Tanberg & Remmy
[2021] FamCAFC 49
•14 April 2021
FAMILY COURT OF AUSTRALIA
Tanberg & Remmy [2021] FamCAFC 49
Appeal from: Tanberg & Remmy [2020] FCCA 3175 Appeal number(s): EAA 157 of 2020 File number(s): CAC 2420 of 2019 Judgment of: ALDRIDGE J Date of judgment: 14 April 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the orders appealed are interim – Where those interim orders provided for earlier consent orders regarding an equal time arrangement to remain in place – Where the primary judge declined to make either orders sought by the parties – No evidence to suggest that either of the proposed orders would improve the position of the child – No error by the primary judge – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 65DAA, 94AAA(3) Cases cited: Bar-Mordecai v Rotman [2000] NSWCA 123
Bondelmonte v Bondelmonte (201) 259 CLR 662; [2017] HCA 8
Bromley v Bromley [1965] P111
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
House v The King (1936) 55 CLR 499; [1936] HCA 40
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Division: Appeal Division Number of paragraphs: 59 Date of hearing: 11 March 2021 Place: Sydney Counsel for the Appellant: Ms Behrens with Ms Davis Solicitor for the Appellant: Alliance Family Law Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
EAA 157 of 2020
CAC 2420 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS TANBERG
Appellant
AND: MR REMMY
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
14 APRIL 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The mother pay the father’s costs of the appeal fixed in the sum of $12,500.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tanberg & Remmy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
BACKGROUND
Ms Tanberg, (“the mother”), and Mr Remmy (“the father”) have a child, X (“the child”) born in 2017, who is the subject of continuing parenting proceedings. This appeal concerns interim orders made on 12 October 2020.
On 12 December 2019, consent orders were made for the child to spend equal time with each parent. Prior to that day, the child had been spending alternate days with each parent. The consent orders provided that the child would spend three days with one parent and then three days with the other. It was not disputed that these orders were intended to be interim orders, to be in place pending the delivery of a report from a single expert psychologist.
The report was duly released to the parties on 13 March 2020. That led to competing applications for further interim orders which came before the primary judge on 12 October 2020. The mother proposed orders which would see the child living with her and spending five days a fortnight with the father in two blocks, consisting of two and three days respectively. For his part, the father proposed orders that would see the continuation of equal time, with each week broken into two blocks of two days and one block of three days.
The primary judge declined to make either of the orders sought by the parties, with the result that the interim consent orders of 12 December 2019 remain in place. The mother now appeals against that decision.
The central basis for his Honour’s decision was that at an interim hearing, where there could be no formal testing of the evidence and where “none of it necessarily points to a change now being in [the child’s] best interests” (at [10]), no change to the existing orders was therefore appropriate. In this regard it is important to note that the single expert did not make any recommendation, generally or specifically, as to what parenting arrangements he thought were in the child’s best interests, and importantly, did not suggest that the existing orders should be changed.
It is also clear, as will be discussed, more fully shortly, that the primary judge thought that existing orders for equal time for such a young child, particularly with such frequent changeovers were unusual and generally had not been recommended by experts in other cases, but nonetheless was obliged to act on the evidence before him and not the evidence in other cases.
THE APPEAL
This is an appeal from a discretionary order, and as such the principles that apply to any appeal to it are those set out in House v The King (1936) 55 CLR 499 as confirmed in Bondelmonte v Bondelmonte (2016) 259 CLR 662. In applying those principles, it must be recognised that trial judges are afforded a wide range of discretion in determining what parenting orders are in the best interests of a child, and that error is not shown by demonstrating that other orders were available on the evidence, or that other judges would have come to a different conclusion. For example see CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218–219.
The Court must also take into account, the fact that his Honour’s reasons for judgment were given ex tempore, and accordingly some degree of latitude is extended to them because as expected, at that time the primary judge had all of the matters raised by the parties fresh in his mind (Bar-Mordecai v Rotman [2000] NSWCA 123 at [193]–[194] and Bromley v Bromley [1965] P111 at 116).
This appeal is being heard by a single judge pursuant to a direction given by the Chief Justice under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) on 15 January 2021.
Did the primary judge err by failing to make an order in respect of the mother’s Application in a Case? (Ground 1)
The application for interim orders was instituted by an Application in a Case filed by the mother on 4 June 2020. The father filed a Response to Application in a Case on 29 June 2020. The primary judge did not make, as one might have expected his Honour to have done, any orders dismissing the Application in a Case or the Response to it, rather his Honour made the following notations on 12 October 2020:
A. As a matter of evidence, there was insufficient material for the Court to rely on in order to make any changes to the existing consent Orders;
B. In particular, the expert reports of [Mr B] are either inconclusive and/or do not directly address the issue of the potential positive and/or negative impact of a shared care arrangement in relation to the child; [the child] (born: … 2017);
C. It is highly unusual to have a shared care arrangement for a young child, but for a number of reasons, some being pragmatic considerations, the parties agreed upon a shared care arrangement in 2019…
It is clear however from Notation A, that the substance of both the Application in a Case and the Response were dismissed regardless of the fact that there was no order to that effect. This is because the primary judge declined to make either the orders sought in the Application in a Case or the Response.
It was submitted by the mother that this went beyond a mere technical failing that could readily be rectified and that the failure to make any substantive order:
…reflected the fact that his Honour failed to properly to engage with the parties’ proposals and with the question of what orders were in [the child’s] best interests and is fundamental to the other errors his Honour made which are the remaining Grounds of Appeal.
(The mother’s Summary of Argument filed on 16 February 2021, paragraph 5)
In oral submissions it was put that the primary judge failed to consider the parties’ proposals at all, but this must be rejected. The primary judge noted the parties’ proposals in general terms at [3]–[4] of his reasons for judgment. At paragraphs [14]–[18], his Honour discussed the expert report. His Honour said:
[18] The only issue “on the table’, so to speak, was and remains the “time with” arrangements that [the child] spends with each parent following the shared care arrangement, as agreed between the parties in December 2019. The Mother wants it changed dramatically, saying that the child is not coping; the Father does not want the current arrangements changed, saying that he does not see or experience the difficulties the Mother expresses. The untested expert evidence does not, on my reading of it, support the drastic change in the child’s time with her Father that the Mother seeks.
(As per the original)
There is no there doubt that his Honour was fully aware of the parties’ proposals and had them clearly in mind. His Honour’s conclusion was as follows:
[27] I do not necessarily see the status quo as a long-term solution, but I can only go on the evidence available to me. The evidence, as it is, forces me basically to leave the co-parenting situation as it is. Last December the parents determined that it was in [the child’s] best interests for there to be a shared care/equal time arrangement. In March 2020, the family consultant noted some of the stresses and strains on the child and on the parents. None of those stresses and strains are either novel or unforeseen, especially for a three year old child. In my view it would be highly remarkable if a three year old child was not, at some stage, somewhat “clingy” towards one parent or another. But, in my view, “clinginess” is not, without more, sufficient to warrant Court intervention where quite a few other factors or stressors seem clearly to be in play. Here I have in mind in particular the difficult relationship between the Mother and the Father’s partner. What was in the child’s best interests in December 2019, and not cautioned against by the expert in March 2020, still seems, for the most part, to be in the child’s best interests. This is especially so given that the blocks of time with each parent are relatively short, thereby militating against any potential undue angst arising from separation.
His Honour clearly engages with the mother’s case, that the child was stressed by the current arrangement, being clingy and unsettled at changeover. It follows that the primary judge did consider the parties’ proposals and, in terms of the mother’s submission, did “engage” with the mother’s case.
Finally, the mother submitted that the primary judge did not deal specifically with Orders 3-7 sought by her in the Application in a Case. There, the mother sought orders for the child to spend time with the parties on her birthday, Father’s Day and Mother’s Day as is set out in the proposed orders. The mother also sought orders for the care of the child if either party was unable to care for her for an over-night period or longer, and orders ensuring that the child attend her swimming lessons.
Neither of the parties addressed these proposed orders in their case outlines or oral submissions to the primary judge. It is therefore not surprising, given the less significant nature of these orders that his Honour did not turn to consider them.
It follows that no error has been established.
Did the primary judge err in law by effectively placing an onus on the mother to prove that the existing order was not in the child’s best interest? (Ground 2)
There is no dispute, nor could there be, that the primary judge was obliged to make orders that were in the best interests of the child. It is also clearly apparent that his Honour was sceptical as to whether the existing orders were in fact in the child’s best interests. However, as I have already recorded the primary judge was of the view that the evidence before him did not persuade him that either of those orders were indeed in the best interests of the child, so none of them should be made. In coming to that view the primary judge recorded:
[9] … whatever tensions there currently are with the parents, and given the original consent position of the parties, [the child] generally seems to be doing really quite well.
[15] … the expert canvassed a number of matters…
I do not believe that [the child] is experiencing any signs of mental ill health, or attachment problems. While [the mother] did report some level of clinginess upon from [the father’s], this is not abnormal in the circumstances, particularly when a child returns to their primary carer after an extended duration away from them.
[22] To some degree, clearly, [the current arrangement] has worked moderately well based on the undisputed good attachment the child has with each parent, and the good relationship that [the child] has with both parents.
[24] [The child] does seem, in almost all respects, to still be thriving, which is quite a testament to the parents’ labours.
Each of these was a relevant consideration which pointed to the current interim arrangement working reasonably well despite the primary judge’s expressed misgivings. The existence of the current orders, and more importantly, how the child was faring under those orders, were matters to be taken into account.
In contrast, whilst his Honour found that he did not see the status quo as a long term solution, the evidence before him did not satisfy him that either of the proposed parenting orders would improve the position of the child and that therefore, neither proposal was in the best interests of the child.
In short, his Honour decided that the child’s best interests favoured the continuation of the existing orders. In doing so, his Honour did not cast an impermissible onus on the mother who, as did the father, bore an onus of persuading the primary judge that the orders sought by him or her were in the best interests of the child. Each failed to do so.
In her oral submissions the mother submitted that the primary judge erred because his Honour failed to consider the disputed evidence as to the child’s behaviour and work out the consequences of each possible outcome of that issue on a final basis. In other words, it was submitted that the primary judge had to deal with the consequences for the child if the mother’s allegations as to her behaviour were correct. Such submissions go far beyond the ground of appeal.
The mother’s allegations were that the child would say at changeover things such as “I don’t want to go” or “I want to stay with mummy” and was usually crying, “sooking” and upset (the mother’s trial affidavit filed on 4 June 2020, paragraph 6). She also said that the child has started waking in the night needing reassurance and sometimes asks “don’t leave me mummy” (the mother’s trial affidavit filed on 4 June 2020, paragraph 11).
The next step in the mother’s argument is the evidence of the single expert’s report dated 9 March 2020. The expert said that the mother reported that the current arrangement doesn’t allow for the child to settle in at either home (at line 145). He also said at lines 147–150:
The time period of three days in a row at present does seem like an optimal amount of time for [the child] to engage, but is also what I would consider the maximum duration of time that would be advisable for [the child] to be away from her mother without her being somewhat confused and likely distressed.
The expert opined that “any longer period than three days could potentially cause [the child] distress and difficulty with re-settling upon return” (at lines 159–160) and that any extended period of separation could develop into separation anxiety (at line 181).
The mother also relied on a supplementary report given by the expert dated 15 May 2020. The import of that report is somewhat difficult to determine, but it is sufficient for the present purpose, simply to record that the opinion expressed was that the mother’s suggested time arrangement of two blocks (consisting of two and three days per fortnight) would be “more beneficial and less disruptive” if they were consecutive (the single expert’s report dated 15 May 2020, page 4).
However, there is no ready support in the expert’s evidence for the mother’s position that the current arrangement was of itself causing the child to become unsettled. The expert did not express an opinion that the current arrangement was upsetting the child, nor identified any consequences that might flow if she was. The passages relied on by the mother indicate that the expert considered that it would not be beneficial for the child to spend more than three days in a row away from the mother, but no one had proposed such an arrangement for consideration on 12 October 2020.
For his part, the father did not accept that the child was upset at changeover, though of course, he can only speak to what he observed and not to the child’s behaviour when she was alone with the mother.
In any event, the primary judge dealt with these matters, where his Honour said:
[27] I do not necessarily see the status quo as a long-term solution, but I can only go on the evidence available to me. The evidence, as it is, forces me basically to leave the co-parenting situation as it is. Last December the parents determined that it was in [the child’s] best interests for there to be a shared care/equal time arrangement. In March 2020, the family consultant noted some of the stresses and strains on the child and on the parents. None of those stresses and strains are either novel or unforeseen, especially for a three year old child. In my view it would be highly remarkable if a three year old child was not, at some stage, somewhat “clingy” towards one parent or another. But, in my view, “clinginess” is not, without more, sufficient to warrant Court intervention where quite a few other factors or stressors seem clearly to be in play. Here I have in mind in particular the difficult relationship between the Mother and the Father’s partner. What was in the child’s best interests in December 2019, and not cautioned against by the expert in March 2020, still seems, for the most part, to be in the child’s best interests. This is especially so given that the blocks of time with each parent are relatively short, thereby militating against any potential undue angst arising from separation.
(Emphasis added)
His Honour therefore did consider the matters raised by the mother.
This ground has not been established.
Did the primary judge err by taking into account “a risk of prejudicing one or either party” as a relevant consideration? (Ground 3)
The mother submits that the prejudice that could be suffered by either party should not have been taken into account.
His Honour said:
[10] For the reasons given here, (a) because of the original consent position of the parties, (b) there being no specific and firm recommendation from the expert, [Mr B], to change the current arrangements, and (c) because of the “she said – he said” nature of the evidence, in my view, it is inapposite to alter the current arrangement. In such circumstances, and where there can be no formal testing of the evidence, in doing so there is a risk of prejudicing one or either party, and none of it necessarily points to a change now being in [the child’s] best interests.
The phrase “a risk of prejudicing one or either party” is somewhat infelicitous, but here his Honour is summarising the reasons which follow. The phrase is used to explain the previous statement that there can be no formal testing of evidence. His Honour was doing no more than saying that, in such a case to prefer one set of evidence over the other would unfairly prejudice one of the parties. His Honour was not intending to refer to a forensic advantage/disadvantage to be gained by either of the parties by having the child live with them for a longer period, because nowhere else in the reasons does his Honour refer to such a consideration.
This ground has not been established.
Did the primary judge err in the manner in which his Honour took account of the interim consent orders made 19 December 2019? (Ground 4)
The mother submits that the interim consent orders should not have been given any weight as they were intended to be orders to operate only until the single expert’s report was received.
I have already recorded that it was not disputed between the parties that this was the case. It can easily be inferred that the parties were hoping to obtain some assistance from the single expert as to what future parenting orders would, at least in general terms, have been in the child’s best interest. However, as events transpired, nothing can be gleamed from the report that would assist the parties in that regard, so unfortunately they were no further advanced.
There is no doubt that the primary judge referred to the “original consent position of the parties” (at [10]) and that “for better or worse, the parents agreed to this regular changeover time” (at [21]). His Honour continued, “at the end of the day, the parties agreed to this, somewhat questionably beneficial relationship” (at [23]). His Honour also said:
[26] For example, perhaps, on one view, the current matter may simply be a circumstance that is guided or conditioned by basic pragmatism, where the parents said ‘well, this is the best that we have been able to come up with’ for [the child] and ourselves. If that be so, so be it. I could certainly not authorise any longer period of time of three nights of [the child] away from her Mother as [Mr B] plainly states.
The mother’s submission is that these comments from his Honour over-emphasise the original consent position of the parties, which was no more than a “holding pattern” (the mother’s Summary of Argument filed on 16 February 2021, paragraph 15).
Nonetheless, it remains a fact that the parties agreed to the consent orders, even if as ‘holding orders’, reflecting as best could be agreed at that time, the best interests of the child.
More importantly, as his Honour repeatedly said, the child was doing well enough under the present orders, regardless of the basis on which they were made, to justify them continuing, albeit as interim orders until the final hearing. His Honour took steps to fix a final hearing.
This ground has not been established.
Did the primary judge fail “to follow the legislative pathway” and in particular fail to appropriately consider whether an equal time arrangement was in the best interests of the child and was reasonably practicable? (Ground 5)
Whilst the phrase ‘legislative pathway’ appears in Goode & Goode (2006) FLC 93–286, a complaint that a judge erred by not following that pathway tends to be so vague and imprecise, as to be of no assistance at all. If particular provisions have been ignored or improperly applied then that should be the challenge and not the more generic complaint.
Further, it is now clearly established, particularly in interim applications, the primary judge’s attention can be confined to the issues raised by the parties, so that each and every s 60CC consideration need not be the subject of exegesis (SCVG & KLD (2014) FLC 93-582).
The parties were agreed that the order for equal shared parental responsibility should remain in place. Thus s 65DAA of the Act was engaged. The primary judge was required to consider whether the child spending equal time with each of the parents would be in the best interests of the child, and consider whether such time would be reasonably practicable.
The mother’s case was that at separation, the child was becoming anxious or clingy about leaving her mother, which was an indication of the risks associated with equal time arrangements for young children (at [12]; the mother’s Case Outline filed on 8 October 2020, paragraphs 4 –5). She also contended that the parties’ poor communication did not support an equal time arrangement (at [12]; the mother’s Case Outline filed on 8 October 2020, paragraph 8).
I have already referred to his Honour’s discussion of the first issue.
As to communication, his Honour said:
[19] While the communication generally seems to be somewhat unsatisfactory between the parents, there seems also to be more than a subterranean hint that the Mother finds it increasingly difficult. It also seems very much to be the case that the once reasonably good communication between the parents has taken something of a “dive” since the Father’s new partner, [the father’s partner], has come on the scene. It might be said, perhaps a tad dramatically, that [the father’s partner] is something of a “spectre at the feast”, at least for the Mother who lists a number of complaints against the Father’s partner, both in her Affidavits and in the Report from [Mr B]. I do not say this in any way critically but even in his partner’s…Affidavit she acknowledges that there has been significant tension between the two ladies, plus some expressions of regret about language used, and much more besides.
[22] To some degree, clearly, this has worked moderately well based on the undisputed good attachment the child has with each parent, and the good relationship that [the child] has with both parents. So much is clear from the Affidavit material and from the expert Report. That said, it is this constant tension between the following factors: (a) a very young child, (b) parents working all the time, (c) the child in day care, (d) the child is fatigued and likely emotionally somewhat “strung out”, (e) the parents are “rung out” (so to speak), and (f) the Father has a new partner which, in certain respects, has added an extra degree of frisson (not always a happy one by all reports from the Mother’s perspective) in the relational dynamics all round. To be not overly utilitarian, the Father now has got an extra pair of hands in his household which the Mother does not. I do not say it in any derogatory or pejorative way, but being a single parent, as the Mother is, she is obviously carrying so much of the load herself.
It follows that the primary judge did undertake the consideration required. There was a consideration of the issues raised by the mother, albeit not in the context of a discussion expressly centred on s 65DAA of the Act. It is clear enough that his Honour was not satisfied that moving away from the current equal time arrangement was in the child’s best interests.
This ground does not succeed.
Did the primary judge err by failing to use his “declared experience” in determining what parenting arrangements are appropriate for young children? (Ground 6)
As is clear from the above, the primary judge, many times recorded his scepticism about the appropriateness of shared care arrangement with equal time for a three year old child. The mother submits that the primary judge should have applied this experience and varied the interim orders. In making this submission, the mother relied on the comments of the judges in CDJ v VAJ. There, at paragraph 43, Gaudron J described a parenting decision as involving a value judgment with respect to the best interests of the child. Justices McHugh, Gummow and Callinan said:
[151] …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order.
Justice Kirby also referred to the use of intuition at paragraph 186.
However that is not to suggest that a judge may take into account material, such as the opinions of other experts in entirely different proceedings. As the primary judge recognised, cases must be decided on the evidence that is before the Court in that matter. It is on that evidence that “perceptions, predictions and even intuition and guesswork” operate (CDJ v VAJ at [151]).
Further, the fact that in many other cases heard by the primary judge, experts have opined that shared care arrangements are not ideal for children of this age, does not forestall the possibility that such orders might be, in all of the circumstances of the child’s case, in her best interests.
Indeed, this was consistent with the approach taken at trial. Counsel for the mother agreed with the primary judge that although “all of the experts that we deal with on a regular basis, none of them would recommend a shared care arrangement usually for such a young child” (Transcript 12 October 2020, p.7 lines 25–27), that such evidence was not formally before the Court. Had his Honour taken such unknown and unidentified evidence into account, his Honour would have thereby erred.
This ground does not succeed.
Did the primary judge err by not weighing the probabilities of the competing claims? (Ground 7)
It is well established that it is generally inappropriate for a primary judge to make findings of fact in interim parenting cases where the evidence is contentious. This does not absolve a judge from ignoring the allegations and where appropriate, taking them into account. For example, the allegations of family violence may be such that the risk of the allegations being established in due course is sufficient to affect the orders.
The mother submitted that the poor communication was not contentious.
She referred to her evidence that the child was unsettled, crying and “sooky” at changeover (Transcript 12 December 2019, p.4 line 12) and somewhat unsettled at night, which was not challenged by the father. However, that is not entirely correct because the father’s evidence was that he saw no difficulties at changeover. It is, of course, entirely possible that both are correct.
The mother therefore submitted that this evidence should have been taken into account and the impact of the competing proposals assessed.
I consider that the primary judge did take these matters into account as previously explained. To suggest that these were matters that posed a risk to the child is to overstate the evidence and its impact.
This ground has not been established.
It follows that the appeal will be dismissed.
COSTS
The appeal has been wholly unsuccessful. The mother did not dispute that in that circumstance, there should be costs in favour of the father. Accordingly, there will be an order that the mother pay the father’s costs fixed in the sum of $12,500 (which was accepted by both parties to be an appropriate amount).
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 14 April 2021
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