SCVG & KLD
[2011] FamCAFC 100
•6 May 2011
FAMILY COURT OF AUSTRALIA
| SCVG & KLD | [2011] FamCAFC 100 |
| FAMILY LAW - APPEAL – Against the orders of a Federal Magistrate in parenting proceedings – Error in law – Where the Federal Magistrate made findings of fact by reference to the provisions of s 60CC before directing his attention to s 65DAA considerations – Whether in so doing the learned Federal Magistrate impermissibly precluded a proper consideration of s 65DAA – Whether the learned Federal Magistrate impermissibly departed from the “process or pathway” which the High Court in MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424 said the legislation imposed – Whether his Honour therefore made orders which were beyond power – Not established that anything in the High Court’s decision in MRR rendered erroneous the learned Federal Magistrate’s approach to the determination of the proceedings before him – No error established. FAMILY LAW - APPEAL – Procedural fairness – Not established that the learned Federal Magistrate impermissibly relied upon his observations of the father during his cross-examination, nor that his Honour was obliged to raise the issue with the parties during final addresses – Not established that the Federal Magistrate denied the father natural justice by making orders, the specifics of which had not been discussed with the parties. FAMILY LAW - APPEAL – Procedural fairness – Whilst it would have been preferable for the learned Federal Magistrate not to have referred to academic writings or materials which were not raised with the parties and in respect of which the parties did not have an opportunity to make submissions, it has not been established that any material finding of fact made by the learned Federal Magistrate, or conclusion reached by him, was reliant upon any of that material. FAMILY LAW - APPEAL – Expert evidence – Not established that the Federal Magistrate impermissibly accepted any part of the expert opinion evidence. FAMILY LAW - APPEAL – Evidence – Not established that the Federal Magistrate erred in any findings of fact – Not established that the Federal Magistrate failed to take into account any relevant matters or gave inadequate weight to relevant matters. FAMILY LAW - APPEAL – Adequacy of Reasons – Not established that the Federal Magistrate failed to give adequate reasons for the findings and conclusions made by him. |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 Zantiotis (1993) FLC 92-367; (1993) 16 Fam LR 418 |
| Family Law Act 1975 (Cth) – s 60CC, 65DAA Evidence Act 1995 (Cth) – s 136 |
| APPELLANT: | SCVG |
| RESPONDENT: | KLD |
| FILE NUMBER: | SYC | 4380 | of | 2008 |
| APPEAL NUMBER: | EA | 131 | of | 2010 |
| DATE DELIVERED: | 6 May 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Thackray & Loughnan JJ |
| HEARING DATE: | 31 January 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 September 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 641 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr North SC |
| SOLICITOR FOR THE APPELLANT: | Barkus Doolan Kelly |
| COUNSEL FOR THE RESPONDENT: | Mr Aldridge SC |
| SOLICITOR FOR THE RESPONDENT: | Macphillamy’s Lawyers |
Orders
That the appeal be dismissed.
That the father pay the mother’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment under the pseudonym SCVG & KLD is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Vanderhum & Doriemus.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 131 of 2010
File Number: SYC 4380 of 2008
| SCVG |
Appellant
And
| KLD |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 19 January 2011, SCVG (“the father”) appealed against the Orders made by Federal Magistrate Altobelli on 15 September 2010 in parenting proceedings between the father and KLD (“the mother”).
The Orders of the Federal Magistrate provided that the parties’ children, the child H, born in 2002 and the child T, born in 2004, continue to reside with the mother in Town B in the state of New South Wales and spend time with the father during school term on essentially an alternate weekend basis together with other occasions on an overnight basis within the Town B-Canberra region. His Honour’s Orders also provided that the children spend substantially equal time with the parents during school holidays.
In lieu of the Federal Magistrate’s Orders, the father sought orders providing for the children to spend time with him in alternate weeks, from after school Friday to the commencement of school the following Thursday in the event of the mother residing with the children within a 25 km radius of the children’s school in Sydney. The orders sought by the father provided that if the mother did not relocate to within the geographic area specified by him or at least arrange to stay within that area for the periods the children live with her, the children primarily reside with the father, and spend time with the mother on the basis defined in the alternative orders sought by him.
The mother opposed the father’s appeal and sought to maintain the Federal Magistrate’s Orders.
On 27 January 2011 the mother filed a Notice of Contention asserting that, if any of the grounds of appeal agitated by the father found favour with the Court, the appeal should nevertheless be dismissed on the basis that the Federal Magistrate erroneously rejected evidence relied upon by the mother, which, if admitted, would have vindicated his Honour’s exercise of discretion.
Background
The father was aged 59 years and the mother 48 years at the date of the Federal Magistrate’s judgment. The father lived in Sydney and the mother lived at Town B, approximately 250 kilometres away.
Since 2006, pursuant to orders of this Court, the children have primarily lived with their mother at Town B and spent time with the father in Sydney in weeks 1 and 3 of a four-weekly cycle from Friday afternoon until Sunday afternoon, and in week 2 in the geographical area where the children live from Saturday morning to Sunday afternoon. The children have spent approximately half of school holiday periods with each parent.
The Orders made by the learned Federal Magistrate essentially continued the parenting arrangements for the children which had applied since 2006.
In the proceedings before the learned Federal Magistrate, the father advanced two scenarios in the alternative. The first was that the mother live within a 25 km radius of the school that the father proposed that the children attend in Sydney, in which case the children would live with the mother from after school Friday to the commencement of school the following Thursday of each alternate week and for half of school holidays, plus special days. The children would live with the father on intervening days of each fortnight during school term. The alternative sought by the father was that, if the mother declined to relocate to within the geographic region proposed by him or at least arrange to stay within that region for the periods the children live with her, she spend substantial and significant time with the children, albeit that time would, by virtue of distance, be substantially less than if she relocated to or stayed within the Sydney region.
Before the learned Federal Magistrate, the mother sought that the existing arrangements for the children to spend time with their father be changed, from three weeks in a four-week cycle to two weeks in a four-week cycle.
The learned Federal Magistrate concluded that the reasons of each parent for continuing to reside in their current locations, and of each of them for not relocating to the region in which the other lived were “reasonable and genuinely held”.
The learned Federal Magistrate concluded that the children spending equal time with the parents was not in their best interests, nor reasonably practicable. His Honour further considered that the father’s proposal that the children spend substantial and significant time with the mother in Sydney was not in the children’s best interests. Nor was it reasonably practicable. The learned Federal Magistrate concluded that the mother’s proposal, whether or not it constituted “substantial and significant time”, was in the best interests of the children and as practicable as was reasonably possible.
Grounds of Appeal
The father’s Amended Notice of Appeal articulated 14 grounds. Senior Counsel for the father’s Summary of Argument agitated all of those grounds. On the hearing of the father’s appeal, his Senior Counsel, whilst not abandoning any ground of appeal, amplified only Grounds 11, 6 and 4 of the Amended Notice of Appeal, in that order.
For convenience, and as we are obliged to consider all of the father’s complaints, we shall consider the father’s challenges to the learned Federal Magistrate’s decision in the order in which they appear in his Amended Notice of Appeal.
Grounds 1 and 2
Grounds 1 and 2 of the Amended Notice of Appeal provided:
1.That his Honour erred in failing to raise with the parties and thereby afford to them the opportunity to address his view that in evaluating the evidence of the appellant the conduct (or misconduct) of his counsel in the manner or perceived strategy of taking objections during the appellant's cross examination, or alternately any aspect of the dynamics between those objections and the husband's evidence, was a matter that he considered relevant, such failure thereby constituting a denial of natural justice or procedural fairness.
2.That his Honour's discretionary decision miscarried as a consequence of his taking into account irrelevant facts, namely, those the subject of Ground 1, in circumstances where:
2.1there was nothing improper about the objections and his Honour upheld the majority of them;
2.2it was not put to the appellant by counsel for the respondent or his Honour that the process (delay occasioned by the taking and determination of objections) had afforded to him an opportunity for consideration, or any other advantage nor was it suggested that any strategy was in place to achieve such an advantage;
2.3no contention to the effect of his Honour's conclusion was advanced at any time in the case contended by the respondent.
As Senior Counsel for the father’s written Summary of Argument confirms, the bases of this challenge were that the majority of the objections taken on behalf of the husband were upheld, that Senior Counsel for the mother made no suggestion that the cross-examination was intended to have the effect referred to by the learned Federal Magistrate, and that his Honour at no time provided an opportunity for Senior Counsel representing the father to address the concern which he ultimately recorded in his Judgment.
Senior Counsel for the mother submitted that the factual bases of this challenge were not established but that, even if they were, that did not impugn the crucial findings of the learned Federal Magistrate, which were that the father was unresponsive or evasive in giving his answers during cross-examination. Although complaining about his Honour’s reference to the matter of objections, the father did not challenge the learned Federal Magistrate’s finding that he was unresponsive or evasive in giving his evidence.
With respect to Senior Counsel for the father, when read in context, this challenge to the learned Federal Magistrate’s comments is demonstrably lacking merit. To refer to the entirety of the paragraph in which the passage complained of appears is to better understand what the learned Federal Magistrate found with respect to the evidence of the father, and why he did. In para 111 of his Reasons, the learned Federal Magistrate recorded:
111.The father is clearly an intelligent, articulate man who is very successful in his profession. This intelligence and articulateness is evident from his written evidence. It was therefore quote [sic] surprising to find that his oral evidence and presentation in cross-examination was less than impressive. Indeed I found him to be evasive, often unresponsive, and perhaps even dependent on the quite constant objections by his Senior Counsel to provide time for him to marshal his thoughts. He was not cross-examined for long (only 3 hours) compared to the mother. Without being mathematical about this I formed the impression that his most common answer in cross-examination was that he either did not recall, did not remember or did not know. This was surprising, and hard to believe, given the context of the questions that related not only to relatively recent events, but also to the matters in respect of which only the father could be expected to know the answer.
It is not without significance that the only complaint levelled at the findings thus recorded by his Honour relates to his reference to objections during the course of the father’s cross-examination. Read in context, it is apparent that his Honour considered it possible that the father had been “dependent” on the time occupied by objections in order to “marshal his thoughts”. Whether or not that was the case, and his Honour did not affirmatively find that it was, the reality is that, whatever the success of them, objections taken by Senior Counsel on his behalf did provide the father, an unresponsive and evasive witness, with a greater opportunity to consider his answers than otherwise would have been the case. Notwithstanding that, his evidence was most commonly “that he either did not recall, did not remember, or did not know”, as his Honour found.
We do not accept that the learned Federal Magistrate impermissibly relied upon the impact upon the course of cross-examination of the father of objections taken on his behalf. Nothing to which we have been referred persuades us that his Honour was obliged, during the course of final addresses, to raise the issue of objections during cross-examination with Senior Counsel then representing the father.
The appellant’s argument in support of these grounds seems to confuse the authorities in relation to observations of parties and/or witnesses by trial judges. In Zantiotis (1993) FLC 92-367; (1993) 16 Fam LR 418, the Full Court (Nygh, Lindenmayer and Gun JJ) discussed the obligations of a trial judge to inform counsel when he or she has made observations of a party or a witness outside the witness box. Their Honours said (at 79,837):
There have been a number of reported cases where a Trial Judge has made observations of a party or a witness outside the witness box. Most of those cases were reviewed by the Court of Appeal of the Supreme Court of New South Wales in the case of Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304. The headnote in that case says that it held in that case that:
``Judges may make their own observations of witnesses outside the witness-box, but if these observations are to have a significant influence on the decision, counsel must be informed and given adequate opportunity to respond. Otherwise (per Kirby P) there will be a breach of the requirements of procedural fairness.''
The headnote also says that the Court of Appeal followed the South Australian cases of Minagall v Ayres [1966] SASR 151 at 156, Jobst v Inglis (1986) 41 SASR 399 at 417 and Angaston and District Hospital v Thamm (1987) 47 SASR 177 at 178-179. In the lastmentioned case King J. said at pp. 178-179:
``The principle of law which was expressed in Minagall v Ayres and which was accepted by the judges who constituted the Court in Jobst v Inglis, is expressed in a passage in the judgment of Napier CJ, with whom Travers J agreed, at 156 of the report. It is as follows:
`But, while we agree with Hogarth J, we desire to guard ourselves against being understood as laying down any absolute rule upon the subject. It seems to us that it is a matter of what we should regard as `fair play and common sense'. The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it.
The rule, as appears from the passage cited, is not to be regarded as absolute in the sense that it must be applied rigidly to every observation which a judge might make of a party during the course of a trial outside the witness-box. Something will depend, no doubt, on the circumstances of the particular case and upon the significance of the particular observations. It is clear, however, that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice, before making such use of those observations, to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way.''
A decision of the Court of Appeal of New South Wales, Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, provides a useful summary of the authorities on this point. Giles JA said:
[2] There can be denial of procedural fairness if a judge materially uses in decision-making observations of a witness outside the witness box. There is no dogmatic rule; in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 Clarke JA, with whom Hope AJA agreed, said at 323 that it was "a flexible one based on considerations of fairness and justice". His Honour cited from the judgment of King CJ in Angaston & District Hospital v Thamm (1987) 47 SASR 177 at 178–9 a passage also cited by Mason P, Heydon JA and Clarke AJA agreeing, in Kassem v Crossley [2004] NSWCA 276 at [15]—
The principle of law which was expressed in Minagall v Ayres and which was accepted by the judges who constituted the court in Jobst v Inglis is expressed in a passage in the judgment of Chief Justice Napier, with whom Justice Travers agreed at 156 of the report. It is as follows:
But while we agree with Hogarth J, we desire to guard ourselves against being understood as laying down any absolute rule upon the subject. It seems to us that it is a matter of what we should regard as “fair play and common sense”.The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it.
The rule, as appears from the passage cited is not to be regarded as absolute in the sense that it must be applied rigidly to every observation which a judge might make of a party during the course of a trial outside the witness box. Something will depend no doubt on the circumstances of the particular case and upon the significance of the particular observations. It is clear however that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice before making such use of those observations to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way.
[3] Exceptionally, but as a matter of principle possibly, it may be that fairness requires the judge to draw attention to an observation of the witness in the witness box. The rule is not restricted to the actions or demeanour of a party, and is not necessarily restricted to when the actions or demeanour are not observable by counsel, since the vice lies in the judge making use of what has been observed when the party's representatives are not aware that it may be used in the decision-making. In Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 49 Redlich JA began by noting at [42] the parties' entitlement to know the case sought to be made against them and have the opportunity of replying to it, and after consideration of the cases said—
52. A decision-maker sitting in the courtroom is not blind to the events which occur in the courtroom but when his or her observations are of matters which the party's representatives have no opportunity to observe, or where it may reasonably be assumed that the party's representatives will not appreciate the inferences which the decision-maker intends to draw from observations that are made, the party should be informed of the observations or the inferences which the decision-maker contemplates drawing so as to afford the party an opportunity to deal with such matters, whether by calling evidence or by making submissions. (citations omitted).
In the main, the authorities to which we have referred discuss the obligations of trial judges with respect to observations made of a party or a witness “outside the witness box”. The logic underpinning what the authorities establish in that regard is obvious and irrefutable. There is no suggestion, however, in the present case that any observation to which the learned Federal Magistrate referred was made “outside the witness box”. Counsel for the father had the same opportunity to observe the parties and their witnesses as did the learned Federal Magistrate. In those circumstances, the learned Federal Magistrate was not obliged to inform counsel of observations he made of the father during the course of his time in the witness box.
It is clear from the transcript that the credibility of the mother and the father were live issues at trial. During the course of the proceedings before the Federal Magistrate, Senior Counsel then representing the father was aware of the potential for adverse findings of credibility to assume importance in the proceedings before the Federal Magistrate, given the course of the hearing. Senior Counsel for the father commenced his final address to his Honour with submissions in relation to credibility.
During the course of his submissions in that regard, Senior Counsel for the father said:
MR RICHARDSON SC: … not only is the question of credit relevant in terms of determining what were the true facts in the past, but it’s particularly relevant in dealing with one of the most fundamental things, namely what it is that people are saying about their intentions for the future. …
Later, Senior Counsel for the father submitted:
… So the credit issues that I address your Honour on, although they will have a focus on each issue about matters that go historically because of their nature, I am very much relying upon them as being one, demonstrative of unreliability in the past; two, a willingness in relation to matters that were clearly material to these proceedings to present a misleading proposition to the court. Because if your Honour accepts that about any party in parenting proceedings, that poses a number of huge difficulties in terms of how reliable that party can be accepted to fulfil or lead the life or be the parent that they say they are going to be for the future, which is one of the fundamentals that you are considering. …
A significant proportion of Senior Counsel for the father’s submissions that followed focussed on the inconsistencies in the mother’s evidence and her propensity to misrepresent the truth and mislead the Court. It was submitted by Senior Counsel then representing the father that the matters there outlined should lead the Federal Magistrate to accept his submissions in relation to one of the factors that assumed importance in the case - that the mother would not facilitate and encourage close and continuing relationships between the children and their father should the children remain at Town B with the mother. Senior Counsel for the father further submitted that the Federal Magistrate’s conclusions in relation to the reliability or otherwise of the mother’s evidence should lead him to favour the evidence of the father in relation to incidents which assumed importance in the trial, including in particular the unfortunate incident at the hospital, where the mother’s evidence portrayed the father’s actions in a negative light.
The submissions of Senior Counsel then representing the mother also extensively traversed the issue of credibility.
In circumstances where there were live issues of credit, as Senior Counsel for both parties were clearly aware, his Honour was entitled to have regard to the reality that the father had time, for whatever reason, to gather his thoughts during cross-examination when assessing the credibility of the father. Moreover, the learned Federal Magistrate had ample other bases, which he identified, for concluding as he did with respect to the father’s credibility. Even if, which has not been established, the learned Federal Magistrate impermissibly relied upon any “dependence” of the father on interruptions to his cross-examination resulting from generally successful objections taken by his Counsel, that would not enliven appellate intervention.
The well known principles regarding the trial Judge’s “advantage” are pertinent to this case. In Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178) McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] A.C. 37 (at 47):
… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
His Honour said (at 178):
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion; Watt or Thomas v. Thomas [1947] A.C. 484, at p. 488.
His Honour further said (at 179):
… when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked.
In Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 Brennan, Gaudron and McHugh JJ observed (at 479):
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”. (footnotes omitted)
In Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 (“Earthline”), having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment (at 619, para 90) his Honour said:
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. (footnotes omitted)
Nothing to which we have been referred persuades us that the learned Federal Magistrate palpably misused his advantage in any of the respects asserted by these grounds, or otherwise. We thus reject the challenges embodied in Grounds 1 and 2.
Ground 3
Ground 3 provided:
3.That his Honour erred in ordering that
(a)any further proceeding be listed before himself; and
(b) one set of parenting orders be made to 14 May 2014, and a second set thereafter when neither party had sought such
anorders and he provided no notice of the contemplation of making suchanorders, thus constituting a denial of natural justice.
In support of this challenge, Senior Counsel for the father asserted that the Federal Magistrate had denied the parties natural justice in two respects. The first of those was asserted to have been in making an order (Order 11) that any future applications be returnable before him if that be possible.
The short answer to this complaint is that his Honour’s order could not, and in our view did not, purport to deny the parties the opportunity to seek that his Honour disqualify himself from hearing any further proceedings between the parties. To read paragraph 134 of his Honour’s Reasons for Judgment is to appreciate why this complaint must fail. His Honour there said:
134.The mother should not regard my confidence in her as licence to contravene orders of the court, or ignore any of her responsibilities as a parent under the Act. Indeed I intend to make an order of the courts own motion that if there are any subsequent proceedings in relation to these children, whether in relation to enforcement, variation, interpretation or implementation of these orders, the proceedings should be listed in the first instance before me. This of course does not prevent either parent from asking that I disqualify myself from hearing such further proceedings. It does not prevent appeals. It may not even prevent an application to another court having jurisdiction under the Act. What this may well achieve however, is assist in the more timely and efficient resolution of future conflicts, and create a greater sense of accountability for the parents.
It is unnecessary to say more about this aspect of this Ground, other than to record that it lacks merit.
The second complaint relates to the making of orders to apply until 14 May 2014, whereupon different orders were to operate. In circumstances where such orders were asserted to have been “outside the parameters of the parties’ proposals”, and the parties were not afforded the opportunity to be heard in that regard, it was submitted that the Federal Magistrate had impermissibly “made two orders, one of which affects the substantive right of the parties to initiate proceedings, the second of which affects the welfare of the children, and neither of which were within the ambit of dispute chosen by the parties”. It was submitted that, by so doing, his Honour “stepped outside the boundaries of the dispute as chosen by the parties” and failed to provide them with the opportunity to make submissions about those matters. The decision of the Full Court in Guthrie & Guthrie (1995) FLC 92-647, 82,551-2 was relied upon in support of that assertion.
The learned Federal Magistrate referred at some length to the adjustment to the Orders which were to operate from 14 May 2014, and said:
162.Of course the mother’s proposal involves a reduction to the frequency of contact. This is a difficult issue. It was common ground that the current order is not sustainable into the future having regard to developmental stages the children will progress through. Even if I am wrong in interpreting the evidence on this point I find the current contact arrangement is not sustainable indefinitely. The current orders provide for up to 3 contact visits in a 4 weekly cycle, 2 in Sydney, 1 in Canberra. This means that there are 3 weekends each month when the children are away from home, away from their friends, and away from opportunities to participate in weekend extra-curricular activities. At age 8 and 6 I didn’t think this is an unmanageable arrangement for the children. By the time [the child H] turns 12, however, experience suggests that [the child H] will start to assert a normal developmental preference to spend time with her peers and engage in activities other than spending time with her father. Once [the child H] turns 12, I believe that the mother’s proposal for the reduction of contact becomes more realistic. [The child H] would have at least 2 weekends in 4 to plan her own activities. I recognise that this still limits, for example, her participation in regular weekend activities such as sport. As important as that consideration might be, it must be balanced against the importance of maintaining a strong relationship with the father.
163.I will not make any distinction between [the child H] and [the child T] as regards the orders I propose. It would be impractical to do so. The children have a strong relationship between them, and to separate them one weekend a month is not, in my opinion, in their interest. Quite apart from their relationship with each other, separating them when they spend time with their father might give the impression of favouritism.
164.Thus I find that the mother’s proposal is both in the interests of the children and reasonably practicable, once [the child H] has turned 12. Before then, however, the current arrangement seems to represent what is in the best interests of the children, and is as reasonable [sic] practicable as it can be.
His Honour further recorded:
170.The existing orders also contemplate the children returning on Sunday afternoons. I would like to give the father the option of returning the children on Monday mornings, if he wants to, provided the children are sent from Sydney dressed and ready for school, and provided that he personally takes them to school. I acknowledge that he has given me evidence that indicates that his Monday morning work commitments would make this difficult. Nonetheless, he has also given me evidence that in 2014 he may well leave his present position and go into consultancy which might offer him more flexibility. The obvious benefit to the children of the father returning them to school on the Monday morning is not just the additional time and interaction with them, but the opportunity he has to interact with the children’s school. However, I am only prepared to do this if he travels with the children by air to Canberra, the nearest airport, and not if he travels by car. To travel by car would involve getting the children up far too early on a Monday morning. I acknowledge that even air travel may involve an early start on a Monday morning, but if they are accompanied by their father, and he has the opportunity to attend with the children at their school, even occasionally, I think this benefit outweighs the disadvantage to the children. What I am not prepared to contemplate, however, is the father returning the children by air on Monday morning, and then not taking them to school, thus leaving the responsibility on the mother.
…
172.The mother’s proposal is for contact on two weekends in a four-week cycle. As I have discussed in my reasons above, I believe that this is a realistic and developmentally appropriate outcome for the children, from when [the child H] turns 12 years old.
173.The existing orders provide for the mother to deliver the children to their father at his home in Sydney and collect them on weeks 1 and 3, and for the father to collect them from the mother’s home and return them in week 2. I see no reason to change this for the time being. The mother’s proposal, however, which sees a reduction of contact to two weekends in a four-week cycle, and which I accept once [the child H] turns 12, also suggests that the father be responsible for collecting and returning the children from the mother’s residence (and/or school as the case may be) on one of the two weekends in the four-week cycle. Given that this won’t start till 2014, I consider this to be an appropriate sharing of the travel arrangements, but particularly in view of the acceptance of air travel as an option.
Other than to the extent that we shall indicate, we have not been referred to the prospect of a change in the Orders occurring as and from 2014 having been canvassed with the parties during the course of the trial before the Federal Magistrate. We proceed on the basis that his Honour did not provide the parties with the opportunity to be heard in relation to that topic.
During the course of final submissions at trial, Senior Counsel then representing the father noted that the “time” and “opportunity” for the children to spend time with the father might “diminish” as they become older. The context in which Senior Counsel for the husband mentioned such a possibility becomes clear when the submission is read as a whole:
MR RICHARDSON: … But most significantly with that, it’s common ground to [the father], [the mother], and to Dr [Q] that these children have now reached an age where as they become older, it will be inevitable that the current arrangement – and I’m not saying immediately, but as time passes, with development of their own social commitments, their school and sporting commitments and the like, that an arrangement that provides to them as much time and association with their father as they’ve had since 2005 will not be sustainable. Everybody has agreed about that. Dr [Q] agrees that the relationship that – very positive one that exists between father and children at the moment is very much the product of the time that he has had with them in the post-marital breakdown period. Night follows day because of the ages, particularly of [the child T], at the time that all that happened.
And she acknowledges that that makes all the more important, if the time was to diminish and the opportunity diminish, the way in which the relationship of the father and children might be valued and advanced by the mother in the environment that she provides.
We have not been referred to, or discovered for ourselves, any submission to the learned Federal Magistrate on this topic by Senior Counsel for the mother.
It is not without significance that the father himself introduced the evidence in relation to the likelihood of changes in arrangements in 2014. Moreover, albeit not substantially, the change in the Orders for time to be spent on weekends during school term from May 2014 involve the children spending more time with the father than they will pursuant to his Honour’s Orders prior to that date. The father is accordingly, at the very least, not disadvantaged by the changes to the Orders contemplated by the Orders of the learned Federal Magistrate. There is no suggestion that the changes ordered to operate from 2014 were inconsistent with the evidence of the father upon which the learned Federal Magistrate relied. In the circumstances to which we have been referred, no injustice was visited upon the father by any asserted denial of natural justice on the part of the learned Federal Magistrate.
Even if we are wrong in concluding as we do in relation to this complaint, it cannot be successfully suggested that the learned Federal Magistrate’s Order precluded either party from applying to vary the Order prior to May 2014. The history of litigation between the parties to which his Honour referred in his Judgment provides little basis for thinking that the parties would hesitate to engage in further litigation prior to that time if minded to do so. We thus reject these challenges.
Ground 4
Ground 4 provided:
4.That his Honour erred in having regard in his reasons to the opinions of various authors as a consequence of their research as background material or otherwise in circumstances where the content of that material was relevant to principle issues in the case and:
4.1in the present circumstances the so called background material constituted an impermissible proxy for expert opinion;
4.2his Honour failed to raise with the parties his intention to have regard to the background material (or the substance thereof) thereby depriving them from the opportunity to:
4.2.1make submissions as to the extent to which his Honour was entitled, if at all, to rely upon it;
4.2.2 make submissions as to the substance of the material;
4.2.3place before the court other documents or background material supporting contrary views; and,
4.2.4put to the court appointed single expert any matter arising from the material upon which she may have held a relevant opinion, including in that context any material of the nature referred to in 4.2.3.
The complaint arises from paragraph 31 of the Reasons for Judgment of the learned Federal Magistrate in which, after referring to a number of academic articles, his Honour said:
31.All of 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. One also lives in hope that parents might learn from it.
The submission of Senior Counsel for the father was that “If the quoted material is not evidence, and not material from which judicial notice can be taken, and is not material used to make findings of fact, then it begs the question: how can it assist his Honour in understanding the expert evidence as he articulated?”. The crux of the complaint on behalf of the father was that, whatever reliance the Federal Magistrate may have had on the research to which he referred, the parties were denied the opportunity to put such material to the single expert, to submit “different research material” to the single expert and/or his Honour, and to make submissions to his Honour as to how the research material ought “assist” his Honour.
Senior Counsel for the father referred to a number of authorities, the effect of which can, for present purposes, be summarised as indicating the need for caution in relation to material of any kind which is not clearly before the court and able to be contested, or at least able to be the subject of submissions by the parties to the proceedings.
Senior Counsel for the mother submitted in his outline of argument, when a Judicial Officer states, as the Federal Magistrate did in this case, that the material has not been taken into account, that statement “should be accepted unless it can clearly be shown to be wrong”. We are not sure that the position is necessarily that straightforward.
We do not understand Senior Counsel for the parties to be in total agreement as to the principles governing reliance upon materials such as those to which the learned Federal Magistrate referred in this case. However, it has not been seriously in contest that his Honour could not permissibly have relied upon that material as the basis of, or support for, any finding of fact he made, or any conclusion which he reached.
Where Senior Counsel for the parties disagree is the significance which the material assumed before his Honour. Senior Counsel for the father contended that, albeit in ways that are not clear, the learned Federal Magistrate must in some way have relied upon the material. It was submitted that his Honour’s own words in paragraph 31 of his judgment support so concluding, or, at the very least, left the parties not knowing just what influence the material had on his thinking. The crux of Senior Counsel for the father’s complaint was in effect, why refer to the “research” if it was going to be ignored.
It was submitted by Senior Counsel for the mother that no finding of fact, or conclusion, whether challenged or not, made or reached by the learned Federal Magistrate could be shown to have been in any way dependent upon the academic material to which he referred. There were, Senior Counsel for the mother submitted, ample sustainable findings of fact underpinning his Honour’s conclusion. The fact that they may have been supported by the “research” was not the point – they had an independent and ample basis in the evidence.
Senior Counsel for the father asserted that the Federal Magistrate’s reliance upon the academic material to which he referred in paragraph 31 “carries through” at paragraphs 115, 125 and 158 of his Reasons for Judgment. When invited to do so, Senior Counsel for the father did not suggest any other paragraphs which were submitted to be indicative of his Honour’s asserted reliance upon academic writings. Paragraphs 115, 125 and 158 of his Honour’s Reasons for Judgment provided:
115.To the extent that the father’s proposal involves shared care with the mother, the father demonstrated a real lack of understanding not only about the basic parental attributes that would support shared care, but a lack of appreciation of his relationship with the mother. He indicated in cross-examination, for example, that a good level of trust between the parents was good in an ideal sense but not necessary. The reality of the parental relationship in this case, and a feature that permeates all the evidence, is a total absence of trust between them. The father believes that only a reasonable level of communication between them is necessary, but a feature again permeating all the evidence is the strained and often dysfunctional communication between the parents.
I record here that just because the father was able to demonstrate a few examples of reasonable communication between the parents, in reality those are but isolated examples when viewed in the overall context of this case.…
125.The starting point of the discussion of this consideration is to recognise the context in which it operates. This is a case involving very high conflict between two parents who, but for the conflict, are both high functioning individuals. There is no trust between them. Communication is dysfunctional. They seem to operate quite effectively as parents in parallel worlds, but co-parenting is highly problematic if not impossible. Litigation between the parents has continued for as long as five years. Both parents are intelligent, articulate and stubborn. Both suffer deficiencies in parental insights. It is possible to identify errors of judgment, indeed quite serious ones, in both parents though these are not necessarily on par either qualitatively or quantitatively. Each blames the other in circumstances where blame is uncalled for.
…
158.Equal time is, in my opinion, neither in the best interests of the children, nor reasonably practicable. In this case the father will not move closer to the children in [Town B], and the mother will not move closer to the father and/or the children in Sydney. These are parameters the parents have themselves set for reasons which I accept. This means that equal time is not reasonably practicable for the purposes of s.65DAA(5)(a). In any event my findings about the parents mean that they do not have the capacity to implement an equal time arrangement, or to communicate with each other and resolve difficulties that might arise in implementing equal time. Thus s.65DAA(5)(b) and (c) contra-indicates equal time. In any event I find it is not in the best interests of the children to implement an equal time arrangement, even if it were reasonably practicable. For the reasons I have stated above in this judgment, an equal time arrangement would inevitably result in too much change and disruption for the children, particularly in terms of their relationships with their mother (s.60CC(3)(c)). Also I have doubts about the father’s capacity to meet the physical and emotional needs of his children (s.60CC(3)(f). Moreover the concerns I have about each parent’s attitude to the responsibilities of parenthood again contra-indicates equal time (s.60CC(3)(i)).
Quite apart from the absence of literal reference to the academic materials, the findings of fact recorded in each of these paragraphs were clearly made in reliance upon the evidence before his Honour or, in the case of the conclusions recorded in paragraph 158, were based upon such findings. In the paragraphs preceding 115 of his Reasons for Judgment, the learned Federal Magistrate recorded in some detail the evidence supportive of those findings. It is not without significance in relation to this challenge that, when invited to do so, Senior Counsel for the father was unable to refer to any other passage in the learned Federal Magistrate’s Reasons for Judgment which were asserted to have been reliant in any way upon the academic materials to which his Honour referred in paragraph 31.
We accept that it would have been preferable for the learned Federal Magistrate to not have referred to academic writings or materials which were not raised with the parties and able to be addressed in the various ways suggested by Senior Counsel for the father. We also accept the submission of Senior Counsel for the father that reference to materials to which the parties were not privy prior to receipt of the Federal Magistrate’s Reasons for Judgment would cause some disquiet in the mind of the litigant as to just how they might, consciously or unconsciously, have influenced the judicial mind. However, for the reasons we have recorded above, we are not persuaded that any material finding of fact made by the learned Federal Magistrate, or conclusion reached by him, was reliant upon any of that material. It may be that the academic writings were supportive of the findings and conclusions of the learned Federal Magistrate, but, given that the findings and conclusions have not been shown to lack a permissible foundation, whatever regard his Honour had to those materials does not in our view taint those findings or conclusions. We accordingly reject this challenge.
Ground 5
Ground 5 provided:
5.That his Honour erred in failing to appreciate that a proper evaluation of the single expert's evidence, read with necessary modification arising from the consequence of his Honour's ruling pursuant to s.136 Evidence Act, 1995, resulted in the expert's evidence being without admissible contention supporting any opinion that:
5.1the children or either of them were unable to or unlikely to cope with a change of residency to the appellant in the necessary consequence; and,
5.2the appellant was in any way considered unsuitable as a primary parenting figure and thereby mistook the facts.
By reference to the learned Federal Magistrate’s ruling pursuant to section 136 of the Evidence Act 1995 (Cth) in relation to portions of the single expert’s report, and to subsequent cross-examination of the single expert, it was submitted that the Federal Magistrate should have found “that the expert’s view about the father’s unsuitability as primary carer were without admissible contention to support that opinion”. It was submitted that the “substratum” of his Honour’s Reasons involved implicitly finding that the father was an unsuitable primary carer. In support of that conclusion, reliance was placed upon paragraph 123 of his Honour’s judgment where he recorded:
123.There can be no doubt that the mother has been the primary carer for these children throughout their lives, and that they are strongly attached to her. They have a good strong attachment with their father. The children have good relationships with [Ms M], and the father’s other children [A] and [L]. They have significant relationships with members of the mother’s extended family including grandparents, aunts and uncles. On the mother’s proposal there is minimal or no impact on the children’s relationships with their father, and with [Ms M], [the child L] and [the child A]. This remains the case even if I reduce the frequency of contact. On the father’s proposal, however, there would be a significant change in their relationship with their mother, even if she does stay in Sydney for periods of time. On the father’s proposal the mother would no longer be their primary carer, the father would. The children’s relationships with the maternal family would be [a]ffected in that they would spend less time with them. This is a weighty consideration but not determinative on its own. The best way to preserve the good relationships that exist all around is to either maintain the current orders, or accept the mother’s proposal.
Senior Counsel for the mother submitted that the findings of the Federal Magistrate in paragraph 123 were able to be supported by admissible evidence of facts independent of the single expert’s evidence. Nothing to which we have been referred establishes that not to be so.
We do not accept that, either in its own terms, or in the context of the totality of the Federal Magistrate’s Reasons for Judgment, can it be successfully asserted that his Honour found, implicitly or otherwise, that “the father was an unsuitable primary carer”. As is not in doubt, the learned Federal Magistrate concluded, in reliance upon his findings of fact with respect to the lay and expert opinion evidence before him, that the mother, who had historically been the children’s primary carer, had a greater capacity to continue in that role than did the father to assume that role. As is clear from his Honour’s discussion of the “Capacity of parents to provide for the needs of the children” (paras 143-152), the learned Federal Magistrate was critical of the mother, and rejected a number of criticisms raised by the mother and single expert with respect to the father’s capacity to provide appropriate care for the children.
A balanced reading of the totality of his Honour’s Reasons for Judgment reveals that the opinion evidence of the single expert had a substantial foundation or underpinning in the findings of fact made by the learned Federal Magistrate in reliance upon admissible evidence before him. That being so, the expert opinion evidence was able to be accepted (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). We thus reject this challenge.
Ground 6
Ground 6 provided:
6.That his Honour erred in fact in accepting the respondent's evidence that in the event of orders being made as sought by the appellant she would not reside in Sydney or spend more time in Sydney in circumstances where:
6.1his Honour failed to give adequate reasons for this central contentious finding;
6.2his Honour failed to take into account a sub-set of relevant findings of necessary relevance in determining whether to accept the respondent on this issue including his Honour's findings as to the veracity of her evidence otherwise and her willingness to adopt decisions that he was satisfied were tactical rather than a genuine expression of her intentions.
In oral submissions, Senior Counsel for the father asserted that there had not been “sufficient discussion” by the learned Federal Magistrate of his acceptance of the mother’s evidence in relation to a relocation to the Sydney region in light of the earlier extensive and critical findings made by him with respect to the mother’s evidence. A “tension” was submitted to exist between the former and the latter findings.
In paragraph 139 of his Reasons for Judgment, the learned Federal Magistrate recorded:
139.It was part of the father’s case that the mother could in fact move to Sydney, notwithstanding her firm and clear evidence that she would not. If the mother were prepared to move to Sydney it would not only reduce the likely effect of this change for them on the father’s proposal, but also potentially open up other alternatives for the court to consider. Senior Counsel for the father submitted that, given the mother’s love for her children, and the evidence of the opportunity and availability of accommodation in Sydney, it is more likely than not that the mother could move to Sydney, even on a part-time basis. I do not accept this. The mother sets out her reasons for not moving in her evidence. I have no more reason to doubt the genuineness to her of these reasons than I have reason to doubt the genuineness of the father’s reasons for not moving to Canberra. I am not prepared to make a value judgment that, on the facts of this case, has the effect of elevating one parents reasons not to move over another parents reasons not to move. Both sets of reasons are reasonable and genuinely held.
As Senior Counsel for the father submitted, those findings appeared to be in stark contrast with those recorded at paragraph 90, where his Honour said:
90.I found the mother to be quite a complicated person whose character and personality is difficult to describe. There are odd inconsistencies between the evidence she gave at times, and her presentation generally. For example I am left in no doubt that she is a reliable mother to the children, capable of providing for almost every aspect of their care. However at times I found her to be a thoroughly unreliable witness, a poor historian, opportunistic in attributing blame to the father, prone to exaggeration, manipulative at times and having a real ‘blind spot’ so far as the father is concerned that distorts her otherwise sound judgment. Using plain English, the mother is a woman who has ‘got her life together’, often despite considerable tragedy and adversity in her personal and family life, but who is totally dysfunctional when it comes to her relationship with her children’s father. She is a good mother, is intelligent, articulate and successful but presents to the court as having one flaw – a dysfunctional relationship with the father. Sometimes – and only sometimes (to her great credit) – the level of this dysfunction is allowed to seep out and manifest itself before the children.
The crux of the submission of Senior Counsel for the father was that, despite an abundance of evidence supportive of the adverse findings recorded in paragraph 90 of his Reasons for Judgment, the learned Federal Magistrate “was prepared to accept, without question and without reason or adequate reason that the [mother] was genuine when she said she would not move to Sydney if the children were permitted to relocate back to Sydney”.
It was further submitted that his Honour’s findings in paragraph 139 were “at odds with other, important findings” such as paragraph 105 where his Honour recorded:
105.I described the mother as manipulative at times. One example of this is her approach to seeking equal shared parental responsibility. It is clearly not what she wanted. She agreed it was just a tactical ploy on her part (p 135). She was clearly not being genuine in seeking this order (p 137). She does not believe that such an order is in the best interests of the children (p 138). She believes that she has acted on the basis of equal shared parenting for 5 years (p 140). The evidence raises serious doubts about this, especially in relation to [the child T]’s hospitalisation. The mother explained that she hoped “that we might get some of the court cases finished earlier” by agreeing to equal shared parental responsibility (p 140). I am left in real doubts about whether this was what she really believes. The capacity of both parents to make decisions about their children together would have been a real issue in this case. It was perhaps an issue the mother would rather the court not have decided? I don’t know. Equal shared parental responsibility is agreed to by both parents though the court is left with the impression that tactical considerations were at work here, and not considerations about what was best for the children. Other examples of the manipulative side of the mother’s character is the way in which she presented her evidence about [the child H]’s enrolment at school (pp 174-175), her use of [the mother’s sister] in the background to these proceedings (p 205), and the deliberate delay in notifying the Father of [the child T]’s admission to hospital.
It was thus submitted:
28.In the circumstances of the trial Court’s “scathing” findings about the mother and tactical, disingenuous positioning with respect to her proposed ESPR order, to simply accept that she would not follow her children to Sydney as a genuine position neither allows this Court, nor the parties, to discern either expressly or by implication the path by which that crucial result has been reached.
In support of this challenge, Senior Counsel for the father referred the Court to the decision in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 and to cross-examination of the mother at AB 2067-70.
Rather than seek to paraphrase them, the submissions for Senior Counsel for the mother in relation to this topic asserted:
14.The criticisms made by the Appellant emphasise the strengths of the Respondent’s views that she does not want to live in Sydney. She left Sydney to get away from the appellant. Her extended family is where she now lives. Her job is there. There is absolutely no reason why her adamant refusal to return to Sydney should not have been accepted. The cross-examination of the Respondent makes plain the Appellant relied upon the Appellant’s refusal to come to Sydney as a key part of his case. In 3 1/2 days of cross-examination it is difficult to discern the basis on which it could have been submitted at trial or on appeal she would come to Sydney. As the respondent herself pointed out in evidence if the orders sought by the appellant are made she would see the children for 4 days a fortnight which would not compel a move to Sydney. The Appellant now contends the Respondent will come to Sydney in circumstances. This could hardly be the Appellant’s genuine view. In any event, the refusal by Altobelli FM to accept some part of the respondent’s evidence does not prevent him from accepting the obvious veracity of her evidence in relation to her place of residence. The findings were open to his Honour and fair to the Appellant.
As is not in doubt, the mother has lived at Town B for six years. During this time, the children have primarily resided there with her. As is also not in doubt, the mother has consistently throughout the litigation with respect to parenting issues sought to continue to live at Town B. Those attempts have been successful at first instance, on appeal to an intermediate Court of Appeal, and in the High Court.
As Senior Counsel for the mother submitted, against that background, there is no rational basis upon which it could be successfully asserted that the mother would relocate to Sydney. Nothing to which we have been referred suggests that she would. The learned Federal Magistrate clearly accepted that the mother “could” move to Sydney. The issue was then whether she would, or should, do so.
In our view, the complaint in relation to this topic misconceives what his Honour said in paragraph 139. Accepting the mother’s evidence in relation to those matters was not in our view inconsistent with the earlier adverse credit findings made by the learned Federal Magistrate. The finding was amply supportable by the circumstantial evidence to which his Honour referred earlier in his Reasons. That evidence was largely not capable of being controversial. His Honour’s conclusion that each parent had a “reasonable and genuinely held” basis for declining to move from where each currently lived has not been challenged, nor in our view could it sensibly be.
Moreover, even if, contrary to our conclusion, the learned Federal Magistrate ought not to have accepted that the mother would not relocate to Sydney, accepting that she would not could not have been to the detriment of the father. The father’s proposal was that it was in the best interests of the children that they reside in the geographic region delineated by him. Where the children’s interests would best be served was a matter which his Honour was required to determine by reference to s 60CC of the Act. Where they should primarily live involved a consideration of s 65DAA of the Act. The mother’s intentions in relation to the children’s residence could not prevail if, on proper consideration of s 65DAA, their best interests would be served by living in Sydney.
Relevant matters within s 60CC included parental attitudes. By refusing to countenance the possibility of relocating to Sydney, the mother ran the risk of an adverse finding being made against her in relation to such attitudes. The mother’s sole proposal was that she would continue to reside at Town B. By maintaining her stance with respect to relocation to the Sydney region, no “fall back” position was available to her. That was a risk the mother elected to take. The learned Federal Magistrate’s acceptance that the mother’s proposal was as she asserted could not in those circumstances have been to the detriment of the father’s case.
As we have earlier recorded, however, the evidence before the learned Federal Magistrate, the history of the mother’s residence at Town B, the reasons for her desire to continue to reside there provided a sufficient basis for finding as his Honour did in paragraph 139, notwithstanding the extensive and adverse findings he had earlier made with respect to the mother’s evidence. We thus do not accept this challenge.
Ground 7
Ground 7 provided:
7.That his Honour's discretionary judgment miscarried as a consequence of his Honour's failure to take into account relevant matters, namely:
7.1the account by Dr. [Q] of the child advising that the respondent had informed her that the appellant had assaulted both the respondent and [the child L] (the subject for which there was no basis in truth) and the respondent's denial that she had so informed the child;
7.2contentions in the appellant's case that the respondent's entire family, intrinsic in the care of the children at [Town B], universally held him in such poor regard as to constitute a poisonous environment for raising the children with limited contact with the appellant in circumstances where his Honour discussed only the respondent's brother;
7.3the fact of and the relevance of the disclosure by the production of diaries produced during the respondent's cross examination that [the child T] had suffered another splinter 12 months after the hospitalisation incident and when she was placed in the appellant's care days later:
7.3.1the respondent did not disclose the splinter, the medical advice obtained or the consequent need to be vigilant of infection;
7.3.2did not provide or advise of the prescription for antibiotics or any of the antibiotics that had been prescribed;
and in particular his Honour failed to take into account this evidence in assessing the relevance of the isolated 2008 splinter incident. (original emphasis)
It is unnecessary to refer in detail to the very extensive submissions advanced in support of the three challenges articulated by this Ground.
We agree with the submission of Senior Counsel for the mother that Ground 7.1 is based on a false premise. We have not been referred to a finding adverse to the father in relation to any of the matters referred to in this ground of appeal. Nor have we been referred to any evidence which obliged his Honour to find that the mother had informed the child of those untrue allegations.
As to Ground 7.2, as the submissions of Senior Counsel for the father confirm, the learned Federal Magistrate clearly considered those “contentions” and, for reasons which he gave, did not accept them. As was acknowledged by Senior Counsel for the father, the learned Federal Magistrate accepted (para 79 of his Reasons for Judgment) that the hypotheticals relied upon by Senior Counsel for the father, which had been suggested to the single expert, were “in fact correct”. As he foreshadowed that he would, the learned Federal Magistrate discussed those matters in greater detail in the paragraphs which followed. As he there recorded, the evidence of the single expert included a number of matters which were favourable to the mother. Notwithstanding the criticisms which his Honour recorded of the mother, for reasons he articulated, he ultimately concluded:
81.… Based on the history of this matter, even though there is much to be critical about in relation to the mother’s attitudes to the responsibilities and duties of parenthood as manifested in her words, actions and inactions, the fact of the good relationship between the children and their father is irrefutable, and this certainly gives the court confidence about the future, even with the developmental changes that these children will experience. (original emphasis)
Nothing to which we have been referred persuades us that the conclusion to which we have referred was not reasonably open to the learned Federal Magistrate, having regard to the evidence before him. The evidence referred to by Senior Counsel for the father does not in our view, either individually or collectively, establish this challenge.
So far as Ground 7.3 is concerned, Senior Counsel for the father submitted:
39. Ground 7.3 concerns his Honour’s treatment of the near-tragic 2008 splinter hospitalisation as an isolated event. But, in doing so, his Honour failed to take account that 12 months later, the child was again taken to hospital with a splinter, and the mother did not tell the father, much less the court, until she produced her diaries in cross-examination.
40. Whilst children get splinters, [the child T]:
suffers from the condition known as chronic benign neutropenia. … The effect of this is that [the child T] produces a lower number of white blood cells and thus her body succumbs to bacterial infection, and finds it difficult to properly fight infection. Thus, something as innocuous as a splinter is for most children, becomes a potentially life-threatening condition for [her]. (Reasons #8).
41. Despite cross-examination on the topic (T 288-290), with the mother admitting she did not tell the father about it and did not pass on the child’s antibiotics to him, and conceding “in hindsight” she should have told him, nowhere does this 2009 splinter evidence find its way into his Honour’s reasons when assessing the mother’s capacity to parent and responsibilities.
Senior Counsel for the mother submitted with respect to this challenge:
f.(7.3) The matter is not large in the scheme of things. The Appellant knew [the child T] got a splinter at his place 6 weeks before the dramatic hospitalisation yet did not tell the Respondent. Perhaps they both should have done so but [it] is typical of the husband, through his Counsel, to criticise the Respondent yet see no fault in himself for doing the same thing.
We agree with the submission of Senior Counsel for the mother that this complaint does not have substance. The evidence to which the learned Federal Magistrate referred revealed matters which reflected poorly on both parents. We cannot accept that it should have been seen as reflecting more adversely on one than on the other.
Ground 8
Ground 8 provided:
8.That his Honour failed to give adequate reasons:
8.1for his determination that he would place no weight whatsoever on any views expressed by the children (including necessarily those expressed to the appellant and [Ms M]) in circumstances where the reasons advanced rested substantially upon the influence he was satisfied was exerted by the respondent but devoid of reason in respect of statements expressing desire to live with the appellant when absent of the respondent's influence;
8.2for his conclusions that the respondent will become more inclusive in her decision making in the future and that she will learn from the litigation in terms of accountability for her own parental responsibility when the holding of such belief stands in clear and direct contrast to many of his other findings, and, with such finding about inclusivity being contrary to the weight of the evidence;
8.3 his consideration of matters relevant to Section 65 DAA
As Senior Counsel for the father submitted, the learned Federal Magistrate’s reasons in relation to the children’s wishes were first mentioned at para 63 of his Reasons for Judgment, and were articulated in the following terms:
63.… The language I will use to describe the mother’s influence of the children will be far less diplomatic than the language used by the expert. Indeed her influence over the children is such that, together with their age, developmental stage, and the existence of such a high degree of conflict between the parents, I can place no weight whatsoever on whatever the children may have said by way of expression of relevant views.
His Honour revisited that topic under the heading “Views of the children” at paragraph 122, where he said:
122.Whilst there is evidence before me about the views of the children I place no weight on this evidence. This is partly because of the children’s maturity and level of understanding, but primarily because it is clear to me that the children have been at least indirectly, and probably directly at times, exposed to the very intense conflict that exists between their parents, and there is a real risk that this has influenced their views. At the very least the children must have an awareness of this parental conflict, and an appreciation of the existence of court proceedings. They have seen Associate Professor [Q] several times. They must be conscious of their mother’s absence from home to attend court and with her legal advisors. It is quite likely that their awareness is much more acute than this. In these circumstances placing any weight on views is fraught with difficulty. This is not a determinative consideration.
In our view, his Honour adequately revealed the reasons why he gave no weight to the views of the children. As the passages to which we have referred confirm, there having been no clear evidence of wishes which could safely be relied upon, nothing could turn on any perceived inadequacies in the learned Federal Magistrate’s conclusions that they should be given no weight.
As to the second of these challenges, as Senior Counsel for the father’s submissions acknowledge, the learned Federal Magistrate was conscious of the mother’s prior inappropriate behaviour. His Honour recorded:
131.Nonetheless there are some quite stunning examples from the evidence of unilateral decisions which are sought to be explained, but not justified, by the overall context of the relationship between the parents. If the mother does not change her ways, and stop making unilateral decisions, she should know even better than I, that the father will not hesitate to bring the matter back before the courts. Indeed there is a certain hypocrisy on her part in complaining about the proceedings in this court in a situation where I have been so critical of her for many of the actions that contributed to the commencement of these proceedings. Of course the mother does not have an exclusive franchise on hypocrisy or lack of insight in this case.
He also recorded:
132.Notwithstanding all of these matters, I am confident that the mother will become more inclusive in her decision making in the future. An order for equal shared parental responsibility has been made, even if, from the mother’s perspective, it was probably a tactical move on her part. I believe the mother will learn the lessons to be learnt from this litigation, particularly in terms of her own accountability for parental responsibility such as in regards to s.60CC(3)(c) issues. Perhaps the most potent incentive to become more inclusive, however, is the realisation that failure to do so will warrant more litigation. I am convinced that she loves her children and will do what it takes to protect them from the consequences for them of more litigation.
His Honour further explored this issue and recorded:
133.In any event, can I be confident that even if the mother does not change her ways, the children will continue to have a close and continuing relationship with the father? I am confident about this because the children’s relationship with their father has such a solid foundation.
I am confident about this because the expert’s evidence was that [the child H] said to her mother, in the expert’s presence, that she does not ring her mother sometimes because they are having such a good time. From this the expert concludes that [the child H] is completely confident that her mother is supportive of the relationship with the father. This conclusion was not challenged and I accept it.134.The mother should not regard my confidence in her as licence to contravene orders of the court, or ignore any of her responsibilities as a parent under the Act. Indeed I intend to make an order of the courts own motion that if there are any subsequent proceedings in relation to these children, whether in relation to enforcement, variation, interpretation or implementation of these orders, the proceedings should be listed in the first instance before me. This of course does not prevent either parent from asking that I disqualify myself from hearing such further proceedings. It does not prevent appeals. It may not even prevent an application to another court having jurisdiction under the Act. What this may well achieve however, is assist in the more timely and efficient resolution of future conflicts, and create a greater sense of accountability for the parents.
In our view, his Honour’s conclusion was adequately explained by him in the passages set out above. Also relevant in that context is the earlier passage in his Honour’s judgment to which we have referred with respect to the relationship between the children and their father (pars 80 & 81). What more could usefully have been said is difficult to imagine.
The third challenge contained in this Ground falls within the ambit of Ground 11 and will be dealt with in that context.
Ground 9
Ground 9 provided:
9.That his Honour erred in his discretionary judgment as a consequence of failing to take into account and afford proper weight to the views expressed by the children as to their desire to reside with the appellant in Sydney.
In support of this challenge it was submitted:
52.This matter dovetails with Ground 8.1 above: that his Honour gave inadequate reasons as to why he would not accept any of the children’s expressed views, and in particular the unchallenged evidence of the father and his partner that the children said they wanted to live with him in Sydney.
53.The unchallenged evidence before the Court was that the children told both he and his partner that they wanted to live with him in Sydney ( refer Footnote 12). Yet, not only does his Honour give no reasons for why he would place no weight on views expressed by the children untainted by the mother’s influence, but in ignoring the unchallenged evidence of the father and his parents, his Honour’s discretion miscarried.
It is unnecessary to say much more in relation to this challenge than we have in addressing earlier challenges. Given the matters to which the learned Federal Magistrate clearly referred in the paragraphs to which we have referred above, and the single expert’s evidence in relation to the children’s wishes, which was not supportive of the father’s case, we are not persuaded that the learned Federal Magistrate’s discretion miscarried by not accepting the evidence of the father and his partner as to what the children said were their wishes.
Ground 10
Ground 10 provided:
10.That his Honour erred in finding, and gave inadequate reasons to explain what, if any, physical needs of the children that the father needed the assistance of another adult to meet, and in those premises (needs and assistance) erred in his findings of fact and in his evaluation of the evidence of each of the appellant and [Ms M] leading to his conclusions, wrongly, that:
10.1 their evidence was necessarily in conflict;
10.2[Ms M] would not be available to provide assistance and support for the children in the way the single expert had understood;
10.3that his Honour's erroneous views of their evidence was relevant in assessment of the credit of each of them;
10.4concluding that there was no evidence to indicate that [Ms M] will in fact move into the appellant's home; and,
10.5that the appellant exaggerated the nature of his relationship with [Ms M].
And further in circumstances where the thrust of the relevant conclusion was neither put to either the appellant or [Ms M] as part of the respondent's case and he ought have regarded such findings as unavailable to him.
A number of submissions were advanced on behalf of the father in support of this challenge. In our view however, the short and fatal response to those submissions is, as submitted by Senior Counsel for the mother, that the evidence before the Federal Magistrate left “as obscure what the relationship [between the father and Ms M] was and in effect her involvement in the children’s lives. The nature of their relationship is not clear from their affidavit material either”. The matters submitted by Senior Counsel for the mother in paragraph 24 of his Outline of Submissions provide further support for so concluding. Moreover, these challenges are in our view based on a false premise. Having not made a finding, or findings, in the terms articulated in this ground, no question of explaining such finding, or findings, arose. Not explaining something which required no explanation does not constitute appealable error.
The learned Federal Magistrate recorded with respect to the relationship between the father and Ms M:
112.I find that the father is exaggerating the nature of his relationship with [Ms M]. It is by no means clear to me what, in reality, is the nature and extent of [Ms M]’s involvement in the father’s household, and therefore, to that extent, her involvement in the children’s lives. A comparison of the father’s evidence at p 48 of the transcript, to [Ms M]’s evidence at pp 73-74, leaves the court mystified. Were they in fact giving evidence about the same relationship?
This challenge does not, and could not, successfully assert that the learned Federal Magistrate erred in fact in finding as he did in this paragraph. The comprehensive submissions of Senior Counsel for the father do not identify in what way his Honour’s finding of fact is asserted to have been erroneous, or not reasonably open to him. The complaint appears to be that the learned Federal Magistrate attached significance to the uncertainty to which he referred (in para 112) within the context of section 60CC, when the evidence to which Senior Counsel for the father referred in this context did not support so doing. We cannot accept that assertion.
We have not been referred to any aspect of the learned Federal Magistrate’s reasoning with respect to the best interests of the children in which the finding with respect to the relationship of the father and Ms M has been impermissibly relied upon to the detriment of the father.
His Honour revisited the topic in para 145 of his Judgment where he said:
145.Despite the voluminous evidence of the father there was, surprisingly, scant evidence about the proposed detailed arrangements for the care of the children should they live with him. I do not know, therefore, who would get them up, ready for school, and sent to school. I do not know who would collect them after school and feed and bathe them, get them to bed etc. I know that [Ms M] has been involved in their care in the past, but as I have indicated elsewhere, the true nature and extent of the father’s relationships with her, and therefore the extent to which she will be involved in the children’s lives, is unknown to me. These are surprising gaps in the father’s case. True it is that what scant evidence there is was not challenged in cross-examination, but the problem is not the evidence he gives, but rather the evidence he does not give. It is particularly surprising that this detail is missing given the amazing detail of much of the fathers’ other evidence. As against this, however, the expert does not have serious concerns about the father’s capacity to provide for their physical needs. Nonetheless it is a concern that I have, and it is a consideration I am required to have regard to.
None of the findings there recorded is asserted to have been other than reasonably open to his Honour. As his Honour recorded, the topic was relevant to his deliberations pursuant to s 60CC in relation to the extent to which Ms M was likely to be “involved in the children’s lives”, as was the “surprising” absence of such detail against a background of “amazing detail” in much of the father’s other evidence. It has not been established that the learned Federal Magistrate’s findings of fact were erroneous, nor that he attached undue significance to those findings. We thus find this challenge lacks merit.
Ground 11
Ground 11, which was probably the major challenge agitated on behalf of the father provided:
11.That His Honour erred in principle in:
(a)his approach to the evaluation of relevant factors as a consequence of his Honour's failure to take into account and evaluate all relevant matters rather than to consider issues identified by the statute severally and then to dismiss the relevance of those that he determined were not, relevantly, a determinative consideration;
(b) Failing to follow the statutorily mandated pathway when considering the matters before him;
(c) further to (b) above, in concluding that equal time, or other form of shared care was not in the best interests of the children and not reasonably practicable.
Rather than attempt to paraphrase them, the submissions of Senior Counsel for the father in support of this challenge asserted:
63.In the Reasons commencing # 119, his Honour takes a “tick-and-flick” approach to the s60CC considerations, discarding many as not determinative of the issues. Of course, some s60CC considerations will have greater relevance in the facts and circumstances of individual cases. But, s60CC requires the Court to consider all of the factors therein, and not to simply discard the considerations which are “not determinative”.
64.The problem with taking the approach that his Honour did is that (a) it is not clear which factors were, in fact, determinative, and (b) rather than considering all the statutorily relevant factors (even noting some will have greater prominence than others) his Honour discarded various of the factors which he was required to not only consider, but apply to his ultimate best interests, s60CC, findings.
65.For example, at #123, under the s60CC sub-heading of “Nature of the Relationships”, his Honour determined that “The best way to preserve the good relationships that exist all around is to either maintain the current orders, or accept the mother’s proposal.” In ruling out, in all practical senses, the father’s proposal at this point his Honour, (a) fails to properly assess the father’s proposal in the light of all of the s60CC factors, and (b) evidently places such weight on this single criteria that the other s60CC considerations which he must assess by reference to the competing proposal and the children’s best interests fall away.
66.At #158, his Honour then picks up only three s60CC factors to consider, as required having made an ESPR Order, whether equal time is in the children’s best interests. His Honour does not take into account the totality of those considerations as he was required to do. His Honour, at #160, rules out substantial and significant time on the father’s proposals as “not in the best interests of the children for the reasons I have previously articulated.” But having taken a ‘tick and flick’ approach to the s60CC factors it is impossible to discern which reasons his Honour refers to and how his Honour reached that conclusion.
67.Allied to the flawed approach his Honour took to the s60CC factors as identified above is his Honour’s failure to follow the statutorily mandated procedure and order for consideration of the matters before him.
Having regard to the decision of the High Court in MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424, it was submitted that the learned Federal Magistrate had impermissibly departed from the “process or pathway” which the High Court in MRR (supra) said the legislation imposed.
The pathway which his Honour should have observed was asserted to have been:
69. …
a)The court's power to make a parenting order is subject to s61DA(see S65(1)), hence the court is obliged to commence its consideration of any parenting order by the application of the presumption in s61DA(1);
b)The evidence before the court may require it to next consider whether [sic] the existence of "abuse" or "family violence" and if either exists, then to consider whether the presumption is rebutted (s61DA(2));
c)Further, or in the alternative, s61DA(4) requires the court to consider whether the evidence is such that the presumption ought to be rebutted in the best interests of the child or children. The Act requires the enquiry to be conducted by reference to the factors set out in s60CC. It may be noted that at this stage at least, the enquiry as to "best interests" is not an enquiry at large as to the best interests of the child or children, but an enquiry as to whether the application of the presumption is in the best interests of the child or children;
d)If the presumption is not inapplicable nor rebutted or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s65DAA) then proceed to:
i)Make findings as to whether the subject children's best interests are best met by an order for equal time; and
ii)Make findings as to the matters prescribed in s65DAA(5) and as to the reasonable practicability of an equal time order;
iii)If the court reaches a determination, either that equal time is not in the best interests of the child or children, or that equal time is not reasonably practicable, the court is then required to conduct the same process of consideration in relation to the question as to whether a substantial and significant time order should be made (see s65DAA(3));
iv)If neither an equal time order nor a substantial and significant time order should be made the court is obliged to proceed to determine the orders which the earlier findings point to being in the subject children's best interests (see s65D; s6OCA; s65AA);
e)If the presumption is inapplicable or rebutted and such an order should not otherwise be made, the court is directed to make findings about the best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s65D; s6OCA; s65AA). That enquiry has been described by the Full Court in Goode as an enquiry about best interests "at large".
The learned Federal Magistrate was submitted to have erroneously proceeded by:
72.After dealing with the non-evidence research, the s136 ruling, issue estoppel, the evidence of the expert, then the parties, his Honour determined the matter by the following approach:-
72.1Erroneously considering the best interests of the children by reference to s6OCC matters but without first placing that consideration within the context of the statutorily directed enquiry such as under s65DAA (Reasons at #119-156);
72.2In the context of that unfocused consideration of best interests, his Honour further departed from the mandated procedure by erroneously predetermining at #123 that "the best way to preserve the good relationships that exist all round is to either maintain the current orders or accept the Mother's proposal” and thereby predetermined issues required to be considered in a specifically structured order and manner by s65DAA;
72.3Noting the parties agreed on ESPR and considering the other options as unsuitable (Reasons #157);
72.4Considering equal time but finding it neither in the best interests of the children, specifically by reference to ss6OCC(3)(c), (f) and (i), nor reasonably practicable (Reasons #158). In reaching that finding his Honour was by that stage of his Reasons constrained by the earlier unfocused consideration of best interests;
72.5Considering the Father's proposal for the Mother to have significant and substantial time, but finding that to be neither in the children’s best interests nor reasonably practicable with one reason being the Mother will not move to Sydney (see submissions on this ground above) (Reasons #160). Again, his Honour's consideration of whether substantial time was in the best interests of the children was constrained by his Honour's earlier premature unfocused consideration of best interests "at large";
72.6Considering the Mother's proposal not to be substantial time but even if it were "it is both in the children's best interest and as reasonably practicable as it can be" (Reasons #161);
72.7Finding that the Mother's proposal is in the best interests of the children and reasonably practicable once [the child H] turns 12 (Reasons #164) (the 12 year old issues is the subject of a separate ground of appeal).
The crux of this challenge, as paragraph 73 of Senior Counsel for the father’s Summary of Argument confirms, was that the learned Federal Magistrate erred by concluding (at para 123 of his Reasons for Judgment) what arrangements for their care were in the children’s best interests prior to a consideration of any matter mandated to be considered pursuant to s 65DAA. His Honour was thereby submitted to have made orders which were beyond power, in the light of what was submitted to be the effect of the High Court’s decision in MRR (supra).
It was ultimately submitted in support of this challenge:
75.There is a clear legislative intention that where the presumption applies, a court ought to consider the matters under s65DAA in the order there prescribed. If the court does so, there is at best initially, no occasion for there to be a consideration of best interests "at large" but rather a consideration of particular more focused questions in light of the best interests of the children.
On behalf of the mother it was submitted that whilst the decision of the High Court in MRR (supra) left little scope for doubt as to the “pathway” to be followed as a consequence of the maintenance of the statutory presumption of shared parental responsibility, nothing emerging from the decision of the High Court in that case imposed or suggested a specific “pathway” by which, and only by which, consideration of s 65DAA and s 60CC factors could be approached. It was submitted that the learned Federal Magistrate had not erred in his approach by addressing matters relevant by virtue of s 60CC of the Act prior to considering s 65DAA. Nor, it was submitted, did that process involve any pre-empting of s 65DAA considerations.
There is no doubt that the High Court in MRR (supra) made clear that having, in the circumstances of this case, preserved joint parental responsibility, the Court was obliged to consider whether the children spending equal time with both parents was in their best interests and reasonably practicable and, if it was found to be, to consider making an order so providing. If such an order was not in the children’s best interests and reasonably practicable, the Court had then to consider whether spending substantial and significant time with the parents would be in their best interests and reasonably practicable, in which case the Court should consider making such an order.
It is not in doubt that the learned Federal Magistrate in this case considered whether the children should spend equal time with both parents (para 158). For the purposes of such deliberations his Honour relied upon the findings of fact which he had made previously by reference to the various provisions of s 60CC. His Honour concluded that so doing would be “neither in the best interests of the children, nor reasonably practicable”. His Honour explained why that was so. He concluded, consistently with s 65DAA and the High Court’s judgment in MRR (supra), that in those circumstances he could not consider making an order for equal time.
His Honour then proceeded to consider the children spending substantial and significant time with each of the parents. His Honour recorded that the father’s proposal was for substantial and significant time, and that the mother’s proposal “probably does not come within the definition of substantial and significant time” for reasons which he explained (para 159).
The learned Federal Magistrate concluded that the father’s proposal for the mother to have substantial and significant time with the children was “neither in the children’s best interests, nor is it reasonably practicable” having regard to the matters to which he then referred (para 160).
Whilst reiterating that the mother’s proposal “probably suffers from not meeting the requirements” of substantial and significant time (para 161), if it did meet those requirements, for reasons which he explained, the learned Federal Magistrate found such proposal to be “both in the best interests of the children and as reasonably practicable as it can be” (para 161). His Honour then proceeded to consider a number of specific aspects of the mother’s proposal.
The written and oral submissions of Senior Counsel for the father essentially assert that the learned Federal Magistrate erred by making the s 60CC findings he did in isolation from s 65DAA. For our part, we struggle to see how, without having made findings of fact with respect to the matters made relevant to the welfare of the children by s 60CC of the Act, his Honour could meaningly engage with s 65DAA. Even if, as the submissions of Senior Counsel for the father seem to suggest, his Honour should have commenced his considerations with s 65DAA, the wording of the section makes clear that he would shortly thereafter have needed to refer to s 60CC before being able to properly determine the matters made relevant to s 65DAA with respect to equal time and/or substantial and significant time.
We are not persuaded that anything in the High Court’s decision in MRR (supra) rendered erroneous the learned Federal Magistrate’s approach to the determination of the proceedings before him. Nor are we persuaded that it was other than reasonably open to his Honour to make the findings of fact he did by reference to the various provisions of s 60CC before directing his attention to the provisions of s 65DAA. As will be seen, the issue is whether so doing impermissibly precluded a proper consideration of s 65DAA.
At least inferentially, Senior Counsel for the father asserted that, by approaching the matter in the way he did, the learned Federal Magistrate concluded, in the context of s 60CC, matters which he should properly have considered within the context of s 65DAA, or impermissibly pre-empted such consideration. To evaluate those complaints, it is necessary to have regard to what his Honour actually said. As is not in doubt, the learned Federal Magistrate considered “the best interests of the child” before considering s 65DAA. The issue is whether, in so doing, his Honour prejudged matters which ought to have been determined within the context of s 65DAA.
For reasons which he articulated, the learned Federal Magistrate concluded that there were no “past or present circumstances that create concerns about the need to protect the children from the types of harm contemplated by s 60CC(2)(b)”. His Honour further quoted that “the real risk” to the children and “real harm that they need to be protected from, is the consequences to them of the continued conflict between their parents”. His Honour’s concluding remark (para 121) that he did not regard the consideration of “protecting the children from harm” as a “determinative one” was clearly referrable only to “best interests” within the context of s 60CC. It could not reasonably be read as determinative of the practicability of equal or substantial and significant time.
For the reasons which he also articulated (para 122), which we have earlier recorded, the learned Federal Magistrate placed no weight on the evidence before him as to the views of the children. The statement by the learned Federal Magistrate that his finding with respect to the views of the children was not a “determinative consideration” can only be seen as referrable to a consideration of the children’s best interests within s 60CC, and in no way impacting upon the determination of issues requiring determination within the context of s 65DAA.
Under the heading “Nature of relationships”, the learned Federal Magistrate found that the mother had been the primary carer of the children “throughout their lives, and that they are strongly attached to her” (para 123) whilst having a “good strong attachment with their father” (para 123) as well as good relationships with Ms M and the father’s other children. His Honour recorded that the mother’s proposal involved little or no impact upon the children’s relationships with any of the father, Ms M, the child L or the child A. The father’s proposal however was found to involve a “significant change” in the children’s relationship with their mother, particularly as the father’s proposal, if adopted, would mean that the mother was no longer the children’s primary carer and the father would be.
His Honour’s conclusion that this was “a weighty consideration but not determinative on its own” cannot be seen as a conclusion with respect to equal, or substantial and significant time. Nor can his Honour’s conclusion that “the best way to preserve the good relationships that exist all around is to either maintain the current orders, or accept the mother’s proposal”. The learned Federal Magistrate was doing no more and no less than recording, as the Act required him to, his conclusions with respect to the nature of the children’s relationships with relevant adults and others, and the factual basis of them.
Under the heading “Willingness and ability to facilitate and encourage close and continuing relationships”, the learned Federal Magistrate recorded his findings with respect to the evidence before him in relation to matters falling within that provision of s 60CC. His Honour recorded in that regard his “concerns” about the father’s capacity to encourage the children’s relationship with the mother if the father’s proposals for the children’s care were accepted, and the reasons for them. His Honour reiterated (at para 127) that he had been “quite scathing about the mother in my reasons about actions and omissions on her part that led to real concerns in my mind about her willingness and ability to foster the children’s relationship with their father”. He then referred to the absence of evidence before him as to the father’s relationship with the children being other than “close and continuing”, whatever the mother had done or not done. The learned Federal Magistrate then considered whether or not he could be “confident that, even if the mother does not change her ways, the children will continue to have a close and continuing relationship with their father” (para 128). That question was explored in some detail (pars 129-132), after which his Honour expressed his qualified confidence that the mother could “change her ways” but that even if she did not, the children would continue to have a close and continuing relationship with their father because their current relationship with him “has such a solid foundation” (para 133).
The learned Federal Magistrate ultimately concluded that whilst the willingness and ability to facilitate and encourage close and continuing relationships was “an important consideration in the case”, it was not “determinative in favour of the father”. As with his Honour’s earlier use of the term “determinative”, it cannot reasonably be concluded that he thereby pre-empted a proper consideration of matters relevant by virtue of s 65DAA.
The “Likely effect of change” was then considered by the learned Federal Magistrate. Earlier in his Reasons, his Honour recorded:
76.The expert’s continuing concern about the mother and children remaining in [Town B] is a significant matter I need to weigh in the balance. And yet it is apparent from the evidence that the children and their mother are happy, settled and well-supported in [Town B]. The network of support extends beyond the maternal family, and includes the children’s schooling and social networks which are clearly important to them. In addition it is clear from the evidence that the mother does not wish to and will not move back to Sydney irrespective of the order that I make relating to the children.
…
78.The expert’s comment that I find most persuasive under this heading [‘The likely effect of each of the parties’] relates to [Town B], and living with their mother, being their primary base. The evidence sustains a finding that [Town B], and the children’s mother, is their primary base not just physically but psychologically and socially as well. In other words living at [Town B] with their mother is their home. This is not, of itself, a determinative factor, but it is an important one. The father’s proposal may well present the greatest impact in terms of change and disruption for these children. Nonetheless, this is but one consideration in this case.
For reasons which his Honour articulated (pars 137-9), he concluded the likely effect of change on the children to be an “important consideration in the case” which, whilst “not determinative” in its own right, favoured the mother’s proposal. As with earlier uses of this expression, this did not involve any impermissible pre-empting of a consideration of s 65DAA.
“Issues of practical difficulty and expense” were considered by the learned Federal Magistrate (pars 141-2). His Honour observed that the parties had “managed the significant logistical issues associated with the children spending time and communicating with their father” (para 141). It is not in question that the proposals of each party involved travelling between Town B and Sydney and that, subject to the matters to which his Honour referred (para 142) that was unlikely to change. Again, the learned Federal Magistrate recorded that this factor was “not determinative”. So saying did not involve any pre-empting of a consideration of s 65DAA, although his Honour’s findings in this context could, and did, inform his consideration of s 65DAA, which is specifically directed to “reasonable practicability”.
With respect to Senior Counsel for the father, if the learned Federal Magistrate had strayed from the “pathway” asserted by Senior Counsel for the father, it is in the context of the “practical difficulty and expense” of the competing proposals that one might have expected that to have occurred, given the logical nexus between that topic and “reasonable practicability”. Nothing referred to by the learned Federal Magistrate can be seen as “straying” onto the latter topic in any way.
The “Capacity of parents to provide for the needs of the children” was considered by the learned Federal Magistrate in some detail (paras 143-52). Having regard to the evidence to which he had earlier, and extensively, referred, his Honour was critical of aspects of the capacity of both parents. On balance, the findings of fact and conclusions of the learned Federal Magistrate in relation to this topic (para 146 in relation to the mother; para 152 in relation to the father) support his conclusion that this was not a “determinative consideration” within the context of s 60CC. No aspect of his Honour’s consideration of the topic involved pre-empting a consideration of s 65DAA.
Relevant “Lifestyle and background issues” were then explored by the learned Federal Magistrate. His Honour observed that there were “advantages and disadvantages” available to the children in the environments proposed by each of the parents. His Honour did not suggest that one lifestyle was preferable to the other (para 153), the matter of greater relevance being “the impact on the change of this lifestyle for the children” to which he had earlier referred.
The “Attitudes to children and to responsibilities of parenthood” were then considered. His Honour concluded, by reference to the evidence which he had earlier detailed, that both parties had “demonstrated irresponsible parenthood through their inability to trust each other, and communicate with each other” and demonstrated “immaturity as parents”, some examples of which he then provided. The learned Federal Magistrate found the parenting of both parents to be “suboptimal”, a consideration which was “not determinative”. Again, his Honour did not thereby pre-empt any conclusion with respect to s 65DAA.
“Family violence” was not considered to be a matter of significance in determining the children’s best interests pursuant to s 60CC (para 155), nor were the ‘Orders least likely to lead to further proceedings” (para 156).
For reasons which do not now assume significance, the parties were to have equal shared parental responsibility. His Honour observed, correctly, that he was thereby required to consider equal time or substantial and significant time pursuant to s 65DAA. Against the background of a thorough consideration of s 60CC, the learned Federal Magistrate turned to consider “equal time or substantial and significant time”.
Although neither party sought equal time, his Honour, consistent with the High Court’s decision in MRR (supra) considered that possible outcome. The learned Federal Magistrate then explained why he did not consider equal time to be “reasonably practicable”. As we have earlier observed, his Honour had not previously specifically engaged with that topic in his Reasons. He had however made findings of fact which informed his later consideration of the issue in the context of s 65DAA. Having regard to the competing proposals, to which his Honour had earlier and extensively referred, why equal time was not reasonably practicable was readily apparent, and no more needed to be said about that than his Honour did.
His Honour then turned to consider substantial and significant time and concluded that the father’s proposal, which was that the mother have substantial and significant time, was not in the children’s best interests, nor reasonably practicable. Why his Honour concluded the father’s proposal not to be in the children’s best interests is not in doubt having regard to his earlier, and extensive, findings and conclusions with respect to s 60CC. The reasons why equal time was not reasonably practicable were also relevant to the father’s proposal for substantial and significant time.
The learned Federal Magistrate then considered the mother’s proposal, first on the basis that it did not constitute substantial and significant time, then on the basis that it did. His Honour explored in some detail the implications of the mother’s proposal (para 162). As his Honour ultimately recorded (para 165), his conclusion with respect to the mother’s proposal was the same, whether or not it constituted “substantial and significant time” within s 65DAA, and represented the outcome which he considered to be in the best interests of the children.
Nothing to which we have been referred, either by way of authority, or by reference to the manner in which the learned Federal Magistrate determined the proceedings before him demonstrates appealable error. His Honour carefully considered all of the matters which he was obliged to, both with respect to s 65DAA and s 60CC. We are not persuaded that the sequence in which his Honour considered those matters was erroneous. Indeed, we struggle to see how else he could have satisfied the requirements of s 60CC and s 65DAA.
Ground 12
Ground 12 provided:
12.His Honour erred in concluding that the children were unable to cope with adjustment arising from a move to Sydney where:
12.1 there was a lack of evidence to support the conclusion; and,
12.2he failed to take into account the respondent's concessions in cross examination to the contrary.
In his Reasons for Judgment (para 138) the learned Federal Magistrate said:
138.The father’s proposal will bring about significant change in the children’s circumstances. The expert’s evidence indicates that [the child H] would miss her school and her friends. The children would move from the country to the city. They would move away from the home, farm and the community that they have known for 5 years. The children would probably cope with these physical changes, probably after a period of adjustment. That does not detract from the issue as to whether such a significant change in the lives is in their best interests, and the paragraph emphasises the likely effect of separation on the children. The father’s proposal means greatly reducing the mother’s involvement in the children’s lives, even if she were to spend time in Sydney. It reduces the children’s involvement with the maternal family as well. These are important relationships for the children. Both the expert, and even the father, acknowledge in particular the closeness of the children’s relationship with their mother, and the impact on them of greater separation from her.
It was submitted that his Honour was in error in so concluding, and that the evidence of the father was “actually equivocal” in relation to the topic.
The logic underpinning this complaint is flawed. The finding of the learned Federal Magistrate that the children would “probably cope” with the physical changes involved in the father’s proposals was favourable to him, particularly having regard to how long the children had lived with the mother at Town B, and at what age they had commenced to do so.
Even if one accepts that the evidence of the father was “equivocal” in the way asserted on his behalf, nothing to which the Court has been referred establishes that his Honour erred in finding that the single expert acknowledged “the closeness of the children’s relationship with the mother and the impact upon them of greater separation from her”. Nothing to which we have been referred persuades us that the learned Federal Magistrate’s determination of the children’s best interests was erroneous. We thus find no merit in this challenge.
Ground 13
Ground 13 provided:
13.That his Honour erred in taking into account, as an apparent negative to the case of the appellant, the lack of evidentiary detail of his proposed daily routine for the children in circumstances where it ought have been apparent that such matters were not seriously an issue in the trial.
This topic has largely been referred to earlier. It can be simply disposed of.
As was submitted by Senior Counsel for the mother, the father having adduced no evidence in relation to these matters, it is unsurprising that competent and experienced Senior Counsel would not have cross-examined him on it, and thereby risked curing the deficiencies in the father’s evidence.
As we have earlier recorded, it has not been established that the learned Federal Magistrate mistook or otherwise erred in relation to the evidence, or its absence, as to the father’s proposed arrangements for the primary care of the children. As is also clear, the learned Federal Magistrate’s conclusions with respect to the children’s best interests were amply supported by the other factors upon which he relied.
As we have also earlier recorded, the learned Federal Magistrate’s reliance upon the absence of evidence with respect to the father’s proposals for the daily care of the children was more sophisticated than the submissions of Senior Counsel for the father recognise. Whatever “negative” this factor represented for the father’s case, it did not weigh significantly in the determination of the proceedings, and was clearly overshadowed by other factors to which the learned Federal Magistrate had regard. We do not need to restate these matters. We do not find merit in this challenge.
The Notice of Contention
Given that no ground of appeal raised by the father has been successful, it is unnecessary to refer to the mother’s Notice of Contention. It does, however, potentially assume significance with respect to costs.
Costs
It was, sensibly in our view, conceded by Senior Counsel for the father that if his appeal failed, an order for costs on a party and party basis as agreed or assessed would be appropriate.
What remained controversial, however, was the impact of the mother’s Notice of Contention if, as transpired, the father’s appeal was unsuccessful. Given that no challenge raised on behalf of the father has been successful, it has been unnecessary for us to consider the Notice of Contention, and we therefore cannot meaningfully conclude whether it would have been successful or unsuccessful.
It was submitted by Senior Counsel for the father that the father paying 90 per cent of the mother’s costs would properly reflect the costs incurred on behalf of the father in resisting the Notice of Contention. That proposition was disputed by Senior Counsel for the mother.
In our view, the mother’s entitlement to an order for costs ought not be reduced by reference to the Notice of Contention. The plain fact is that the father has been wholly unsuccessful in his appeal to this Court. No significant time was taken up at the hearing in relation to the Notice of Contention. No written submissions on behalf of the father addressed it. We cannot conclude that, if it had been necessary for the mother to rely upon it, the Notice of Contention would have been rejected. The appropriate Order in our view is that the mother’s entitlement to an order for costs not be reduced by reference to the Notice of Contention.
I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray and Loughnan JJ) delivered on 6 May 2011.
Associate:
Date: 06.05.11
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