Simpson & Simpson
[2008] FamCAFC 43
•19 March 2008
FAMILY COURT OF AUSTRALIA
| SIMPSON & SIMPSON | [2008] FamCAFC 43 |
| FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – SUBSTANTIAL AND SIGNIFICANT TIME - Whether Federal Magistrate erred in failing to give adequate reasons for her determination that the husband spend every second weekend with the children instead of two out of each three weekends – Held: the manner in which the parties ran their case, by not disputing certain issues, calling oral evidence or cross-examining the family consultant, did not relieve the Federal Magistrate from the requirement of considering the various statutory provisions of the Act in accordance with the authorities - Appeal allowed - Matter remitted for rehearing on the issue of the proportion of time the children are to spend with the husband during weekends. |
| Family Law Act 1975 (Cth) |
| House & The King (1936) 55 CLR 499 Bennett & Bennett (1991) FLC 92-191 Goode & Goode (2006) FLC 93-286 |
| APPELLANT: | MR SIMPSON |
| RESPONDENT: | MS SIMPSON |
| FILE NUMBER: | MLC | 6696 | of | 2007 |
| APPEAL NUMBER: | SA | 107 | of | 2007 |
| DATE DELIVERED: | 19 March 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Mushin J |
| HEARING DATE: | 19 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 November 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 1101 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr D. Mort |
| SOLICITOR FOR THE APPELLANT: | Whyte Just & Mort |
| COUNSEL FOR THE RESPONDENT: | Ms L. Goldsworthy |
| SOLICITOR FOR THE RESPONDENT: | Harwood Andrews Lawyers |
Orders
IT IS ORDERED THAT
The husband’s appeal against paragraph 6(a) of the order of the Federal Magistrates Court made on 14 November 2007 be allowed.
The said paragraph be and is hereby set aside.
The competing applications pursuant to Part VII of the Family Law Act 1975 insofar as they relate to the question of the time which the father spends with the children of the marriage in weekends during school term be remitted for re-hearing in the Federal Magistrates Court at Melbourne by a Federal Magistrate other than Federal Magistrate Hughes.
The appellant husband is granted a certificate pursuant to s 9(1) of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the appellant in relation to the appeal.
The respondent wife is granted a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 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:
a)the costs incurred by the respondent in relation to the Appeal; and
b)any costs incurred by an appellant in relation to the Appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a Costs Certificate granted under s 7 relates.
The parties are each granted a certificate pursuant to s 8(1) of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to him/her in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to the new trial ordered.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Simpson & Simpson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 107 of 2007
File Number: MLC 6696 of 2007
| MR SIMSPON |
Appellant
And
| MRS SIMPSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from orders made by Hughes FM at the Geelong circuit on 14 November 2007. The appeal is conducted before me sitting as the Full Court as a result of a direction by the Chief Justice, pursuant to the provisions of section 94AAA(3) of the Family Law Act (1975) (“the Act”).
The father is aged 44 years and the mother is aged 38 years. The parties commenced living together in what is known as a de facto relationship in approximately 1992 and married in February 1994. The appeal relates to their three children, aged eight, five and 18 months. The essential issue is the question of whether the appellant father should spend time with those children on each alternate weekend or on two out of three weekends.
The Trial
Her Honour had before her three pieces of evidence, being an affidavit of evidence‑in‑chief of each of the father and the mother and an affidavit by an expert witness, a psychologist in private practice, engaged to provide a report on matters in issue pursuant to Part VII of the Act.
At the commencement of the hearing before her Honour the parties, through their counsel, announced that they had agreed on most of the orders which they sought in respect of various parenting matters, including most of the issues regarding the time which the father was to spend with the children. Accordingly, most of the orders made by her Honour were by consent on that basis.
At the commencement of the proceedings the initial application by the father was for equal shared time for each of the parties with each of the three children. However, before her Honour that proposal was changed to seek essentially two out of every three weekends, together with various other detailed provisions by which he would spend time with the children. The mother's position was that in addition to various other detailed matters, the weekend issue should be resolved on the basis of each alternate weekend.
The matter was argued before her Honour on the basis of her reading of the material and hearing oral submissions from counsel on behalf of each party. Neither party sought to adduce any oral evidence or cross‑examine any witness who had sworn an affidavit. Her Honour did not require any oral evidence to be given. Her Honour, having read the material, commenced the hearing by particularising the applications which were before her. She referred to the first issue which was in dispute which was developed by counsel for the father in the following terms:
MR COMBES: The first issue that appears to be in dispute is whether it’s two consecutive weekends, paragraph 6(a). I can indicate that myself, my learned friend and her instructor were present during a telephone conversation with [the family consultant] earlier on today. It was put to her in relation to what her view, your Honour, in relation to that was. She was quite firm in her opinion that it’s appropriate for two out of three weekends.
HER HONOUR: The problem is, isn’t it that these children are little, but the two older boys … are presumably both at school. So that means they only have one weekend in three with their mother and she then doesn’t have that usual sort of leisure time that parents enjoy with their children on the weekend.
MR COMBES: It is an issue, and one might argue also that the proposal as set out is somewhat disjointed. Those matters were actually put to [the family consultant] and I can indicate first of all that what was canvassed was whether there should be shared care. [The family consultant] indicated that because of [the youngest child’s] age it would be inappropriate. But what she did indicate is that there would be no question that upon school age the matter should be reviewed in light of shared care. So in that respect we are probably coming and approaching the matter to enable my client to have as much time as possible in view of the circumstances; there is a good and close loving relationship. But my client is hampered in relation to his work and you would have seen from the material - - -
HER HONOUR: Yes.
MR COMBES: - - - that it’s hard to adjust any other time in relation to my client if he is going to continue to provide for the family. The deposition was that he is in arrears in child support. I can indicate that’s not true. There has been a reduction in payment of child support, which is more associated with the relocation from Perth, Western Australia to Victoria. But the mother, as far as I’m aware, is in a position to spend quality time with the children during the week. She has the flexibility of - - -
HER HONOUR: But the two older boys are at school, and by the time they get home and they have got homework and so forth, and they will be spending a bit of time with your client – look, one of the things, when I read the material I thought it was a great shame the parents weren’t able to finish it off, because to their credit, they have done a very good job in reaching agreement about most things, and one of the things that occurred to me that might work in this case is to have the children go every second weekend to spend time with their father because for young children it’s a rhythm in that routine that they will understand and be able to anticipate.
During that submission by counsel for the father, her Honour referred to the essential dispute with respect to the father spending time at weekends with the children in the following terms:
HER HONOUR: Look, it is attractive, except for the fact that the children go to school. I know the family report writer says two out of three weekends, but it’s a long time for the children to wait to have a weekend with their mother, to wait for one weekend in three. So I’m not really supportive of that recommendation, even though it has weight on the basis of what the family report writer says. Unless there’s anything else you want to tell me about that particular issue – that seems to me to be the problem.
Subsequently counsel for the father made submissions to her Honour with regard to other smaller matters which were in dispute between the parties. Following the completion of the submissions of counsel for the father, counsel for the mother addressed the court. Counsel commenced by reference to the weekend issue to which her Honour immediately replied:
You're pushing against an open door at this point in relation to two out of three weekends.
At the completion of the submissions her Honour delivered extempore reasons for judgment which consider the issue of the father spending weekends with the children in paragraphs 4 to 8 inclusive, which are in the following terms:
4.The first area of disagreement is whether or not the children should spend two consecutive weekends in every three weeks with their father from the conclusion of school on Friday until Sunday, which is what the husband seeks, or whether it should be every second weekend.
5.The family report writer, […], has prepared a report in these proceedings and has recommended that the children spend two out of three weekends with their father.
6.I note that recommendation, but on balance I order that the children spend time with their father every second weekend from the conclusion of school on Friday until the commencement of school on Monday on the basis that the two older children, […], who is aged eight, and […], who is aged five, currently attend school, and the order sought by the husband means that the children would only spend one weekend in three with their mother.
7.I also bear in mind that, at the children's age, a pattern of spending alternate weekends with each parent is a more easily recognised pattern, and that may change sometime in the future.
8.So in relation to order 6(a) I order that the children spend every second weekend with their father from the conclusion of school on Friday to the commencement of school on Monday.
The above quoted paragraphs from her Honour's reasons for judgment are the only reference in those reasons to the weekend issue. The balance of the judgment deals with several other less contentious issues and the question of the form of the order. In particular, her Honour notes in her reasons a matter which is included at paragraph 17 of the order by way of Court note as follows:
That the husband ultimately seeks an equal shared arrangement for the children's residence.
The father has appealed against that part of her Honour's orders, particularly relating to spending time with the children at weekends. His grounds of appeal are as follows:
(1)That the learned federal magistrate erred in failing to consider properly and give adequate weight to the best interests of the children.
(2)That the learned federal magistrate erred in failing to take into consideration the recommendations of the family report writer, [...]
(3)That the learned federal magistrate erred in failing to give adequate reasons for the decision.
(4)That the learned federal magistrate erred in failing to apply the principles set out in the case of Goode v Goode.
(5)The learned federal magistrate erred in failing to properly consider the husband's evidence.
The father sought that the appeal be allowed, an order for the appointment of an Independent Children's Lawyer and effectively the remittance of the applications for final orders pursuant to Part VII of the Act to the Federal Magistrates Court for rehearing.
I have heard submissions from counsel on behalf of each party and considered their summaries of argument. The essential argument on behalf of the appellant father may be divided into three principles, namely that her Honour failed to -
· give adequate reasons;
· consider the evidence; and
· hear cross‑examination of relevant witnesses and particularly of the expert.
As part of the proposition that inadequate reasons were provided, counsel referred to the provisions of the relevant parts of the Act, together with certain authorities to which I will refer below. The basis on which an appeal such as the present one is to be determined is well settled. The law commences with the decision of the High Court of Australia in House v the King (1936) 55 CLR 499. In addition, the law with regard to the requirement of giving adequate reasons is also well settled.
In Bennett v Bennett (1991) FLC 92-191, a Full Court of this Court at page 78,264 held:
First, her Honour did not summarise the matters under sec 64(1)(bb), nor had she specifically done so in any earlier part of her reasons. It is possible to glean some of the relevant matters set out in that section from what her Honour said previously, subject to the difficulty to which we have adverted as to the timing of the judgment, but it is far from clear whether her Honour did specifically advert to all of the matters referred to in sec 64(1)(bb).
Further, in Bennett (supra) at page 78,267, the Full Court held:
We would not, for example, wish to discourage the giving of ex tempore judgments (although this judgment was not an ex tempore judgment). There is no reason why, in an ex tempore judgment in a custody matter, a Judge cannot shortly examine the various factors set out in sec 64(1)(bb) and other relevant matters, and set out the process of reasoning leading to a conclusion as to custody or access as the case may be.
In its consideration of the current legislation the Full Court held in Goode v Goode (2006) FLC 93-286 (“Goode’s case”) at page 80,908 as follows:
111.… The appellant father contends that the legislation required his Honour to consider the objects, the paramountcy principle, the question of parental responsibility and the question of the order concerning what time the children should spend with each parent, having regard to the matters set out in s 60CC. We agree that his Honour did not consider these provisions, which we have now concluded was necessary, and that he fell into error in not doing so.
Further in Goode's case (supra), at page 80,895, the Full Court held:
44.The importance of s 61DA is that if the Court applies the presumption of equal shared parental responsibility when making parenting orders, then that presumption is the starting point for a consideration of the practicality of the child spending equal time with each of the parents and, if it is consistent with the best interests of the child and not impracticable, the Court must consider making an order that the child spend equal time with each of the parents. If the Court does not make such an order, it must consider whether making an order that the child spend substantial and significant time with each of the parents would be in the best interests of the child and not reasonably impracticable and, if so, must consider making such an order (see s 65DAA). Section 65DAA(3) explains the meaning of "substantial and significant time".
I derive from the authorities quoted above that in making parenting orders pursuant to Part VII of the Act, it is necessary to consider the various statutory provisions, as held by the Full Court. That requires the consideration of the paramountcy principle, the object and principles in section 60B and then the various other provisions commencing with the presumption of equal shared parental responsibility. There follows the requirement of a consideration of equal shared time and if that is held to be inappropriate, the question of substantial and significant time. In the present matter the parties presented the case to the trial Judge on the basis that they agreed that there should be equal shared parental responsibility and that it was not appropriate to make an order for equal shared time.
The parties presented the matter on the basis of there being an order for substantial and significant time and the issue between them was the question of how that should be constructed. Nevertheless, in my view, the fact that the parties did not dispute orders in relation to the matters referred to does not absolve the court from indicating a consideration of those matters, even if it is on the basis of negating their relevance. In particular, a consideration of the matter in issue requires a consideration of the various principles on which the decision is made. That becomes especially relevant in circumstances in which the only expert evidence before the court recommends a provision of substantial and significant time different to the one at which the court ultimately arrives.
In this matter, prior to the hearing before her Honour, the parties, through their counsel, discussed the competing proposals with regard to the weekend issue with the expert and counsel thereafter advised her Honour that the expert maintained her position of a recommendation of two out of three weekends in accordance with the father's proposal, as distinct from each alternate weekend in accordance with the mother's proposal. Regrettably, and understandably in the circumstances of a very busy, demanding and pressured circuit list, her Honour did not set out the process of reasoning by which she arrived at the decision in favour of the mother's proposal, nor did she indicate a proper consideration of the evidence of either party. I am accordingly unable to discern the logical steps in accordance with the provisions of the law by which that decision was reached.
Regrettably, that must result in this appeal being allowed and the matter being remitted for rehearing. It is common ground before me that it is not possible for me to re-exercise the discretion in the place of her Honour, a submission with which I agree. Accordingly, those parts of her Honour's order which were the subject of dispute, as distinct from consent, will be set aside and the matter will be remitted for rehearing before the Federal Magistrates Court before a federal magistrate other than Hughes FM.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Mushin J
Associate:
Date: 16 April 2008
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