Vance & Vance
[2010] FamCAFC 250
•20 December 2010
FAMILY COURT OF AUSTRALIA
| VANCE & VANCE | [2010] FamCAFC 250 |
| FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the Federal Magistrate erred in failing to properly apply s 65 DAA of the Family Law Act 1975 (Cth) – Whether the orders made by the Federal Magistrate achieved substantial and significant time – Consideration of the meaning of “substantial and significant time” – Reference made to s 15AA of the Acts Interpretation Act 1901 (Cth) and the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 – Decisions in Whisler & Whisler [2010] FamCAFC 18 and Eddington & Eddington(No 2) (2007) FLC 93-349 considered and applied – Where each case must be considered on its own circumstances – Where the orders fell within definition of “significant and substantial time” for the purpose of s 65 DAA(3) – No error in Federal Magistrates discretion established. FAMILY LAW - APPEAL – PROCEDURAL FAIRNESS – Whether the Federal Magistrate denied the father procedural fairness by taking into account academic publications without notice to the father – Where the Federal Magistrate did not use material as evidence before him – Discussion of the benefits of providing research material to the parties at the commencement of the hearing – No appealable error established. FAMILY LAW - APPEAL - PARENTING ORDERS – Whether the Federal Magistrate erred in failing to take into account the first family report – Where second family report was considered the relevant report – Where inference can be drawn that both counsel thought the first family report to be of little utility – No appealable error established. FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the Federal Magistrate erred in making findings of fact based on the Family Consultant’s evidence on overnight time on Wednesdays – Where evidence of Family Consultant was not the sole determinant of the outcome – No factual error made – Ground without merit. FAMILY LAW - APPEAL – COSTS – Father unsuccessful in all grounds agitated on appeal – Father to pay mother’s costs of and incidental to the appeal. |
| De Winter & De Winter (1979) 23 ALR 211 Eddington & Eddington (No 2) (2007) FLC 93-349 Hall & Hall (1979) FLC 93-713 MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424 Whisler & Whisler [2010] FamCAFC 18 |
| Acts Interpretation Act 1901 (Cth) s 15AA Family Law Act 1975 (Cth) ss 60CC, 65DAA Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) National Measurement Act 1960 (Cth) |
| APPELLANT: | Mr Vance |
| RESPONDENT: | Ms Vance |
| FILE NUMBER: | SYC | 4679 | of | 2007 |
| APPEAL NUMBER: | EA | 41 | of | 2010 |
DATE DELIVERED: | 20 December 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 12 October 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 March 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 200 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Bateman |
| SOLICITOR FOR THE APPELLANT: | John Hunter Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
Orders
BY CONSENT
The appeal is allowed in part.
The orders made by Federal Magistrate Altobelli on 5 March 2010 be varied as follows:
(a)by deleting from Order 5(h) where appearing “10.00pm” and inserting in lieu “10.00am”;
(b)by deleting from Order 5(i) “10.00pm” and inserting in lieu “10.00am”;
(c)by deleting from Order 6 where appearing “Order 3(a) and (b)” and inserting in lieu “Order 4(a) and (b)”;
(d)by deleting from Order 7 where appearing “Order 3(a) to (e)” and inserting in lieu “Order 4(a) to (e)” and deleting “Order 4(a) to (j)” and inserting in lieu “Order 5(a) to (i)”;
(e)by deleting from Order 8 where appearing the words “and returning the Children to the Mother’s residence” and inserting in lieu “the children from the mother’s residence at the commencement of the time that the children spend with the Father and the Mother collecting the children from the Father’s residence at the cessation of time that the children spend with the Father”; and
(f)by adding to Order 9 the following words “such telephone contact to commence on the day of the making of these orders”.
IT IS ORDERED
The father pay the mother’s costs of and incidental to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Vance & Vance is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 41 of 2010
File Number: SYC 4679 of 2007
| Mr Vance |
Appellant
And
| Ms Vance |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Vance and Ms Vance are the parents of two young girls, X aged 11 years and Y aged 7 years. On 5 March 2010 Federal Magistrate Altobelli made final parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the children. This is the father’s appeal against some of those orders.
The parenting orders provide, in broad terms, that the children live with the mother and spend time with the father each alternate weekend from Friday after school until the commencement of school on Monday morning, and for time after school until 8.00 pm each Wednesday. Additionally, the orders provide for special occasions and holiday time with both parents. The parents have equal shared responsibility for the children.
In determining this appeal I am exercising the appellate jurisdiction of the Court as a single judge pursuant to a direction given by the Chief Justice, the Honourable Justice Bryant pursuant to s 94AAA(3) of the Act.
Although the mother opposed the appeal, in her counsel’s written submissions he sensibly acknowledged that the orders contained a number of typographical errors which were amenable to correction under the “slip” rule or that the appeal should be allowed in part, and indicated that Orders 3 to 6 inclusive sought in the appeal could be made by consent.
The father relied on eight grounds of appeal in his Notice of Appeal filed on 1 April 2010. However, before me the errors asserted by the father’s counsel were narrowed. The father’s counsel, while not abandoning any ground, did not strongly press the grounds pleaded other than grounds 1 and 5, and to some extent ground 8. I will shortly explain the gravamen of these grounds.
In the event that the appeal is allowed, the father’s counsel submitted that I should re-determine the matter, and make the orders, as set out in the Notice of Appeal, but subject to amendment, by varying the Federal Magistrate’s orders so that the children live with the father from 3.00 pm each Wednesday to 3.00 pm Thursday.
It is important to record that, in reality, what the father seeks is that the time spent with the children each Wednesday night should be extended to overnight on that night, and a new definition of the Christmas school holiday period. I will deal with this aspect of the appeal when considering ground 1. He does not seek, as was his primary position at trial, an order for an equal shared “week about” care regime for the children.
Background
The background appears in the Federal Magistrate’s reasons for judgment and is uncontroversial.
The parties married in 1993 and separated in October 2006.
By the date of the hearing both parents had re-partnered.
There are two children of the marriage X aged 11 years at the date of the hearing before the Federal Magistrate and Y then aged 7 years.
The proceedings were heard by the Federal Magistrate on 5 May 2009 and 5 February 2010 and his Honour delivered reserved reasons for judgment on 5 March 2010.
Prior to the hearing, on 12 November 2008, interim parenting orders were made by Coakes FM. Those orders provided, inter alia, that the father spend time with the children each alternate weekend from after school Friday until before school Monday and each Wednesday afternoon.
The grounds of appeal
Having regard to the concessions made by the wife’s counsel, the remaining challenges agitated by the father against the Federal Magistrate’s orders asserted error
·in failing to properly apply s 65DAA of the Act insofar as it is asserted his Honour failed to make orders for substantial and significant time because his Honour’s orders did not provide for a 24 hour period (“a day”) to be spent by the father with the children mid-week;
·in denying procedural fairness to the father in taking into account academic publications without drawing those publications to the attention of the father and giving him an opportunity to be heard in respect of such publications;
·in failing to take into account the first Family Report prepared in the proceedings; and
·in factual findings relied on which were asserted to be erroneous (the De Winter & De Winter (1979) 23 ALR 211 challenge).
I propose to deal with the challenges in the order identified above.
Asserted error in failing to properly apply section 65daa of the act (Ground 1)
1.The Learned Federal Magistrate erred in law by failing to properly apply section 65DAA of the Family Law Act 1975 (Cth)
Counsel for the father expanded her argument in her written submissions in her oral argument. The thrust of the oral argument was that his Honour’s orders did not fulfil the requirements of the statute (s 65DAA(3)) to provide substantial and significant time because the orders did not provide a full day of twenty-four hours with the father on a day which was otherwise than a weekend day.
To rectify the asserted error, counsel for the father asked to amend the orders sought, if the appeal was successful, to provide for the children to be with the father for 24 hours from 3.00 pm Wednesday to 3.00 pm Thursday during school terms, notwithstanding that she freely conceded, in reality, the children would be delivered by the father to school at the commencement of school on Thursday, and not spending time with him from the commencement of school until 3.00 pm on that day.
The written submissions (page 6) assert that the orders made do not comply with the statutory requirements, and the parenting orders made:
· do not allow the father to participate in the children’s daily routine, but rather that they disrupt the children’s daily routine;
· fail to provide sufficient time for the father to be involved in the children’s daily routine; and
· fail to provide much more than a “80:20 arrangement”.
Counsel for the mother argued that the father’s counsel departed in her oral and written submissions from the grounds as pleaded. He submitted that his Honour had observed the statutory imperatives in s 65DAA. He submitted:
… The complaint, at least in the submissions is not that His Honour failed to follow the pathway but rather that His Honour misdirected himself as to whether or not his orders amounted to substantial and significant time, in this regard paragraph 3.11 of the Appellant’s submissions is central to understanding the case which is being advanced. The problem for the Appellant however is that this complaint is substantially different to the ground of appeal… (mother’s submissions, p 2)
I pause to observe that no objection was taken at the hearing before me to the amendment sought to the orders to be made if the appeal was allowed.
The relevant law
On 3 March 2010 the High Court published its reasons in MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424.Although the High Court was dealing with a so called “relocation” case, their Honours (French CJ, Gummow, Hayne, Kiefel and Bell JJ) discussed the legislative requirements in Part VII of the Act to be observed by a judicial officer when making a parenting order under that Part.
In paragraph 6 of their reasons the High Court referred to the amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amending Act”).
At paragraph 9, their Honours said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
At paragraph 13, their Honours explained s 65DAA(1) is “expressed in imperative terms” and thereafter discussed the requirements of that section.
As the central argument in this appeal focuses on s 65DAA, I set that section out in full:
Equal Time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The Federal Magistrate’s reasons
The Federal Magistrate, after referring to some brief introductory matters, noted that the father sought an order for equal time with the children or, in the alternative, the interim orders be extended to include each Wednesday night.
His Honour noted that the mother’s proposal was the existing regime under the interim orders should be reduced with the children returned to her home on Sunday evening. His Honour explained, at paragraph 7:
… During the course of the proceedings the mother’s position did appear to change to an acceptance of the current interim orders for Friday evenings to Monday mornings, subject to an earlier return of the children on Wednesday evenings…
His Honour also explained that the mother, at the conclusion of the hearing, sought an order for sole parental responsibility.
Having referred to the applicable law (paragraphs 13 to 17) his Honour thereafter, in paragraph 18, referred to and set out an extract from an article by Bruce Smythe, “Time to rethink time? The experience of time with children after divorce” (Family Matters No 76, Winter 2005, p 4).
At paragraph 19, his Honour said:
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
At paragraphs 20 to 22, his Honour set out material he described as “some recent Australian research”.
At paragraph 23, his Honour explained as follows:
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Immediately after the research findings, his Honour referred to the evidence of the Family Consultant.
At paragraph 26, the Federal Magistrate recorded that the Family Consultant had observed the children interacting with their father and said:
… and this confirms the good relationship that exists between them, though the father clearly favours [Y] over [X].
His Honour then extracted a number of paragraphs from the family report where the child X’s views were recorded by the Family Consultant. His Honour summarised this evidence in paragraph 28 noting:
Thus, [X] clearly raises concerns about the nature of her relationship with the father’s partner, [Ms E], and her child [Z]. She also expresses the view that Wednesday evenings finish too late, and that the alternate weekend contact is slightly too long. The Family Consultant noted that [X], who is in year five in primary school, presented as “an earnest, intelligent and serious girl…who appeared physically more mature than her 11 years would suggest.”
His Honour then set out further extracts of the report relevant to the younger child and concluded, at paragraph 30, as follows:
Unlike [X], [Y] indicated that she’d like to spend more time with her father, but not week-about. The Family Consultant observed [Y] to be somewhat apprehensive, uncertain, and nervous at interview. Given her age, there must be some concerns about the weight that I can give to the views expressed by [Y].
His Honour then referred to the observation of the Family Consultant, at paragraph 100 of her report, and said that equal time was clearly contra-indicated.
At paragraph 35 of his reasons, the Federal Magistrate referred to the cross-examination of the Family Consultant by counsel for the father as follows:
Ms Bateman put it to the Family Consultant that one way of addressing the concerns about the disruption to the children’s preparation for school on Wednesday evenings was for the children to in fact remain at their father’s home from after school on Wednesday and on the basis that he would return them to school on Thursday morning. [The Family Consultant] conceded the possibility that such an arrangement would be less disruptive, and thus could be appropriate. However, what was not put to [the Family Consultant] by Ms Bateman was, firstly, whether this would occur each Wednesday evening, or each alternate Wednesday evening and, secondly, whether that is a recommendation that [the Family Consultant] would make on the facts of this case.
In recording the evidence elicited from the Family Consultant in cross-examination by counsel for the mother his Honour, at paragraph 38, said:
[The Family Consultant] seemed to confirm in cross-examination with Mr Livingstone that she was open to the possibility of the children having each alternate Wednesday night with the father. When challenged about the appropriateness of spending extra time with the father in a situation where the children are unhappy in his household, [the Family Consultant] expressed the hope that the father would work on his relationship, particularly with [X]. [The Family Consultant] also stated that she had not sought the children’s views about overnights on Wednesday, and thus appeared somewhat tentative in what might be perceived as some support for this proposition.
His Honour’s crucial findings in relation to time to be spent overnight on a Wednesday are found in paragraphs 39 to 42 of his Honour’s reasons. Those findings are central to this appeal and I set them out in full:
39.The Family Consultant gave me the impression of being torn somewhat between concerns about how the children would cope with an overnight on Wednesdays, as against the benefit to them of reduced disruption of not having to go home that evening, but going straight back to school the following day.
40.The Family Consultant was placed in a difficult position about having to comment on a proposal for Wednesday overnights that first emerged during her cross-examination. It should be noted it was not part of the father’s proposal at the commencement of these proceedings, though it was warmly embraced by him once it appeared that [the Family Consultant] gave it some tentative support. I sensed a real dilemma in [the Family Consultant’s] mind about the proposal. On the one hand, it was a seemingly attractive solution to the concerns expressed by the mother and the children about the disruption caused on Wednesday evenings to the children’s weekly routine.
41.Having an overnight has the potential to reduce this disruption, and significantly reduce the travel issues associated with Wednesday afternoon contact. On the other hand, [the Family Consultant] was clearly concerned about the fact that she had not discussed this with the children. This is no mere theoretical issue. [X] has expressed quite strong views to the Family Consultant about spending less time with her father, and about not enjoying the time in her father’s household, particularly in terms of what appears to be a stressed relationship with [Ms E].
42.Whilst I form the view that [the Family Consultant] did support an overnight on Wednesdays in the alternate week, I do not think this support was a wholehearted one. Indeed, from the court’s perspective, whilst it solves one problem (the disruption problem) it potentially creates another one because of [X’s] perceived unhappiness in the father’s home.
At paragraphs 44 to 65 of his reasons, the Federal Magistrate dealt with the relevant additional considerations, under s 60CC(3) of the Act.
At paragraphs 70 and 71, his Honour turned to the issue of whether or not he should make an order for sole parental responsibility or equal shared parental responsibility and determined that an order for sole parental responsibility would not be in the best interests of the children.
Under the heading “Section 65DAA – considering time” his Honour concluded, in paragraphs 75 and 76, that an order for equal time was not in the best interests of the children.
His Honour’s findings on substantial and significant time are found in paragraph 77 of his reasons as follows:
The order that I intend to make will provide that the father has the children each alternate weekend from Friday after school to the commencement of school on Monday, and on special occasions and during school holidays. In addition, he will have the children each Wednesday after school to Wednesday evening. I am satisfied that this is substantial and significant time, as defined in the Act, and it will provide the father with ample opportunity to be involved in his children’s daily routine, as well as occasions and events that are of particular significance to the children, and to the parent.
Discussion
In her oral argument counsel for the father placed her emphasis on the word “days” in s 65DAA(3). The gravamen of her argument was that the word “days” should be considered to be a period of not less than 24 hours, or more precisely 86,400 seconds, being the definition of a “day” as found in Schedule 1 of the regulations made under the National Measurement Act 1960 (Cth).
I am satisfied that this argument is without foundation. Adopting a purposive interpretation of s 65DAA(3) (see s 15AA of the Acts Interpretation Act 1901 (Cth)) I discern what is required is the time the child spends with a parent includes days that fall do not fall on weekends or holidays and the time spent with the child allows the parent to be involved in the child’s daily routine, and occasions and events that are of particular significance to the child, and occasions and events which are of special significance to a parent.
The section does not require that a child spend 24 or more hours mid week with a parent, although of course such an order may be, and is not infrequently, made. If the legislature intended substantial and significant time must include, as minimum, a 24 hour mid week period it would have said so clearly and unequivocally. Further, s 65DAA(4) provides, that the matters in s 65DAA(3) which define substantial and significant time “does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant”. Counsel for the father did not address s 65DAA(4) in her oral and written argument.
I am fortified in my view of the reading of s 65DAA(3) by reference to the Revised Explanatory Memorandum to the amending Act (“the EM”). Paragraph 197 of the EM is as follows:
Subsection 65DAA(3) makes it clear that substantial and significant time requires that the child spend both some time on weekends and holidays and some time on other days. It must also include time in daily routine and allow for participation in events that are significant to the child. This might include sporting events, birthdays or concerts. It would also include the child being able to be involved in events of significance to the parent such as family weddings or christenings, mother’s or father’s day, birthdays. (my emphasis)
Reference to authority is also of assistance. In Whisler & Whisler [2010] FamCAFC 18 Warnick J, exercising the appellate jurisdiction of the Court, had to address whether orders, which provided for children to live with the mother, and spend time with the father each alternate weekend, Friday after school until before school, for some hours each Wednesday, for half school holidays and on special occasions, constituted substantial and significant time.
At paragraph 30, 32 and 34 of his reasons, Warnick J said:
30.As a preliminary point, I examine the question of whether the orders that his Honour made provide for “substantial and significant time” for the father with the children. Ms Ben-Simon complained about the orders in terms that suggest they did not amount to substantial and significant time, but made no detailed “measurement” of the provisions against the terms of s 65DAA(3) of the Act.
…
32.As earlier seen, the orders for the father’s regular periodic time with the children meet the terms of paragraph (a) as they provide for both weekend, holiday and other days of contact.
…
34.In my view, these orders made are clearly for substantial and significant time between father and children.
I concur with his Honour’s conclusion.
It is also instructive to refer to the decision of the Full Court (Finn, Coleman and Collier JJ) in Eddington & Eddington (No 2) (2007) FLC 93-349. The facts in that case were that orders were made to fit around the father’s availability on a 56 days work roster. The time to be spent with the children on particular days varied from 2.5 hours to 2 days and nights. The effect of the trial Judge’s orders was that the father spent time with the children on mid week days, weekends and holidays, but the overall time which he had enjoyed under interim orders was reduced from 18 “overnight times” in each 56 day cycle to 8 overnight occasions with a gap of 15 days between the overnight visits. As a result of that reduction it was submitted the trial Judge erred because the 8 overnight occasions in the 56 day cycle were insufficient to be regarded as “substantial and significant”, even given the generous ambit of discretion the trial Judge was exercising. It was not, however, in controversy that the father spent time with the children on 15 “occasions” during the 56 day cycle. In summary the complaint was about “the amount of time”.
At paragraph 54 of their reasons, the Full Court accepted the orders made by the trial Judge fulfilled the requirements under s 65DAA(3). In the course of that determination their Honours’ said:
It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.
Later, at paragraph 66, the Full Court explained that there was a nexus between the substance and the significance of the time the children would spend with their father. Importantly, their Honours concluded that paragraph saying:
... Clearly, the amount of time which children spend with a parent potentially impacts upon the quality or significance of that time. In our view, the time which the children would spend with the appellant pursuant to the trial Judge’s orders, the duration of such periods and the frequency at which they would occur are likely to impact adversely upon the significance of the time which the children would spend with the appellant. There is thus a nexus between the substance and the significance of the time which the children would spend with the appellant. Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that the case turns on its own particular facts and circumstances, and the reality that the roster of the appellant in this case has particular impacts upon what may constitute substantial and significant time spent with the appellant.
I am satisfied that:
· his Honour’s orders fulfilled the statutory definition of “substantial and significant time”; and
· the findings made by the Federal Magistrate in the circumstances of the case before him supported the finding that the children would maintain a meaningful relationship with the father in the time regime he ordered, and that regime, in the light of the children’s views and the conflict between the parties, was in their best interests.
The orders as made meant the children spent three nights overnight with the father during school terms on a weekend enabling him to be involved in their day to day routine. I pause here to note that the legislation does not define “weekend”, that is, it does not define whether a weekend commences on Friday or Saturday. I also note that the Macquarie Dictionary defines “weekend” as follows:
the end of the working week, especially the period from Friday night or Saturday to Sunday evening…
As a result of his Honour’s orders the father does have involvement in the children’s daily routine, including getting them ready for school on Monday mornings, involvement with homework on Friday evening or on the weekend, and an opportunity to attend their school each Wednesday and alternate Friday afternoons and Monday mornings.
As I identified at the commencement of my discussion of this ground, the father’s counsel submitted that the effect of the orders was to disrupt the children’s routine because, instead of returning after school to the mother’s home, the children were to spend time with him, unsettling their usual homework and bedtime routine. On behalf of the father it was submitted that if the children remained overnight with him each Wednesday evening it would maintain the children’s stable routine.
I accept that this argument theoretically has merit. But it must be tested against the evidence before the Federal Magistrate, and his findings. His Honour had clear and unequivocal evidence that the elder child, who was aged 11 years, and whom the Family Consultant found to present as “an earnest, intelligent and serious girl”, did not have a good relationship with the father’s new partner. Although X was not specifically asked about mid week overnight time, she did express the view that she wished the existing conclusion for Wednesday evening time with the father to finish earlier than provided in the interim orders.
The father’s counsel submitted the orders made by the Federal Magistrate did not provide for much more than a 80:20 arrangement.
The submissions made to the parliamentary inquiry referred to in its report “Every Picture tells a Story” (a Report on the inquiry into child custody arrangements in the event of Family Separation December 2003), which led to the amending Act, demonstrate an anecdotal understanding of what the term 80:20 meant to lay persons (paragraphs 2.13 – 2.14). It is not a legal definition.
The EM in dealing with s 65DAA(2)-(4) at paragraph 199 states:
Section 65DAA(2)-(4) is intended to ensure that the courts consider arrangements that are much more than ‘one weekend a fortnight and half of the holidays’ or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared parental responsibility that this will generally involve ‘both’ parents spending both substantial and significant time with their children.
I accept that other judicial officers in considering and determining that an order substantial and significant time should be made may have decided that it was in the children’s best interests to spend overnight mid-week time with the father. But here, as I will more fully explain when dealing with the remaining grounds, no error in the exercise of the Federal Magistrate’s discretion has been established.
As the Full Court in Eddington (No 2) appropriately stressed each case turns on its own circumstances. In the unique circumstances of this case the time ordered fell within the definition of significant and substantial for the purposes of s 65DAA(3), and the orders were ones ultimately his Honour found, in the exercise of his undoubted broad discretion, to be in the best interests of these particular children.
Asserted denial of procedural fairness in respect of deliver and collection arrangements for the children
It is unnecessary that I discuss this ground in any detail. It was conceded by the mother’s counsel that the Federal Magistrate did not indicate to the father’s counsel that he was proposing to make an order (Order 8) that the father be responsible for the delivery and collection of the children when not otherwise delivered to or collected from school. Although the mother was cross-examined about delivery and collection and the existing arrangements which provided for shared delivery and collection when his Honour dealt with the issue of Christmas holiday arrangements and the following exchange occurred between the Federal Magistrate and the mother:
MS [VANCE]: Regarding actually picking up the children, they were living at [R, a southern Sydney suburb] when that order was made. They have now moved to [O], so that’s further out. I don’t always think - - -
HIS HONOUR: Yes. The orders provide for each of you to share the travel, though, don’t they?
MS [VANCE]: Yes, but we – as the children and I – did not make the decision to live out at [O]. I mean, it’s a long way. It’s a 40-minute each way.
HIS HONOUR: But you are saying he should do all the driving. Is that right?
MS [VANCE]: Well, at the moment, he initially – well, on the weekend when he comes to pick up the children or drop them off at a friend’s house, he usually does four – four actually, drives each way on one day. He doesn’t seem to have an issue with driving back and forth.
HIS HONOUR: All right. But you want him to do all the driving. That’s your application? Right. Good. Okay, yes. Anything else? (transcript, 16 December 2009, pp 9-10)
that was not her final position at the conclusion of the hearing. The mother’s minute of order sought (paragraph 6) clearly proposed a sharing of driving arrangements.
However, as the mother has agreed this order can be amended by consent, it is unnecessary I discuss it further.
Asserted denial of procedural fairness in taking into account academic publications without notice to the father
I have already set out the relevant portions of the Federal Magistrate’s reasons in which he referred to published articles on shared parenting.
The circumstances in which reference to research, without affording the parties an opportunity to put other material to the Court, was discussed by me in Allen v Green (2010) 42 FamLR 538 at paragraphs 46 to 61.
His Honour explained in his reasons that the material he cited was by way of “background” and not evidence before him on which he relied, but said it the material “assists in understanding the expert evidence provided to the Family Consultant”. He also said “one also lives in hope that parents might learn from it”.
The line between what is truly background material, and material which is relied on in determining proceedings may be a fine one. It is understandable that parties to proceedings may be at a loss to understand why material, about which they have had no prior knowledge, finds its way into a judgment, particularly when its inclusion is clearly directed to them. While I am satisfied in this case that his Honour did not use the material as evidence before him, and no appealable error is established, it may have been prudent to direct the parties’ lawyers to the material and/or to provide copies to the parties at the commencement of the hearing so that they could discuss it with their lawyers.
The benefits of such an approach are readily apparent. The parties have a proper opportunity to read and digest the research material, and/or to have the benefit of advice about it from their lawyer, an independent children’s lawyer if one has been appointed, or other professional such as a counsellor or psychologist. The material and advice may inform choices about appropriate orders to be sought. In this case I note, as often occurs, the mother’s proposals changed during the course of the hearings. The provision of the material at an early time in the proceedings also precludes any actual or apprehended lack of procedural fairness.
Asserted error in failing to take into account the first family report
Although this ground was not abandoned, it was, unsurprisingly, not strongly pressed.
The outline of case document prepared on behalf of the father did not seek to rely on the first family report.
The report which was before his Honour was a report dated 2 December 2009 prepared pursuant to an order of his Honour of 19 August 2009.
I was not referred to any part of the transcript before the Federal Magistrate where he was alerted to the fact that either party wish to rely on an earlier report. The father’s counsel on the first day of the hearing (5 May 2009) told the Federal Magistrate that she did not wish to cross-examine the first report writer, and both counsel acknowledged the report was an unusual one which appeared to have been directed to attempts by the reporter to settle the dispute between the parties. I infer both counsel thought the report was of little utility to the proceedings.
I did not have the benefit of the transcript of 12 October 2009 when the matter was next before the Court, or any details of the circumstances in which the second family report was ordered.
The second family report was the relevant report. Both parties’ counsel had the opportunity to cross-examine the report writer. The father’s counsel at no point in her submissions to the Federal Magistrate referred to the first family report. In these circumstances I am satisfied that there was no error by the Federal Magistrate in not referring to this report in his reasons for judgment.
Asserted factual errors (the de winter challenge)
This challenge was directed to asserted error by the Federal Magistrate in finding that the Family Consultant “only provides very limited support to overnight time on Wednesdays in the alternate week”. It was submitted that the Family Consultant had no “deep seated” objection to this time.
First, I observe that his Honour’s orders which provide for the father to have time with the children is for time each Wednesday, not each alternate Wednesday.
Second, the Family Consultant’s evidence was given against a background where she specifically said she had not spoken to the children about overnight time on Wednesday evenings, and in those circumstances that she disliked having to voice an opinion.
It must be remembered that his Honour was fully cognizant of the Family Consultant’s evidence on this point which he detailed in paragraph 35 to 40 of his reasons. But ultimately his Honour, as he was required to do, assessed and weighed all of the evidence, including the fact that the Family Consultant did provide “very limited support to overnight time in the alternate week” in reaching his decision. The Family Consultant’s evidence was important evidence, but it was not the sole determinant of the outcome (see Hall & Hall (1979) FLC 93-713).
I do not consider that the Federal Magistrate made a factual error which vitiated the exercise of his discretion in assessing and weighing the evidence of the Family Consultant. This ground is without merit.
Re-determination or remission
As I indicated at the commencement of these reasons, there was no dispute before me that there were a number errors in the orders and that Orders 3 to 8 as set out in the Notice of Appeal could be made by consent.
The orders proposed include a variation of order 8 in respect of delivery and collection arrangements. As appealable error is conceded in respect of that order, I propose to allow the appeal in part, and by consent to make Orders 3 to 8 in the Notice of Appeal.
Costs
Before me the father’s counsel conceded if the appeal failed that the father should pay the mother’s costs of and incidental to the appeal. That concession was made notwithstanding the error in the Federal Magistrate’s orders acknowledged by counsel for the mother at the commencement of the hearing before me.
The father has been unsuccessful in all of the grounds agitated before me. In these circumstances, and given the concession of his counsel, I propose to make an order that the father pay the mother’s costs of and incidental to the appeal.
I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland delivered on 20 December 2010.
Associate:
Date: 20 December 2010
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