Sarti & Anor and Sarti (No. 3)
[2020] FamCAFC 319
•17 December 2020
FAMILY COURT OF AUSTRALIA
| SARTI AND ANOR & SARTI (NO. 3) | [2020] FamCAFC 319 |
| FAMILY LAW – APPEAL – INTERIM PARENTING – Application by grandfather to spend time with grandchild – Where the parents are separated but united in opposition – Effect on parenting of stress from grandfather – Important for the parents to co‑parent harmoniously – Child has established relationship with grandfather – Appeal allowed in part – Re-exercise of discretion – Orders made as to time in a pattern sustainable for all involved. FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the parents sought to adduce further evidence of the grandfather’s failing health – Application allowed by consent – Where the appealed orders would not have been made in light of the further evidence. FAMILY LAW – APPEAL – COSTS – Where the grandfather seeks a costs order in relation to the parents’ unsuccessful application for a stay of the orders – Failure of the parents to comply with the orders despite no stay having been ordered – Costs order made against the father as the prime mover of the stay application. |
| Family Law Act 1975 (Cth) Pt VII, ss 60CA, 61C, 62B, 65DA, 94AAA Family Law Rules 2004 (Cth) r 19.09 |
| Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49 Church & T Overton and Anor [2008] FamCA 965 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Sarti & Sarti and Anor [2020] FCCA 2595 Valentine & Lacerra and Anor (2013) FLC 93-539; [2013] FamCAFC 53 |
| FIRST APPLICANT: | Mr B Sarti |
| SECOND APPLICANT: | Ms Sarti |
| RESPONDENT: | Mr Sarti |
| FILE NUMBER: | CAC | 1154 | of | 2020 |
| FIRST APPEAL NUMBER: | EAA | 113 | of | 2020 |
| SECOND APPEAL NUMBER: | EAA | 137 | of | 2020 |
| DATE DELIVERED: | 17 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 30 November 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 31 July 2020 17 September 2020 |
| LOWER COURT MNC: | [2020] FCCA 2101 [2020] FCCA 2595 |
REPRESENTATION
| COUNSEL FOR THE FIRST AND SECOND APPLICANTS: | Ms Tabbernor |
| SOLICITOR FOR THE FIRST AND SECOND APPLICANTS: | Farrar Gesini Dunn |
| COUNSEL FOR THE RESPONDENT: | Mr Clynes |
| SOLICITOR FOR THE RESPONDENT: | Kennedy & Cooke |
Orders
The Application in an Appeal filed on 27 November 2020 to adduce further evidence in the appeal be allowed by consent.
The respondent’s application to adduce further evidence in the appeal be allowed in part.
The appeal (EAA 113 of 2020) be allowed in part.
Orders 1 and 2 of the orders made on 31 July 2020 be set aside.
Pending further order, X born in 2015 (“the child”) shall spend time with his paternal grandfather as follows:
(a)On an occasion within seven (7) days (either before or after) 25 December 2020 as nominated by the father;
(b)On a Sunday in January 2021 no later than five (5) weeks from the date of these orders, when the child is in the care of the father, and each fourth Sunday thereafter; and
(c)Such other time as the parties agree.
For the purpose of these orders, the father shall deliver the child to the grandfather’s home at 11.00 am and collect him at 2.00 pm.
The parents are not required to make the child available to spend time with the grandfather at hospital or other locations.
Within one (1) month, the father pay the grandfather’s costs of the parents’ Application in an Appeal filed on 1 October 2020 seeking to stay the orders of 31 July 2020, in the amount of $2,074.88.
Within one (1) month, the father pay the grandfather’s costs of the parents’ Application for a Stay filed in the Federal Circuit Court on 12 August 2020 in the amount of $4,000.00.
Other than as provided above, the applications for costs be dismissed.
The applications for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
IT IS NOTED:
A.That Appeal EAA 137 of 2020 is discontinued.
B.That pursuant to ss 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sarti and Anor & Sarti (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 113 of 2020; EAA 137 of 2020
File Number: CAC 1154 of 2020
| Mr B Sarti |
First Applicant
And
| Ms Sarti |
Second Applicant
And
| Mr Sarti |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 10 August 2020, Mr B Sarti (“the father”) and Ms Sarti (“the mother”) (collectively, “the parents”) appeal from interim parenting orders made pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 31 July 2020 in favour of Mr Sarti (“the grandfather”). The orders provide for the grandfather to spend time with the parties’ son, X (born in 2015) (“the child”) once a fortnight for four hours at a time. The parents also appealed from orders dated 17 September 2020 dismissing their application to stay the earlier orders. That appeal was discontinued and the only issue arising therefrom is the grandfather’s application for costs.
The parents are united in their position that it is not in the child’s best interests to spend time with the grandfather. They are concerned about the effect of what they perceive is his proprietorial attitude towards their son and the effect the conflict between the adults has on them and may have on the child. The grandfather does not dispute that his relationship with the parents is presently fraught but sees it as his and the child’s right to see each other and for him to spend significant amounts of time with the child. One of the complicating aspects of the case is that the grandfather has inoperable cancer and a shortened life expectancy. From the grandfather’s perspective, time is of the essence.
In accordance with s 94AAA(3) of the Act, the Chief Justice directed that the appeal be determined by a single judge.
Background facts
The child was two years of age when his parents separated in late 2017. To the child’s great benefit, the parents have a harmonious parental relationship in which the child thrives. He lives between his parents’ homes in a week about arrangement.
It is uncontroversial that the father and the grandfather have a difficult relationship. Nevertheless, both before and after the parents separated, they facilitated contact between the child and the grandfather. There was no pattern of contact and the child visited the grandfather’s home once or twice a year and saw his grandfather when he came to Canberra for appointments and stayed with the parents or the father. It needs to be understood that the grandfather has never had a role in the care of the child and until the later part of 2019, whenever he saw the child one or both of the parents was present. Although the parents do not agree that the grandfather saw the child as often as he says he did, the grandfather says that post separation he saw the child in Canberra about once a month.
In March 2019, the father and grandfather had an argument in the child’s presence, as a result of which the father decided he no longer wanted contact with the grandfather and that it was not presently in the child’s interests for him to have contact with his grandfather. However, the mother persuaded the father that the child’s relationship with the grandfather should continue and the parents agreed that, for the time being, she would deal with the grandfather in relation to the child and facilitate contact. Unfortunately, the mother quickly found the grandfather difficult to deal with and, after the grandfather arrived at her house uninvited on 28 March 2019, she no longer wanted to see or speak to him. She asked the grandfather to arrange any future visits through the father.
Something of an impasse developed between the parents and the grandfather and on in April 2019, the grandfather approached the mother at the child’s preschool. He threatened her with legal action in relation to the child and his behaviour left her feeling “very rattled”, “threatened, anxious and upset” (mother’s affidavit filed 29 June 2020, paragraph 27).
Thereafter, the father and the grandfather exchanged text messages and emails in relation to contact. Following more threats of legal action by the grandfather and what the primary judge accurately termed the grandfather’s “antagonistic” communication [26], on 6 July 2019, the father provided a list of 71 days between 12 July 2019 and 15 January 2020 when the child would be in the father’s care and contact with the grandfather could be arranged (father’s affidavit filed 29 Jun 2020, paragraph 37). Thus litigation was averted and the mother was spared from having to deal with the grandfather.
By 4 August 2019, the father and grandfather agreed on 12 dates when the grandfather would spend time with the child. A number were subsequently cancelled (by the grandfather) and in the event, the child had contact with the grandfather approximately monthly between July 2019 and January 2020 (father’s affidavit filed 29 June 2020, paragraph 43). Nature then intervened and the January 2020 bushfires, which raged along the NSW South Coast, made it unsafe for the father to take the child to see the grandfather for the next visit.
When the COVID-19 pandemic unfolded, the father decided to proceed in accordance with public health advice and informed the grandfather (on 18 March 2020) that “all visits are cancelled until further notice” (father’s affidavit filed 29 June 2020, paragraph 51). Again the grandfather reacted with sarcasm and pointed out the father’s hypocrisy in his having travelled to Sydney but being unwilling to take the child to the South Coast which was free of COVID‑19. There was no justification for the accusation of hypocrisy. In making it, the grandfather disregarded the well-publicised health risks to those in poor health or mature years and the potential effect on the child and father if, one of them unknowingly transmitted the virus to him.
Nevertheless, the parents facilitated a video call get‑together for the grandfather and the child on the child’s fifth birthday, which the grandfather ended because he considered that the child was not fully engaged in the call. Following another email from the grandfather, which the father and primary judge thought was sarcastic, on 19 May 2020, the father informed the grandfather that the parents did not want any further contact with him. They felt “it is not in [the child’s] best interest to spend time with you at the moment or while there is such a degree of conflict between us” [31]. From here on, discussion of the issue would be dealt with by their lawyers.
The grandfather retained lawyers and following brief communication between the parties’ lawyers, on 10 June 2020, the grandfather commenced proceedings. It was during this process that the parents first heard that he had inoperable liver cancer. Relevantly, the grandfather provided a certificate from his General Practitioner expressing the opinion that the grandfather had three months to live, which point, was reinforced by the grandfather’s evidence, and the evidence given by his solicitor in an affidavit filed on 10 June 2020.
The child and grandfather saw each other in passing on 14 June 2020.
The application was listed quickly and, following a defended hearing, judgment was reserved. Following judgment, the parents appealed and twice applied to stay the orders. Although their applications to stay the orders were dismissed, the parents did not comply with the orders.
The grounds of appeal
It needs to be understood that this is an appeal against the exercise of discretion, to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only as to matters of weight by no means justifies the reversal of the decision of the primary judge, (Gronow v Gronow (1979) 144 CLR 513).
The parents abandoned grounds 3(e), 5 and 7. Stated broadly, the remaining grounds of appeal assert that the primary judge erred:
· by failing to properly consider the significance of the parents jointly determining to cease contact between the child and the grandfather and their reasons for so doing (Ground 1);
· in giving inadequate reasons for interfering with the parents’ decision (Ground 2);
· in making findings that were not open on the evidence or able to be made in a hearing conducted on the papers (Ground 3);
· in giving excessive weight to the potential benefits to the child of contact with the grandfather but failing to appropriately weigh potential adverse effects (Ground 4);
· by failing to appropriately weigh the medical evidence concerning the grandfather’s health (Ground 6);
· in making orders as to supervision which were vague and on conditions not open on the evidence (Ground 8); and
· by making a decision which is plainly wrong (Ground 9).
It is convenient to address Ground 9 first. As counsel for the parents properly acknowledged, Ground 9 was reliant upon another of the asserted errors being established. The implication being that the ground as formulated is incapable of establishing error. That concession having been made, nothing more needs to be said about it and the challenge raised by Ground 9 has not been made out.
Grounds 2, 6 and 8 should not have been pressed and for the reasons given by Judge Neville in Sarti & Sarti and Anor [2020] FCCA 2595, they are not established.
The parents’ decision to exclude the grandfather
Parenting orders in relation to a child are to be made in the best interests of the child (s 60CA of the Act). It is agreed that the parents have parental responsibility for the child and that a court exercising jurisdiction under the Act may make parenting orders which conflict with the parents’ decision. This is because s 61C(3) of the Act provides that the “parental responsibility” in s 61C(1) “has effect subject to any order of a court”.
The parents contend that such interference in parental responsibility ought not be done lightly, particularly in interim proceedings. Counsel for the parents cited Church & T Overton and Anor (2008) FamCA 965 (“Church”) per Benjamin J, who said at [44]:
Where parents jointly (or if a sole parent, solely) have a strong view in relation to the parenting of their children, courts should be cautious about interfering with that exercise of parental responsibility. In general, parents best know their own children and the dynamics of the family in which the children live. Australian Courts exercising jurisdiction under the Family Law Act have a statutory obligation to resolve conflicts relating to the parenting of children. This does not mean that courts take over the role of parents.
Church was considered by this Court in Valentine & Lacerra and Anor (2013) FLC 93-539 (“Valentine”). It is agreed that the principles stated in Valentine apply in this case. In Valentine, the Full Court said of Church:
42.…His Honour’s comments that tend to suggest that the commencement of the decision‑making process is a presumption that a parent knows best, and the onus is on a non‑parent to persuade the Court that the role of the parent should be usurped and their views disregarded, are not supported by authority, and indeed depart from Full Court authority. For example, in Aldridge & Keaton (2009) FLC 93-421…
Her Honour’s statement to similar effect at [52] of the trial reasons is undoubtedly correct.
However, the more compelling aspect of this challenge, concerns the approach taken to the parents’ reasons for stopping contact. And, that the parties persevered with contact so as to avoid litigation and its attendant stressors and, the ongoing strain and distress that the grandfather caused them as parents. Their point being, that it could not be in the child’s best interests to take steps which have the potential to jeopardise their cooperative parenting relationship.
It is important to understand that the primary judge was satisfied that each of the parents found dealing with the grandfather to be “stressful and difficult a lot of the time” [41]. The primary judge was correct in finding that the stress on the parents created by the grandfather had not, thus far, negatively impacted on their care of the child. However, the assessment of how that stress might impact into the future was undertaken on the basis that at most, the parents would have to deal with the grandfather for another three months. Self‑evidently, the grandfather’s illness has not taken the course anticipated by his General Practitioner and the circumstances as they now pertain are different to those at the hearing.
By way of further evidence in the appeal, it was agreed that reports by the grandfather’s General Practitioner dated 7 August 2020, 8 October 2020 and 25 November 2020 should be admitted as further evidence in the appeal, which they were. The gravamen of this evidence is that the grandfather has minimal to no symptoms arising from his cancer, his prognosis is better than was expected albeit, the most recent report again suggests a life expectancy in the vicinity of three months. However, when these certificates are considered in combination with the original opinion, they demonstrate that while the grandfather’s life expectancy is short and can possibly be measured in months, it may also be longer. Thus, although on the evidence available to the primary judge there can be no error in having assessed the effect on the parents and the child of the stress created by the grandfather for a three month period, the further evidence establishes that this assessment should have been undertaken on the basis that the stress may well last longer.
It was thus necessary to consider the parents’ evidence about how the stress generated by the grandfather caused arguments between the parents and seemingly cast a pall over their otherwise harmonious parental relationship. Furthermore, that despite the parents’ repeated requests of the grandfather that he leaves the mother alone and deal with the father about the child, the grandfather refused to respect their views. In other words, the grandfather has a track record of belligerent refusal to abide reasonable requests by the parents which were plainly designed to protect the mother from the dispute and the parental relationship from the tensions that arose by reason of the grandfather’s conduct. Given that the case was run on the basis that the orders would operate for about three months, it can be readily understood why the primary judge did not explore these issues more than was undertaken at [41]. However, by reason of the further evidence admitted in the appeal, these matters required closer consideration and specific consideration of the potential effect of how this might affect the parents’ future ability to manage the child’s care as cooperatively as they had thus far.
Had the primary judge noticed the evidence that the grandfather’s behaviour towards the parents involved more than individual stress and created tension between the parents, the finding at [41] that the grandfather’s behaviour was unlikely to negatively impact on the child would not have been made. Rather, the primary judge would have found that the grandfather’s conduct had already placed the parental relationship under stress.
Furthermore, given the extent to which the grandfather failed to abide the parents’ requests that he leaves the mother alone, his changing of agreed arrangements and complaints about reasonable changes made to other agreed arrangements, the primary judge would have found that ongoing contact between the child and the grandfather was likely to exacerbate the stress caused to the parents. Particularly, if the arrangements for time were not as extensive as the grandfather considered appropriate.
In relation to this issue, the grandfather sought orders for the child to spend time with him for eight hours on three occasions each week on his giving at least 24 hours’ notice by way of text message to the parents. The grandfather wanted the child to spend up to four days with him during each school holiday period. In rejecting the grandfather’s proposed orders, the primary judge correctly observed that the proposal would involve a dramatic increase in the amount of time the child had previously spent with his grandfather and interfere with the child’s everyday activities with each of his parents.
Thus, the primary judge settled on orders which were said to “generally reflect the pattern established between the parties prior to litigation” [56]. However, the pattern was for the child to see the grandfather approximately every month and, it had never involved regular alternate week visits.
Although it has an air of artificiality about it, the effect of the further evidence is to establish error in relation to the approach taken to the duration of the orders and the assessment of risk sufficient to allow the appeal.
Re-exercise of discretion
In the event the appeal was allowed it was agreed that this Court would re‑exercise rather than remit for re-hearing. Neither party sought an adjournment so as to adduce further evidence. The grandfather sought to rely on the evidence he gave for the second stay application as to a chance encounter with the child on 14 June 2020. No challenge was made to the fact there had been a chance meeting but what took place was controversial. Thus, other than the fact of the encounter, the balance of the grandfather’s evidence will not be admitted.
The question which must be answered is whether re-establishing contact between the grandfather and the child is in the child’s best interests. As the primary judge said, the parents facilitated the child’s relationship with the grandfather and, from the child’s perspective, built a relationship which is uncomplicated and happy. It is likely that if the child is given the opportunity to spend time with his grandfather he would again enjoy his grandfather’s company.
The challenge for this Court is whether re-establishing a regular arrangement for time between the child and the grandfather at a frequency with which the grandfather disagrees, is likely to increase the stress on the parental relationship. This is important because the parents’ good relationship is pivotal to the child’s wellbeing. He is five years of age and, as for all parents, there are many challenges ahead. Experience tells us that minds can genuinely differ about what is in the best interests of a child. These parents, as the primary judge said, are clearly focussed on the child’s wellbeing and thus far have been able to agree in relation to him. Whether their agreement has been reached easily is not apparent and, even if agreement has been readily achieved, it cannot be assumed that future issues will be similarly resolved. The risk for this child is that if the parents’ harmonious relationship is undermined by the tensions caused by the grandfather, the parents may find themselves unhappily conflicted which could adversely affect their ability to make timely and child focussed decisions for their son.
It is not possible to be certain that this state of affairs may unfold in a fashion which adversely affects the child. However, that it has already created tension between the parents means that the admittedly small risk that the child is likely to be adversely affected should inform the question of time.
It is appropriate to give some weight to the parents’ decision to cease the child’s contact with the grandfather and their reasons for so doing. It was a carefully considered and reasonable exercise of their parental authority. However, and as the primary judge said, there is evidence which shows that the child enjoyed his time with his grandfather and his grandfather’s partner. But for the fact of their pre-existing relationship, greatest weight would have been given to the parents’ decision on the issue. But that is not the situation and thus, notwithstanding the risks arising from the effect of contact on the parental relationship, it is in the child’s best interests for him to resume his relationship with his grandfather.
Although the father disagrees with this outcome, he is willing to take the child to see the grandfather at the grandfather’s home. He offered to supervise their time together. For the reasons given by the primary judge, it is inappropriate that he supervises the time. Rather, the arrangements established by the primary judge to ensure the child’s needs are addressed when he is with the grandfather are preferable and appropriate.
Turning then to the frequency and duration of the child’s time with the grandfather. Once every four weeks is an arrangement with which the child is familiar and the parties have shown they can manage. It is not so frequent that they will be unduly stressed by it and the risk to parental harmony is assessed as low. It is important that the mother does not need to become involved in facilitating contact and thus, it will coincide with occasions when the child is in the father’s care. I do not know what arrangements are in place for the current school holidays and festive season and, rather than have the child disappointed by missing out on an activity he may be looking forward to, the father will nominate the times for Christmas and the commencement of monthly contact.
Given the grandfather’s health, his home is the most suitable place for contact. It is comfortable for the grandfather and is a place with which the child is familiar. I have settled on three hours for the duration of each visit. This gives the child and grandfather time to share a meal and whatever activities they mutually enjoy. Longer periods may become too taxing for the grandfather and, as the fifth birthday video call shows, it may be difficult for the grandfather to keep the child’s interest for a longer period.
The orders are made in the best interests of the child.
Conclusion and Costs
The other challenges raised against the orders are irrelevant to the disposition of the appeal. Thus, in the interests of judicial economy and having regard to the time pressures in the case, the remaining grounds of appeal will not be addressed (Boensch v Pascoe [2019] HCA 49 at [8]).
Turning to the question of costs, although the parents have secured a measure of success, so has the grandfather. No one has been wholly successful or wholly unsuccessful. No party has established circumstances which justifies an order for costs in the substantive appeal. In those circumstances, the parties sought certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). There is no rational basis upon which the Commonwealth should be requested to contribute to costs incurred in relation to a dispute that should have been resolved by agreement and their applications will be refused.
As to the costs of the appeal against the refusal to grant a stay (at first instance) that appeal was abandoned in the parents’ Summary of Argument. If the grandfather incurred any costs, they were insignificant and an order for costs is inappropriate. However, the parents’ application for a stay in the exercise of appellate jurisdiction, was entirely without merit and their lack of success justifies an order for costs in favour of the grandfather. An order for costs will not occasion hardship to either of the parents. Although the mother joined in the application, it is apparent that the father was the prime mover in this application and the order for costs will be made against him.
Finally, as to the costs of the stay application determined by Judge Neville, those costs were reserved. Counsel for the grandfather invokes r 19.09 of the Family Law Rules 2004 (Cth) which relevantly, permits the Family Court to make an order for costs in relation to a case on appeal from the Federal Circuit Court. The submission by counsel for the parents that the rule does not apply to costs that have been reserved should not be accepted. The order reserved consideration of the grandfather’s application for costs to another occasion, before whomever. Judgment on the question of costs was not reserved and, if it had been, the rule would not have permitted this Court to determine the question. The parents’ lack of success in that application justifies an order for costs in favour of the grandfather but it is their blatant refusal to abide the Court’s decision which drives the order sought. Their refusal to abide the outcome of the stay application and to comply with the order of the primary judge shows that the application was a waste of time. The grandfather should have his costs which were in effect thrown away. These are assessed at $4,000. Again, the order will be made against the father.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 17 December 2020.
Associate:
Date: 17 December 2020
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