Vismay & Shaw
[2014] FamCAFC 124
FAMILY COURT OF AUSTRALIA
| VISMAY & SHAW | [2014] FamCAFC 124 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – with whom a child spends time – where the effect of the orders was the father spent less time with the children – whether spending less time with the children was an error which was “plainly wrong” – Whether the finding was open to the magistrate – where there was nothing “plainly wrong” about the finding – where the finding was open to the Magistrate. FAMILY LAW – APPEAL – CHILDREN – Child related proceedings – Evidence – where a trial judge is not required to advert to every piece of evidence or submission – where the report writer’s evidence was that the children were sensitive – where there is no error. FAMILY LAW – APPEAL – Delay and/or prejudice – Whether delay in delivery of judgment has made the decision unsafe or contributed to error – where the delay in delivery of judgment has not made the decision unsafe or contributed to error. FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – where the appellant is ordered to pay the respondent’s costs. |
| Family Law Act 1975 (Cth) |
| Monie v the Commonwealth (2005) 63 NSWLR 729 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) (2005) 228 CLR 470 Rollings & Rollings (2009) 230 FLR 396 |
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
U v U (2002) 211 CLR 238
| APPELLANT: | Mr Vismay |
| RESPONDENT: | Ms Shaw |
| FILE NUMBER: | PTW | 1492 | of | 2011 |
| APPEAL NUMBER: | WA | 25 | of | 2013 |
| DATE DELIVERED: | 16 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 1 April 2014 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 23 August 2013 |
| LOWER COURT MNC: | [2013] FCWAM 88 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Jones |
| SOLICITOR FOR THE APPELLANT: | O'Sullivan Davies |
| COUNSEL FOR THE RESPONDENT: | Ms Anderson |
| SOLICITOR FOR THE RESPONDENT: | Paterson & Dowding |
Orders
The appeal against the orders of Magistrate Monaghan be dismissed.
The appellant father pay the respondent mother’s costs of the appeal, such costs to be agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vismay & Shaw has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 25 of 2013
File Number: PTW 1492 of 2011
| Mr Vismay |
Appellant
and
| Ms Shaw |
Respondent
REASONS FOR JUDGMENT
The parties are parents to twins born in November 2009. Both the father and mother are health professionals. The father appeals against parenting orders made by Family Law Magistrate Monaghan on 26 September 2013.
The matter came before Magistrate Monaghan on 12 and 13 September 2012. His Honour delivered his reasons on 23 August 2013 and, as we have indicated, orders were made on 26 September 2013.
The parties agreed that they should have equal shared parental responsibility for the children. The father contended that, over time, the children should spend increasing time with him until they were effectively spending approximately equal time with each parent. The mother agreed that the children should spend increasing amounts of time with the father. The parents were unable to agree on how that was to be effected.
Thus, the issues for determination before the Magistrate were narrow. At the time of the judgment, in accordance with orders made by consent during the hearing, the children were living with the mother and spending time with the father from Wednesday at 3.30 pm until Thursday at 4 pm and from 5 pm on Saturday until 5 pm on Sunday each week. Provision was also made for the children to spend three consecutive nights with the father on four occasions a year.
The Magistrate set out at [9]-[24] the parties’ competing proposals for the time that the children should spend with the father and how it would be increased over time. Relevantly to this appeal, the mother sought orders that once the children commenced full time pre-primary school (in early 2015) they spend time with the father from after school each Wednesday to the commencement of school on Thursday; each alternate weekend from 5 pm Saturday until the start of school on Monday and in the intervening weekend from midday Sunday until the start of school on Monday. The mother also proposed periods of five consecutive nights during school holidays commencing in 2015 and that from when the children turned six, they spend increased time in the school holidays with the father.
The father sought orders that from May 2013 the children spend time with him from 8.30 am each Wednesday until Friday morning and three periods of four consecutive days in the year. Upon the children turning four, the father sought to spend time with them each week from 8.30 am Wednesday to Friday morning; each alternate weekend from 8.30 am Sunday until 8.30 am Monday and three periods of five consecutive days in the year. When the children turned five, he sought that they spend time with him each week from 8.30 am Wednesday until Friday morning; each alternate weekend from 8.30 am Saturday until 8.30 am Monday and three periods of six consecutive days in the year. When they turned six, the father sought that the children spend time with him in one week from 8.30 am on Wednesday until 8.30 am the following Monday; in the second week from 8.30 am on Wednesday to 8.30 am on Friday and for half of all school holidays.
Ultimately the Magistrate ordered that the children spend time with the father as follows:
·
Until the commencement of the 2014 academic year, each Wednesday from 3.30 pm until Thursday at 4 pm; each weekend from 5 pm Saturday until
5 pm Sunday and three consecutive nights on two occasions.
· From the commencement of the 2014 academic year, during school terms, each alternate weekend from Saturday 5 pm until Monday 9 am and each Wednesday from 3.30 pm until Thursday at 4 pm.
· From the commencement of the 2015 academic year, during school terms, each alternate weekend from Saturday 5 pm until the end of school on Monday and each alternate Wednesday from the end of school to the end of school on Friday.
· From the commencement of the 2016 academic year, during school terms, each alternate weekend from the end of school on Friday to the end of school on Monday and each alternate Wednesday from the end of school to the end of school on Friday.
The Magistrate’s Reasons
The Magistrate had the benefit of a report from an expert, Dr W who had interviewed the parties and observed the parties with the children.
There was some contention between the parties over the mother’s expressed concern that the children were unsettled by frequent moves between the parties. His Honour, said:
73. Dr [W] reported that below the age of six and particularly below the age of three, children change rapidly in the extent to which they can tolerate change in their own circumstances.
74. At paragraphs 65 and 66 of his report he said:
“65. To some degree any change is going to impact the children as even a positive change results in a change of routine and structure. As stated earlier in this particular case the father appears to be less structured than the mother and the children are the sort of children who are likely to take a little longer rather than shorter to adjust to changes consequently changes need to be in bit size pieces.
66. The mother describes a fairly typical set of reactions of the children who have had visits longer than they cope. The father does not see this behaviour. However, it is with the primary attachment figure that the behaviours will be most evident, so she will see more problematic behaviours.”
His Honour continued at [75] and noted that Dr W described the children as “fairly sensitive” and further, that Dr W thought the regime proposed by the father appeared to be “a very rapid change”.
The Magistrate said:
76. Dr [W] considered that an appropriate manner to proceed was to determine what arrangement was considered to be in the children’s best interests from say the commencement of primary school. And “work backwards” from that point. His evidence was that it was the increase in nights away from [the mother] that was the most significant for the children, not days.
77. The children are still young. It is necessary to formulate orders with respect to their time with their parents which they are able to cope with developmentally. I consider it would be in their interests to introduce changes gradually without significant alterations to their living arrangements. Predictability in their living arrangements is important and the children will find it easier to adjust to changes which are gradually introduced.
Turning to the capacity of the parties to communicate with each other, the Magistrate said, quoting Dr W:
88. Dr [W] refers to the communication issue between the parties at paragraph 68 of his report:
“68. In considering the facts of this case there is really nothing to indicate that the parents should not be having a shared care arrangement by the time the children are school age. Because there are fundamental differences in the parenting style and I would suspect the parents will be unable to communicate particular well (notwithstanding, I am predicting an improvement in communication) I would therefore recommend that it should be an unequal shared basis care arrangement…in the vicinity of four or five nights a fortnight and then half of the holidays would be likely to be the most optimal arrangement where the children have a sense of home. The mother is likely to be more disciplined in structure so it makes sense for her to have the largest share of time. The way the time is structured will depend partly on the parties work days and so forth therefore arrangements such as two days one week / three days the next or a one day / four day block are the sorts of arrangements that are likely to be beneficial.”
His Honour concluded:
117. Given my findings as to the attachment of the children and the communication difficulties between [the father] and [the mother], I consider that the children spending time with [the father] for five nights per fortnight during school terms from the commencement of primary school is in their best interests. This will provide both parents with the opportunity to be closely involved in all aspects of the children’s lives, and vice versa. This time should be in block periods, minimising changes of residence for the children, whilst minimising the time they are away from each parent. I consider this best achieved by the children spending three nights with [the father] in one week and two nights with him in the next week in an alternating fortnightly cycle. To ensure the children have significant time with each parent when not at kindergarten/school, each parent should have the children on alternate weekends.
118. In transitioning from the current arrangements to that regime, I am mindful of Dr [W’s] evidence that these children are “fairly sensitive” and that transition should take place cautiously. The transition not only needs to effect an increase in the time the children spend with [the father], but also a structural change from the current two single nights per week to block periods per fortnight.
119. I consider it in the children’s best interests for a two night stay with [the father] to be introduced with effect from next year, the year they commence kindergarten. This will introduce alternate weekends with [the father], whilst maintaining the Wednesday overnight. Whilst I am cognisant that this does not increase the time the children spend with [the father], it does introduce periods of being regularly with him for two nights, away from [the mother].
120. I consider the next “staging up” should occur when the children commence pre-primary school, at the commencement of 2015, and that the mid-week overnight should extend by one night. This will have the children with [the father] for two consecutive nights per week.
121. Finally, upon commencing primary school in 2016, the alternate weekends should be extended to encompass three nights with [the father], from Friday to Monday.
Appeal
Ground 1 - delay in delivery of judgment
We propose first to deal with Ground 1 which arises out of the very long delay in delivery of judgment. The ground was expressed in these terms:
Because of the delay in the provision of his judgment the reasons of the learned Magistrate are unsafe generally but particularly so in relation to the issue of when the children live with the husband.
Long delay in the delivery of reasons for judgment, especially in parenting cases, is regrettable. The authorities concerning the effect of delay in the provision of reasons were extensively discussed in Rollings & Rollings (2009) 230 FLR 396. Similarly, Gleeson CJ opined, in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470:
5.Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles. There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself. Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case. In adversarial litigation, for example, neither party may be at fault, and it may be unnecessary and unjust to visit the successful party with all the consequences that flow from having to start again. Remedies available where delay has caused problems may be discretionary. (In the present case, counsel for the first respondent disclaimed any reliance upon a discretionary argument.) In some cases, mandamus may be an available remedy for dilatory behaviour, and failure to seek mandamus could constitute a discretionary reason to deny later relief.
(Emphasis added) (Footnotes omitted)
As Giles JA said in Monie v the Commonwealth (2005) 63 NSWLR 729 at [3]:
… extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge’s findings or whether the trial judge’s reasons are adequate.
As will become apparent, although the delivery of the judgment was considerably delayed, we are unpersuaded that “delay in giving judgment has contributed to error, or made [the] decision unsafe”.
Other grounds of appeal
The balance of the grounds of appeal concern the orders made by the Magistrate which provided for the children to spend time with the father. It is useful to set out the father’s position as to the time the children should spend with him before his Honour.
During final submissions, the father, through his counsel, handed to the trial judge a document containing amended proposed orders sought on behalf of the father. The amendment was said to have been brought about because of the evidence of Dr W.
Counsel for the father said to his Honour that the orders contemplated that when the children turn six; “…what he’s proposing consistent with his express position, was a … five-five, two division of each fortnight and for half of all the school holidays. So that remains the same…” (Transcript 13 September 2012 page 182 line 40)
Relevant to the appeal, the following orders were sought by the father:
c) Upon the children turning 4 years old:
(i) each week from 8.30 am Wednesday to Friday morning with the father to drop off the children to Unicare or kindergarten;
(ii)each alternate weekend from 8.30 am Sunday to 8.30 am Monday with father to drop off to kindergarten
We observe that the children turned four in November 2013.
Further, the orders sought:
d) Upon the children turning 5 years old:
(i)Each week from 8.30 am Monday to Friday morning with the father to drop off the children to school;
(ii)Each alternate weekend from 8.30 am Saturday to 8.30am Monday or school.
Counsel for the mother addressed his Honour on each of the father’s amended proposals and noted the mother’s objection to some of the orders sought by the father. Coming to paragraph (c), she said:
WEBB, MS: Then (c), upon the children turning four, this one the wife could live with. This is one where it is each week from 8.30 am Wednesday to Friday morning and then each alternate weekend from 8.30 am on Sunday to 8.30 am Monday. This gives the children a couple of nights back in their home with their mother before they have another overnight period with the father.
(Transcript 13 September 2012 page 188 line 18)
At the conclusion of the hearing his Honour reserved his decision. The matter returned before him on 23 August 2013, it seems in response to an affidavit filed on behalf of the father. In any event, his Honour provided his reasons and draft proposed orders to the parties and agreed to receive submissions on the draft orders.
On 19 September 2013 the matter returned to his Honour. Counsel for the father sought clarification of the Magistrate’s orders that counsel described as the father’s time with the children would “max out at five nights out of 14”. (Transcript 19 September 2013 page 3 line 11)
His Honour said:
It’s the staging up from the 2013/2014 one extra night. And my clear judgment was that I was not prepared to make an order for the children to spend equal time between their parents at six years of age.
(Transcript 19 September 2013 page 3 line 31)
Counsel for the father then said:
RODDA, MR: …it’s obviously not up for debate, but now we know that the intention is that it maxes out at five nights out of 14, what he proposes is from 2015, not 2016, that we go to an arrangement whereby the children would be with him every Thursday night, from after school or kinder, through to the following morning. And then, in the alternate weekend, from Thursday night, again through to Monday morning. So that’s from the beginning of 2015, not 2016.
…
RODDA, MR: And Thursday through to Monday morning in the following week. So that’s a total of five nights out of 14. And at the moment, he has four nights out of 14, and he tells me that he has been having that for a year.
HIS HONOUR: That’s true, but they are single nights, are they not?
RODDA, MR: Yes.
HIS HONOUR: And that was the issue. There were two issues, I think, that I said needed to look at. There is not only the staging up in terms of time
…
HIS HONOUR: And obviously the result of my determination was such that I couldn’t stage up in terms of nights from now until 2016, but the staging up is not only the amount of time that is spent, but the nature in which that time is spent.
(Transcript 19 September 2013 page 5 line 10 to line 48)
Counsel for the father handed a document to his Honour said to contain further orders sought by the father. Counsel then addressed his Honour on it and in particular on the increase in time to five nights per fortnight to commence, according to his Honour’s draft orders, at the beginning of the 2016 academic year and said:
RODDA, MR: So what we say is that if you – that ticks the boxes of being a gradual increase. It’s also consistent with what Dr [W] has said in paragraph 68 of his report, where he says two things: (1) he says it doesn’t have to be a three/two, it can be a four/one, and he also says that the appropriate time to be doing this is when the children are at school age, which by my calculations would be at the beginning of 2015.
So in terms of nights, if the 2016 arrangements in 8(d)(i) and (ii) were brought forward to the beginning of 2015, that would be when my client would be going from four to five, and he would have had two nights of four nights per fortnight. So it’s not like there has only been a short period of time where it has been four nights.
(Transcript 19 September 2013 page 9 line 48 to page 10 line 12)
His Honour told counsel for the father that his position was; “very clear, I think, in the judgment that it should be five nights commencing from 2016, staged up until then”. (Transcript 19 September 2013 page 10 line 28)
His Honour reminded counsel for the father that he would not make orders that were not consistent with his reasons, to which counsel said; “And it’s a matter for your Honour as to when that staging up occurs”. (Transcript 19 September 2013 page 11 line 1)
Counsel for the wife indicated that the wife was content with the terms of his Honour’s draft orders.
His Honour said that he would need to re-read the judgment and; “see what I said in there, because I didn’t re-read the whole thing before I came into court today about whether I actually did turn my mind to whether it should end up three/two or four/one. I don’t know.” (Transcript 19 September 2013 page 11 line 47)
Counsel for the father then turned to paragraph 4(b)(ii) of his Honour’s draft orders which was:
(b) upon the commencement of the 2014 academic year:
(i) each week from 3.30pm Wednesday to 4.00pm Thursday;
(ii)each alternate weekend from 5.00pm Saturday to 9am Monday; and
(iii) for four consecutive nights on four occasions each year, with the husband to give the wife no less than 28 days notice before each occasion with at least 30 days in between each occasion.
Counsel submitted:
RODDA, MR: Your Honour there is proposing that my client’s time be from 5 pm Saturday to 9 am Monday. We would like that 5 pm Saturday to be 9 am Saturday. The rationale behind that, sir, is that if you add up, it means that my client would actually have a reduction in time compared to what he has at the moment, because over---
…
RODDA, MR: And that’s so that – at the moment he’s getting 96 hours a fortnight, 38 hours a week. With the orders that your Honour was contemplating in paragraph 4(b)(ii), he would have actually ended up with less time. So that keeps it more consistent. I think it actually keeps it at 96 hours over a fortnight. Because there will be two lots of 48 – sorry 48 every alternate weekend, and then 24 in (b)(i).
(Transcript 19 September 2013 page 17 line 30 and page 18 line 10)
The matter returned to his Honour’s list on 26 September 2013. His Honour said:
HIS HONOUR: You will now see that I have made some changes. The changes that I have made relate to a mistake that I made in respect of paragraph 4. I determined that the three two was in the best interests of the children and not the four one, although I am cognisant that that will have the effect of essentially, I think, the children being with the father for five days in one week and then I think a week – there will be a week – it won’t – the children won’t be with the father.
(Transcript 26 September 2013 page 2 line 27)
His Honour went on to correct what was an oversight in relation to school holidays and indicated that to that effect, the draft orders were changed.
Somewhat doggedly, counsel for the father returned to the issue of when the transition from four nights to five nights per fortnight would commence and took his Honour to paragraph 12(a)(i) to (iii) of his Honour’s reasons for judgment and said:
RODDA, MR: …where your Honour sets out what the mother’s proposals were there, and she was supposing there – I add that up to be going to a five night arrangement from the beginning of 2015. My client has also brought to my attention that in the transcript, which we only received on the morning of court last time.
So we have only had an opportunity to read it post – read it properly post 19 September, that Ms Webb, who appeared on behalf of the mother at the trial in closing stated that the mother’s position was that from the beginning of 2014, the mother was agreeable to moving to what amounted to a five nights out of 14 arrangement. So my client’s proposal was, in terms of the volume of nights, the same as what is in (12)(a). And if your Honour is proposing – if it intends to make some orders that will mean that doesn’t kick in until the 16th.
HIS HONOUR: That’s right.
RODDA, MR: And I have explained to my client that the court is not bound by the proposals of the parties, but I just wanted to make sure that your Honour was aware that they were the proposals put forward by the mother.
HIS HONOUR: Yes.
RODDA, MR: And the outcome will be less – to see my client having less time with the children than what the mother was proposing herself.
(Transcript 26 September 2013 page 4 line 42 to page 5 line 20)
Counsel then took his Honour to the part in the transcript of the submissions where counsel for the mother referred to the father’s amended minutes and in relation to paragraph (c) of that document (which we have extracted above) said that the mother could “live with” that proposed order.
His Honour said to counsel for the father:
HIS HONOUR: I think it’s a matter you’re going to have to take to another place.
….
HIS HONOUR: It’s or negotiate. But quite clearly where I - the approach that I took was to determine, as Dr [W] - and as I said in my judgment, was to determine what I thought should be the stable arrangements for the children at a particular point, work backwards from there, with the gradations, bearing in mind the evidence in respects of their sensitivity.
(Transcript 26 September 2013 page 5 line 36 to line 47)
His Honour then proceeded to make the orders as foreshadowed save for the amendments to which his Honour earlier referred.
Ground 2
The learned Magistrate fell into appellable error by effectively ordering that the children should spend less overall time with the husband than they presently do commencing from the 2014 academic year.
At the date of judgment, pursuant to orders made in September 2012, the father was seeing the children from 3.30 pm Wednesday until 4 pm Thursday and from 5 pm on Saturday until 5 pm on Sunday each week. The orders made by the Magistrate on 26 September 2013 provided for this to continue until the commencement of the 2014 academic year, at which point the arrangements were to change to each alternate weekend from Saturday 5 pm until Monday 9 am and each Wednesday from 3.30 pm until Thursday at 4 pm. The father argued that the effect of the orders was to reduce his time with the children by eight hours a week, and therefore submitted that the visits on Saturday should have been ordered to commence at 9 am rather than 5 pm.
Counsel for the father agreed that while the effect of the Magistrate’s orders was to refuse the father’s request that time on the weekend start at 9 am, they increased the time the father spent with the children by an additional overnight stay each fortnight.
The thrust of the ground as argued was that the Magistrate did not provide reasons why he chose not to commence the time between the children and the father at 9 am as sought by the father.
It is well accepted that a judge is not required to advert to every piece of evidence or every submission made in the course of the reasons per Soulemezis
v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; U v U (2002) 211 CLR 238 at [80], per Gummow and Callinan JJ . The purpose of giving reasons for decision is to enable the parties to understand how the orders and decision were arrived at.In this case, the Magistrate carefully and in some detail, set out the matters relevant to the best interests of these children, including extracting parts of the opinion of the expert, Dr W. Further, at [77], the Magistrate took into account the age of the children and the need to make orders that would allow them to cope with change.
The determination of what time the children would spend with the father at various times required a balancing of many factors, some of which we have indicated here. It is not, nor could it ever be a matter of mathematics. That was the effect of the submission in this regard, which effectively ignored the increase in the overnight time that the children were to spend with the father.
The resolution of this and other issues was one for the exercise of the Magistrate’s discretion. Nothing was put that demonstrated that it was not a finding open to him or that it was “plainly wrong”.
This ground is not made out.
Ground 3
In determining that the children should only live with the husband 5 nights per fortnight from the commencement of the 2016 academic year the learned Magistrate fell into appellable error by failing to consider:
(a) the submission made on behalf of the wife that a 5 night per fortnight arrangement time should commence by November 2013; and
(b)the recommendation of Dr [W] that it should commence by mid-2013.
The first part of the ground depends, it seems, on a misconception. It is important to note that the mother did not submit that the five nights per fortnight arrangement should commence by November 2013. When faced with the father’s amended minute of orders, the mother’s counsel said that the mother “could live with” the proposal that when the children turned four (in November 2013) they would spend time with the father from 8.30 am Wednesday to Friday morning and from 8.30 am Sunday to 8.30 am Monday morning each alternate weekend. Further, the comment must be seen in the context in which it appears, namely the father’s previous proposal would have the children moving between the parties on alternate nights, hence the comment of the mother’s counsel that it would give the children “ a couple of nights back in their home” before having another overnight period with the father.
The mother’s position before the Magistrate was that the four nights each fortnight should commence from 2015.
It could not be fairly argued in light of the mother’s proposed orders and the way in which the proceedings were conducted, that the comment of the mother’s counsel would have been understood by the Magistrate as being a ringing endorsement by the mother of the father’s proposals.
A reading of the Magistrate’s reasons as a whole show that he was alive to Dr W’s evidence both as to how the children’s time with the father would increase and the timing or “staging” of those changes.
In a letter of 21 January 2012, Dr Watts said:
4. As stated in the original report, 2 overnight visits will be better for the children as separate nights rather than paired together. To pair the nights, the age should be substantially older than for two single overnights.
5. If the father is not working every second weekend, then I would think that the steps would be to introduce a second overnight on a different night, then gradually build the block on the alternate weekend (around 6 months later). Therefore in 18 months time it would be one week night each week, and 1 night on a weekend in week one, and then introducing two nights in weekend two. Around 12 months later I would add a third night to the block and remove the night of the first weekend (this would then be a 5 night fortnightly cycle).
On the basis of this letter, it was submitted on the appeal for the father that “the father should be having 5 nights per fortnight by mid 2013 and by mid 2014 there would still be a 5 night fortnightly cycle but broken up into a 3 night block”. (Submissions page 5 paragraph 35)
Counsel for the father cross-examined Dr W on the parties’ proposals.
Dr W said:
But what I would be wanting to see is that with three year olds, two nights one weekend, one night another weekend and a couple of nights during the week is quite appropriate. But by the time they get to five they’re going to – it’s very choppy and I would be wanting to look at consolidating the weekend into a longer block with dad.
(Transcript 13 September 2012 page 151 line 36)
Counsel for the mother asked Dr W questions about this supplementary report of 21 January 2012 in which he recommended a second overnight visit to be implemented when the children turned three. Dr W referred to literature concerning the pace at which changes are implemented and said:
So again, that’s what I’m stating there. I make no apologies for – I tend to err on the side of conservative in terms of recommendations, because if you get attachment – if you’re on the side of attachment, the downside is one of the parents misses out for awhile, but if you get it wrong, it damages a child’s ability to form a secure sense of the world, which can affect personality, it can affect mental health, it can affect relationships. So I err towards the literature where we know the ground is fairly safe…
(Transcript 13 September 2012 page 169 line 3)
His Honour’s reasons show a keen consideration of Dr W’s evidence, especially Dr W’s opinion that the children here were “fairly sensitive”. His Honour recorded that evidence at [118] and said in reliance on it that “…that transition should take place cautiously”. During submissions on the form of the orders his Honour said to the father’s counsel:
But quite clearly where I – the approach that I took was to determine, as Dr [W] – and as I said in my judgment was to determine what I thought should be the stable arrangements for the children at a particular point, work backwards from there, with the gradations bearing in mind the evidence in respects of their sensitivity.
(Transcript 26 September 2013 page 5 line 41)
Further his Honour said that his consideration of the “staging up” was “…not only the amount of time that is spent, but the nature in which that time is spent”. (Transcript 19 September 2013 page 5 line 46)
The orders of the Magistrate were made in the exercise of his discretion on a consideration of all of the evidence. As counsel for the father said to his Honour on a number of occasions, the orders to be made and the configuration of the time that the children spent with the father were matters for his Honour and so it was.
His Honour’s findings were well open to him on the evidence and no error has been demonstrated.
This ground is not made out.
Ground 4
The learned Magistrate fell into appellable error by failing to properly consider:
(a)the husband’s submission and preference that the 5 nights per fortnight comprise 1 night in week one and 4 nights in week two which would enable him to take the children weekly to an extra-curricular activity;
(b)the recommendation of Dr [W] who expressed an equal preference for 2 nights in week one and 3 nights in week two and 1 night in week one and 4 nights in week two.
The Magistrate ordered the five nights occur as to three nights in one week and two nights in the next. The ground, as argued, was that his Honour did not give reasons why he ordered that configuration of nights.
At [88] the Magistrate noted Dr W’s report which said:
… In my opinion an unequal care arrangement the vicinity of four or five nights a fortnight and then half of the holidays would be likely to be the most optimal arrangement where the children have a sense of home …The way the time is structured will depend partly on the parties work days and so forth therefore arrangements such as two days in one week / three days the next or a one day / four day block are the sorts of arrangements that are likely to be beneficial.
Counsel for the father argued that in coming to his decision, the Magistrate failed to take into account a letter written by Dr W in January 2012 in which he considered that by the time the children start school, they should spend time with the father one night in one week and a block of four nights in the second. He continued in that letter to say: “In the alternative, the parents may find that a 2 night and 3 night cycle works best from around the time the children are ready for school.”
The Magistrate did not specifically refer to the letter, although, at least so far as it concerns the configuration of the five night period each fortnight, Dr W’s opinion in the letter is the same as that extracted by the Magistrate at [88].
Indeed, when the matter was before the court in September 2013 and counsel for the father made submissions on the proposed orders he referred to his Honour’s determination that from the beginning of the 2016 academic year the children would spend five nights per fortnight with the father and referred to Dr W’s opinion summarising it as; “it doesn’t have to be a three/two, it can be a four/one”. There was no submission as to the father’s preference for a four/one arrangement, rather the submission concerned when this arrangement would start. (Transcript 19 September 2013 page 9 line 1)
Although the configuration of the nights that the children spend with the father in a fortnight was not as the father preferred, we observe that nothing was put to the Magistrate in submissions to indicate a reason for or a need why the nights should be configured in the way the father sought.
However, we repeat, this determination was one of the exercise of the Magistrate’s discretion. It was not argued that it was erroneous in the appellate sense, it was contended it was wrong because it was not what the father wanted.
No error has been demonstrated.
It follows that the appeal will fail.
Application in an appeal
The father, by application filed on 4 March 2014 sought leave to adduce further evidence on the appeal.
At the commencement of the appeal hearing, the father’s counsel indicated that the application would not be pressed and it was dismissed.
Costs
We took submissions from the parties on the question of costs of the appeal. The mother sought costs against the father if the appeal failed, on the basis on his lack of success. It was not suggested that the father was not in a position to meet any order for costs. We will order the father to pay the mother’s costs of the appeal.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Murphy JJ) delivered on 16 July 2014.
Associate:
Date: 16 July 2014
6
5
0