Treloar & Nepean
[2009] FamCAFC 206
•20 November 2009
FAMILY COURT OF AUSTRALIA
| TRELOAR & NEPEAN | [2009] FamCAFC 206 |
| FAMILY LAW - APPEAL – CHILDREN – In an appeal from the Federal Magistrates Court – Where the mother appeals against interim parenting orders – Where the Federal Magistrate ordered that the parents have equal shared parental responsibility – Whether such an order was appropriate in the circumstances – Where the recommendations of the single expert were conditional on findings of fact not possible at an interim hearing because of the limited evidence – Consideration of section 61DA(3) and (4), section 60CC (3) and (4) and section 65DAA(2) – Appeal allowed – Rehearing of interim applications ordered FAMILY LAW - APPEAL – STAY – Where a partial stay of interim parenting orders was granted pending the hearing of the appeal – Where the mother appeals from that partial stay and sought a stay of orders until trial – Appeal allowed |
| Family Law Act 1975 (Cth); section 61DA; section 60CC; section 65DAA CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Treloar | |
| RESPONDENT: | Mr Nepean |
| FILE NUMBER: | SYM | 3471 | of | 2006 |
| FIRST APPEAL NUMBER: | EA | 79 | of | 2009 |
| SECOND APPEAL NUMBER: | EA | 84 | of | 2009 |
| DATE DELIVERED: | 20 November 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Dawe JJ |
| HEARING DATE: | 3 November 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 July 2009 27 July 2009 |
| LOWER COURT MNC: | [2009] FamCAfam 745 [2009] FamCAfam 847 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Grahame Richardson SC with Suzanne Christie |
| SOLICITOR FOR THE APPELLANT: | Slade Manwaring Solicitors |
| COUNSEL FOR THE RESPONDENT: | John Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Paul & Paul Lawyers |
Orders
The appeals EA 79 of 2009 and EA 84 of 2009 be allowed.
The orders made by the Federal Magistrate being orders 2, 4, 5 and 6 made on 14 July 2009 be set aside.
The matter be remitted for an interim hearing before a Federal Magistrate other than FM Altobelli.
Until further order, the mother have sole parental responsibility for the child, X.
Until the further hearing of the parties’ interim applications, the child spend time with the father:
(a) At all such times as the parties are agreed; and
(b)Failing agreement, for one weekend each calendar month, such weekend to be the second weekend, commencing at 10:00am Saturday until 5:00pm Sunday.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 in respect of the costs incurred by her in relation to the appeal against the interim parenting orders and the stay.
The Court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 in respect of the costs incurred by him in relation to the appeal against the interim parenting orders and the stay.
The Court grants to both parties a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act1981 (Cth) 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 them in respect of the costs incurred by them in relation to the rehearing of the interim application.
IT IS NOTED that publication of this judgment under the pseudonym Treloar & Nepean is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 79 of 2009 and EA 84 of 2009
File Number: SYM 3471 of 2006
| Ms Treloar |
Appellant
And
| Mr Nepean |
Respondent
REASONS FOR JUDGMENT
Introduction
In this appeal from an interim parenting decision, the central question for our determination is whether it was appropriate in the circumstances for an equal shared parenting order to have been made.
Two appeals have been filed by the mother against orders made by FM Altobelli. The first appeal, EA 79 of 2009, we will refer to as the “interim parenting appeal,” is from interim parenting orders made on 14 July 2009 with respect to the parties’ daughter, X, who is currently six years old.
Those orders provide on an interim basis, for the parents to have equal shared parental responsibility for X and for the child to live with the mother. They provide a schedule for the child to spend time with the father, each alternate weekend from after school Friday to before school Monday in Sydney and in the December/January holidays for two periods of four nights. Each parent is required to facilitate telephone contact between the child and the other parent she is not living with, every second day when she is with her father and twice a week when X is with her mother. Other ancillary orders, including that the parents attend an initial post-separation parenting assessment, were also made.
The appeal is largely directed to the equal shared parental responsibility order and the orders flowing from that including the orders about the time the child spends with the father. It is also asserted that in the circumstances of this case such interim orders should not have been made, rather the shared parental responsibility issue left to a final hearing.
The Federal Magistrate set down the final hearing of the parenting application for three days commencing 6 April 2010.
The second appeal, EA 84 of 2009, we will describe as the “stay appeal”, is from orders made by the Federal Magistrate on 24 July 2009 which partially stayed the interim parenting orders summarised above. The partial stay was granted pending the outcome of the appeal. It was limited to reducing the time with the father provided in the interim order over a twelve week period and has thus expired. The utility of the stay appeal is now somewhat doubtful given that we have heard and will determine the appeal from the interim orders.
After setting out the background to these proceedings, we will refer to the appeal against the partial stay before considering the appeal against the interim parenting orders.
Background
At the time of hearing the interim applications, the mother was living in Sydney and the father in Melbourne. We understand that the father now permanently resides in Sydney.
The father had been spending time with the child but there were no orders in place other than consent orders made in 2006.
In his ex tempore reasons for judgment of 13 July 2009, FM Altobelli explained the key issues in these proceedings. He said:
1.This is a case about [X] who is six years old. [X] lives with her mother in Sydney. The applicant is her father who currently lives in Melbourne but is planning to return to Sydney. This case is about how much time [X] should be spending with her father. …
2.I record here that I think [X] is actually a very lucky little girl. In her relatively short life she’s travelled extensively and done and seen things that most children three times her age have not. It is very clear that both her parents love her very much, though it is possible that this is expressed in different ways at different times.
3.[X’s] parents are both highly intelligent and articulate people. They are high achievers in their own way. They are different to each other but each have enormous amounts to contribute towards [X]. I am left in no doubt that they both want the best for her, and for [X] to have all the opportunities that they have had themselves, and indeed, more. The problem is that [X’s] parents are so locked in conflict with each other that they have become blind and can not see what this is doing to her now, and worse still, what it can do to her in future if it continues.
4.This beautiful, bright, little girl is caught in the crossfire of her parents’ conflict. There is a lot of emotion in this case. And can I say, far more than we typically see, even in this place. And I suspect that the emotion has blinded [X’s] parents from seeing things that I believe are otherwise quite obvious. …
The mother and the father met while working in Sydney in 2002. They have never lived together and maintain that they have never had a romantic relationship.
The father visited X and the mother in hospital shortly after the birth of the child in 2003. At that time, the father was living and working in Europe. It was then unclear whether he was the child’s biological father. DNA testing completed later that year confirmed that the respondent is X’s father.
X has lived with the mother since her birth. Until the child was one year old, the father had intermittent contact with X whenever he was in Australia. Sometime in March or April of 2005, the parties attended a mediation session with Ms B, after which they drew up a two page summary with respect to their relationship with X and each other. The father moved to Melbourne in December 2006.
In 2006 the mother commenced proceedings in the Federal Magistrates Court with a view to moving overseas with the child to live. The parties again attended a mediation session by telephone with Ms B. Consent orders were made on 20 July 2006 permitting their travel, and the mother and child moved overseas on 14 September 2006. During this time, the father again had intermittent contact with X both overseas and in Melbourne.
The mother and X returned to live in Sydney in December 2008. The father spent time with X in Melbourne pursuant to the 2006 consent orders. The mother has “always accompanied [X] to and from Melbourne and remained in Melbourne during the visits”.
In February 2009 the father commenced proceedings in the Federal Magistrates Court for final and interim parenting orders in relation to X. His application for interim parenting orders resulted in the orders of FM Altobelli which are the subject of the mother’s appeal.
In addition to the question of the amount of time the child should spend with the father there is a secondary issue causing considerable tension which relates to the father’s literary endeavours. The father has written a manuscript which is apparently based on his relationship with the mother and X. He wishes to have it published. The mother does not feel that it is in X’s best interests to have such details available for public comment and scrutiny. As well as this manuscript, the father and his partner had both posted blogs on the internet which refer to the issues raised in these proceedings.
Although there is reference to these matters in the orders sought in the appeal the question of publication of this material is not directly an issue to be determined in the appeal. It is sufficient to note that FM Altobelli made orders on 14 July 2009 which restrain the father from publishing, or permitting other persons to publish, details which identify the mother, the child or the proceedings. Additional orders require the father to remove any such information from the internet and the father is also restrained from publishing his manuscript. These orders were in similar terms to those contained in the filed document before the Federal Magistrate titled “Father Minute and Order Sought”.
EA 84 of 2009 – Appeal from partial stay
In a notice of appeal filed 7 August 2009, the mother appeals from orders 1 and 2 of the partial stay granted by FM Altobelli pending the outcome of the appeal.
Those orders, made on 27 July 2009, stayed the weekend arrangements for the child to spend time with the father in a relatively minor way by reducing the time the child spends with the father to the following:
(2)The child, [X], born … 2003 spend time with the father as follows:
(a)For 3 alternate weekends from 10am Saturday to 5pm Sunday, commencing 1 August 2009;
(b)For a further 3 alternate weekends from after school Friday to 5pm Sunday;
(c)Thereafter each alternate weekend from after school Friday to before school Monday.
In the event the stay appeal is successful, the mother seeks a stay from this Court of orders 2, 4, 5 and 6 made by FM Altobelli on 14 July 2009, pending the hearing of the mother’s appeal against the interim parenting orders.
As we have already observed, the utility of this appeal is therefore difficult to appreciate, given that the appeal against the interim parenting orders has been heard and especially as it will be finalised by the orders which accompany these reasons for judgment. In addition, we note that the stay only operated for 12 weeks, expiring 17 October 2009. However, counsel for the mother asked that we determine this appeal.
There are five grounds of appeal from the stay upon which the mother relies. All are directed to a single complaint: that the Federal Magistrate, having determined that a stay of the earlier orders was appropriate, erred in granting the stay conditional on the child spending “significant and substantial time with the father”.
In the ex tempore reasons for judgment which accompanied the orders, FM Altobelli explained his reasoning for granting a conditional stay. He said:
7.In determining whether to grant a stay or not, I must regard [X’s] best interests as the paramount consideration and not what the mother or father think about the correctness of my decision, or even, for example, what I think about the mother’s prospects of success on the appeal. I have already formed a view about what I regard as [X’s] best interests, and that is articulated in the published reasons for judgment referred to above.
8.Since then, two things have become obvious, which are relevant in the present context based on the evidence filed in the course of the stay application. Firstly, the mother is distraught by the decision. That is her subjective response. I cannot comment on whether it has any objective basis, but I am not prepared to ignore it, and I must accept the inevitability of a mother’s distress being apparent to a child, so it becomes very much a matter going to [X’s] welfare. And, secondly, [X’s] became upset on the second night of her contact with the father to the extent that even he decided it was appropriate to involve the mother. Experience in this jurisdiction suggests that this is an adjustment issue and commonly occurs in transitionary periods. Nonetheless, I am not prepared to ignore it.
9.I have decided to grant a limited stay, but on terms that provide for a modified contact order. Order 4 is one of the grounds appealed from. I will grant the stay of order 4 only, and on terms that see contact modified to the following effect. Firstly, for three alternate weekends, contact would be from 10am Saturday to 5pm Sunday. Next, for a further three alternate weekends, contact will be from after school Friday to 5pm Sunday, and thereafter each alternate weekend from after school Friday to before school on Monday. This will provide for a transitionary period over nearly three months before my original order is implemented. It is designed to attempt to address [X’s] upset and the mother’s distress without interrupting what I consider to be orders that are fundamentally in [X’s] best interests.
10.There is absolutely no further evidence before me that would support a stay of orders 2, 5 and 6, which are the subject of the notice of appeal. …
We consider that the outcome of the stay appeal is largely dependent on the orders to be made in relation to the appeal from the interim parenting orders and to that extent we will provide our conclusions after determining the interim appeal.
EA 79 of 2009 – Appeal from interim parenting orders
Grounds of appeal
In the further amended notice of appeal filed by leave before us, the mother appeals against orders 2, 4, 5 and 6 of the orders made by FM Altobelli on 14 July 2009. Those orders are:
(2)The parents are to have equal shared parental responsibility for the child [X] born … 2003.
…
(4) The child spend time with the father as follows:
(a) At all times that the parents agree;
(b)From 10am Thursday 16 July 2009 to 6pm Sunday 19 July 2009 in Sydney; and
(c)From Friday of week 1, Term 3, and thereafter each alternate weekend from after school on Friday to before school on Monday in Sydney; and
(d)During the October school holidays for a period of 4 days and 3 nights commencing at 10am on Day 1 and concluding at 6pm on Day 4 and if the parents are unable to agree when contact commences, Day 1 will be the Friday of the first week of the school holidays; and
(e)During the December/January school holidays for 2 periods of 5 days and 4 nights commencing from 10am on Day 1 and concluding at 6pm on Day 5 and if the parents are unable to agree Day 1 will be the Thursday of the 2nd and 5th weeks of the school holidays; and
(f)On Father’s Day 2009 between 10am and 6pm irrespective of whether it is a contact weekend; and
(g) From 3pm on Christmas Day to 6pm on Boxing Day.
(5)Each parent will do all things necessary to facilitate [X] communicating by telephone with the parent with whom she is not living or having contact with no less than every 2nd day when she is with her father, and no less than twice a week when she is with her mother.
(6)The father is not limited to having contact with [X] in Sydney during the school holidays but must advise the mother of where [X] will be staying and how she can be contacted during this period. The father to bear all costs associated with travel outside of Sydney.
There are four grounds of appeal with multiple “sub-grounds” upon which the mother relies. These complaints can be summarised as follows:
Ground (1)FM Altobelli erred in ordering that the parents have equal shared ` parental responsibility because he:
(i)failed to consider section 61DA(3) of the Family Law Act 1975 (Cth) (“the Act”) and failed to conclude that it would not be appropriate in the circumstances to make interim orders providing for shared parental responsibility;
(ii)failed to take into account “that the opinion of Dr. Quadrio raised serious issues for the final hearing, which were not amenable to resolution in an interim hearing, which were relevant to the determination of any rebuttal pursuant to section 61DA(4) of the Act”; and
(iii)these failures led to mistakes in the path of reasoning which led to orders for equal shared parental responsibility;
(iv)in the alternative there was a serious case for rebuttal pursuant to section 61DA(4) to be tested at a final hearing;
(v)made an order for equal shared parental responsibility on an interim basis in circumstances where neither party had sought such an order and when he did not give the parties an opportunity to “address his intention to make one”;
Ground (2)His Honour failed to give, or gave inadequate, reasons for the rejection of expert evidence.
Ground (3)His Honour’s discretion miscarried in making orders 4, 5 and 6 being the orders providing for time with the father by:
(i)having wrongly concluded on an interim basis that an order for equal shared parental responsibility should be made he then considered the issue by reference to section 65DAA(2);
(ii)failed to consider the considerations arising from section 60CC(3) and section 60CC(4);
(iii)failed to take into account the evidence of Dr Quadrio that there were serious issues for the final hearing and that those issues were relevant to the question of how much time the child should spend with the father;
(iv)failed to take into account the opinion of Dr Quadrio about the child’s ability to express an informed view;
(v) failed to take into account:
·the degree to which the interim orders departed from that sought by the mother on a final basis and the departure from the existing arrangements; and
·the potential effect upon the parenting capacity of the mother including that her anxieties would not be removed by orders 14 to 16; and
(vi)was wrong in concluding that the respective parenting proposals of the mother and father “were not too far apart”.
Ground (4)Orders 4, 5 and 6 are “plainly wrong and manifestly unjust”.
In the event that the appeal is successful, the mother asks that we re-exercise the discretion of the Federal Magistrate and make orders, inter alia, that she have sole parental responsibility for X, that the child live with her and that the child spend time with the father for one weekend each calendar month.
Reasons for judgment
The orders made by FM Altobelli were interim in nature. There no doubt are serious issues to be addressed during a final hearing and further evidence to be given including cross-examination. It is clear from FM Altobelli’s reasons that he was conscious of the difference between an interim and a final hearing.
FM Altobelli’s statement that “from a more objective perspective the parents are not far apart, which actually confirms my belief that they both in fact want the best for their daughter” forms part of the grounds of appeal. This part of the judgment demonstrates that his Honour was concerned to bring a conciliatory approach to the matter but the statement about the orders sought was inaccurate.
The Federal Magistrate had the benefit of a report prepared by Associate Professor Quadrio. In relation to that report, FM Altobelli noted that it raised issues which needed to be explored, “but in the context of a final hearing”. In relation to the interim hearing, his Honour stated:
10.… In the context of an interim hearing what it clearly says is that there are issues to be dealt with in terms of the personalities of both parents. But what is significant is that there is already evidence of willingness by both parents to address those issues in the context of Dr Quadrio’s report.
11.Dr Quadrio’s observations showed that [X] has a wonderful relationship with her mother and a good relationship with her father. Dr Quadrio’s assessment of [X] is found at pages 27 to 28 of her report. And I incorporate these into my ex tempore reasons. I get the impression that Dr Quadrio, who is not known for being easily impressed about anything, was in fact impressed about this delightful young girl who seems to show no signs, so far, of being affected by being caught in the crossfire of her parents’ conflict.
FM Altobelli correctly noted that the recommendations contained within Professor Quadrio’s report were “guarded and … in any event contingent on findings of fact that are simply not possible at this particular stage of the proceedings”. He continued:
13.…Her observations, however, about [X] are valid and certainly helpful to me. These observations give me a cautious optimism about how she will cope with spending time with her father. There is no doubt that there is already a history of [X] spending time with her father, including overnight. That is not disputed. But it has not been consistent. And that is one of the things that needs to change.
14.There is nothing in the evidence that I have seen or heard that raises issues about whether [X] has a meaningful relationship with her father, or whether there were any safety or welfare issues associated with spending time with her father. Despite [counsel for the wife’s] assertions, there is nothing to suggest that the statutory presumption of equal shared parental responsibility has been rebutted or negated.
15.Indeed, I conclude that on an interim basis it is in [X’s] best interests that the presumption of equal shared parental responsibility apply. And this means that under the Act I must consider equal time, or substantial and significant time if it is reasonably practical and in her best interests. Equal time is not reasonably practicable for the time being, nor would I consider it to be in the best interests of [X]. It would be moving far too quickly for the time being.
FM Altobelli then considered whether it was appropriate to make orders for substantial and significant time. He observed that the father’s proposal was closer to this than the mother’s, given that he was seeking time with the child every fortnight and to interact with her school. The Federal Magistrate, relying on the report by Professor Quadrio, came to the following conclusions:
18.Firstly, that [X] has expressed no views that would contraindicate frequent contact.
19.Secondly, that [X] enjoys a warm and friendly relationship with her father and has no anxieties about time with him. I think that this needs more time to develop, both in terms of frequency as well as length.
20.Thirdly, I can not resolve at an interim level issues about each parent’s willingness and ability to facilitate a relationship with the other. What I can conclude is that such a willingness is not totally absent, as is evidenced by the proposals that each parent makes. And this makes me confident that they will both earnestly try to make work that which I have in mind for [X].
21.Fourthly, Dr Quadrio has concerns about the likely impact of changes in circumstances on [X]. In short, I think she is saying do not move too quickly and do not introduce too lengthy periods of contact. She emphasised moving forward in a graded fashion. I propose to take this on board in recognition of the needs that both the mother and [X] have in this regard.
22.Fifthly, there are unresolved issues of parental capacity, some which are quite complex. I hope that the father now understands how at least according to Dr Quadrio, some of his actions have caused significant distress and trauma for the mother. I am confident that he does better understand this because his own proposal attempts to address one of the major stressors for the mother, namely, publication of materials relating to her, and [X].
23.What is clear about the issue of parental capacity, however, is the absence of complaint that each parent has against the other in terms of day to day ability to look after [X]. Accordingly, at an interim level there are no issues of parental capacity that contraindicate substantial and significant time.
FM Altobelli noted that the single expert had “found the mother to be responsible and committed to [X] since birth”. He also found that there was nothing about the father’s “attitude towards the responsibilities of parenthood that would indicate that substantial and significant time, at least for an interim basis, is not appropriate”. The Federal Magistrate again raised the issue of the father’s manuscript and urged the father to consider whether “if at the end of the day that creative work has the potential to actually harm a loved child, is it worth it?”. (Reasons, [24] and [25])
The Federal Magistrate concluded that there was no reason not to adopt a parenting arrangement which allows the father to spend substantial and significant time with the child. This was “subject…to the need to move forward sensitively”.
Parties’ proposals before the Federal Magistrate
Before returning to the submissions to us in the appeal, it is necessary to set out what the proposals of each party were as presented to the Federal Magistrate.
The father’s proposed minute of order contained no reference to equal shared parental responsibility. Nevertheless, the proposed arrangements provided for him to spend substantial time with the child in the following terms:
· For five days during the July 2009 school holidays in either Sydney or Melbourne;
· Each alternate weekend from Friday to Monday during the 2009 third school term;
· For five nights during the October 2009 school holidays in either Sydney or Melbourne;
· For two weeks taken in two separate blocks during the 2009 December/January school holidays;
· Thereafter that the child live with the father for seven days during each of the end of term school holiday periods in 2010;
· For two weeks during the 2010 December/January 2010 school holiday periods;
· From 9am on 23 January 2010 until 30 December 2010 and each alternative year thereafter;
At all other times it was proposed that X live with the mother. Additionally, it was proposed that “during the periods of time [X] is living with either parent that parent is permitted to travel inter-state”.
The mother’s proposed minute of order provided substantially less time for the father to spend with the child. It also included an order that the mother have sole parental responsibility for X and that the child live with the mother. The time proposed the child should spend with the father was:
…for one weekend each calendar month, such weekend to be the 2nd weekend of each month, commencing at 10am Saturday to 5pm Sunday in Sydney.
Also included was a proposal that the mother attend upon Ms B to address “the concerns indentified by Dr Quadrio”. The mother also asked that the proceedings be adjourned for twelve months.
The report of Associate Professor Quadrio
It is important to understand fully the recommendations of Professor Quadrio. First we repeat her assessment of X:
[X’s] wishes were unremarkable. Fantasy exercises confirmed that her mother is her primary attachment figure; the next most significant people in her life are the maternal grandmother and uncle. [X] did not mention her father or any of the paternal family but had nothing negative to say about him or them.
Whenever I introduced her father into the discussion, [X] was positive about him and her time with him, including talking with obvious pleasure about how he has taught her to swim and to ride a bike. …
[X] was very talkative and responsive. She endorsed no symptoms of anxiety or any difficulties at home or at school. She spoke about all members of her family in positive terms including her father and paternal aunt.
Asked why she had been reluctant to join [Mr Nepean] and [her paternal aunt] earlier today, [X] said sometimes she gets scared, but she could not explain how this has come about. Nothing has ever happened with [Mr Nepean] that made her feel scared. Asked if perhaps she is scared to leave her mother, [X] agreed.
Under the heading “Any wishes expressed by the child…”, Professor Quadrio said:
Although seemingly reluctant to engage with her father initially, [X] settled easily and seemed to enjoy the interaction with him, although in a rather compliant way; her mother remained present throughout this time but in the background.
When interviewed alone [X] expressed no misgivings about contact with her father. This would tend to suggest that the reluctance she demonstrated in the presence of her mother relates to her mother’s fears and anxiety.
On the basis of her observed interaction with [Mr Nepean] and her expressed feelings about him, it appears that [X] quite enjoys her time with him. She is too young to understand this unusual and complex situation so that her expressed wishes are not yet informed by a mature view.
We have some difficulty, based on this evidence, of accepting as correct the conclusions in paragraphs 18 and 19 of the Federal Magistrate’s judgment to which we have already referred. These findings are of significance as they appear after the Federal Magistrate made reference to the requirement to consider substantial and significant time and where he asked rhetorically “whether it is in her best interests?”. (Reasons, [17])
Under the heading “Willingness and ability of each of the parties to facilitate contact”, Professor Quadrio stated:
There has never been a marriage-like relationship between the parties; it seems to have been a short term friendship. What goodwill there may have been is gone, and the relationship now is highly conflicted and perhaps hostile as well.
The mother has concerns that [Mr Nepean’s] motivations and reasons for making this application relate more to an egocentric orientation rather than to a genuine investment in the child. If her fears and concerns are well-founded, then this explains her current attitude and her misgiving about promoting a relationship between the father and the child. However if her concerns are more a product or a projection of her own fears and anxieties and are not sound perceptions of the situation, then it may be that she needs professional assistance to come to terms with it. But whether her perceptions are accurate or a product of her own fears and anxieties the effect is the same – she is preoccupied and anxious and seriously distressed.
[Mr Nepean] is of the view that the mother is seeking to limit his relationship with the child because of her personal issues, which he believes may include psychiatric disturbance, and possibly a dislike of men but certainly hostility towards him. If the Court were to determine that this is the case then it will remain difficult to progress a relationship between father and child while the mother feels so opposed and also threatened by it.
We must also observe that in view of this evidence, the conclusions contained in paragraph 20 were not open to the Federal Magistrate.
Professor Quadrio also noted that “all the members of the maternal family showed an intense preoccupation with the book…it is apparent that they feel greatly disturbed by it”. (Report, p 18)
Of the likely effect on X of a change in circumstances including separation, Professor Quadrio stated:
[X] has been in a secure relationship with her mother and the immediate maternal family for most of her life and this is her primary attachment base; it would be damaging to her for any separation to occur other than for brief periods with familiar persons and such separations would need to occur in an age appropriate and phase appropriate way.
[X] has been having periods of contact with [Mr Nepean], including some overnights, and he is familiar to her so she could readily accommodate a continuation of this level of contact. If she is to spend longer periods with him I would recommend that it be introduced in a graded fashion. The level of anxiety of the mother poses some constraint on an increase in this time.
With respect to the capacity of each parent to meet the needs of X, Professor Quadrio said:
Ordinarily the mother is well able to meet the needs of the child who has become the central focus of her life. Currently, however, this legal process is having a considerable impact on [Ms Treloar]; she feels violated and harassed by the possible exposure of her life in the book and is much preoccupied with the issues. Her distress has led to her developing symptoms of depression, and anxiety or post traumatic stress, with insomnia, intrusive preoccupations, problems with focus and concentration, loss of appetite and weight. … As a consequence her capacity to function optimally is compromised; however she continues to prioritise the needs of the child and to provide well for her.
…
Mostly the father is well able to meet the physical and intellectual needs of the child. There was some indication that he may not be optimally empathic and therefore may have some limitations in meeting her needs emotionally. However, this is a question of less than optimal responsiveness rather than significant impairment of parenting capacity, particularly since he is not the primary attachment figure.
Under the heading “The effect on the children of spending equal time or substantial time with each parent…” Professor Quadrio stated in relation to the parent’s capacity to implement such an arrangement:
The limitations to this relate primarily to the mother’s fears and anxieties. If the Court were to determine that there is a basis to those concerns, then [Ms Treloar’s] reluctance to implement contact would be understandable. If the Court were to determine that there is no external basis to her fears but rather that they are driven by inner disturbance (such as re-traumatisation) there is still a need to consider the impact on her parenting.
In relation to the parent’s ability to communicate with each other and resolve difficulties should equal time or substantial time be ordered, Professor Quadrio noted:
There is little capacity for communication or conflict resolution. [Mr Nepean] feels that the mother is deliberately frustrating his efforts to establish a relationship with [X]. [Ms Treloar] feels that there is no trust possible while there is fear of being exposed and possibly exploited and, therefore, that no progress in communication can be made between herself and [Mr Nepean]. These disparate views are matters about which the Court would have to make determination
Professor Quadrio’s ultimate recommendations were:
If the Court were to determine that the father’s interest in the child is a healthy one and that he has her best interests at heart, the parties would need to participate in an ongoing counselling process aimed at developing a co-parenting relationship. In my view it would be detrimental to the child for any parenting arrangement to be instituted while there is such a mistrust and anxiety but if some level of cooperation could be established then a gradual programme of contact might be instituted.
If this were possible then I would suggest that such a programme might start with one weekend a fortnight, initially for one night only, perhaps from Friday after school to Saturday evening for a month and then extending to two nights, until Sunday evening for another month and then extend to a complete weekend from Friday after school to Monday morning back at school.
In the first year I would suggest block contact of no more than five days during the short school holidays and seven days during the long summer holidays. In the second year I would recommend half of the short holidays and block contact of two weeks in the long summer holidays. Thereafter I would suggest a regime of half of all school holidays.
If the Court were to determine that the mother’s concerns have some foundation to them then it is my view that [Mr Nepean’s] involvement in [X’s] life should be more limited – possibly remaining at the present level – and that there should be a review after two years.
The mother is in need of counselling. If her fears are well founded then at the least she needs support and she may benefit from taking antidepressant medication…. If her fears are not well founded then she needs assistance to come to terms with the reality of the father’s investment in the child and his ongoing involvement in [X’s] life.
(emphasis added)
The orders made by the Federal Magistrate appear to be inconsistent with the uncontested evidence from the jointly engaged expert. Nor did his Honour explain in his reasons why he was departing from the recommendations.
Submissions
On 2 November 2009, one day before the appeal hearing, the mother’s solicitors filed an application to adduce further evidence together with an affidavit sworn by the mother on 29 October 2009.
Shortly after, the father’s solicitors filed a response seeking the dismissal of that application or, in the alternative, leave to adduce further evidence comprising an affidavit of the father and an affidavit of Mr JW, both sworn 2 November 2009.
Although counsel for the mother abandoned the application to adduce further evidence before us, we mention it because of submissions made by counsel for the father which we will refer to shortly.
In addition to making reference to the oral submissions, we have also carefully considered the substantial written submissions provided. It is not necessary to repeat them here in full for the purpose of determining this appeal.
In part, counsel for the mother submitted:
7.[X] has not known a time when both her parents were responsible in any substantial sense for her care. [X] had not known at [sic] time when both parents were present in her home.
8.As a consequence, where the legislation speaks of “both parents having a meaningful involvement in the child’s life to the maximum extent consistent with the best interests of the child” (s 60B(1)(a)), for a child who has never lived with a parent the court is given the task of determining what involvement a hitherto absent (or substantially absent) parent should be granted, in this case at an interim hearing.
9.The court is not maintaining a status quo which existed prior to separation, or ensuring the continuity of a relationship which was developed whilst residing together but rather determining an amount of time consistent with the interests of a child who has known only one family unit (that of her mother). Such determination requires sensitivity to the needs of the child and her primary carer.
Ground 1 requires a careful consideration of the provisions of section 61DA which provide:
61DAPresumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(emphasis added)
Significantly in this case, if the presumption applies, it triggers the operation of section 65DAA which requires the Court to consider whether the child ought to spend equal time or substantial and significant time with each parent.
In Goode and Goode (2006) FLC 93-286 the Full Court discussed the application of the presumption in interim proceedings. We set out below the relevant paragraphs of that decision:
77.The sub-section is an important one in the context of the determination of interim disputes and justifies consideration of the Explanatory Memorandum (see s 15AB of the Acts Interpretation Act 1901 (Cth) and Re: Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 at 420). The Revised Explanatory Memorandum circulated in the Senate on 27 March 2006 states (at paragraph 133):
New subsection 61DA(3) provides that the presumption of equal shared parental responsibility will apply at an interim hearing, unless the court considers that it is inappropriate for the presumption to apply. This implements recommendation 15 of the LACA [House of Representatives Standing Committee on Legal and Constitutional Affairs] Report. This discretion is appropriate given the limited evidence that may be available for interim hearings.
The House of Representatives Standing Committee on Legal and Constitutional Affairs, in their Report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005, considered the application and effect of the presumption of equal shared parental responsibility at interim hearings at paragraphs 2.155 to 2.161 inclusive. In recommendation 15 at 2.162 the Committee said as follows:
The Committee recommends that the presumption of equal shared parental responsibility should generally be applied at an interim hearing although the court should retain discretion not to apply the presumption if it thought it to be inappropriate. The court should continue to have regard to all the circumstances that are in the best interests of the child when making interim and final orders. This should be made explicit in the Exposure Draft
78.The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. …
(emphasis added)
Senior counsel for the mother argued that the circumstances of this case were such that the Federal Magistrate should have found that it was inappropriate to make an order for equal shared parental responsibility on an interim basis. In this case, it was submitted, the evidence was limited because there was no objective evidence to “resolve the contentious central issues” which had been identified by Professor Quadrio in her report.
In this case, the evidence was not limited as is generally found in interim matters where there are affidavits from each side containing different versions of events. The unusual feature of this case is the uncontested evidence of Professor Quadrio.
Counsel argued that although the Federal Magistrate acknowledged the existence of the multiple issues between the parties, his Honour in effect “quarantined” them and determined to make the interim parenting orders on less information. It was submitted that since his Honour had acknowledged that the matters raised by Professor Quadrio could not be determined on the limited evidence available during the interim proceedings, he should have considered the application of section 61DA(3) and made no order as to parental responsibility or ordered that the mother have sole parental responsibility of the child.
Counsel for the mother submitted that his Honour had “sanitised the real issues of the case” and “miscarried the path of reasoning” which led the Federal Magistrate to order that the parties have equal shared parental responsibility and consequential orders about time with the father.
It was further submitted that the Federal Magistrate failed to discern the important differences between the parties’ proposed minutes of orders when he said “the parents are actually not far apart in terms of what they want for their daughter” and this also led to error. (Reasons, [5]).
Counsel particularly noted that whilst the mother had sought an order for sole parental responsibility, no order as to parental responsibility was sought by the father. In the hearing before his Honour, counsel for the mother argued that “at this early point the Court would be hesitant about granting equal shared parental responsibility.”
Although we agree that the parties’ proposals were quite different, we do not conclude that the mere failure of the father to seek an order as to parental responsibility absolves the Federal Magistrate from considering the presumption. In addition, the issue was before him by reason of the mother’s application for sole parental responsibility.
Counsel for the mother, relying on Professor Quadrio’s report, submitted that in this case, the uncontested evidence indicated “that communication between the parties was fraught and that trust between the parties was absent”.
The significance of this submission is connected with the part of the judgment in Goode, where the Full Court discussed the effect of an order for equal shared parental responsibility and stated that once such an order is made the “major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.” (Goode, [39])
Counsel for the mother emphasised the contents of the report of the single expert in relation to the poor communication between the parties, especially where Professor Quadrio recommended that:
In my view it would be detrimental to the child for any parenting arrangement to be instituted while there is such mistrust and anxiety but if some level of cooperation could be established then a graded programme of contact might be instituted.
Counsel for the mother submitted that although the Federal Magistrate ordered that the parties attend counselling, there was nothing in the evidence to suggest that there was “some level of cooperation” between them sufficient to warrant an order for equal shared parental responsibility.
In the alternative, it was submitted that there was a serious case for rebuttal pursuant to section 61DA(4) which could only be decided at a trial. Thus, it was submitted, no order on an interim basis should have been made providing for equal shared parental responsibility.
Counsel for the father argued that there was nothing in the evidence which indicated that the Federal Magistrate had erred, in particular it had not been shown why the presumption should not apply. Further, the reasons for judgment indicate that his Honour considered section 61DA and Professor Quadrio’s report. He submitted:
His Honour’s finding[s] were well within the exercise of discretion having regard to the fact that the procedure before him was an interlocutory one with untested evidence. The Respondent contends, that there was insufficient evidence before the Court in a clear way which would allow an order on an interim basis to be made rebutting the presumption. …
Counsel further submitted that the orders made by the Federal Magistrate were “not necessarily dissimilar to the conclusions made by the expert” and that the evidence before his Honour was insufficient to conclude that the presumption had been rebutted.
In response to the argument on behalf of the mother that the Federal Magistrate should have given greater attention to the mother’s anxiety and the possible effect of this on the child, it was submitted that the Court might have expected further evidence in the appeal of the post-order circumstances. We were asked to consider, that in some way, an inference should be drawn from the mother withdrawing her application for further evidence.
We do not accept this submission, particularly as we know that the father also sought to provide further evidence. If the applications to adduce further evidence had been before us, the result inevitably would have been either to allow the evidence but conclude that this would mean a further trial on an interim basis because of its controversial nature, or refuse it considering the guidance provided in CDJ v VAJ (1998) 197 CLR 172:
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
In response to the submissions on behalf of the father, counsel for the mother emphasised the guarded nature of Professor Quadrio’s recommendations. The recommendations, it was submitted, were conditional on the Court making certain findings of fact about whether the “father’s interest in the child is a healthy one”, whether there was any foundation to the mother’s concerns and whether productive counselling had occurred.
Conclusion
We are mindful of the limitations on an appeal court allowing an appeal such as this, being largely a discretionary matter, especially from an interim decision. However, we are of the view that in the unusual circumstances of this case, particularly having regard to the very clear opinion and recommendations of Professor Quadrio, an order on an interim basis for equal shared parental responsibility should not have been made. It follows that as the orders in relation to the father’s time with the child were based on the equal shared parental responsibility decision, those orders also should be set aside.
We have already observed that the Federal Magistrate:
· Was mistaken in his appreciation of the parties’ respective cases;
· Misunderstood the effect of Professor Quadrio’s opinion in relation to the views of the child;
· Did not appreciate that it was Professor Quadrio’s opinion that extended time with the child as asked for by the father should not begin until some level of co-operation had been established;
· Did not sufficiently explain how the orders could be made in view of the expert evidence; and
· Did not appear to take into account what Professor Quadrio said in relation to the possible effect on the mother and the child
These matters constitute such an error that the appeal must be allowed.
It follows from our reasoning above that the Federal Magistrate also erred in making the orders for the partial stay and the mother’s appeal in relation to those orders is also allowed.
As the appeal is to be allowed, we must order that the interim parenting matters be remitted for rehearing by a Federal Magistrate other than FM Altobelli. It is not appropriate for the Full Court to re-exercise the discretion in this matter. This leaves open the question of what arrangements should be put in place in the intervening time between making these orders and the rehearing of the interim applications.
The mother has been successful in her appeal. In the usual circumstances this would lead to the orders being set aside and a new trial. However, the effect in this case would be that the father would not have any time with the child which seems unlikely to be in her best interests. In any event, the orders sought by the mother were for the mother to have sole parental responsibility for the child and for the father to spend time with her for one weekend each calendar month, such weekend to be the second weekend of each month, from 10:00am Saturday until 5:00pm Sunday.
Whilst not wishing to indicate what orders should be made on an interim basis, given the serious nature of the matters raised in Professor Quadrio’s report, we are of the view that it is in the child’s best interests to adopt the mother’s proposed arrangements for what is hoped to be a relatively short period.
Costs
Section 117 of the Act provides that each party to proceedings under the Act should bear their own costs unless there are circumstances that justify an order for costs.
Counsel for the mother submitted that should the appeal be successful, then the father should pay the mother’s costs of the appeal. Alternatively, she should receive a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
Counsel for the father opposed any such costs order. He argued that the court should consider that final hearing in this matter has been set down for three days in April 2010 before the Federal Magistrate. This, it was submitted, limited the utility of the mother’s appeal.
However, as was correctly submitted by counsel for the mother, the mother has promptly prosecuted her appeal and sought its expedition. Its utility would only be diminished if these reasons and the orders which accompany them were made shortly before April 2010. This is clearly not the case and, in any event, should such delay have occurred it would not have been the fault of the mother.
In this case, the appeal has been allowed due to errors made by the Federal Magistrate. It is appropriate for the parties to receive costs certificates for the appeal and the rehearing of the interim parenting application. We will make those orders.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 20 November 2009
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