WARNER & WARNER
[2016] FamCAFC 243
•30 November 2016
FAMILY COURT OF AUSTRALIA
| WARNER & WARNER | [2016] FamCAFC 243 |
| FAMILY LAW – APPEAL – CHILDREN – Where the respondent conceded that the appeal should be allowed in part in relation to who should pay the travel costs of the child – Where the appellant challenged the block periods of time the child would spend with the respondent – Where the appellant was unable to demonstrate that the trial judge erred in the exercise of his discretion – Where s 65DAA of the Family Law Act 1975 (Cth) allows for time spent between the child and non-residential parent to be substantial and significant where that time is spent at a place geographically distant from the home of the resident parent – Where the trial judge was aware of the relevant facts and took them into account where appropriate – Where the trial judge applied the relevant sections of the Family Law Act 1975 (Cth) and gave ample reasons for his decision – Where the trial judge arrived at his decision by taking into account the best interests of the child – Appeal allowed in part and otherwise dismissed. |
| Family Law Act 1975 (Cth) – s 65DAA Federal Proceedings (Costs) Act 1981 (Cth) |
Family Law Rules 2004 (Cth)
| House v The King (1936) 55 CLR 499 Ulster & Viney (2016) FLC 93-722 |
| APPELLANT: | Ms Warner |
| RESPONDENT: | Mr Warner |
| FILE NUMBER: | TVC | 211 | of | 2014 |
| APPEAL NUMBER: | NA | 26 | of | 2016 |
| DATE DELIVERED: | 30 November 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ainslie-Wallace and Murphy JJ |
| HEARING DATE: | 8 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 April 2016 |
| LOWER COURT MNC: | [2016] FCCA 703 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr M Hibble |
| SOLICITOR FOR THE RESPONDENT: | Gun Lawyers Pty Ltd |
Orders
The appeal be allowed in part and order (9) of the orders made on 1 April 2016 be varied to provide as follows:
9.That for the purposes of order 6(c) herein, the father shall be responsible for his own travel and accommodation costs absolutely and for all of [A’s] travel costs with bookings to be made at least 21 days prior to travel.
The appeal otherwise be dismissed.
There be no order as to costs or the issuing of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Warner & Warner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 26 of 2016
File Number: TVC 211 of 2014
| Ms Warner |
Appellant
And
| Mr Warner |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 17 August 2016 Ms Warner (“the mother”) appeals against parenting orders made by Judge Coker on 1 April 2016.
The orders appealed are part of a regime of orders made for A (“the child”) to spend time with Mr Warner (“the father”) on a graduated basis. In particular, the mother appeals orders which provide for the child to spend five full days and four nights with the father each month in Town X between the period of 1 April 2017 and 1 February 2018, with changeovers to occur at Brisbane Domestic Airport, orders for the parents to share the costs of the child’s travel for this purpose as to 75 per cent by the father and 25 per cent by the mother, and orders which provide for block periods of time during the Christmas school holidays.
The appeal was opposed by the father, but at the hearing before this court the father’s counsel conceded that the appeal must succeed in relation to who should pay the travel costs of the child for the purposes of the time to be spent by the child with the father in Town X. The father’s case before the trial judge was that he would pay the entirety of those costs, yet the trial judge ordered otherwise without explaining the basis for that decision. Thus, the father should pay all of those costs, and particularly given the financial circumstances of the mother.
Background
The father was born in 1977 and is currently aged 39 years.
The mother was born in 1974 and is currently aged 42 years.
The parties began a relationship in approximately 2007, commenced cohabitation in 2009 and married in 2012.
The child was born in 2013 and is currently aged 3 years.
The parties separated in November 2013, with the mother unilaterally relocating to Town Z with the child, and the father remaining in Town X.
The father commenced the proceedings on 3 March 2014.
The father spent time with the child in Town Z in accordance with interim orders made on 2 July 2014 and 19 December 2014 respectively.
Relevant aspects of the reasons of the trial judge
His Honour noted that the “dispute really centred upon considerations of the progression in relation to how [the time between the child and father] should be spent, and how quickly the child could progress to more significant periods of time, in relation to spending time with the father, particularly when not in the proximity of the mother” (at [35]). His Honour recognised the evidence of the parties and of the family report writer in relation to this and explained that there were “clear indicators of a need to progress slowly, in relation to the development of opportunities for the child to spend time with the father” (at [65]).
As to the evidence of the family report writer in paragraphs 53 and 56 of his first report of 6 November 2014, his Honour noted that it was “clear that the progression between November 2014 and January 2016 [in relation to the father’s relationship with the child] had not been as quick as the father would have hoped” and that there were issues relevant to this child in particular that needed to be addressed when considering the arrangements to be made (at [75] – [78]). In his second report, the family report writer considered that there were “still a number of competing issues that [needed] to be addressed” including the geographical considerations of the parents not living close to one another and the fact that the mother asserted the father still needed to “gain confidence and competence, in his ability to care for and provide for [the child]” (at [79] – [80]).
Having considered this evidence, his Honour found that there should be a “progression somewhere between the accelerated progression suggested by the father … and the very slow progression that appears to be suggested by the mother” (at [86]).
His Honour then noted that despite challenge by both parties, the family report writer remained firm about his opinion as to progression and acknowledged that the three major issues in this case were the rate of progression of more overnight periods with the father, where the overnight periods should be spent and whether there was a need for the mother to be in close proximity when the overnight time occurred.
In relation to the father’s ability to care for the child away from the mother, his Honour noted the family report writer’s concerns about the father being unable to deal with situations where the child was distressed. Having made this observation, the family report writer considered it important “to stretch out … the time with regard to progression from one stage of overnight time to the next” and that “time should be primarily if not exclusively spent in [Town Z], with the father having more frequent opportunity to spend short, sharp periods with the child” (at [91]).
His Honour then considered the family report writer’s evidence as to the need for the mother to be close while the father was spending overnight time with the child. The family report writer considered this should occur for the short term, but explained that the meaning of short term would “depend entirely upon how [the child] progressed in her relationship with her father, and with others significant in her life” (at [95]). However, the family report writer considered that this time should occur in Town Z as the child was familiar with the surrounds and this allowed the father “to fully involve himself in the life of the child, including participating, as appropriate, in day care and day care activities, so that … the relationship developed between [the child] and her father”. He also considered there would be “a clear understanding from [the child’s] perspective, as well as from the father’s, of what constituted important or significant considerations, in their lives” (at [96]).
His Honour noted that the family report writer considered the mother’s proposal was an appropriate progression, but was “not willing to concede that the mother’s proposed progression, which continued until [the child] was eight years of age, was the timeframe that should properly be considered, in relation to how the time should develop” (at [97]). On the other hand, the family report writer considered block time in Town X which was of less than four or five nights “would be disruptive to the child” and inappropriate due to the amount of travelling involved (at [98]). Thus, the family report writer considered that until more significant block periods were instituted, the time the father spent with the child should occur in Town Z. His Honour found that this assessment accorded with his own in relation to the matter.
In concluding with the evidence of the family report writer, his Honour said:
103.I was generally assisted by [the family report writer’s] assessments in relation to this matter. I, in particular, would find that his consideration of the arrangements as proposed by each of the parties was, to a very real degree, a reflection of what [the family report writer] considered to be appropriate in relation to this little girl, and was of particular assistance with regard to the ultimate determination of what orders should be put into place.
His Honour then commenced his consideration of s 60CC(2), (2A) and (3) of the Family Law Act 1975 (Cth) (“the Act”), and set these sections out in full.
In relation to the child’s psychological well-being, his Honour considered the family report writer’s evidence and his suggestion that due to the child’s “anxieties” there should be a slower progression than that sought by the father. In particular, the family report writer referred to the separation anxiety the child suffered when removed from her mother and his Honour considered that this “must be taken into consideration in respect of the orders that are made and the progression toward more significant time being spent with the father” (at [119]).
Thus, his Honour opined that he needed to consider the psychological harm to the child in this case even though “neither parent [was] directly responsible for that harm”. His Honour again noted the evidence of the family report writer that the progression which should occur should be on a scale somewhere between the proposals of the mother and father. His Honour then concluded:
122.Whilst accepting that any orders made must be put in place in consideration of the particular needs of this little girl, I would also assess that somewhere between the father’s proposals, even those modified ones that were put forward during final submissions and the mother’s long term proposals, lies the best interest arrangements of the child. It is a matter that must be looked at in conjunction with the other evidence that is available and a balance reached that hopefully provides most appropriately for the future needs of the child.
123.There is not however, a concern that directly gives rise to a need to protect the child but rather a need to ensure that the orders made give [the child] the best opportunity to develop her relationship with her father in a comfortable and secure way.
As to the additional considerations, his Honour explained that many were “not of great significance in relation to the ultimate determination of this matter” and considered that many were “subservient to the need to ensure that [the child’s] particular circumstances are considered in relation to any final arrangements”. His Honour found that the “nature of [the child’s] relationship with each of her parents is significant particularly in light of the primary attachment that she has to her mother balanced against the established but not as secure attachments in place with her father”. His Honour considered that the “primary attachment to the mother is clearly a factor to be considered in respect of the arrangement regarding the development of time to be spent with the father” (at [125]).
His Honour noted that there were concerns in relation to geography of the parties and their finances due to the significant distance between their homes. Though his Honour recognised that this was a significant issue for both the parents and the child, he found:
131.Those concerns can be met; [the family report writer] suggests by limiting the obligations in relation to [the child’s] travel to occasions when more significant block periods of time are being spent which would also have the advantage of the father getting to know [the child] even be6tter [sic] than he already does, in her locality and environment. It would also mean that there would be less of a burden placed on the child in relation to significant travel within a few days as well as reducing the overall expense of travel, because only the father would be required to travel, though I acknowledge that there would also be accommodation expenses incurred.
132.No matter what orders might be made, travel and expense will be an ongoing concern but one that in my assessment can be met by the parties, especially by the father whilst he remains in the remunerative employment that he currently has.
In relation to the capacity of each of the parents to provide for the emotional and intellectual needs of the child, his Honour found that each of the parents had “the capacity to meet the day-to-day physical needs of the child and would no doubt be able to meet [the child’s] intellectual needs including any necessary educational requirements” and that each had appropriate attitudes to the responsibilities of parenting. Rather, his Honour considered the issue to be each parents’ ability to meet the child’s emotional needs in the long term. In relation to this issue, his Honour considered that the family report writer’s opinion held “significant weight particularly when consideration is given to the arrangements to be put in place” (at [134]).
His Honour then said:
136.The orders that each parent seeks are understandable. As I have indicated, in my assessment, orders that fall somewhere between what each parent proposes are what will be in the best interests of [the child] and will enable the father to develop his relationship with the child balanced against the need to be mindful of [the child’s] attachments to the mother and anxieties that might stem from that. What is essential in my assessment however, is for there to be settled arrangements, clearly understood by each parent and able in time to be understood by [the child] such that she can be comfortable that there are opportunities for time to [sic] spent with each parent knowing that each parent recognises the importance of the other in [the child’s] life and of the need to ensure that [the child’s] relationship and attachments with both parents is secure.
…
138.I acknowledge that much of what has fallen in these reasons, especially with regard to the discussion, has indicated the lack of any certainty as to what might be the most appropriate arrangement’s [sic] to be put in place. To some extent it occurs to me that simply having orders will provide some degree of certainty and will enable the parties and this little girl to move forward. The primary consideration obviously is to ensure that the child’s attachments are fostered and secure and that her emotional well-being will be to the fore. Matters relating to each parties capacity to recognise the importance of that consideration are paramount in ensuring that appropriate orders are made.
As to the issue of parental responsibility, his Honour found that it was not in the child’s best interests for there to be an order for equal shared parental responsibility as his Honour considered it was not presently workable due to the parties’ inability to reach agreement in relation to fundamental issues regarding the child.
In conclusion, his Honour found that the orders he made reflected “an appropriate progression towards more significant time being spent with the father but at the same time recognising the need to progress more slowly so as to recognise ‘[the child’s] anxieties’ but also the benefits of time spent with her father” (at [145]).
Discussion
The mother appeared without legal representation, and although she did the best she could, the grounds of appeal relied upon by her comprised nothing more than general assertions, and were plainly incompetent. Moreover, her written summary of argument was of little or no assistance, and failed to identify appealable errors by the trial judge. Thus, during the hearing of the appeal we sought to identify the issues addressed by the trial judge at first instance with a view to considering to which of those issues the mother’s complaints on appeal extended. The issues can conveniently be summarised as follows:
a)The child’s separation anxiety;
b)The rate of progression of the time the child should spend with the father;
c)The importance of the child seeing her father and the difficulties associated with travel;
d)The orders for significant block time to be spent with the father and when and where this should occur.
The mother accepted at the hearing of the appeal that she contested only the last issue, namely the block periods which the child should spend with the father. In this regard, the mother asserted that his Honour should have ordered that the child spend time with the father in Town X on one occasion every three months, with the rest of the time spent between the father and child to occur in Town Z. We note at this point that his Honour’s orders provided for block time to be spent between the child and father in Town X on one occasion per month.
The mother submits in general terms that his Honour failed to consider the best interests of the child when making these orders, however, this was an exercise of discretion by the trial judge and the mother was unable to point to any relevant fact that his Honour failed to take into account, or to any irrelevant fact that his Honour did take into account, or to any wrong principle that his Honour acted upon in exercising that discretion. Nor did the mother establish that his Honour’s decision was “unreasonable or plainly unjust”, on the facts before him (House v The King (1936) 55 CLR 499 at 505). The mother’s simple proposition was that his Honour should have accepted her submission as to what was in the child’s best interests, but that is never enough to establish appealable error by a trial judge. Nor, as is plainly recognised by the authorities (for example House v The King), is it enough that this court may consider that if it was in the position of the trial judge a different course would have been taken.
In attempting to establish error by the trial judge the mother submitted that the order that was made for block time each month in Town X could not be considered “substantial and significant time” within the meaning of s 65DAA of the Act because it was only in Town Z where the father could involve himself in the daily routine of the child’s life.
However, s 65DAA did not come into play because his Honour found that it was not in the child’s best interests for there to be an order for equal shared parental responsibility. That finding was not challenged on appeal, but in any event, the concept of involvement in a child’s daily routine was recently considered by the Full Court in Ulster & Viney (2016) FLC 93-722, and it is not the case that it requires the parent to be involved with the child and his or her activities on a daily basis; it allows, as it plainly must, for the time spent with the non-residential parent to be substantial and significant where that time is spent at a place geographically distant from the home of the resident parent.
As can be seen from our summary of the relevant reasons of the trial judge, his Honour was plainly aware of the relevant facts and took them into account where appropriate, his Honour referred to and applied the relevant sections of the Act, and gave ample reasons for his decision.
Apart from in relation to the issue of the costs of travel of the child, we are not persuaded that his Honour has erred in any way, and in particular we are satisfied that his Honour’s orders were arrived at by taking into account the best interests of the child.
Conclusion
Given the concession by the father, the appeal will be allowed in part, and that part of Order (9) made by his Honour providing for the parties to share the travel costs of the child for the purposes of Order 6(c) will be varied to provide for the father to meet those costs entirely.
There being no merit in the balance of the appeal, it will otherwise be dismissed.
Costs
At the conclusion of the hearing of the appeal we received submissions from the parties in relation to the question of costs depending on the result of the appeal.
In the event the appeal was successful, the mother sought an order for costs covering her disbursements in preparing the documents required for the appeal. However, if there was no order made the mother sought a certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
For the father’s part, ultimately he neither sought an order for costs in the event the appeal was dismissed, nor did he seek a costs certificate if the appeal was successful.
Given that the appeal is being allowed in part, but otherwise dismissed, we do not consider that either an order for costs in favour of the mother, or a costs certificate, is justified. Thus, there will be no order for costs or for a costs certificate to issue.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace and Murphy JJ) delivered on 30 November 2016.
Associate:
Date: 30 November 2016
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