Stern & Colli
[2022] FedCFamC1A 95
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Stern & Colli [2022] FedCFamC1A 95
Appeal from: Stern & Colli [2021] FedCFamC1F 301 Appeal number(s): NAA 11 of 2022 File number(s): MLC 7373 of 2017 Judgment of: AUSTIN, TREE & JARRETT JJ Date of judgment: 30 June 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the appellant father’s application for final parenting orders as a preliminary issue – Principle in Rice and Asplund (1979) FLC 90-725 – Where the primary judge determined the appellant did not demonstrate a material change in circumstances sufficient to warrant fresh consideration of parenting orders – Where the primary judge failed to consider the significance of the changed circumstances promoted by the appellant – Inadequate reasons given for determination – Appeal allowed. Legislation: Family Law Act 1975 (Cth) Pt VII Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Defrey & Radnor [2021] FamCAFC 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494; [2021] FCAFC 143
Searson & Searson (2017) FLC 93-788; [2017] FamCAFC 119
Shan v Prasad (2020) 61 Fam LR 440; [2020] FamCAFC 189
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Stern & Colli [2020] FCCA 795
Stern & Colli [2021] FamCAFC 15
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 55 Date of hearing: 2 June 2022 Place: Heard in Melbourne, delivered in Sydney Counsel for the Applicant: Ms Tiernan Solicitor for the Applicant: Webb Legal The Respondent: Litigant in person ORDERS
NAA 11 of 2022
MLC 7373 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR STERN
Appellant
AND: MS COLLI
Respondent
ORDER MADE BY:
AUSTIN, TREE & JARRETT JJ
DATE OF ORDER:
30 JUNE 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders of the Federal Circuit and Family Court of Australia (Division 1) made 17 December, 2021 be set aside.
3.The proceedings be remitted for hearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 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 the appellant in respect of the costs incurred by him in relation to the appeal.
5.The Court grants to the appellant and the respondent 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 the costs incurred in relation to the rehearing of these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stern & Colli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
THE COURT:
The appellant father appeals from an order made by a judge of this Court dismissing his application to review a decision of a senior registrar which, in turn, dismissed his application to vary certain parenting orders made under Pt VII of the Family Law Act 1975 (Cth). Those parenting orders concern X, now five years old, the daughter of the appellant and the respondent mother.
The appeal must be allowed. These are our reasons for so concluding.
BACKGROUND
The mother the father are both working professionals and commenced a relationship in September, 2014 and separated in November, 2016. They have one child together, X, who was born in 2017.
The father has married since separation from X’s mother and has two other children with his wife. The mother has no other children.
Following a five day trial in the Federal Circuit Court of Australia (as it was then known), final parenting orders were made on 8 April, 2020 by Deputy Chief Judge Mercuri (as her Honour now is). Those orders were amended on 25 September, 2020 to correct some clerical errors. At the time of the trial, the mother and X lived in Town A and the father lived in Suburb G, Melbourne. There was a distance of approximately 280 kilometres between their respective homes, or about four hours travelling time by road.
The geographical distance between the parties played a significant role in the way in which the Deputy Chief Judge Mercuri formulated the orders. So much can be seen from paragraphs [5], [34], [138] and [259] of her reasons: Stern & Colli [2020] FCCA 795.
The final orders provided for the father and the mother to have equal shared parental responsibility for X, for her to live with her mother and for her to spend time with her father according to a graduated regime that changed upon the passing of certain milestones in X’s life. Thus, initially the time X would spend with the father was each Wednesday for seven hours and each alternate weekend from 10.00 am Saturday to 3.00 pm Sunday. When she turned three the alternate weekend time extended so as to commence at 3.00 pm on Fridays. At that point particular provisions were introduced for special days at Easter and Christmas. The regime changed again when X turned four years old so as to introduce periods of three consecutive nights with the father during school holiday periods. Particular provisions were again made for Easter and Christmas.
The regime of time changed again upon X commencing her foundation year of education in 2022. At this point, the seven hours of time on Wednesdays ceased but the alternate weekend time continued. Longer periods of time between X and the father are introduced to the holiday arrangements. Upon X commencing grade one in 2023, the holiday time is to increase further such that by the end of grade one X will be spending more or less equal time with her parents during her school holidays.
The father appealed those orders. In addition to the father’s appeal, soon after the orders were pronounced in the Federal Circuit Court, both parties filed applications to vary them – the father sought the correction of what he contended were errors in the orders and the mother sought a variation to ensure that the orders were workable during restrictions imposed by reason of the COVID-19 pandemic. Those applications were finalised by orders made on 25 September, 2020. Both parties enjoyed a measure of success.
It is uncontroversial that in the meantime the father, his wife and their two children moved to Town K, such that the travelling time between his home and X’s home was reduced to about 40 minutes. That prompted him to file another Initiating Application on 7 September, 2020 in which he sought orders that X continue to live with the mother but that she spend one night each week and every alternate weekend with him. His application also sought “leave to particularise final orders sought 14 days prior to the final hearing”. He sought a range of interim orders which relevantly included an order that X spend time with him every Tuesday and Thursday from 9.00 am to 5.00 pm, each alternate weekend from 9.00 am Friday to 5.00 pm Sunday and otherwise holiday time as set out “in the 8 April 2020 orders”. He sought some other orders, including the appointment of a single expert “to produce a report into which time arrangements will be in the best interests of the child going forward.”
By her Response to that application filed on 12 October, 2020 the mother sought an order dismissing the father’s fresh application “under the rule of Rice v Asplund” – a reference by her to Rice and Asplund (1979) FLC 90-725. Oddly, she also sought by way of interim orders what appear to be variations to the final parenting orders concerning the time spending arrangement for Christmas, changeover arrangements more generally and the Skype calls between the father and X.
The father filed an Amended Initiating Application on 11 January, 2021. To the final orders that he originally claimed, he added an order the effect of which would be to advance the holiday time spending arrangements in the 8 April, 2020 orders by 12 months. Additionally, he amended the interim relief that he sought. Instead of time on Tuesdays and Thursdays, the father now sought time on Tuesdays and Fridays. He sought to extend that weekday time by an hour (compared to that originally sought) and the weekend time by an additional hour (half an hour at the beginning and the end of each alternate weekend period).
The appeal instituted by the father against the final parenting orders was dismissed on 18 February, 2021: Stern & Colli [2021] FamCAFC 15.
The father’s Amended Initiating Application came before a senior registrar on 22 March and 15 April, 2021. On 22 April, 2021 the senior registrar acceded to the mother’s request to dismiss the father’s amended application in its entirety. The father promptly filed an application to review the senior registrar’s decision.
The application to review came before the primary judge for hearing on one day in June and two days in July, 2021. Following the hearing day in June, each party filed written submissions and the mother filed a second written submission in July.
The father’s submissions filed on 18 June, 2021 identified what he contended were four changes in circumstances since the making of the final orders in April, 2020 that warranted a revisiting of the arrangements for X. They were:
(a)his relocation (with his wife and other children) from Melbourne to Town K – now about 40 minutes’ drive away from X’s residence;
(b)his work commitments. He argued that his workplace rostered some work involving his clients almost exclusively on Wednesdays. Because he was unable to work on Wednesdays as a result of X being in his care pursuant to the orders he needed to have other co-workers cover for him on those days. He claimed that having to do so was harming his work and his relationships with other busy co-workers and clients;
(c)the fact that X’s half-sister was at kindergarten on Wednesdays which meant that X and her half-sister would not spend time, or as much time together if the mid-week time remained on Wednesdays; and
(d)the fact that X was older now than she was when the family report that informed the orders of the Federal Circuit Court was completed. He pointed out that she was two years of age when that report was undertaken whereas she was four years of age at the time of the father’s submissions.
In the 18 June, 2021 submissions, the father reaffirmed that he was seeking orders in accordance with his 7 September, 2021 application (as amended), namely that X live with the mother and spend one night each week and alternative weekends with the father. He describes this as a “9-5 arrangement” which he sought to further particularise after a new family report. The submissions call up a graduating scheme outlined in paragraph 31 of his affidavit filed on 1 April, 2021 which contains more detail.
The orders set out in the affidavit were further revised by the father when his counsel set out the orders the father was seeking at the hearing on 1 July, 2021.
For reasons delivered on 28 July, 2021, the primary judge ordered that the father obtain a “family report at his expense before the father’s application to review the decision of the Senior Registrar is determined”. His Honour recorded the father’s submission that since the making of the final orders changes had occurred that pointed to the need to reconsider those orders: first he now lived much closer to X than he did when the orders were first made; second the time he was to spend with X on Wednesdays was unworkable; third the family report prepared for the trial in the Federal Circuit Court was based on X’s development then at 21 months, not as a child nearing four years of age. Finally, he pointed to the childcare/daycare arrangements for X’s half-sister and argued that those arrangements meant that the parenting arrangements for X should be reconsidered.
Next, the primary judge turned his mind to the authorities and in particular Marsden v Winch (2009) 42 Fam LR 1. At [35] his Honour summarised what he considered to be the important aspects of that case. It was not suggested to us that his Honour misunderstood or erroneously summarised the principles that emerge from that authority.
Under the heading “Analysis” his Honour observed that:
42.… It has also been held that the identification of the asserted change or changes of circumstances is a critical step in the process of evaluation and assessment of an application of that nature…
(our emphasis, footnote omitted)
Immediately thereafter his Honour said:
42.… It has also been stated that the so-called rule in Rice & Asplund is no more than a manifestation of the best interests principle where the fundamental question is whether or not it is in the best interests of the child to embark upon another final parenting hearing…
(footnotes omitted)
His Honour considered that it was “vital” to obtain a family report and to hear the parties in relation to that report before a decision could be properly given on the father’s application. An order was made for the father to organise and pay for a “family report” and the application was adjourned to permit that to happen. The further hearing of the application was adjourned to 28 October, 2021.
The application returned before the primary judge on 8 December, 2021 by which time the family report was to hand. The father provided another minute of the orders he sought to be made to the primary judge. That minute differed from the orders as formulated by the father on previous occasions. After hearing further argument and then reserving his decision, on 17 December, 2021 the primary judge dismissed the application to review for reasons he delivered on that day.
Those reasons record that the family report his Honour had ordered had been obtained. He noted that the family consultant had interviewed the parties as well as X. He recorded the report writer’s opinion that the hostility between the parties was likely to continue well into the future. His Honour set out the recommendations made by the report writer. Those recommendations differed from the final orders made in April, 2020 (as amended in September, 2020) in the following respects:
(a)at paragraph 96 of the report the family consultant suggested that X’s time with the father could conclude on alternate Sundays at 5.00 pm rather than 3.00 pm as provided for in the orders. This was not consistent with the father’s proposal in that he was advocating for a change to the commencement and conclusion time for both the weekend time and the time that was to occur on Wednesdays;
(b)at paragraph 98 of the report the family consultant suggested that, commencing with her Prep year at school in 2023, X’s time with the father could progress and occur each fortnight from the conclusion of school on Friday to the commencement of school the following Monday morning (rather than Sunday afternoon), plus each Wednesday from the conclusion of school until 6.00 pm (rather than no midweek time at all). This too was not consistent with the father’s proposal, particularly in respect of mid-week time.
The recommendations of the family consultant did not go so far as to support the orders that the father was seeking in his amended application as described by his counsel in July, 2021 or as set out in his minute of orders sought filed on 8 December, 2021.
His Honour recorded that the father:
(a)had argued that his employer will not release him from his regular rostered work on Wednesdays;
(b)had argued that the time recommended by the family consultant would not enable X to attend pre-school events with her half-siblings; and
(c)was critical of the family report for failing to address:
(i)issues concerning the father’s own problems with Wednesday time; and
(ii)X’s lack of opportunity of attending pre-school with her half-siblings under the current orders.
His Honour then said:
8.The [mother] submitted, correctly in my view, that the [father’s] proposal did not have the support of the family consultant. She renewed her submissions that the orders of the senior judicial registrar should not be reviewed in the manner sought by the [father]. She submitted that the fact of a party living nearer the other or the fact that a party wishes more time with the child is not sufficient, on Rice v Asplund principles, to warrant reopening the case. The [mother] submitted that the [father’s] appeal from the orders of Deputy Chief Judge Mercuri was dismissed yet he persists in his endeavours to push for what he wants. The [mother] submitted that the [respondent’s] applications to me on this review application must be dismissed.
9.I agree.
10.The family consultant does not endorse the [father’s] proposal. The fact that the [father] has moved closer to the child is not determinative of the matter. The [father] unsuccessfully appealed the comprehensive reasons of the Deputy Chief Judge who tried the case. The fact that the [father] works on Wednesdays is not a sufficient reason to make different orders to the orders made by the senior judicial registrar.
(footnotes omitted)
The Application for Review was dismissed.
THE GROUNDS OF APPEAL
Initially the father pursued seven grounds of appeal, but by his Amended Notice of Appeal filed on 5 April, 2021 he abandoned Grounds 5 and 7. He presses the remaining five grounds of appeal.
Grounds 1 and 2 whilst stated as standalone grounds, are related. We will deal with those grounds together. Grounds 3, 4 and 6 can be seen to be challenges to the weight ascribed by the primary judge to the evidence of the single expert and the father’s self-serving assertions about various matters. We will deal with those grounds together.
GROUNDS 1 AND 2
These grounds provide as follows:
1. The learned trial judge at first instance failed to provide adequate reasons for his decision.
2. The learned trial judge at first instance erred and his Honour's discretion miscarried in confining the scope of his enquiry to whether there had been a 'significant change in circumstances' rather than considering whether the father had established a prima facie case of changed circumstances and whether that case is a sufficient change of circumstances to justify embarking on a hearing.
In Marsden & Winch this Court said:
57. In Miller & Harrington (supra) the Court posed the question:
105. Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
58.That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
These remarks were applied or referred to without disapproval by subsequent Full Courts in Searson & Searson (2017) FLC 93-788 and Shan & Prasad (2020) 61 Fam LR 440 at [41].
In Defrey & Radnor [2021] FamCAFC 67 after considering what was said in SPS and PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington (2008) FLC 93-383 at [105] and Marsden v Winch at [58] the Full Court summarised the law concerning Rice and Asplund as follows:
19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20.It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
(our emphasis)
The reasons delivered by the primary judge on 17 December, 2021 must be read with the reasons he delivered on 28 July, 2021. The latter reasons give the former reasons context and when read together record the whole of his Honour’s consideration of the application with which he was faced.
As we have extracted above, in the reasons given on 28 July, 2021 his Honour recorded that the identification of the asserted change or changes of circumstances is a critical step when considering whether it bears the necessary quality to justify further litigation about parenting matters otherwise settled by earlier final orders. His Honour identified the four circumstances that the father relied upon as changes for the purposes of his argument. At least two of those asserted changes were uncontroversial, namely that the father had moved closer to X’s residence and that he worked on Wednesdays and was unable to facilitate X’s time with him. Those facts appear to have been accepted by his Honour at [10] of his December, 2021 reasons and those two matters assumed greater significance than the remaining reasons.
In the hearing before us, counsel for the father submitted that the most significant change in circumstances was the move by the father to be closer to where X lived. The significance of that move was said to lie in the fact that the much smaller geographical distance between the parties opened up the possibility that X might spend substantial and significant time with her father once she commenced school. That possibility was foreclosed by the distance that existed between her home and her father’s household when the final orders were made in the Federal Circuit Court and it is a matter which determined the extent of the orders for time between the father and X when she commenced school: Stern & Colli [2020] FCCA 795 at [290].
We accept that his Honour identified the changes in circumstances relied upon by the father to justify revisiting X’s welfare and, in particular, his Honour understood that the most significant changes related to the father’s place of residence and his working arrangements. However, we consider that there is merit in the father’s argument that his Honour did not assess whether the father had established that these changes were sufficient to provoke a new inquiry, or alternatively, did not assess whether these changes, taken separately or together, were sufficient to justify embarking on a hearing. That is to say, whilst the primary judge may have carried out the first step in the two stage process described in Defrey & Radnor at [22], his Honour did not carry out the second step. Whilst it might be seen that the primary judge identified the asserted changes in circumstances said by the father to bear the necessary quality to justify further litigation about the April, 2020 parenting orders, he did not go on to consider whether those changes in fact bore the requisite quality.
At [10] of the December, 2021 reasons the primary judge says that the “fact that the [father] has moved closer to the child is not determinative of the matter”. This observation can be construed in two ways. It might be seen as expressing the idea that the mere fact that the father had moved, without any further consideration, was not determinative of the Rice & Asplund point. If that is the correct interpretation, then this is indeed a correct statement. That is because what is required by principle is not just a change in circumstances from those that existed at the time of the original orders, but a change that has a particular quality. An assessment of that quality is what is required by the second stage of the process described in Defrey & Radnor at [22].
Alternatively, this observation might be seen as a statement intended to convey a conclusion that the relevant change, assessed against the circumstances of the case as a whole, does not bear the necessary quality required to justify further proceedings about X’s welfare. If that is the correct interpretation, the primary judge’s reasons do not show how he arrived at that conclusion.
As to the fact that the father was unable to facilitate X’s time with him on Wednesdays, the primary judge said, “[t]he fact that the [father] works on Wednesdays is not a sufficient reason to make different orders to the orders made by the senior judicial registrar” (at [10]). However, there was no requirement upon the father to demonstrate a sufficient reason to make different orders to the orders made by the senior judicial registrar. The hearing before the primary judge was a hearing de novo of the father’s application for interim orders as set out in his Amended Initiating Application filed on 31 January, 2021 (as amended from time to time) and the mother’s Response to that application. Other than having a bearing on the form of order that might be made at the conclusion of the hearing, the orders made by the senior judicial registrar and the reasons for them were irrelevant: Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494 at [20] and [65]. The test against which the change in circumstances identified by the father was to be measured was that set out in Miller & Harrington at [105] and Marsden v Winch at [58] and as explained in Defrey & Radnor at [19]–[22].
Alternatively, to the extent that this statement represents a finding by the primary judge that the fact that the father was unable to facilitate X’s time with him on Wednesdays was not a change in circumstances sufficient to warrant a reconsideration of her welfare, his Honour’s reasons do not explain why that is so. We are unable to ascertain the reasoning upon which that determination is based: Bennett and Bennett (1991) FLC 92-191 at 78,266 adopting the test articulated in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18.
The father’s submission in the appeal that the primary judge “does not engage with the submissions or evidence available as to the impact of the [f]ather’s move to be closer to the child since the final orders were made” has merit. The geographical distance between the parties’ households at the time of the April, 2020 parenting orders clearly informed those orders. The practical difficulty in arranging the time X could spend with the father was a significant factor in Deputy Chief Judge Mercuri’s formulation of the orders. So much appears from [64(b)] and [73] of her reasons where her Honour records the significance of the distance between the parties’ households and what that would mean in terms of travel for X. The pervading influence of those considerations can be seen in her Honour’s reasons at [200], [214], [220], [259] and [289]–[290]. It is indeed clear from her Honour’s reasons that the distance between the parties’ households impacted upon the construction of the time X spent with the father.
Further, the final orders were also informed by the evidence of a family consultant who approached her consideration of the issues and made her recommendations on the basis that the parties resided some four hours travel time apart. Her evidence underscored the impact of the distance between the parties’ households upon the frequency and duration of the time X should spend with the father, especially after she commenced school.
The father also argued before the primary judge that the changes sought by him, at least in respect of the mid-week time that he wished to have continue after X commenced school underscored the significance of the change in his living arrangements to X’s welfare.
To engage with the father’s arguments about the significance of his move to Town K in the context of Deputy Chief Judge Mercuri’s reasons, the evidential basis for her orders and the significance of the change for X in terms of at least the mid-week time she might spend with the father after she commenced school was to engage in the second part of the two-staged process described in Defrey & Radnor at [22]. We cannot see that the primary judge did that.
Grounds 1 and 2 of the appeal have merit and the appeal should succeed on these grounds.
GROUNDS 3, 4 AND 6
These grounds are in the following terms:
3.The learned trial judge at first instance erred and his Honour's discretion miscarried in failing to give adequate weight to the recommendation of the single expert Mr R ("the single expert") in his report dated 13 December 2021 ("the report") including that upon the child commencing her foundation year of school:
a.The child's time with the father on a weekend be extended so that such time occurs from the conclusion of school on a Friday to the commencement of school on the following Monday;
b.The child continue to spend time with the father during the week including each Wednesday from the conclusion of school until 6pm.
4.The learned trial judge at first instance erred and his Honour's discretion miscarried in failing to give adequate weight to the evidence of the single expert contained in the report that varying the final orders made 8 April 2020 ("the final orders") to include the child's time with the father commencing and concluding at school will allow the father to engage in the child's school/education life.
6.The learned trial judge at first instance erred and his Honour's discretion miscarried in failing to give adequate weight to the father's evidence as to the strong and loving relationship that the child has with her siblings residing in the father's household and the impact of varying, or not varying, the final orders will have on such relationships.
Grounds 3 and 4 challenge the weight ascribed by the primary judge to the evidence and the recommendations of the expert who prepared the family report for the purposes of the hearing before the primary judge. Ground 6 challenges the weight ascribed by the primary judge to the father’s self-serving evidence about the nature and extent of the relationship that X had with her siblings who lived in his household.
Notwithstanding our reasons in respect of Grounds 1 and 2, it seems that his Honour gave some consideration to the evidence of the family consultant. He records that the family consultant did not endorse the father’s proposal. This challenge to the weight ascribed by the primary judge to the opinion of the family consultant does not surmount the hurdles set out in Gronow v Gronow (1979) 144 CLR 513 at 519–520.
The same may be said for the opinions of the father which are the subject matter of Ground 6. That there is no direct reference in his Honour’s reasons to those opinions is hardly surprising given the nature of those opinions and the circumstances in which they were expressed.
We do not consider that any of these grounds have merit.
CONCLUSION
We have concluded that this appeal must succeed. Before us, counsel for the father argued that the matter must be remitted for reconsideration. We agree.
In the event that the appeal succeeded on a question of law the father sought a certificate in respect of the appeal, and both parties sought certificates in respect of any rehearing. In the circumstances it is appropriate to grant those certificates.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tree, Jarrett. Associate:
Dated: 30 June 2022
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