TOLLENAAR & HAMPSON
[2009] FamCAFC 212
•25 November 2009
FAMILY COURT OF AUSTRALIA
| TOLLENAAR & HAMPSON | [2009] FamCAFC 212 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – CHILDREN – with whom a child lives – where the parties had been able to reach agreement in relation to all aspects of the care of their child save for one issue – where the parties agreed the child was to live with the mother for nine consecutive days and with the father for five consecutive days each fortnight – where the sole issue for determination by the Federal Magistrate was the days on which the parties’ respective time with the child was to commence – whether the Federal Magistrate failed to consider the recommendations of a Family Report – whether the Federal Magistrate failed to attach any or any sufficient weight to the mother’s evidence of her work and income – whether the Federal Magistrate erred in failing to consider the extent to which the father has failed to fulfil his obligations to support the child – whether the Federal Magistrate failed to make an order that was reasonable and practicable and in the best interests of the child – where there is no merit in any ground of appeal – appeal dismissed. |
| Family Law Act 1975 (Cth) |
| Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 House v The King (1936) 55 CLR 499 Gronow v Gronow (1979) FLC 90-716 Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343 at 345 Bennett and Bennett (1991) FLC 92-191 |
| APPELLANT: | Ms TOLLENAAR |
| RESPONDENT: | Mr HAMPSON |
| FILE NUMBER: | ADC | 2504 | of | 2008 |
| APPEAL NUMBER: | SA | 66 | of | 2009 |
| DATE DELIVERED: | 25 November 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 19 October 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 May 2009 (Orders made 22 June 2009) |
| LOWER COURT MNC: | [2009] FMCAfam 541 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Whittle |
| SOLICITOR FOR THE APPELLANT: | David M Davidson |
| COUNSEL FOR THE RESPONDENT: | Mr Berman |
| SOLICITOR FOR THE RESPONDENT: | Mellor Olsson |
Orders
That the appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tollenaar & Hampson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 66 of 2009
File Number: ADC 2504 of 2008
| Ms TOLLENAAR |
Appellant
And
| Mr HAMPSON |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 17 July 2009 the mother appeals against orders made by Federal Magistrate Simpson on 22 June 2009 with respect to the child L born in October 2002.
The parties were able to reach agreement in relation to all aspects of the care of their child, save for one issue. The parties agreed that the child was to live with the mother for nine consecutive nights and with the father for five consecutive nights, and the sole issue left for determination by the Federal Magistrate was the days on which the parties’ respective time with the child should commence. The Federal Magistrate’s orders with respect to this issue made on 22 June 2009 are the subject of this appeal. Those orders provided:
1. That the orders made by this Honourable Court on 30 July 2004 be discharged.
2. That during school term time the infant child [L] born on […] October 2002:
(a)shall live with the father from 9.00am on Sunday 17th May, 2009 to the commencement of school on Friday 22nd May, 2009 and fortnightly thereafter; and
(b)shall live with the mother for the remainder of each such fortnightly periods subject however to such orders as may be made as to special occasions falling within the periods referred to above.
This appeal is being determined by me as a single Judge, following a direction by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (‘the Act’).
The father seeks that the mother’s appeal be dismissed.
Background
Given the limited scope of this appeal, it is only necessary to provide a brief summary of the parties’ relationship.
At the time of the hearing before the Federal Magistrate the father was aged 34 years and the mother was aged 31 years.
The parties met in early 2002 and commenced cohabitation in February 2002. The mother became pregnant with the parties’ child shortly thereafter. The parties separated and the father moved out of the mother’s home in about June 2002.
The child L was born in October 2002 and was aged 6 years at the time of the hearing before the Federal Magistrate.
On 15 November 2002 the father commenced proceedings in the Family Court seeking parenting orders.
In July 2004 a trial was listed before Burr J. However, the parties reached agreement that the child was to live with the mother and consent orders were made. On 30 July 2004 Burr J made final orders with respect to the contact the father was to have with the child and the child’s surname.
On 24 June 2008 the father commenced proceedings in the Federal Magistrates Court.
On 26 August 2008 Federal Magistrate Simpson made interim orders which provided, inter alia, for the parties to have equal shared parental responsibility, for the child to live with the mother and spend time with the father during school terms from after school Thursday to before school Friday each alternate week and from after school Thursday to before school Monday in the intervening week, as well as for half of school holidays.
Prior to commencement of the trial on 4 May 2009, the parties were able to reach agreement on all aspects of the care of their child, save for one issue, and asked that consent orders be made with respect to the matters agreed. To repeat, the remaining issue for determination by the Federal Magistrate was the days of the week on which the parties’ respective time with the child should commence. Both parties gave evidence and were cross-examined before the Federal Magistrate on 4 May 2009.
On 8 May 2009 the Federal Magistrate delivered ex tempore reasons for judgment. His Honour indicated, however, that he was not in a position to make the orders proposed in his reasons until the parties had provided the Court with a final version of the agreement reached with respect to all other parenting issues. The matter was therefore adjourned to 2 June 2009 to enable this to occur.
On 2 June 2009 the matter was further adjourned to 22 June 2009.
On 22 June 2009 his Honour made orders (as outlined above at paragraph 3) that the father’s five days with the child commence on Sunday mornings and conclude at the commencement of school on Friday. His Honour also made orders by consent with respect to all other parenting issues, which included that the parties were to have equal shared parental responsibility for the child. As previously mentioned, those orders are not the subject of this appeal.
Reasons for judgment of the Federal Magistrate
The Federal Magistrate recorded that, save for one issue, the parties had been able to reach agreement and had asked that consent orders be made. The Federal Magistrate outlined that the parties agreed the child was to live with the father for five consecutive nights each fortnight and with the mother for the remaining nine consecutive nights and that the outstanding issue for his determination was the days of the week on which the parties’ respective time with the child should commence.
The Federal Magistrate first recorded the parties’ respective proposals. The father sought that his five days commence on a Sunday and the mother’s nine days commence on the following Friday. The mother sought that the father’s time commence on a Thursday and that her time with the child commence on the following Tuesday.
The Federal Magistrate outlined the “somewhat unusual circumstances” of this case, namely that both parties had work commitments on Friday and Saturday nights, with the mother also having work commitments on Thursday nights.
The Federal Magistrate made reference to interim orders made by his Honour on 26 August 2008, and the reasons given for those orders on 21 August 2008, and in particular his consideration in those reasons of the practical difficulties created by the parties’ work commitments. Pursuant to this earlier order, the child was to live with the father from after school Thursday to before school Friday in alternate weeks, and from after school Thursday to before school Monday in the intervening weeks.
Having identified the issue for determination and outlined the interim orders made, the Federal Magistrate turned to consider the evidence of the parties.
Firstly, addressing the evidence of the father, the Federal Magistrate recorded that the father was self employed and worked Friday and Saturday nights. It was the father’s evidence that on Friday and Saturday nights he did not finish work until the early hours of the morning and would often have only a few hours sleep before the child would wake at approximately 6:30am. The father’s sister cared for the child on Friday nights and his partner cared for the child on Saturday nights. The Federal Magistrate recorded that under cross examination the father had given evidence that his work as a musician was a long term proposition which he wished to continue. The father gave evidence that he also managed the band in which he played as a musician, and that required an additional two days work per week. The Federal Magistrate recorded that the father earned approximately $18,000 per year.
The Federal Magistrate then addressed the evidence of the mother, recording that the mother worked as a hairdresser and that she found it inappropriate for the child to be present while she worked. The mother had given evidence that she worked on Thursday, Friday and Saturday nights for fashion parades, formals and weddings which paid better than “normal” hairdressing. The mother gave evidence that she was in receipt of Centrelink benefits.
The Federal Magistrate then had regard to submissions made on behalf of the mother, which included that the mother had been the predominant carer of the child, that the father was not paying child support and the mother was essentially “doing it on her own”. It was submitted before the Federal Magistrate that the father could have obtained work which was more compatible with looking after a child, and that the order he sought would place an undue burden on the mother.
The Federal Magistrate accepted that the father had made a career choice to be a musician and was committed to his work. His Honour also accepted the evidence of the father as to the time he spent managing the band. His Honour believed there was “some strength” in the father’s submission that the mother was attempting to make more of her business than was reasonably justified.
The Federal Magistrate noted that it was difficult to try and balance the interests of the parents, recognising that no matter what order his Honour made, one of the parents was going to have difficulties. His Honour said he was assisted in determining the dispute by a consideration of what was in the child’s best interests. In this regard, his Honour referred to the affidavit of the father and his evidence with respect to his inability to spend time with the child due to his work commitments and the effect this has on the child and their relationship. His Honour accepted this evidence of the father, considering it to be important.
Given the child was to spend only five nights per fortnight with the father, the Federal Magistrate considered it to be “extremely important” that the child spend “quality time” with the father for that limited time.
The Federal Magistrate explained that if he was to accept the proposal of the mother, a significant part of the time the child was to spend with the father would not be “good quality time”.
The Federal Magistrate found that the mother had a much greater opportunity to have “good quality time” and a meaningful relationship with the child as she was to have the child nine nights in each fortnight.
The Federal Magistrate explained that he wanted to make an order to ensure that the child had good quality time with both parents, concluding that this could only be achieved by making the order sought by the father, namely for the father’s time with the child to commence on Sunday.
Finally, the Federal Magistrate explained he was not able to make an order consistent with his reasons until the parties had provided the final version of a minute of the matters the parties had agreed to.
Grounds of Appeal
The grounds of appeal relied upon by the mother in her Notice of Appeal filed on 17 July 2009 were as follows:
1. That the learned Federal Magistrate erred:
(a)in failing to consider the recommendations of the Family Report dated 26/2/09;
(b)in failing to attach any or sufficient weight to the mother’s evidence as to her income and working hours and to make an order that reasonably enables her to financially support herself and the child;
(c)in failing to consider the extent to which the father has failed to fulfil his obligations to support the child;
(d)in failing to make an order that is reasonable and practicable; and
(e)in failing to make an order that is in the best interests of the child.
The mother sought the following orders:
1. That during school term time the infant child [L] born on […]/10/02
(a)shall live with the father for five consecutive nights in each fortnight commencing at the conclusion of school on Thursday and concluding at the commencement of school on the following Tuesday; and
(b)shall live with the mother for the remainder of each such fortnightly periods.
Principles applicable to an appeal
This is an appeal against an exercise of discretion by the Federal Magistrate. The principles applicable to an appeal from a discretionary judgment are well settled.
The limitation of an appellate court hearing an appeal from a discretionary judgment was discussed by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 where his Honour said at 627:
“…the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.”
In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said at 504:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
In Gronow v Gronow (1979) FLC 90-716 Stephen J stated at 78,848:
“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.”
Similarly, in Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343 at 345, Asquith LJ said:
“It is, of course, not enough for the mother to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
There is an obligation upon a judicial officer to provide adequate reasons for his or her decision. The law with respect to the need to provide adequate reasons is also well settled. In Bennett and Bennett (1991) FLC 92-191, the Full Court outlined the test at 78,267:
“In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.”
Discussion
Ground 1(a)
The recommendations of the report writer were as follows:
“43. Unless evidentiary material should indicate otherwise the following is recommended.
44. [L] should live with his mother for 9 nights per fortnight and with his father 4 nights each second weekend and Thursday night of the intervening week.
45. Ms [Tollenaar] should be responsible for [L]’s general health, welfare and education decisions, but always keep Mr [Hampson] informed.
46. Ms [Tollenaar] and her parents’ refrain from making derogatory remarks about Mr [Hampson] and ensure that [L] is available on specified evenings to take telephone calls from his father.
47. Ms [Tollenaar] and Mr [Hampson] make use of a proper communication book, (not notes in his school bag), and to ensure all information needed for [L]’s health and well-being is included.
48. Each party should be responsible for [L]’s health and well-being when he is in his/her care.”
The complaint is that the Federal Magistrate failed “to consider the recommendations.” However, the fact of the matter is that these recommendations were no longer relevant. The report was presented in the context of the father seeking that the child live with him for 9 nights each fortnight and with the mother for 5 nights. That represented a significant change to the then existing arrangement which was provided for in the interim orders made on 26 August 2008.
The report says nothing about the issue that the Federal Magistrate had to decide. Faced with that the appellant’s counsel suggested that the relevance of the report is what it said about the wishes of the child. In paragraphs 33 and 39 of the report the author records the wishes of the child. They were to the effect that he liked the living arrangements the way they were. Further, at paragraph 40 the author opined that, “[h]is mother has given the majority of care and for [L] to make a change and to spend more time with his father could be most confusing and possibly distressing for him.”
However, apart from the fact that this ground of appeal says nothing about an alleged failure by the Federal Magistrate to take into account the wishes of the child, the wishes referred to could carry no weight before the Federal Magistrate. At the time of the interview L was aged six years and four months and he was seeing his father for a total of five nights each fortnight. The issue, to repeat, was whether there should be a change to nine nights. L’s views were understandably not sought as to spending five nights in a block with the father and importantly as to the starting date of such a period.
In these circumstances there is no merit in this ground of appeal.
Ground 1(b)
The submission of the appellant is that there was no finding by the Federal Magistrate that the mother did not have a significant reason or need to work on Thursday, Friday and Saturday nights, and thus in not addressing the likely impact of the proposed orders upon the mother’s capacity to financially support herself and the child the Federal Magistrate failed to give sufficient weight to the evidence of the mother as to the importance of her being able to work on these nights.
The Federal Magistrate did say this at paragraph 20 of his reasons, namely:
“It was put on behalf of the father that the mother is attempting to make more of her business than is reasonably justified. I believe there is some strength in that suggestion.”
However, the appellant’s counsel says that the Federal Magistrate failed to explain this comment.
Both parties relied on affidavit material and they gave oral evidence as to their work and their financial circumstances, and this was very much a focus for the Federal Magistrate. As such the Federal Magistrate was entitled to look critically at this evidence and in the end result he took into account the fact that the work arrangements of the mother failed to provide significant income. His Honour found that historically there was very little financial benefit from working these nights, and his Honour compared that with the husband’s position.
However, it is quite apparent from the reasons of the Federal Magistrate that the major concern for his Honour was to ensure that the child had a meaningful relationship with both parents, but particularly the husband. His Honour said this in his reasons:
“22. In matters such as this, I have to take into account the best interests of the child as my paramount consideration. A consideration of what is in the child’s best interests assists me to resolve this dispute.
23. The father gave evidence in paragraph 194 of his trial affidavit (and this was not disputed by the mother in her affidavit – see paragraph 90 of her affidavit which indicated that she did not wish to say anything about this evidence) as follows:
‘I have found, however, that since the present interim orders have been in place -’
they being the orders of 26 August -
‘that [L] can get frustrated that I cannot do as much with him. This is due to the fact that I am physically exhausted as I have to work two of the nights over the weekend up until 3 am, when [L] is in my care, to continue to support the both of us. Given the current economic climate, it is imperative that I continue to do so.
I say that a meaningful relationship between [L] and I will continue to be best achieved by not only the amount of time that we spend together but also the quality of that time. At present I say that quality of time is being compromised.
[L] also prefers that I put him to bed and at present I am unable to do so on the Friday and Saturday nights due to my work commitments. [L] wakes up most mornings around 6.30.’
24. That is important evidence that I accept. Taking into account what is in the best interests of this child, it seems to me to be extremely important, bearing in mind the father will only have the child for five nights per fortnight whereas the mother has the child for nine nights, that the child spend quality time with the father for those limited days that the father has the child.
25. If I were to accept the mother’s submission and order that the child spend time with the father from Thursday the situation would be this: the child will be at school on Friday, will come home, after which the father will be off very quickly to his Friday night work commitment and he will be tired on Saturday morning. The same thing will happen on Saturday night and Sunday morning. As a result a very significant part of the time that the child will be spending with the father will not, it seems to me, be good quality time.
26. The mother has a much greater opportunity to have good quality time and a meaningful relationship with the child as she has the child for nine days and nights per fortnight. I want the order that I make to ensure that the child has good quality time with both parents and that, I believe, can only be achieved by making the order that the father seeks; namely, that the time will commence from the agreed time on the Sunday.”
I can find no error here on the part of the Federal Magistrate.
Ground 1(c)
The evidence before the Federal Magistrate was that the father paid no child support at the time of the hearing, and the submission was made to his Honour that apart from the father paying for school uniforms and paying one half of the school fees, and the father supporting the child when he was with him, and the child support assessment providing for no payment to be made, that the wife had to do it “on her own”. It was said that the effect of an order as the father sought would be to reduce the mother’s ability to work and to provide that support to the child.
The complaint before this Court is that the Federal Magistrate did not appear to consider or adequately consider this in his reasons, and in his written outline the mother’s counsel went further and suggested that the father “had the capacity to choose to take up more remunerative employment, during more conventional hours or addition employment” to contribute more to the maintenance of the child, and the Federal Magistrate failed to consider this as well.
Putting aside the question of whether in fact the father has failed to fulfil his obligations to support the child, a fact which the evidence before the Federal Magistrate does not bear out, it is quite apparent from the reasons of the Federal Magistrate that his Honour was alive to this issue (e.g. see paragraphs 18 and 19 of his Honour’s reasons), and referring to these issues they clearly form part of his Honour’s reasoning in reaching the decision that his Honour did. His Honour recognised in paragraph 22 of his reasons that this was a difficult balancing exercise, but as I have said already, his Honour then determined this case by reference to the need for there to be a meaningful relationship with both parents.
In adopting this approach I do not consider that his Honour has fallen into error. It is a matter of weight, and the exercise of discretion, and I do not consider that his Honour has erred in the exercise of that discretion.
Ground 1(d)
This is a ground of appeal which cannot succeed. In his written outline the mother’s counsel explained that the complaint was that the Federal Magistrate made an assessment of the impact of the proposed orders on the father but did not do so in relation to the mother. He submitted that this was apparent from paragraph 25 of his Honour’s reasons. However, in my view that is simply not correct. Paragraph 25 of his Honour’s reasons was one of a series of paragraphs in which his Honour was addressing the primary consideration of the benefit to the child of enjoying a meaningful relationship with both parents, and at the very least paragraph 26 of his Honour’s reasons picks up the mother’s position.
I also accept the submission of the father’s counsel that the mother presented no evidence to the Federal Magistrate of the cost of child care, and she failed to explain what she meant by suggesting that “the child will never during school term be able to spend a full weekend with the appellant.”
Ground 1(e)
This is not a stand alone ground of appeal, and given that I have found no merit in the specific grounds of appeal this ground cannot succeed by itself.
Conclusion
None of the grounds of appeal have any merit and therefore the appeal should be dismissed.
I certify that the preceding 57 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 25 November 2009.
Associate
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