SHEEHAN & PARKE - [2010] FamCAFC 186

FAMILY COURT OF AUSTRALIA

SHEEHAN & PARKE

[2010] FamCAFC 186

FAMILY LAW - APPEAL – Parenting – Interim proceedings – Appeal from interim parenting orders – Where the interim orders have limited effect given the age of the child – Where the parents agree they should have equal shared parental responsibility for the child – Where it was for the Federal Magistrate to decide what time the child should spend with each parent – Federal Magistrate reluctant to elect particular ages when the father’s time may be increased – Submitted that the trial judge failed to properly consider “meaningful relationship” – Where it was submitted the trial judge erred in determination by affording too much weight to certain matters – Alleged failure to understand the competing proposals of the parties – Submitted that the legislative pathway prescribed in Goode and Goode was not adhered to – Where the recommendations of the family report writer were followed – No error of law made by the Federal Magistrate – Orders within the range of discretion – Appeal dismissed.

FAMILY LAW - COSTS – Motivation for the appeal genuine on the part of the father – Consideration should be given to the utility of the appeal – A successful appeal would only lead to further interim hearing – Failure to demonstrate an error of law on the available evidence – Father to pay the mother’s costs to be assessed.

Family Law Act 1975 (Cth): s 60CC, s 61DA, s65DAA, s 65DAC

A v J (1995) FLC 92-619
Cave & Cave [2007] FamCA 860
Goode and Goode (2006) FLC 93-286
Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Marvel & Marvel (No. 2) [2010] FamCAFC 101
MRR v GR (2010) 263 ALR 368

APPELLANT:

Mr Sheehan

RESPONDENT:

Ms Parke

FILE NUMBER:

BRC

11485

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

20 September 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

26 August 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

20 May 2010

LOWER COURT MNC:

[2010] FMCAfam 358

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr George

SOLICITOR FOR THE APPELLANT:

Suthers Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Galloway

SOLICITOR FOR THE RESPONDENT:

Bell Dixon Butler Lawyers

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal to be assessed.

IT IS NOTED that publication of this judgment under the pseudonym Sheehan & Parke is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 66 of 2010
File Number: BRC 11485 of 2009

Mr Sheehan

Appellant

And

Ms Parke

Respondent

REASONS FOR JUDGMENT

Introduction

On 20 May 2010 Federal Magistrate Demack made parenting orders in relation to the parties’ child J Sheehan-Parke, born August 2009. The child, was 9 months old at the date of the hearing. He is now 13 months. It was ordered, on an interim basis, that the mother and father have equal shared parental responsibility for the care, development and welfare of the child and that the child live with the mother.
The time the child is to spend with the father is contained in two of the orders. Order 8 relates to special days and other occasions from which there is no appeal. The father appeals from order 10, that order is in the following terms:
(10)That until the father and the mother have attended upon a paediatrician and agreed upon the future management of the child’s feeding the child shall spend time with the father three (3) times per week for not more than two (2) hours at [a contact centre] and thereafter the father spend time with the child PROVIDED he has a car to transport the child in a back seat until he commences year 1 primary school as follows:
From between 6 to 9 months of age (from 25 February 2010)
(a) Three (3) hours per day three (3) times per week each Thursday, Friday and Saturday from 1.30pm to 4.30pm.
From between 9 and 12 months of age (from 25 May 2010)
(b)For four (4) hours per day three (3) times per week each Thursday, Friday and Saturday from 12.30pm to 4.30pm.
From between 12 and 18 months of age (from 25 August 2010)
(c)For five (5) hours per day three (3) days per week each Thursday, Friday and alternate Saturdays from 11.00am to 4.00pm.
It can be seen that order 10(c) prescribes the times which are now applicable given the child’s current age.
I was informed by counsel, that the parties attended a paediatrician but that did little to resolve any difficulties between them. I was also assured by counsel for the father that the father now has a suitable vehicle in which to transport the child.
It would be necessary to consider that this appeal be allowed in part by reason of the orders themselves were it not for the reality that there will be further hearings. First, it would not be reasonable to permanently restrict the father’s time with the child to be supervised based on whether he and the mother can agree on the future management of the child’s feeding, no matter how admirable that may be. However, that was not the intention of this interim order. Secondly, in the preamble to order 10 there is a second restriction relating to the car in which the child will be transported. Although safety is a priority, paragraph 13 would be sufficient. A third difficulty with the orders is that order 10(c) is internally inconsistent as it provides for three days per week whereas the effect of the order is two days a week and three the second week. The reasons in paragraph 34 together with the opinion of the report writer make it clear that the intention was three days per week. To the extent that this is an error it could be rectified by the Federal Magistrate. In addition, it is obvious from the orders that they will have limited effect after the child is 18 months old, a further interim hearing may be necessary even prior to trial.
The orders sought by the father should the appeal be allowed are as follows:
1.Father to spend time with the child as agreed but not less than as follows:
(a)When the child is between nine (9) and twelve (12) months of age (from 25 May, 2010) for six (6) hours per day four times per week each Wednesday, Thursday, Friday and Saturday from 10.00am.
(b)When the child is between twelve (12) months and fifteen (15) months of age (from 25 August, 2010) for six (6) hours each Wednesday, Thursday and from 4.00pm Friday until 10.00am Saturday in each week.
(c)When the child is between fifteen (15) months and eighteen (18) months of age (from 25 November, 2010) for six (6) hours each Wednesday, Thursday and from 10.00am Friday until 4.00pm Saturday in each week.
(d)From when the child is eighteen (18) months of age (25 February, 2011) for six (6) hours each Wednesday and from 10.00am Thursday to 4.00pm Saturday in each week.
It can thus be seen, by reference to the child’s present age that the father is seeking six hours every Wednesday, an extra hour on Thursday and an overnight period each week from Friday 10am to Saturday 4pm.
As mentioned, this is an appeal from interim orders. The matter was adjourned for further mention before the Federal Magistrate on 8 September 2010. That date having past, a further hearing date should be set especially if the anomalies referred to in paragraph 4 remain a difficulty.

Background

The following factual matters are taken from the judgement and appear not to be controversial.
The mother and father are 36 and 37 years of age, respectively. The child is the first and only child for each of them and from all accounts is a healthy baby. Both parents are health professionals.
The parents ended their brief and non-cohabitive relationship approximately three months prior to the birth of the child.
During the mother’s last trimester of pregnancy the parties began communicating through solicitors. This was initiated by the father. The correspondence dealt with a variety of issues, including financial matters.
The parties agreed that they should have equal shared parental responsibility for the child. It was for the Federal Magistrate to decide what time the child should spend with each parent, by reference to what is in the child’s best interests and what is reasonably practicable for the child, in accordance with the Family Law Act 1975 (Cth) (“the Act”).

Grounds of appeal

Five grounds of appeal are contained in the father’s notice of appeal:
1.The learned Federal Magistrate failed to properly consider the primary and additional considerations under s60CC(2) and (3) of the Family Law Act.
2.The learned Federal Magistrate failed to follow the legislative pathway under Part VIII of the Family Law Act.
3.The learned Federal Magistrate failed to provide any or adequate reasons for her decision to limit the father’s time with the child.
4.The learned Federal Magistrates erroneously took certain matters into account or dealt with them in an erroneous fashion in providing a decision that limited the father’s time with the child.
5.The learned Federal Magistrate failed to apply the terms s65DAA of the Family Law Act particularly an application in a positive way of whether Orders should be made for equal time and if not, substantial and significant time for the father with the child.

Reasons of the Federal magistrate

The Federal Magistrate in the reasons for judgment summarised the primary submission of the father to be, that he was seeking a meaningful relationship with the child as prescribed in s 60CC(2)(a) of the Act. For the father, it was said, that this could only be achieved by spending the amount of time with the child that the he proposed.
In terms of the mother, it was understood by her Honour, that the mother’s primary submissions were based on the particular circumstances of the child, namely the child’s age, and whether it was reasonably practicable, considerations under s 60CC(3)(g) and s 65DAA(5)(d), respectively.
The mother has adopted what was described as an “attachment parenting style”. The father said that this approach to parenting results in him not being able to spend as much time with the child as he might otherwise enjoy.
The mother was critical of the father for trivialising the fact that the child is still being breastfeed. There were difficulties in terms of the introduction of solid food by the father and in the communication surrounding various other issues. The mother was also concerned about of how the father transports the child. As mentioned, it seems that this issue is no longer a matter of concern. However, there remains other serious concerns to the mother, including, the safety of the child when at the father’s home, where there is a dam.
A paragraph of the reasons to which particular complaints were made by counsel for the father was as follows:
28.The child does not need a meaningful relationship with the father when he is seven months old. There is plenty of time for that when the child is older. What the child needs now is a primary carer who is in a position to provide properly for the child; a primary carer who has the capacity to learn how to be a primary carer for a child whose needs are changing on a regular basis. The primary carer needs to be in a position to do that as best he or she can, and in this case it’s the she, and to do it without fear of being stressed or upset by someone competing with her to be the primary carer for the child, and I see the father’s method of describing his own skills and experience as being very competitive with this mother.
The Federal Magistrate was critical of the father’s proposed schedule for increasing time with the child. In her Honour’s opinion there is nothing objective and reasonable about parenting a small child, especially for first time parents. The father’s proposals were rejected altogether.
Interim orders were made in the terms sought by the mother. Her Honour was reluctant to elect particular ages when the father’s time may be increased. This decision was based on the consideration of the individual child. The trial judge was mindful not to confine the judgment to a simple consideration of the child’s age, as each child develops at different rates.
In the reasons for judgment the Federal Magistrate stated that she would not yet set the matter down for a final hearing. This was to enable the parents to have a break in litigation and a chance to “calm matters down”. Her Honour did however provide for a further mention of the matter on 8 September 2010, where the case was to be reviewed.
In concluding the ex tempore reasons for judgment her Honour stated:
45.… So if I can impress on the solicitors the need to encourage their clients to seek redress and assistance through something other than legal avenues, that would seem to be most appropriate.

Father’s submissions

The essence of the father’s case is contained in the following paragraph of the father’s written submissions:
12.It is therefore respectfully submitted that the decision appealed from must be overturned:
(a)In light of the inappropriate weight given to irrelevant matters and matters upon which there was no evidence led and;
(b)in light of the fact that there was no consideration of relevant statutory requirements and the pathway identified in Goode (supra).
The above paragraph concludes the father’s written submissions. It is necessary however to summarise various other sections of the written submissions and the careful oral submissions made by counsel on his behalf.
Underlying the appeal grounds is a complaint about how the Federal Magistrate conducted the proceedings and that her discretion was ultimately affected by that process. While not argued, nor claimed, before the Federal Magistrate that there was bias against the father it was submitted that her Honour demonstrated attitudes of prejudice and preconception. In addition, it was argued that the Federal Magistrate failed to properly consider the father’s time with the child and that the only reference to “meaningful relationship” could be interpreted as dismissive.
It is submitted in the outline of submissions on behalf of the father that the Federal Magistrate erred in her determination, by attributing too much weight to certain matters. By reference to the judgment and the transcript the following were contended to be errors:
·    the purported fact that “what the mother is experiencing is hormones” (transcript pages 8-10);
·    whether the father understood “the relationship between the little human and the person who carried the child in her womb” (transcript pages 8-15);
·    the purported “relationship between the person who gave birth to the child and who is breastfeeding the child is in every material respect, wholly different and cannot be replicated” ([24] reasons for judgment);
·    “that the father fails to understand in his material is that the primary relationship that this young child has is with the person who carried him in his (sic) womb for the entire duration of the pregnancy, who birthed the child, who breastfed the child, slept with the child, provided all of the child’s needs” ([24] reasons for judgment);
·    finding that “none of the father’s material seems to me to catch a glimpse…of what his manner of approaching these matters might possibly mean to the mothers equanimity and her capacity to provide a healthy mind for herself so that she can provide he best possible start for the child in life” ([30] reasons for judgment);
·    a finding that the father did not recognise “that the mother may have milk swelling in her breast that will go to waste and be dried up if the child is away from the mother at a time when both the child and the mother may choose to have a breastfeed” ([30] reasons for judgment), and;
·    a finding that “the child does not need to have a meaningful relationship with the father when he is seven months old. There is plenty of time for that when the child is older” ([28] reasons for judgment).
It is submitted that her Honour erred in her judgment by making the “hormones” comment prior to having read all of the material, and in particular the family report. In addition, it is submitted that there was no evidence available for the Federal Magistrate to make a finding about the “relationship” between the foetus and the mother and the father’s alleged impact on the mother and her parenting.
Counsel for the father also submitted that her Honour did not understand the competing proposals of the parties. In particular, the orders sought by the father and that the father’s position was not to challenge the mother’s role as the primary carer; rather it was to seek that the child spends substantial and significant time in his care. It can be inferred it was said that this was to establish a meaningful relationship with the child.
With regard to the legislative pathway identified in Goode and Goode (2006) FLC 93-286 at 81, the father’s counsel submitted that this “pathway” was not followed nor was it appropriately considered “in [a] cascading fashion”. It is asserted that without proper regard to those matters relevant to s 60CC of the Act the merits of this case could not be properly determined.

Mother’s submissions

It is submitted on behalf of the mother that the five grounds set out in the notice of appeal are “generic” and that no particular error has been identified. In addition, that the Federal Magistrate’s remarks do not reflect the fact that she was affording too much weight to the issue, but rather were “simply expressions of valid human experience appropriately contained in and informing the exercise of judgment”. Further, counsel for the mother submits that her Honour’s reasons and the pathway taken in those reasons are consistent with s 65DAA and MRR v GR (2010) 263 ALR 368.

Relevant law

Section 60CC(2)(a) provides that “the benefit to the child of having a meaningful relationship with both of the child’s parents” is one of the primary considerations in determining what is in a child’s best interests.
The court, in its consideration of the child spending equal time or substantial and significant time, is governed by s 65DAA of the Act. Section 65DAA(2) of the Act provides for substantial and significant time. This section relevantly provides:
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:       See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1:       Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)           the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)           the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).
Note 2:       Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Section 65DAC sets out the effect of a parenting order that provides for shared parental responsibility:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The significance of the specific references to parental responsibly and the interim proceeding in the Act were considered in Goode and Goode (2006) FLC 93-286. In this case it was said that:
56.In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in subs (2), (3) and (4).
Section 61DA(3) of the Act was found to be properly invoked in circumstances where “limited evidence may make the application of the presumption, or its rebuttal difficult”, as this was found to be what the explanatory memorandum and the comments of the House of Representative Standing Committee on Legal and Constitutional Affairs suggests.
It was also said in Goode and Goode that:
80.… Even absent the application of the presumption and thus the requirement to consider equal or substantial and significant time where it is not contrary to the child’s best interests and otherwise practicable, the addition of subs (a) to s 60B(1), which is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, is not necessarily consistent with a preference at an interim stage in favour of maintaining a status quo. That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in s 60CC(3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.
The way in which interim proceedings should be conducted was then outlined in that case. This “legislative pathway” prescribes:
82.In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child. (own emphasis)
In the present case, as the parents agreed that there should be equal shared parental responsibility and the father did not suggest that he should have equal time, then it is the pathway as described in paragraph 82(h) above that is applicable in these circumstances.
As explained by the High Court in MRR v GR:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. (footnote omitted)
The Full Court said in Marvel & Marvel (No. 2) [2010] FamCAFC 101 that:
106.… the legislation, after the amending Act, imposes on a judicial officer determining a parenting application, be it interim or final, consideration of a number of provisions of Part VII. We are conscious, particularly for judicial officers determining interim parenting matters in a busy court, such as the Federal Magistrates court, and where issues may be narrowly confined, or there is only a single issue to be determined, that the requirements of Part VII are onerous, particularly if an order for equal shared parental responsibility has been or is to be made. However the legislation mandates the path which must be followed.
107.Although s 61DA(3) should not be applied in a broad exclusionary manner in interim proceedings, it appears to us that it is likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue. The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue or issues is reduced. However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied. We accept the task involved in a final hearing when only narrow issues are to be determined, nevertheless requires the legislative path in all its complexity to be followed if an order for equal shared parental responsibility has been or is to be made.
It was held in the circumstances of that case that his Honour did not consider all the necessary requirements prescribed in s 61DA, a failure in which it was deemed to constitute “appealable error”.
In addition to a consideration of how the Federal Magistrate should have approached the matter, in terms of the legislation, it is essential on an appeal such as this, to remain mindful of the well known decisions in relation to appeals from discretionary judgments.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ at 504-05 held:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
Paragraphs 519-20 of the Gronow & Gronow (1979) 144 CLR 513, are also of relevance:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
The present case is one to which the decision in A v J (1995) FLC 92-619 is applicable, although decided before the amendments. In that decision the Full Court (Fogarty, Lindenmayer & O’Ryan JJ) said:
It must be remembered that in child welfare proceedings the Family Law Act confers a wide discretion and that ultimately the Court must be satisfied that the orders proposed are in the best interests of the child. It is the paramount welfare of the child which is the material ultimate finding which must be made in those proceedings. It is, in our opinion, particularly in matters where it is considered that the competing proposals are evenly balanced, important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should not be a microscopic analysis of, for example, words used by a trial Judge if, in all the circumstances, it is clear that the trial Judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration. As we have said, the Act confers a wide discretion on a trial Judge in child welfare proceedings and, provided the approach which has been laid down in Smith's case and Maday's case is followed, an appellate court will be hesitant to undertake a detailed examination of alternative interpretations of words and phrases used by a trial Judge if it is clear that overall the trial Judge has done that which he/she is required to do by the Family Law Act and authority and has sufficiently evaluated the evidence.
As there was a particular complaint raised in this case about what the Federal Magistrate said about “meaningful relationship” it is also most useful to refer to what Benjamin J said in Cave & Cave [2007] FamCA 860:
101.There is no statutory guidance as to what factors I should consider in determining what constitutes a “meaningful” relationship between a child and a parent. Some of the considerations I regard as relevant and which I take into account are:
a)   The nature of the relationship which has existed in the past between the parent and the children;
b)     The extent to which the parent in question has sought to be involved in the children’s lives;
c)     The attitude of the parent in question to the children, their primary carer and other significant persons in their lives;
d)     The general social behaviour of and the role model which would be provided for the children by the parent in question;
e)     The personal disposition of the parent in question, that is, is he or she able to engage in a meaningful relationship with the children and for the benefit of the children;
f)   What can be discerned from the evidence about the children’s view of the relationship, or if they are too young or unable to express a view, what is the most likely view they may hold having regard to their ages and level of maturity.
g) The other considerations under ss 60CC (2) (b), (3), (4) and (4A) of the Act, insofar as they may have an impact on the relationship between the children and the parent.
h)     If orders are not made as sought by a parent, what would be missing from the lives of the children at present and into the future.

Conclusion

The decision of the Federal Magistrate required a consideration of what orders could be made to provide the father with substantial and significant time, considering the practicalities of the situation and what was in the child’s best interests.
At first sight it maybe thought that some of the language used by the Federal Magistrate in the reasons and in the discussions when submissions were being made is intemperate, extreme or unnecessary. However, when regard is had to the lengthy material filed by the father and the contents of the comprehensive family report her Honour’s reasons and response to the submissions are understandable.
The Federal Magistrate was correct in highlighting the difficulties between the parties, especially those being experienced by the mother. The family report dated 25 March 2010 of Mr J contains his opinion about the dispute between the parties and his recommendations to the court. Some of his observations were critical of the father. These include what was described as “controlling behaviour” (paragraph 9.18) and rejecting the father’s complaints that the mother was “deliberately practicing attachment parenting with a view to excluding the father” (paragraph 9.22). Nor did the report writer criticise the mother’s plans in relation to breast feeding (paragraph 9.24).
In paragraph 9.25 the opinion was expressed:
[The mother] is very conscious that at the present time, if [J] is away from her for too long, he may suffer separation anxiety and this could cause problems with his development. Certainly, it is advisable for a child of [J]’s age not to separated from the primary caregiver for long periods of time. As a breastfeeding mother, Ms [Parke] should certainly be regarded as his primary caregiver and primary attachment figure at the current time.
And after referring to the father’s proposal Mr J said:
In my view, this proposal is extreme and not suitable for a breastfeeding baby.
No doubt for the assistance of the parties as well as the court reference was made in the report to accepted child development theories.
The recommendations of Mr J were obviously accepted by her Honour. The only difference being that the orders made provision for time with the father up to 18 months. It was a clear recommendation of Mr J that overnight time with the father not take place before the child is aged two.
With the relevant law in mind, it is evident upon reading the judgment of her Honour, the notice of appeal and the written submissions of both parties, and upon hearing the oral submissions made in this case that there was no error of law made by her Honour. It can also not be said that the orders were outside the range of orders that could have been made in this child best interests.

Costs

At the conclusion of the appeal hearing, submissions were heard as to the costs of this appeal.
Counsel for the father submitted that should the appeal be allowed a costs certificate should be issued. In the event that the appeal is dismissed it was submitted that there should be no order as to costs.
It was submitted on behalf of the mother that should the appeal be dismissed the father should be ordered to pay the costs. Counsel submitted that the mother is self funded, assisted by her family and that this appeal has cost her approximately $10,000 in legal fees. It is a great misfortune that the parties’ limited funds have been expended on this appeal rather than being used for the benefit of the child.
Section 117 of the Act provides:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.

Costs do not follow the event in family law proceedings however, given the circumstances of this case I am of the view that the father should pay the mother’s costs of the appeal.
While accepting that the motivation for the appeal was no doubt genuine on the father’s part, there are circumstances justifying an order for costs.
Some consideration must be given to the utility of an appeal such as this. Had the appeal succeeded the only order to be made would lead to a further hearing of the matter on an interim basis. This further hearing will inevitably take place in any event.
Although there were some proper matters to argue, the appeal, being from interim orders was unsuccessful in that it was not demonstrated that an error had been made or that the orders were not reasonably within the discretion of the Federal Magistrate based on the evidence. The father should pay the mother’s costs to be assessed.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 20 September 2010.

Associate:

Date: 20 September 2010