SHEDDEN & COYLE
[2017] FamCAFC 179
•1 September 2017
FAMILY COURT OF AUSTRALIA
| SHEDDEN & COYLE | [2017] FamCAFC 179 |
| FAMILY LAW – APPEAL – PARENTING – Where the appellant sought orders that the children spend equal time with the parties and there be a change of schooling at the commencement of the 2016 school year – Where grounds of appeal are premised on conflicting assessments of matters of weight an appellate court will be slow to overturn a trial judge’s discretionary decision – Where a trial judge is not required to separately consider a factor relevant to a child’s best interests under both s 60CC and s 65DAA of the Family Law Act 1975 (Cth) – Where the trial judge took into account the best interests of the children in dismissing the application to change their school – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where counsel for the respondent and counsel for the Independent Children’s Lawyer sought orders for costs in the event that the appeal was unsuccessful – Where the father’s counsel did not oppose such orders being made – Costs orders made in favour of the respondent and the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) ss 60CC and 65DAA |
| Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT: | Mr Shedden |
| RESPONDENT: | Ms Coyle |
| INDEPENDENT CHILDREN’S LAWYER: | Ian Charman |
| FILE NUMBER: | ADC | 3536 | of | 2008 |
| APPEAL NUMBER: | SOA | 88 | of | 2016 |
| DATE DELIVERED: | 1 September 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 14 August 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 September 2016 |
| LOWER COURT MNC: | [2016] FCCA 3092 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Dillon |
| SOLICITOR FOR THE APPELLANT: | Angela Ferdinandy |
| COUNSEL FOR THE RESPONDENT: | Mr McQuade |
| SOLICITOR FOR THE RESPONDENT: | Helen McCance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cocks |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ian Charman & Associates |
Orders
The appeal be dismissed.
The father pay the costs of the respondent mother and the Independent Children’s Lawyer of and incidental to the appeal, with such costs to be taxed in default of agreement.
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 Shedden & Coyle 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).
|
Appeal Number: SOA 88 of 2016
File Number: ADC 3536 of 2008
| Mr Shedden |
Appellant
And
| Ms Coyle |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
On 28 March 2017 Mr Shedden (“the father”) filed an Amended Notice of Appeal against certain of the parenting orders made by Judge Mead on 6 September 2016. The appeal is opposed by Ms Coyle (“the mother”), and the Independent Children’s Lawyer (“ICL”).
Her Honour made a number of parenting orders, but the father only appeals the following orders:
4. That the said children live with the mother.
5. That the said children spend time with the father as follows:
a)during school term time from the conclusion of school on Thursday until the commencement of school on Monday and during the same times in each alternate week thereafter commencing on 8 September 2016 NOTING THAT the time shall be extended to the commencement of school on the Tuesday morning in the event that the Monday is a public holiday or a pupil free day;
…
The father also suggests that the trial judge erred by failing to determine his application that the children be permitted to attend [R School] from the commencement of the 2016 school year.
Brief background
The father was born in June 1978 and was aged 37 years at the time of the hearing.
The mother was born in October 1977 and was aged 39 years at the time of the hearing.
The parties commenced a de facto relationship in or around February 2005.
The father runs his own business, a construction and consulting company, and is able to determine his own working hours. The mother is an assistant hotel manager.
The parties have two children, namely X born in 2006 and Y born in 2007 (“the children”).
The father has a child from a previous relationship who was born in 1997, and who was aged 19 years at the time of the hearing.
In late 2006 the father asserts that the parties moved to Perth, Western Australia. He says the relationship broke down in or around February 2008 and the mother returned to South Australia with the children, without his consent. He remained in Perth until his work contract expired, and he then returned to South Australia.
Upon the father’s return to South Australia the parties entered into an informal parenting arrangement until September 2008, when the father initiated court proceedings.
On 8 May 2009 the parties entered into final consent orders which provided for the children to live with the mother and spend time with the father.
The father asserts that in March 2010 the mother refused to facilitate handover and he initiated contravention proceedings in May 2010. However, no findings of contravention were subsequently made.
From May 2014 until February 2015, the father filed numerous contravention applications.
On 27 February 2015 the mother filed an Initiating Application seeking orders, inter alia, that the children live with her, spend time with the father, and the parties have shared equal parental responsibility.
On 20 April 2015 the father filed a Response to the mother’s Application seeking orders, inter alia, that the children live with him, that the parties have shared equal parental responsibility, the children spend time with the mother, and the children attend [R School] from the start of the school year in 2016.
The reasons for judgment of the trial judge
Initially her Honour considered the contravention application filed by the father on 21 May 2014, recording that the mother admitted the contravention that when the children were to spend time with the father pursuant to the existing order, she allowed them to remain with their maternal grandparents and travel to O.
Her Honour noted that the other applications alleging contraventions did not proceed for various reasons. However, her Honour identified that during the 2015/2016 Christmas school holidays the mother had determined that the children were going to go to a [holiday] programme at Town U, at a time when they would otherwise have been with their father pursuant to the existing order.
In relation to the admitted contravention her Honour found that “[t]here was no doubt at all on the mother’s own evidence that she had intentionally failed to comply with the order” (at [9]), and that the contravention to her Honour’s mind constituted “a serious breach of an order” (at [10]). At [11] her Honour said this:
The mother does not have the right to abrogate to herself the responsibility for complying with orders when she feels like it or when she thinks it is best for the children.
By way of penalty for this breach her Honour ordered that the father have one weekend of “make-up time” and placed the mother on a 12 month bond in the sum of $500 to comply with the orders of the court. The remaining contravention applications were dismissed.
Her Honour then turned to the substantive proceedings, commencing by setting out the orders sought by both parties. The father initially sought orders that the children live with him and spend time with the mother, that they attend R School rather than their current school, and that he be able to attend school events without having to give written notice to the mother seven days in advance of any such event. By the time of the hearing though he sought orders that the children live with him on a week about basis, or in the alternative, for an extra night. He continued to seek the same orders as to the school the children should attend and his ability to be present at school events.
The mother sought that the existing orders remain, that there be a restriction on where the parties could live, and that the children be able to attend a holiday programme at Town U in each Christmas school holiday period.
Her Honour found the issues to be decided were whether or not there should be equal shared time, where the children should go to school, and whether they should be able to attend the holiday programme at Town U in the Christmas school holidays each year.
Her Honour recorded that the parties agreed that joint parental responsibility was appropriate.
Next, her Honour turned to consider what was in the best interests of the children by reference to ss 60CC(2), (3) and s 60B of the Family Law Act 1975 (Cth) (“the Act”).
Addressing each of those subsections of s 60CC of the Act, her Honour found as follows:
a)Section 60CC(2):
oThe children have meaningful relationships with both parents, they love them and enjoy spending time with each of them, and the relationships are “significantly beneficial” to each of them (at [34]).
oAt this time the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence was not an issue, but if the parties were not able to begin to conduct themselves in a more “collaborative” way going forward, then “they run the very significant risk of subjecting their children to psychological harm” (at [36]).
b)Section 60CC(3):
oBoth children expressed the view to the Child and Family Mediator that they loved their parents and wanted them to be able to get on well, they liked living with both parents and missed the other parent when not with them. However, their expressed views should not “be determinative of the matters in dispute before the court” (at [40]).
oBoth children “have a solid and secure relationship with each of their parents and with their maternal grandparents” and both parents are “able to meet their immediate day-to-day needs”. The children do not have as close a relationship with their paternal family, but they do have “some connection” with them (at [41]).
oIn relation to the parents taking “the opportunity to participate in making decisions about major long-term issues in relation to the children”, the parties had not been able to agree the school the children should attend, but they had spent regular time with the children and communicated with them as provided for in the orders, with the exception of the two occasions when the mother withheld the children from the father in contravention of existing orders (at [42]).
oThe father had not fulfilled his obligations to maintain the children. Under cross-examination he conceded that he was approximately $12,000 in arrears in child support payments, and he was in arrears in relation to payments of child support for his child from a previous relationship. He gave evidence that he did not intend to pay those arrears in the near future, although he was able to pay approximately $17,500 to his solicitors.
oThe father’s proposal that the children live week about with each parent “would be a very significant change” for them (at [48]). They have lived with the mother and spent time with the father on alternate weekends for many years, with the mother and maternal grandparents attending to their day-to-day needs.
oBoth parents had limitations when it came to providing for the emotional needs of the children and particularly “when they continue to engage in litigation that causes a ‘pressure cooker’ environment” for them (at [49]). Both parents were able to provide for the children’s intellectual needs, but the father’s ability to provide for their living costs was questionable, given that “he [was] approximately $12,000 in arrears with such low assessed child support payments due” (at [51]).
oThe children are sporty, enjoy school and “gain the benefits of the skills that each of their parents bring to parenting” (at [52]).
oThe mother “undertakes the day-to-day duties of parenthood well”, with the assistance of her parents (at [54]). However, the father “[had] seriously failed in terms of assisting with financial support for the children”, and his criticism of the “mother’s parenting capacity and the arrangements that she [made] for the children [were] extraordinary in the circumstances of his default on the question of child support” (at [55]).
oFamily violence was not a relevant consideration.
Her Honour then turned to consider s 65DAA of the Act finding at [57] that it was not in the children’s best interests to “spend equal time with each of their parents”, noting that that was the position taken by the ICL. The parties lived sufficiently close to each other to be able to make such an arrangement work, but they unfortunately “are parents who cannot agree on a school and who cannot agree on places of handover”. Further, “[t]he father does not support the children in terms of child support, and the mother [had] taken a high-handed attitude in terms of, on occasions, complying with orders” (at [58]).
At [59] her Honour found that she “could not possibly find that either of these parents have the capacity to support an order for equal shared parenting time”, but they did “have the capacity to support an order for substantial and significant time” (at [60]).
As to the order sought in relation to the father attending at school events without the need to provide the mother with seven days written notice, her Honour found that such an order was necessary, citing an example at [63] of schools being “unwilling to facilitate both parents attending because there [was] not an order to that effect in place”.
In relation to changing the children’s school to R School her Honour said this:
a)This was a private college with private school fees.
b)The mother had no capacity to pay the fees.
c)The father, although being in arrears of child support of approximately $12,000, and having done nothing to try and pay those arrears, but seemingly having the capacity to pay his lawyers $17,500, wanted the mother to “be completely confident that … there [would] be no problem with [the] school fees being paid” (at [65]).
d)The mother was opposed to the change of school because “of a possible situation arising where the children go to [R School] and then have to be taken out because the school fees are not paid [by the father]”, which position her Honour found “to be perfectly sensible and reasonable” (at [67]).
e)If the parties managed to improve their communication, the father showed good will in relation to paying his child support arrears, “and the mother [gained] some confidence in that regard”, her Honour felt that the mother would “sign any forms that [were] necessary to send the children to [R School]” (at [68]), but at this time it was not “in the best interests of the children to [attend R School]” (at [67]).
In relation to the children attending the [holiday] programme at Town U each Christmas school holidays, her Honour found at [69] that the mother’s wish in this regard did not “[outweigh] the need to have a proper, immovable order in place for Christmas school holidays”, and that “the reality [was] that any order … put in place by the Court now must be an order that gives neither of the parents … ‘wiggle room’”, and the mother’s proposal “would do exactly that” (at [71]).
The appeal
Ground 1
The Learned Trial Judge erred by giving too much weight to considerations pursuant to section 60CC(3)(ca) of the Family Law Act 1975 such that that factor alone became the overriding factor in determining the best interests of the child in relation to the application for equal time. Conversely, the Learned Trial Judge gave insufficient weight to other section 60CC(2)(a) and (3) of the Family Law Act consideration.
It is difficult to understand the father’s complaint here.
Her Honour carefully and expansively addressed the relevant factors arising pursuant to s 60CC(2) and s 60CC(3) of the Act in order to determine what was in the best interests of the children. Certainly her Honour found that in relation to one factor, the father failed to fulfil his obligation to maintain the children (s 60CC(3)(ca)), but nowhere is it apparent that that finding became “the overriding factor in determining the best interests of the [children] in relation to the application for equal time”. Nor is it apparent that “[c]onversely, [her Honour] gave insufficient weight to other section 60CC(2)(a) and (3) … consideration[s]”.
In oral submissions the father’s counsel asserted that at a point during the cross-examination of the father, when her Honour sent the parties outside and addressed counsel, her Honour “[narrowed] the issues at trial to be a single-factor trial, and that factor being the failure on the part of the father to meet his child support obligations”.
However, that submission is misconceived, and her Honour did no such thing. What her Honour said was this:
HER HONOUR: I don’t know what everybody is going on about. This – the mother’s affidavit is not in proper form. Mr Dillon was at distinct disadvantage, and how everybody can’t just concentrate on section 60CC and ask a few pertinent questions I don’t know, because all we are talking about is do we go from three days a week to equal shared parenting time. We all know the criteria for equal shared parenting time and how it can work or not.
We are arguing about school in an admitted situation of $12,000 of school – of child support arrears and no plan for any reduction of them and complaints on the part of the father about the mother working, which, of course, is like complaining that the prostitute you married has gone back to prostitution and isn’t a fit parent. This is just outrageous. So if you could just ask a few well-directed points as to what the father’s plans are, how he will care for them, how he will pay for them, how he will – what’s his income to be able to maintain - - -
…
HER HONOUR: Just a few well-directed points. Then Ms Cocks can ask a few questions, and then you can – I was hoping to deliver an ex temp judgment this afternoon. We’re certainly not going to be doing that. This matter needs to be got out the way. So could you please, Mrs Lindsay, just directed (sic) a few well-pointed questions in accordance with the Act. And you’ve spent an hour trying to tell me how financially unresponsible (sic) this fellow is; five minutes was enough. So - - -
(Transcript 2.9.2016, page 134, lines 7 – 20, lines 29 – 34)
As for the factors to which insufficient weight was allegedly given, the father identified the following at paragraph 1e of his written outline filed on 31 July 2017:
i.The capacity of the mother to support a relationship between the children and the father;
ii.The fact that in existing orders the father was responsible for getting the children to and from school which was, it is submitted, incorrectly labelled a ‘very significant change indeed’ by the [Learned Trial Judge].
iii.The fact that the parties had consented to shared parental responsibility in the [Learned Trial Judge’s] finding that there was a lack of capacity to implement equal shared care.
(Footnotes omitted)
With i, the father’s counsel conceded that her Honour found that the mother had the capacity to support a relationship. That finding is in effect challenged in Ground 2, but as will be seen, that challenge fails. Thus, it has not been demonstrated to this court that insufficient weight was given to this factor.
As for ii, that submission is also misconceived. At [48] her Honour said this:
Under the father’s proposal the children’s weeks would be altered in that there would be a situation where he was responsible for getting the children to and from school. There would be a change in how that was organised. There may or may not be out-of-school-hours care. All things considered however, there would be a very significant change indeed.
The father asserts that there would not be “a very significant change” because under the previous order the father was responsible for getting the children to school in each alternate week on Friday and Monday morning, and from school on the Thursday and the Friday.
Plainly, to move to an arrangement where the father will be responsible for getting the children to and from school each day for an entire week will be “a very significant change”, and her Honour was quite correct to so find.
Further, it is not entirely clear that in making that finding her Honour was only referring to getting the children to and from school. Her Honour commenced the sentence with the words “All things considered however …”, and it is arguable that her Honour was referring to all aspects of the father’s proposal.
With iii, I frankly do not understand the submission. First, the fact that the parties may have consented to shared parental responsibility does not necessarily indicate that they are in fact able to work together cooperatively. Indeed, here that is flagged by her Honour in [26].
Secondly, there is no necessary correlation between consenting to shared parental responsibility and having the capacity to implement equal shared care; they are quite different concepts.
Accordingly, the most that can be said is that this ground raises a weight challenge. However, where, as here, it is not put that the trial judge has acted upon a wrong principle, has allowed extraneous or irrelevant matters to guide or affect her, has not mistaken the facts, and has not taken into account some material consideration, or that the result is unreasonable or plainly unjust; an appellate court will be slow to overturn the trial judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight (House v The King (1936) 55 CLR 499, at 504; Gronow v Gronow (1979) 144 CLR 513, per Stephen J at 519 – 520).
What needs to be demonstrated is that the trial judge was plainly wrong; her decision being no proper exercise of her discretion, and that is not the case here.
There is no merit in this ground of appeal.
Ground 2
The Learned Trial Judge erred in failing to bring to account under section 60CC(3)(m) and section 65DAA(1) of the Family Law Act the mother’s contumacious actions in respect of previous orders for the appellant’s time with the children.
As set out above, before determining the parenting issue her Honour dealt with the father’s applications alleging contraventions. The mother admitted contravening the previous order and was placed on a bond, as well as having to provide make-up time of an extra weekend. Her Honour described this as a “serious breach of an order” (at [10]).
The complaint of the father, as explained in oral submissions, is that her Honour did not bring this outcome to account at all when considering the best interests of the children under s 60CC.
Plainly, her Honour did take it into account, because in [58] her Honour referred to the fact that “the mother has taken a high-handed attitude in terms of, on occasions, complying with orders”. However, apart from asserting that this is not a reference per se to the contravention, the father suggests that this was said in the context of s 65DAA, and not s 60CC, where it should have been considered.
Once again I find this to be a misconceived submission.
First, there can be no question that what her Honour was referring to was the contravention, and secondly, a trial judge is not required to separately consider a factor relevant to a child’s best interests under both s 60CC and s 65DAA. As long as the factor is considered at some point, that is usually sufficient.
Accordingly, there is no merit in this ground of appeal.
Ground 3
The Learned Trial Judge erred in not finally determining the appellant’s application to vary the children’s school and making no order as to schooling.
The hurdle facing the father here is the uncontroversial fact that one of the orders made by the trial judge was order 21, namely:
That all extant substantive applications do otherwise stand dismissed.
Clearly, given that her Honour did not make an order specifically directed to the application by the father for an order that the children attend R School from the commencement of the school year in 2016, order 21 is the order that deals with that application. That is also consistent with her Honour’s reasons at [65] – [68]. In other words, it is readily apparent from those reasons that her Honour was disposed to dismiss that application. For example, her Honour said at [67] that she could not find that it was in the best interests of the children at this time to go to R School.
The argument of the father was that her Honour “failed to make any order in respect of schooling and failed to finally determine the matter”. It is contended that all her Honour did was, in effect, refer the matter back to the parties.
That contention is based on [68] where her Honour hypothesised that the mother might sign the forms necessary to send the children to R School “if [the] parties move on a bit”, and there is “good will on both sides”.
I am not persuaded by this submission, and I find no merit in this ground of appeal. It is beyond doubt that her Honour addressed the father’s application and then dismissed it.
Ground 4
The Learned Trial Judge erred in dismissing the application in respect of the change of school without giving due consideration of the best interests of the children.
This is also a ground of appeal that cannot succeed.
The ground contends that her Honour failed to give “due consideration” to the best interests of the children, but it is readily apparent that her Honour did what she was required to. As referred to above, her Honour addressed the issue of a change of school at [65] – [68], and specifically found at [67] that it was not in the best interests of the children to go to R School at this time. Certainly, her Honour so found because she considered that until the father’s attitude towards his financial responsibilities altered, her Honour could not see “any benefit to the children of going to [R School]” (at [66]), and in addition, the mother’s reason for opposing the application was “perfectly sensible and reasonable”. However, it is not necessary for a trial judge to find multiple reasons why a proposal is not in the best interests of children, even one will clearly suffice if it is open on the evidence, as was the case here. The father’s failure to pay child support plainly created the possibility that the school fees would not be paid and the children would then have to be taken out of school.
Further, it is apparent that her Honour did not consider this issue in a vacuum. Her Honour addressed the best interests of the children in extenso in her reasons for judgment from [34] – [55], and in that context referred to and had regard to the children’s views, both generally and specifically as to their schooling, but the overriding consideration was the father’s attitude towards his financial responsibilities.
The father in effect suggests that her Honour failed to take into account any potential benefit, as seen by the father, in attending R School. However, if the children are forced to leave the school because of unpaid school fees, then any potential benefit disappears.
There is no merit in this ground of appeal.
Ground 5
The Learned Trial Judge erred in not taking into account the father’s offer to pay for private schooling in considering the application to change the child’s school.
The father contends that her Honour did not make a finding that he could not pay private tuition, and there was no evidence that he would not comply with an order of the court.
The problem with the latter contention is that the father has failed to comply with the child support assessment, and it was perfectly open to her Honour to question whether, in these circumstances, the father would in fact pay the school fees.
As to whether the father could pay the school fees, her Honour did raise that as an issue. In [66] her Honour observed that “the father’s evidence of his income is that it is not a high income and that on its own it would not support school fees”.
Thus, I am not persuaded that her Honour has erred in her treatment of the father’s ability or willingness to pay the school fees, and there is no merit in this ground of appeal.
Conclusion
Given that no ground of appeal has succeeded, the appeal must be dismissed.
Costs
At the conclusion of the hearing I raised the issue of costs with counsel. In the event that the appeal was unsuccessful, counsel for the mother and counsel for the ICL sought orders for costs against the father. The father’s counsel did not oppose such orders being made, and I will make the orders sought.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 1 September 2017.
Associate:
Date: 1 September 2017
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