WAINDER & WAINDER
[2011] FamCAFC 155
•22 July 2011
FAMILY COURT OF AUSTRALIA
| WAINDER & WAINDER | [2011] FamCAFC 155 |
| FAMILY LAW - APPEAL - equal shared parenting - distance of school child attends - capacity to implement - capacity to communicate - impact on child - whether the trial Judge erred at law in making orders that the child spend equal time with each parent - reasonable practicabilities. |
| Family Law Act 1975 (Cth) |
| Carver & Ricci [2010] FamCAFC 53 House v The King (1936) 55 CLR 499 MRR v GR (2010) 240 CLR 461 |
| APPELLANT: | Ms Wainder |
| RESPONDENT: | Mr Wainder |
| FILE NUMBER: | PAC | 616 | of | 2008 |
| APPEAL NUMBER: | EA | 5 | of | 2010 |
| DATE DELIVERED: | 22 July 2011 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Thackray and Ainslie-Wallace JJ |
| HEARING DATE: | 28 June 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 December 2009 |
| LOWER COURT MNC: | [2009] FamCA 1253 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Johnston |
| SOLICITOR FOR THE APPELLANT: | York Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Sampson and Ms DeVere |
| SOLICITOR FOR THE RESPONDENT: | Coleman & Greig |
Orders
The appeal is allowed.
The matter is remitted for re-hearing by a Judge of the Family Court of Australia other than the Honourable Justice Austin.
The appellant’s application to adduce further evidence on the appeal is dismissed.
There be no order for costs in relation to the appeal.
The Court grants to the appellant mother 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 the Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father 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 father in respect of the costs incurred by him in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of 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 party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment under the pseudonym Wainder & Wainder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 5 of 2010
File Number: PAC 616 of 2008
| Ms Wainder |
Appellant
And
| Mr Wainder |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Wainder (now N) (“the mother”) appeals against an order made by Austin J on 18 December 2009 that the child B (“the child”), who was born in October 2007, spend equal time from 1 January 2012 with both the mother and the father. The respondent father is Mr Wainder (“the father”) who seeks to support his Honour’s order.
The mother was born in February 1981 and was aged 28 at the date of the hearing before Austin J, the father was aged 30 having been born in February 1979.
The parties started to live together in January 2004, married in September 2005 and separated in about March 2007, before the child was born. She was a little over 2 years old when the proceedings were heard by Austin J in November 2009.
During the marriage the parties had lived in a suburb in Sydney’s outer west and after separation the mother and child continued to live in what had been the marital home. The father moved in with his parents near P also in Sydney’s western suburbs. He continues to live with his parents.
In about May 2009 the mother moved to live on Sydney’s upper north shore. At this time, she had formed a relationship with Mr N whom she later married.
The distance between the parties’ residences is significant. Neither was, or is, prepared to move closer to the other.
As we have noted, at the date of the hearing the child was a little over 2 years old and would not commence school until 2013 or perhaps 2014 at the latest.
Before Austin J both parties sought an order for equal shared parental responsibility. The father sought an order that the child spend equal time with him; the mother sought an order that the child live principally with her. Neither party sought an order specifying where the child would attend school. The father sought an order to the effect that one year before the child started school the parties were to agree on the school the child would attend.
Austin J ordered that the parents have equal shared parental responsibility for the child and made orders that provided for a gradual increase of time to be spent between her and the father to culminate on 1 January 2012 when equal time would be spent by the child with each of her parents.
Of the orders made by his Honour, it is only this order (Order 2.4) which is the subject of appeal. It is as follows:
2.4From 1 January 2012:
2.4.1Each alternate week from Friday 6.00 pm until the following Friday 6.00 pm, commencing on the second Friday after the conclusion of the last period of time spent under Order 2.3.1.
The appeal
As the argument developed before us, it became clear that the sole ground of challenge to Order 2.4 was that the trial Judge did not consider whether the order would be “reasonably practicable” when the child started school.
It was not argued that the order was not reasonably practicable until then. Nor was it argued that his Honour’s finding that the order was in the child’s best interest was not open to him.
Since the challenge to his Honour’s findings involves s 65DAA(1) and (5) of the Family Law Act 1975 (Cth) (“the Act”) we will set out those sub-sections in full (omitting notes):
Equal time
(1)Subject to subsection (6), 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.
…
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 trial Judge’s reasons
In the course of his careful and detailed judgment his Honour considered the matters in s 60CC(2) and (3) in order to determine what was in the child’s best interests. In considering those matters his Honour determined a number of issues to which s 65DAA(5) refers, although nowhere in his reasons did he expressly refer to s 65DAA(5).
His Honour determined at [152] that the presumption of equal shared parental responsibility should not be displaced. At [161] and following under the heading “Living Arrangements”, his Honour can be seen to have considered the requirements of s 65DAA(1) and (2), being whether an order for equal time or substantial and significant time was an appropriate order. He recognised that this was necessary because he proposed to make an order for equal shared parental responsibility.
His Honour found that there would be no deleterious effect on the child if the time she spent with her father was increased [175].
He determined at [181] that a regime by which the child spent substantial and significant time with the father leading to spending equal time with each parent was in her best interests.
At [182] and [183] his Honour noted:
182.Although the evidence is that the parties presently live in geographically distant parts of Sydney, and intend to continue doing so for the foreseeable future, that may not always be the case. Even if it is, both parties profess either part-time or flexible work arrangements, and each party has the assistance of members of their families of origin in attending to the child’s needs.
183.The parties will need to carefully consider the school at which the child will be enrolled in due course because of the distance between their present households, but that of itself is an insufficient reason at this stage to preclude an outcome of equal time.
At paragraph 190 his Honour said:
190.The regime of equal time will be reached in two years time. By then it will be 2012. The child will have attained four years of age and will likely attend a pre-school with regularity that year. The parties anticipate that the child will begin school in 2013.
It was within his Honour’s contemplation that the order for equal time would encompass the child’s commencement at pre-school and school.
Earlier in the context of his consideration of the s 60CC(3) matters, his Honour had observed as to the distance between the parties’ residences:
87.The father’s fears about the tyranny of distance have been realised. A complaint made by the mother in these proceedings is that the distance between the two households is too great for her and the child to maintain compliance with the existing interim parenting orders. Implicitly, the mother now concedes the validity of the father’s concerns expressed to both her and the Court when he opposed the mother’s relocation.
Further his Honour had said:
125. The mother’s decision to relocate her residence with the child to [the northern suburbs] has brought with it some practical difficulty and expense in the child spending time with the father. The difficulty and expense is not insurmountable, but it still makes arrangements inconvenient.
As to the parties’ capacity to implement an arrangement, his Honour noted at [128] and [129] that the difficulties in facilitating time with the father could be ameliorated by introducing overnight periods and by sharing the travelling and observed that the parties had suggested sharing the travelling. His Honour took into account that the father’s employer was prepared to afford sufficient flexibility to allow him to work at home to accommodate the father’s proposal that he have equal time with the child.
His Honour noted that each parent had the advantage of “back-up support” from a parent [134].
It was accepted that the communication between the parties was poor. At [155] and following his Honour had concluded that:
159.Notwithstanding their level of mutual distrust at this point, each party has petitioned the court to make an order allocating equal shared parental responsibility for the child to them …
Later at [178] when considering the child’s living arrangements, his Honour said:
178.For reasons already explained, I am not as pessimistic about the prospect of unmitigated parental conflict over the long term … There is room for cautious optimism that the parties’ relationship will improve once this litigation is behind them.
His Honour did not either expressly or inferentially consider the impact on the child of the distances necessary to be travelled to school (no matter where the school was located) in light of the parties’ residences and their expressed reluctance to move. Before us it was argued for the appellant mother that had his Honour done so, he would have concluded that the proposed order for equal shared time was not reasonably practicable because of the distance and the poor communication between the parties.
Discussion
Section 65DAA(1) requires (as does s 65DAA(2)) that at the point where a trial Judge is considering whether there is to be an order for equal time (or substantial and significant time) spent between a child and a parent, the judge must consider whether it is in the best interests of the child and reasonably practicable or “feasible” for the child to spend such time with the parent. (See MRR v GR (2010) 240 CLR 461 at 467 (paragraphs 13 and 15).)
In order to determine if such time is reasonably practicable or feasible, the judge must then consider the matters in s 65DAA(5). That some of the matters to be considered under this sub-section may have been the subject of findings made when considering s 60CC(2) and/or (3) (as his Honour did in this case) does not absolve a trial Judge from undertaking this step. (See the discussion by the Full Court in Carver & Ricci [2010] FamCAFC 53 at paragraphs 374 to 384.)
It may be implicit in his Honour’s order that the child spend equal time with her parents in 2012, that he was satisfied that that arrangement was reasonably practicable within the construct of s 65DAA(5). However the trial Judge’s comments at [183] appear to us to be an acknowledgement that the proposed order to come into force in 2012 may not be reasonably practicable if the parties were living in their present locations.
The order impugned is open ended and would, without further litigation, extend throughout the child’s school life. Where the court proposes to make orders stretching into the future, the consideration of whether a proposed order is reasonably practicable should focus on the date of enlivenment of the order. The trial Judge is required to make a prediction at the date of trial on the evidence then before him or her as to whether at the date on which the order takes effect, it will be practicable or “feasible”.
Although his Honour paid careful attention to the matters in s 60CC and thereby determined that the proposed order for equal time was in the child’s best interests, he did not proceed to determine whether, on the evidence available to him, the order for equal time would be reasonably practicable once the child started school, and in this respect, fell into error.
The appeal will thus succeed.
Application to adduce further evidence
The appellant mother sought to adduce further evidence concerning matters going to the parties’ relationship since the making of the orders. Given that the appeal is to succeed, it is unnecessary to consider that application, and it will be dismissed.
Disposition of the matter
It was common ground between the parties that if the appeal was successful, the matter of the future living arrangements for the child now that she is approaching school age must be remitted to a judge (other than the Austin J) for further hearing.
Costs
As is customary, we took submissions from both parties as to costs. In the event that the appeal was successful each party sought an order for a costs certificate. In all of the circumstances, we are of the view that there should be no order as to costs and it is appropriate to order costs certificates for both parties in relation to the appeal and the new trial.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Thackray and Ainslie-Wallace JJ) delivered on 22 July 2011._____
Associate:
Date: 22 July 2011
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