TOOHEY & EGBERT
[2015] FamCAFC 171
•8 September 2015
FAMILY COURT OF AUSTRALIA
| TOOHEY & EGBERT | [2015] FamCAFC 171 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant appeals the “live with” and “spend time and communicate with” orders – Where even though a trial judge is not bound by the proposals of the parties those competing proposals must be considered in determining where the best interests of the child/ren lie – Where the appellant says that the trial judge did not give proper consideration to the alternative substantial and significant spend time with proposal put by him – Where nowhere in the case presented at trial, in the evidence put before the trial judge, or in the opening or closing submissions was an alternative proposal put by the appellant – Where the trial judge was aware that the appellant sought a block period of time either each alternate week or a lesser period – Where there is no merit in the ground of appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent sought an order for costs in the event that the appeal was dismissed – Where the appellant opposed any costs order given the financial circumstances of the parties and that the appeal was not without merit – Where lack of success provides justification for making an order for costs – Where the respondent has been put to unwarranted expense in meeting an unsuccessful appeal – Costs ordered in favour of the respondent as agreed and in default of agreement as assessed on a party/party basis. |
| Family Law Act 1975 (Cth) – s 65DAA(3) |
| Goode & Goode (2006) FLC 93-286 Heath & Hemming (No. 2) [2011] FamCA 749 Sawant & Karanth [2014] FamCAFC 235 U v U (2002) 211 CLR 238 Yates & Yates [2012] FamCAFC 138 |
| APPELLANT: | Mr Toohey |
| RESPONDENT: | Ms Egbert |
| FILE NUMBER: | LNC | 143 | of | 2012 |
| APPEAL NUMBER: | SOA | 53 | of | 2014 |
| DATE DELIVERED: | 8 September 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide (by video link to Hobart) |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 13 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1564 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Turnbull |
| SOLICITOR FOR THE APPELLANT: | McVeity & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Tesoriero |
| SOLICITOR FOR THE RESPONDENT: | Tehan George & Co |
Orders
The appeal be dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the appeal, such costs to be assessed on a party/party basis in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Toohey & Egbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 53 of 2014
File Number: LNC 143 of 2012
| Mr Toohey |
Appellant
And
| Ms Egbert |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 19 December 2014 Mr Toohey (“the father”) appeals paragraphs 2 and 3 of the order made by Judge Roberts on
25 July 2014. The appeal is opposed by Ms Egbert (“the mother”).
His Honour’s orders provide for equal shared parental responsibility of X (born 2003) and Y (born 2007) (“the children”), that they live with the mother and spend time with the father each alternate weekend during school terms, from the conclusion of school on Thursday until 7.30pm on Sunday, with such time to be extended to 7.30pm on Monday if the Monday is a non-school day. His Honour’s orders further provided that the children spend time with the father on each Tuesday during school terms from the conclusion of school until 7.30pm, and they also provided for school holiday periods and special occasions. The “live with” and the “spend time and communicate with” orders were the two orders appealed against.
Initially, the father sought to pursue 14 grounds of appeal. However, in his Amended Notice of Appeal only two grounds were pursued, namely Grounds 15 and 16. At the hearing before this court counsel for the father indicated that only Ground 16 was pursued, and thus Ground 15 was abandoned.
Background
The mother was aged 32 years at the hearing before his Honour, and the father was aged 33 years.
The parties’ relationship began in late 2001, with cohabitation commencing in early 2002. After a period of separation the parties resumed cohabitation in mid-2003 and separated on a final basis in mid-2011.
After the final separation the children lived predominately with the mother and spent alternate weekends with the father. This arrangement changed in mid-2013 when the children began to spend more time with the father, namely from after school on Thursday until Sunday evening each alternate week, and on Tuesday each week from after school until 7.30pm. Since this time the children have also spent half the school holidays with the father.
Both the paternal and maternal grandparents live in “relatively close proximity” to the parties, and have regular contact with the children (at [8]).
Reasons for Judgment delivered on 25 July 2014
The trial judge commenced the reasons for judgment by recording a brief background and the orders sought by the parties.
At trial, the mother sought orders in the terms ultimately ordered by his Honour. In relation to the father, he also sought an order for equal shared parental responsibility, but sought that the children live with each parent on a week about basis, and that there be specific orders in relation to holidays and special occasions.
His Honour then recorded the evidence before the court, comprising affidavits by the mother, the father and the maternal grandfather. Furthermore, the court had the benefit of a Family Report by Ms D, a Family Consultant, dated 27 March 2013.
Turning to the law as it applies to parenting matters, his Honour referred to Part VII of the Family Law Act 1975 (Cth) (“the Act”), and specifically ss 60B, 60CC, 61DA, and 65DAA. At [22] his Honour recorded the applicability of the High Court’s decision in MRR v GR (2010) 240 CLR 461 and observed at [23] that “[i]t is clear that the court is not restricted to considering only the proposals put forward by the parties” (citing Bolitho & Cohen (2005) FLC 93-224).
His Honour addressed the primary considerations in s 60CC(2) by stating that he did “not need to say much about either consideration” and referred to submissions by the mother’s counsel to the effect that the children had a meaningful relationship with both parents, and no risk of harm arose in relation to them (at [26]).
His Honour then addressed the s 60CC(3) additional considerations, summarised below, as relevant to this appeal.
Section 60CC(3)(a) - the children’s views emerging from the Family Report suggested that they wanted to spend more time with the father. Indeed, following the release of the Family Report, the mother offered the father more time with the children, which was taken up, and continued up to the hearing before his Honour. The children also expressed that an equal time arrangement would be “fair”, however his Honour did not place weight on this as he concluded that, “they were repeating what their father had said to them”. The Family Consultant had opined that the children may not “have any real conception” of what equal time is (at [28]).
Section 60CC(3)(b) – the trial judge recorded that both children had warm and loving relationships with both parents, and with their grandparents on both sides. His Honour accepted the conclusions of the Family Consultant in this respect.
Section 60CC(3)(c) – the trial judge recorded extracts from the Family Consultant’s report, to the effect that the mother sought to limit the children’s time with the father because she was not confident in his ability to parent the children for longer periods. His Honour noted though that the children had been spending more time with the father since the release of the report, and found that both parents were now willing and able to encourage a relationship with each other.
Section 60CC(3)(f) – his Honour affirmed the view that both parents had the capacity to provide for the children’s physical and emotional needs. However, the issue before his Honour was that, on the evidence, the mother was more available to care for the children than the father. After setting out the evidence of the father, and the Family Consultant, the trial judge found that “the mother [had] a greater capacity than the father to provide for the children’s physical and emotional needs at those times before and after school”, however, no criticism was made of the father in this respect, and that finding only reflected “an acknowledgement of the facts” (at [45]).
Section 60CC(3)(d) – his Honour noted the evidence of the Family Consultant that the father’s proposal (of a week about time arrangement with the children) would result in a significant change for the children.
Turning next to parental responsibility, his Honour found that the presumption in s 61DA of the Act applied in this circumstance, as there were no reasonable grounds to suggest that either parent had engaged in child abuse, or family violence. As such, his Honour found that an order for equal shared parental responsibility should be made. There was of course no dispute about this.
His Honour then addressed whether equal time was in the children’s best interests and reasonably practicable or, if not, whether substantial and significant time was in the children’s best interests and reasonably practicable.
As to whether there should be equal time, his Honour recorded the evidence of the Family Consultant that it was not in the children’s best interests for the children to live with the parents on a week about basis (at [55]).
His Honour then addressed an attempt by the father’s counsel to “reduce the significance or weight of the Family Consultant’s opinion … by relying strongly upon what Heydon JA [as his Honour then was] had said about expert evidence in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305” (at [57]).
His Honour recorded extracts from Makita and Sydneywide Distributors Pty Ltd v Redbull Australia Pty Ltd [2002] FCAFC 157. After discussion of these authorities, his Honour noted that no challenge was made to the Family Consultant’s qualifications, training or experience, and that the Family Report itself had limitations, however, it was the only independent evidence available to the court.
His Honour agreed with the Family Consultant that the court should not “experiment with these children on the basis of the father wanting it to be equal and fair that he has the same amount of time” (at [70]).
Turning next to substantial and significant time, his Honour relevantly recorded that the current arrangements involved the children spending such time with the father in accordance with s 65DAA(3) of the Act. His Honour continued by stating that (at [72]):
… All the evidence suggests to me that the arrangement is working, so that implies that it is also reasonably practicable. In those circumstances, I consider it appropriate to make orders that are generally in accordance with those set out in the mother’s Case Outline. However, that Case Outline refers at paragraph 3(b) to “each alternate Tuesday”, whereas the father has been seeing the children every Tuesday. That must simply be an error in the drafting of the mother’s Case Outline, because she was not arguing for any reduction in time from the status quo that has existed since shortly after the Family Report was released.
His Honour thus made the orders as summarised above.
Ground of Appeal
As previously mentioned, the father only presses the following ground of appeal:
16.The learned Judge erred in fact and in law when making an Order for substantial and significant time in that he:
(a)failed to give any or any adequate consideration of the father’s proposal for substantial and significant time;
(b)failed to analyse, compare and evaluate other forms of substantial and significant time that might be in the best interests of the children including time that involved a single block of time in each fortnightly period;
(c)failed to ensure that the time ordered met with the criteria describing the substantial and significant time pursuant to Section 65DAA(3).
Orders Sought
In his Amended Notice of Appeal, despite the dramatic reduction in the grounds of appeal, the father sought the same orders which he had sought in his initial Notice of Appeal, namely:
1.That the parties have equal shared parental responsibility for [X] born 2003 and [Y] (“the children”).
2.That the children live with each parent on a week about basis with the changeover in the children’s residential arrangements to take place after school each Thursday.
3.That if exchanges do not take place at school the father is to collect the children at the commencement of his time from the mother’s home and the mother shall collect the children from the father’s home at the commencement of her time.
4.Notwithstanding these orders:
4.1The children spend time with the father in 2014 from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the mother from 3.00pm Christmas Day to 3.00pm Boxing Day each alternate year thereafter;
4.2The children spend time with the father in 2015 from 3.00pm Christmas Day to 3.00pm Boxing Day and with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day and each alternate year thereafter;
4.3The children spend time with the father in 2015 from 3.00pm Easter Saturday until 3.00pm Easter Sunday and with the mother from 3.00pm Easter Saturday until 3.00pm Easter Monday and each alternate year thereafter;
4.4The children spend time with the father in 2014 from 3.00pm Easter Sunday until 3.00pm Easter Monday and with the mother from 3.00pm3.00pm [sic] Easter Saturday until 3.00pm Easter Sunday and each alternate year thereafter;
4.5That the parent with whom the children are not living with at the time spend time with the children on the children’s birthdays if on a school day from after school until 6.00pm and if on a non-school day then from 3.00pm to 7.00pm;
4.6That the children be with the mother for Mother’s Day from 5.00pm on the Saturday preceding Mother’s Day until 5.00pm on Mother’s Day and with the father on Father’s Day from 5.00pm on the Saturday preceding Father’s Day until 5.00pm on Father’s Day.
There was also no apparent change to these orders during the hearing when only one ground of appeal was pursued, but in his oral submissions the father’s counsel, consistent with that sole ground of appeal, complained that his Honour failed to consider the father’s alternate proposal, and appeared to suggest that in fact that was what his Honour should have ordered. Thus, the basis of the orders sought is now unclear. However, it is unnecessary to delve into that, given that, towards the end of the hearing of the appeal, the father’s counsel submitted that if the appeal was successful, then the proceedings should be remitted to the Federal Circuit Court of Australia for rehearing, but only in relation to the question of substantial and significant time.
Discussion
It is beyond doubt that a trial judge in a parenting case must consider the competing proposals of the parties in determining where the best interests of the child or children lie (Goode & Goode (2006) FLC 93-286, Sawant & Karanth [2014] FamCAFC 235, Yates & Yates [2012] FamCAFC 138, Heath & Hemming (No. 2) [2011] FamCA 749). A trial judge is not bound by those proposals (U v U (2002) 211 CLR 238 at [70] and [72]), but that does not remove the need to consider them.
That said, the first question which arises in the context of the challenge in this appeal is, whether there ever was an alternative proposal properly articulated which required the trial judge’s attention.
At the commencement of the hearing, the orders sought by the father in his case summary document were the same as the orders sought in his Notice of Appeal and Amended Notice of Appeal, i.e., relevantly that the children live with each parent on a week about basis.
They were also the orders identified as being sought by the father when his counsel commenced his final address. However, as his counsel was about to close his submissions this exchange occurred:
MR McVEITY: … Now, can I just – well, I said I was closing, but can I also just close by saying I’ve really concentrated on the equal care arrangement, and if your Honour is against me in relation to that, there’s still the argument about substantial and significant care, and my submission is that the present arrangement does not satisfy ….. to accept it technically satisfies it.
HIS HONOUR: But it’s defined in the particular section, and it does satisfy that.
MR McVEITY: It does, except the section, of course, talks in plural terms.
HIS HONOUR: Some time that – you know, when children aren’t – but the Friday satisfies it, does it not?
MR MCVEITY: Yeah, I think it does – well, except that they use plurals in the legislation. I’m just saying. And it’s not intended – it’s my submission that the legislation is not intending to be mean-spirited about that. It’s intended to do as much as possible to give both parents a very active role in the children’s lives, and I appreciate there are some unusual factors here. My client has arranged for his grandparents to come in the mornings to set them off for school.
(Emphasis added)
(Transcript 2.4.14, page 114 line 38 – page 115 line 9)
That was not taken any further, and immediately thereafter the father’s counsel did conclude his submissions. His Honour though then said this:
HIS HONOUR: Right. Okay. I want you to cover something that your client – or Mr Tesoriero was asking – putting a proposition to your client about possibly doing away with the Tuesday nights for a longer block. He obviously wasn’t proposing a seven day block, though. What he proposed was a four – in other words, have them from just before his rostered day off through to the Monday morning, and your client did say – and I can’t remember exactly, but he did say - - -
MR McVEITY: I remember the question. I can’t remember his answer.
HIS HONOUR: He did say it’s a bit confusing for the kids, I think, were his words, the Tuesday nights.
MR McVEITY: That’s right.
HIS HONOUR: So as you know, I’m not bound by either parties – I don’t have to accept one or the other. I can decide on something in the middle or something neither of them thought about. I hope I don’t come up with something neither of them have thought about so it doesn’t have to be I have to stick to one person’s set of orders or the other. I might like bits of one and bits of the other or something like that. What do you say about that? If it’s not a full seven days, what do you say about that?
MR McVEITY: I think that’s a matter I can convey instructions about while you’re still in submissions, isn’t it? Can I have a moment with my client?
HIS HONOUR: Yes, certainly.
MR McVEITY: Thank you. Yes. If the court in its judgment contemplated an increase in time, my client sees the best model for the children as being a model which adds to his existing time.
HIS HONOUR: Even if it meant the deletion of the Tuesday. Yes.
MR McVEITY: Is that a clear answer to your question or have I made it too complicated?
HIS HONOUR: Well, the proposal – and it wasn’t a proposal – it was just put to him as to what he thought about it – was, in effect, he have the children go to school on Monday mornings rather than go home. On Sunday he thought the children needed to be settled …..
MR McVEITY: Yes, that was his evidence.
HIS HONOUR: But ---
MR McVEITY: In fact, he gave evidence about the Sunday night which - - -
HIS HONOUR: He did. He did. Yes.
MR McVEITY: - - - was, in my submission, credible.
HIS HONOUR: And so what – so if in fact – I mean, I don’t know. I’m haven’t – yes.
MR McVEITY: I understand that. I’ve explained to my client this is not - - -
HIS HONOUR: If it went to four days, five days, I don’t know, but not seven.
MR McVEITY: Yes.
HIS HONOUR: Is he saying do away with the Tuesday evenings?
MR MCVEITY: Yes. He’s saying it’s better to be part of the same bigger block than some separate …..
HIS HONOUR: Because – yes. Ms [D] does say that – in her last sentence of the thing that the Tuesdays – although this arrangement may be somewhat disruptive to their routines.
MR McVEITY: It seems to have been a reflection on that is also a year ago hadn’t happened.
HIS HONOUR: Yes.
MR McVEITY: And it was to break the gap, but if you increase the time, the gap also breaks that way ….. so, for example, if your Honour decided – and I ….. be flippant about this – if your Honour decided that it was till the Tuesday night as well as the Monday night – my client’s view is it should be block, rather than a separate thing in the other week, and I think that’s the best way to convey it.
HIS HONOUR: Well that’s pretty well what he said because my very next note underneath about the confusing for the kids, that’s the Tuesday night – “No, the block would be better.” So he said that. That was his evidence.
(Emphasis added)
(Transcript 2.4.14, page 115, line 15 – page 117, line 3)
Pausing there, it is entirely unclear to me what the father’s counsel was proposing, bearing in mind of course, that it was raised by his Honour.
Clearly the discussion entailed adding to the existing time, and a preference for a block of time, but to suggest as counsel did in submissions before this court, that it was a proposal that the father have Thursday evening until and including Tuesday night, is simply not borne out by that exchange.
Indeed, as referred to in that exchange, the evidence was more to the effect that there be a four night block concluding on the Monday morning, and not a block including the Tuesday night.
As for the evidence, this “proposal” was not raised by the father in his examination-in-chief. I was taken though to the cross-examination of the mother where it is said that this “proposal” was raised, seemingly for the first time. However, that is simply not the case. The mother was being cross-examined as to her response to the recommendations of the family report writer, and she indicated that she agreed with the recommendation that the children spend time with the father from Thursday until the following Sunday, and that that could be extended to the Monday morning. She then agreed that in the event of the Monday falling on a long weekend, that the father’s time with the children should extend to the Monday evening. She was then asked if she would agree to extending the time to the Tuesday morning on long weekends (emphasis added), and she responded “I don’t know” (Transcript 2.4.14, page 48, line 17). However, that of course still is not the alternative proposal that the father says his Honour should have considered.
Turning to the cross-examination of the father, again it is not apparent that the “proposal” that he was suggesting was the one that he now claims his Honour failed to consider. Certainly, his case was that a block of time was better for the children than the three periods that were then occurring each fortnight, but the time discussed (apart from week about), was from Thursday through to Sunday (see Transcript 2.4.14, page 71, lines 4-7).
It was suggested by the father’s counsel in submissions that the mother’s counsel did not “challenge” the father’s position. However, what in fact the mother’s counsel said was this:
MR TESORIERO: So, in my submission, unless your Honour can be satisfied, on the evidence, that there’s positive evidence that it was in the best interests of these children to go into an arrangement of equal time, then your Honour should be looking at the other provision and that is the significant and substantial time. In my submission, that’s already occurring. The father sees these children every Tuesday after school, to do homework and have dinner and those usual routines. He sees them every second weekend, from Thursday to Sunday. My friend made some reference about plurals and, in my submission, there are plurals there. It is each Tuesday he sees them, as well as the second Thursday weekend. That arrangement has, obviously, as I indicated before, allowed the children’s relationship with both him and the mother to flourish and there would – there’s no evidence that it would be in the best interests of the children to increase that time.
(Transcript 2.4.14, page 121 line 42, page 122, line 6)
That plainly speaks against any proposal of Thursday to Tuesday, even if that was a “proposal” that his Honour needed to consider.
I find that nowhere in the case presented at trial, in the evidence put before his Honour, or in any submissions in opening or in closing, did the father present his Honour with an alternative proposal of each Thursday night through until Tuesday night. Thus, there can be no error by his Honour in failing to consider any such “proposal”. That said, it is readily apparent that his Honour was aware that the father was seeking a block period of time, either each alternate week or a lesser period, and in finding as his Honour did at [71]-[73] it cannot be said that his Honour failed to consider the alternative substantial and significant time that was being promoted by the father.
Further, in light of the concessions made by the father’s counsel (see Transcript 2.4.14 paged 114–115) it cannot be maintained that his Honour “failed to ensure that the time ordered met with the criteria describing the substantial and significant time pursuant to Section 65DAA(3)” of the Act (Ground 16(c)).
There is plainly no merit in the one remaining ground of appeal.
Conclusion
Having found no merit in the ground of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing I sought submissions as to costs depending on the result. In the event of the appeal being dismissed, the mother sought an order for costs, based on that lack of success. That was opposed by the father, he suggesting that the appeal was “not without merit”, and that neither party was in a “strong financial position”.
The lack of success provides a justification for making an order for costs, and there was insufficient put on behalf of the father to avoid that result. Thus, there will be an order for costs. The father’s financial position cannot overcome the fact that the mother was put to unwarranted expense in meeting an unsuccessful appeal.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 8 September 2015.
Associate:
Date: 8 September 2015
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