Sloan & Reed
[2009] FamCAFC 19
•12 February 2009
FAMILY COURT OF AUSTRALIA
| SLOAN & REED | [2009] FamCAFC 19 |
| FAMILY LAW – APPEAL – Appeal from Federal Magistrate – Appeal from parenting orders – Whether the Federal Magistrate erred in accepting affidavit material filed late – Whether the Federal Magistrate erred in not accepting the recommendations in a Family Report – Whether the Federal Magistrate failed to consider the best interests of a child not the biological child of the father in making parenting orders. APPEAL - Dismissed |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) FLC 92-852 |
| APPELLANT: | MR SLOAN |
| RESPONDENT: | MS REED |
| INDEPENDENT CHILDREN’S LAWYER: | MR CARTER |
| FILE NUMBER: | BRC | 8459 | of | 2007 |
| APPEAL NUMBER: | NA | 78 | of | 2008 |
| DATE DELIVERED: | 12 February 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 10 February 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 1 August 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1035 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Appeared in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter Naughton Rice Family Law |
Orders
The appeal is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Sloan & Reed 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 78 of 2008
File Number: BRC 8459 of 2007
| MR SLOAN |
Appellant
And
| MS REED |
Respondent
REASONS FOR JUDGMENT
Introduction
I mention at this introductory stage that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under s .94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
The father’s appeal is from parenting orders made by Federal Magistrate Howard on 1 August 2008.
The orders relate to two children, I, born December 2000 who is the child of the father and the mother and C, born June 1995 who is the child of the mother. The father and the mother began living together when C was about 5 years old. The orders are divided in part so that different orders apply to each child in relation to parental responsibility and time with the parents.
The main issue raised by the appellant father is that the expert, Valma Johnson, a consultant social worker, recommended equal time with the child I but the order provided less time. In relation to I, the orders provided that the parents share school holidays equally but that during the school term as follows:
1.In relation to the child, [I], born […] December 2000:
…
(c)that for a period of twelve months from the date of the Order until 1 August 2009, the child spend time with the Father from Wednesday after school until Sunday at 4.00pm each alternate weekend commencing Wednesday, 6 August 2008;
(d)that from 1 August 2009, the child spend time with the Father from Wednesday after school until Monday at school each alternate weekend;
Apart from the grounds of appeal relating to the evidence of Ms Johnson, the father also emphasised that the orders for the first year provided less time than previously ordered and could not be in I’s interests.
The historical context is important. On 8 November 2006 it was ordered by consent that:
1.The orders made 2 October 2006 be varied such that the child [I] born […] December 2000 (“the child”) spend time with the Father as agreed and failing agreement as follows:
(a)In a week 1 of every two week cycle from Friday at 6.00pm until Monday at 6.00pm commencing this Friday 10th November 2006;
(b)In week 2 from Monday at 3.00pm until Wednesday at 3.00pm except during school holidays when it shall be from 9.00am Monday to 9.00am on Wednesday commencing Monday 20 November 2006;
(c)Once per week each by telephone Thursday between 5.30pm and 6.00pm.
Prior to that order the time with the father had been supervised because of allegations made by the mother.
The Judgment
To some extent, consistent with the orders his Honour dealt with the evidence and the submissions in relation to the children separately. At the outset, the trial Judge decided that he would make an order for equal shared parental responsibility in relation to I and then considered one of the key issues in this matter being the question of equal time. The findings of his Honour are critical to the appeal and are as follows:
5.In my view there is unfortunately in this case a high degree of animosity between the mother and the father. My impression of the evidence, having listened to the mother and the father give their evidence today, is that this animosity has existed for some considerable time. There is a lack of respect one for the other.
6.Both the mother and the father are in equal respects responsible for this level of animosity and conflict. Unfortunately, this level of animosity and lack of respect is so high that I do consider that it is pervasive and it does affect the parenting of [I].
7.I accept the evidence of Ms Valma Johnson which she gave today by telephone to the effect that if [I] were to find that the level of animosity is too high then effectively there should not be order for equal time. I do not consider in this case that there should be an order for equal time. I consider that the level of conflict is too high. I do not consider such an order will be in [I]'s best interests.
8.Ms Johnson stated that in those circumstances she said that it may be better for one parent to have more of a say in the day-to-day parenting of [I]. I accept that evidence and I consider that in this case it is correct.
Having rejected an order for equal time his Honour then considered substantial and significant time and found:
10.I do consider that an order allowing for substantial and significant time with the father is appropriate in the circumstances. The parties have shown that since late 2006 they have been able one way or another to bring about an acceptable situation with [I] spending approximately five nights per fortnight with the father.
The trial Judge then determined that it would be better for an order to be made in two stages. For the first twelve months following the order, that the child spend each alternate weekends with the father commencing with Wednesday after school concluding on Sunday. It was intended that C would be present for the Friday and Saturday nights.
It is apparent that the trial Judge was entirely clear in his own mind that for the year after the judgment the child would spend four nights a fortnight and then the following years five nights a fortnight with her father, in contrast to the existing orders and rejecting the application of the father. The reasons were as follows:
12.… I consider that grouping the nights together is more appropriate for the child. There are less changeovers and I consider that the stability that such an arrangement provides will be for the benefit of the child.
…
21.It seems to me that the changes will be beneficial to [I] because there will be less changeovers. Whilst for the first year there will be one less day per week with the father it is important for the father to bear in mind that there is no magic or magical formula in relation to the number of days or time that the child spends with either parent. The reality is that it is the quality of the time that is spent and the quality of the relationship. This is up to each parent when they are spending time with the child.
In making these orders it is clear the trial Judge was conscious of the views expressed by [I] and that the mother agreed that the child enjoys seeing her father. In addition, the impact on both children was considered where his Honour said:
18.The orders that I am proposing will effectively mean that [I] and [C] will be spending more time together now than they have been spending since the orders of October 2006. I should point out that insofar as [C] is concerned and in accordance with the recommendation, I believe, from the report writer Ms Johnson that she ought only be the subject of an order until she turns 14 years of age. After that the choice should then be returned to her.
It was submitted on appeal by the father that his Honour ought not have reduced the time to be spent with the child and ought to have made at the very least an order for equal time. It was submitted that his Honour was in effect too influenced by a conclusion that both parents were equally responsible for the conflict. However, it can be seen in the following paragraph that his Honour did appreciate the history of the matter:
20.Notwithstanding the level of conflict between the parties they have still been able to manage to facilitate what seems a close and continuing relationship between [I] and the other parent. Notwithstanding everything that has occurred it does seem to have worked out that way.
A serious and underlying circumstance in this case is the history of the mother’s complaint that the father may have sexually abused the child. The father has always denied such complaint and it seems an investigation by the SCAN Team including interviews by the police ultimately resulted in a conclusion of “unsubstantiated”. Despite this, it seems that the mother remains very anxious about the father spending time with the child.
The trial Judge dealt briefly with the allegations in relation to possible abuse and referred to the evidence of Ms Johnson, the report writer, in relation to the father’s practice of washing the child. Of that the trial Judge said as follows:
28.Ms Johnson stated that she thought it was an unnecessary practice if the child would have been able to wash herself. I think that is the essence here. It was probably an unnecessary practice at that age of five and a half and I agree with Ms Johnson further when she said in view of the fact that there had been family fights about it that it was ill-advised of the father to persist with the practice up until the age of five and a half years. But I also agree with Ms Johnson when she said there is no evidence to suggest that it was inappropriate. I therefore find that any such washing by the father was not inappropriate.
His Honour did order that the mother receive therapy to “… assist her with her anxiety and negative thought processes.” (para 7 orders).
As mentioned earlier, a critical conclusion of his Honour was that “the level of the conflict between the parties is too high”. In paragraph 32 his Honour concluded:
32.… that an order that [I] spends equal time with both parents will not be in her best interests.
…
38.The father's proposal whereby the child spend four nights a week with him and three nights with the mother or some similar or slightly varied arrangement from that is also not appropriate. To my mind it would require too many changeovers and it does not, unfortunately, take into account the high level of conflict between the parties to date.
Having observed that there is difficulty in the parent’s relationship, the reason his Honour apparently gave for extending the time with the father the following year was the hope that the co-operative parenting relationship will improve. To that end there appears a notation that “the father shall take steps to ensure that he undertakes a co-operative parenting approach …” (para 21 orders).
No doubt because of his Honour’s concerns about the high level of conflict between the parents and the absence of co-operative parenting it was also noted at paragraph 22:
(22)That each parent's volunteering to assist the children at school shall be restricted to the times during which the child is, pursuant to this Order, in their respective care.
Submissions of the appellant
The father prepared a comprehensive argument to support his grounds of appeal and it is convenient to deal with them in the categories and order as he described them.
Ground 1
Magistrate Howard accepted, despite my objection, affidavits file [sic] by the mother on 21 and 22 July 2008 that I expected to not be accepted, and therefore I had no cross examination prepared. Magistrate Howard’s 13 February 2008 order stated these were due by 6 June 2008.
It can be observed at the outset that there is no reference to either affidavit in the judgment of the Federal Magistrate and no other reason to suppose that the contents of those affidavits influenced his Honour in any way.
As Ms Hogan, counsel for the Independent Children’s Lawyer correctly remarked in relation to the affidavit from Miss Reed it can be seen on its face that most of the affidavit was inadmissible and would have in any event carried little weight. Further, she submitted it could not be said that there was any prejudice to the father in the admission of this affidavit.
The transcript reveals that at the outset the Federal Magistrate asked whether Miss Reed was required for cross examination and the appellant said “Yes, but I haven’t prepared questions for that” (T/script p.7 l.31). At the end of the hearing the appellant reiterated that he objected to the affidavit of Ms D going in, which the Magistrate accepted (T/script p.73). It seems that was probably because Ms D was not available for cross examination however, the affidavit of Miss Reed was admitted and did form part of the evidence. Again the Federal Magistrate asked the father whether he wanted to cross examine Miss Reed and in reply he said “No, I won’t ask any questions” (T/script p.72).
The combination of that circumstance together with the complete absence of any reliance on this material, doubtful in itself, demonstrates that there is no basis to this ground of appeal.
Ground 2
Magistrate Howard failed to apply Section 65DAA(3), part b(ii) and c of the Family Law Act 1975. My case outline explained [I]’s netball on Saturdays and family board game club every 3rd Sunday of the month.
This argument involved two issues, first that the father would wish that the child plays netball every Saturday. There is no agreement between the parents that the child be involved in this sport. Secondly, it was the father’s case that as netball is weekly, every Saturday the child should be with him.
The father was also concerned that the child had enjoyed family board games every third Sunday of the month but now the child must be returned at 4.00pm on Sundays, that is not possible.
It cannot be seen that his Honour made any error in this respect, it merely highlights the fact that the parents do not agree about the child’s activities. It would not in the circumstances of this case and considering the child’s age have been appropriate for orders to have been made compelling the parents to take her to netball or by reason of a board game activity extend the time.
Ground 3
When I asked Ms [Reed] about the perjury of her affidavit concerning her divorce, Magistrate Howard stopped her from answering even though it would have helped demonstrate Ms [Reed’s] continued misrepresentations in such circumstances.
It was submitted by the appellant that the importance of this aspect of the evidence is that it demonstrated that the mother did not want to include C’s father in arrangements for her which, in turn would support an idea that this was the same behaviour directed to him, as I’s father. It seems that the evidence was also important to demonstrate that the mother was untruthful.
The evidence in relation to the circumstances of serving the mother’s former husband with the Application for Divorce and obtaining a signed document was an annexure to the father’s affidavit being correspondence between him and an AC, a process server. The point of contention was that the mother had said that the process server was unable to locate her former husband and the divorce was granted without the father being served. Whether or not this was true appears to be a peripheral matter to the issues raised in relation to parenting. It may well be an aggravating circumstance so far as the father is concerned and contributes to the difficulties between them. It cannot be seen from the judgment that these matters were of any consequence in relation to his Honour’s appreciation of the parties positions, nor should it have been.
While it is submitted that the mother may have behaved maliciously towards the father in this matter, reference to the transcript commencing at page 41 demonstrates that the trial Judge understood that the father’s case was that he wished to establish that the mother is a person who does not tell the truth and that the allegations made by the mother were made up including that she did not suffer from the anxiety as she suggested. Attempts made by the Federal Magistrate to convince the father that it was necessary to look at this matter in a broader light bearing in mind that he had conceded in his evidence that “the mother is a good mother” did not seem to succeed (T/script p.42).
In addition, the evidence of Dr McGuire when cross-examined by the father demonstrated that she was not of the opinion that the mother was contriving or demonstrating a level of anxiety that was not real.
It is appropriate to consider the following grounds as a group as they deal with the evidence of Ms Johnson.
Ground 4
When I re-questioned Ms Valma Johnson on the animosity issue and how she had mentioned it would be detrimental to [I] for her to have less time with me, Magistrate Howard did not allow her to finish answering on her own.
Ground 6
Item 6 of Magistrate Howard’s reasons for judgment states both parents are equally responsible for the animosity and conflict, yet the evidence shows that Ms [Reed] is primarily responsible.
Ground 7
Item 8 of Magistrate Howard’s reasons for judgment was not stated by Ms Johnson.
Ground 8
In items 5-8 of Magistrate Howard’s reasons for judgment he decided the animosity and conflict is too high for an order of equal time. The family report writer commented during the final hearing that despite any animosity, both parents are able to make orders work as they have done so for the past 2 years, and believes that will continue with any new orders made. Any animosity between Ms [Reed] and me has not affected our ability to arrange and co-ordinate as necessary. He has failed to place enough weight on the recommendations of Valma Johnson who conducted comprehensive interviews, read all material, and is very well experienced and qualified in these matters.
Ground 9
The family report writer specifically mentioned during the final hearing how [I] was very close to her father, and should have more time with him, and it would definitely be detrimental for her to have less time with him. Not only has Magistrate Howard’s decision wrongly disadvantaged the father, but the decision has not addressed [I]’s needs.
Ms Johnson who is a social worker provided two reports to the court. They were attached to her affidavit filed 23 April 2008. The first report is dated 25 October 2006 and the second 18 January 2008. Under the heading “7) Background Update” in the second report there are a number of useful paragraphs correctly described by Ms Hogan as showing the respective positions of the parties and encapsulating their attitudes towards each other:
8)Mr [Sloan] has changed employment a couple of times since my previous Report. He won a position at Virgin Blue but it required shift work and Ms [Reed] wouldn’t co-operate with his requests to vary the particular days that [I] stayed with him.
9)He then quit this position and took a contact job at Suncorp Help Desk. He suffered bronchitis and they didn’t renew it. Since then he has decided to undertake study in Pest Management until the Court case is concluded. This will increase his work options later on.
10)Ms [Reed] was working in two positions for most of the time as well as studying naturopathy on virtually a full-time basis. She has recently given up one of her positions because it was too much of a strain on her family life. She emphasizes how her children – especially her two remaining dependent children – are her primary consideration. She tries to structure her life so that work and study are done during school hours and after the children have gone to bed at night.
11)She asserts that it was unreasonable of Mr [Sloan] to blame her for losing his position at Virgin. She had complex child care arrangements in place for her needs and she simply couldn’t accommodate the changes he was expecting via his proposed work roster.
When the child was interviewed she said that she would like to spend more time with the father:
44)She said that she would like to spend more time with Dad than she does. She would like her time with them to be even. I asked her to try to explain her feelings but this question flummoxed her and she retreated into saying that it didn’t really matter if the amount of time stayed the way it is.
45)I am inclined to interpret this as [I] being unable to express her feelings in words. In my opinion, she only relinquished the idea when she didn’t know how to answer the question. In other words, her wish is a valid reflection of her feelings.
When interviewed, C said she did not want to visit Mr Sloan.
After reflecting on her first assessment and the orders that I spend 5 days per fortnight with the father Ms Johnson said in the conclusions to her report:
6)Despite the mother’s near panic about the inherent risks to [I] of such a decision, nothing adverse has apparently happened. In fact, the visits have gone well and [I] enjoys a loving, close relationship with both parents.
7)The mother fears that the father has an undiagnosed psychiatric condition. It is beyond the scope of this Report to support or refute this concern. Within the constraints of this form of assessment, however, I have not seen any data pointing to this.
8)The mother is a passionate, devoted mother who is very protective of her children. She is also a strong-minded lady. In my opinion, it is much more likely that she perceives behaviour outside her personal strict moral code as bad and of ill-intent. She regards the father’s stance of it being OK for fathers and daughters to sleep in the same bed as unconscionable and thus reflective of some psychiatric disturbance requiring treatment. Her views are black-and-white and accordingly rigid. I do not support the father’s view that she is deliberately vindictive but I also conjecture that she will be unable to feel reassured.
At the end of her report Ms Johnson explained why she was recommending that C visit the father every second weekend until she is 14 and that then the choice be returned to her. In relation to I it was recommended that her arrangements be structured on an equal time basis with the parents.
The oral evidence of Ms Johnson was also of significance in this matter. Ms Hogan, counsel for the Independent Children’s Lawyer, put to Ms Johnson the scenarios as proposed by each of the parents. The mother at trial was suggesting that the father see the child for seven days in a row although not overnight. Ms Johnson rejected that proposal as constituting a detriment to I (T/script p.58). Ms Johnson was then asked about the existing position being that the child would spend from Friday afternoon to Monday in week one and from Monday afternoon to Wednesday afternoon in week two so that it could be said that five nights out of 14 the child was with the father. In broad terms Ms Johnson said that she recommended equal division of time but that she was not adamantly committed to it. From her perspective a nine/five division or a seven/seven division are all in the range of a shared care arrangement:
[MS JOHNSON]: … I’m conscious that of course the big problem within this family has been the conflict between the parents, and that if you moved to a – from nine/five division to a seven/seven division then you have – we have the problem of potentially a bit of a power vacuum where no parent has – almost, for want of a better term, a bit more say on the day-to-day exigencies of raising the child. However, in – with this family, although both of them are very strong minded, or pretty stubborn people when it comes to differences of opinion between themselves, to the best of my knowledge, there’s been no new problems that have arisen. In actual fact, it seems as though even though they’re not happy with it, and they don’t like the nine/five arrangement, and then dad would like more and mum would like less. Even though they don’t like it, it seems to have been working from a practical point of view. So I wasn’t convinced that there was any good reason, conflict wise, to be saying well, it should be – remain at nine/five, or indeed it should be reduced to ten/four, or eleven/three. So that was – that was how I came to – to what I recommended. (T/script p.58 l.44 – l.49, p. 59 l.1 – 10)
Later in her evidence Ms Johnson said:
[MS JOHNSON]: … They’re going to struggle with it, but I think it seems to me in a large part, this family have made the present orders work, like it or not. (T/script p.59 l.24-26)
When the father cross-examined Ms Johnson he explained to her that the orders he was asking for were four days per week, being the same days each week, Tuesday 7.00pm until Saturday 7.00pm. Of this Ms Johnson said that she did not hold a view that his time with the child should be greater than the mother’s:
[MS JOHNSON] … There is no – there is no doubt available to me to suggest that you could or would do a better job than she has done. (T/script p.64)
There then follows some questions from the Federal Magistrate about which the husband complains that Ms Johnson was interrupted. It is important to set out his Honour’s questions because it reveals his thinking and the opportunity given to Ms Johnson to respond:
[FEDERAL MAGISTRATE] I just have a couple of questions for you. My impression from the evidence so far from the mother and the father is that there is animosity between the parties, and there is a lack of respect for each other. In those circumstances, do you consider that a week about shared care arrangement is appropriate? ---I don’t – look, it’s always a worry to me as to how to actually come to a point of conclusion on those things in my own mind. I go back to what I was saying before, that because I take a lot of heart from the fact that it has been working and that there’s no new – there’s no new dispute in this family, it’s about the old issues and the old contention that keep emerging as though the family has been unable to move on from those things, even though they’re two years old. I think that if – if the Court were to see evidence to suggest that that animosity and lack of respect for each other is – is not only pervasive but is – is affecting some of the – some of the ways that they’re relating in front of the child and some of the ways they carry out their parenting, then it may be better to – to have a situation where one parent does have a stronger than – a greater amount of time than the other, just so that at least there is a parent there who on the day-to-day matters probably makes the greater number of decisions for the child.
[FEDERAL MAGISTRATE] And if I were to reach the conclusions that I refer to, would you consider something like a ten/four arrangement with the child [I], living primarily with the mother to be appropriate? --- Yes, your Honour. (T/script p.65 l.24-45)
Before leaving the expert evidence, reference should also be made to the report of Dr McGuire filed 23 April 2008. Dr McGuire is a consultant psychiatrist. When asked questions by the father, Dr McGuire said that it was her impression when she saw the mother that she was genuinely anxious about the child’s contact with the father (T/script p.15 l.48-49). Further Dr McGuire said:
[DR MCGUIRE] … I felt that the issue of bathing with the child and sleeping with the child obviously was one of the principal bones of contention and that if the father continued to do this, there would be grounds for concern. (T/script p.17 l. 4-7)
The evidence before the Federal Magistrate was that the father no longer bathed with the child for a number of reasons including that he did not have a bath but that there was some evidence that the child continued to sleep in the same bed.
Dealing with some of the specifics of the father’s complaint in relation to the Federal Magistrates conclusions and the expert evidence it was submitted that his Honour was wrong in concluding that both parents were equally responsible for the animosity and conflict.
As counsel for the Independent Children’s Lawyer submitted the Federal Magistrate had the benefit of observing these parties who were in person, not represented by lawyers which must have provided some sort of snapshot of their interaction. This is no doubt correct. The evidence to which the father referred me to being numerous emails between the parties, on its own demonstrated the extraordinary difficulty which they have in communicating. It seems that they have even been unable to decide on what day school holiday time should commence for either of them. (Ground 10)
It can only be said that it is unnecessary for the reasons to slavishly follow the expert evidence, especially if reasons are given for departing from the opinion of experts. In this case the reasons to which I have referred were entirely clear and supported by the evidence.
I will now deal with the balance of the grounds of appeal.
Ground 5
Ms Hogan was to draft some extra standard orders. After the hearing Ms Hogan advised me and Ms [Reed] that she would have these emailed for us to look over and ensure [sic] were correct. Magistrate Howard sealed the orders without this being done.
It seems that at the end of the hearing his Honour gave his reasons and then requested that the Independent Children’s Lawyer draft the orders. The expectation was that the parties would then look at the orders before they came to his Honour. As Ms Hogan explained, unfortunately, the orders were prepared and sent directly to the Judge not allowing any further opportunity to the parties to make any submissions. It was quite obvious to me listening to the parties’ submissions in relation to various matters including holidays, birthdays and telephone arrangements that they could never have agreed and that the orders although in some ways general, could not have provided any greater specific times in the absence of agreement. As I explained to the parties should they continue to not agree about when, for example holidays commence, they must return to the Federal Magistrate having filed an application and affidavit to support their individual cases. It can hardly be said to be an error on the part of the Federal Magistrate when orders were sent to him to be made.
Ground 12
Order 11 should allow [I] to phone her mother on her landline phone number.
There is no error in the judgment or orders exposed in the argument. The order was made on the mother’s request because of her anxiety, found by Dr McGuire to be real, about the father.
Ground 11
Order 5 (d) implies that [C] does not have the option to increase her time with me when she turns 14 which Valma Johnson recommends [C] should have the choice of.
In relation to the orders about C, it was submitted that the order did not allow that child to have greater time with her step-father after she turns 14 years. Reference to the evidence reveals that it was Ms Johnson’s opinion that this order would see the child accompanying her sister to spend time with the father but that after age 14 the child should be free to choose. Thus there would have been no utility in making an order providing for greater time with the child after the age of 14.
The following grounds relate to notations, not orders.
Ground 13
Order 21 should apply to both parents.
Ground 14
Order 22 goes against the best interest of the child, and even in Ms [Reeds’] case outline she requests that I be free to volunteer when I like.
The following notations were included in the orders:
(21)The Father shall take steps to ensure that he undertakes a co-operative parenting approach with the Mother and shall take steps to allay her fears and empathise with them.
(22)That each parent's volunteering to assist the children at school shall be restricted to the times during which the child is, pursuant to this Order, in their respective care.
These paragraphs are clearly not orders such that it is possible for the father to appeal as they do not have the quality of orders. Secondly, I would observe that it would be very difficult to enforce the provisions of paragraph 21. There is an issue between the parties in relation to the time they may attend at the child’s school. That may be a matter that the parties need to return to the Federal Magistrate for further orders based on current evidence.
Other Submissions
The mother resists the appeal and asks that the judgment be upheld.
Counsel for the Independent Children’s Lawyer submitted that the orders were “within the ambit of discretion available to him having considered the evidence before him”. In her oral submissions reference was made by counsel to the evidence supporting his Honour’s conclusion about the high level of conflict between the parties and the significant difference in their respective parenting approach. This it was submitted also properly influenced his Honour in concluding that there should only be one changeover.
Although it seems that there was no evidence that there were problems at the changeover, there is no doubt that the mother perceived that there would be difficulties if it was not at a neutral venue. In relation to the high level of animosity and the lack of respect between the parties, reference was made to the cross-examination by the father of the mother at page 45 and 46 of the transcript:
MR [SLOAN]: Okay. We have handovers at McDonald’s, [Northside] […], correct? --- Yes.
And do you think that handovers at our homes would be more convenient for both of us? --- No.
FEDERAL MAGISTRATE: Next question.
MR [SLOAN]: What problems do you think there would be if I were – if we did have handovers at our homes? --- Well, I do not trust you. I have no trust in you in terms of because of what you did with [I] first of all, and then after separation, you took all my stuff. I don’t know what else you can do to damage me, because you’ve undermined everything. You’ve planned to destroy whatever. I have no legal representation because of you. I had no – I had to - - -
FEDERAL MAGISTRATE: Why do you say you have no legal representation because of Mr [Sloan]? --- Because Mr [Sloan] filed to Legal Aid that I had money, upon separation had money that I could – you know, pay Legal Aid, and I was legally aided then, but I told them I have re-established myself. I had to buy all the furniture from scratch and I don’t have money any more. I can’t.
[FEDERAL MAGISTRATE]: All right. Keep going.
MR [SLOAN]: Okay. Have there been any such problems since knowing your address? --- No.
Because I have actually known your address for over a year now, and if there hasn’t been any problems, don’t you concede that there shouldn’t be any problems having handovers at our homes? --- No, I don’t want you to come near my home.
How can that be a problem just for handovers? What can go - - -? ---Because I don’t want you – I don’t know exactly what you’re going to do, what you can do. You have no remorse of what you’ve done to me. You have no – we have a lot of animosity. You have no respect for me.
Are you willing to have handovers at my home instead then? --- I’d rather it be neutral.
Despite the inconvenience? --- For you it’s a convenience. I’m willing to drive extra - - -
FEDERAL MAGISTRATE: It’s apparent to me that the changeovers should be a neutral venue. (T/script p.45 l.28-49, p.46 l.1-24)
Further, it was correctly submitted by Ms Hogan that there is an entrenched position taken up by each of the parties about the other. Consequently it was said, it is not simply the matter of the practical difficulties of changeover or how the parents behave at that instant but rather the pervasive differences between them.
Principles
Appeals from discretionary judgments
The father submitted in effect that there is a ground for reviewing the decision, as in House v The King (1936) 55 CLR 499, because the trial judge:
a)Did not follow the recommendations in the Family Report of Ms Johnson; and
b)There were no reasons for departing from the recommendations of the Family Report.
The law in respect of appeals from a discretionary judgment is well established.
It was clearly enunciated in House v The King (supra), at 504-505 that:
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.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
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.
As was explained by Kirby J in AMS v AIF (1999) FLC 92-852, who said at 86- 043:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
Departure from expert evidence
In the matter of Pinton & Burnett [2009] FamCAFC 7 this question was also considered. It is useful to repeat part of the judgment:
47.A central question in this matter is whether the trial Judge should have departed from the expert evidence of the family consultant.
48.Although neither counsel referred to any case authorities on this issue a consideration of the following cases are instructive.
49.The matter of Newlands v Newlands (2007) 37 FamLR 103 was an appeal against property and parenting orders. The parties had two children and shared their care for about 16 months after separation.
50.The trial judge made orders that both children, aged 6 and 3 years, live with the mother and that they spend alternate weekends, one overnight a fortnight and half of the school holidays and special occasions with their father.
51.A ground of appeal was that the trial judge had erred in failing to take into account the recommendation of the Court Counsellor. The orders made were not consistent with the orders sought by the father at trial, nor with the recommendations of the family consultant. The family consultant’s report recommended that the shared care arrangement continue.
52.On appeal the Full Court said at paragraphs 97-101 of their reasons:
[97] The trial judge briefly mentioned the Family Report at paragraph 14 of her reasons when she noted the report disclosed the children had a close attachment to each of their parents and an affectionate relationship with the paternal grandparents. Her Honour did not otherwise discuss the Family Report, the family consultant’s evidence or her recommendations.
[98] The weight and importance to be attached to the evidence of a family consultant is subject of well settled authority. Whilst ultimately the decision of what is in the best interest of a particular child is that of the trial Judge who has the benefit of seeing all of the witnesses and considering all of the evidence, the evidence of, and important recommendations made by, a family consultant require careful examination by the trial judge: (see N and N [2004] FamCA 706 and L and L [2002] FamCA 537).
[99] In this case the trial judge made orders in different terms to those recommended by the family consultant in circumstances where an existing arrangement which appeared to be working well for the children had been in place for approximately 16 months at the date of the hearing. The trial judge failed to analyse the family consultant’s evidence and recommendations and give reasons why she proposed to reject her recommendations.
[100] We are satisfied the trial judge’s failure to examine, and give reasons for her rejection of the family consultant’s evidence constitutes an appealable error.
53.In the matter of N v N [2004] FamCA 706 (Unreported) referred to by the Full Court in Newlands v Newlands (supra), Kay, Warnick and O’Ryan JJ heard an appeal where orders departed from recommendations in a report.
54.In that matter the parties had three children all of whom lived with the mother since separation and spent weekends with their father, seeing him regularly throughout the week.
55.At the interim hearing the mother wished to reduce the amount of time the children spent with their father to once a fortnight and the father proposed orders that amounted to equal shared parenting.
56.A family report was prepared by a psychologist who assessed the relationships that the children had with each of their parents.
57.The appeal was allowed. Kay J said, Warnick and O’Ryan JJ agreeing in separate reasons:
[32] In the circumstances where his Honour was faced with an established routine, a successful routine and the recommendations of the psychologist, plus the confines that were put into this family because of the husband’s working obligations, it seems to me that it was inadequate to say simply in general principles that children require a fixed and firm home base and where there is high conflict I should provide as little disruption to the children’s daily lives as possible.
[33] These are no doubt matters that are properly weighed up in the circumstances of a case but need to be weighed against other matters and where there is to be change from an existing circumstance and the failure to follow the recommendation of the psychologist in the circumstances, at least it needs proper explanation and almost very strong circumstances would exist to reach some other conclusion.
In this case there were substantial reasons provided by the trial Judge.
Conclusions
It can be seen from the discussion in relation to the father’s grounds of appeal and his submissions referred to in this judgment, that there is no proper basis for appeal in this case. The decision of the Federal Magistrate while departing from the recommendations of the report writer was based on his observation of the parties and on his conclusion that the level of conflict between them was such that it was not in the child’s interests for an order to be made for equal time. Instead, while recognising the importance and the close relationship of the child I with her father, he made orders for substantial time. These orders also included one half of the school holidays. It cannot be said that any error has been demonstrated.
In relation to the orders made about the child C, those orders were entirely consistent with the evidence given by the expert and appear to be in her interests.
As I have already mentioned, any other limitations of the orders in that they do not provide extraordinary detail which appears to be necessary for these parties is a matter either for their agreement or for further applications before the Federal Magistrate based on evidence.
Costs
At the end of the hearing of this appeal submissions were received in relation to costs. The mother indicated that should the appeal not be allowed she would not ask for costs. The Independent Children’s Lawyer made no application for costs.
I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 12 February 2009
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