Vallans & Vallans
[2019] FamCAFC 260
•20 December 2019
FAMILY COURT OF AUSTRALIA
| VALLANS & VALLANS | [2019] FamCAFC 260 |
| FAMILY LAW – APPEAL – PARENTING – Where the parties entered into final consent orders in January 2015 providing for, relevantly, equal shared parental responsibility – Where, in the course of a contravention application, the mother made an oral application for setting that order aside – Where the trial judge set that order aside and made an order providing for the mother to have sole parental responsibility – Where the trial judge rejected the mother’s claims of family violence – Where the trial judge was otherwise satisfied that it was not in the children’s best interests for the presumption in s 61DA(1) to apply – Where the trial judge relied heavily on a family report which was two years old at the time of trial – Where the trial judge’s finding as to the rebuttal of the presumption was based largely on the parties’ alleged communication difficulties – Where there must be convincing proof as to the children’s best interests for s 61DA(4) to be activated to rebut the presumption – Where the trial judge failed to consider material considerations raised in the family report and which had occurred subsequent to its preparation – Where there is no sufficient evidentiary basis to rebut the statutory presumption ins 61DA(1) – Where the trial judge failed to consider each relevant factor under s 60CC – Appeal allowed – Proceedings remitted – Costs certificates granted. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 62G, 64B, 65DAC, 70NBA, 94AAA(3) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| Blaze v Grady [2015] 54 Fam LR 172; [2015] FamCA 1064 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Doherty & Doherty [2016] FamCAFC 182 Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133 In the Marriage of Scott (1994) 17 Fam LR 420; [1994] FamCA 12 Irvin and Carr (2007) FLC 93-322; [2007] FamCA 492 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Phillips & Hansford (No.2) (2019) FLC 93-917; [2019] FamCAFC 165 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Sandler and Kerrington (2007) FLC 93-323; [2007] FamCA 479 |
| APPELLANT: | Mr Vallans |
| RESPONDENT: | Ms Vallans | ||||
| FILE NUMBER: | BRC | 7407 | of | 2013 | |
| APPEAL NUMBER: | NOA | 118 | of | 2018 |
| DATE DELIVERED: | 20 December 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 21 May 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3841 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Ehlers |
| SOLICITOR FOR THE APPELLANT: | Steindl Bradley & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms M Cullen |
| SOLICITOR FOR THE RESPONDENT: | Callaghan Legal |
Orders
The appeal be allowed.
The Orders of the trial judge made in the Federal Circuit Court of Australia on 22 November 2018 be set aside.
The oral application of the Respondent Mother to vary the parenting orders made by consent on 22 January 2015 in respect of the allocation of parental responsibility for the children the subject of these proceedings be remitted for rehearing in the Federal Circuit Court of Australia by a Judge other than the trial judge.
The Court grants to the Appellant Father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 Father in respect of the costs incurred by the Appellant Father in relation to the appeal.
The Court grants to the Respondent Mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 Mother in respect of the costs incurred by the Respondent Mother in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (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 each of the parties in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vallans & Vallans has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 118 of 2018
File Number: BRC 7407 of 2013
| Mr Vallans |
Appellant
And
| Ms Vallans |
Respondent
REASONS FOR JUDGMENT
Section 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) mandates that when making a parenting order[1] 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[2] for the child.
[1]As defined in s 64B of the Act.
[2]As defined in s 61B of the Act.
Subsection (4) of s 61DA provides for the rebuttal of that presumption in the following terms:
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.
Section 60CC mandates that in determining what is in a child’s best interests the Court consider the two primary considerations set out in subsection (2) and the additional considerations set out in subsection (3).
On 22 November 2018, a trial judge in the Federal Circuit Court of Australia (“the Federal Circuit Court”) made parenting orders concerning the children, B, then aged eight years, and C, then aged almost six years. Those orders included an order (Order 1) discharging an earlier parenting order made by consent between the parties on 27 January 2015 for the children’s parents to have equal shared parental responsibility. Having discharged that order, an order (Order 2) was made for the mother to have sole parental responsibility for the children. The mother was restrained by injunction (Order 3) from exercising her sole parental responsibility to change the children’s names or to relocate their residence “such that it interferes with the children’s time with their father pursuant to the orders made 27 January 2015.”
By Order 4, the father was obliged to ensure that the children attend “any [g]rand [f]inal, grading examinations, recitals or presentations relating to the children’s extracurricular activity that occurs on a weekend”.
A central contention of the father in his appeal from those orders is that the evidence before the trial judge was insufficient to support a rebuttal of the s 61DA(1) presumption in the children’s best interests and the trial judge was wrong to conclude the presumption was rebutted. A corollary of that central contention is the contention that the mother had not established any sufficient basis to discharge, vary or set aside the operative parenting orders. A further contention is that the trial judge erred in law by failing to address all relevant s 60CC matters in deciding whether to vary the parenting orders.
For the reasons which follow, each of these contentions ought be accepted, the appeal should be allowed and the subject orders set aside, and the proceedings remitted for rehearing.
The father’s appeal from the subject orders has been heard and determined pursuant to s 94AAA(3) of the Act.
Background facts
The father is 36 years of age and the mother is 34 years of age. They commenced cohabitation in 2008, married in 2010 and separated in 2013. There are two children of their relationship: B born in 2010 and now aged nine years and C born in 2012 who is now seven years of age.
B was only two years of age and C was only about six months of age when their parents separated. The mother and children relocated from Brisbane where the family had been living to Town A on the Sunshine Coast. The father moved from Suburb E to Suburb F on Brisbane’s north side. The evidence before the trial judge included estimates of the geographical distance between the parent’s respective residences of between 75 and 100 kilometres; and a travel time by car of approximately one hour and 15 minutes.
The mother has not re-partnered and, aside from caring for the children, works as a swimming teacher. The father has re-partnered and his partner has a son from a previous relationship who is about the same age as B. The father and his partner have a child born in 2018 a half-sibling to the subject children. The father is not in employment and receives a Government pension and incapacity payments and he does not anticipate returning to the workforce in the near future.
The father first commenced parenting proceedings in September 2013. These culminated in the final consent orders made on 27 January 2015 earlier referred to providing for, inter alia, the parents to have equal shared parental responsibility; for the children to live with the mother and for the children to spend time and communicate with the father, time progressing to alternate weekends.
The father filed a Contravention Application[3] in December 2015. Whilst the trial judge refers to that application being dismissed (reasons at [3]), an order made by a Registrar on 22 January 2016 records that the application was in fact discontinued, and otherwise records the father’s agreement as to the school the child B was to attend, a matter which had been the subject of that application.
[3] Pursuant to Division 13A of the Act.
On 13 May 2016, the father filed his second Contravention Application. By that application, the father alleged that on each of 20 April 2016 and 25 April 2016 the mother did not facilitate the telephone communication provided for in the operative parenting orders. That application seemingly prompted the mother to make an oral application that an order be made for the mother to have sole parental responsibility for the children.
On 26 August 2016, a Federal Circuit Court judge made orders to progress that issue to a trial, including for a report to be prepared by a family consultant pursuant to s 62G of the Act.
It appears that despite that family report becoming available in November 2016, the trial of the issue as to parental responsibility did not take place in the Federal Circuit Court until some two years later, in November 2018. There is no suggestion that the parties, or either of them, bear any responsibility for that delay, but the important point is that two years had elapsed since the expert prepared her report.
An issue between the parties at the time of the November 2016 family report, as is recorded in that report, was (aside from the issue of parental responsibility) the children spending half school holiday time with the father in a week about arrangement. The father sought that such time commence, whilst the mother proposed that such an arrangement be delayed until C commenced school, in some two years’ time.
In the result, the family consultant recommended in her report that school holiday time commence “in the immediate future” and on 29 November 2016 an order to that effect was made.
Orders made subsequently in the Federal Circuit Court reflect that the trial of the issue of parental responsibility was to be set down at a call over of matters held on 17 August 2017. However, as noted, in the event the trial did not proceed until November 2018.
Approach of the trial judge
The trial proceeded on 22 November 2018. Notably, Ms G, the author of the family report which had been prepared some two years earlier in November 2016, was not available to give oral evidence at trial. Nevertheless, each party relied upon the family report and, as will be discussed, so too did the trial judge. Significantly, that report was two years old by the time of trial.
The trial judge recognised that Part VII of the Act applied to the determination of the issue of parental responsibility (reasons at [10]). Having referred to one of the objects expressed in s 60B(1) of the Act (in subsection (d)) and one of the principles expressed in s 60B(2) (subsection (d)) the trial judge identified, by reference to s 60CA of the Act, that the children’s best interests were the paramount consideration in the determination of the issue (reasons at[13]).
The trial judge referred to the statutory presumption in s 61DA(1). His Honour rejected the mother’s bare assertions as to family violence having occurred with the consequence that the presumption applied (reasons at [14] and [16]). His Honour correctly observed (at [16]) that the onus was upon the mother to establish that it was in the children’s best interests for the statutory presumption to be rebutted pursuant to subsection (4).
The trial judge’s reasons reflect that his Honour considered the content of some of the text messages exchanged between the parties concerning matters such as the child B’s attendances at dance events; C’s participation in jujitsu and B’s attendance at a disco. I interpolate here that an issue causing the need for the parties to communicate was the children’s engagement in weekend extracurricular activities (for example, B’s dance and disco events) in the prevailing circumstance of the geographical distance between the residences of each parent, and the orders for the children to spend weekend time with the father.
With respect to the exchange between the parents concerning B attending a disco event, the trial judge recorded, at [24], the exchange showing the parents to be in some conflict and his Honour refers to two occasions (on 26 August 2016 and 28 June 2018 respectively) where the Court “has had to intervene” due to the parents not agreeing about B’s attendance at dance events.
The trial judge referred to the mother’s acknowledgement in her evidence that communication between the parents “has not been as bad during the last six months” and her suspicion that this is in response to the father knowing that the mother is seeking an order for sole parental responsibility (reasons at [26]). However, the trial judge does not record anything to suggest that he accepted that the mother’s suspicion was justified. The trial judge referred to the father’s evidence that the parents can communicate effectively (reasons at [28]). The trial judge also referred to the mother’s concern about future communication and her assertion that the father had asked the police to do two welfare checks “based upon his need to control” (reasons at [27]).
With respect to the evidence provided in the father’s affidavit about the parents being able to communicate effectively, the trial judge recorded (at [29]):
…I am persuaded that although the parents do not immediately agree, they are able to agree in the end, noting, of course, the interventions by the Court regarding [B], and noting the nature of the correspondence.
The trial judge turned to consider the evidence provided by the expert Ms G, by reference to a previous report of February 2014 and her report of 23 November 2016.
As will be further discussed, the trial judge made extensive reference (between [30] to [45]) of the reasons for judgment to the 2016 family report of Ms G, in reaching the conclusion to alter the assignation of parental responsibility for the children from equal shared parental responsibility between the parents to the mother having sole parental responsibility.
The father’s grounds of appeal
By an Amended Notice of Appeal filed on 3 April 2019 the father abandoned his previous Ground 5. The remaining seven grounds in the Amended Notice of Appeal are as follows:
1.The learned trial judge was wrong in law in holding that the presumption of equal shared parental responsibility pursuant to section 61DA(1) Family Law Act 1975 (Cth) (“the Act”) was rebutted by evidence that it would not be in the best interests of the children for the said presumption to apply pursuant to section 61DA(4) of the Act.
2.The learned trial judge erred in law by affording undue weight to the level of past conflict between the parents and insufficient weight to the current level of conflict between the parents.
3.The learned trial judge erred in law by affording undue weight to the perceived stress of the mother in communications between the mother and father.
4.The learned trial judge erred in law by affording insufficient weight to the trial affidavit filed 13/11/18 of the father in circumstances where the father was not cross examined, at all, in respect of that evidence.
6.The learned trial judge erred in law and ought to have found that the mother had not established a basis upon which the orders of 27 January 2015 be discharged, varied or set aside.
7.The learned trial judge erred in law by failing to provide sufficient reasons for his Honour’s ‘findings’ and the Orders made such that insufficient reasons are provided such that the pathway to the learned trial judge’s decision was not apparent.
8.The learned trial judge erred in law by failing to address all the relevant section 60CC factors in the Act in deciding whether to make a parenting order pursuant to section 60CA of the Act in regarding the best interests of the children as the paramount consideration.
(As per the original)
The challenges as to the weight given to evidence expressed in each of Grounds 2, 3 and 4 can reasonably be viewed as particulars, or sub-categories, of the central contention in Ground 1 that, in summary, the evidence as a whole was insufficient for it to be concluded that it was in the children’s best interests for the statutory presumption to be rebutted. Ground 6, as advanced in oral argument, was framed also as a contention that the trial judge failed to deal with a threshold Rice and Asplund (1979) FLC 90-725 question as to whether variation of the orders ought be entertained. Ground 8 is self-evidently a challenge to the effect that the trial judge did not “address” all relevant s 60CC factors in determining the children’s best interests. The challenge as to adequacy of reasons in Ground 7 permeates these other challenges.
Relevant legal context of the issue at trial
At [11] and [12] of the reasons for judgment the trial judge said this:
11.The objects and principles underlying part VII are set out in section 60B. Relevantly, under the objects, section 60B(1)(d) an object is:
Ensuring that the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
12.One of the relevant principles underlying that object is found at section 60B(2)(d). That is:
Parents should agree about the future parenting of their children.
Given the issue to be determined – the allocation of parental responsibility – and his Honour apparently identifying the objects and principles in s 60B relevant to that issue, it would seem that the following objects and expressed principle, additional to those identified by the trial judge, were of central importance:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
…
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
…
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
…
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
…
(Emphasis added)
The object expressed in s 60B(1)(c) (which was identified by the trial judge as relevant) provides context to the principles expressed in s 60B(2) including the principle in subparagraph (c) quoted above.
Obviously, one means of ensuring that the best interests of children are met by “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives …” (emphasis added) is for children to experience both of their parents exercising an active role in decision making for them.
I interpolate here that this important means, and the benefits in the children’s best interests, were reflected in the expert opinion expressed by Ms G at paragraphs 40 of her 22 November 2016 report as follows:
40.Should [B] and [C’s] parental responsibility remain shared, [B] and [C’s] opportunity to experience each of their parents fulfilling an active role in their decision-making will be upheld. The frequency of time they spend with each party, coupled with the security they experience within their relationships with each parent, is indicative of [B] and [C’s] best interests being able to be a primary focus of each party’s respective decision making.
Added to this is the relevant content of Ms G’s report at paragraph 42 as follows of the risk presented by the alternative:
… There is a risk that the children’s parental responsibility not being equally shared between the parents could lead to the children perceiving a power imbalance exists between their parents, however options are available to assist to decrease this risk.
Notably, the trial judge’s extensive references to the expert’s report in his reasons for judgment did not include any reference at all to paragraph 40, or the quoted portion of paragraph 42, or as to how those significant matters were to be balanced out against other, perhaps countervailing, considerations.
The relevant terms of the statutory presumption expressed in s 61DA of the Act have earlier been set out and need not be repeated. In Dundas & Blake (2013) FLC 93-552 the Full Court considered a case where the appellant contended, as here, that the evidence before the trial judge about equal shared parental responsibility did not reach a level at which it could be reasonably said to have rebutted the statutory presumption. The Full Court emphasised the central importance of the statutory presumption as follows:
56.Her Honour’s discretion in determining the question of parental responsibility was not at large. Her Honour’s discretion was circumscribed by s 61DA, which requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case, as we have already indicated at [34], her Honour was required under s 61DA(4) to rebut the presumption “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”.
57.In our view, her Honour was in error in making an order for sole parental responsibility. Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply. In our view, that level of satisfaction could not have been reached in this case… Section 61DA is a significant provision of the Act and it requires, in our view, significant attention in the evidence.
58.It is not, in our view, sufficient for her Honour to point to the parties having poor communication or little confidence in each other’s parenting capacity…
…
61.In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted...
Section 61DA(1) is expressed in imperative terms. It is properly considered within its statutory context in Part VII including by reference to the objects and principles expressed in s 60B. The references to “best interests” incorporates the paramount consideration expressed in s 60CA and the means by which a Court determines best interests as provided for in s 60CC. As observed by Mason & Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 (at 320):
… The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole…
There cannot be any doubt that the legislative intent is that the statutory presumption is of central importance. The corollary of that is that there must be convincing proof as to the children’s best interests for s 61DA(4) to be activated to rebut the presumption.
For the reasons discussed in Blaze v Grady [2015] 54 Fam LR 172 at [101] and following the legislative intent of Part VII of the Act is to focus upon rights of children, on the one hand, and duties, obligations and responsibilities of parents on the other. Viewed in this context, the allocation of parental responsibility by parenting orders made under Part VII does not have in focus some inchoate or accepted right of a parent to exercise parental responsibility. Rather, the focus must be on the rights of the child, that is the child’s right to have the child’s parents properly meeting their parental duties and obligations, including by their discharge of parental responsibility. That forms an important element of the child’s right to have parents having a meaningful involvement in the child’s life.
An important element of the legal context in which the issue of trial fell to be determined, is that the trial judge was bound to conduct an inquiry to establish the children’s best interests in the manner prescribed by Part VII of the Act, prior to altering the parenting orders. Amendment of parenting orders pursuant to s 70NBA of the Act in the context of a Contravention Application must be effected following a consideration of each of s 60CA, the s 60CC considerations, s 61DA and in accordance with the principles enunciated in Rice and Asplund (supra). In Sandler and Kerrington (2007) FLC 93-323, Warnick J, sitting as a single judge exercising appellate jurisdiction, considered an appeal by the mother from an order of a then Federal Magistrate following a contravention hearing. Warnick J, after a careful consideration of the statutory provisions concluded that these:[4]
… have not had the result that the variation of a parenting order within the hearing of a contravention application may be properly effected in a more summary way than, or upon an enquiry abbreviated more than, is appropriate to an application for variation outside of Division 13A…
[4] At [41].
At [48], Warnick J expressed the view “that a variation made pursuant to s 70NBA is to be approached no differently to any other application for parenting orders” and at [50] and following drew emphasis to the threshold question expressed in Rice and Asplund.[5]
[5] See also Irvin and Carr (2007) FLC 93-322 and Doherty & Doherty [2016] FamCAFC 182.
Was the evidence sufficient for the trial judge to be satisfied that s 61DA(4) was activated?
The central findings of the trial judge included the finding expressed at [36] that:
… the evidence establishes that the pattern of mistrust, stressful communication, belittling and devaluing each other or a perception that their parenting role is being devalued is continuing.
The difficulty with this finding is that it is expressed as a conclusion and further examination of the reasons is necessary to consider whether that conclusionary finding is supported by the evidence or other basal findings.
The trial judge apparently accepted the mother’s oral evidence that she is “stressed” by the communication between the parents (at [37]) and his Honour expresses satisfaction that the children “would pick up on that stress” (at [38]).
In examining the evidence that was presented by both parties as to communication between them, an important distinction has to be made. That is, a distinction between communication about a decision concerning a major long-term issue in relation to the children (within the meaning of s 65DAC of the Act) and issues concerning the time and communication orders already in existence. As earlier noted, the geographical distance between the respective places of residence of the parents, means that difficulties are created for the father’s ordered time if the children are involved in extra-curricular or other activities taking place on weekends when the father is scheduled to have time.
Whilst the trial judge makes reference in his reasons for judgment to some of the communications between the parents, the specific examples referred to by his Honour are, on any view, examples of positive and cooperative parenting. Thus, from [17] to [21] the trial judge refers to the following examples:
17.The mother annexes a text exchange between the parents at [Annexure 3]. This exchange relates to [B’s] dance. The mother asks the father to change his weekend so that [B] can participate in her dance practice and presentation weekends. The father responds that he cannot change the weekend and the mother ultimately says, “No worries”.
18.At annexure [Annexure 4], the mother provides evidence of a text message exchange relating to [C’s] jujitsu. It reads:
"[C] had a free trial at jujitsu today and enjoyed it".
19. The father responds:
"Okay. Good to see he enjoyed it. Can we look at some other type of combat for [C] as jujitsu (MMA) is more violent than boxing. Thanks for the dates for [B]."
20. The mother responds:
"It is non-contact at this age and it is all about teach self discipline, coordination and self-confidence. He has another free session at ….. [Community Centre] at 1545. You’re more than welcome to check it out."
21. And the father replies:
"Okay. All good".
At [22] of the reasons is an example of an issue concerning a decision not about a major long-term issue for either child, but a weekend arrangement for the child B impinging upon the father’s weekend time. Paragraph 22 is as follows:
22.At annexure [Annexure 5] to the mother’s affidavit, is another text exchange. It seems the mother wanted [B] to attend a disco and asked the father to pick her up at a later time. The father said he could not do this as there was insufficient warning. In this instance, the parents concede that the child was upset at not attending.
At [23] of the reasons, the trial judge rejects the mother’s complaint that the father’s responses are not timely and that he is rude to the mother. However, his Honour concludes that the exchange demonstrates the parents to be “in conflict”.
With respect to that conclusion, relatively minor conflicts created by arrangements which would potentially impinge upon the children’s ordered time with the father could not, without more, constitute the requisite level of evidence to displace, in the children’s best interests, the statutory presumption.
In this case the mother conceded (as the trial judge noted at [26]) that communication between the parents “has not been as bad during the last six months”. Significantly the father provided a great deal of evidence in his affidavit of positive communications between the parents over a great range of issues, which evidence went unchallenged.
In his affidavit filed on 12 November 2018 (at paragraphs 29 to 44), the father sets out approximately 12 separate examples, corroborated by annexed text messages, of the parties’ communicating positively and reaching agreement on a variety of issues.
An example to illustrate this appears at Annexure 9 to his affidavit where the father expresses a desire to have the children receive an influenza injection given the pending birth of the father’s child in the context of a reportedly poor flu season. The mother replied with “I would like to look into it before they get it”. The mother then said she was not comfortable with the children receiving the flu shot and cited reasons such as their phobia of needles and them not falling into the high risk category. The father replied with “okay thanks for getting back to me about it” before moving on to organise practicalities for a weekend trip that was upcoming. None of that communication could be characterised as at all negative or, reasonably, stressful to the mother.
As a further example at Annexure 11 to the father’s affidavit is the text message conversation referred to by the mother in her affidavit relating to the child B’s disco involvement, on a weekend. Notably, whilst the mother’s annexure of the relevant conversation in her affidavit terminates after her message saying “[y]er [sic] no worries” the father’s annexure shows the mother sending the details of the disco to the father a few days later and the father then replies and says:
Thanks for the text, I did just see it pop up on Facebook. I am happy to move changeover at [Park H] to 7pm Friday and Sunday also at 7pm.
(As per the original)
Not only does this example illustrate a perfectly sensible and reasonable level of cooperation between the parties, but it demonstrates that the mother’s evidence in her affidavit was somewhat apt to mislead as being incomplete.
At [28] of the reasons, the trial judge referred to the father providing evidence “that the parents can communicate effectively” and expresses the conclusion in [29] that “although the parents do not immediately agree, they are able to agree in the end”.
Counsel for the father on appeal appropriately emphasised the fact that the father’s evidence before the trial judge as to the parties’ positive communication and capacity to communicate effectively about a host of issues, as set out in his affidavit, went unchallenged. No cross-examination by the mother was directed to any challenge to the father’s evidence in this respect and no challenge was contained in any affidavit evidence in reply of the mother.
Whilst it is well settled that there is no rule of law that a judge must accept evidence which goes unchallenged, equally it may be an error or unreasonable to reject unchallenged evidence.[6]
[6] See, for example, In the Marriage of Scott (1994) 17 Fam LR 420.
In contrast, the mother was challenged in cross-examination concerning examples she gave as suggesting that there were difficulties in the communication between the parties or their capacity to resolve issues. As already noted, the child C’s involvement in jujitsu was an example specifically referred to by the trial judge. Given the full communication about that, as set out in the trial judge’s reasons, the mother’s cross-examination on this topic bears consideration given that the mother was using this example in support of her case about poor communication:[7]
[7] Transcript 22 November 2018, p.17 line 3 to p.19 line 4.
Yes. So what was your purpose of putting that in your affidavit? What were you hoping to prove by putting that in your affidavit?---To prove that when it comes to sporting, any extracurricular activities, the children are kind of suffering – well, not “kind of”, are suffering - - -
Right?--- - - - as we had first discussed this boxing material on 31 December 2017- - -
Right?--- - - - [Mr Vallans] brought it up, and then it took three weeks later, after [C] had a free trial at [martial arts], and then all of a sudden I got a message back saying he wasn’t happy with [martial arts], “Can we look at something else?”
Well, if I just read out to you what it actually says - - -?---Yes.
- - - he doesn’t say he wasn’t happy. Do you accept that – this is what he said, I will suggest to you. He said:
Can we look at some other type of combat for [C], as [martial arts]is more violent than boxing?
Would you accept that that’s what he said to you?---That’s the way you interpret it. I’ve – after dealing with [Mr Vallans] for a long time, I can see that his intentions – also, we’ve had the same instance when [B] was participating in dancing. It also took another three weeks for [Mr Vallans] to have - - -
If I could just - - -?--- - - - another issue with - - -
Excuse me - - -?--- - - - them participating.
- - - if I could just keep you to this question on this annexure, because we’re referring to this. All right. So you’re saying – I’m getting you to accept that you accept that those words I just spoke are the words that appear in the text message; correct?---They appear in the text message.
All right. Thank you. Now – and if I could just – and then what happens is after that comment, [Mr Vallans] says:
Thanks for the dates for [B].
All right. Now, is that polite, him saying, “Thanks of the dates for [B]”? Is that - - -?---Yes.
- - - acceptable parenting?---Yes.
Yes. All right. And then if we continue on in the discussion, he then says at the end, doesn’t he:
Okay. All good.
?---Because I offered him a chance to come and participate, to have a look at [C] in his - - -
Okay. So just for his Honour’s benefit, could you just please explain to his Honour how that is in any way threatening, that text message?---Because it’s happened previously. It’s not threatening, but it’s actually making your
co-parenting very hard when you’ve put your child into an activity to have a look at, and all of a sudden, you get a complaint back - - -
Okay?--- - - - that he’s not happy with it.
Could I suggest to you - - -?---Also – can I just also say - - -
No, no. Can I suggest to you that that’s not a complaint. He’s simply giving you feedback, that:
Can we look at some other type of combat –
“ can we”. He’s not saying “we should”:
Can we look at some other type of combat for [C], as [martial arts] is more violent than boxing?
I suggest to you that’s part of the process, isn’t it? Isn’t he doing the proper thing?---Yes, but if [C’s] happy with what he’s doing, shouldn’t it be coming to [C’s] - - -
Yes?---How [C] takes to the activity? And we don’t also have the timeframe to pick and choose activities we do, as our whole week is nearly full.
Because after he asked you that question, then you explain, don’t you? This is what you say. Is this correct? You say:
It is non-contact at this age, as it is all about teach self-discipline, coordination, self-confidence. He has another free session at [Town A] [Community Centre]. You’re more than welcome to check it out.
?---Yes.
And [Mr Vallans] then says, don’t you accept:
Okay. All good.
?---Yes.
So I would suggest to you that he’s accepting what you’re saying, isn’t he?
---Yes, you could. You could.
(As per the original)
When the mother’s answers in cross-examination are carefully considered, it can be seen that it was not in fact the nature of the communication that the mother was contending to be the reason she was seeking an order for sole parental responsibility. Rather, it can be seen that it was the children’s participation in weekend activities (as the mother sought to arrange) impinging upon the father’s time, that was the real point of disagreement between the parents. That is evident from the following exchange:[8]
Yes. And is that the main reason why you’re seeking sole parental responsibility, is it?---No, it’s all about the communication.
Right?---And it’s starting to affect the kids.
And how is the communication affecting the children?---Because the kids can’t participate in a lot of stuff, and they’re starting to realise that. They get birthday invitations. They check the calendar when they get home. “Dad’s weekend. We can’t go”. It’s starting to affect them.
(Emphasis added)
[8] Transcript 22 November 2018, p.22 lines 5–13.
It is worth noting here, concerning the expert’s report, that having noted disagreements between the parents about the children’s engagement in extracurricular activities impinging upon the father’s weekend time, the expert expressed this opinion at paragraph 45 of her report:
45.In relation to the children's engagement in extra curricular activities, it is assessed that considerations directly relevant for the children should guide decision making here. In this regard, the children participating in activities that require their attendance during the week days when the burden of travel for them to attend is less is assessed as being more child-focussed. Weekend activities that will see the children travelling multiple times between the Sunshine Coast and Brisbane is likely to add additional stressors on the children and may contribute to these activities being less enjoyable for them. Notwithstanding this, if special events take place on weekends, the children’s attendance should be a priority regardless of which party's care they are in.
I note in passing that whilst the orders made by the trial judge place an obligation upon the father to have the children attend special events, by investing the mother with sole parental responsibility and otherwise providing for no relevant restraint upon its exercise, it can be seen that the concern addressed by the expert is not in fact met by the orders ultimately made.
In summary, when the whole of the evidence as to communication between the parents is reviewed it can be seen that the areas of conflict, if they can be described as such, between the parents surrounding their communication, does not generally relate to significant decisions about major long-term issues. Rather, communication difficulties can be seen to arise when there are weekend activities for the children impinging upon the father’s ordered time in the circumstances of the geographical distance between the parties.
It bears repeating that the trial judge made a positive finding concerning the parents’ capacity to make decisions. At [29] of the reasons the trial judge found the following:
29.Having considered that evidence, I am persuaded that although the parents do not immediately agree, they are able to agree in the end, noting, of course, the interventions by the Court regarding [B], and noting the nature of the correspondence.
As already referred to, the trial judge placed significant emphasis upon the content of the family reports of Ms G in particular the second of her two reports, dated 23 November 2016.
By the time of the trial before the trial judge, the report of Ms G was more than two years old. Significant caution and allowances had to be made for the feature that the expert report did not, because it could not, take account of the nature of communications between the parties over the two year period since the report was compiled, and obviously the report contains no assessment of the issues that arose between the parties in that period, or their manner of dealing with such issues. In this respect, the trial judge recorded the following at [30] of the reasons:
30.The evidence of [Ms G] was not challenged by either party. [Ms G] had compiled a previous report in February 2014. At that time, it was assessed by her that communications issues were likely to pose future difficulties to the co-parenting relationship without the parents learning additional communication skills and seeking to modify their attitudes regarding co-parenting.
The reality is that Ms G was overseas at the time of the hearing and was not available to give oral evidence. In any event, Ms G’s report and opinions expressed in that report were framed only by reference to Ms G’s consideration of the matter as up until 23 November 2016.
Thus it was that there was no opinion from Ms G as to whether or not the parents had modified their attitudes regarding co-parenting in the two year period that had elapsed since her report or any expert opinion as to the current nature of the co-parenting relationship.
At [33] to [38] of the reasons the trial judge records this in relation to the content of Ms G’s report:
33. At paragraph 41, [Ms G] writes:
“The history of the parties’ perceptions of mistrust of the other party, however, could lead to either or both parents demonstrating a pattern of misusing decision making power to coerce or control the other party. The risk of this increasing would be assessed as high if each party continues to experience the other as devaluing or discrediting their role in parental decision making. There appears to be a pattern of this characterising these parents’ views of each other.”
“In this case, the continuation of shared parental responsibility could lead to a decreased focus on the children’s needs and best interests and could become a focus of parental control. This would not be in the children’s best interests as this would increase their exposure to conflict, would result in delayed decision making occurring and is highly likely to result in ongoing adversarial processes being required to resolve parenting decisions.”
34.[Ms G] is of the view that [Ms Vallans] should have sole parental responsibility if parental responsibility is not to be shared.
35. At paragraph 43, [Ms G] writes:
“Should the Court determine that [Mr and Ms Vallans] do not demonstrate a high likelihood of resolving parenting differences within a reasonable timeframe and without ongoing external decision making processes, it is likely that [Ms Vallans], holding sole parental responsibility, will best promote the children’s needs and best interests. Requiring her to present [Mr Vallans] some alternatives to choose from within a set timeframe, with her being at liberty to make the final decision, will promote his opportunity to remain involved and for the children to experience his contributions as being valuable.”
36.An assessment of all of the evidence establishes that the pattern of mistrust, stressful communication, belittling and devaluing each other or a perception that their parenting role is being devalued is continuing.
37.I am concerned that both parents, at times, lose child focus and that the focus is shifting towards parental control. The children are with the mother the majority of the time. She says she is stressed by the communication between the parents and, at times, does not answer the father to avoid stress.
38.The children, being in the mother’s care most of the time, would pick up on that stress. [Ms G] opines that exposure to stress and conflict is not in the children’s best interests as it would result in delayed decision making occurring and is highly likely to result in ongoing adversarial processes being required to resolve parenting decisions.
(As per the original) (Footnotes omitted)
With all due respect to the trial judge, the affidavit and oral evidence as a whole simply does not support the conclusion expressed at [36]. That finding is contrary to the preponderance of the evidence including the uncontested evidence of the father.[9] As the conclusion expressed by the trial judge at [36] seemingly forms an important foundation for the overall conclusion, that conclusion cannot be sustained.
[9]Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43].
Further, with respect to his Honour’s references to the report of Ms G, what is left out of the trial judge’s recitation of the content of Ms G’s report is the important content of paragraph 40 earlier quoted highlighting both the benefit to the children of a continuation of shared parental responsibility and, in paragraph 42 in the extract earlier quoted, the risks to the children’s welfare if the mother has sole parental responsibility. These were material considerations at the heart of the issue. They were not referred to by the trial judge.
Obviously enough, as at 23 November 2016, the expert was pointing out in paragraph 40 of her report the positive benefits for the children, in their best interests, of equal shared parental responsibility being exercised by the parents. At paragraph 41 and following of the report are some countervailing considerations.
However, on such a fundamentally important issue, the trial judge proceeded without the benefit of any current expert evidence from Ms G, or any other expert, as to how these countervailing considerations balanced out in the light of what had occurred between the parents over the two year period that had elapsed since Ms G’s report was compiled. These were material considerations. The children had experienced the birth of their half-sibling in the father’s household, as but one example, in the period that had elapsed. For example, a seemingly obvious question which arises from what the expert states at paragraph 41 of her report, as quoted by the trial judge, is how the risk of one parent “misusing decision-making power to coerce or control the other party” is met or addressed by reposing in one parent only sole parental responsibility for the children.
Nowhere within the reasons for judgment can it be seen that the trial judge undertook this important balancing exercise, nor how the trial judge applied caution to a selective application of some of Ms G’s opinions, expressed more than two years earlier on the then existing evidence including her interviews of the children and the parents.
As to that, it is to be noted that Ms G’s process for her 23 November 2016 report included consideration of the then available affidavit material of each party; interviews of each parent; and interviews and observations of both children. Given that two years had elapsed since the November 2016 report (a very significant period of time given the respective ages of these children) expert interviews of the children as well as the parents may have produced important evidence to be considered on the disputed issue to be determined.
It was the mother who bore the onus of proof on the issue given that it was her case that the parenting orders should be significantly varied in this manner. Any gaps in evidence such as the historical nature of the expert evidence placed limitations on the mother discharging the onus of proof which she bore. However, nowhere can it be seen that the trial judge made any allowances for the features referred to, particularly the historical quality of the expert report and opinions upon which the trial judge so heavily relied.
Failure to address all relevant s 60CC considerations
Having excluded family violence as an issue or factor at [16], the first of the two primary considerations in s 60CC(2) assumed significance, namely:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
As the Notation to that section reflects, making this consideration a primary consideration is consistent with the object expressed in s 60B(1)(a) earlier discussed.
If the report of Ms G was to be relied upon (within the limitation that it was arguably well outdated by the time of trial) then Ms G’s expressed reservations in paragraphs 40 and 42 of her report, earlier quoted, about the benefits of equal shared parental responsibility for the children/potential downsides of an order for sole parental responsibility brought that primary consideration into sharp focus.
Moreover, given that evidence, a number of additional considerations expressed in s 60CC(3) also assumed importance in conjunction with the primary consideration, namely:
…
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
…
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
..
(d) the likely effect of any changes in the child’s circumstances …
The trial judge does not explicitly reference the need to consider relevant s 60CC factors in his reasons, nor can it be seen upon a reading of the reasons for judgment that the trial judge can be seen to address each relevant consideration, having regard to the evidence.
It was necessary for the trial judge to address the significant matters raised by the expert, if the expert evidence was to be relied upon, contrary to the assignation of sole parental responsibility for it to be legitimately concluded that such an order was in the best interests of the children. The trial judge was in error in not undertaking the requisite consideration of factors by reference to material considerations raised on the evidence.
Conclusion
With respect to Ground 6, neither party raised any threshold question relying upon Rice and Asplund at any material time, including in the preliminary stages and Court appearances prior to the trial or at the trial itself. Each party is bound by their conduct in the proceedings below.[10] The trial judge was entitled to proceed on the basis that no threshold question needed to be determined in proceeding to resolve the issue raised. As has recently been observed by the Full Court in Phillips & Hansford (No. 2) (2019) FLC 93-917 at [34], the rule in Rice and Asplund is not an immutable rule of law. The trial judge was not in error by proceeding to determine the issue of parental responsibility in circumstances where both parties raised no question about his Honour so proceeding.
[10]Metwally v University of Wollongong (1985) 60 ALR 68.
However, it follows from the foregoing that the central complaint in Ground 1 as to there being no sufficient evidentiary basis to rebut the statutory presumption, and the associated complaints in each of Grounds 2, 3, 4 and 5 are established.
With all due respect to the trial judge, as outdated as the expert’s report may have been, the expert raised material considerations as to the potential negative effect upon the children’s best interests if an order for sole parental responsibility was made. The material considerations raised by the expert were not addressed by the trial judge.
Moreover, and in conjunction with this point, Ground 8 containing the challenge that the trial judge failed to address all relevant s 60CC factors, is established. Whilst it can be seen from a reading of the reasons of the trial judge that his Honour made references to some relevant parts or sections within Part VII, it cannot be seen that the trial judge considered and applied all relevant s 60CC considerations in the light of the evidence calling for their consideration.
Given the errors identified, it follows that the reasons of the trial judge were inadequate to explain the conclusion his Honour reached and that ground of challenge is also established.
Both parties acknowledged that it would be necessary for further evidence to be adduced for the purpose of any re-exercise of the discretion, and on that basis both parties ultimately sought that if the appeal were to be allowed an order ought be made for the proceedings to be remitted for rehearing.
Costs
As the appeal is to be allowed by reason of errors of law each party ought be granted costs certificates for the appeal, and the rehearing, pursuant to the relevant provisions of the Federal Proceedings (Costs) Act1981 (Cth) as each party sought.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 December 2019.
Associate:
Date: 20 December 2019
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