FAMILY COURT OF AUSTRALIA
| TIBB & SHEEAN | [2018] FamCAFC 142 |
| FAMILY LAW – APPEAL – FINAL PARENTING – whether the child should be moved from the primary care of his mother to the primary care of his father – where the child had always lived with the mother following the parties’ separation – where the trial judge ordered that the child live with the father and spend time with the mother – where the trial judge made an order for equal shared parental responsibility – where s 65DAA of the Family Law Act 1975 (Cth) was engaged – whether the trial judge considered making an order for equal time or substantial and significant time – where the central issue raised by the mother on appeal is not reflected by her case at trial – Metwally v University of Wollongong (1985) 60 ALR 68 considered – where it is “expedient and in the interests of justice” that the issues be dealt with – whether the trial judge’s orders included substantial and significant time – consideration of what is meant by “days that do not fall on weekends and holidays” and “daily routine” as contained in s 65DAA(3) and (4) – Ulster & Viney (2016) FLC 93-722 considered – where insight into the objects and purpose of s 65DAA can be seen by reference to the Explanatory Memorandum of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) – whether the ordinary and natural meaning of “days that do not fall on weekends and holidays” and “daily routine” permits a conclusion that a few hours on a school-week Friday evening constitutes substantial and significant time within the meaning of s 65DAA – whether the trial judge failed to consider s 65DAA – where the trial judge did not expressly refer to the mandatory requirements in s 65DAA – meaning of “consider” – Goode and Goode (2006) FLC 93-286 considered – where the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial – where it could safely be inferred from the totality of the matters that the trial judge considered, but rejected, an order for either equal time or substantial and significant time – whether the trial judge failed to afford the mother procedural fairness in drawing an adverse inference from the mother’s failure to call her psychologist – where the trial judge made findings based on the evidence as a whole and not from the mother’s failure to call her psychologist – no error demonstrated – appeal dismissed. |
| Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB(1)(b)(i), 15AB(2)(e) Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) ss 8, 31 Macquarie Dictionary, 6th ed, 2013 |
| Aboriginal & Torres Strait Islander Affairs, Minister for & Norvill v Chapman (1995) 133 ALR 226; [1995] FCA 1726 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 E & S [2010] FCWA 3 Egan & Egan [2017] FamCA 170 F (Children) (Supervised Contact: Disputed Evidence), In Re [2012] EWCA Civ 828 F & B [2000] FamCA 676 French & Fetala [2014] FamCAFC 57 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Lacey v Attorney-General for Queensland (2011) 242 CLR 573; [2011] HCA 10 Lenova & Lenova (Costs) [2011] FamCAFC 141 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Mifsud v Campbell (1991) 21 NSWLR 725 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; [1997] NSWSC 483 Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207 Ulster & Viney (2016) FLC 93-722; [2016] FamCAFC 133 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 |
| APPELLANT: | Ms Tibb |
| RESPONDENT: | Mr Sheean |
| INDEPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | MLC | 5993 | of | 2014 |
| APPEAL NUMBER: | SOA | 74 | of | 2017 |
| DATE DELIVERED: | 3 August 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Murphy & Cronin JJ |
| HEARING DATE: | 30 April 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 September 2017 |
| LOWER COURT MNC: | [2017] FCCA 2114 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr R Smith |
| SOLICITOR FOR THE APPELLANT: | McIntyre & Statton |
| COUNSEL FOR THE RESPONDENT: | Ms A O’Connell |
| SOLICITOR FOR THE RESPONDENT: | Whyte, Just & Moore |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Byrnes |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Coulter Roache |
Orders
The appeal be dismissed.
Each party to the appeal shall bear their own costs of and incidental to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tibb & Sheean has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 74 of 2017
File Number: MLC 5993 of 2014
| Ms Tibb |
Appellant
And
| Mr Sheean |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
STRICKLAND J
Having had the advantage of reading the draft Reasons for Judgment of my colleagues, I agree that there is no merit in any of the grounds of appeal and that accordingly the appeal must be dismissed with each party bearing their own costs of and incidental to the appeal.
However, with respect, I do not agree with my colleagues’ apparent rejection of the reasoning of the Full Court in Ulster & Viney[1] as to the meaning of “the child’s daily routine” in s 65DAA(3)(b)(i) of the Family Law Act 1975 (Cth) (“the Act”), or rather what is necessary to comply with that paragraph.
[1] (2016) FLC 93-722.
My colleagues quote [92] of the reasons in Ulster & Viney and say this at [51] below:
In our respectful opinion, a calculation of the total number of annual nights comprised in the order and references to “block time” do not assist in answering the question of whether ordered time meets the cumulative requirements of s 65DAA(3) (and, if relevant, s 65DAA(4)) by which “substantial and significant time” is ascertained.
First, the Full Court in [92] were not addressing s 65DAA(4) at that point, and secondly, the reference to the total number of annual nights and “block time” was an exercise in addressing the practical effect of the orders in that case, and not providing a touchstone for the interpretation of s 65DAA(3)(b)(i).
Nor was the Full Court addressing the question of the interpretation of s 65DAA(3)(a)(ii), or what was required to comply with that paragraph; that was not in issue in Ulster & Viney, and thus was not considered by the Full Court.
That also explains why only paragraph 186 of the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005, which introduced s 65DAA(3) into the Act, was referred to by the Full Court. Further, and again with respect to my colleagues, the focus by the Full Court was not on the expression “some time” in that paragraph, but rather what was said there about “daily routine”.
However, having heard argument about s 65DAA(3)(a)(ii) in this case, and having had the advantage of reading the draft Reasons for Judgment of my colleagues directed to that paragraph, I agree with what my colleagues there say.
In these circumstances, despite our disagreement about the meaning and application of s 65DAA(3)(b)(i), I agree that the Independent Children’s Lawyer’s (“ICL”) argument should be rejected.
MURPHY & CRONIN JJ
The child X’s parents have had an acrimonious co-parenting relationship since their separation in 2013. Nine sets of parenting orders were made by judges of the Federal Circuit Court of Australia over a period of about three years, consequent upon the filing of an application for the same by X’s father in July 2014. Those proceedings culminated in a trial conducted over six days, spanning some five months, before Judge Curtain. X was aged 10 years at the time of trial.
By reference to the parties’ respective proposals and the arguments articulated before his Honour, the fundamental issue confronting his Honour can be very simply expressed (albeit exquisitely difficult to decide): should X be moved from the primary care of his mother to that of his father?
The mother had been X’s primary carer in the approximately four years between separation and the trial. But for a period of about nine months in 2014, the father regularly spent time with X. In September 2014, consent orders were made for the father to spend supervised time with X at a contact centre. By October 2015, the parties, by consent, had increased the father’s time with X to unsupervised time every alternate weekend and overnight time mid-week. Except in relation to the prescribed mid-week time and a period in which the father had an injury, those orders have largely been complied with.
In the decision under appeal, his Honour ordered, relevantly, that X live with his father and spend time with his mother for three out of four weekends until X commences his secondary education when the mother was to spend every alternate weekend with X, as well as half school holidays and time on special occasions. There was a further order that X spend time and communicate with the mother “[a]t such other times as may be agreed between the parents”.
The mother appeals those orders. The father and the Independent Children’s Lawyer (“ICL”) each oppose the appeal.
The Issues Raised On The Appeal And Their Resolution
Leave was given to counsel for the mother at the appeal hearing to rely on the grounds of appeal as contained in her Summary of Argument. That Summary of Argument contained six consolidated grounds of appeal. No objection was taken to that approach. The written summaries of argument of each of the father and the ICL addressed the amended grounds.
The parties agreed at trial that an order for equal shared parental responsibility should be made. Section 65DAA of the Act was thus engaged and, as a consequence, his Honour was obliged to “consider” sequentially whether either “equal time” or “substantial and significant time” was in X’s best interests and was “reasonably practicable” and, if so, thereafter “consider” making such an order.
Four of the mother’s six grounds of appeal (Grounds 1, 2, 5 and 6 – referred to collectively in these reasons as “the s 65DAA grounds”) are directed, in differing forms, to one central issue: did his Honour err in law by failing to consider that which s 65DAA mandatorily requires.
However, those grounds and that central issue arise in circumstances that necessitate this Court first considering the proposed orders advanced by the mother at trial, and the manner in which her case was run, so as to consider whether she is precluded from now pressing the s 65DAA grounds on this appeal. We conclude that the mother is not so prevented, and the reasons for that conclusion will be outlined first.
Thereafter, before turning to the mother’s appeal it is necessary to address an argument raised by the ICL in seeking to support the trial judge’s orders because, if that argument is accepted, the mother’s s 65DAA grounds fall away. The ICL contends that the mother’s central issue does not arise because his Honour’s order is in fact an order for “substantial and significant time” within the meaning of s 65DAA(3) and (4). That leads to the inexorable conclusion, it is argued, that his Honour did “consider” what s 65DAA requires, and thus there is no error. Our reasons will seek to explain why that argument should be rejected.
The rejection of that argument renders it necessary to address the s 65DAA grounds.
The first ground of the mother’s appeal, and the primary focus of the mother’s arguments, is that his Honour failed to consider whether “[t]he child spending equal time with each of the parents” and/or “substantial and significant time with each of the parents would have been in the best interests of the child and whether such time was reasonable [sic] practicable”. The appellant’s written argument in respect of Ground 2 asserts that his Honour did not consider the mother’s proposal or the ICL’s proposal for midweek time. As argued orally (without objection), the essence of the complaint is that his Honour failed to consider the advantages and disadvantages of orders for equal time and substantial and significant time. Ground 6 challenges the adequacy of his Honour’s reasons. The argument in support of that ground asserts that his Honour’s reasons were inadequate to demonstrate the path by which the result was reached.
Grounds 1, 2 and 6 should also be rejected for reasons shortly to be addressed.
In terms, Ground 5 does not reveal any appealable error. As elucidated, the challenge is that “the orders made by his Honour are so unseasonable [sic: unreasonable] and/or plainly unjust that an inference can be drawn that there has been a failure to properly exercise the discretion as required by the [Act]”.[2] In reality, the contention does not rise above an assertion that because his Honour did not make orders which accorded with the mother’s proposal, the orders were unjust. Ground 5 has no substance.
[2] Appellant’s Summary of Argument filed 20 February 2018 at paragraphs 53 – 58, referencing House v The King (1936) 55 CLR 499 at 505 (Dixon J) and Australian Coal & Shale Employee’s Foundation v The Commonwealth (1953) 94 CLR 621 at 627 (Kitto J).
The mother raises two additional challenges to his Honour’s orders, each of which arise independently of any s 65DAA issues. Ground 4 poses the question: did his Honour fail “to afford the [mother] procedural fairness in drawing an adverse inference from the [mother’s] failure to call her psychologist”? As will be seen, that ground rests on a false premise and should be rejected. The mother also mounts a weight challenge, Ground 3 asserting that his Honour failed to give sufficient weight to the “likely effect of any changes in the child’s circumstances”. Again, the reasons to follow will explain why that ground, too, has no merit.
The Preliminary Issue
The mother’s position at trial and its ramifications
On appeal, the mother’s counsel asserts relevantly in his written submissions that the mother sought orders that X “live with her and spend time with the father each alternate weekend from the conclusion of school Friday to 5pm Sunday and each Tuesday from 5pm until 7.30pm”.[3] The mother’s case outline document relied on in the proceedings below does not seek any order for time with her in the event that X was ordered to live with the father.
[3] Appellant’s Summary of Argument filed 20 February 2018 at paragraph 8.
Consistent with that position, the mother’s counsel submitted at the conclusion of the trial:[4]
…the issue of time spent is not one that’s going to trouble your Honour terribly much. Your Honour is going to either make an order that [X] lives primarily with his mother or primarily with his father and the only issue that might arise in relation to spending time is whether, as the family report writer suggests, [X] lives with his mother, he should spend a little bit more time than every second weekend with his father or perhaps the majority of holidays or if there's a change of residence, whether, to assist [X] with adjusting to that change, he ought to be spending three out of four weekends with my client and otherwise sharing the school holidays.
A more practical issue may emerge your Honour, in relation to transport and changeovers. Neither of the parents has made that an easy job for your Honour. My client’s evidence is that she has an unreliable car and is otherwise subject to the vagaries of public transport. The father’s evidence is that he can’t travel in a car more than 30 minutes, although it would appear that he can if he has a break and we know that he was able to make it to Town B – Town C isn’t quite that far. But your Honour, in my respectful submission, in terms of the weekend time, regardless of where [X] is living, the parent with whom [X] is going to be spending the weekend ought to collect him from his school, wherever that may be, on the Friday and the changeover will necessarily have to occur on the Sunday evening.
(Emphasis added)
[4] Transcript, 20 June 2017, p 541 ln 11–19.
The father’s written submissions on the appeal, having referred to the passages just quoted, assert that, leaving aside the issue of the parent with whom X was to live, “[i]t can hardly be said … that the mother has put or pressed for an alternate proposal for spending time with the child. Her proposal at the end of the trial was limited by her preparedness / ability to engage in regular travel as set out in the submission of her counsel”. The submissions go on to contend that his Honour’s orders are “obviously based upon the submissions of [counsel for each of the mother and the ICL] insofar as those issues were uncontroversial”. The submissions conclude relevantly with the assertion that “[t]he orders made … provided for [X] to spend more time with his mother than the mother’s counsel sought in closing submissions”.[5] That submission is, it seems, based on the paragraphs from the transcript cited above.
[5] Respondent’s Summary of Argument filed 9 March 2018 at paragraphs 9 and 10, respectively.
The ICL’s counsel acknowledged in closing submissions that the ICL’s proposal had changed consequent upon the evidence given during the course of the trial.[6] In the ICL’s written argument on appeal, the parties’ respective positions at trial are summarised:[7]
The Mother sought that the child live primarily with her and spend each alternate weekend, once mid-week for just over two hours, special days and half the holidays with the Father. The Father sought that the child live with him and essentially spend the same time with the Mother as she proposed for him apart from the mid-week time. The Independent Children’s Lawyer proposed orders that were similar to that of the Father but including the mid-week time.
[6] Transcript, 20 June 2017, p 531 ln 29 to p 532 ln 22.
[7] ICL’s Summary of Argument filed 3 April 2018 at paragraph 10.
The apparently concordant picture thus presented is however clouded by reference to passages in the trial transcript to which none of the three counsel on appeal refer. The mother’s counsel said this:[8]
[COUNSEL FOR THE MOTHER]: So that, your Honour – excuse me. That is almost the extent of the evidence upon which this – these concerns about emotional enmeshment or emotional reliance upon this child seem to finish. She says at the second report he likes to cuddle both parents equally, talk to them equally, and the person he would want to spend more time with is his mother. It’s – what has happened, your Honour, in my respectful submission, is that the report writer - - -
HIS HONOUR: What paragraph was that?
[COUNSEL FOR THE MOTHER]: That was paragraph – of the second report - - -
HIS HONOUR: Because he does say in 35, “I want to see my dad more.”
[COUNSEL FOR THE MOTHER]: Yes. Yes, yes. No, that – and that’s – and I don’t quibble with that, your Honour, because if [X] remains living in my client’s care, then it’s her case that he should spend three out of four weekends with his father, okay, and half the school holidays.
HIS HONOUR: That’s the same as your client’s proposal, should there be a transition.
[COUNSEL FOR THE MOTHER]: It’s a mirror image, either way.
[8] Transcript, 20 June 2017, p 550 ln 38 to p 551 ln 11.
No reference is made to any such proposal in the written arguments just referred to, nor in any oral arguments before us. The trial judge does not refer in his reasons to the mother’s proposal although his Honour does specifically record reliance upon the mother’s Response to Amended Initiating Application. That response sought the same orders that were ultimately contained in the mother’s case outline document filed in the proceedings below.
Reference to the trial transcript and the record more generally reveals, it is fair to say, some considerable confusion in the mother’s position. It appears to have shifted during the trial, although that fact is never specifically spelled out, and nor is there any attempt to square the passages just referred to with the passages from the transcript earlier quoted.
It seems tolerably clear, as each of the written outlines on appeal assume, that his Honour proceeded on the basis that the mother’s proposal was as they each outline. The appeal proceeded on the same basis as do these reasons.
The incongruity in the mother’s position on appeal
At the core of the mother’s appeal is an assertion that his Honour erred in law in failing to consider the matters which s 65DAA of the Act mandatorily requires to be considered. The mother’s ultimate proposals at trial and the manner in which her case was run never suggested that either an order for “equal time” or “substantial and significant time” was in X’s best interests and should be made.
Incongruously, the mother now bases her appeal on the trial judge’s failure to consider orders which she did not ask the Court to consider. Perhaps even more incongruously, if the appeal is successful, her Notice of Appeal does not contend that orders for equal time or substantial and significant time should be made. Rather, her Notice of Appeal contends that this Court, upon discharging the relevant orders made by the trial judge, should order X live with her and spend time with his father “each alternate weekend from the conclusion of school of [sic] Friday until the commencement of school on Monday” and for “one half of each of the school term holidays and long summer vacation” (as well as time on special occasions). Subsequently, the mother’s written Summary of Argument sought remitter and the Notice of Appeal was amended accordingly. The oral argument did not suggest any orders that would be sought upon remitter being given.
Those matters might be thought to lead inexorably to the conclusion that the appeal should be dismissed.
However, other considerations arise by reason of s 65DAA’s mandatory provisions and the fact that, as the High Court pointed out, where an order for equal shared parental responsibility is made or proposed, s 65DAA conditions the Court’s otherwise wide power given by s 65D. (“It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist”).[9]
[9] MRR v GR (2010) 240 CLR 461 at 466 [13].
Can the mother raise the s 65DAA issues on Appeal?
A preliminary issue which arises is whether the mother is now entitled to pursue an appeal in respect of an issue not reflected by the case she ran at trial. If she is, the second question arising is the nature and extent of the Court’s obligation to “consider” the types of order prescribed in s 65DAA in circumstances where neither parent of the child suggests such an order is in their child’s best interests and where the central issues in the case mirror that approach.
It is well established that:[10]
…a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[10] Metwally v University of Wollongong (1985) 60 ALR 68 at 71. See also to similar effect: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; O'Brien v Komesaroff (1982) 150 CLR 310 at 319; Coulton v Holcombe (1986) 162 CLR 1; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [51]; Water Board v Moutsakas (1988) 180 CLR 491.
Appeals to this Court are by way of rehearing.[11] In respect of such appeals it was held relevantly in Multicon Engineering Pty Ltd v Federal Airports Corporation:[12]
Since this is an appeal by way of re-hearing, the matter should be approached in accordance with the principles stated in cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe (at 7-9). A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial…
However there is another principle of more direct relevance. A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court “may find it expedient and in the interests of justice to entertain the point”…
[11] See, for example, CDJ v VAJ (1998) 197 CLR 172.
[12](1997) 47 NSWLR 631 at 645 – 646.
It is not suggested by either the respondent father or the ICL that other evidence would have been called below or that they would have conducted their case differently. The central issue sought to be raised by the mother on this appeal can be seen to be a question of law. It involves an issue that arises not uncommonly: the content and parameters of the obligation to “consider” when the issues posed for the Court’s adjudication do not suggest that either type of time specified within the section is in a child’s best interests. Importantly, the issue sought to be agitated on the appeal relates to limitations on the exercise of the Court’s power described by the High Court as being similar to where “a jurisdictional fact must be proved to exist”.
Taking account of all of those matters, in our view the mother is not precluded from raising the central issue in this appeal; it is “expedient and in the interests of justice” that the central issue be dealt with.
Section 65DAA
As will be clear, both the ICL’s argument and the s 65DAA grounds involve the interpretation and application of s 65DAA of the Act. The terms of that section should be quoted.
Section 65DAA provides:
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) considerwhether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
(Bold and italics as per original)
The ICL’s Argument
Is the trial judge’s order an order for “substantial and significant time”?
Relevantly, his Honour’s orders provide:
(4)That [X] spend time with and communicate with the Mother as follows:
(a) During school terms (save for Father’s Day weekend when he will remain in the Father’s care), as follows:
i. until he commences his Secondary education for three consecutive weekends out of four from the conclusion of school Friday or 3.30pm on a non-school day to 5pm Sunday commencing 13 October 2017; and
ii. from the start of term 1 when he commences his Secondary education, each alternate weekend from the conclusion of school Friday or 3.30pm on a non-school day to 5pm Sunday;
(b) For one half of each of the school term holidays and long summer holidays (subject to (c) below), at times to be agreed between the parents and in default of agreement, for the first half in 2017 and for the second half in 2018 and alternating thereafter;
The ICL’s argument turns on the interpretation of ss 65DAA(3) and (4). It is contended that none of the parties sought an order for equal time and that the trial judge’s best interests findings – none of which are challenged on the appeal – reveal plainly that such an order could not be conceived of in the circumstances of this case. That being so, it is argued that his Honour turned to consider, and made, an order for substantial and significant time. It is argued that the making of such an order axiomatically involves a consideration of such an order.
Section 65DAA(3) expresses the components of “substantial and significant time” conjunctively. Read together, its sub-paragraphs provide that, for a parenting order to be an order for “substantial and significant time”, the order must contain, as a minimum, all of the types of time specified in sub‑section (3). However, as s 65DAA(4) makes clear, orders that meet that description are not limited to only those matters; the Court may have regard to other matters which the evidence reveals are substantial and significant to the particular child in his or her particular circumstances.
In the present case, no such additional matters emerge from the evidence or his Honour’s reasons. Further, no submissions address sub-paragraphs (b)(ii) and (c) of sub-section (3) (which relate to what might conveniently be called “special occasion time”). As a consequence, a conclusion that his Honour’s orders are in fact orders for “substantial and significant time” depends upon accepting the argument that orders which provide for the mother to have time with X for a number of hours (“from the conclusion of school Friday or 3.30pm” until, effectively, bedtime) on three out of four Fridays are orders for time which “include days that do not fall on weekends or holidays” and which “allow [the mother] to be involved in [X’s] daily routine.
“Days that do not fall on weekends and holidays” and “daily routine”
The majority in Ulster & Viney held:[13]
91.…[s 65DAA(3)] is to be interpreted in the context of a divided family, where parents live separately and apart from one another, and that it does not require “daily physical association with each and every procedure or activity that occurs – each day or each weekday.”
[13] (2016) FLC 93-722 per Ainslie-Wallace and Ryan JJ; Strickland J agreeing at 81,602 [4].
In so deciding, their Honours rejected a contention by counsel that “by giving the words ‘daily’ and ‘routine’ their ordinary meaning, the provision requires involvement in ‘routine occurring or done each day or weekday’”. Their Honours said:
89.…Having limited the words in this fashion, senior counsel went on to argue that unless the father was involved in the children’s attendance at school, preparation for school, supervision of homework and the like, the requirements of the provision could not be satisfied. The point being, “[f]or the proposal or any order to be compliant with subsection (3)(b)(i) it would necessarily be facilitative of the [father] being inextricably associated, closely connected or actively participating in with [sic] the customary or regular course of procedure occurring each day or each weekday.” (Summary of Argument at [7])
Their Honours expressed their rejection of that argument as follows:
90.We do not agree. First, the provision does not limit the question of involvement in daily routine to school weeks. Nor does it require involvement in each and every aspect of a child’s daily life. This interpretation is consistent with the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 which introduced s 65DAA(3) into the Act and described the provision as follows:
[Their Honours then quoted paragraph 186 of that Explanatory Memorandum]
The orders in that case provided, relevantly, for time with the father “each alternate weekend from 5:00pm Friday to 5:00pm Sunday or 5:00pm Monday if Monday is a non-school day” together with school holiday time and time on special and religious occasions. Their Honours said of those orders:
92.Here, the practical effect of the orders is that the children would have significant block periods of time with the father during school holidays and when alternate weekend and special overnight occasions are taken into account they would probably spend something like 95 – 100 nights annually (and associated days) in his care. There can be no doubt that this provided the father with the opportunity for active participation (involvement) in the children’s daily routine (albeit only to a limited extent during the school week).
93. It follows the orders satisfy each element of s 65DAA(3).
In our respectful opinion, a calculation of the total number of annual nights comprised in the order and references to “block time” do not assist in answering the question of whether ordered time meets the cumulative requirements of s 65DAA(3) (and, if relevant, s 65DAA(4)) by which “substantial and significant time” is ascertained.
The expressions “days that do not fall on weekends or holidays” and “the child’s daily routine” fall to be interpreted according to their ordinary and natural meaning. The section must also be interpreted in a manner “that would best achieve the purpose or object of the Act”.[14] In both such respects, each of the expressions used in s 65DAA(3) do not stand alone; they are individual components of a cumulative set of requirements.
[14] Acts Interpretation Act 1901 (Cth), s 15AA. As to the identification of a statutory purpose, see for example, Lacey v Attorney-General for Queensland (2011) 242 CLR 573.
Section 65DAA(3) was introduced into the Act by the same amending legislation which introduced s 60B which specifies the objects and principles of Part VII of the Act.[15] The objects include “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. The “principles underlying” the specified objects include: “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents” and that “parents jointly share duties and responsibilities concerning the care, welfare and development of their children”.[16]
[15] Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) ss 8, 31 respectively.
[16] Respectively the Family Law Act 1975 (Cth) s 60B(1)(a) and s 60B(2)(b) and (c).
Section 65DAA can be seen to sit conformably with those objects and principles and should be interpreted accordingly. Relevantly, the elements of s 65DAA(3) (together with subsection (4) when relevant) can be seen to be plainly designed to have a court consider orders that maximise the involvement of parents in all aspects of their children’s lives – if, of course, doing so is judged to be in the child’s best interests.
Further insight into the objects and purpose of the section can be seen by reference to the Explanatory Memorandum (“EM”) to the amending legislation just referred to. As has been seen, the majority in Ulster & Viney referred to that “extrinsic material”[17] in interpreting the relevant expressions.
[17]Acts Interpretation Act 1901 (Cth) ss 15AB(1)(b)(i), 15AB(2)(e).
Their Honours referred only to paragraph 186 of the EM. However, in our respectful view, the succeeding paragraphs of the EM, which were not quoted by their Honours, give greater context and clarity to the purpose of the section. Together, those paragraphs are:
186. Subsection 65DAA(3) makes it clear that substantial and significant time requires that the child spend both some time on weekends and holidays and some time on other days. It must also include time in daily routine and allow for participation in events that are significant to the child. This might include sporting events, birthdays or concerts. It would also include the child being able to be involved in events of significance to the parent such as family weddings or christenings, mother’s or father’s day, birthdays.
187. Subsection 65DAA(4) makes it clear that the court can have regard to other things when deciding what is substantial and significant time. This will allow the court flexibility in determining for each unique case in the best interests of the child to determine what the significant events are for that child and parent and what would constitute substantial time. For some children it may include things related to religious or cultural events.
188. Section 65DAA(2)-(4) is intended to ensure that the courts consider arrangements that are much more than 'one weekend a fortnight and half of the holidays' or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared parental responsibility that this will generally involve ‘both’ parents spending both substantial and significant time with their children.
(Emphasis added)
The reference in the EM to the intention for courts to consider more than “one weekend a fortnight and half the holidays” and “80:20 arrangements” should be noted. It can be seen to reflect an intention to eschew what were then, at least seen as, commonly-ordered arrangements which saw the “custodial” or “live with” parent, often mothers, engaging with their children in their day‑to‑day routines (and all of the issues thereby embraced), while the “time with” parent, often fathers, engaging with their children only during “down time” or “recreational time”. (Arrangements of those types gave rise to the idiomatic expression “Disneyland Dads”.)
Focussing on the expression “some time” as used in paragraph 186 ignores, in our view, the context in which that expression is used. First, it is used by reference to a plural: “some time on other days” – that is, days (plural) other than days on the weekend and on holidays. Secondly, and in a similar vein, the expression “some time on other days” is there used in contradistinction to the expression “some time on weekends and holidays”.
The contradistinction highlights the point made at paragraph 188 of the EM that the section is intended to “focus both on the amount of time and the type of time”. The intentions there apparent are reflected in the words of the section: the section does not say that time includes “time on days that do not fall on weekends or holidays”; by contrast it says, ”days that do not fall on weekends or holidays”.
Further, the expression “weekends” as used in the section is open to an interpretation that does not confine it to Saturdays and Sundays but, rather, embraces, for example, time from when school finishes on Friday or, for example, other days in respect of parents who are fly-in, fly-out workers or multiple shift workers.
In that respect, the EM makes clear the intention that “what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children” and, equally, that “allow[ing] the court flexibility in determining for each unique case in the best interests of the child … what the significant events are for that child and parent”. Within that rubric, the Macquarie Dictionary, sixth edition, defines the meaning of “weekend” as “the end of the working week, especially the period from Friday night or Saturday to Sunday evening, as a time for recreation, visiting, etc”.[18]
[18] Macquarie Dictionary, 6th ed, 2013; See also the Oxford English Dictionary, 3rd ed, September 2014: “the period between two working weeks, typically regarded as a time for leisure or recreation”.
Whether in separated or intact families, the ordinary experience of parenting school-aged children, indicative in turn of the ordinary and natural meaning of “daily routine”, is that routines on school days are very different from routines outside of the school week or during school holiday time.
In that vein, for X, as for any 10-year-old child attending primary school, there can be little doubt that the “daily routine” applicable on school days concludes when school finishes on Friday shortly after which “downtime” or “recreational time” commences. Equally there can, in our view, be little doubt that the “daily routines” (or lack of routines) which apply after school finishes on Friday until 5.00pm on Sunday are very different from the “daily routines” which apply on school days.
The expression “daily routine” should be interpreted against the EM’s intention that the meaningful relationship which s 60B makes clear is intended to be shared by the parents if in the child’s best interests, is to include participation in what the EM calls “everyday time” and that everyday time is to be seen as one of the “important events” in a child’s life. The intention finds reflection in the section prescribing “involvement” in “the child’s daily routine”. Again, the EM’s expression that “substantial and significant time requires that the child spend both some time on weekends and holidays and some time on other days” speaks of involvement in routines that occur on those “other days” – that is, on days other than weekends or holidays.
It is true, as their Honours say in Ulster & Viney, that the section does not limit, in terms, the question of “daily routine” to school weeks. Nor do the terms of the section “require involvement in each and every aspect of a child’s daily life”. Equally, it can be accepted that involvement in daily routine does not necessarily import daily involvement.
However, we are with respect unable to accept that the corollary is that the ordinary and natural meaning of the relevant expressions sees a few hours on a school-week Friday evening constituting “days that do not fall on a weekend or holidays” nor that time constituted by those hours (together with time on weekends and holidays) embraces what is intended as “daily routine”. Neither interpretation accords, in our respectful view, either with the natural and ordinary meaning of those expressions as used in the section or with the objects and principles of Part VII of the Act within which the section is found.
In our view, the ICL’s argument should be rejected.
Additional observation
It should be observed, we think, that the interpretation just outlined does not present a trial judge with any particular difficulties once it is appreciated, first, that s 65DAA does not demand the making of any parenting order for any type of time and, secondly, that findings as to best interests are its driver.
It should also be observed that s 65DAA is not engaged by the presumption of equal shared parental responsibility; it is engaged by the making, or proposal to make, an order for equal shared parental responsibility.[19] Nor is s 65DAA engaged by an order that parental responsibility be shared in a specified manner that does not amount to, or is not specified as, “equal shared parental responsibility”. It is only an order of the latter type that engages the section.
[19] Section C of the mother’s Outline of Case filed on 23 February 2017 in preparation for trial, with respect, suggests to the contrary.
It might be thought that the circumstances of the instant case, including his Honour’s specific findings about the parents’ inability to interact meaningfully and responsibly in X’s best interests (to which reference will be made below), together with the requirements of s 65DAC, may well have led – despite the apparent agreement of the parties – to an order that did not see the parents share parental responsibility equally. In that event, s 65DAA would not have applied and the s 65DAA grounds would not have arisen.
Alternatively, if an order for equal shared parental responsibility was to be made, as was pointed out in SCVG & KLD,[20] express recognition of the application of s 65DAA and explicit reference to the requisite considerations would also likely have avoided an appeal based on a failure to consider the section’s requirements.
[20] (2014) FLC 93-582 at 79,157 [88].
The rejection of the ICL’s argument renders it necessary to turn to the mother’s appeal as pleaded and argued.
The s 65DAA Grounds
The s 65DAA obligation to “consider”
The Court’s power to make such order as it considers appropriate in the best interests of the subject child remains vested in s 65D of the Act, but the mandatory considerations contained in s 65DAA condition the exercise of that power. However, s 65DAA does not require the making of an order for either type of time referred to within it, or indeed for any type of time; it places a mandatory obligation on the Court to “consider” specified matters. His Honour’s obligation remained to arrive at orders that best meet X’s best interests.
The section does not define “consider” (nor does the Act more broadly). There is no statutory obligation cast upon the Court to provide explicit reasons directed to the considerations required by the section.
What does consider mean?
The considerations required by s 65DAA are but one of a number of matters which a trial judge must consider. For example, s 60CC mandatorily requires a trial judge to “consider” the matters referred to in the section in determining best interests. Equally, and more broadly, “it is an incident of judicial duty for the judge to consider all the evidence in the case”.[21]
[21]Mifsud v Campbell (1991) 21 NSWLR 725 (“Mifsud”) at 728 (Samuels JA).
While the central argument in the appeal is that his Honour failed to consider the relevant s 65DAA matters, no decision was referred to in which the meaning of “consider” was discussed and nor was the issue addressed more generally in the written or oral arguments on this appeal. Yet, it is as it seems to me, central to the s 65DAA grounds.
In Goode and Goode,[22] the Full Court posed the question “what does consider mean?” in a decision that specifically addressed the use of the word in s 65DAA. The Full Court concluded, at [64], that “consider” means “a consideration tending to a result, or the need to consider positively the making of an order”.
[22] (2006) FLC 93-286 (“Goode”).
Recently, in Egan & Egan,[23] Watts J referred to that statement and concluded that he was “unable to see how that reasoning survives the statement [by the High Court] in Bondelmonte v Bondelmonte[[24]] as to what the word ‘consider’ imports.”[25] There, the High Court said, relevantly, that “the term ‘consider’ imports an obligation to give proper, genuine and realistic consideration”.[26] Watts J concluded that the High Court’s interpretation (given in respect of s 60CC rather than s 65DAA) should “supplant” the interpretation given in Goode[27] eleven years earlier: “[t]here is no reason to conclude that the legislature used the word ‘consider’ in two different senses in ss 65DAA(2) of the Act”.[28] Watts J concluded that:[29]
the word “consider” on each of the three occasions it is used in [s 65DAA should be interpreted] to mean [the] need to give “proper, genuine and realistic consideration” to the matters referred to in the subsection without that consideration tending to a result.
[23] [2017] FamCA 170 (“Egan”).
[24] (2016) 259 CLR 662 (“Bondelmonte”).
[25]Egan at [28].
[26]Bondelmonte at 675 [43]; quoted in Egan at [29].
[27]Egan at [25].
[28]Egan at [28].
[29]Egan at [29]
However, the statements made in Bondelmonte occurred in a context where “[i]t is not suggested by the father that the primary judge failed to consider the boys’ views as to their return to Australia; nor could it be”.[30] In the instant case, an asserted failure to consider is at the heart of the appeal. The High Court in Bondelmonte does not purport to define or interpret “consider” because its meaning (as used in s 60CC) was not there in issue; rather, the issue was the nature or extent of the requisite “consideration”. The use of the word “consideration” in the expression used by the High Court, quoted above, makes that clear. A definition or interpretation of the meaning of “consider” could not reasonably include a derivation of the very word sought to be defined or interpreted.
[30]Bondelmonte at 674 [36].
In our respectful opinion, precisely the same is true of what the Full Court said in Goode in answering the question which the Court posed for itself. The Court’s conclusion as to what is meant by “consider” in s 65DAA, also, with great respect, begs the question of what is meant by “consider” rather than answers it. So much must, in our respectful view, be true by reason of the use by the Full Court of the very word whose meaning is sought to be defined. Respectfully, the Full Court’s expression also describes the nature or extent of the consideration contemplated by s 65DAA rather than asking what is required of a trial judge if she or he is to “consider” as the section commands.
In that respect we are, again with respect, unable to see how or why the observations of the Federal Court of Australia in a number of decisions cited in Goode which directly address the meaning of “consider” were said by the Full Court to be not “entirely apposite”. The Full Court gave as the reason for that conclusion that the word was “applied to consideration of administrative law” with the consequence that those decisions were only of “some assistance”.[31] While there are, of course, differences in context between the use of the word in an administrative law context when compared to family law which may well result in differences in the nature or extent of the relevant considerations, it is, with respect, by no means clear to us why the meaning of the word “consider” should be seen as necessarily different. Beyond asserting a difference, the Full Court does not say how or why the differing contexts should admit of a different meaning for the word. No alternative judicial pronouncements as to the meaning of the word are cited by the Full Court.
[31]Goode at [64].
In our view, the obligation of a trial judge to “consider” in s 65DAA is the obligation to do the very thing described by reference to the ordinary meaning of “consider” reflected in the definitions referred to in the decisions of the Federal Court quoted by the Full Court in Goode. Specifically, the Full Court there refers to a definition adopted by Black CJ referring to the Oxford English Dictionary definition. His Honour said that “‘consider’ used as a transitive verb” (as it is in s 65DAA) means “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”.[32]
[32] Aboriginal & Torres Strait Islander Affairs, Minister for & Norvill v Chapman (1995) 133 ALR 226 at 462 (Black CJ) quoted in Goode at [60].
To “consider” is to engage in something that occurs inside the mind. Plainly enough however, an assertion that a judge has failed to consider cannot be directed to what did, or did not, occur within the judge’s mind. Rather, it must be an assertion directed to how that mental activity has, or has not, manifested itself objectively. In seeking to substantiate the assertion by reference to the presence or absence of any such objective manifestations of a judge’s thinking, it must be borne in mind that:[33]
It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.
Accordingly, a failure to refer to some of the evidence does not
necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty [to consider all of the evidence in the case] which rests upon him or her…[33]Mifsud at 728 (Samuels JA).
Similarly, by reference to a parenting case and the obligation to “consider” within s 60CC, the Full Court has said:[34]
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations…
[34]Banks & Banks (2015) FLC 93-637.
Specifically in reference to s 65DAA, the Full Court has also said:[35]
48.While a consideration of the section’s requirements is mandatory and, indeed, conditions the power to make parenting orders, the breadth and depth of the court’s consideration of the requirements will depend upon the issues joined between the parties. Where, as here, neither party suggests that either of the specified types of order is in this young child’s best interests, and their position is entirely concordant with the existing care arrangements and with expert evidence, a consideration of the section’s prescribed periods of time might be scant. To borrow from Mahoney JA’s quotation of Lord Scarman in a different context, the nature and extent of the requisite consideration of s 65DAA might be to “merely salute it in passing” (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-270, per Mahoney JA citing Scarman LJ in R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309). In a particular case, those same considerations might lead to the requisite consideration being inferred from what is otherwise said in the judgment.
[35]French & Fetala [2014] FamCAFC 57.
Thus, the challenge directed toward the objective manifestations of a judge’s thinking (i.e. the manifestations of what has been “considered”) must depend upon “the circumstances of the individual case” and a failure to refer to aspects of that subjective process, for example in the reasons, does not necessarily indicate that the judge has not complied with the obligation to consider.
In a case without pleadings (as is the case here) the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial.[36] In turn, those matters will inform what is, and what is not, included in the reasons.
[36] Noting in the latter respect, the informality demanded by s 97(3) and Division 12A of the Act.
The matters just discussed have led to the Full Court saying that there are “circumstances in which it can be safely inferred from the facts and circumstances of the case before the trial judge that [s 65DAA] was considered”.[37]
The facts and circumstances of the instant case
[37]SCVG & KLD (2014) FLC 93-582 at 79,156 [81].
The parties’ proposals
As has been seen, neither of X’s parents proposed that either of the types of time specified within s 65DAA was in X’s best interests.
For her part, the ICL proposed that X should live with the father and spend alternate weekend time with his mother and “in the event that the Mother is able to travel [sic: to] Melbourne, each Tuesday from the conclusion of school or 3.30 on a non-school day until 7.00pm”.[38] With respect, that order is uncertain and unenforceable. It might be thought, however, that it was at least intended to be in substance a substantial and significant time order albeit that no submissions by the ICL referred to the same, or to s 65DAA more generally.
[38] ICL’s Outline of Case Document filed 14 June 2017 p 5.
The nature of the issues in the case
In the approximately four years between separation and trial, X’s care, both in substance and in terms of quantity of time, had been provided predominantly by his mother. The father has spent regular time with X but of the type and in the manner referred to earlier in these reasons.
Over the course of the approximately three years between the filing of the father’s application and the trial, a number of the interim orders made sought, in one form or another, to obtain reliable evidence, including in particular, expert evidence, that might inform issues directly relevant to X’s best interests. Those issues included the mother’s psychological health; her illicit drug use; X’s non‑attendance at school; and issues about his hygiene raised by the school. His Honour had before him three family reports by two different report writers; two reports from a paediatrician; and two reports from a psychiatrist. X spending significantly disproportionate amounts of time with each parent is entirely in accordance with the expert opinions before his Honour.
As stated at the outset of these reasons, the central issue joined between the parties at trial was whether X’s primary care should continue to be provided by his mother or be provided by his father. The parents’ respective contentions were entirely concordant with one or other of them being the predominant carer of X and the other parent having significantly less time than the other with X. The parties’ proposals and the evidence in the case, including the expert evidence, were framed accordingly.
The trial judge’s reasons and findings as to X’s best interests
Findings as to best interests – shaped by the parties’ proposals; the manner in which they ran their cases; and the issues they consequently put forward for adjudication by the Court – drive s 65DAA. Those findings are the precursor to a consideration of reasonable practicability in the successive consideration of each type of time and the subsequent consideration of the making of orders for the relevant type of time contemplated by s 65DAA, or alternative orders also consistent with the subject child’s best interests.[39]
[39] As to the last of those matters, see E & S [2010] FCWA 3 (Chief Judge Thackray) and the alternative view of Professor Chisholm there quoted.
Moreover, in MRR v GR the High Court held that satisfaction of s 65DAA’s statutory requirements requires the Court to ask whether the evidence “permit[s] an affirmative answer”[40] to the relevant questions directed to best interests and reasonable practicability. The questions posed by the section are directed toward “the reality of the situation of the parents and the child, not whether [either relevant order] is desirable”.[41]
[40] At 468 [19].
[41] At 467 [15].
Against that background, the trial judge concluded ultimately:
117.In applying Part VII of the Family Law Act 1975, to these facts it is my judgment that the father’s proposal is more likely to promote the best interests of [X] than the mother’s. It is a big change in his life to live primarily with his father and his fiancée, but to leave him in the mother’s primary care, on balance, is more likely to provide him with poorer parenting and fewer opportunities in life in the long term. It may also compromise his healthy emotional and psychological development
That conclusion was based on a consideration of issues directly relevant to [X’s] best interests and, in particular, the central issue of parental capacity. His Honour’s findings as to X’s best interests include:
·X expressed a strong wish to not change the existing co-parenting arrangement, but his Honour found that in light of his age, and particularly his maturity, and the nature of the relationship with his mother as revealed by the expert evidence, “I cannot give significant weight to [X’s] views” (at [37] – [41]);
·The nature of the relationship between X and his mother is that “[X] appears to be assuming responsibility for her physical and emotional wellbeing” (at [42]) and that was “a very troubling feature of the mother/son relationship in this most unusual case” (at [43]);
·X had a good relationship with the father’s partner and the paternal grandparents (at [44] – [46]);
·There will be “a significant change for [X]” if he moved to his father’s predominant care but his Honour said that his orders would “provide frequent time with his mother during his primary school period so that [X] will cope with the transition” (at [49]);
·“The capacity of the father and [the father’s partner, Ms G] to provide for [X’s] needs including his emotional and intellectual needs are more apparent and positive than those of the mother” (at [53]);
·“The mother has not in my view always made [X’s] best interests and his welfare her priority. There are significant issues in relation to his school attendance and whilst it has recently improved, [it] is not at an optimum level. Secondly, there are historic complaints by the school about his presentation, both in terms of his cleanliness and clothing. Not significant on their own but another factor that troubles the court.” (at [54]);
·“The inability of the mother to hide her negative feelings towards the father within the hearing or observation of [X] from time to time is also very troubling (at [54]);
·In respect of the mother’s assertion that family violence was perpetrated by the father, the mother “did not provide significant details of these alleged events” and despite “heated arguments” between the two, “there is no convincing evidence of any physical assaults or similar events between the mother and the father during cohabitation” (at [64]); and
·“Currently, [X] has a meaningful relationship with both of his parents. I will draft orders that will continue to promote that meaningful relationship” (at [78]).
Those findings result from the acceptance by his Honour of the extensive expert evidence before him and the acceptance of the father’s evidence in preference to that of the mother. Taken together the findings led his Honour to conclude:
91.In my assessment of this case, the expert has raised one of the major issues that worried me; the ability of the mother to change and improve her parenting capacity to promote [X’s] welfare.
92.She has deficiencies in a number of areas which primarily are the following: 1) abuse of illicit drugs; 2) poor school attendance and presentation at school from time to time by [X]; 3) the mother’s negative attitude to the father and step-mother; 4) her Borderline Personality Disorder; and 5) her unusual and inappropriate relationship with [X]. I will now deal with each in turn.
Thereafter, his Honour considered specifically each of the s 60CC considerations thought relevant concluding finally that, despite the very close bond with his mother; her primary care of him and the length of time over which that occurred, X’s primary care should be shifted to that of his father and the mother’s time with him be for, essentially, non-school time.
Did the Trial Judge impliedly “consider” the matters required by s 65DAA?
Lady Justice Black (as her Honour then was) said in In Re F (Children) (Supervised Contact: Disputed Evidence):[42]
…Experienced judges should be encouraged to set out robustly, and where appropriate relatively briefly, the reasons why they have come to particular decisions. It is well established that the judgment must explain sufficiently what the judge has found and the process of reasoning by which he arrived at his findings, but equally the reasoning should be read on the assumption that, unless he has demonstrated to the contrary, the judge knew how to perform his functions and which matters he should take into account. An appellate court has to resist the temptation to subject the judgment to a narrow textual analysis…
[42] [2012] EWCA Civ 828 at [40].
Not only should the reasoning be read on the assumption to which her Honour refers, but, in our respectful view, so too should exchanges between a judge and counsel which, in the absence of pleadings and in the presence of the Act’s mandated informality,[43] shape the issues in a case and the matters to which the judge gives consideration.
[43]Family Law Act 1975 (Cth) s 97(3); Division 12A, particularly, for example, ss 69ZN(4) and (7) and 69ZT.
The mother’s submission seeks to contend in effect that the trial judge did not “consider” a matter central to the Court’s power to make parenting orders; that is, the trial judge did not know, in that respect, “how to perform his functions and which matters he should take into account”. That inference is sought to be drawn from the absence of an objective manifestation of the judge’s subjective mental processes, namely that s 65DAA and its considerations were not at all referred to in the reasons.
The alternative inference is that his Honour well knew what the relevant section central to his power required him to “consider”, but the parties’ proposals; the manner in which they ran their cases and the totality of the evidence before him, allowed him to readily reject the types of time prescribed in s 65DAA with the consequence being that the objective manifestation of his Honour’s thinking, seen in the reasons and exchanges with counsel, focussed upon the important issues joined between the parties, the resolution of which were, in turn, central to a determination of X’s best interests.
The very same issues, evidence and findings which pointed strongly in favour of X being shifted to his father’s predominant care pointed strongly in favour of either equal time or substantial and significant time being contrary to his best interests. Further findings, for example that a relatively young child was “assuming responsibility for [the mother’s] physical and emotional wellbeing” and his Honour’s “worry” about “the ability of the mother to change and improve her parenting capacity to promote [X’s] welfare”[44] only reinforce that conclusion.
[44] Reasons at [42] and [91], respectively.
The central contention in this appeal embraced by Ground 1 fails because, in this particular case, it can be safely inferred from the totality of the matters earlier outlined that the trial judge considered, but rejected, an order for either equal time or substantial and significant time.
Axiomatically, if neither equal time nor substantial and significant time is in X’s best interests, no such order can be made and the further necessity to consider whether each order is reasonably practicable becomes redundant.
The competing proposals argument (Ground 2)
Counsel for the appellant concedes that “his Honour was not required to laboriously list each and every advantage and disadvantage of the parties’ respective proposals”.[45] It is contended however, that his Honour “does not consider either the mother’s proposal or the independent children’s lawyer [sic] in any meaningful sense”.[46] The ICL does not support that submission.
[45] Appellant’s Summary of Argument filed 20 February 2018 at paragraph 31, citing F & B [2000] FamCA 676 at [109].
[46] Appellant’s Summary of Argument filed 20 February 2018 at paragraph 34.
The submission cannot be sustained. What has earlier been said about the issues joined between the parties and the manner in which the case was argued pertain. The central difficult issue confronting his Honour of which all parties’ proposals formed a part, was considered comprehensively.
Adequate Reasons (Ground 6)
As pointed out at the outset of these reasons, the argument that his Honour’s reasons were inadequate is linked to the arguments in respect of equal time and substantial and significant time.
The reasons earlier given in support of the conclusion that each was implicitly considered as the section requires, support the adequacy of his Honour’s reasons; the conclusion that the requisite consideration can be implied flows from his Honour’s reasons being adequate to illuminate that conclusion.
The additional challenge is to the adequacy of the reasons for declining to accept the submission of the ICL for midweek time. Again, the ICL does not support that challenge. Further, what has earlier been said as to the issues joined between the parties and the broader circumstances of the case, and the conclusion that implicit consideration can be discerned, put paid to this challenge.
Conclusion as to the s 65DAA grounds
Grounds 1, 2, and 6 fail. (As has earlier been said, Ground 5 also fails).
The Procedural Unfairness Ground
Ground 4 asserts:
The learned trial judge failed to afford the [mother] procedural fairness in drawing an adverse inference from the appellant’s failure to call her psychologist without first giving her the opportunity to address that failure
His Honour said:
85.The mother also gave evidence in chief that she attended upon her psychologist, a Ms [P], at least fortnightly or every three weeks since the adjournment. When asked to briefly describe the nature of her consultations with Ms [P], she says she wanted to know… “if I had the trait (sic) personality disorder”. She was then reminded that it was called the ‘Borderline Personality Disorder’ and she indicated that she did receive some advice about that from her psychologist.
86.She also said she discussed other issues with Ms [P] and indicated it was about the abuse she received from the father and about issues affecting her personally, namely the cyst on her ovaries. This did not fill me with confidence that this lady is recognising her need for significant therapy, both now and in the future. I would have expected at the very least a detailed written report from her psychologist indicating the history she has taken from the mother, her initial prognosis, and a proposal for detailed therapy and counselling in the future. The lack of this evidence troubled me.
Nothing contained within his Honour’s reasons indicates the basis upon which the mother was consulting the psychologist and in particular whether the consultations were therapeutic and confidential or whether there could be an expectation of evidence coming from that source, much less whether there would be (or should be).
On the fourth day of trial the mother was asked about consulting a counsellor. She said that she had obtained a referral from her general practitioner and would be seeing the counsellor to whom she had been referred the following day. She identified the counsellor as Ms P.[47] The questioning which resulted in that evidence apparently emanated from the mother deposing that she was “determined that [she] will deal with all the issue[s]” identified in an earlier report from the single expert psychiatrist and that she had “taken steps to address the issues raised”.[48]
[47] Transcript, 2 March 2017, p 305 ln 10 to p 306 ln 15.
[48] Mother’s affidavit filed 14 February 2017 at paragraph 16.
Later the same day, his Honour said to the mother: “when you do see this expert tomorrow, I want you to take your four reports – the three family reports and [the single expert psychiatrist’s] report, and I want Dad to do the same [in respect of his counsellor]”.[49] In doing so, his Honour said in respect of the mooted consultation “I want to get some feedback about how it’s going and we can oversee it between now and then”.[50] Those comments were made shortly prior to an adjournment in the trial of about three months.
[49] Transcript, 2 March 2017, p 391 ln 9 – 12.
[50] Transcript, 2 March 2017, p 391 ln 23 – 24.
When the comments were made, counsel for the ICL enquired as to whether his Honour had in mind a written report. The following exchange occurred:[51]
HIS HONOUR: Well, what I would like – I don’t know how busy the ICL is, but for them - - -
[COUNSEL FOR THE ICL]: Not busy at all, your Honour. Got free Saturdays and Sundays? To just drop a subpoena on these experts and for them to have a conversation with her, and, if there’s anything that we should know about, they should be made available for evidence on the phone.
[51] Transcript, 2 March 2017, p 391 ln 30 – 36.
Apparently reflecting those exchanges, his Honour made orders on 2 March 2017 which included an order for each of the parties to attend upon their respective psychologists. No report was ordered from either. However, paragraph 12 of those orders ordered the ICL to “forthwith” issue a subpoena directed to “any health professionals/experts that the [ICL] considers to be relevant and arrange for such person(s) to be available to provide evidence via telephone” upon the resumption of the trial.
When the trial resumed some three months later, the mother was asked about her consultations with the psychologist. She deposed that she had both seen the psychologist and provided to her the reports as his Honour had ordered. The mother was not cross-examined on that topic by counsel for the father or by counsel for the ICL.
The terms of the orders made by his Honour suggest that it was the ICL who was to decide whether to call the psychologist as a witness and to make arrangements for the same. Indeed, somewhat remarkably, his Honour’s order, in terms, abdicates a decision about the relevance of any such evidence to the ICL. The terms of the order suggest that, if the psychologist was not called, it could properly be inferred by all parties (and indeed the Court) that it was because the ICL had determined that the psychologist had no relevant evidence to give.
Accordingly, if the failure to adduce evidence from the psychologist was the subject of an adverse inference drawn by his Honour against the mother without, at the very least, affording her the opportunity to address any such inference, procedural unfairness is made out.
However, a fair reading of his Honour’s reasons does not indicate the drawing of an adverse inference against the mother as she now asserts.
It must be remembered that the proceedings had been live in the Court for some three years by the time the trial commenced. During that time three family reports and a psychiatric report had raised concerns about, among other things, the mother’s mental health and level of functioning. Each report had, in differing specific ways, suggested the need for the mother to gain insight into her psychological issues and how they impacted upon her parenting of X. Allied to those issues was the mother’s illicit drug use and her insight into how that, too, was impacting upon her capacity to parent and, more generally, how her behaviours were affecting X. His Honour addressed the latter issue and his pessimism about the mother’s capacity for insight within that context at [82] to [84]. Having done so, his Honour turned to the broader issue of the mother’s psychological functioning in the paragraphs earlier quoted.
Contrary to the assertion by the mother founding Ground 4, the concern expressed by his Honour did not emanate from any absence of a report. Rather, the concern emanated from answers given by the mother in evidence-in-chief subsequent to being given an opportunity to consult a psychologist armed with earlier expert reports during an adjournment of the trial. Rather than addressing the matters of concern raised in those earlier reports, the mother indicated, as his Honour found at [86], that she “discussed other issues … and indicated it was about the abuse she received from the father and about issues affecting her personally, namely the cyst on her ovaries”.[52]
[52] Noting that, at [85] his Honour makes very brief mention of the mother wanting to know if she had Borderline Personality Disorder.
The premise for the ground and the asserted procedural unfairness is not made out. His Honour did not draw an inference adverse to the mother from her failure to call her psychologist. His Honour made findings based on the evidence as a whole garnered over three years and, specifically, by reference to the mother’s answers to questions posed to her as to what she had drawn from those reports and, specifically, her most recent attendance upon the psychologist.
Ground 4 fails.
The Weight Challenge
Ground 3 asserts insufficient weight was given to the likely effect of any changes in the child’s circumstances. Counsel fairly concedes the difficulties confronting a weight challenge in the exercise of a broad discretion.[53]
The factual premises upon which the arguments pertaining to this ground are based (namely particularised assertions of matters which, it is said, his Honour did not consider in attaching weight to a change in X’s primary care) cannot be sustained on a fair reading of his Honour’s reasons. His Honour did consider those matters.
His Honour said specifically at [49] that changing X’s residence was a “serious step and initially X will find it difficult and no doubt miss his mother”, but noted that a family consultant had opined “that [X] has the capacity to adapt to change, should that be imposed”. It is plain from the reasons read as a whole that his Honour was very much alive to this issue and weighed it in the balance as an important matter to be considered in assessing X’s best interests.
Nothing to which we were taken is persuasive of the erroneous attribution of weight. As has earlier been pointed out, his Honour gave weight to factors directly relevant to X’s best interests, including parental capacity and what any change in residence would mean for X.
Ground 3 fails.
Result Of The Appeal
The appeal should be dismissed.
Costs Of The Appeal
Counsel for the ICL correctly points out that, as the mother is in receipt of legal aid for the appeal, s 117(4)(a) of the Act precludes her from seeking an order for costs of and incidental to the appeal.
The father seeks costs. As counsel for the ICL correctly submits, s 117(4)(a) applies only to the costs of the ICL. However, s 117(2A)(b) specifies the mother’s receipt of legal aid as a matter relevant to the exercise of the s 117(2) discretion distinct from her financial circumstances generally (s 117(2A)(a)).
It has been said many times that financial impecuniosity is neither determinative of the exercise of the discretion, nor necessarily assumes any greater importance than other factors.[54]
[54]Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Nada & Nettle (Costs) (2014) FLC 93-612.
Here, the mother’s receipt of legal aid, and her financial circumstances generally, are important considerations. Facilitating time with X will involve expense. His Honour plainly hoped that she would avail herself of psychological assistance in the future and it seems clear from both the expert evidence in the record and her observed behaviour at the hearing of the appeal (that saw her walking out of the hearing well before it concluded) that she has and will experience the loss of the primary care of X as a crushing blow. Psychological assistance and its associated expense might reasonably be anticipated.
The central issue in the appeal can be seen to arise in large part from a failure by the trial judge to address expressly s 65DAA and its requirements consequent upon determining the order for equal shared parental responsibility. Express reference to the same may well have seen the mother not pursue an appeal which was plainly directed to that central issue.
In all of the circumstances, s 117(1) of the Act is applicable and each party should bear their own costs of and incidental to the appeal.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy and Cronin JJ) delivered on 3 August 2018.
Associate:
Date: 3 August 2018
- AGLC
- Tibb & Sheean [2018] FamCAFC 142
- Case
- [2018] FamCAFC 142
- Decision Date
CaseChat Overview and Summary
The court considered whether the trial judge adequately addressed the mandatory requirements in section 65DAA, which includes ensuring that a child spends substantial and significant time with both parents. The court examined the meaning of "days that do not fall on weekends and holidays" and "daily routine" within the context of section 65DAA. The court also assessed whether the trial judge’s failure to expressly refer to section 65DAA constituted an error and whether the trial judge afforded procedural fairness to the mother by drawing an adverse inference from her failure to call her psychologist.
The court found that the trial judge had considered the requirements of section 65DAA, albeit not expressly, and had rejected proposals for equal time or substantial and significant time based on the totality of the evidence. The court held that the trial judge’s findings were based on the evidence as a whole and not solely on the mother’s failure to call her psychologist. Consequently, the court determined that no error was demonstrated in the trial judge’s consideration of section 65DAA or in the procedural fairness afforded to the mother. The appeal was dismissed, and each party was ordered to bear their own costs of and incidental to the appeal.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
Each party to the appeal shall bear their own costs of and incidental to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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