern from the Federal Magistrate’s reasons how it is that his Honour preferred the report and recommendations of Dr K to those of Dr S.
The Federal Magistrate outlined in detail in his reasons the observations and recommendations of both Dr S and Dr K. His Honour found Dr S’s report to be “very useful” [at paragraph 22] and “significant”, although his Honour considered that the report was “perhaps, overshadowed” by the later report of Dr K [at paragraph 28]. His Honour described Dr S’s family report as “very balanced” [at paragraph 29].
His Honour rejected the submissions made on behalf of the mother that minimal weight should be placed upon Dr K’s report, and accepted the report and Dr K’s evidence, whom he found to be a forthright and impressive witness. His Honour considered the report and evidence should be given significant weight [at paragraph 43].
It was submitted before us by the mother’s counsel that Dr K’s report came only four months after the report of Dr S and that both experts had before them the majority of the disclosures allegedly made by the child.
As highlighted by counsel for the mother, the Federal Magistrate referred to the evidence and observations of Dr S (in addition to that of Dr K) in support of certain of his findings, in particular in relation to whether the child enjoyed a meaningful relationship with both parents and whether the child was at an unacceptable risk in her father’s care [see specifically paragraphs 50, 54 and 66]. It was submitted, however, that no consideration was given by the Federal Magistrate to how the recommendations of Dr S were to be dealt with or rejected, given the acceptance of the contents of the report and having referred to it with approval in the reasons for judgment.
While the recommendations in a family report are usually of significant assistance to a judicial officer, ultimately it is for the judicial officer to determine what is in the best interests of a child. A judicial officer is not bound to follow the recommendations contained in a family report. It is useful in this respect to have regard to what the Full Court said in Hall and Hall (1979) FLC 90-713 with respect to the use to be made and weight to be given to a family report (at 78,819):
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
…
These comments have been subsequently approved in a number of decisions, including most recently in Kennedy & Kennedy [2010] FamCAFC 195, Malak & Mairie [2010] FamCAFC 170, Friscioni & Friscioni [2010] FamCAFC 108 and Andrew & Delaine [2009] FamCAFC 182.
The mother’s complaint is that the Federal Magistrate provided insufficient reasons for not adopting the recommendations of Dr S. It was clearly a matter for the Federal Magistrate’s discretion whether he accepted or adopted the recommendations of either expert.
It is clearly evident from the Federal Magistrate’s reasons why his Honour ultimately made orders that reflected more closely the recommendations of Dr K. His Honour had found that there was no unacceptable risk of abuse to the child from her father or any member of the father’s family, and his Honour had accepted the evidence of Dr K with respect to the grandmother’s psychiatric condition and the impact this had on the mother and the child, and the concerns regarding the mother’s mental health. His Honour had concluded that the there was an unacceptable risk of abuse or harm to the child if she spent unsupervised time with the maternal grandmother. His Honour [at paragraph 62] concluded there was no unacceptable risk of abuse in her mother’s care, however, this finding was conditional upon, firstly, the mother not living with the maternal grandmother, and secondly, the mother obtaining the psychiatric treatment recommended by Dr K. The Federal Magistrate had the benefit of hearing all of the evidence and of observing the parties under cross-examination. His Honour also had the benefit of Dr K being cross-examined by all counsel, whereas Dr S was not required for cross-examination. His Honour clearly considered the evidence of both experts and referred to this evidence in some detail in his reasons for judgment. His Honour ultimately made the orders he did in light of all of the evidence before him, including both reports, and the oral evidence of Dr K.
We do not consider that there is any merit in the mother’s complaint regarding the Federal Magistrate’s consideration and use of the expert evidence.
We therefore find there is no merit in these grounds.
Ground 3
This ground is also a challenge to the sufficiency of the Federal Magistrate’s reasons, and specifically in relation to the Federal Magistrate’s finding that the child should commence living with the father.
When addressing this ground of appeal, counsel for the mother made reference to the social science research which the Federal Magistrate had cited in his reasons. Counsel for the mother highlighted that while the Federal Magistrate said he would make no findings in light of the research, this conflicted with the Federal Magistrate’s comment later in his reasons when his Honour said that he proposed to make orders which did not accord with the research. It was submitted that the Federal Magistrate independently had regard to the social science research and that it is unclear from the reasons how the research was used.
As we pointed out to counsel for the mother at the hearing, ground 3 does not raise this issue of the reference to and use of social science research by the Federal Magistrate, and nor does any other ground of appeal. The mother has not by any of her grounds of appeal asserted a lack of procedural fairness in relation to the Federal Magistrate’s reference to this material, and no amendment was sought to overcome this. These submissions are therefore not relevant to this ground of appeal as framed, which challenges the sufficiency of the reasons given. We will, however, address the Federal Magistrate’s use of social science research later in our reasons.
In relation to the Federal Magistrate’s finding that the child should live with the father, counsel for the mother submitted that it was common ground that the mother had been the child’s primary caregiver throughout her life, and that in circumstances where it was found that the mother “no longer represented an unacceptable risk of abuse to the child”, insufficient reasons are provided for why the child was to live with the father. It is also submitted that it is not discernable why the regime of time that was ordered was in the child’s best interests.
In the written submissions filed on behalf of the father, the father agreed that the Federal Magistrate gave insufficient reasons for effectively ordering shared care, and this was the father’s first ground of cross-appeal. The father’s cross-appeal was of course withdrawn, and counsel for the father did not expand upon the submissions in relation to this ground at the hearing.
For our part, we agree with the submission of counsel for the Independent Children’s Lawyer that the Federal Magistrate did provide adequate reasons for his conclusion that the child should live predominantly with the father.
In addressing the s 60CC factors, his Honour discussed each relevant paragraph. In summary, the Federal Magistrate found that the child enjoyed a meaningful relationship with both parents and also enjoyed a good relationship with her grandparents and extended family (s 60CC(2)(a) and s 60CC(2)(b)). The Federal Magistrate found the father did not pose an unacceptable risk of abuse to the child, however, the maternal grandmother did. To repeat, his Honour found that the mother was not an unacceptable risk to the child if she did not live with the maternal grandmother and received the recommended psychiatric treatment (s 60CC(2)(b)). His Honour found that that the mother displayed a significant lack of willingness and ability to facilitate and encourage a close and continuing relationship between the child and the father, which his Honour said must involve a reduction in the mother’s time with the child (s 60CC(3)(c)). In relation to the effect of change on the child, his Honour found that while the mother’s proposal presented the least change, his Honour was concerned at the consequences to the child of not changing her parenting arrangements, namely, that it would expose the child to a risk of unacceptable abuse or harm from the maternal grandmother as well as from her mother to the extent his Honour had previously discussed (s 60CC(3)(d)).
The Federal Magistrate had concerns regarding the mother’s ability to meet the child’s emotional and psychological needs, finding that the mother demonstrated a lack of capacity to protect the child from the maternal grandmother’s delusional beliefs and her own beliefs and negative views of the father. The Federal Magistrate was also critical of the mother’s actions in repeatedly taking the child to doctors. His Honour considered that the best the court could do was to limit the child’s time with the mother, and her time with the maternal grandmother, at least pending review of their psychiatric conditions (s 60CC(3)(f)). His Honour found the mother to be immature, whereas he found the father to be mature, committed to his daughter and that his proposals were child focussed and realistic (s 60CC (3)(g)). His Honour was impressed with the father’s attitude to parenting (s 60CC(3)(i)). His Honour considered that the order that was least likely to lead to further proceedings was for the child to live predominantly with the father (s 60CC(3)(l)).
His Honour said that all the matters to which he had referred pointed “unequivocally” to an order for the child to live predominantly with the father.
We do not consider that there is any merit in the mother’s complaint. The Federal Magistrate’s reasons for finding that the child should live predominantly with the father are clearly discernable from his Honour’s discussion of the s 60CC factors and determination of what is in the best interests of the child, and his findings in relation to parental responsibility. His Honour also provided adequate reasons for making the orders in relation to the time the mother was to spend with the child.
Grounds 4 (a) and (c)
The mother by these grounds asserts that the Federal Magistrate’s discretion miscarried in making orders, firstly, that changed the child’s living arrangements, and secondly, that prevented the maternal grandmother from spending unsupervised time with the child. Ground 4(a) overlaps somewhat with ground 3 discussed above.
Ground 4(a)
It was submitted on behalf of the mother that given the mother had been the child’s primary carer and in light of the Federal Magistrate’s finding that there was not an unacceptable risk of abuse whilst in her mother’s care, the court erred in ordering shared care between the parties. It was submitted that this was particularly so given that the mother had moved out of the maternal grandmother’s home and thus this concern had been removed.
Counsel for the mother also submitted that the expert evidence which was before the Federal Magistrate did not take into account the mother’s changed living arrangements at the time of judgment.
However, as counsel for the father highlighted, the Federal Magistrate’s finding that there was no unacceptable risk to the child in the mother’s care was in fact conditional upon the mother obtaining psychiatric treatment, in addition to not living with the maternal grandmother. It was submitted that absent any evidence that the mother was receiving such treatment, the “rational” conclusion must be that she still represented a risk to the child. Counsel for the father submitted that the Federal Magistrate’s findings in relation to the risk to the child, his Honour’s findings in relation to s 60CC factors and the rebuttal of the presumption of equal shared parental responsibility outweighed the fact that the mother had been the child’s primary carer and mandated a change in the child’s living circumstances.
Counsel for the mother conceded before us that this is essentially a weight challenge. In this context it is important to be mindful of the well settled principles relevant to discretionary judgments. In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said at 504:
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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.
While different judicial officers may reach a different result, that does not mean that appealable error is demonstrated.
We are satisfied that the Federal Magistrate appropriately considered the relevant s 60CC factors in determining what was in the best interests of the child in this case. We note that the mother does not challenge any of the Federal Magistrate’s findings in this respect. His Honour determined that having taken all these matters into consideration, the evidence pointed “unequivocally” to an order for the child to live predominantly with the father and for him to have sole parental responsibility. The mother’s challenge is one as to the weight given to matters by the Federal Magistrate, but she has not established that the Federal Magistrate’s discretion miscarried in determining that there should be a change in the child’s living arrangements.
Ground 4(c)
The mother’s submissions focussed on the Federal Magistrate’s failure to adopt her proposal that the maternal grandmother’s time with the child be supervised by the maternal grandfather and ordering that her time be supervised at a contact centre, rather than that the Federal Magistrate’s discretion miscarried in ordering supervised time as outlined in the ground of appeal. It was submitted that no reasons were provided as to why the mother’s proposal and the expert evidence on this issue was rejected.
We repeat that the Federal Magistrate was not bound to accept the psychiatrist’s recommendation regarding supervision.
We do not accept that his Honour failed to provide reasons for determining that the maternal grandmother’s time should be supervised at a contact centre. The Federal Magistrate explained at paragraph 95 of the reasons:
This also minimises [the child]’s exposure to her maternal grandmother as [sic] least pending a review of her psychiatric condition. I believe that it is in [the child]’s best interests that she spend time with her grandmother (as she has been a significant figure in her life) so in the meanwhile I propose two hours commencing from 10.00am Saturday each alternate week at a supervised contact centre. I do not accept that any family member or friend is suited to provide the level of supervision that is required to ensure that the grandmother does not expose [the child] to any of her delusional beliefs. (Emphasis added)
This finding was clearly open to his Honour given the evidence before the court and his previous findings in relation to the maternal grandmother’s mental health and the impact this has had on the mother, the child and other family members. His Honour also had the benefit of observing the maternal grandmother give evidence and was thus able to reach his own assessment of her.
To the extent that it is relevant, for the same reasons we also do not accept that his Honour’s discretion miscarried in ordering that the maternal grandmother spend supervised time with the child, again that was clearly open to the Federal Magistrate.
In this context we also note that there was no separate application by the maternal grandmother before the court seeking time with the child, be it supervised or otherwise.
We are therefore not satisfied that there is any merit in either of these sub-grounds of appeal.
Other matters
Although there was no ground of appeal directed to the issue, we consider it important to comment on the Federal Magistrate’s reference to and use of social science research in his reasons for judgment.
As previously mentioned, the Federal Magistrate referred to and cited in detail a number of journal articles, and his Honour said this at paragraph 19:
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
However, despite this disclaimer regarding the use which would be made of the material, in the context of discussing the orders he proposed, his Honour said:
92. … I appreciate that I am ordering what is, in effect, shared care in a case where the lack of communication and trust has led to an order for sole parental responsibility. I appreciate that this is contrary to the research and recommendations of MacIntosh [sic] and Chisholm (see paragraph 16). However the facts of this case are unique …
In a number of previous decisions, this Court has addressed the appropriateness of trial judges and federal magistrates referring to and citing social science research and academic writings which have not been tendered by the parties and in respect of which the parties have not had an opportunity to make submissions.
In McCall & Clark (2009) FLC 93-405, the Full Court (Bryant CJ, Faulks DCJ and Boland J), in the context of discussing that the Federal Magistrate in that case did not have before him any expert evidence, said at 83,477:
126. ... Neither party tendered to the Federal Magistrate any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material. Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act. (Emphasis added)
In Barclay & Orton [2009] FamCAFC 159 May J commented on the reliance by the Federal Magistrate in that case on academic writings. After reference to the above passage from McCall & Clark, her Honour observed:
71. While of course it is entirely desirable that judges have the assistance of expert evidence it is not appropriate, in my view, that a Federal Magistrate inform himself about some academic writings and not provide those writings to the parties nor allow other expert evidence to be called. As it is quite clear that his Honour relied upon his own appreciation of this expert evidence in making what was an important decision to the parties in this case, that is, what arrangements should be made during Christmas holidays, the appeal must be allowed.
Further, in Allen v Green (2010) 42 Fam LR 538, Boland J also addressed this issue, finding there had been lack of procedural fairness amounting to appealable error in that case. Her Honour said at 549:
54. The father’s central complaint is directed to an asserted lack of procedural fairness. It is not controversial that neither party had referred to the two specific articles the subject of the complaint, or that the father was denied the opportunity to make submissions on those articles. No attempt was made by the mother’s counsel to provide the article by Professor Chisholm and Dr McIntosh to which she alluded in her cross-examination to Dr T for him to comment on its relevance to specific circumstances in this case, or to tender that article. The paper by Ms Tucker was sourced by the Federal Magistrate without reference to either party. In these circumstances a careful scrutiny of the Federal Magistrate’s reasons is necessary to discern whether she treated the material to which she referred as a “background” to the proceedings before her, or whether her decision rested on this material, as well as the evidence adduced before her, and was integral to her exercise of discretion.
…
56. If the material merely gave background to the Federal Magistrate’s decision or was extraneous to her decision, then notwithstanding she did not draw the parties’ attention to the material such a process would not constitute appealable error. Similarly, the appeal will fail if notwithstanding the failure to afford procedural fairness, a new trial would not produce a different result…
...
59. I do not consider that the Federal Magistrate’s treatment of the material can be regarded as background to the issue she was required to determine. The reasons disclose she took into account Ms Tucker’s opinion that a cautious approach should be adopted in making overnight arrangements for young children in situations where there was an absence of cooperative parenting. This determination was made notwithstanding the firm opinions expressed by Dr T. I will refer to Dr T’s opinion and recommendations in more detail later in these reasons. The Federal Magistrate’s further reference under the heading “Conclusion”, in paragraph 57, to the report of the research conducted by Professor Chisholm and Dr McIntosh in their article published in the Australian Family Lawyer was again expressed as material “to which she had regard” in reaching her decision.
60. The father did not have the opportunity to address the material on which the Federal Magistrate relied. That absence of procedural fairness discloses appealable error.
See also Vance & Vance [2010] FamCAFC 250 at paragraphs 67 to 71.
In Lamereaux & Noirot (2008) FLC 93-364 the Full Court (Coleman, May and Boland JJ) discussed the limits on a judge or federal magistrate relying on evidence not adduced by the parties, to ensure procedural fairness, and that natural justice requires that parties be given an opportunity to controvert or comment on any contentious matter (at paragraphs 48 to 56).
Section 144 of the Evidence Act 1995 (Cth) provides:
Matters of common knowledge
(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.
We do not consider that the research and articles to which the Federal Magistrate referred could be considered to be “common knowledge” such as to fall within s 144(1). In any event, the parties were not given the opportunity to make submissions in relation to this information.
While his Honour said that he referred to the research only as background material and that he would make no findings as a result of it, the Federal Magistrate’s comments at paragraph 92 when discussing the proposed orders are at odds with this and indicate that his Honour did have regard to the research in considering the orders he would ultimately make.
We consider that it was inappropriate for the Federal Magistrate to refer to the journal articles and for them to inform his decision in circumstances where they had not been tendered by either party or the Independent Children’s Lawyer and where the parties had not been given the opportunity to make submissions in relation to them. However, given the nature of the appeal and in the absence of any ground directly challenging the Federal Magistrate’s reference to and use of such material, our criticism of the Federal Magistrate in this regard does not affect the outcome of this appeal.
Finally, we note that the Federal Magistrate made reference in his reasons to the “Family Law Courts”, firstly, at paragraph 1, where his Honour recorded that “[p]roceedings first commenced in the Family Law Courts in 2006 ...” and again at paragraph 2 where his Honour referred to cases conducted in the “Family Law Courts”. These proceedings were commenced in and were conducted wholly in the Federal Magistrates Court. Jurisdiction under Part VII of the Act can only, subject to the limited jurisdiction conferred on courts of summary jurisdiction (see s 69J and s 69N), be exercised by the Family Court, the Federal Magistrates Court, the Family Court of Western Australia and the Supreme Court of the Northern Territory (s 69H). There is no such court as the “Family Law Courts”. While his Honour was therefore incorrect when he referred to the proceedings being conducted in the “Family Law Courts”, nothing turns on this for the purposes of this appeal. His Honour, sitting as a Federal Magistrate in the Federal Magistrates Court, clearly had jurisdiction to determine the matter.
Conclusion
As we have found no merit in any of the mother’s grounds of appeal, her appeal will accordingly be dismissed.
Costs
At the conclusion of the hearing before us submissions were sought from the parties in relation to the costs of the appeal both in the event that the appeal was allowed and in the event it was dismissed.
Counsel for the father sought costs against the mother in the event the appeal was unsuccessful, as did counsel for the Independent Children’s Lawyer. Counsel for the mother resisted any order for costs being made against the mother, on the basis of her financial circumstances. In this regard, counsel informed us that the mother is employed as a sales assistant with an income of approximately $200 per week, and that she is also studying.
The mother sought that the father pay her costs in respect of the cross-appeal, which was ultimately withdrawn at the hearing, as assessed or agreed, including part of the costs of the hearing before us on 19 August 2010. Counsel for the mother relied on the late withdrawal of the cross-appeal to support an order for costs being made. In response, counsel for the father did not oppose an order for costs being made in favour of the mother in relation to the cross-appeal, but did oppose any order for the father to pay any of the mother’s costs of the hearing. It was submitted that the mother was required to attend the hearing to prosecute her own appeal in any event and in such circumstances it was not “equitable” for the father to be required to meet these costs.
The Independent Children’s Lawyer did not take any position in relation to the father’s cross-appeal and did not seek any order for costs with respect to the withdrawal of the cross-appeal.
Section 117 of the Act deals with costs. That section relevantly provides:
Section 117
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Section 117(2A) therefore sets out matters that the Court should take into account in determining whether there should be a departure from the provisions of s 117(1) that each party pay their own costs.
In relation to the mother’s appeal, the relevant paragraphs are paragraphs (a) and (e). The mother has clearly been wholly unsuccessful as her appeal has been dismissed. There is little evidence before this Court as to the mother’s financial circumstances, other than the information provided by counsel for the mother that she is studying and earns approximately $200 per week. In such circumstances there should be an order that the mother pay the costs of the father and the Independent Children’s Lawyer as agreed or in default of agreement as assessed.
In relation to the father’s cross-appeal, the father conceded that an order for costs should be made, but that such an order should not cover the attendance on 19 August 2010. We agree that it appropriate that an order for costs be made given the father’s late withdrawal of his cross-appeal during the hearing before us. We also agree that the order should not cover the costs of the mother’s legal representatives attending the hearing and accept that her legal representatives were required to attend for the purposes of prosecuting the mother’s appeal regardless of the cross-appeal. As we were not informed of the amount the mother sought by way of costs, we will order that costs be as agreed between the parties or as assessed.
I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Boland, Strickland and Benjamin JJ) delivered on 24 December 2010.
Associate:
Date: 24 December 2010
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