TMA & WCR

[2005] FamCA 89

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA76 of 2004

(BRM 2748 of 2004)

BETWEEN:
TMA
Appellant Mother

AND:
WCR
Respondent father

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 18 February 2005

Date of Judgment: 25 February 2005

Appearances: Mr Waterman of Counsel, instructed by Delaney & Delaney, Solicitors, appeared on behalf of the Appellant Mother

Mr Byrne of Counsel, instructed by Klar & Klar, Solicitors, appeared on behalf of the Respondent Father

Name of Appeal	TMA and WCR
Appeal Number	NA76 of 2004
Date of Appeal Hearing	18 February 2005
Date of Judgment	25 February 2005
Coram	Warnick J

Catchwords: APPEAL FROM FEDERAL MAGISTRATES COURT – CHILDREN – RESIDENCE – Consent orders in October 2001 allowed for the child to have a more or less equal arrangement between his father’s household and the mother’s household - In 2004 the mother applied to the Federal Magistrates Court seeking an order that the child reside primarily with her and the father to have defined contact – This application was predicated on the basis that the mother wished to go and live in Rockhampton - Federal Magistrate found that the mother had moved to Rockhampton much earlier than she had disclosed in the material and that this did her no credit – Evidence does not support this finding – Error of fact – EVIDENCE – CREDIT – Federal Magistrate stated that he had difficulty with the mother’s credit and would refer to this issue later in the judgment – No further discussion of the mother’s credit follows – Concern of the Appellate Court that the findings at the commencement of the judgment that the mother had misled the court were highly likely to have influenced the Federal Magistrate in his finding that he had difficulties with the mother’s credit – Appellate Court unable to say that the erroneous finding of fact did not have an effect on subsequent findings and upon the final result

Appeal allowed. Application of the mother filed 25 March 2004 remitted to the Federal Magistrates Court for hearing by a Federal Magistrate other than Federal Magistrate Jarrett. Cost certificates ordered.

TMA appeals against orders made by Federal Magistrate Jarrett relating to the parenting arrangements for the child of herself and WCR. That child is C, born 1 November 2000.
At trial, the essential issue was whether C should live with the mother in Rockhampton, to where she had moved, or with the father in Brisbane, where both parties had lived for some years.
In October 2004, the Federal Magistrate ordered that for the remainder of that year C continue to live, as he had done pursuant to interim arrangements, approximately equal time with each parent but that, from the beginning of the preschool year in 2005, he reside primarily with the father.
There are 15 grounds of appeal, though the summary of argument on behalf of the mother really treated the appeal as if there were 4 grounds, with grounds 5 to 15 as paragraphs of ground 4. That approach was consistent with one interpretation of the way in which the grounds are set out in the Amended Notice of Appeal.
In any event, Counsel for the mother confirmed in oral argument that the main thrust of the appeal was that expressed in ground 2, namely a challenge to a finding of fact. It was argued that the allegedly erroneous finding had a “flow on” effect on virtually the entirety of the learned Magistrate’s reasons.
Remaining grounds were not abandoned, but were only faintly argued.
In the circumstances, I think it unnecessary to do more than give a short summary of the learned Magistrate’s reasons and the background facts emerging therefrom, before going immediately to ground 2, followed by the consequences flowing from a consideration of that ground.

The reasons of the Federal Magistrate and background facts emerging therefrom

The parties cohabited for only a short time, from about January 2000 until July 2001.
Following the separation, there was no contact between the father and C until, after a Legal Aid conference, orders were made on 5 October 2001. Of those orders, the learned Magistrate said:
“2. …Those orders provide…for C to reside in a more or less equal arrangement between his father’s household and his mother’s household. Those orders were made by consent in the Family Court.”
In March 2004, the mother applied to the Federal Magistrate’s Court for an order that C live primarily with her and the father have defined contact. As the Federal Magistrate said, her application was:
“…predicated on the basis that she wished to go and live in Rockhampton.”
Shortly after that passage, the learned Magistrate made the finding, relating to the time of the mother’s move to Rockhampton, which is the focus of ground 2.
The Federal Magistrate then recorded the reasons for the mother’s wish to move to Rockhampton and the position of the father, and he said:
“15. …Because of the distance between the parties and because of their financial circumstances, contact will necessarily be limited to periods of holiday contact throughout the year.
“16. …The father works in employment which returns him a modest income but if his orders are made he proposes to cease that work completely and to provide full-time care for C. He has little, as I understand his material, by way of assets.
17. The mother also has little by way of assets and is in the process of improving her situation through remunerative employment. She hopes to continue that path whether C resides with her or not.…”
The learned Magistrate then moved to discussion of the husband’s case and the criticism’s contained within it, of the father’s parenting. These criticisms included unreliability of the father in relation to telephone contact with C and sickness in C upon return from the father’s place, in which regard the learned Magistrate said:
“23. …But the medical evidence before me and in particular the evidence gleaned by Ms CY in her telephone interviews with C’s treating doctors, one in Brisbane and one in Rockhampton, demonstrate no particular cause for concern in that respect.…(Ms CY had prepared a Family Report)

24. That C tends to get sicker in Brisbane than in Rockhampton is a matter I need to take into account but it is not a matter I think that attracts a significant amount of weight in the overall context of this case.”

His Honour also considered criticisms that C was returned to the mother in a dirty condition. In this regard, he noted that there was little by way of corroborative evidence to support the assertions. He noted that the family reporter’s observations of C at interview were to the contrary and he noted some support from the paternal grandmother for the mother’s observations but said that the nature and extent of her evidence did not convince him that the allegations were true. His Honour said:
“26. I have some difficulties with the mother’s credit and I will refer to that issue shortly. It is sufficient for me to say at the moment that in respect of her assertion that C is dirty, grubby, has dirty clothes on and on occasions has been dressed inappropriately are not proved to the requisite standard and I will not take it into account.”
His Honour then considered other complaints of the mother, including that C had started to use “a lot of swear words and that he has reported to her that the father says derogatory things about the mother and her parents.” noting that there was some support for the first suggestion in the family report. The learned Magistrate said:
“29. …Given that there is some support for the mother’s case in that regard it is likely, I think that C has heard some inappropriate language in his father’s household…I will take those matters into account.”
His Honour then considered the mother’s complaints that C was moody upon return from contact, that the father was an habitual drug user and had an alcohol abuse problem and that when the father drank excessively, he became violent. His Honour addressed a concern about the father’s acquiescence to the child using a pacifier or dummy, and said:
“39. …It has had some effect on C in that his speech development is delayed. The evidence before me persuades me that that developmental delay is probably due to C’s excessive use of a pacifier. Given that that is something that occurs in the father’s care, it is something that must fall at the father’s feet.”
Shortly after, the learned Magistrate said it was of concern to him that the father did not appreciate the difficulties for C in relation to speech.
Turning to the father’s case, the learned Magistrate noted the father’s proposal to be available full-time if C were placed in primary residence with him.
His Honour noted that the father had, at least in recent times, refused to be drawn into criticism of the mother, save that her attitude towards contact was less than:
“44. …one might hope for in a parent who aspires to have C reside them.”
In this regard, and after discussing a specific episode, the learned Magistrate found that:
“45. …it demonstrates that the mother will act in an arbitrary way if it suits her.…I am not satisfied that she was approaching the matter in a particularly child focussed way.”
His Honour then made findings that the father had stable accommodation in which he had been for some time and he expected to receive support from members of his large family in Brisbane and that the father had:
“47. …an entirely child focussed approach.”
Shortly after, his Honour turned to consider the matters set out in section 68F(2) of the Family Law Act, 1975. He expressed the views that; C was too young to have his wishes:
“52. …realistically taken into account.”;
that C was plainly bonded to each of his parents and had a significant relationship with each of them; that it was not a case where he could make findings that one parent enjoyed a primary attachment with the child nor was it suggested so by the family reporter; and that there was not:
“56. …any particular significant relationship between C and the mother’s present partner.”
To this last mentioned finding his Honour added:
“57. …that I am not satisfied that there is a relationship that is stable and lasting between the mother and her present partner.”(Mr CE)
In discussing the evidence relating to the relationship between Mr CE and the mother, but bearing on the mother’s credibility, the learned Magistrate said:
“60. The mother also says that she doesn’t live with Mr CE because she wishes to introduce Mr CE into C’s life in a controlled and sustained way. That doesn’t, however, stand scrutiny because in 2003 for a period of about seven months Mr CE lived with her and C in Brisbane.”
His Honour then returned to consideration of the section 68F(2) factors. He addressed the likely effect of a change in circumstances, finding that, either way, the relationship between C and the parent with whom he did not primarily reside, would change for the worse.
His Honour expressed himself satisfied that each of the parents could provide for C’s physical needs. After quoting some pertinent remarks from the family report, he said:
“68. Each of these parents plainly brings different strengths and different weaknesses to their parenting of C. I accept Ms CY’s view that the mother is less likely to promote C’s emotional wellbeing than the father is. She has demonstrated herself to be critical of the father’s care in ways that have come to C’s attention. I find that it is likely that her attitude towards the father will continue and that C will be made aware of that attitude. She has denigrated the father’s care of C and that of itself demonstrates something of a lack of capacity on her part to provide for C’s emotional and intellectual needs.”
Shortly after, the learned Magistrate said:
“71. It is now my task to balance those factors and reach a conclusion. This is a finely balanced case…
…
73. For the present time, however, it seems to me that taking an overall view…the father is in a better position to provide for those things than the mother.…
74. In those circumstances I am of the view that C ought to reside with his father and that he ought to have contact with his mother.…”

Ground 2

“2. The learned Federal Magistrate erred in finding that the mother had moved to Rockhampton much earlier than she had disclosed in her material (reasons for judgment, paragraph 6) when such finding was contrary to the unchallenged evidence of the mother that the mother had not moved to Rockhampton prior to the making of consent orders on 22 June, 2004 that permitted her to do so.”

This ground attacks the finding at the conclusion of paragraph 6 of the learned Magistrate’s reasons, but I think the possible implication of that finding can be gleaned also from paragraphs 4 and 5:
“4.    In March 2004, the mother applied to this Court for an order that C live with her and that he have certain defined contact, as set out in her application, with the father. Her application is predicated on the basis that she wished to go and live in Rockhampton. Her material filed on 25 March 2004 gave one the impression, and was intended to give one the impression, that she was at that stage still living in Brisbane and had not moved to Rockhampton.
5.     The matter came before the Court for mention on 18 May 2004 and I made some directions at that stage about the filing and service of material. I made some interim contact orders as well. There was no mention at that stage that the mother was living anywhere other than Brisbane.
6.     On 8 June 2004 the matter came back before the court and the parties agreed to the making of consent orders that saw C residing three weeks with his father and three weeks with his mother. His mother by that time had moved to Rockhampton. Indeed, the cross-examination of the mother revealed that she had moved to Rockhampton much earlier than she had disclosed in her material. That does her no credit.”
There is firstly an error in paragraph 6 in that the consent order was made on 22 June 2004, not 8 June 2004. That, however, does not seem to be a material error.
It was submitted on the mother’s behalf that the unchallenged evidence of the mother was that the mother’s move to Rockhampton had not been effected prior to the making of the consent orders on 22 June 2004.
In his written summary of argument, counsel for the father disputed that the evidence of the mother about the move to Rockhampton was unchallenged, and referred to cross-examination about a diary, which it seems the mother had been advised to keep by a Legal Aid officer, and which started “more or less from the very beginning of the first mediation.” There was both a typed and a handwritten version, at least of parts.
The mother was asked in cross-examination if she could explain why the last entry on the typed page was 23 June 2004 and the first entry on the written document was 7 June 2004. The mother said that that was because she had moved up to Rockhampton and didn’t have her type-writer, though she did have it by 23 June 2004. She had been in transit.
I do not consider that the passage of cross-examination enables any specific conclusion about when the mother moved to Rockhampton to be drawn, although it seems she might have moved some time between 7 June and 23 June 2004.
Earlier in her evidence under cross-examination, the had mother expressed the view that she thought she had moved to Rockhampton in July 2004. The mother had also been earlier asked about visits to Rockhampton, and the evidence established that she had visited her parents twice since they had moved to Rockhampton in about November 2003, for periods from between 4 and 10 days to a couple of weeks. There may also have been another visit or it may have been one of the two visits, which extended from December 2003 to mid-January 2004.
In my view, whatever might be made of this evidence, it would not support a conclusion that the mother had moved to Rockhampton prior to mid-2004 and certainly did not support the finding the mother had moved “much earlier than she had disclosed in her material”.
In this regard, some important, but entirely proper concessions were made by counsel for the father, at the hearing of the appeal. Those concessions were:
· That is was not the father’s case at trial that the mother had moved to Rockhampton prior to the court order permitting her to do so.
· That apart from whatever was established by the passages of cross-examination already referred to, there was no other evidence of an actual move by the mother to reside in Rockhampton prior to the orders permitting her to do so.
In the circumstances, I am of the view that the finding that:
“…the mother revealed that she had moved to Rockhampton much earlier than she had disclosed in her material.”
is an error of fact.
It does not automatically follow that the appeal succeeds. In de Winter and de Winter (1979) FLC 90-605 in the High Court, Gibbs J said:
“…The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did effect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.…” (p 78,092)
I do not believe in this case that it can be said that, notwithstanding the error of fact, the result was so plainly right that it can be allowed to stand. Such a conclusion, I believe, follows from the learned Magistrate’s own finding that the case was “finely balanced”. In other words, though the result may well be “right, it is not “plainly” so.
In that regard, Gibbs J had earlier said:
“…a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust.” (p 78,091)
The question then is, whether the error has affected the conclusion.
It is, I think, as I indicated earlier, appropriate to consider the actual finding in paragraph 6 in the context of the two preceding paragraphs. In paragraph 4, the reference to the material of the mother as giving the impression and being “intended to give one the impression, that she was at that stage still living in Brisbane and had not moved to Rockhampton” carries the inference that the mother misled the court, as early as March 2004 and subsequently.
This and the findings in paragraph 6 appear at the outset of the learned Magistrate’s judgment.
However, in support of his resistance to the appeal, counsel for the father correctly pointed out that these findings are not mentioned again in the course of the judgment. It does not of course follow from that, that the findings did not have an effect on subsequent parts of the learned Magistrate’s reasoning. The significance of the absence of later mention is simply that one is left to speculate about the impact on the judgment of the findings attacked.
Reference to later passages in the learned Magistrate’s reasons are of some assistance in coming to a decision. As earlier seen, at paragraph 26 of his reasons, the learned Magistrate said:
“26. I have some difficulties with the mother’s credit and I will refer to that issue shortly.…”
Despite the indication, no further discussion of the mother’s credit, as a separate topic, follows, either shortly or at all. In those circumstances, in my view, there must be significant concern that the findings at the commencement of the judgment to the effect that the mother has misled the court, are highly likely to have influenced the learned Magistrate in finding:
“…difficulties with the mother’s credit.…”
As also seen from passages earlier set out, the learned Magistrate rejected a number of the mother’s criticisms of the father and in so doing, in my view, it is apparent that, although some other bases for rejection of the mother’s case on the various points was referred to, the learned Magistrate indeed had reservations about the mother’s credit.

In the circumstances, I find myself unable to say that the erroneous finding did not have an effect on subsequent findings and upon the final result.

Other grounds of appeal

In the circumstances of this case, as earlier described, I think it unnecessary in view of the conclusion I have reached in respect of ground 2, to discuss the other grounds.

Re-hearing

Both counsel expressed the view that, if the appeal succeeded, a rehearing would be necessary. I agree that that is the unfortunate consequence.

Costs

Again, both counsel submitted, and I accept, that this is a matter proper for the grant of certificates, both in respect of the appeal and the rehearing, under the Federal Proceedings (Costs) Act 1981.

ORDERS

That the appeal be allowed.
That the application of the mother filed 25 March 2004 be remitted to the Federal Magistrates Court for hearing by a Federal Magistrate other than Federal Magistrate Jarrett.
That the court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
That the court grants to each of the appellant mother and the respondent father costs certificates pursuant to the provisions of section 8 Federal Proceedings (Costs) Act 1981 being certificates that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise payments under that Act to each of the appellant mother and the respondent father in respect of the costs incurred by each in relation to the new trial.
I certify that the preceding 51 paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Warnick.

………………………………….
Associate
Date: 25 February 2005

[2005] FamCA 89

25 February 2005

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