Walsingham & Walsingham
[2009] FamCAFC 50
•31 March 2009
FAMILY COURT OF AUSTRALIA
| WALSINGHAM & WALSINGHAM | [2009] FamCAFC 50 |
| FAMILY LAW – APPEAL - From a decision of a Federal Magistrate - Children’s - Application to adduce further evidence - Application dismissed - Whether the Federal Magistrate made appealable factual errors - Whether Federal Magistrate erred in presuming that the applicant accepted a change in the children’s residence - Whether the Federal Magistrate properly considered the applicant’s contravention application - Whether the Federal Magistrate properly applied the relevant provisions of Part VII of the Family Law Act 1975 as required - Appeal allowed |
| Family Law Act 1975 (Cth) |
| Abdo & Abdo (1989) FLC 92-013 CDJ v VAJ (1998) 197 CLR 172 De Winter and De Winter (1979) FLC 90-605 |
| APPELLANT: | Mr Walsingham |
| RESPONDENT: | Ms Walsingham |
| FILE NUMBER: | DGC | 2412 | of | 2007 |
| APPEAL NUMBER: | SOA | 8 | of | 2008 |
| DATE DELIVERED: | 31 March 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Mushin J |
| HEARING DATE: | 8 August 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 February 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 307 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | N/A |
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
That the appeal by the father filed on 14 March 2008, as amended on 17 April 2008, against the orders of Federal Magistrate Phipps made on 18 February 2008 be allowed.
That the father’s Contravention Application filed on 29 January 2008 together with his Application in a Case filed on 29 January 2008 be remitted to the Federal Magistrates Court for rehearing by a Federal Magistrate other than Federal Magistrate Phipps.
That liberty to apply with respect to costs be reserved to both parties.
IT IS NOTED that publication of this judgment under the pseudonym Walsingham & Walsingham 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 MELBOURNE |
File Number: DGC 2412 of 2007
Appeal Number: SOA 8 of 2008
| Mr Walsingham |
Appellant
And
| Ms Walsingham |
Respondent
REASONS FOR JUDGMENT
Introduction
On 18 February 2008 Phipps FM delivered reasons for judgment (“the reasons”) and made orders (“the orders”) varying parenting orders with respect to the two children of the parties. This variation was the result of the mother’s move with the children from one part of Melbourne to another and the children’s subsequent enrolment in a new school, allegedly in breach of previous Court orders. His Honour accepted that this variation was in the best interests of the children. The father’s time with the children was reduced as a consequence.
Pursuant to a direction by the Chief Justice pursuant to s94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), I was delegated to hear this appeal.
Background Facts
The following facts are uncontroversial. The parties were married for nearly ten years. At the time of the appeal before me, the father was aged 43 years and the mother was aged 44 years. The parties separated in or about mid 2003. There are two children of the marriage: the child A born in June 1996 who is 12 years of age, and the child B born in April 2000, who is 8 years of age.
The parties have been litigating since January 2004. On 21 August 2006 the matter came before me for a defended hearing. The father was represented by counsel and the mother appeared in person. To the extent that they are presently relevant, the orders (“the August 2006 orders”) provided:
by consent, that the parties equally shared parental responsibility for the long-term care, welfare and development of the children;
that the children live with the father from the conclusion of school on Friday until the commencement of school on the following Tuesday in each alternate week and otherwise live with the mother;
partly by consent and partly by order of the Court, the children spend time for significant parts of each school holiday with each parent; and
of greatest importance for present purposes by consent --
7. That the children or either of them remain at [S School], or some other primary school as the parties agree, until the completion of their primary education, and both parties be responsible for all decision making with respect to the secondary and further education of the children or either of them.
On 8 November 2006 some amendments were made to the August 2006 Orders, none of which is relevant for present purposes.
In or around January 2008, the mother purchased a property northwest of Melbourne city and moved there with the children. She consequently removed the children from S School and enrolled them in K School. She conceded that she did so without seeking the father’s agreement and that this was in breach of the August 2006 orders.
On 29 January 2008, the father filed a Contravention Application relating to the mother removing the children from S School. The father simultaneously filed an Application in a Case seeking:
1.That paragraph 7 of the Final [sic] orders made by the honorable [sic] Justice Mushin [the August 2006 Orders] is enforced.
2.That the children live with the father until the Mother is in a position to also make sure the girls go to [S School, southeast of Melbourne city].
3.The Mother be restrained from changing the school attended by the children without the fathers [sic] consent.
4.The Mother to relocate (if necessary) so that the children can attend [S School, southeast of Melbourne city].
5.That the matter be heard urgently due to the Mother taken [sic] the children to the other side of [Melbourne city].
On 5 February 2008, Federal Magistrate Phipps appointed an Independent Children’s Lawyer (“ICL”), suspended those parts of the August orders which provided for the children to spend a specified weekend time with the father and, in particular, that they not be removed from K School.
On 18 February 2008, the mother filed an affidavit seeking a “review” of the parenting orders as they needed to be “updated” as “circumstance has changed”. On the same day Phipps FM heard two of the father’s applications in addition to an application regarding the child B’s christening. Both parties were self-represented. The ICL was represented by Counsel. His Honour discharged all of the August 2006 orders which provided for the father to spend time with the children and also discharged the order requiring the children to remain at the specified school. In their place, his Honour ordered that the children spend time with the father from the conclusion of school on Friday until Sunday evening of each alternate weekend with certain extensions in the event of a public holiday or Melbourne Cup Day:
(2)THAT paragraphs 2.1 to 2.12 & 7 of the [August 2006 Orders] and paragraphs 2, 3 & 4 of the orders made 8 November 2006 are discharged.
(3)THAT [the child A] born [in] June 1996 and [the child B] born [in] April 2000 live with the father as follows;
(a)From the conclusion of school on Friday to 5.00pm Sunday or 5.00pm Monday if it is a public holiday and to 5.00pm each Melbourne Cup Tuesday each alternate weekend commencing 29 February 2008;
(b)During each school term two additional weekends from the conclusion of school on Friday to 5.00pm Sunday;
(c)With a suspension of 3(a) and (b) herein, during school holidays each term holiday for the first nine days from the conclusion of school and each Christmas holiday for 4 weeks from the break up of school;
(d)As one of the additional two weekends referred to in 3(b) herein in third term the Father’s Day weekend;
(e)For each child’s birthday and the father’s birthday on the weekend immediately after these events in accordance with 3(a) herein;
(f)On Christmas Day from 3.30pm to 5.00pm Boxing Day in 2008 and each alternate year thereafter and from 3.30pm Christmas Eve to 3.30pm Christmas Day in 2009 and each alternate year thereafter;
(g)On the occasions of changeover when it does not occur at the children’s school, changeover is to take place under the clocks at Flinders Street Station.
(4)THAT the children remain at [K school] until the completion of their primary schooling unless the parties agree on the selection of another school, and both the mother and the father be jointly responsible for all decisions regarding the children’s secondary and further education.
The effect of his Honour's orders was to reduce the time which the children spent with the father and essentially commit the mother to retain the children's enrolment at the school in which they had been enrolled following her relocation.
On 14 March 2008, the father filed a Notice of Appeal against paragraphs 2, 3 and 4 of the orders. He amended this Notice on 17 April 2008.
The Trial
At trial, both parties appeared for themselves. The Independent Children's Lawyer was represented by counsel. Multiple applications were listed before Phipps FM on the first day. From the incomplete excerpt of the transcript provided by the father, it appears that his Honour delivered two separate ex tempore judgments which were later amalgamated into one document. The first of his Honour’s reasons related to when the children were to live with the father and the second to the father’s contravention application.
The Reasons of Federal Magistrate Phipps
His Honour made reference to the August 2006 orders and the status quo relating to the children’s school and living arrangements. His Honour found that the mother, “without notice or consultation with [the father], moved the children’s school to [K School], which is on the other side of the city …”.
His Honour then proceeded to recite the orders sought by the father, making reference to the documents relied upon by the mother as follows:
There was no material filed by [the mother] because it came on at very short notice, but what she informed me was that she had purchased a house [northwest of Melbourne city]. She had done that because she could afford to do it. Her mortgage repayments were less than the rent she was paying [southeast of Melbourne city] and it was a financial necessity that she do so.
Phipps FM then made a finding which goes to the heart of this appeal. At paragraph 5 his Honour found that:
[The father] has now accepted that the children's residence is with their mother [northwest of Melbourne city] and that they will have to stay at [K School]. The dispute is now about the amount of time they should spend with him. (Emphasis added)
His Honour then proceeded to set out the proposals for parenting orders sought by the parties. With respect to the father’s proposal he said:
His proposal, supported by the Independent Children's Lawyer, is now that the children should spend Friday night to Sunday evening with him, three weekends out of four, and all of the school holidays. That would be 123 nights, so it would reduce it by two.
On appeal, the father submitted that he had never accepted the mother’s relocation or the change to the children’s residence and school, and that he maintained at all relevant times that the August 2006 orders should be enforced. He stated that what his Honour referred to as “his proposal” was in fact an alternate proposal handed up to his Honour by the father during the Trial which did not require the mother to relocate for the purposes of complying with the August 2006 orders.
His Honour noted that since the mother’s relocation there was an issue of geographical distance and found that the previous orders, insofar as they provided for the children to spend time with the father from Friday after school until Tuesday morning each alternate weekend and for a changeover to occur on Tuesday morning, were no longer “feasible because of the travel”. His Honour noted that:
The distance from [southeast of Melbourne city] to [northwest of Melbourne city] in terms of geographic distance in some circumstances would be manageable in terms of taking the children backwards and forwards, but the main problem, everybody agrees is that going back on Monday morning from [southeast of Melbourne city] to [northwest of Melbourne city] is not something to be contemplated. It means travelling over the Westgate Bridge and trying to find the best or the least worst of the approaches to that bridge. It is not so bad on the other side but everybody concedes it is not a feasible option for the two girls to have to get there in that way and for [the father] doing the driving.
Phipps FM then turned to consider the relevant provisions of Part VII. His Honour found that the presumption of equal shared parental responsibility was not rebutted, so he turned to consider substantial and significant time, as well as, albeit only implicitly, the paramountcy principle. With regard to s 60CC he observed that:
The primary consideration here is the benefit to the children of having a meaningful relationship with both parents. In this particular case, it is the governing consideration. None of the other considerations have much effect. It is common ground that the children have a very good relationship with both of their parents, and particularly relevant to this case - that is, with their father. (Emphasis added)
His Honour found that “[t]here is enormous conflict between the parents” and that “[t]hey have acknowledged that basically they cannot talk to each other.” With respect to the father’s acceptance or lack thereof, his Honour stated with regard to the mother’s relocation:
… [The father] has an understandable and strong sense of grievance about this case because orders were made only last August, which meant that the time he was spending with his children was workable. From his point of view [the mother] has changed that arrangement for no good reason.
…
What would have been a consideration if [the father] had not accepted the situation as it exists is the change of school. There is plainly in the background to this case, and there was prominent in the case before the Family Court of Australia, changes of school. They were at school over on the north-western side of the city, where they are now. Then [the mother] moved over to the [south-eastern side of the city] and now they are going back again. (Emphasis added)
His Honour then discussed the children’s relationship with the father and made findings and determinations of the orders he proposed to make.
Towards the end of his judgment and after his Honour had determined and explained the orders he proposed to make, he referred to the father’s contravention application. His Honour noted that the mother conceded there was no agreement to her relocation and found the contravention was made out. He found that the mother had no reasonable excuse for the contravention, stating at paragraph 23 that:
If there was a compelling financial reason why she should move and if she could not obtain [the father’s] consent, then she needed to apply for a variation of the order, which would have obviously meant she could not move when she wanted to, but that is the way the law is. There is no reasonable excuse. .
His Honour then turned to consider how to deal with the contravention:
It is a question of what I do about it. There has been a previous finding of breach of a primary order. That was by Brown J on 17 June 2006. There was some make-up time made. Normally, that would mean that subdivision F of division 13A of Part VII would apply; that is, under s.70NFA where a primary order has been made, there has been a previous finding of a contravention and there has not been a finding of reasonable excuse. But under s.70NEA(3)(b), the court can apply subdivision E if the court is satisfied that it is more appropriate for the contravention to be dealt with under the subdivision. I think it is more appropriate to deal with it under that subdivision.
The previous breach was a breach of a time-with provision. This is not such a breach, although it does alter the time [the father] is spending with his children. There is no reasonable excuse, but it may be that if [the mother] had applied, as she should have, to vary the orders so that she could purchase a house where she could afford it, and if she satisfied a court that that was the case and it was in the best interests of the children to have them in their own house and with a primary carer parent more financially secure than she had been, the court might have found that that was in the best interests of the children.
There is no issue of costs in this case, so I do not have to concern myself with costs nor can I see that it would be in the best interests of the children for there to be any financial penalty involved or anything such as a community based order. That would simply take [the mother] away from the children and pursuing any employment that she might have. In those circumstances, I think I should deal with it under s.70NEA. That gives me the power to make a compensatory order for time. The difficulty again with that is that I have just conducted a hearing where the times the children have spent with their father have had to be adjusted because the mother has breached the order.
In terms of compensation time, part of my reason for fixing the times as they have been is that to achieve the best interests of the children, it was necessary to balance their substantial and significant time with their father with the needs of children of their ages, particularly the older child [A], who is nearly 12 and who would have weekend interests she would want to pursue. In the circumstances, what I consider the appropriate thing to do is to record the breach but make no other order.
The Appeal
At the hearing of the appeal, both parties were self-represented and there was no appearance by the Independent Children's Lawyer. In breach of directions, the mother had not filed any material. Initially, she submitted that she had chosen not to do so because she agreed with his Honour’s orders. However, later upon my indicating that I saw some potential appealable errors, she stated that she had not filed a summary of argument because she had not been properly served. Thereafter there was a discussion between the parties and the Court about service and the production of various receipts, post-marked envelopes and affidavits of service.
Due to the potential result of the appeal, I ordered that the wife be given 21 days to file and serve a summary of argument. On 28 August 2008, the wife filed her summary of argument. On that day the father sought to file an affidavit. Subsequently another document was sent to my chambers on his behalf. I had made no order permitting the father to file further material and I have not considered that material in determining this appeal.
Because of the way in which I propose determining this appeal, I have found it unnecessary to seek a response from the husband to the wife's submissions.
Grounds of Appeal and Orders Sought
In his Amended Notice of Appeal filed 17 April 2008, the father stated that he was appealing against paragraphs 2, 3 and 4 of his Honour’s orders on the following grounds:
1.The appellant was not allowed to filed [sic] a reply to the Cross-appellant’s [sic] affidavit.
2.The contravention hearing should have been herd [sic] first.
3.The Cross-appellant was found guilty of contravening the final orders made By [sic] the Family Court on the 22nd of August 2006. Which has caused a material change in circumstances. As stated by Federal Magistrate Phipps paragraph 25 of his reason for judgement [sic]. “There is no reasonable excuse”, by the Cross-appellant.
4.The appellant was awarded with substantial and significant time by a superior court with the Children [sic] at the final hearing in the Family Court on the 22nd of August 2006 only for it to be lost due to the Cross-appellant breeching [sic] the orders and found to have no reasonable excuse, and as stated by Federal Magistrate Phipps in his reason for judgement [sic] paragraphs 20 [sic]. Where [sic]
5.The Cross-appellant was rewarded with extra time for breeching [sic] the final orders made on the 22nd of August 2006.
6.Federal Magistrate Phipps has set a precedent which basically says anybody who is the main carer the children live with [sic] can change final orders and be rewarded by simply breaking breeching [sic] them and moving to an area which makes any current orders impracticable without any consequence.
7.Federal Magistrate Phipps awarded the appellant reduced contact on the basis of the Cross-appellant continual [sic] movement “in the best Interest of the child” therefore he must not be shy of removing contact from the Cross-appellant due to her continual movement and breeching [sic] orders for the third time.
8.The Cross-appellant has been rewarded by the very court that should be upholding the law.
9.Federal Magistrate Phipps did not read the appellant affidavit [sic] as he Stated [sic] he had no knowledge of the family report and whent [sic] against the recomendations [sic] of the Family reoirt [sic] or asked to read copys [sic] that that [sic] the child rep [sic] and Appellant stated they had and yet the conclusion to that report was an exhibit in the appellant affidavit [sic].
10.Federal Magistrate Phipps did not have regard to the prior decision of the Family Court, or to the reasons for that discussion regarding order No7 [sic] made on the 22nd of August 2006 at the final trial.
11.Federal Magistrate Phipps did not take into account 60CC(3)(c) The Cross-appellant non willingness [sic] to facilitate, and encourage, a close and continuing relationship between the child and the other parent, i.e. continual movement and changing of schools by the Cross-appellant to frustrate The children’s contact with their father.
12.Federal Magistrate Phipps did take into account 60CC(3)(1) the Cross-Appellant continual movement and changing of schools to frustrate The [sic] children’s contact with the father shows the lack of responsibilities of parenthood which has a direct impact on the children.
13.Federal Magistrate Phipps did take into account 60CC(3)(e) [sic] although it was the Cross-appellant who was penalized who breeched the orders it is the appellant loosing substantial and significant time spent with the children. Then loose [sic] more substantial and significant time in the reduced time awarded due to him having to do all the travelling.
14.Federal Magistrate Phipps allowed hear say [sic] evidence by the Cross- Appellant regarding the purchase of property and did not allow the Appellant request [sic] the Cross Appellant provide details of the timing of the purchase of the propertie [sic] as this would show contempt for court orders and would be as this was [sic] a direct breech [sic] of order No7 made at the final hearing on the 22nd of August 2006, and was revellent [sic].
15.Federal Magistrate Phipps said the change over should take place at flinders street due to it being a closed in station, instead of change over being in an open station when its dark. It doesn’t get dark at 5pm.
16.That this Appeal meets the precedents set out in Rice and Asplund.
17.There was no material filed by the Cross Appellant because she chose not to and not because of short notice, as stated by federal magistrate Phipps in his reason for judgement [sic] paragraph 4. This is a continual ploy by the by the Cross Appellant to waste court time and make the court find quick solutions instead of dealing with the real issues.
18.I never accepted that the children reside with their Mother as stated by Federal Magistrate Phipps in his reason for judgement [sic] paragraph 5. The Child Rep [sic] and the Judge said because the Mother was the primary carer, there was no way the Mother could be made to move or change the children’s school. So i [sic] offered an alternative parenting plan that did not penalize me and and [sic] the children as agreed and supported by the child rep.
19.I have never said or acknowledged we can not talk to each other as stated by Federal Magistate [sic] Phipps in his reason for judgement [sic] paragraph 10, but have continually stated in court the Cross Appellant has since the property settlement. When told by the Judge what would change the orders was if the parents [sic] relationship became unworkable has continually gone out of her way to make this happen and continually passed messages and demands via the children to the Appellant.
20.I never accepted the situation, or did i [sic] state i [sic] accepted the situation as it exists as stated by Federal Magistrate Phipps in his reason for judgement [sic] paragraph 12, but the court and all concerned got impatient and confused due the tactics i [sic] described in paragraph 17 in my amended notice of appeal by the Cross Appellant.
In the event that his appeal were successful, the father sought the following orders:
1.That the children live with the Appellant and spend time with the Cross-Appellant. All other orders to stay in place.
2.That the Appellant enrol the children in a school near his residence and he make an undertaking to the court not to remove them from that school.
3.That the Cross-Appellant to get [sic] specialized council ling [sic] as recommended in the Family Report.
4.That all change over of children take place at train station [M] [south east of the city] At [sic] 5pm or police station. . If the child are to remain mainly with the Mother [sic]
5.That the Appellant not loose any of the substantial and significant time (125 nights) awarded to him at the final hearing on the 22nd of August 2006.
6.That the Cross-Appellant be given a substantial penalty for breeching [sic] Court orders for the third time as a deterrent.
7.That all phone contact with the children be allowed to be by landline Instead of mobile phone [sic]
8.That if the court does not change the place of residence where the
9.[sic] children Spend most time that the Appellant’s alternative parenting plan presented to the court on the 18th February 2008 is implemented.
APPLICATION TO ADDUCE FURTHER EVIDENCE
At the commencement of this hearing the father sought to adduce further evidence, namely an affidavit sworn by him on 13 October 2006. This affidavit related to allegations that the mother had committed perjury during the defended hearing, with respect to who had filed a particular application and her understanding, or lack thereof, regarding certain orders made in a prior hearing.
The father asserted that he had sought to produce this affidavit at trial before Phipps FM but was denied leave because he was told that it was not relevant. Despite an objection by the mother, I decided that it was necessary for me to read the affidavit in question in order to ascertain whether it was relevant and ought to be admitted.
Having read the affidavit, I declined to allow the father’s application to adduce further evidence. I indicated that I would give reasons for doing so in my final written reasons for judgment. Accordingly, I now give those reasons.
Section 93A(2) of the Family Law Act 1975 (“the Act”) provides the discretionary power for an appellate court to receive further evidence upon questions of fact. This is a wide, but not unfettered, discretion: CDJ v VAJ (1998) 197 CLR 172; Abdo & Abdo (1989) FLC 92-013.
In CDJ v VAJ (supra), the majority of the High Court discussed the nature of the discretion and the factors to be weighed by an appellate court in judicially exercising the discretion to allow further evidence. McHugh, Gummow and Callinan JJ held at page 200 that “the critical factor is the subject matter of the proceedings with which the appeal is concerned”. Their Honours concluded at page 195 that although “[a]n order admitting or rejecting further evidence is not a parenting order… [i]n an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue”, the appellate Court is “bound to have regard to the best interests of the child as the paramount consideration in the appeal.” The majority identified various additional factors which may be taken into account including:
·the need for finality of litigation;
·whether the evidence sought to be adduced was available at trial;
·whether the evidence sought to be adduced is disputed; and
·the effect that the evidence would have had at trial.
Their Honours held at 202:
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
Justice Gaudron held at 186 that:
…ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing.
…
Notwithstanding what has been said as to what should ordinarily be the case, different considerations may apply if the question is whether there has been some irregularity in the proceedings such that a party was unable to put his or her case effectively or effectively answer the case made by the other side. And that may be so even if the irregularity was not such as to constitute a denial of procedural fairness.
Turning to the particulars of the present case, to my mind the father’s evidence probably would not have changed the result at trial and, given the nature of this appeal and the way in which I propose deciding it, I find that this further evidence would not have a material effect on this appeal, nor, in the words of the High Court in CDJ v VAJ (supra) at 195, “in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order”.
On the father’s own admission, the evidence was reasonably available at trial. The father asserted from the bar table that he sought to adduce it at trial and that Phipps FM determined not to admit it. I have had regard to the excerpt of the transcript of proceedings filed by the father. It does not reflect the version of events as asserted by the father. However, in the circumstances of this case where it can be expected that the mother would dispute evidence alleging she had perjured herself, and particularly given what appears from the litigation history to be the protracted nature of proceedings between these parties and the entrenchment of conflict, it is in the best interests of these children to give significant weight to the need for finality and to not further extend proceedings without a strong basis for so doing. The father’s application does not have a sufficiently strong basis. Given the nature of this appeal, the evidence sought to be adduced does not relate to a fundamental issue involved in the appeal and hence could not materially affect the outcome of this appeal.
For all of the above reasons, I determined that the father’s application to adduce further evidence ought to be dismissed.
DISCUSSION
The crux of the father’s appeal was that his Honour erred in finding that the father had accepted the changed circumstances arising from the mother’s breach, namely that the children should reside with the mother northwest of Melbourne city and attend school in that area. Further, the husband submitted that his Honour proceeded on the basis of this mistaken finding and consequently did not consider various relevant matters he ought to have considered and gave no reasons for so doing.
If the father is correct in this submission, it may well be that his Honour has made a fundamental error of fact. As this error of fact provided foundation for his Honour’s determination, it would be an appealable error. Accordingly, I deal first with the father’s grounds of appeal in relation to this factual finding.
Grounds 18 and 20
Essentially, these grounds assert that his Honour erred by finding that the father accepted the changed circumstances arising from the mother’s breach. The father essentially submitted that he never accepted the mother’s move to northwest of Melbourne city and never accepted that the children would live with the mother there and go to K School. Indeed, he submitted that the impetus behind his Contravention Application and his Application in a Case was that he did not accept this change as it made his time with the children very difficult. He further submitted that the children should be returned to S School. His opposition to the mother’s relocation is clear on its face from his Contravention Application, his Application in a Case and the affidavits in support thereof to which I will refer in due course.
As discussed above, paragraphs 5 and 12 of his Honour’s reasons contained the finding complained of by the father.
During the course of the hearing the following exchange took place:
[MR WALSINGHAM]: Your Honour, I just want a meaningful – spend time with the children.
HIS HONOUR: I know.
[MR WALSINGHAM]: I haven’t breached the orders.
HIS HONOUR: I know. I understand that.
MS BUCHANAN: We’re just trying to work out a way of getting - - -
[MR WALSINGHAM]: What isn’t fair in this so far is heavily in favour of - - -
…
HIS HONOUR: I understand your position entirely Mr [Walsingham], I am just concerned that if [the mother] hadn’t moved it wouldn’t be a problem, but she has and –
[MR WALSINGHAM]: That’s crucial –
HIS HONOUR: You have, you know, very sensibly accepted that there’s nothing much you can do about that. She’s bought a house and that’s it.
[MR WALSINGHAM]: Your Honour, if I was to move to South Australia and put the children in school and say I’ve moved, the Court would take the children off me.
On appeal, the father submitted that the above exchange represented his complaint and opposition regarding the wife’s relocation. It appears that later on in the day the father again attempted to express his opposition to the mother’s relocation and the problems which it posed to his spending quality time with the children:
[MR WALSINGHAM]: Your Honour, even with this current one, even like now – Friday is taken up in travelling time. There isn’t much left of Friday.
HIS HONOUR: Yes.
[MR WALSINGHAM]: Saturday is the only meaningful day when I really have the children. Sunday is taken up in travel time. This was done intentionally by the respondent. She could have bought houses in this side of town. The children could have remained at school, everybody could’ve been happy. She intentionally bought one on the other side of town. She knew this would be the result.
In her summary of argument, the wife submitted that in this exchange the father did not expressly agree or disagree with comments made by his Honour. At another point during the proceedings the father attempted once again to make his opposition clear and to return to the issue of the contravention. He stated:
[MR WALSINGHAM]: The point is, your Honour, I’ve lost time with my children. Because the respondent has breached the orders knowingly. After spending three years getting meaningful time with the children, that’s just gone because the respondent decided to breach the orders and go to the other side of town.
From the transcript there is no indication that his Honour engaged with the submissions made by the father as outlined above. Indeed, his Honour responded to the submissions in the previous paragraph by stating “Please, that’s all right. I think I assume no-one wants to cross-examine. …I suppose I have to try and work out a solution.” The reasons made no reference to any of the above submissions or comments by the father.
It is the father’s submission that his Honour conducted the proceedings on the basis that it was a hearing of an application by the mother for orders about the parties’ time with the children, as opposed to a contravention hearing initiated by the father. His Honour’s approach to the proceedings is illustrated in the following exchange:
MS BUCHANAN: This is just about the time the father spends.
HIS HONOUR: Yes, the school needs to be changed too of course.
[MS WALSINGHAM]: Yes.
HIS HONOUR: I think it should be fixed at the current school unless agreed.
In my view, the structure of the reasons support the father’s submission that his Honour’s starting premise was that the father ought to spend time with the children on the basis that the children live and attend school northwest of Melbourne city. Only after setting out the orders that he proposed to make did his Honour then turn to a consideration of the father’s Contravention Application. As I have already noted, it would appear from the transcript of proceedings that his Honour delivered two separate ex tempore judgments, first in relation to the “spend time with” orders and then some time later in relation to the contravention. These judgments were later amalgamated for publication.
Before delivering his first judgment with respect to the parenting orders, his Honour did not enquire as to whether the parties had any further submissions. Following the delivery of judgment, there was some discussion from the bar table as to the terms of those orders. It was not until his Honour was on the point of adjourning the proceedings that the contravention application was raised by the father. The following dialogue then ensued:
HIS HONOUR: … We’ll adjourn.
[MR WALSINGHAM]: Your Honour, one other thing. What about the contravention?
HIS HONOUR: The contravention.
[MR WALSINGHAM]: It’s clear cut.
HIS HONOUR: The contravention.
…
HIS HONOUR: I’d forgotten about the contravention.
…
[MR WALSINGHAM]: Can we deal with their stability, your Honour.
…
HIS HONOUR: We will need to deal with the contravention.
[MS WALSINGHAM]: Would we be able to just dismiss the application?
HIS HONOUR: Only with the consent of [the father].
With respect to the alleged breach by the mother, the following discussion followed:
HIS HONOUR: … The order is that the children stay at [S School]. The issue is whether that has been breached or not.
[MR WALSINGHAM]: Yes, but by moving those orders become null. That’s why the move was done, without my consultation?
The father’s affidavit and the orders sought by him made it abundantly clear that he initially did not accept the circumstances arising from the mother’s breach and, in my view, the excerpts of the transcript do not permit of a finding that the father’s position changed. At the very least, before proceeding on the basis that the children’s new school and residence were undisputed issues, his Honour was obliged to clarify whether there had been any such change in the father’s position before delivering the reasons and the orders.
In the mother’s summary of argument she submitted that at the commencement of the proceedings Phipps FM asked the parties which matter they preferred to deal with first. She maintained that the father responded with “the children’s issues.” In the available transcript, no such exchange took place. Accordingly, the mother has not established her assertion.
The mother provided the following justification for her relocation in her summary of argument:
In my opinion, the relocation has not interfered with the children’s ability to form strong attachments with both parents and the variation to orders ensures the children maintain a meaningful relationship with both parents and people who are significant to the children’s care, welfare and development.
Accordingly, I find that his Honour made an erroneous finding of fact. The question that arises is whether such an error is susceptible to appellate intervention. In De Winter and De Winter (1979) FLC 90-605, Gibbs J observed at 78,091:
It is apparent from this statement [an extract from House v The King (1936) 55 CLR 499 at pp 504-505] and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v Storie (1945) 80 CLR 597 both Latham CJ, at p 600, and Rich J, at p 604, cited from the judgment of Viscount Simon LC in Blunt v Blunt (1943) AC 517, at p 526:
'If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court's discretion will have been exercised on wrong or inadequate materials...'
There are many other authorities, from Young v Thomas (1892) 2 Ch 134, at p 137, to Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, at p 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
I note the authorities which provide that an intermediate appellate court should be slow to overturn discretionary decisions. In CDJ v VAJ (supra) Kirby J observed at 230 – 231:
To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong [House v R (1936) 55 CLR 499 at 504-505]. Obviously, what is ‘plainly wrong’ will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power [So called Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. See discussion in Re F (A Minor) (Wardship: Appeal) [1976] Fam 238 and in G v G (Minors: Custody Appeal) [1985] FLR 894 at 900]. The reference to ‘plainly wrong’ is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
In the context of this hearing his Honour made a fundamental error of fact which essentially resulted in his failing to determine a crucial dispute between the parties, namely, with whom the children should live and where they should go to school. Accordingly the appeal must be allowed on grounds 18 and 20.
Conclusion
Having found that grounds 18 and 20 are established it is not necessary to consider any of the other grounds of appeal. The appeal must be allowed. The matter will be remitted for rehearing by a Federal Magistrate other than Phipps FM.
I certify that the preceding sixty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Mushin J
Associate: Shantelle Vercoe
Date: 31 March 2009
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