Skelton & Donaldson

[2007] FamCA 35

FAMILY COURT OF AUSTRALIA

SKELTON & DONALDSON [2007] FamCA 35

APPEAL FROM FEDERAL MAGISTRATES COURT – CHILDREN – WITH WHOM A CHILD LIVES – INTERIM ORDERS – Interim parenting orders were made in the Federal Magistrates Court providing, inter alia, for the child of the parties to spend equal time with each parent – The Federal Magistrate concluded that the presumption of shared parental responsibility contained in the Family Law Act applied and noted that he was obliged to consider whether the child should spend equal time with both parents – In the course of his judgment, the Federal Magistrate noted that, according to Cowling & Cowling, he also had to consider whether the child was living in a well-settled environment, which he answered in the negative – On appeal, the mother argued that the Federal Magistrate’s examination of whether the child was in a well-settled environment conflicted with the principles and guidelines set out by the Full Court in Goode & Goode – While the Federal Magistrate did start down a path of enquiry now shown to be at least unnecessary, the Federal Magistrate turned off that path before reaching a result that would have constituted “error” – The “error” of considering whether the child was in a well-settled environment was without consequence as the Federal Magistrate found that the child was not living in a well-settled environment, and then went on to consider the other matters required to be considered under the Act.

CHILDREN – WITH WHOM A CHILD LIVES – INTERIM ORDERS – FAMILY VIOLENCE – In her interim application, the mother alleged that the father had abused the child – The mother led evidence regarding the father’s propensity to violence due to his drug use and the father’s previous incarceration for armed robbery – The Federal Magistrate expressed himself not satisfied that there were reasonable grounds to believe that either parent had engaged in family violence – The mother argued that, firstly, there were reasonable grounds to believe that the father had engaged in family violence or to find that the presumption of shared responsibility was rebutted or, alternatively, that there were such risks or concerns about the father’s parenting capacity that anything beyond limited contact was not in the child’s best interests – It was clearly inappropriate (and concededly so by both legal representatives at the interim hearing) for the Federal Magistrate to make findings of fact in relation to serious allegations each parent made against the other – While inferences may have been drawn from the oblique responses of the father, the Federal Magistrate was not obliged to make such inferences, especially where contrary inferences were available from other evidence.

Family Law Act 1975, s 60CC, s 61DA(1), s 61DA(2), s 61DA(4), s 65DAA.

Cowling and Cowling (1998) FLC 92-801
Goode & Goode (2006) FLC 93-286

APPELLANT: SKELTON

RESPONDENT: DONALDSON

FILE NUMBER: BRM 15261 of 2006

APPEAL NUMBER: NA 88 of 2006

DATE DELIVERED: 30 January 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: WARNICK J

HEARING DATE: 25 January 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 31 October 2006

LOWER COURT MNC: [2006] FMCAfam 648

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Mr Shannon

SOLICITOR FOR THE APPELLANT: Cooney Harvey Doney, Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Adams

SOLICITOR FOR THE RESPONDENT: Jane Adams Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER: Ms Roche

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jane Adams Lawyers

Orders

1. That the appeal be dismissed.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number:  NA88 of 2006
File Number:  BRM15261 of 2006

SKELTON

Appellant

And

DONALDSON

Respondent

REASONS FOR JUDGMENT

1. On 31 October 2006, Jarrett FM had before him an application for interim parenting orders in the not uncommon circumstances of serious allegations by each parent against the other, touching on the capacity to parent.

   “…The mother’s allegations against the father centre around his drug taking and what she describes as his propensity to violence.  The father’s allegations centre around the mother’s mental instability.”

   (reasons for judgment of Jarrett FM)

2. The issue related to the parties’ one child “J”, born in May 2005, thus about 18 months old at the time of the hearing.  The parents had commenced a relationship in 2003 or 2004, but they ceased to share a residence in late September 2006.  On 6 October 2006, the mother, in exparte proceedings, obtained an order for the recovery of the child from the possession of the father.  Subsequently, she moved to Sydney with J.

3. For reasons given ex tempore, Jarrett FM ordered that the parties share equal parental responsibility for the child, the mother return with the child to the mid-north coast of New South Wales within 14 days of the date of the orders (and in the event that she did not comply, the child to live with the father) and that the child spend equal time with the parents on a rotating roster of three days and three nights with each parent.  Other orders related to the father undertaking testing relating to drug ingestion and appointment of an independent children’s lawyer.  The matter was adjourned to 26 February 2007.

4. The proceedings with which these reasons deal are the mother’s appeal against the orders for shared parental responsibility, for the mother’s return to the mid-north coast of New South Wales, for the provisions for each parent spending time with the child and the order as to the changeover location.  Though the mother originally appealed the order for her return to the location described, I was advised on the hearing of the appeal that she had in fact returned and indeed in the orders sought on appeal she proposed to reside in that location until further order.  However, she sought that the father have only supervised time with the child between 8.00am and 4.00pm every third day.

5. Two aspects of the judgment of Jarrett FM are particularly relevant to the appeal.

6. In respect to the allegations abovementioned, he said:

   “2.…as both legal representatives in this case have pointed out, it is inappropriate to make findings of fact about those issues.”

7. His Honour concluded:

   “30.…there is nothing in the primary considerations about which I can make a finding which tends to indicate that there is any cause to favour the mother’s proposal over the father’s in this case.”

8. Secondly, his Honour noted the provisions of s 61DA(1) of the Family Law Act 1975, as amended, and expressed himself not satisfied that there were reasonable grounds to believe that either parent had engaged in family violence.

9. He concluded that the presumption of equal shared parental responsibility therefore applied and that he was obliged to consider whether the child should spend equal time with each parent. Noting that what was in the best interests of children needed to be determined according to the factors set out in s 60CC of the Act, his Honour said that he would return to those factors if he needed to. His Honour then said that, according to the principles enunciated in Cowling and Cowling (1998) FLC 92-801, the first matter that he needed to consider was whether the child was living in a well-settled environment.

10. There were five grounds in the Notice of Appeal, but in the written summary of argument for the mother on appeal, it was said:

    “19.Since the orders of 31 October, 2006, the filing of the mother’s appeal on 19 November, 2006 and the stay application heard and determined on 23 November, 2006 the Full Court of the Family Court of Australia on 15 December, 2006 delivered the court’s reasons in Goode & Goode (2006) FamCA 1346 (15 December, 2006).

    …

    22.As a result of the reasons in Goode and for convenience the appellant’s five grounds of appeal can be argued together.  However it should be noted that in light of the reasons in Goode grounds 2 and 3 as drafted have limited weight.”

11. In effect, the argument went only to two points.  Firstly, an assertion that the Federal Magistrate ought on the evidence have found that there were:

    “…reasonable grounds to believe that a parent of the child…has engaged in:

    (a)abuse of the child…or

    (b)family violence”   (61DA(2))

    or, in the alternative, that the presumption of equal shared parental responsibility (s 61DA(i)) was:

    “…rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”   (61DA(4))

    or simply that there were such risks or concerns about the father’s capacity that anything beyond limited contact was not in the child’s best interests.

12. In short, the mother asserted that the Federal Magistrate’s conclusions of fact were in these respects contrary to the evidence.

13. Secondly, that the approach taken by the learned Magistrate in examining whether the child was in a well settled environment conflicted with the principles and guidelines set out in Goode.

Were the Federal Magistrate’s conclusions of fact contrary to the evidence?

1. The interim hearing was conducted in the usual way, namely, on the papers.

2. In his lengthy summary of argument, counsel for the mother set out much of the evidence comprising the mother’s allegations against the father and the father’s responses.  I am satisfied that, though the father’s responses were sometimes oblique and not directly responsive to the assertions against him, there were no concessions by the father of allegations by the mother that might have supported the conclusions which counsel for the mother contends the Federal Magistrate ought have reached.  This conclusion is reinforced by the agreement of both legal representatives at the hearing, as previously indicated, that it was inappropriate for the Federal Magistrate to make findings of fact in relation to the serious allegations each parent made against the other.  Thus, it was well open to the Federal Magistrate not to rely upon doubts that might have arisen from what was occasionally a less than direct and fulsome response to allegations by the father.

3. However, those observations do not dispose of the arguments for the mother. Her counsel also argued that, notwithstanding that they were contested, the allegations of the mother were of such a nature that, coupled with certain factors that the father did concede, there ought have been sufficient concern about the father’s parental capacity or a finding of risk to the child in the father’s care that the presumption of equal shared parental responsibility did not apply (because of the operation of s 61DA(2)) or a conclusion reached that it would not in the best interests of the child for the parents to share equally parental responsibility, thus rebutting the presumption (s 61DA(4)).

4. Finally, even if the presumption applied, the “concerns” or evidence of risk ought have led to the conclusion that orders for the father to spend such extensive time with the child were not in the child’s best interests.

5. Matters which the father acknowledged included that he had been sentenced to five years imprisonment in October 1999 for armed robbery, that he was using heroin at that time and that after separation he had breached a condition of an interim apprehended violence order by having a drink within 12 hours before seeing the mother.  The father also admitted:

   “…that I have used marijuana and alcohol but I deny using it on a daily basis.”

6. While quite possibly the Federal Magistrate might have drawn inferences from these concessions, and from the oblique responses of the father, I am not persuaded that he was obliged to do so.  This is particularly so where there were other facts pointing to contrary inferences.

7. The learned Magistrate addressed these issues as follows:

   “28.The latter issues are issues that form the subject of some evidence in the material before me, but the subject of significant dispute. 

   
   

   Mr Tregilgas for the wife sought to point out that there were considerable concessions made by the father in his material that assisted the mother's case and which demonstrated that there might be some risk for [J] and which , on an interim basis permit me to make a finding that there is a risk for [J] if I were to make the orders sought by the father.

   29.Paragraph 6 of his affidavit refers to his incarceration in October, 1999 for armed robbery.  He also concedes that at that time he was using heroin.  The mother's relationship with the father, however, commenced after he was incarcerated and, one reading of her affidavit filed on 28 September, 2006 is that she was aware of his imprisonment and perhaps the reasons for it.  It is significant therefore that having knowledge of those matters she nonetheless remained in a relationship with [the father] from 2004 and chose to leave her children, both [T] and [J], in his care.  There is, it seems to me, nothing in that evidence that indicates a genuine belief on the mother's behalf that those matters now present a risk to [J].  Her past actions are inconsistent with her claimed concerns.

   30.The mother also points to statements by the father that he admits that he has used marijuana and alcohol, but he denies using it on a daily basis.  She alleges that he used it on almost a daily basis during the course of their relationship.  Again, if her assertions were of a serious nature one would have expected the mother not to have left her children in the care of [the father] as she deposes in her affidavit material.  In my view there is nothing in the primary considerations about which I can make a finding which tends to indicate that there is any cause to favour the mother's proposal over the father's in this case.

   31.The additional considerations I need to have regard to, to the extent relevant are set out in s.60CC(3) of the Act. The relevant matters are the subject of some dispute between the parties on the evidence.

   
   

   I cannot make findings about any of the matters that are in dispute between the parties. 

   32.In my view, however, the fact that the father has, with the mother's consent, cared for [J] when the mother has been unable to do so because of her commitments tends to indicate that the child was living in a regime where, more or less, she was being cared for by both of her parents. 

   33.Whether she was spending equal time with each is entirely unclear and I can make no finding about it, but what is clear enough is that both parents were providing care for [J] and they were doing so with the consent of the other.  I see no reason for that not to continue on an interim basis.  There is no indication in the evidence of a strong or overriding nature, nor is there any convincing proof, that [J]'s welfare would really be endangered if that position was not re-established on an interim basis.”

8. Bearing in mind that this is an appeal from a discretionary judgment, I consider that the approach taken by the Federal Magistrate was well open to him and therefore that there is no merit in this point.

Did the Federal Magistrate apply wrong principle in the light of the Full Court decision in Goode?

1. The answer is that the Federal Magistrate did start down a path of enquiry now shown (by the judgment in Goode) to be at least unnecessary, but he turned off that path before reaching a result that would have constituted “error”.  (I think it appropriate to acknowledge that there can appear to be some harshness in using the term “error” in respect of a conclusion about the law, when that law is only later clarified.)

2. As earlier seen, Jarrett FM addressed the question of whether, at the date of the hearing:

   “…the child was living in an environment in which … she is well settled.  If so, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until final hearing unless there are strong or overriding indications relevant to the child’s welfare to the contrary.”

3. In Goode, the Full Court said:

   “69.It remains the case that the Court must regard the best interests of the child as paramount in deciding what interim parenting order to make.  However, there are passages in Cowling that do not sit comfortably with the Act as amended.  It is the following passage in particular which calls into question the applicability of Cowling to the Act as presently drafted:

   22.Thirdly, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary.  Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.

   70.There are many elements in the Act as amended that would militate against the continued application of the principles in Cowling, and in particular the passage cited above. While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if the presumption in s 61DA applies, then the Court is obliged by s 65DAA to consider the outcomes previously discussed. First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable. Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable. Section 61DA must be applied in any case, including interim proceedings, where a court is considering making a parenting order.

   71.The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

   72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.  This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   73.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”

4. It is clear therefore that, in considering that principles enunciated in Cowling required him to determine at an early stage whether the evidence established the child was living in a well settled environment, Jarrett FM was “wrong”.  However, it was an “error” without consequence, for the learned Magistrate decided that the child was not living in a well-settled environment.  Thereafter, he went on to consider all of those matters which by the Act he was required to consider.

1. The “error” would only have had consequence and been contrary to what was said in Goode had the learned Magistrate found that the child was living in a well-settled environment and that in the absence of concerns that the environment carried a risk of harm for the child, the child should therefore remain in that arrangement.  As pointed out in Goode, such an approach would not have followed the requirements of s 65DAA.

2. The raising of this point by the mother, while not objected to, was opportunistic and in fact contrary to the assertion of error in ground 2 (drafted before the decision in Goode was published) which read:

   “2.That the learned Magistrate erred at law in failing to apply the “guidelines” set out in the marriage of C (1998) 22 FamLR 776 at paragraph 22 “strong or overriding indications” to the child [J] date of birth […] May 2005 in the father’s care.”

3. In any event, there is no merit in the argument.

Conclusion

1. There being no merit in either of the grounds argued, the appeal will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:  D. Perrett

Date:  30 January 2007