Stativa and Stativa
[2012] FamCAFC 51
•30 March 2012
FAMILY COURT OF AUSTRALIA
| STATIVA & STATIVA | [2012] FamCAFC 51 |
| FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Where the learned Federal Magistrate did not reveal the process of reasoning which led her to make the orders she did permitting the mother to remove the child from the Commonwealth ─ Where in the context of her determination of other aspects of the proceedings the learned Federal Magistrate did not record the findings of fact in reliance upon which an order permitting the mother to remove the child from the jurisdiction might be based ─ Where her Honour’s Reasons do not reveal that the issue was adequately considered ─ Where it cannot be concluded that proper consideration of this issue could not have produced a different outcome ─ Appeal allowed in part ─ Remitted back to the Federal Magistrates Court to re-hear the issue of the child’s removal from the Commonwealth FAMILY LAW ─ APPEAL ─ COSTS ─ Where it was appropriate in the circumstances of the case that the parties be granted costs certificates for the re-hearing of the mother’s application to remove the child from the Commonwealth of Australia for a period of four weeks during 2012 |
| Commonwealth of Australia Constitution Act 1900 (Cth) s 116 Family Law Act 1975 (Cth) ss 60CC, 61DA, Part VII Federal Proceedings (Costs) Act 1981 (Cth) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Bennett & Bennett (1991) FLC 92-191 Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 Edwards v Noble (1971) 125 CLR 296 Evers v Evers (1972) 19 FLR 296 Kamano & Kamano [2011] FamCAFC 189 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Pettitt v Dunkley [1971] 1 NSWLR 376 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 SS Hontestroom v SS Sagaporack [1927] A.C. 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155 Voulis v Kozary (1975) 180 CLR 177 |
| APPELLANT: | Mr Stativa |
| RESPONDENT: | Ms Stativa |
| FILE NUMBER: | MLC | 9079 | of | 2009 |
| APPEAL NUMBER: | SOA | 66 | of | 2011 |
| DATE DELIVERED: | 30 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney via video link with Melbourne |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 22 March 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 August 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 838 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self Represented |
| SOLICITOR FOR THE APPELLANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Self Represented |
| SOLICITOR FOR THE RESPONDENT: | Self Represented |
Orders
That the appeal be allowed in part.
That orders 13, 14 and 15 of the orders of the Federal Magistrates Court of 18 August 2011 be set aside.
That the application of Ms Stativa to remove the child M from the Commonwealth of Australia for a period of four weeks during 2012 be remitted to the Federal Magistrates Court for re-hearing.
That within 21 days each party file and serve further affidavit evidence in relation to the issue remitted to the Federal Magistrates Court pursuant to Order 3 hereof.
That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
It is requested that the Federal Magistrates Court hear and determine the application remitted pursuant to these orders with all possible expedition.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stativa & Stativa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY VIA VIDEO LINK WITH MELBOURNE |
Appeal Number: SOA 66 of 2011
File Number: MLC 9079 of 2009
| Mr Stativa |
Appellant
And
| Ms Stativa |
Respondent
REASONS FOR JUDGMENT
introduction
By Notice of Appeal filed on 15 September 2011 Mr Stativa (“the father”) appealed against orders made by Whelan FM on 18 August 2011 in parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) between the father and Ms Stativa (“the mother”).
The learned Federal Magistrate ordered that the mother have sole parental responsibility for the one child of the parties’ relationship M born in August 2008, albeit the mother was ordered to consult by email with the father “and attempt to reach agreement with him before making decisions concerning the child’s education and extra curricula activities”.
The learned Federal Magistrate ordered that the child reside with the mother but spend time with the father, until the child attends school, from 6.00 pm Saturday until 6.00 pm Monday on alternate weekends, and from 8.30 am Monday until 8.30 am Tuesday in intervening weeks.
Upon the child commencing to attend school, the father’s time would become from the conclusion of school Friday until the commencement of school Monday each alternate weekend during school term and, in the intervening weeks, from the conclusion of school Monday until the commencement of school Tuesday.
The learned Federal Magistrate made further orders for the child to spend time with the father during school holidays and on special occasions, and for the child’s time with each parent to be suspended on other special occasions. As those orders are not controversial, it is unnecessary to refer to them in detail.
The learned Federal Magistrate made an order generally restraining both parents and “their servants and agents” from “taking or sending or attempting to take or send the child” from the Commonwealth of Australia, but provided that the mother be at liberty to remove the child from the Commonwealth and take her to Eastern Europe for a period not exceeding four weeks in 2012, provided that the mother complied with conditions precedent which the learned Federal Magistrate imposed. Her Honour made orders for the child to communicate with the father during any absence from the jurisdiction, and for the father to have compensatory time with the child after her return to the Commonwealth.
The orders sought by the father in the appeal were that the parties have joint parental responsibility in lieu of the order for sole parental responsibility made by the learned Federal Magistrate, and that time spent with him until the child attends school be from 6.00 pm Friday until 6.00 pm Monday on alternate weekends and, from 6.00 pm Friday until 8.30 am on Tuesday on intervening weekends. A substantial increase upon the time ordered to be spent by the learned Federal Magistrate was thus sought.
Upon the child commencing school, the father also sought orders that the child spend time with him “from the conclusion of school Friday until the commencement of school Friday the following week and each alternate week the child to spend with the mother”, in effect an equal sharing of time between the parents.
The effect of the orders which the father sought was that the mother would not be permitted to remove the child from the jurisdiction, to visit the maternal grandparents in Eastern Europe during 2012.
background
The father was born in June 1963 and the mother was born in July 1972. The parties are accordingly aged 48 and 39 years respectively.
The parties married in Eastern Europe in October 2002. The mother was born in Eastern Europe, the father in Central Europe.
In January 2004 the mother came to Australia.
The father has lived in Australia since he was 10 years of age.
The parties cohabited in Melbourne from early 2005.
The parties separated in late August – early September 2009.
At the time of the hearing before the learned Federal Magistrate, the child was living with the mother and spending time with the father. The learned Federal Magistrate recorded:
6.There have been various proposals concerning parenting arrangements for the child, [M], since the separation and various arrangements entered into. At the time of the hearing, the child was living with her mother and spending time with the father as follows:
· Week One: From 8.30 am Monday to 8.30 am Tuesday;
From 6.30 pm Friday to 11.30 am Saturday; and
From 8.30 am Sunday to 6.00 pm Sunday.
· Week Two: From 8.30 am Monday to 8.30 am Tuesday; and
From 6.00 pm Saturday to 9.00 am Sunday,
Before the learned Federal Magistrate the father sought orders for equal shared parental responsibility, and that the child spend equal time with each of her parents. The father also sought that the child spend time in Adelaide with his parents for one week every three months. No order was made in those terms. Given that the orders of the learned Federal Magistrate do not restrain the father from taking the child to Adelaide to see his parents during the course of her spending time with him, that issue could not, and does not assume significance for present purposes.
The mother and the Independent Children’s Lawyer (“ICL”) sought orders substantially in accordance with the orders ultimately made by the learned Federal Magistrate.
The learned Federal Magistrate concluded that it was not in the best interests of the child to continue the presumption of equal shared parental responsibility. Her Honour said in that regard:
97.… primarily because of the conflicting views between the parents about what is in the child’s best interests, the conflict and lack of communication between them and the likelihood that they would be unable to reach agreement on significant issues.
The learned Federal Magistrate concluded that the orders made by her with respect to the child spending time with the father were in the child’s best interests on the basis that:
98. … I concur with Dr [N] that what the child needs is a sense of stability and consistency in her care which is best achieved by spending most of her time with her mother. Time with the father can be increased as she gets older and is more able to deal with extended time away from her mother. The aim should be that the child spends substantial and significant time with her father including more extended periods as she reaches school age.
The grounds of appeal
In his Summary of Argument dated 29 February 2012, the father clearly articulated the bases of his complaints. The complaints addressed the grounds raised in the father’s Notice of Appeal, albeit not always by express reference to them. As both parties have been unrepresented, it will hopefully be more instructive to consider the father’s complaints by reference to his Summary of Argument than by referring to his grounds of appeal.
Removal from the Commonwealth
The first complaint articulated by the father relates to the orders of the learned Federal Magistrate permitting the mother to remove the child from the Commonwealth. To better appreciate the father’s challenges, it is appropriate to commence by setting out the terms of the orders of the learned Federal Magistrate. Having, uncontroversially, restrained both parents and their “servants and agents” from removing or attempting to remove the child from the Commonwealth, the learned Federal Magistrate ordered:
(13)Notwithstanding Orders 10, 11 and 12 above, the mother is permitted to take the child to [Eastern Europe] to visit her grandparents for a period not exceeding four weeks in 2012, provided she:
(a)Advises the father no less than 60 days prior to the proposed visit;
(b)Provides copies of the tickets, including return tickets and itinerary to him;
(c)Provides him with the address and telephone number of any place where she will be staying during the visit.
(14)Pursuant to Order 13 herein, at least 30 days prior to the proposed overseas travel in 2012, the mother is to notify the Court of the dates of travel in order for the Court to notify the Australian Federal Police that the watch list orders are suspended for the relevant period.
(15)If the mother chooses to take the child overseas during 2012, the father will be able to:
(a)Contact the child by telephone on Fridays and Mondays while she is away;
(b)Take the child on three separate visits to Adelaide, during time the child would otherwise spend with the mother during 2012, for periods not exceeding four nights, on providing the mother with 30 days notice of his intention to do so.
The complaints in relation to those orders are formally articulated in grounds 1 – 5 inclusive of the father’s Notice of Appeal.
The father’s submissions in support of these challenges were cogently articulated. It is preferable to reproduce those submissions than to attempt to paraphrase them. The submissions asserted:
2.Whether there was a proper consideration and safeguards considered by the Federal Magistrate when Orders made and whether consideration was given toward the Appellant’s response to proposed application made by the Respondent and ICL on behalf of the Respondent before the Orders (13), (14) and (15) were made to allow the Respondent to leave Commonwealth of Australia with the child without any assurance or guarantee of any kind that the Respondent would return the child back to Commonwealth of Australia in the near future.
3.The Appellant asserts that the Respondent has no ties to Australia.
4.The Respondent has no family in Australia. All her family members and all close relatives live in [Eastern Europe] and the Respondent has no tangible financial ties to Commonwealth of Australia to warrant her need to return.
5.The Respondent is employed by […], which is an international company. The Respondent can easily obtain a transfer from her employer to work in another country for another affiliated company within the employer’s group. The respondent in the past has been posted by her employer to work overseas. The Appellant asserts that there is a real risk of the Respondent relocating not to return to Commonwealth of Australia with the child. (Errors as in original)
In her submissions in reply, the mother submitted:
17.[M] is the only grandchild for both families and I believe that [it] is very important for her to have access to both grandparents.
The mother also relied upon the terms of the orders made by the learned Federal Magistrate and the fact that the mother has been living in Australia for more than 8 years and has “developed a great network of friends and connections the [sic] gives her great support during this difficult times”. The mother also asserted that, had she been “really keen to leave Australia, she would have done it much before the final hearing”.
Regrettably for the mother, the learned Federal Magistrate’s Reasons for Judgment do not engage with this topic in detail. When identifying the competing proposals of the parties, her Honour identified that the father “seeks that the Watch List order continues” with respect to the child. The learned Federal Magistrate then recorded the orders proposed by the ICL. Those orders did not include any provision for the mother removing the child from the Commonwealth, but sought “the usual watch list order against the mother and father from removing the child.”
The learned Federal Magistrate then recorded that:
11.With the exception of her opposition to the Watch List order continuing, the mother supports the proposal put by the ICL.
Later in her Reasons for Judgment the learned Federal Magistrate recorded that:
67.The child also has grandparents on both sides of the family. The mother’s parents were staying with the mother for some time but have now returned to [Eastern Europe]. The mother would like to take the child to visit them.
Subsequently, at paragraph 90, the learned Federal Magistrate recorded that “The mother has sought permission to take the child overseas for four weeks in 2012”.
The Reasons for Judgment of the learned Federal Magistrate in relation to this issue provided:
93.Subject to certain conditions contained in the orders, the mother should be able to take the child to visit her parents in [Eastern Europe] for a period of up to four weeks during 2012. The father should also be able to take the child to Adelaide for three periods of time, additional to the time she would normally spend with him, not exceeding four nights on each occasion during 2012 to compensate him for the time lost while the child is overseas.
To the extent that the father complained that the mother may not have made a formal application for orders permitting her to remove the child from the Commonwealth, as the references to the transcript of the trial to which the father himself referred make clear, from early in the proceedings, if not earlier, it was apparent that the mother was seeking such an order and that the father opposed it.
Whatever formal deficiencies may have attended the mother’s request to remove the child from the Commonwealth, there being no denial of natural justice to the father in permitting it to be agitated, it cannot be accepted that the learned Federal Magistrate erred by allowing the issue to be pursued. That however is not conclusive of the issue.
The transcript of the trial reveals that final submissions, sensibly, focused on the proposals submitted by the ICL. As recorded earlier, those proposals did not include any provision for the mother removing the child from the Commonwealth.
During the course of the father’s submissions, he reiterated:
“I just wanted to make sure that we are agreed on the watch list to be continuing, yes”.
To which the learned Federal Magistrate responded:
“The ICL has a watch list order in her draft but the mother opposes that”.
The father then replied:
“I elect that this watch list continues for obvious reasons, your Honour, until mother as such would make an application at some future date for a change. At this point of time I think it shouldn’t be removed. It will be far too risky for the child.”
The learned Federal Magistrate then said “Okay, anything else?”, whereupon the father moved onto other topics.
Brief submissions were then made by the ICL and/or the mother. They do not appear to have traversed the topic of the child’s removal from the Commonwealth.
The crux of the father’s complaint is probably encapsulated in his submission that:
10.… Instead the Federal Magistrate merely questioned [the mother], as follows:
“So you would be seeking that there be an exception to that to allow you to travel to visit your parents for a period of four weeks in 2012?” […]
In support of his contention, the father referred to an exchange, which occurred early in the trial, and prior to any cross-examination of witnesses. To better appreciate the issue requiring determination by this Court, it is appropriate to record the exchange which occurred at that time in relation to that topic:
HER HONOUR: So the opportunity for your parents to visit is very limited, if any at all.
MS [STATIVA]: Yes.
HER HONOUR: Okay. Now, at the moment do you have any proposal to visit them, at the moment?
MS [STATIVA]: I don’t have any proposal but I’m planning next year to go and visit them and I, in my affidavit I mentioned four weeks because the travel to [Eastern Europe] takes a long time, it’s like 32 hours flight and then, so it’s like more than half a week is spent travelling and then the cost involved is huge so it’s like more than $5000 to have it, two weeks is just waste of money, I mean, because, so four weeks is maximum holiday that I can take from work. And I, I mean, in my proposal I would inform [Mr Stativa] when I go, when I’m coming back, all the details so there won’t be any surprises, you know. He will know where I will go, he went to my parents’ place, he knows where they live.
HER HONOUR: So you would be seeking that there be an exception to that to allow you to travel to visit your parents for a period of four weeks in 2012?
MS [STATIVA]: Yes, yes. I mean, it is highly unlikely that my parents will be able to come back and if I allow and I’m very flexible in allowing [Mr Stativa’s] parents to have access to [M], I think it would be fair to have my parents have access to her as well.
HER HONOUR: All right. Thank you.
MS [STATIVA]: Thank you.
HER HONOUR: And, Mr [Stativa], the Independent Children’s Lawyer has summarised what she understands you to be seeking. Could you indicate, could you confirm that that’s what you are seeking?
MR [STATIVA]: Your Honour, thank you. Your Honour, I actually have stated the arrangements for the airport watch be continued due to the fact that [Ms Stativa] doesn’t have any roots here in Australia. Her job - - -
HER HONOUR: I don’t need you to address that particular issue.
MR [STATIVA]: Yes.
In the affidavit to which the mother referred, sworn 14 June 2011, the mother deposed:
135.I also ask the Court to allow the mother and [M] to visit the maternal grandparents oversees for a 4 weeks per year. My father has suffered a major stroke while he was visiting me in Australia and would be very unlikely that he will be able to travel again and/or to get a visa to travel. (Errors as in original)
In his affidavit, sworn 20 June 2011, the father deposed:
124.Mother does not have established roots in Australia. She has Australian passport and can at any time obtain [a passport from her country of birth] as she was born there. Her parents have recently returned to [Eastern Europe] and her father had a stroke while in Australia. She does not have family here and she only has distant cousin and [Eastern European] friends in Australia. She does not have sufficient ties to this country or any obligations to keep her here. With the demise of […] industry on the agenda she can seek to relocate to other countries or return to [Eastern Europe]. Mothers recent enquire into taking [M] with her overseas show that the mother may choose to relocate at any time and is at present a flight risk. I feel that if given the permission to travel outside the Commonwealth jurisdiction with the child she is likely to never return, as she is able to live and work in [Eastern Europe] and some other countries. Some of these countries do not have signed extradition treaty with Australia. I strongly would object for mother to be given a permission to take the child out of Australia at stage being so young and vulnerable. At present, her ties are greater to [Eastern Europe] than here and there is a great deal of risk in that, the mother may choose to stay in [Eastern Europe] or other countries and not return with the child back to Australia. Such risk is very real and given her present circumstances in my opinion she is likely to take the child and never return. (Errors as in original)
Albeit sworn on 15 October 2009, the mother deposed in response to an earlier affidavit of the father:
93.…
3. … As to the suggestion that I would take [M] from Australia to [Eastern Europe], the same is simply absurd. [M] does not hold [a passport from my country of birth] or indeed an Australian passport. Either passport can only be obtained with the consent of both parents. …
The issue was not revisited during preliminary exchanges during which the learned Federal Magistrate was endeavouring to identify the areas in dispute. The evidence then began. Neither party has referred this Court to oral or other evidence, in support of, or in opposition to the mother being permitted to remove the child from the Commonwealth which arose during the course of the trial. The Court has not found for itself any evidence at the trial, either by way of evidence in chief from the mother, or cross-examination upon the evidence of the father in relation to the child’s removal from the Commonwealth. Beyond stating her desire to do so, and its basis, and refuting any suggestion that she would not return the child if permitted to remove her, the mother did not adduce evidence in support of the removal of the child from the Commonwealth.
With all due respect to the learned Federal Magistrate, and accepting that the issue was not agitated before her in the way in which it has been before this Court, and that it appears to have been very much ancillary to the broader issues requiring determination, the Court cannot reject the substance of the father’s submissions. Other than to the extent referred to earlier in these Reasons [par 30], the learned Federal Magistrate did not reveal the process of reasoning which led her to make the orders she did permitting the mother to remove the child from the Commonwealth. Nor, in the context of her determination of other aspects of the proceedings did the learned Federal Magistrate record the findings of fact in reliance upon which an order permitting the mother to remove the child from the jurisdiction might be based (see Pettitt v Dunkley [1971] 1 NSWLR 376, Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Bennett & Bennett (1991) FLC 92-191).
Regrettably, whilst the Court cannot say, particularly having regard to the way in which the case was presented before the subordinate court, that the learned Federal Magistrate could not have permitted the mother to have removed the child from the Commonwealth, in the terms in which she did, her Honour’s Reasons do not reveal that the issue was adequately considered. As it cannot be concluded that proper consideration of this issue could not have produced a different outcome, this challenge is entitled to succeed.
The father also complained:
16.The Orders made favour of the Respondents grandparent over the Applicants grandparents based in Adelaide. Respondent and the grandparents were allowed extended period with the child while the Appellant and grandparents were discriminated against and allowed disproportionate and unequal time with the child. The Federal Magistrate in her Orders showed bias toward the Appellants grandparents and the time the child would be able to spend with them. (Errors as in original)
With respect to the father, this complaint has no substance. The orders of the learned Federal Magistrate provided that the father be “at liberty to take the child to Adelaide to visit his parents at any time when she is in his care provided he gives the mother at least 30 days notice” [order (4)(b)(xii)]. Her Honour’s orders further provided, in the event of the mother removing the child from the Commonwealth for the four week period in 2012 provided by her orders that the father was able to “take the child” to Adelaide on three separate occasions when the child would otherwise be with the mother [order 15(b)].
As is not in doubt, the welfare of children is evaluated qualitatively not quantitatively, as are children’s relationships with grandparents and other persons of importance to them. Nothing to which this Court has been referred begins to establish either discrimination or bias of the kind the father asserts.
The father made a series of complaints with respect to the other orders made by the learned Federal Magistrate. The first of those relates to the learned Federal Magistrate’s conclusion that the presumption of equal shared parental responsibility should be rebutted.
Sole Parental Responsibility
Nothing referred to by the father of his submissions demonstrates appealable error. The expert opinion and lay evidence before the learned Federal Magistrate, and findings of fact made in reliance upon it, provided ample foundation for concluding that continuing the presumption of equal shared parental responsibility would not be in the child’s best interests. This Court has not been referred to anything which establishes that the learned Federal Magistrate’s conclusions were vitiated by erroneous findings of fact.
The father’s submissions in relation to an intervention order and “alleged family violence” are misconceived, in that the learned Federal Magistrate did not find that the presumption of equal shared parental responsibility did not apply by virtue of family violence pursuant to s 61DA of the Act. The learned Federal Magistrate recorded in this regard:
43.Further, s.61DA of the Act sets out that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That presumption may also be rebutted by evidence that convinces the Court that equal shared parental responsibility is not in the child’s best interests. (Footnote omitted).
The learned Federal Magistrate further recorded that:
49.While I am satisfied that the father’s behaviour could be intimidating and that the mother, consistent with her own evidence and the observations of Dr [N], does find him to be intimidating at times, there are in this case other reasons for the Court to consider that equal shared parental responsibility is not appropriate.
50.A consistent theme in the affidavit evidence and the oral evidence before the Court is the incapacity of these parents to agree on how the child should be raised. This even extends to issues about the child’s diet and clothing as well as what are suitable developmental milestones she might be expected to achieve. There is no evidence that the father is prepared to engage in collaborative parenting and he was, for the most part, pejorative in his approach to the mother and her parenting views and skills.
Her Honour explained why the presumption of equal shared parental responsibility was rebutted in the following terms:
53.In coming to the view that it is most appropriate that the mother has sole parental responsibility for the child, I have taken into account her own evidence that she would consult with the father about issues such as the child’s schooling and seek to reach agreement with him. I have also taken into account Dr [N’s] concerns about the risks to the child from being exposed to her parents’ conflict and inability to agree “over the most fundamental of parenting issues”. (Footnote omitted)
The father’s complaint that “the Federal Magistrate denied the Appellant any proper hearing of the issue” was not sought to be established by reference to any passage in the transcript of the trial. The Court has read the transcript of the trial in its totality. So doing has revealed nothing which could establish the father’s complaint.
With respect to him, the father was afforded procedural fairness and natural justice by the learned Federal Magistrate, and allowed to conduct his case, substantially in the way he sought to. The interventions by the learned Federal Magistrate which the transcript reveals were appropriate, and in no way prejudiced the father in the conduct of his case. In what way the father asserts that he was so disadvantaged has not been identified. This complaint lacks substance.
It was then complained by the father that:
20.The Federal Magistrate was biased toward the Appellant where she did not allow the Appellant to be heard on the matter and chose to use IVO [intervention proceedings] as evidence without allowing the Appellant to be heard on the matter and found that she was satisfied. She stated the following in her summary:
“83.I am satisfied that the mother finds the father to be intimidating and I am also satisfied that he becomes angry when she disagrees with him or fails to act in a manner which finds his approval.” […]
Although the father may not appreciate it, neither there or elsewhere in her Reasons for Judgment did the learned Federal Magistrate impermissibly rely upon the IVO [intervention proceedings], either as a basis for a finding of fact, or for the drawing of any inference. Her Honour had earlier, at paragraph 53 of her Reasons, explained why the presumption of equal shared parental responsibility was rebutted.
The passage extracted by the father proceeded to record that the mother “indicated to Dr [N] that he [the father] was not a violent man and to the Court that she [believed] that the child was safe in his care”.
Her Honour further recorded:
84.I am of the view that the father is a person who does not like to be contradicted and is firmly convinced of the correctness of his own views. As noted by Dr [L], this does not suggest that he is capable of collaborative parenting.
Nothing to which the Court has been referred establishes that the findings there recorded by the learned Federal Magistrate were not reasonably open to her. Those findings supported the conclusions her Honour recorded. Indeed, as her Honour recorded, Dr N and Dr L had also reached substantially similar conclusions on the basis of their observations of the father.
Moreover, as the learned Federal Magistrate’s reasons for concluding as she did with respect to both parental responsibility and time to be spent with the father confirm, family violence did not assume significance in that determination, much less assume significance to the detriment of the father. This complaint fails.
With respect to him, the father’s submission that the learned Federal Magistrate’s conclusion with respect to parental responsibility was erroneous, overlooks the reasons why her Honour did so. They were reiterated in the following terms:
97.The father has sought both equal parental responsibility and equal time with the child. As previously indicated, I am not of the view that equal parental responsibility is appropriate in this case, primarily because of the conflicting views between the parents about what is in the child’s best interests, the conflict and lack of communication between them and the likelihood that they would be unable to reach agreement on significant issues.
The learned Federal Magistrate recorded in considerable detail, the findings of fact upon which she relied in support of her conclusion with respect to parental responsibility. None of those findings of fact has been shown to have been “unsafe”, or other than reasonably open to her Honour (see Edwards v Noble (1971) 125 CLR 296). Nor has it been demonstrated that the learned Federal Magistrate “palpably misused” the “advantage” she enjoyed of having seen and heard the witnesses who gave evidence in relation to the factual matters relevant to this issue (see SS Hontestroom v SS Sagaporack [1927] A.C. 37, Voulis v Kozary (1975) 180 CLR 177, Abalos v Australian Postal Commission (1990) 171 CLR 167, Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 and Kamano & Kamano [2011] FamCAFC 189). The conclusion the learned Federal Magistrate reached in relation to parental responsibility was open to her on the findings of fact made by her Honour. This complaint fails.
The father then complained:
23.Federal Magistrate showed bias toward the male gender in the absence of history of violence or bad parenting and stated that parties were unable to agree at times, lack of communication between parties to reach an agreement and rewarded the mother for being disagreeable. Parties live their own lives and they communicate regarding the child, both parents have expressed their view on occasion, and both acted in the best interest of the child. Decision not in the best interest of the child where according to many child Psychologists a child should have the benefit and input of two parents. (Errors as in original)
In what way the learned Federal Magistrate is said to have displayed gender bias has not been demonstrated, or even identified. The father’s own submission reinforces the insight of the learned Federal Magistrate in relation to the issue of parental responsibility. The complaint overlooks the reality that her Honour’s orders provide for substantial “input” into the child’s life by the father.
Time Spent with the Father
The father further complained:
24.Federal Magistrate erred in failing to consider how much time parent should spend with the child and toward their religious believes. Federal Magistrate herself of Irish decent and a Protestant, in conflict with that of Catholic faith erred to comment about the appropriate age child to practice their faith. (Errors as in original)
Whatever the “decent” [sic] and religious affiliations, if any, of the learned Federal Magistrate, and their possible “conflict” with the “Catholic faith”, no order made by her Honour constrains the parties in terms of their religious beliefs. That was not inadvertent.
Section 116 of the Commonwealth of Australia Constitution Act 1900 (Cth) provides:
Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
In Evers v Evers (1972) 19 FLR 296 Carmichael J recorded, with respect to religious freedom under the Constitution, at page 302:
… Section 116 of the Commonwealth Constitution enacts: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.” The Commonwealth, in pursuance of its powers, enacted the laws which give this Court its jurisdiction and powers. The Commonwealth cannot confer on the courts which it creates powers which the Commonwealth itself is prohibited from exercising. It follows [from s 116 of the Commonwealth Constitution] that the court cannot prohibit the free exercise of any religion. It is implicit in this last statement that the court cannot discriminate against any person for holding any religious beliefs or exercising his religion.
The freedom I see so granted is a freedom from the imposition of any theological ideas: Parliament and the courts cannot prefer Christianity to any other religion, or prefer any religion to none at all. …
Nothing to which the Court has been referred establishes that this challenge has substance. The learned Federal Magistrate’s orders did not contravene s 116 of the Commonwealth Constitution. Nor did they in any way impede the ability of each of the child’s parents’ to introduce the child to, or advance the child’s association with the religion of his or her choice, or to have no such association.
Although no ground of the father’s Notice of Appeal expressly articulated it, his Summary of Argument and oral submissions revealed that a major complaint of the father was that the learned Federal Magistrate erred by reducing the time the child would spend with him from what it had been since consent orders were made on 24 February 2010, in circumstances where the expert opinion evidence not only did not support doing so, but supported increasing the time which the father would spend with the child.
The consent orders of 24 February 2010 provided, albeit by five discreet periods in each two week period, that the child spend four nights in each such period with the father. The orders made by the learned Federal Magistrate reduced the time the child spent overnight with the father to three nights in each fourteen-day period, at least until the child commenced to attend school. Before this Court the parties did not agree as to when the child will commence school. After the child commences school, she will spend four nights with the father in each two week period.
Rather than paraphrase them, for they are cogently articulated, it is appropriate to reproduce the father’s submissions in support of these challenges. They asserted:
25.Federal Magistrate erred in failing to consider Dr [N] and Dr [L] reports, both child psychologists recommended in their reports increase in time a child to spend with the father when child gets to 3 years of age and above. Dr [N] also recommended there be consolidation of time with the father based of what was already established in the orders from Family Court on the 24 February 2010. In her report Dr [N] stated:
“If this can be done I would expect that as [M] grows her time with her father should consolidate as frequent shorter visits become less necessary, and that such consolidation might begin to occur when she is about 3 years, as she appears to be in the lower ranges of development for her age.” […]
26.Federal Magistrate erred in failing to consider established time a child already spend with the father in the Orders made by Family Court on the 24th February 2010 and Dr [N’s] report where she did not recommend a reduction of time the child to spend with the father in her report filed on 7th January 2011 where assessment took place on the 27th October 2010 when child was over 2 years of age at the time.
27.Federal Magistrate erred in failing to consider that both parties in their affidavit did not seek to reduce time a child to spend with the father as stated in the Order on 24th of February 2010. Since order was made a great deal of time past and child over that period grew accustom to the routine schedule she spent regularly the time with the father on a more frequent basis that it is now. Federal Magistrate erred by failing to consider this when she made an Order to vary the child’s time with the father to less frequent. Federal Magistrate did not take into consideration that a child grew accustom to a routine time with the father and now that the child is three and a half years old find it hard to accept why she cannot spend time with the father. The child often states that:
“I will be back to the father in three days and shows her three fingers on her hand”
28.The child time with the father is restricted. Previous Order was working well for the child in comparison to current order where the child would spend with the father time on Friday night to Saturday morning each week. This allowed the child to be away from the father no longer than for 3 days in comparison to now this is a week. Federal Magistrate made error in judgment which is not in the best interest of the child when Order were considered. Current order are inconsistent with the child psychologist’s recommendations as Federal Magistrate has decided to decrease the contact hours a child can spend with the father from what was already been previously established over a period of time. Federal Magistrate in her deliberation should have increase the time child can spend with the father and to consolidate the time over a weekend as was proposed by the Appellant.
29.Federal Magistrate in her deliberation made Order that is controversial and unfair to the child. Psychologist recommendation was ignored to increase and to consolidate time for the child to spend with the father. Appellant has proposed time-share arrangement in his affidavit that was in line with that which was already established by previous Order. Federal Magistrate rejected Appellants proposal in his affidavit. (Errors as in original)
In her submissions, the mother raised a number of matters, and particularly relied upon matters which she asserted emerged from the expert opinion evidence which had been before and was accepted by the learned Federal Magistrate.
Pivotal to the success of the father’s challenge is his assertion that Drs N and L “recommended in their reports increase in time a child to spend with the father when child gets to 3 years of age and above”.
The learned Federal Magistrate recorded:
34.Dr [N] considered the child to be well within normal ranges for her age across cognitive, social, fine and gross motor skills with some identified weaknesses in social play and gross motor skills which tended to be mastered in her next stage of development. This suggested that she was “young” for her age. (Original emphasis)
Her Honour also recorded:
35.Dr [N] observed the child with both parents. She considered the child’s behaviour to suggest that she sees her mother as her most important carer and that she needs to spend most of her time with her mother.
Reference was then made to the evidence of Dr N that:
36.…
The greatest risks seems to arise from the attitudes and behaviours promulgated by her father. These include a paternalistic and pejorative approach to her mother and maternal grandparents and, unless curtailed, (the child) seems destined to face cognitive and emotional conflicts from being presented with her father’s single-mindedness and denigration of her mother. For a young child . . . who does not have the critical analytical skills to be able to appreciate the context of her father’s attitudes, (the father’s) beliefs and attitudes are very likely to be confusing and emotionally disturbing. Exposure to this type of emotional stress tends to impact directly on a child’s biological, emotional and psychological development. (Footnote omitted)
The learned Federal Magistrate accepted the evidence of Dr N that:
37.…“At her age and development, the child requires a sense of stability and consistency of care in order for all of her energy to be directed towards the momentous developmental tasks before her”. (Footnote omitted)
Her Honour also accepted the evidence of Dr N that:
38.… both parents will need considerable professional assistance for a long time to come and that without professional assistance, “the prognosis for the parents’ capacity to co-parent seems to be very poor”. (Footnote omitted)
The evidence of Dr N was then again referred to with approval by the learned Federal Magistrate:
39.…
Ultimately, I recommend that (the child’s) time with her father remains at [sic] it is presently and that any other increments are built during therapy. I consider it essential that (the father) modify his behaviour in order to work towards the best outcomes for their daughter. If this can be done I would expect that as (the child) grows her time with her father should consolidate as frequent shorter visits become less necessary, and that such consolidation might begin to occur when she is about 3 years, as she appears to be in the lower ranges of development for her age. (Footnote omitted and Original emphasis)
Whilst that passage superficially appears to provide support for the father’s contention that the expert opinion evidence before the learned Federal Magistrate precluded a reduction in the nights the child spent with him, on closer analysis it does not do so. The recommendation of Dr N was clearly predicated on a scenario which has yet to arise. The recommendation was clearly qualified, and to be read in the context of other opinions which Dr N expressed, and the learned Federal Magistrate permissibly accepted. Properly understood, Dr N’s evidence did not assert either an increase in time spent, or opposition to the amount of time spent being reduced in a quantitative sense. As the mother submitted, “consolidation” does not necessarily imply increasing the time but rather, as Dr N suggested, reducing the frequency of shorter visits.
The father did not refer the Court to any other expert opinion evidence to support his contention that the time the child was to spend with him should be increased, or if not increased, at least not reduced.
The father submitted that the mother had not sought to reduce the time the child spent with him below the time which he was spending with the child pursuant to the 24 February 2010 consent orders. Whilst that may have been so in a formal sense, having regard to the transcript, and the mother’s endorsement of the orders sought by the ICL, by the time the trial commenced, the father would have been in no doubt that the ICL and the mother were in fact seeking to reduce the number of nights in each two-week period which the child would spend with him. The learned Federal Magistrate carefully explored with the parties what each was seeking, both prior to, and after the conclusion of the evidence at trial.
Order 3 of the consent orders of 24 February 2010 provided:
...
3.That from 26 February 2010 until further order [M] shall reside with the father as follows:
a.Week 1:
i.Each Monday 8.30 am to Tuesday 8.30 am;
ii.Each Friday 6.00 pm to Saturday 11.30 am; and
iii.Each Sunday 8.30 am to Sunday 6.00 pm;
b.Week 2:
i.Each Monday 8.30 am to Tuesday 8.30 am; and
ii.Each Friday 6.00 pm to Saturday 9.00 am.
As is clear from their terms, the orders provided for five discreet periods during which the child was to spend time with the father. That entailed four overnight stays. The total hours during which the child would spend time with the father across the five identified periods was approximately ninety hours.
The orders made by the learned Federal Magistrate with respect to the time the child would spend with the father until the commencement of school provided two occasions in each fourteen-day period, the first involving two overnight stays, the second one. The total time to be spent in each fourteen-day period was approximately seventy-two hours. The father submitted that to reduce the time the child would spend with him was not reasonably open to the learned Federal Magistrate, in view of Dr N’s recommendation [par 39].
The learned Federal Magistrate revisited the question of the time the child should spend with the father in the context of her consideration of s 60CC factors, and recorded:
87.Dr [N] recommended that the child’s time with her father remains as at present and that any other increments are built during therapy. She suggested that as the child grows, the time with her father should be consolidated as frequent, shorter visits become less necessary.
88.The orders proposed by the ICL and accepted by the mother provide for both consolidation of existing time and an incremental increase in overnight time. (Original emphasis)
The orders made by the learned Federal Magistrate until the child commenced school, effected a “consolidation” of existing time, and an increase in the duration of individual visits, and reduced the frequency of shorter visits, but reduced the aggregate time which the child was to spend with the father, at least until the child commenced to attend school.
Once the child commenced to attend school the orders of the learned Federal Magistrate provided for approximately eighty-six hours per fortnight during school term, plus one half of school holidays, which, without calculating it with any precision, would clearly, across the course of a year, be more substantial and significant time than the orders provided prior to the child commencing school, or pursuant to the orders of 24 February 2010.
In the course of her Reasons with respect to s 60CC factors, the learned Federal Magistrate made numerous findings, partly in reliance upon her own observations of the father, partly by accepting expert opinion evidence from Drs N and L, which were supportive of reducing the frequency of periods of time the child spent with the father, even if that meant a reduction in the aggregate time the child spent with him. Her Honour was not bound by that expert opinion evidence, the function of which was to assist her to determine the child’s best interests (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). Even if her Honour was not at liberty to do other than accept the recommendation emerging from the expert opinion evidence, read in context they were not inconsistent with her Honour’s conclusions.
Whilst, on the evidence before her, the learned Federal Magistrate could permissibly have come to other conclusions, and ordered that the child’s time with the father on alternate weekends commence somewhat sooner than her orders provided, it has not been established that it was not reasonably open to her Honour to conclude as she did.
The matters raised by the father in his Summary of Argument cannot enliven appellate intervention. These challenges fail.
conclusion
The father’s challenge to the learned Federal Magistrate’s order with respect to the child’s removal from the Commonwealth has been established. The basis, upon which it has, renders remission of that issue for re-determination unavoidable. It is regrettable that this Court is not in a position to re-exercise the Federal Magistrate’s discretion in relation to this issue.
As suggested earlier, upholding the father’s challenge to the learned Federal Magistrate’s order implies no criticism of her Honour. The issue was raised by the parties, seemingly for the first time when the trial commenced. Neither party was represented. Neither party agitated the issue during the course of the evidence at trial. Although it is clear that the mother maintained her request to be able to remove the child, which the father opposed, the issue was very much ancillary to the main event.
As is not in doubt, unless the mother’s application is reheard expeditiously, its fate will become academic. To that end the Court will request that the Federal Magistrate’s Court re-hear the issue with the utmost expedition. Hopefully to facilitate such expedition, the Court will direct the parties to file and serve any affidavit material intended to be relied upon by either of them in relation to the issue within 21 days.
The submissions of both parties reveal an understanding of the evidentiary matters which would be relevant to the re-determination of the issues which were not before the learned Federal Magistrate.
costs
In the circumstances, it is appropriate that the parties have costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the re-hearing of the mother’s application to remove the child from the Commonwealth of Australia for a period of four weeks during 2012.
I certify that the preceding ninety seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 30 March 2012.
Associate:
Date: 30.03.2012
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