SEARLE & MELLOR
[2017] FamCAFC 46
•27 March 2017
FAMILY COURT OF AUSTRALIA
| SEARLE & MELLOR | [2017] FamCAFC 46 |
| FAMILY LAW – APPEAL – CHILDREN – Inadequate reasons – Where the mother appeals against interim parenting orders which removed the previously ordered supervision of the children’s time with the father – Appeal allowed – Orders set aside – Application for interim parenting orders remitted for rehearing – Costs certificates for the appeal granted. |
| Family Law Act 1975 (Cth) ss 60CC, 94AA |
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Regulations 1984 (Cth) reg 15A(1)(a)
A v J (1995) FLC 92-619
Bennett & Bennett (1991) FLC 92-191
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
| APPELLANT: | Ms Searle |
| RESPONDENT: | Mr Mellor |
| FILE NUMBER: | PAC | 1613 | of | 2014 |
| APPEAL NUMBER: | EA | 85 | of | 2016 |
| DATE DELIVERED: | 27 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ainslie‑Wallace and Hogan JJ |
| HEARING DATE: | 21 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 May 2016 |
| LOWER COURT MNC: | [2016] FCCA 1745 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Murphy |
| SOLICITOR FOR THE APPELLANT: | CBD Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Hill |
| SOLICITOR FOR THE RESPONDENT: | Farah Lawyers, Solicitors & Barristers |
Orders
That the appeal be allowed.
That Orders 1, 3, 4, 5 and 6 of the orders made by Judge Newbrun on 17 May 2016 be set aside.
That the applications for interim parenting orders be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Newbrun.
There be no order as to costs.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Searle & Mellor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 85 of 2016
File Number: PAC 1613 of 2014
| Ms Searle |
Appellant
And
| Mr Mellor |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed on 16 September 2016, the mother appeals, as of right,[1] against certain interim parenting orders (Orders 1, 3, 4, 5 and 6) made on 17 May 2016 by Judge Newbrun in respect of the parties’ children, X, born in 2004, and Y, born in 2009.
[1]Family Law Act1975 (Cth) s 94AA; Family Law Regulations 1984 (Cth) reg 15A(1)(a).
The children’s father opposes the appeal.
What do the Orders the subject of appeal provide?
The Appellant appeals Orders 1, 3, 4, 5 and 6 of the May 2016 Orders. These Orders:
a)discharged an Order made by consent on 23 September 2014 - which, amongst other things, provided that the children spend supervised time with their father; and
b)provided that the children spend unsupervised time with their father from 2.00 pm until 5.00 pm on Saturday 21 May 2016 and Saturday 28 May 2016 and, commencing on Saturday 4 June 2016 (and continuing each alternate Saturday thereafter), from 11.00 am until 5.00 pm; and
c)provided that the parties’ oldest child Z (now an adult) not be present during the time the children spend with their father; and
d)provided that changeover occur outside the ticket office of B Railway Station.
Uncontentious matters and concessions
It is an accepted fact that the issue of the forum for changeover was not the subject of any discourse between the primary judge and either of the parties’ legal representatives during the hearing. The first that either of the parties knew of such a prospect was when the Orders were pronounced and the Reasons for Judgment delivered. Clearly, neither party was afforded the opportunity to be heard in respect of Order 6 of the Orders made 17 May 2016 and, consequently, neither was afforded procedural fairness in relation to this Order.
Further, there is nothing at all in the Reasons for Judgment, delivered in support of the Orders, which addresses this Order at all. Consequently, neither the parties to the appeal nor the Court are able to ascertain the reasoning upon which the decision is based nor, for this reason, could it be thought that justice has been seen to have been done. Lest it be thought that this was a matter of little consequence, it needs to be explained that the orders giving rise to the forum for changeover were orders that provided for the previous orders whereby contact was at a supervised contact centre to be discharged. Central to the issue regarding contact arrangements was the mother’s case that there should be some form of supervision and her evidence of a relationship with the father characterised by allegations of family violence and his use of illicit substances. His Honour having determined to vary the orders to provide for unsupervised contact, the manner in which changeovers would safely occur became of some importance.
For these reasons, the appeal against Order 6 of the Orders made 17 May 2016 must succeed.
To the extent that the Amended Notice of Appeal contains other grounds asserting a denial of procedural fairness, these were not pressed by Counsel for the Appellant.
In any event, save for the matter just addressed, we are not persuaded that the primary judge failed to afford the parties procedural fairness in the manner in which he heard the Respondent’s application for interim parenting orders. Reference to the transcript of proceedings[2] makes it clear that both parties were fully aware of what was to be heard by his Honour that day: the solicitor for each party had prepared for such a process, including via the preparation of written Outlines which each provided to the Court.
[2] Transcript of proceedings 11 May 2016, page 2, lines 11 – 25.
Accordingly, the grounds asserting a general denial of procedural fairness must fail.
Issues before the judge
The significant issue confronting his Honour on 11 May 2016 was whether the children’s best interests required a continuation of the imposition of supervision over their time with their father. Such supervision was the consequence of an interim parenting order made by consent on 23 September 2014, which Order also required that the father submit to chain of custody urinalysis.
Before the primary judge, the father’s position was that the children should spend unsupervised time with him on a gradually increasing basis in the manner particularised in a Case Outline filed 11 May 2016.
Relevantly, the mother’s position was that the children’s time with their father should remain supervised and occur at the S Contact Centre for two hours per fortnight. She also sought that, subject to the availability of the parties’ adult eldest daughter Z and subject to Z and her father reaching agreement about venue, the children have the opportunity to spend additional time with their father in a public place for two hours, with such time to be supervised by Z. The mother also sought orders that the father attend for a mental health assessment and undergo random urinalysis.
The primary assertion underpinning the Orders sought by the mother was that the children’s safety required the ongoing imposition of supervision over their time with their father: whether within the confines of a Contact Centre or under the auspices of their older sister. Underpinning this contention was the mother’s evidence that the father had used illicit substances during their relationship and had perpetrated family violence toward her over many years.
What were the circumstances within which the primary judge was called on to determine whether the children’s time with their father should continue to be supervised or not?
At the time his Honour heard the application for interim parenting orders, the father was 40 years of age and the mother 39 years of age. They had married in Country A in 1995 and separated in 2013: whilst the parties differed about the date on which they separated, resolution of this dispute was unnecessary for the determination of the competing parenting orders applications and remains unnecessary for the determination of the appeal.
The children remained living with their mother at separation. On 8 April 2014, the father filed an Initiating Application, by which he sought orders for time with the children.
On 23 September 2014, interim parenting Orders were made by consent. As noted, these provided that the children live with the mother and spend time with their father at D Contact Centre. By the terms of this Order, the father agreed to submit to chain of custody urinalysis. Such order arose in circumstances where the mother contended that the father had previously used illicit substances during their relationship and she retained a belief that he continued to use such substances. Her case also involved assertions that the father had perpetrated family violence toward her, to which the children had been exposed on various occasions, during much of their relationship.
Despite the terms of the September 2014 Order and the submissions made by the father’s solicitor that the father had done “maybe around five” urinalysis tests, none of these were in evidence before his Honour.
On 6 June 2015, the father started to spend supervised time with the children at the Contact Centre. Prior to this, he had not spent regular time with the children since separation.
The parties and children participated in interviews for a Family Report on 11 July 2015. At that stage, the children had spent no more than two supervised visits with their father. The Report, dated 31 July 2015, contains the writer’s opinions about each of the children, the parents, their functioning and insights, their parenting capacity and interactions. It also contains the writer’s recounting of information provided by the father’s partner and an opinion about her potential role as an ally in keeping the children safe during any time with their father.
Even with this, the recommendations contained in the Report included that the children spend supervised time with their father for two hours each alternate weekend, that the father continue to undertake urinalysis for the next 12 months and engage with a clinical/neuro-psychologist in regard to his mental state and that the mother be screened for ongoing depression and possible Post Traumatic Stress Disorder.
On three occasions in total (in October 2015 and during the Christmas holiday period), the children spent some limited time with their father away from the Contact Centre. All of this time was either in the company of their older sister or spent riding their bikes on the road out the front of the mother’s home. Whilst his Honour remarked during discourse with the father’s solicitor that “the only time that the mother has allowed the father time with the children outside the contact centre is with the eldest daughter”,[3] the Reasons delivered on 17 May 2016 make no reference to this.
[3] Transcript of proceedings 11 May 2016, page 25, lines 27-28.
In February 2016, the father and the children’s older brother W (who had moved to live with the father in March 2015) were involved in a verbal incident at the Contact Centre with a person from the Contact Centre. As a consequence, the Contact Centre withdrew its services and the children’s supervised time with their father ceased. By the time the Contact Centre withdrew its services, the children had spent supervised time with their father there for about 15 occasions.
When the parties appeared before the Court on 11 May 2016, the father and his new partner had a then six month old child and were awaiting the birth of a second child.
Grounds of Appeal
The Amended Notice of Appeal contains numerous, repetitious Grounds of Appeal. Included within these is that the primary judge failed to provide adequate reasons for his decision to permit the children’s time with their father to occur on an unsupervised basis.
Given the fundamental requirement that the reasons provided are adequate enough to enable the parties and this Court to ascertain the reasoning which underpins the Judge’s decision and so that justice can be seen to have been done, we consider it appropriate to consider this challenge first.
The test to be applied in assessing whether, in any particular case, the reasons provided by a trial Judge are adequate in all the circumstances of that case is well known: reasons will be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based or justice is not seen to have been done. This is because a failure by a trial Judge to disclose sufficiently his or her reasoning denies an appeal court the opportunity to detect error and the ‘losing party’ the knowledge of why his or her case was rejected.[4]
[4]Bennett & Bennett (1991) FLC 92-191 where the Full Court of this Court adopted the test propounded by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8.
It is clear that it is not incumbent on a trial judge to make an explicit finding on each disputed piece of evidence (it being sufficient if the inference as to what is found is appropriately clear[5]). Further, the reasons provided need not be lengthy or elaborate and are not required to mention every piece of evidence, fact or argument relied on by parties as relevant to an issue[6] (because, if a failure to mention every fact and argument was evidence that the same had not been properly considered, reasons would become longer and longer[7]); in fact, when dealing with large bodies of evidence, economy and/or truncation of expression and approach may be required to coherently explain the resolution of an overall controversy.[8]
[5]Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA at 386.
[6]A v J (1995) FLC 92-619 at 82,233 referring to Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (supra) per Mahoney JA.
[7]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, Gleeson CJ, McHugh and Gummow JJ said at 464, [62].
[8]Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 per Allsop P (with whom McColl JA agreed) at [2].
However, and noting that appeal courts should guard against a ‘too zealous’ application of the requirement to give reasons, the essential grounds upon which the decision rests should be articulated. [9]
[9]A v J (supra) and the authorities to which reference is made therein.
In the present case, we are persuaded that that his Honour failed to articulate the “essential grounds” upon which he relied for a number of the determinations which underpinned his ultimate conclusion that it was in the children’s best interests for their time with their father to occur on an unsupervised basis.
We have arrived at this conclusion having regard to the following and for the following reasons.
Despite saying at [46] of his Reasons that he did not accept the Family Report writer’s views[10] regarding the need for the children to spend supervised time with their father, his Honour provided no explanation at all about why he declined to accept this assessment. This absence of explanation is made all the more difficult to understand in circumstances where his Honour accepted the Family Report writer’s “commentary” about the father’s new partner and regarded this, together with the partner’s evidence of her observations and assessment of the father and his presentation and functioning, as important in his determination.
[10]As expressed in the Report dated 31 July 2015.
Further we do not consider that his Honour engaged adequately with what the Family Report writer said. At [33] his Honour said “[t]he Family Report writer noted that the children and the father interacted well together at the interview for the Family Report for some 50 minutes: she refers to joking and pleasant interactions between the children and the father”. His Honour does not record that at paragraph 46 of the report the writer opined “[o]verall this was a benign and comfortable enough interaction for the children over approximately 50 minutes”. Ultimately, after discussing numerous factors including the views of the children about unsupervised contact with the father, the report writer recommended that the children’s best interests were served by “…limited contact with [the father] always in a safe and supervised environment. This does not have to be a contact centre.”[11]
[11]Family Report dated 31 July 2015 at paragraph 117.
Whilst it was, of course, open to his Honour to accept some parts of the evidence given by the Family Report writer and to reject other aspects of it, nothing in his Honour’s reasons explains the basis on which he determined to do so. In the absence of such reasoning, neither we nor, importantly, the parties, are able to ascertain why his Honour was seemingly prepared to accept and rely upon the Family Report writer’s assessment of the father’s partner but reject the writer’s overall opinion – expressed despite that assessment – that supervision of the children’s time with their father was necessary to address the issues raised by the mother and in light of the father’s presentation to, and interaction with, the writer during the interview process.
Additionally, whilst his Honour addressed what he described as the ‘meaningful relationship’ primary consideration (s 60CC(2)(a)) and the ‘need to protect’ primary consideration (s 60CC(2)(b)), the Reasons contain no reference at all to s 60CC(2A) of the Family Law Act1975 (Cth), by which the Court is directed to give greater weight to the s 60CC(2)(b) consideration. We are unable, therefore, to discern from the Reasons provided that his Honour in fact gave greater weight to this consideration in arriving at his decision to remove supervision from the children’s time with their father.
Further, whilst his Honour determined that the children “should not be” detrimentally affected, emotionally or otherwise, if they began to spend unsupervised time with their father during the day time, there is nothing in the Reasons to demonstrate how he arrived at this conclusion in circumstances where the evidence was that the Contact Centre had withdrawn its services because of the father’s behaviour (and that of his oldest son) there in February 2016.
In addition, whilst his Honour stated that he had “considered the police and other material touching upon this ‘need to protect’ primary consideration” in arriving at his conclusion that there was no unacceptable risk to the children if they spend unsupervised time with their father during the day, nothing in the Reasons identifies how the contents of the same were taken into account by his Honour in arriving at his ultimate determination.
A further example of the deficiency in the Reasons delivered by his Honour can be seen in the manner in which he addressed the issue of the mother’s assertion that the father continued to use illicit drugs, with the consequence that unsupervised time with him would place the children at risk of harm.
His Honour noted that the parties were in dispute about this issue, that the mother’s allegations in this respect lacked particularity and that the father had told the Family Report writer he believed he had last used illicit drugs (including marijuana and Xanax) in 2006. However, nothing in the Reasons demonstrates how his Honour dealt with the fact that the contents of the police documents in evidence before him established – without doubt – that, on 4 August 2012, the father had been apprehended for driving whilst under the influence of an illicit substance (later revealed to have been “presentmethyl amphetamine [sic]”) or that, during his apprehension, he told police that “I had a rough week and smoked some ICE”.
In fact, there is nothing at all in his Honour’s Reasons to inform that the father had in fact previously been apprehended driving a car under the influence of illicit substances: a reader of the same may well have been left with the strong impression that the issue about the father’s drug use rested only on the “unparticularised” assertions of the mother.
Similarly, no one reading his Honour’s Reasons would be alerted in any way to the fact that the July 2015 Family Report included the writer’s evidence that, when the parties’ oldest son, W, was assessed by a psychologist in November 2013, he described physical abuse of himself by his father.
Whether his Honour took this information into account – and, if so, how – in arriving at his ultimate conclusion that the children would not be at an unacceptable risk of harm if their time with their father was unsupervised is simply not apparent from the Reasons provided.
Further, no one reading his Honour’s Reasons would be alerted in any way to the fact that the July 2015 Family Report included the writer’s evidence that, based on the assessment of him at that time, the father remained unpredictable, emotionally labile and verbally labile.
Again, whether his Honour took this evidence into account – particularly given the contents of the Incident Report prepared by the Contact Centre about the incident on 13 February 2016 which described the father and W as becoming extremely aggressive and dismissive, telling the Centre Coordinator that they didn’t care what that person said and that no one would tell them what to do and as being both extremely agitated in tone and manner (which was different to their previous presentations, when they were described as normally being very pleasant and polite), using extremely loud voices and screaming profanities as they left the Centre after being told that contact was not going to occur because they were too aggressive to see the children – in arriving at his determination that the children would not be at an unacceptable risk of harm if they spent unsupervised time during the day with their father is not discernible from the Reasons.
Our conclusion as to the inadequacy of his Honour’s Reasons obviates the necessity to consider the other grounds of appeal relied upon by the Appellant.
Conclusion and costs
For the reasons outlined above, we have concluded that the appeal should be allowed and his Honour’s orders should be set aside. This will have the effect that the interim Orders made by consent on 23 September 2014 will remain in force until further order.
The matter will be remitted for hearing before a Judge other than Judge Newbrun.
Both parties sought that they receive certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal. We agree certificates for the appeal are justified and appropriate but are not persuaded to grant certificates for the rehearing of the interim application.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace and Hogan JJ) delivered on 27 March 2017.
Associate:
Date: 27 March 2017
2
2
0