Whipp & Richards
[2012] FamCAFC 11
•3 February 2012
FAMILY COURT OF AUSTRALIA
| WHIPP & RICHARDS | [2012] FamCAFC 11 |
| FAMILY LAW – APPEAL – CHILDREN – Parenting – Powers and discretion of Full Court – Findings of fact – Where the appeal challenged orders of the trial judge relating to the structure and graduation of time with the father in Australia and the United States of America, the routine to be maintained during time spent and the impact on time with the appellant mother on Jewish Holidays – Where the appellant argued that the trial judge’s discretion miscarried, that his Honour failed to take into account relevant facts, including expert evidence, and that the outcome of the orders were manifestly unjust and plainly wrong – Whether the trial judge’s discretion miscarried FAMILY LAW – APPEAL – Point of law – Where the appellant contended that the trial judge’s reasons were inadequate – Whether the trial judge erred at law in failing to provide adequate reasons FAMILY LAW – APPEAL – JURISDICTION – Where the appellant contended that the trial judge erred in making an order regarding the apportionment of the cost of international travel for the child to spend time with the father in the United States of America – Where the order provided that the mother give the father a “credit” for half of the airfares paid for the father to use as an “offset” against any child support liability he may have – Where the respondent argued that the order was to “facilitate time spent” – Whether the trial judge had jurisdiction to make the order – Whether the mother was afforded natural justice – Whether the trial judge erred |
| Child Support (Assessment) Act 1989 (Cth), ss 4, 100, 117, 123A Child Support (Registration and Collection) Act 1988 (Cth), ss 37, 71, 71A, 71B, 71C, 71D Family Law Act 1975 (Cth), ss 4, 60CA, 60CC(3)(e), s 60CC(3)(l), 64B, 65B, 65D, 66E, 66G Child Support (Registration and Collection) Regulations 1988 (Cth), reg 5D |
| Bennett v Bennett (1991) FLC 92-191; (1990) 14 Fam LR 397; (1990) 102 FLR 370 Collu v Rinaldo (No. 2) [2010] FamCA 439 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Love v Henderson (1996) FLC 92-653; (1996) 20 Fam LR 128; (1996) 125 FLR 129 Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298; (1989) 84 ALR 208; [1989] HCA 13 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Wales & Falls & Anor (SSAT Appeal) [2010] FMCAfam 116 Wen & Thom [2010] FamCAFC 81 |
| APPELLANT: | Ms Whipp |
| RESPONDENT: | Mr Richards |
| FILE NUMBER: | SYC | 4363 | of | 2007 |
| APPEAL NUMBER: | EAA | 35 | of | 2011 |
| DATE DELIVERED: | 3 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Thackray & Young JJ |
| HEARING DATE: | 2 December 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 February 2011 |
| LOWER COURT MNC: | [2011] FamCA 141 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPELLANT: | Diana Perla & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Campton |
| SOLICITOR FOR THE RESPONDENT: | Karras Partners Lawyers |
Orders
That the appeal against the orders made by the Honourable Justice Watts on 28 February 2011 be allowed in part.
That paragraph 33 of the orders be set aside.
That within 28 days the appellant mother shall file and serve submissions as to:
(a) whether the issue of the payment and apportionment of travel costs should be:
(i) redetermined by the Full Court; or
(ii) remitted for rehearing, and if so whether to Watts J or another judicial officer; and
(b)the costs of the appeal, including whether costs certificates are sought in relation to the appeal and any retrial.
That within 28 days of service of the submissions of the appellant mother, the respondent father shall file and serve submissions in response.
That within 14 days of service of the submissions in response, the appellant mother have 14 days in which to file any submissions in reply.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whipp & Richards 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 SYDNEY |
Appeal Number: EAA 35 of 2011
File Number: SYC 4363 of 2007
| Ms Whipp |
Appellant
And
| Mr Richards |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The appellant mother (“the mother”) by her Amended Notice of Appeal, filed 24 June 2011, has appealed against orders 16.4 to 16.7 (inclusive), 16.9, 27 and 33 of Watts J delivered on 28 February 2011 in parenting proceedings between the mother and respondent father (“the father”) pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The orders of the trial judge that are the subject of the mother’s appeal provide for the manner in which the father will spend graduated time with the parties’ child, L (“the child”), aged almost 5 years, from 1 February 2012 to 2015 and thereafter, both in Australia and in the United States of America, the division of Jewish holidays, and how the cost of international travel for the child will be apportioned between the parties.
The mother advanced seven grounds of appeal and has abandoned ground 1. At the hearing of the appeal her senior counsel sought and was granted leave to amend ground 3.
By grounds 2, 3, 5 and 6, the mother challenged orders 16.4, 16.5, 16.6, 16.7 and 16.9 that provide for an increase in the father’s periods of time with the child from 1 February 2012 onwards, and the graduation, regularity, timetable and location of that time. Ground 7, as it is put by the mother, can be broadly stated to take issue with order 27 that does not require the father to maintain the child’s “routine” when she spends time with him during the school term per orders 16.5 to 16.9.
The mother, in ground 4, more specifically disputed the operation of orders 16.5 to 16.7 and their impact on the time the child would spend with her during Jewish holiday periods in 2013 and thereafter, particularly on Passover and in the Jewish New Year period (including Yom Kippur, Succoth and Simchat Torah).
The mother, in advancing ground 8, argued that the court did not have the jurisdiction to make order 33, which provided that the father pay the international airfares for the child to travel to the United States and required the mother to give the father a credit of half of the airfares paid as an offset against any liability that the father may have to pay child support, and that she was denied natural justice as there was no such application before the trial judge.
The father in response argued that the mother’s appeal does not contend that there is any error in the application of law, findings of fact or findings as to the credit of the parties by the trial judge. He asserted that the mother was seeking to use the process of appeal to “limit or to further define selective parenting orders”. He sought to uphold the orders pronounced by the learned trial judge and urged this Court to dismiss the mother’s appeal.
The mother submitted that if on appeal she were successful in whole or in part then this Court should re-exercise the discretion to make the orders sought in her Amended Notice of Appeal. In the alternative any rehearing before a trial judge should not be before Watts J. The father submitted that any matter that succeeded on appeal should be remitted for a discrete rehearing.
The father sought costs in the event that the mother’s appeal was unsuccessful and a cost certificate in the event that the appeal was allowed in whole or in part. The mother indicated that she would be seeking costs if the appeal were successful and in the event that the appeal failed given the extent of her expenditure on appeal books.
BACKGROUND
On 28 February 2011 Watts J delivered substantial and detailed reasons for judgment (consisting of 447 paragraphs over 76 pages) and pronounced lengthy final orders (consisting of 46 orders with numerous sub-paragraphs) in relation to the parenting dispute between the parties.
The child will turn 5 years old in March 2012. She has spent time and lived with the father pursuant to orders 16.1 and 16.2 between the conclusion of the trial and the hearing of this appeal. Order 16.3 further provides for the father to spend time with the child between 13 December 2011 and 10 January 2012. The appellant did not challenge those orders.
The trial of the matter was heard over an eight day period in late December 2010, concluding on 16 February 2011. At the commencement of his reasons for judgment (paragraphs 1 to 3) his Honour summarised the issues in dispute before him and the litigation that had preceded the trial as follows:
1.This hearing is primarily about what final orders should be made in relation to the time that [L (“the child”)] will spend with her father. It is also about how freely [the child] can move with both her parents outside Australia. The father’s case is that the mother is a significant flight risk. There is also an issue about whether there should be a change in the name by which [the child] is known. [The child] was born [in] March 2007 and is three years of age. Her parents were in a relationship for less than six months. The father lives in the USA and the mother lives in Sydney. In the foreseeable future the father’s relationship with [the child] is destined to be a predominantly long-distance one.
2.[The child’s] entire life has been the subject of intense litigation initiated by both parents. Cases have been brought in the United States of America, Israel and Australia. The subject of such litigation has included jurisdiction, paternity, birth certificate registration, parenting orders and compliance, child support, international travel, and international child abduction proceedings. Even though the parents now raise questions about the future funding of [the child’s] education, child support and international travel, the parents have spent in excess of $1,000,000 on litigation (roughly half each) over the last three years.
3.Through this extensive litigation, the parents’ relationship has grown in hostility. It is one of the most antagonistic that I have seen, between two highly intelligent adults, both of whom love their daughter and neither of whom have a diagnosable mental disorder. [The child] is caught in the middle of the conflict between her parents and that conflict is impacting upon [the child].
The trial judge’s reasons contained a very detailed chronology (see paragraphs 73 to 119) that included an overview of the extensive litigation engaged in by the parties referred to above. No challenge was made to any of the facts contained in that chronology.
The mother was born in Australia and is an Australian citizen; the father was born in the United States of America and is a citizen and permanent resident of that country. The parties met in New York in March 2006 and their brief relationship lasted only until September 2006. The father was advised by the mother of her pregnancy on 2 August 2006 and early in the following year the mother travelled to Australia for the birth of the child. The father accompanied the mother to Australia and the child was born in March 2007.
Initially the father saw the child by agreement but conflict between the parents soon arose and the mother restricted the child’s visits with the father. There were lengthy and unsuccessful legal discussions between the parties. Proceedings were thereafter commenced by the father relating to placing his name on the child’s birth certificate, followed by proceedings relating to the issuing of an Australian passport, watch list orders and other travel and child related disputes throughout 2007 in Australia.
The mother and child returned to New York on 22 July 2007 and the father at that time remained in Sydney. On the 27 July 2007 the mother’s employment in New York was terminated and subsequently on 15 September 2007 she travelled with the child to Israel notwithstanding that paternity and custody proceedings had been issued by the father in a court in New York on 31 August 2007 after the father had returned to the United States on 16 August 2007.
The father subsequently ascertained that the mother had removed the child from New York on 17 October 2007. He then commenced Hague Convention proceedings in the Tel Aviv Family Court. Orders were made restraining the mother from leaving Israel on 22 October 2007 but the mother and the child left Tel Aviv that day and travelled to and arrived in Australia on 24 October 2007. Further Hague Convention proceedings were initiated by the father in Australia but were ultimately dismissed by Ryan J on 7 March 2008. Thereafter interim parenting orders were made in Australia on 28 November 2008 by Cohen J allowing the father to spend time with the child and requiring the parties to attend upon a family consultant.
Thereafter the parties engaged in further litigation including contempt proceedings as a result of the mother’s failure to comply with the orders of Cohen J in relation to her attendance on, and participation with, the family consultant for the preparation of a family report. There were a number of subsequent hearings in the Sydney Registry of this Court, and in other courts in the United States over 2009 and 2010.
During this period the matter was being prepared and case managed for the final hearing before Watts J. In the course of preparations leading up to the defended hearing before the trial judge, Dr M (a child, family and adult psychiatrist) was engaged to interview the parties and the child and prepare and present a written report to the court.
THE REASONS FOR JUDGMENT AT FIRST INSTANCE
At paragraphs 4 and 5 of the reasons his Honour identified the key issue in dispute in the trial:
4.There is no significant issue in this case in relation to parenting capacity. [The child] is progressing well in her health, cognition and developmental milestones. This is a credit to the mother, who has had a significant role in the rearing of the child. Little emphasis was placed upon that fact at trial. The reason was that this is not a case about with whom [the child] should primarily live – the parties are in agreement that the child should live with the mother, who is the primary caregiver and the parent to whom [the child] is primarily attached.
5.A major issue in this case was the willingness of the mother to facilitate a relationship between the child and the father on the one hand and the father’s sensitivity to the difficulties for [the child’s] attachment with him arising from his residing on the other side of the world, on the other.
His Honour made findings as to what was in the best interests of the child regarding the time to be spent with the father. As highlighted by counsel for the father, the appellant does not contend that the trial judge incorrectly identified or misapplied the appropriate statutory provisions in Part VII of the Act and no challenge is made to any of his findings as to the primary or additional considerations identified in s 60CC (see paragraphs 269 to 321).
As to his Honour’s conclusions regarding the best interests of the child, his findings frame the orders pronounced and are central to the issues advanced before this Court on appeal. At paragraphs 322 to 325 his Honour concluded that:
322.It is in [the child’s] best interests that she develop a meaningful relationship with her father. That will contribute to the development of her core identity as a loved and valued member of her father’s family. [The child] currently has a positive connection with her father. I reject the submission made by the mother that the father has a “complete lack of parenting experience”.
323.The relationship between [the child’s] parents is dysfunctional. The mother’s attitude to the father and the anxiety she feels has compromised her willingness and ability to facilitate and encourage a close and continuing relationship between [the child] and her father. The mother has consciously been slow in extending [the child’s] access to her father, and has done so only at times when otherwise compelled by Court Orders, and in circumstances where border protection measures were in place to ensure that the mother could not remove [the child] from Australia.
324.I find that it’s in [the child’s] best interests for me to make orders which would facilitate a development in the time that [the child] spends with her father at a rate that is consistent with the recommendations of Dr [M]. That is a rate far faster than that proposed by the mother, but slightly more conservative than that proposed by the father. Order 15 (sic) is specifically drawn for the period up to 1 February 2012.
325.From when [the child] starts school in 2013, the father will have an opportunity at the commencement of the second and fourth school terms to be with [the child] in Australia during the first two weeks of those school terms. The tyranny of distance in this case creates the necessity of [the child’s] time with the father to fall more heavily during school holidays than would otherwise be the case. Whilst this impacts on [the child’s] time with the mother during school holidays, [the child] has the advantage during school term of being with her mother on all weekends apart from those when the father is able to get to Australia.
Senior counsel for the mother at the hearing acknowledged that the erroneous reference to order 15 in paragraph 324 of the reasons was intended to refer to orders 16.1 to 16.3 and was of no significance.
The trial judge made specific findings upon the credit of the parties and those findings were not challenged on appeal by either the appellant or respondent.
Numerous findings regarding the mother’s credit are peppered throughout his Honour’s reasons. Comments are made upon the truthfulness of the mother’s evidence, her inaccurate and at times contradictory responses, evidence of recent invention and her generally unsatisfactory evidence given in the proceedings. The learned trial judge found that the mother:
“has sworn to the truth of inaccurate information she has provided to the authorities” (paragraph 30);
“conceded that she understood that she was making a declaration on these documents in circumstances where it was an offence to make a false and misleading statement and agreed she had not appropriately completed them”(paragraph 30);
“was untruthful in her oral evidence in order to minimise the effect of unfavourable evidence” (paragraph 33);
was untruthful in relation to “her evidence about whether she had retained a lawyer from Israel” (paragraph 34); and
“in her April 2010 affidavit deliberately misquoted a 2006 DoCS record, leaving out vital words, so as to provide a significantly false impression as to what the document said”(paragraph 47).
At paragraph 28 his Honour determined that:
28.I was unable to have confidence in all the evidence which the mother gave. At times she was untruthful. She had completed official documents which were incorrect. When confronted with inconsistencies in her evidence, the mother was not apologetic.
The trial judge determined, in relation to the credit of the father, that the father found it difficult to “simply concede evidence which was not in his favour” (see for example paragraph 61), “to accept propositions that were plainly obvious” (see paragraph 58), and was at times “disingenuous” (see paragraph 57). His Honour observed that, like the mother, the father’s responses were often long-winded but were not “deliberately fabricated”, however, the trial judge found the father’s evidence was in some respects “unsatisfactory” (see paragraph 55). The trial judge commented at paragraph 63 that:
63.Before leaving the issue of the father’s credit, I should note that at one point in his evidence the father became teary and it was clear at the time that that was a genuine emotion associated with the difficulties he had experienced in establishing a reasonable pattern of [the child] having time with him.
Overall in relation to credit the trial judge concluded at paragraph 64 that:
64.Taking the evidence overall, and having closely observed both of the parents in the witness box I have far more confidence in the evidence of the father than in the evidence of the mother. Where the versions of the parties conflict, I prefer the evidence of the father, unless stated otherwise.
The trial judge in his reasons discussed the ongoing nature of the parental conflict and the impact on the child. He accepted at paragraph 125 the submission of counsel for the father that:
…the history of this litigation discloses a recurrent pattern of a lack of focus by the mother on the actual matters that go to [the child’s] welfare and an excessive focus on process, so that the process itself has become the dispute rather than anything that has as its centre [the child’s] best interests.
It was highlighted at paragraph 126 that Dr M stated that there was “no doubt” that the child had been exposed to the parental conflict and noted that the mother “acknowledged that [the parental conflict] had had an impact on [the child]”. At paragraph 133 his Honour found that the mother had heard the child refer to the father as a “bad man” and had not sought to dissuade the child from such statements and that the child had been exposed to negative attitudes towards the father in the mother’s household.
Significant concerns regarding the involvement of the child in the proceedings and recordings of the child for evidentiary purposes were elaborated on by the trial judge at paragraphs 191 to 207. This was discussed at some length (see in particular paragraphs 199 to 200, 204 and 207 that involve substantial criticism of the father).
The level of parental conflict is further illustrated in the reasons for judgment in the discussion of the mother’s allegation that the father was abusive and the incident that occurred between the parties whilst the child was present on 12 April 2009. Although the trial judge accepted the father’s evidence in relation to the mother’s allegation of abuse (at paragraph 136) and the incident (at paragraph 145) he concluded that:
276.I have found above that apart from the mother’s aggressive behaviour on 12 April 2009, there is no family violence that has occurred or is likely to occur, nor has there been any abuse or neglect. That is not to say that [the child] is not in need of protection from psychological harm. The relationship between the parents certainly exposes [the child] to the risk of long term psychological harm.
In discussing the willingness of each parent to facilitate the child’s relationship with the other parent his Honour found at paragraph 214 that the mother significantly undervalued the benefit to the child of having a relationship with the father and at paragraph 279 found that:
…[the child] has a comfortable and positive relationship with her father which will strengthen as she continues to interact with him electronically twice weekly and under the regime of face to face time which I shall order.
Earlier in his reasons the trial judge highlighted that Dr M was of the view that the father’s claims in relation to “the mother’s controlling and limiting behaviours during visitation are “well supported”” and found at paragraph 160 that:
…there is, on balance, substance to the father’s claim that the mother has from time to time used the devices listed above to curtail in some way the full benefits that might flow to [the child] through spending time with her father. I outline some of the more troubling visitation experiences below.
The reference to the “devices listed above” included, at paragraph 158, that the mother had previously had “visits correspond with appointments, nap time or religious visits”.
In the context of ground 4 it is important that we record that the trial judge specifically discussed religious issues within the parenting dispute and at paragraphs 247, 250 and 303 observed that:
247.I note there is an inference from the father that the mother cites religious reasons for restricting his access to the child, such as needing to attend religious gatherings, being unable to use transport on religious days, and being unable to use electronic communication on certain days. This is despite the mother not strictly observing these requirements when the father is not seeking time with the child.
. . .
250.I am reluctant to make any finding about the mother’s use of religion to restrict the father’s time with the child. I intend to consider Jewish customs in the Orders that I make in order to minimise disruption.
. . .
303.The parties are strong followers of the orthodox Jewish faith. There is no issue between the parents that [the child] will be brought up in that faith…
In discussing the child’s reaction to visitation the trial judge addressed the mother’s concern that the child “…ha[d] become so stressed and her routine so disrupted during visitation with the father that she [became] constipated to the point of requiring medical attention”. His Honour found at paragraph 176 that:
…if [the child] has displayed physical symptoms of constipation around about the times of face to face visits, it is on balance likely they are very much related to the palpable anxiety which I find the mother feels, notwithstanding the mother’s assertion that [the child] does not pick up on it.
The trial judge further concluded at paragraphs 285 to 287 and 307 that:
285.I note that the child has had health complaints (constipation) which the doctors advised may be related to a change in routine and stress.
286.Although the child has not had significant amounts of time with her father, a graduation in time should help to mitigate any stressful effects of the changing circumstances for the child.
287.I have found above that the mother’s anxiety has some impact on the child’s wellbeing, and so the effect of changing circumstances on the mother’s anxiety is something I should factor in, when considering the child’s interests.
. . .
307.The mother is particularly concerned about the father’s lack of adherence to the [the child’s] schedule. Dr [M] noted that the father’s inability to keep to schedule was a result of the ‘vicious cycle’ of mistrust, and opines that the mother’s focus on the impact of such disruptions is excessive and magnified. He was not of the view that [the child’s] health and safety had been compromised by the father’s visits, and said that on the contrary, there was evidence that the visits were a positive experience.
Insofar as the concerns of the mother regarding visitation extended to overnight time with the father the trial judge noted that Dr M was of the view that overnight time was appropriate from the age of three and a half onwards. At paragraph 182 he observed that “[t]he mother has a very different attitude to the disruption of the child’s normal routine, depending upon whether the child is with her or with her father.” The trial judge concluded at paragraphs 301 to 302 that:
301.I note that both parties have support from extended family in their providing for the child. The father has never had time alone with the child, but I find that the father is more than capable of looking after [the child] alone. The father will continue to have the support provided by his wife and his parents.
302.The mother was not able to accept that the anxiety that she might feel as a result of [the child] going to spend time with the father was anything that [the child] would pick up upon. She denied that it would in any way contribute to the physiological symptoms that [the child] sustains from time to time (and manifesting in constipation) which the mother asserts is commensurate with [the child’s] times with the father. Instead, the mother attributes [the child’s] physical symptoms of constipation to disruption in her routine at times when she goes to see the father. She recorded that [the child] sometimes doesn’t eat breakfast and/or doesn’t have a meal until she returns home from her father and that on occasions when she returns at 5 pm she is either so tired she doesn’t sleep or she stays up really late.
The trial judge, in relation to the willingness of each parent to facilitate the child’s relationship with the other parent, identified the manner in which the mother had sought to deliberately frustrate the development of a relationship between the father and the child (see also paragraph 284) and succinctly characterised the parental relationship and the ongoing conflict between the parties as follows:
257. The fight between the mother and the father has over time escalated into a war, and obviously both parties are at least partly responsible for that. The question however, is whether or not the mother has in effect, lost sight of what is in [the child’s] best interests in terms of developing a relationship with her father. I find that she has and that the mother has actively frustrated the potential relationship between the father and child.
258. Counsel for the father made the point that Dr [M] has diagnosed the mother with no mental illness which means that her behaviour is consequently deliberate and calculated. Dr [M] was asked to assume a finding that the mother had been involved in behaviour aimed at controlling, hindering or frustrating the development of the father’s relationship with [the child], and then he was asked whether or not that would have been a conscious decision by the mother and the subject of a significant amount of calculation by her. Dr [M] agreed with those propositions and I accept his evidence about that.
The above findings by the trial judge were not challenged by the mother on appeal.
In regard to s 60CC(3)(l) we observe that the trial judge emphasised the need, in his view, for the orders to be very specific to avoid accidental and/or further breaches of the orders particularly given the litigation undertaken by the parties to date and the mother’s previous compliance with orders of the court (see paragraphs 224.3, 226, 229, 238, 253 to 254 and 314). At paragraphs 311 to 313 his Honour concluded:
311. Given the litigious nature of the parties to date, I have very little confidence that litigation will end here, although I hope for [the child’s] sake that it does.
312. There is a need for the orders to be very specific so as to minimise the opportunity for accidental breaches of the orders, or a circumstance where one parent believes the other has not acted within the spirit of the orders.
313. There is also a need however to afford some flexibility given that international arrangements are not always easy to organise within a strict regime.
THE EVIDENCE OF DR M
The evidence of Dr M in the hearing was central to a number of the grounds of appeal advanced by the appellant. It was contended by the appellant in ground 2 (sub-paragraph 2.3.1), ground 3 (sub-paragraph 3.2.1), ground 6 (sub-paragraph 6.3.4) and ground 7 (sub-paragraph 7.2) that the trial judge’s discretion miscarried in that he failed to take into account relevant facts, namely the recommendations of Dr M, in making orders 16.4, 16.5.1 and 16.6.1, 16.9, and 27. It was submitted that, as a consequence, those orders operate “in a manner” inconsistent with the recommendations of the expert witness, in circumstances where the trial judge in his reasons indicated an intention to follow those recommendations.
Dr M provided two reports to the court. The first was the report of 24 June 2010. That report was written after he had a four hour interview with the mother, the maternal family and the child, and later an interview of the same duration with the father and paternal family and the child. Those interviews occurred in January 2010.
On the first page of his report it is noted that “[e]xtensive material was perused prior to the preparation of my report as provided in an ongoing manner by both parents’ legal representatives. This included extensive Court transcripts.” His recommendations were set out at page 16 and stated:
1.Primary residence should remain with the mother. I found little evidence to support the father’s assertion that transfer of primary care from the mother was indicated or in [the child’s] best interest. The mother’s concern that this was a desired outcome for the father was supported. Given the inability of the parents to engage in civilised communication and basic problem solving, I would not regard shared parenting or even shared parental responsibility to be appropriate. Instead, I would recommend that the mother have parental responsibility for [the child’s] day to day developmental needs. I would however regard it as appropriate for the father to have parental responsibility for [the child] during her time in his care.
2.Regular visits be arranged between [the child] and her father. Prior to school age this should only occur in Australia. From the age of three and a half this should involve at least 1 overnight stay. This would be able to be extended over time.
3.It is my understanding that the delay in the preparation of this report, which was a function of the ongoing dispute of the parties regarding the provision of additional documentation for perusal, had been a further blockage to the father’s contact with [the child]. This was seen to be most unfortunate. I would recommend that such contact immediately be reintroduced. It will however be beneficial for [the child] to maintain a regular routine during the father’s contact with her. It will thus be important for him to be provided with information regarding her day to day routine and schedule. I would not however agree with the mother that this should include her attendance at day care throughout his contact visits, nor was it necessary for the father to only see [the child] on alternate days. The recent series of two 4 hour visits and subsequent 8 hour visits appeared to have been successful. Basic issues such as attendance to the maintenance of routine for eating, sleeping and toileting will be of assistance given her reported vulnerabilities in such areas. I also support the father’s proposal for the immediate introduction of regular Skype contact. Although the mother’s submission that [the child] is too young to fully comprehend the process, she will experience greater familiarity and connectedness through this process.
4.I would strongly recommend that the parties desist from further legal action. Unfortunately, the pathway has been created whereby the parties sought to resolve issues through the legal system given their lack of trust and respect in each other. Both parties referred to their desire to find an honest broker to assist them with regard to such issues. Given their shared commitment to Jewish values, I would support the proposal of finding such a person within the Jewish community. Judaism, of course, has a long tradition of the tribal elder, typically a respected Rabbi, playing such a role. It should be noted that such a strategy is dependent upon the parties accepting and respecting the decision making of this individual, whether this supports their own perceptions or not.
A supplementary report was written by Dr M, dated 7 December 2010, in accordance with an order of the court dated 18 November 2010 to “address the Orders sought by the father in relation to overseas travel… [in] the father’s further Amended Application filed on 3 August 2010”. Dr M noted that the mother’s response dated 3 September 2010 was also provided to him in addition to a significant number of affidavits filed by the mother, the mother’s sister and maternal grandfather in addition to extensive court transcripts. The supplementary report stated that it “should be read in the context of the original report dated 24 June 2010” and at page 2 provided that:
It should be noted that some time has passed since my assessment of [the child] [(DOB: 03/07)]. It was noted that [the child] was still 3 years of age. Her developmental maturity is a key consideration in my response to the father’s application. It should be noted that no further interviews were conducted prior to this assessment, however this was not felt to be necessary to provide an opinion with regard to this particular issue.
Given [the child’s] tender age, I did not regard the father’s application for international travel to be developmentally appropriate. I would however be supportive of his application for increased periods of contact, including overnight stays, during his visits to Australia and should [the child] travel to the United States. The key concern that I hold is the intensity and frequency of the proposed contact. His proposal that [the child] spends her entire school holidays in April, June, July and September, October were seen to be potentially overwhelming for her. In addition, his application that the mother be restrained from taking the same flight to and/or from the United States was potentially problematic. Whilst I would understand and respect the father’s desire to be the sole carer for [the child] on such flights should he be able to travel with her, in my view should he be unable to do so, the mother may be preferable to an alternative nominee.
In my view, a proposal for [the child] to travel to the United States each year would be appropriate. I would not however support this occurring on more than a maximum of two occasions per year. Further, I would recommend that the duration of separation from her mother be limited to1 week at a time at this stage.
We record that his Honour observed at paragraph 16 that “Dr [M] attended court with a very large piece of travelling luggage containing the volume of paper that he had been given” by the parties. We also observe that between the time that the supplementary report was written by Dr M and the hearing date before the trial judge the orders sought by the appellant and respondent had been further amended. This is reflected in the reasons of the trial judge that detailed the parties final orders sought as handed up during the trial, at paragraphs 6 and 7, where it is stated that:
6.The father seeks some 30 orders, which are attached at Appendix A. Included in the orders which he seeks, handed up in Court on 17 December 2010, are that the child live with the mother and spend graduating time with the father, with overnights to begin immediately and gradually increase, and for overseas visitation to begin in August/September 2011.
7.The mother seeks some 47 orders, which are attached at Appendix B. The orders which she seeks, handed up in Court on 20 December 2010, set up a detailed schedule of [the child’s] time with her father until 2020. The orders are extremely particular in relation to the graduated nature of the time the child is to spend with the father. Overnight time is to first occur in 2013 and overseas time is only to occur in 2020 once the child turns 13 years old. The mother proposes that [the child] be reassessed by the child psychiatrist after 12 months and again prior to her spending time overseas with her father in 2020.
Dr M gave extensive evidence on the afternoon of the sixth day of the trial on 20 December 2010. He was examined by counsel for the father and cross examined by counsel for the mother.
His Honour summarised the recommendations of Dr M as follows:
8.Dr [M] was asked extensively about each party’s proposal and what regime he would find appropriate, both in relation to [the child’s] face to face time with her father in Australia and time with him in the United States. Dr [M] gave a general outline of an appropriate regime for the time the child is to spend with the father into the future.
9.In terms of daytime contact, Dr [M] recommended starting with about a two hour visit, then moving to two half days and then moving to full days, maybe with some breaks, but it would be appropriate to have some consecutive days. The number of consecutive days would be more substantive towards the end of the period. Dr [M] advised that the first contact would be partly facilitated, perhaps for the first half hour.
10.In regards to overnight time, at the end of the hearing the parties had agreed it could commence but disagreed about its timing. I made some interim orders commencing overnight time on 26 December 2010 and 2 January 2011. Dr [M] recommended that in May/June 2011, over a 4 week period, there would be one overnight in the first week; two overnights in the second week; two consecutive overnights in the third week and two consecutive overnights in the fourth week.
11.Dr [M] emphasised that the father needs to maintain [the child’s] general routine. Consequently it is important for him to receive information regarding her day to day routine and schedules from the mother.
12.Regarding overseas travel (of a 10 day duration), Dr [M] advised that, subject to comments to which I shall later refer, these begin from the year the child turns age five. He said one overseas trip with the father is appropriate in the first year overseas visitation begins, followed by two visits per year thereafter. Dr [M] advised that there may be advantages if the mother travelled with [the child] on the first one or two overseas trips. It means that [the child] would be more comfortable with the new adventure and the trip would potentially be less traumatic for [the child]. However Dr [M] also spoke of the disadvantages. This arrangement also must be weighed against whether the mother is a flight risk, which is discussed further below.
13.Dr [M] was asked whether or not it would be preferable in the early overseas occasions for the mother to be nearby in the United States. Dr [M] indicated that if it was a supportive relationship that would be helpful and appropriate, however I find in the circumstances of this case, the mother being nearby whilst [the child] is in the United States seeing her father is likely to undermine the transition into these arrangements.
14.Dr [M] opined that the mother’s orders sought “a somewhat complicated proposal” and overall assessed it as “quite slow” in terms of facilitating the development of a relationship between [the child] and her father. Dr [M] was critical of the restrictive nature of the mother’s proposal saying it would be harder to normalise [the child’s] relationship with her father.
15.Dr [M] seemed initially to embrace the tenor of the proposals of the father in relation to his time with [the child]. When questioned specifically, Dr [M] modified his view and said that the father was possibly moving a little fast; but maintained his general view that the speed of progression of [the child’s] time with her father, as proposed by her mother, was far too slow.
RELEVANT LEGAL PRINCIPLES
The principles relating to appeals of a discretionary nature are well known (see House v The King (1936) 55 CLR 499 at 504 to 505).
To warrant intervention it is not enough that an appellate court would have taken a different course to that of the trial judge. The appellant must establish that the trial judge erred in his exercise of discretion, acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect his decision, mistook the facts, failed to take into account a material consideration or on the facts before the court at first instance reached a result that is unreasonable, unjust or plainly wrong. As Stephen J stated in Gronow v Gronow (1979) 144 CLR 513 at 519 to 520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In the decision of CDJ v VAJ (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ commented at 219 that:
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.
Kirby J in his separate reasons made similar observations and at 231 to 232 stated that:
…An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self-restraint to those ordinarily proper to the discharge of appellate judicial functions…In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.
GROUNDS OF APPEAL
For convenience we will deal with ground 2 initially, grounds 3 and 5 together, then ground 6, followed by grounds 4, 7 and 8 separately thereafter.
Sub-grounds 2.1 and 6.1 will be addressed separately to the preceding grounds as it is contended with respect to those discrete sub-grounds that the trial judge erred at law in failing to provide adequate reasons for making orders 16.4 and 16.9.
Ground 2 - Order 16.4 and the structure and quantum of time spent with the father after 1 February 2012 to 31 January 2013
The learned trial judge ordered that:
16.4.From 1 February 2012 to 31 January 2013 for a total period up to 4 weeks in no more than 10 day block periods (up to 10 days (including travel time) of that time being in the United States of America) with the father to specify the schedule of time the child will live with him in writing 8 weeks prior to each visit.
Ground 2 provides that:
2.That His Honour’s discretionary decision miscarried in that:
…
2.2On the facts as determined by His Honour the result embodies (sic) in Order 16.4 is manifestly unjust and plainly wrong;
2.3His Honour failed to take into account relevant facts in making Order 16.4 namely:
2.3.1The order operates in a manner contrary to the recommendations of Dr [M] which His Honour had stated he intended to follow;
2.3.2That the order, contrary to the tenor of His Honour’s expressed reasons, would permit the Respondent, only days after the first occasion that he had the child for four consecutive nights, to then have her for ten days including travel to and in the United States of America; and
2.3.3That the order as framed would be likely to operate at the option of the Respondent, wholly contrary to the graduation of time that His Honour had stated he intended.
Order 16.4, and ground 2, must be read and considered in the context of the preceding orders 16.1, 16.2 and 16.3 that were intended by the trial judge to provide for graduated time to be spent by the father with the child in May, June, August, September and December 2011, and in January 2012, in Australia.
It was accepted that the father, pursuant to orders 16.1 and 16.2, had spent time with the child as stipulated in May, June, August and September 2011. It is intended that, pursuant to order 16.3, the father will spend further time with the child between 13 December 2011 and 10 January 2012.
Prior to the operation of order 16.4 it was anticipated that the father would spend eight overnights with the child pursuant to order 16.1; seven overnights with pursuant to order 16.2; and a further nine overnights over December 2011 and January 2012 pursuant to order 16.3.
The essence of the mother’s complaint is that the time provided for the father to spend with the child pursuant to order 16.4 is not appropriately graduated, is excessive within the structure of the preceding orders and is inconsistent with the recommendations of Dr M as to the increase in time that the child should spend with the father that the trial judge is said to have intended to follow.
Specifically the complaint is that the father would have overnight time on two occasions in January 2012 for two nights then four nights, but then potentially, at his election, he would be able to have an immediate block of up to ten days (including travel time) in the United States from 1 February 2012. It was submitted that the drafting of order 16.4 may, in effect, allow the father to give eight weeks written notice prior to spending a total of four weeks in February and March 2012 with the child and to thereafter spend no further time with her for the balance of 2012 contrary to the graduated time envisioned by his Honour.
The mother contended that the learned trial judge’s discretion miscarried in that he erred in failing to take into account the recommendations of Dr M given that order 16.4 operates in a manner inconsistent with those recommendations. It is submitted that the outcome is manifestly unjust and plainly wrong as it is not developmentally appropriate for the child.
Senior counsel for the mother identified and relied upon paragraphs 8 to 15 of the trial judge’s reasons and paragraphs 2 to 3 of Dr M’s recommendations in his initial report. The mother also directed the Court’s attention to Dr M’s view that “[p]rior to school age [regular visits between [the child] and her father] should occur only in Australia” and that it would be beneficial for the child to maintain a regular routine during the father’s contact with her. The following passage of Dr M’s supplementary report was highlighted:
His proposal that [the child] spends her entire school holidays in April, June, July and September, October were seen to be potentially overwhelming for her.
…
In my view, a proposal for [the child] to travel to the United States each year would be appropriate. I would not however support this occurring on more than a maximum of two occasions per year. Further, I would recommend that the duration of separation from her mother be limited to1 week at a time at this stage.
Dr M was examined and cross examined during the trial on his reports. In giving evidence Dr M had the proposed orders of the father, handed up to him on 17 December 2010, and those of the mother, provided on 20 December 2010.
Senior counsel for the mother referred the Court to passages of the cross examination of Dr M including his view that any international travel with the father, at that time, should be limited to one week in duration rather than ten days and that prior to school age time with the father should only occur within Australia. In particular senior counsel referred to Dr M’s opinion that:
…to go from no overnight stay to an extended period such as 12 days without any contact with her mother would be developmentally inappropriate for that to happen immediately.
Dr M very clearly expressed a preference for the child to have increased contact with the father including overnight contact prior to her travelling internationally with him. The gradual introduction of overnight contact and then further graduated time with the father was central to the evidence of Dr M and it is clear that he agreed with the proposition that to go from no overnight time to an extended period such as twelve days without any contact with the mother would be developmentally inappropriate.
However, in his cross examination Dr M, in response to a further question, stated that:
…it would certainly be preferable for the commencement of the international travel to be delayed until [the child] has had more frequent contact including overnight contact in Sydney with the father for more than single overnight stays prior to the initiation of international travel…
And to a question put by the trial judge Dr [M] confirmed that:
…once there had been the establishment of overnight stays during the course of 2011, I would be supportive of [the child] having the opportunity to travel with her father at the end of 2011, start of 2012.
Subsequently the following was put to Dr M in cross examination regarding the duration and frequency of any international travel with the father and the appropriate age of the child:
Doctor, I’ll ask another question. When do you consider [the child]) is likely to be developmentally ready to be separated from her mother for a period of 10 to 12 days so that she can travel overseas?---
If [the child] has established a secondary attachment relationship with her father so that she felt comfortable to spend time with him, to have regular overnight contact with her father, at approximately the age of – certainly from approximately the age of five, I would be supportive of her having such extended periods of time which would allow her to spend time with her father and the extended family in the United States.
. . .
And what age do you think it would be – and again, I know we talked about attachment rather than age, but at what age do you consider it’s likely [the child] would be ready for two trips a year?---
I have difficulty in providing absolute guidelines with regard to these issues. On one hand one would like to see her to successfully navigate the first trip before then planning the next trip and subsequent trips. On the other hand, it’s necessary, as we have discussed, to actually set a plan in train otherwise there would be further problems predicted way down the track. Certainly, ideally, I think in the first year, it should be one trip and in the second year, if things were tracking well for [the child] that could be expanded to two trips that year.
The trial judge accepted this evidence and it formed the foundation of order 16.4 in that the order provided an opportunity for the father to have one trip of up to ten days including travel time with the child between February 2012 and January 2013 in the United States, with the remaining time to be spent in Australia.
At paragraph 324 his Honour found that it was in the child’s best interests “to make orders to facilitate a development in the time that [she] spends with the father at a rate that is consistent with the recommendations of Dr [M]” and that this was a far faster rate than what was proposed by the mother but slightly more conservative than that proposed by the father.
On considering the learned trial judge’s reasons, the relevant passages of the transcript detailing Dr M’s evidence and the recommendations in his initial and supplementary reports, we conclude order 16.4, as pronounced by his Honour, is consistent with Dr M’s evidence as it provides for the child to have one trip with the father to the United States not exceeding twelve days from approximately the age of five at the end of 2011 and beginning of 2012, and in the context of orders 16.1 to 16.3 it also provides for a gradual development in time with the father leading up to an overseas trip with him in a manner that was suggested to be developmentally appropriate for the child.
We find that his Honour did not fail to take into account Dr M’s recommendations as contended by the mother or that the result is manifestly unjust or plainly wrong. Despite the specific complaint in sub-paragraph 2.3.2 of ground 2 we do not intend to redraw or amend the order made by the trial judge. In reviewing the evidence, the orders sought by the father, and the intention of the trial judge it is clear that the order was drafted to operate and must operate in block periods throughout 2012 so as to continue the gradual and staggered, increased involvement of the father in the child’s life in accordance with what his Honour found was in her best interests.
It follows that in our considered opinion order 16.4 is consistent with the trial judge’s finding that it was in the child’s best interest for the time spent with her father to develop at a rate consistent with Dr M’s recommendations. We are not satisfied that the mother has established that the trial judge’s discretion miscarried.
Ground 2 is not made out. We have addressed sub-ground 2.1 later in these reasons.
Grounds 3 and 5 – Orders 16.5.1 and 16.6.1, Orders 16.5.2, 16.6.2 and 16.7.2
Orders 16.5.1 and 16.6.1, orders 16.5.2, 16.6.2 and 16.7.2, and order 16.9 provide for the time the father is to spend with the child over school term holiday periods and the December/January school holiday periods in 2013, 2014 and 2015, and thereafter, as well as at any other time that the father is in Australia.
In summary grounds 3 and 5 contend that the trial judge’s discretion miscarried and that he failed to take into account relevant facts when pronouncing orders 16.5, 16.6 and 16.7.2 as the outcome is manifestly unjust in that it will deprive the mother and maternal family of holiday time with the child in 2013 and 2014 during the school term holidays and from 2013 and each year thereafter in the December/January holidays. Ground 3 also contends that orders 16.5.1 and 16.6.1 operate contrary to the recommendations of Dr M.
The provision of a further two weeks time provided to the father at the conclusion of the first and third term school holidays was also strongly contested by the mother in ground 3.
Orders 16.5.1 and 16.6.1 pronounced by the trial judge stated that:
16.5. From 1 February 2013:
16.5.1. For periods up to two weeks during the duration of each school holiday at the end of the first and third school terms and for up to two weeks from the conclusion of those holidays, in Australia with any such periods being broken by the child being with the mother for at least 2 nights…
16.6. From 1 February 2014:
16.6.1. For the duration of each school holiday at the end of the first and third school terms, and for up to two weeks from the conclusion of those holidays, in Australia…
Ground 3, as amended by leave, challenged orders 16.5.1 and 16.6.1 and contended:
3.That His Honour’s discretionary decision miscarried in that:
3.1The result embodied in these orders is manifestly unjust in that it will operate to cause the child to be with the Respondent for the duration of the mid year holiday periods in 2013 and 2014 during the school year thus depriving the child from spending any holiday time with the Appellant or the Appellant’s family;
3.2His Honour failed to take into account relevant facts in making Order 16.5.1 and 16.6.1 namely:
3.2.1The order operates in a manner contrary to the recommendations of Dr [M] which His Honour had stated he intended to follow;
3.2.2That the Order does not permit the child to spend any holiday time with the Appellant or the Appellant’s family for the duration of the school year.
Orders 16.5.2, 16.6.2 and 16.7.2 stated that:
From 1 February 2013…
16.5.2 For up to 12 days (including travel time) of each of the holidays at the end of the second term (the second term school holidays) and the fourth school term, (the December/January school holidays) in the United States of America…
From 1 February 2014…
16.6.2 For up to two weeks (including travel time) of the second term and three weeks of the December/January school holidays, in the United States of America…
From 1 February 2015 and thereafter…
16.7.2For up to two weeks (including travel time) of the second term and four weeks of the December/January school holidays at the end of the fourth school term, in the United States of America.
Ground 5 submitted:
5. That His Honour’s discretionary decision miscarried in that:
5.1he failed to take into account that the orders would operate in respect of the December / January holidays in a fashion that would permit the Respondent to nominate a period of the holidays up to eight weeks before which would result in the Appellant encountering difficulty in arranging the time of any holidays of her own with the child, arranging vacation time and arranging child care should she be working, and,
5.2it may result in the child being required to return to school immediately following extended time with the Respondent overseas.
5.3he failed to allow the child to have more than a very limited period of holiday time with the Appellant and the Appellant’s family.
The effect of order 16.5.1 is that in 2013 the father would spend time in Australia with the child for up to two weeks during each of the first and third school term holidays and thereafter for a further two weeks during the commencement of the second and fourth school terms after she had spent at least two nights with her mother.
Similarly, the effect of order 16.6.1 is that in 2014 the father would spend time with the child in Australia for the duration of the first and third school term holidays and thereafter for another two weeks at the commencement of the second and fourth school terms.
We are able to understand from the reasons for judgment the importance to the child of the structure and impact of the further two week periods in that it highlighted the intention of his Honour to better secure and develop the father/daughter relationship in 2013 and 2014 including a measured level of involvement with her schooling and in the Jewish holidays that might fall within those fortnights.
However, we record that order 16.7.1 provided that from February 2015 and thereafter the father’s time with the child would be reduced to the second half of the first and third school term holidays followed by two weeks from the conclusion of those holiday periods during the second and fourth school terms. This time was also to be spent in Australia.
In the same fashion order 16.5.2 provided that in 2013 the child would spend up to twelve days (including travel time) with the father in the United States during the second term school holidays and December/January school holidays.
Order 16.6.2 effectively increased this time in 2014 to allow the father to spend up to two weeks (including travel time) with the child in the United States in the second term school holidays and three weeks in the January/December school holidays.
The effect of order 16.7.2 is to maintain the time with the father in the second term school holidays but increase the time in the December/January school holidays and accordingly the order provides that in 2015 and each year thereafter the father is to spend time with the child in the United States for two weeks (including travel time) during the second term school holidays and then for four weeks in the December/January school holidays.
In conjunction orders 16.5.2, 16.6.2 and 16.7.2 provide for the child to spend time with the father in the United States in graduated time frames increasing from two periods of twelve days in 2013, followed by two periods of respectively two then three weeks in 2014, followed by a consistent regime of two periods per year of two weeks then four weeks from 2015 and thereafter.
Senior counsel for the mother submitted that order 16.5.1 would operate to allow the father to spend up to “almost” four consecutive weeks with the child and suggested that this outcome was contrary to the recommendations of Dr M. In particular, reliance was placed on Dr M’s evidence in cross examination and the Court’s attention was drawn to the following passage of the transcript:
Do you consider that from December/January 2013 or 2014 that it’s in [the child’s] best interests to spend the duration of the school holidays with the father between terms 1 and 2, the duration of the school holidays with the father between terms 2 and 3, the duration of the school holidays with the father between terms 3 and 4 and a period of about four weeks over the holidays at the end of the school year each year?---
Your Honour, my reading of the father’s application was that it does actually state in 1.5 from - sorry, it states in 1.6, from 1 December 2012, for a period of up to four weeks in the United States and I think that I expressed concern in my supplementary report and that the amount of time that the father was requesting was excessive. I think that has been moderated somewhat, but it still strikes me as being a very large block of time from when [the child] is only five years of age.
Do you see 1.7, doctor?---
Yes.
It’s sought that from 1 March 2013 the father seeks the duration of each school holiday at the end of the first, second and third terms of school?—
Yeah.
And/or the United States and for up to two weeks from the commencement of the second and third term in Sydney?---
Yes.
And up to four weeks of each December/January school holiday at the end of the fourth term?---
Yes.
Do you consider it in her best interest to spend all of that time with the father during the holidays?---
No.
What do you consider would be the more appropriate arrangement?---
I think the more appropriate arrangement would be to spend - to have one or two, initially kind of one trip for the year and then extending it to a maximum of two trips per year to the United States. I would support the father having additional contact with [the child] during the school holidays at other times. The concern that I would have is, if the arrangements are for all of [the child’s] school holidays, for the majority of that time to always be spent in the care of the father, that would be potentially problematic.
Do you think that she should spend half the school holidays with her mother and the other half with the father?---
That would be a more typical arrangement.
At this point the trial judge interjected and put the following question to Dr M:
HIS HONOUR: Even in a situation where one parent lives overseas and, therefore, is not spending any term time with the child?---
I think that that would need to (sic) considered and certainly, as your Honour is, I think, suggesting, there is a need to kind of balance out that there are going to be substantive blocks of time where [the child] will be spending her mother as well. I think that spending more frequent periods of time in the care of the father would be - and longer periods - over time would thus be more appropriate than the standard half and half, but whether it should be actually all of her holidays, every holidays, as an ongoing arrangement would potentially be problematic over time.
Senior counsel also relied on paragraph 28 of his summary of argument that summarised the mother’s complaint. It stated that:
…[the] December/January holiday period provides the only opportunity of substance throughout [the child’s] childhood for her to go on vacation with the [mother]. In this context and acknowledging the holiday period as being constituted by about six weeks, the appellant raises three distinct problematic consequences. Firstly, the respondent is permitted (Order 17) to nominate the portion of the holidays he will use on eight weeks notice. This limits the appellant’s opportunity to make plans for her own holidays or, in the future, alternate childcare arrangements. Further, rather than his being limited to alternating periods of the first half and second half as the [mother] now proposes, the nominated period may fall in the midst of the holiday providing much more limiting segregation of time for her to use.
It was also emphasised on behalf of the mother that her concern from 2015 onwards was that whilst shorter holiday periods would then be available to her, the duration of these holiday periods with the child are such that the substantial time of four weeks provided to the father with the child in the December/January school holidays would necessarily limit her opportunities in the years ahead to take any form of an extended vacation with the child and that this was not in the child’s best interests. The mother submitted that the father should have half of the December/January school holiday periods and the beginning or end of those school holidays.
It is apparent from the above passage of the transcript that Dr M was of the opinion that it was not in the child’s best interests to spend all of her time during her school holidays with the father. Specifically, Dr M was of the view the amount of time proposed in the father’s draft order 1.7 (annexed to his Honour’s reasons at page 78) was not in the child’s best interest. That draft order sought in 2013 the whole of the first, second and third term school holidays in Australia and/or the United States, two weeks during school term from the commencement of the second and third terms in Australia, and four weeks in the December/January school holidays in the United States.
Dr M was of the view that in the first year one trip to the United States would be appropriate, followed by a maximum of two trips to the United States per year, with the father to have additional time with the child during school holidays at other times. Dr M underlined that for the child to have all of her school holidays spent with the father “as an ongoing arrangement would potentially be problematic over time”.
The learned trial judge found at paragraph 324 that it was in the best interests of the child to make orders “which would facilitate a development in the time that [she] spends with the father at a rate that is consistent with the recommendations of Dr [M]”. Earlier in his reasons at paragraph 15 the trial judge stated that Dr M “seemed initially to embrace the tenor” of the father’s proposals in relation to time with the child but later modified his view under specific questioning conceding that the father’s proposals “possibly” moved a “little fast” but maintained the general view that the mother’s proposals were “far too slow”.
At paragraph 325 his Honour emphasised that the “tyranny of distance” required the child’s time with the father to fall more heavily during school holidays “than would otherwise be the case”. He acknowledged that this would impact the mother’s time during the school holidays but considered that the child would have the advantage of being with the mother during the school term and on weekends during the school year.
The orders made by the trial judge for 2013 and 2014 allowed for increased time with the father during the school term holidays, including for two trips to the United States in each year, starting with twelve days including travel time (in 2013), then two weeks and then three weeks (in 2014). Given the preceding order 16.4 and the provision for one twelve day trip to the United States in 2012, this outcome is consistent with Dr M’s evidence given in cross examination envisioning an initial trip to the United States the first year followed by two trips to the United States in the following year as well as additional time with the father in school holidays “at other times”.
Although the time that the child will spend with her father pursuant to orders 16.5 and 16.6 will be substantial given that she will spend effectively; all of the first and third school term holidays in 2013 and 2014 with her father; and, respectively twelve days in the second term school holidays and twelve days in the December/January holidays in 2013; then fourteen days in the second term holidays and twenty-one days in the December/January school holidays in 2014; the remaining holiday time in 2013 provided to the mother will be effectively just over four weeks in total in the December/January holidays and roughly three weeks in the December/January holidays in 2014. It is true that the mother will have limited time with the child during the school term holidays in 2013, given order 16.5.2, but she will have the remaining time in the second term school holidays after the father has spent twelve days with the child. In 2014, in view of order 16.6.2, the mother will similarly have limited time with the child during the second school term holidays after the father has spent fourteen days with her. However, in 2015 and thereafter, by virtue of order 16.7.1, the mother will have time with the child in the first half of first and third school term holidays, have the remaining limited time in the second school term holidays after the father has spent fourteen days with the child in the United States, and have effectively the remaining two weeks of the December/January school term holidays.
Insofar as the appellant contends (in sub-ground 3.1) that the child will not spend “any holiday time” with the mother or maternal family in the mid-year school holidays in 2013 and 2014 and that the orders do not permit the child to spend “any holiday time” with the mother or maternal family for the “duration of the school year” or (in sub-ground 5.3) “more than a very limited period of holiday time” with the mother and maternal family in the December/January holidays, those sub-grounds are not made out in view of our conclusions above.
We do not consider that the trial judge erred in failing to take into account relevant facts in making orders 16.5.1 and 16.6.1, namely that the orders operate in a manner contrary to the recommendations of Dr M that his Honour found would be in the best interests of the child at paragraph 325. As was recently stated by the Full Court in Bostoi v Bostoi [2011] FamCAFC 132 (Coleman, Ainslie-Wallace and Murphy JJ) at paragraph 40:
It is useful at the outset to consider the nature of an expert opinion and the role of the fact finder. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, Heydon JA (with whom Priestly and Powell JJA agreed) at para 59 quoted with approval what was said by Lord President Cooper, in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 at 39-40 about experts giving evidence:
… Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight for it cannot be tested by cross-examination nor independently appraised, and the parties have involved the decision of a judicial tribunal and not an oracular pronouncement by an expert.
We conclude that orders 16.5.1 and 16.6.1 operate in a manner consistent with the trial judge’s finding at paragraph 325 and what his Honour determined was in the child’s best interests. We are also satisfied that the result is not manifestly unjust.
We are also not satisfied that in making orders 16.5.2, 16.6.2 and 16.7.2 the trial judge’s discretion miscarried. In our view it was open to his Honour in exercising his discretion to make those orders on the evidence before him.
Grounds 3 and 5 are not made out.
Ground 6 – Order 16.9 and the father’s time with the child at all other times when he is in Australia
Ground 6 is argued in conjunction with grounds 3 and 5 in that the mother contends that the operation of order 16.9 may allow the father to further encroach on the reduced time that she will spend with the child during the December/January school holidays and allow him to have further time during school term in addition to the time provided for in orders 16.5.1, 16.6.1 and 16.7.1.
It is contended on her behalf that the trial judge’s discretion miscarried in that he failed to take into account relevant facts, namely that order 16.9 operates contrary to the expressed intention for the child to spend graduated time with the father, that it may operate to allow the father to spend further time with the child during school term immediately after the time spent pursuant to orders 16.5.1, 16.6.1 and 16.7.1 and therefore gives rise to a shared parenting regime contrary to his Honour’s reasons and the recommendations of Dr M. It is further advanced that the trial judge erred as the outcome is manifestly unjust in that the order is expressed to “operate without limitation” and would in effect provide for a shared parenting regime when the father is in Australia outside of the periods provided for by orders 16.5, 16.6 and 16.7.
Order 16.9 provided that:
16.9.At any other time in Sydney, Australia:
16.9.1 Each alternate weekend from after school Friday until the commencement of school on Monday; and
16.9.2 Each Tuesday from after school until the commencement of school on Thursday…
Ground 6 contends:
6.That His Honour’s discretionary decision miscarried in making Order 16.9 in that:
…
6.2The order is manifestly unjust on the facts as determined by His Honour in that it is expressed to operate without limitation and would thus operate to invoke a shared parenting regime for the child for indefinite periods that may be determined by the Respondent when the reasons for judgment disavowed any intention to do so;
6.3That His Honour failed to take into account relevant facts namely that:
6.3.1contrary to the expressed aim of graduation, the order may operate to require the child to spend more time with the Respondent than with the Appellant;
6.3.2the order may operate to have the child living with the Respondent for periods immediately after the child has already spent extended times with the Respondent pursuant to Orders 16.5.1, 16.6.1 and 16.7.1;
6.3.3the Respondent may spend extended periods in Australia and the order may in those events operate to implement a regime of shared parenting which is contrary to the stated intention of the reasons; and
6.3.4that this order may invoke a shared parenting regime which was contrary to the recommendations of Dr [M] which His Honour had expressly adopted.
Senior counsel for the mother argued that the additional time provided for, and outcome of, order 16.9 was contrary to the trial judge’s reasons at paragraphs 359 to 361 that stated:
359.No order has been made for equal shared parental responsibility. Consequently, the provisions of ss 65DAA(1) and (2) FLA do not apply as those subsections are only triggered by such an order being made. Irrespectively, the court may consider making orders such as those contemplated by ss 65DAA(1) or (2) FLA but the power to do so is not reliant upon factual findings made, inter alia, under s 65DAA(1)(b) or (2)(d) and s 65DAA(5) FLA.
360.Equal time is not a tenable suggestion given the father lives in the USA, and is not one sought by either party. Substantial and significant time is impossible for the same reason.
361.The order sought by the father in appendix A, order 1.8, whilst seemingly being an order that would give [the child] substantial and significant time with him, in reality is not such an order. The father would have to be permanently living in Australia for such to be the case and that is not the father’s proposal. Rather, that order is an order which is intended to create flexibility in the future should the father spend some extended period during school term in Australia.
The above paragraphs must be read in the context of earlier findings in the trial judge’s reasons relating to the manner in which the mother had sought to frustrate the relationship between the father and the child, the ongoing parental conflict (see paragraphs 257 to 258) and his Honour’s s 60CC(3)(l) findings (see paragraphs 311 to 313) that highlighted the need for the orders to be very specific given the parties’ history of litigation but also to afford some flexibility given the international nature of the parenting arrangements.
One of the mother’s primary concerns was that, in the past, the father had spent extended time in Australia. Notwithstanding that concern it is clear from his Honour’s reasons that order 16.9 was drafted with flexibility in mind and on the basis that the father would not be, and did not intend to be, resident in Australia and that his trips would be limited in number and duration each year.
We conclude that order 16.9 does not invoke a shared parenting arrangement. It provides only for the father to spend additional time with the child in the event that he were to be unexpectedly in Australia at times other than the periods provided for in orders 16.5, 16.6 or 16.7.
We record that order 17 provides that the child’s “time with the father pursuant to Orders 16.4 to 16.9 is subject to his ability to exercise it and, for the purpose of facilitating the time that the child will live with the father pursuant to Orders 16.4 to 16.9, the father must give the mother at least 8 weeks advance written notice of his arrival and departure dates.” Given that the father is resident in the United States, on any occasion that he happens to be in Australia, not for the purpose of spending time with the child, he would be required to give the mother eight weeks notice of his travel in order to be in a position to spend any time with the child pursuant to order 16.9.
We consider that it was open to the trial judge to make order 16.9 on the evidence before him. We are not satisfied that his Honour’s discretion miscarried, that the order is manifestly unjust or that the trial judge failed to take into account relevant facts including the evidence of Dr M and his recommendations. The mother has not established an appealable error on the part of his Honour.
Section 66BA discussed by Kay J above was then the predecessor to the current s 66E and the then s 66F is the predecessor to the current s 66G.
Love v Henderson (supra) was more recently discussed in the decision of Collu v Rinaldo (No. 2) [2010] FamCA 439. The mother in that decision sought an order that if the parties’ child was ordered to live anywhere other than with the mother in the United Arab Emirates then the father was to pay the mother $10,000 AUD for relocation and re-establishment costs. Watts J noted that counsel for the mother relied on the court’s power to make such an order under s 64B(2)(i) and stated that:
490.In support of his submission, counsel for the mother relied upon Love & Henderson (1996) FLC 92-653. In that case, Kay J dealt with an application by a father that a mother provide financial support to enable him to have access to the two children of the parties. In the circumstances of that case and at that time, there was no provision under the child support legislation for an application to be made on behalf of the parent, who was anything less than the substantial access parent, for support.
491.In Love & Henderson, Kay J found that the then s 64 Family Law Act provided that the court could make an order it considered proper having regard for the welfare of the child as the paramount consideration (s 64 FLA was the previous successor to s 60CA FLA).
492.His Honour found that where the legislation did not otherwise allow for provision of financial support to an access parent, His Honour could rely upon the general power to make orders which would promote the welfare of a child as the source of the necessary power.
493.Whilst counsel for the mother referred to s 64B(2)(i) as providing the court’s power, the power actually is not in s 64B(2) but rather is in s 65D(1) which is the power given to the court to make parenting orders as it thinks proper. Section 64B(2) sets out what is a parenting order.
Watts J in Collu v Rinaldo(No. 2) (supra) did not ultimately determine the issue as his Honour concluded that to make the orders sought by the mother would not be a proper exercise of discretion as there was not sufficient evidence of the parties’ financial circumstances before the Court. Further, the application was made by the mother after the conclusion of the trial in circumstances where she sought to reopen her case to call further evidence and that application was refused by his Honour.
We observe that in Love v Henderson (supra) above at 82,689, Kay J highlighted that requiring a party to meet the costs of transporting a child to and from access is in a sense a child support consideration as s 117 of the CSAA makes reference to the high costs of enabling a parent to have access to a child. Specifically, s 117(2)(a)(iv) of the CSAA states that:
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
…
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain…
Section 117(2B) and (2C) provide that a parent’s costs can only be considered high:
(2B) …if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
In the decision of Wales & Falls & Anor (SSAT Appeal) [2010] FMCAfam 116 the appellant father challenged a decision of the Social Security Appeals Tribunal on the discrete issue of the manner in which the Tribunal dealt with the costs of the appellant exercising contact with his children who resided in the United Kingdom. The Tribunal made a determination as to whether the father’s costs of four trips to England to spend time with his children constituted a “special circumstance” under s 117(2) of the CSAA. The Tribunal concluded that half the costs of travel were reasonable.
In that decision Riethmuller FM discussed s 117(2)(a)(iv) and s 117(2B) of the CSAA and stated that:
7.Determinations as to the care arrangements of children are made by the Courts under Division VII of the Family Law Act. In some cases these are made by court order after a trial, in others by consent order, and in a great many cases by private agreement between the parties that never become formalised in a court order. There is no jurisdiction on the part of the Tribunal to make determinations as to the amount of time that a parent should have with their children.
8.The court’s power in Part VII of the Family Law Act is not fettered by the provisions of the Child Support (Assessment) Act: see Love v Henderson (1995) FLC ¶92-653; (1995) 125 FLR 129; (1995) 20 Fam LR 128.
In the case under appeal before us the trial judge at paragraphs 291 and 292 stated that:
291.The father seeks an order that each party will pay one half of the return airfares to and from the United States of America for the child. The broad financial position of each party is set out above.
292.Counsel for the mother submitted that the mother should not be required to pay any costs in respect of overseas travel on the basis that she bears the substantial financial burden of maintaining [the child]. The father is assessed to pay child support based upon his current declared income - his current assessed child support is in the approximate sum of $278 per month (the mother makes the point that does not cover the cost of day care once a week per month for [the child]). I am mindful that ordering the mother to pay for half airfares has the potential to lead to further disputes as to the timing and process by which that happens, to provide reasons why international travel will not take place and possibly lead to further litigation. I am unable to conclude that, in the medium term one party has a substantially greater earning capacity than the other. I find it is in [the child’s] best interests if the father be responsible for paying for all her airfares to and from the United States but that I order the mother give a credit to the father of one half of the airfares paid, which the father may offset against any liability to pay child support that he otherwise might have.
It is clear that the above paragraphs that formed the basis of order 33 were discussed in relation to the s 60CC additional considerations and specifically s 60CC(3)(e). Subsection 60CC(3)(e) involved a consideration of the practical difficulty and expense of the child spending time with the father and whether that difficulty or expense would substantially affect the child’s right to maintain personal relations and direct contact with him on a regular basis.
The trial judge’s consideration of the s 60CC primary and additional considerations in paragraphs 273 to 321 preceded his conclusions as to what was ultimately in the child’s best interests, per s 60CA, as the paramount consideration in making the particular parenting orders that he did. His Honour determined at paragraph 322 that it was in the child’s best interests that she develop a meaningful relationship with her father and order 33 was directed to dealing with the costs of the child’s international travel that was necessary for her to spend time with the father in the United States.
The trial judge concluded at paragraph 323 that the relationship between the mother and father was dysfunctional, that the mother’s anxiety and attitude to the father compromised her willingness to facilitate and encourage a close and continuing relationship between the child and her father, and that the mother had been slow to extend the child’s access to the father except in circumstances where she was “otherwise compelled by Court Orders”.
It is very apparent that the trial judge’s intention in making order 33 was to deal with the division of the cost of the child’s travel between the parties in a manner that would limit further litigation and conflict as in paragraph 292 he observed that “ordering the mother to pay for half airfares has the potential to lead to further disputes as to the timing and process by which that happens, to provide reasons why international travel will not take place and possibly lead to further litigation”.
We agree with the reasoning of Kay J in Love v Henderson (supra) regarding the court’s power to make parenting orders to facilitate contact or access under s 65D to promote the welfare of the child in accordance with the paramount consideration set out in s 60CA. Accordingly, we are of the view that it was open to the trial judge to make an order that required the mother to contribute to the costs of the child’s travel to facilitate her spending time with the father in the United States as this constituted a parenting order for the child’s welfare that his Honour concluded was in her best interests. However, the issue that then remains is whether it was open to the trial judge to do so by requiring the mother to provide the father with a “credit” as an “offset” against any child support liability that he may have.
Part V of the Child Support (Registration and Collection) Act1988 (Cth) (“the CSRCA”) provides for the payment and recovery of child support debts. Sections 71 to 71D relate to payments made by payers that are often referred to as “non-agency payments” or in the case of s 71C as “prescribed non-agency payments”.
Section 71 relates to direct payments to a payee and provides that:
(1) Subject to section 71D, if:
(a) the payee of an enforceable maintenance liability receives from the payer an amount intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period; and
(b) the payer or the payee applies to the Registrar to have the amount received by the payee treated as having been paid to the Registrar;
the Registrar shall, in spite of section 30, credit the amount received by the payee against the amount payable under the enforceable maintenance liability…
It would seem that to direct the mother under s 71(1)(a) to accept half the father’s payment of international airfares for the child’s travel to spend time with him in the United States is not anticipated by that subsection given the phrase “receives from the payer an amount intended by both the payer and payee… to be paid in complete or partial satisfaction of an amount payable under the liability”, nor does it seem that the father could apply to the Registrar to have the amount of the half of the airfares credited as that subsection similarly presumes an amount has been “received” by the payee.
Section 71A involves payments to third parties by a payer and provides that:
(1) Subject to section 71D, if:
(a) the payer of an enforceable maintenance liability pays a third party an amount that partially or completely satisfies a debt owed by:
(i) the payee of the enforceable maintenance liability; or
(ii) the payer; or
(iii)both the payer and payee; and
(b) the payer or the payee applies to the Registrar, in the manner specified by the Registrar, to have the amount, or part of the amount, received by the third party treated as having been paid to the Registrar; and
(c) the amount paid, or a part of the amount paid, was intended by both the payer and the payee to be paid in complete or partial satisfaction of an amount payable under the enforceable maintenance liability in relation to the child support enforcement period;
the Registrar must, in spite of section 30 and in accordance with subsections (2) and (3), credit the amount, or part of the amount, received by the third party against the amount payable under the enforceable maintenance liability.
Similarly, it seems that s 71A can only operate if the payment of the airfares for international travel constitutes a debt owed by the payee, payer or both the payee and payer to a third party in circumstances where that debt was intended by the payee and payer to be paid in complete or partial satisfaction of a child maintenance liability. Further, it is clear from the excerpt of the transcript above that the mother objected to contributing to the cost of the international airfares for the child to travel to the United States to spend time with the father.
Section 71B provides for amounts to be credited that involve payments not in money. The section states that:
(1) For the purposes of sections 71 and 71A, if both the payer and the payee of an enforceable maintenance liability so intend:
(a) a payment in a form, other than money, by the payer; or
(b) a transfer of any property or right by the payer;
is taken to be an amount paid in complete or partial satisfaction of an amount payable under an enforceable maintenance liability.
(2) For the purpose of determining the amount to be credited under section 71 or 71A, in relation to the payment or transfer, against the amount payable under the liability of the payer to the Commonwealth, the amount of the payment or transfer is taken to be:
(a) the amount agreed by the payer and the payee; or
(b) if no amount is agreed, the amount determined by the Registrar.
Although s 71B could provide for half of the payment of international airfares to be credited against the father’s child support liability, the section is restricted to those payments made pursuant to ss 71 and 71A, specifically payments directly received by the payee or a payment of a debt received by a third party that is owed by the payee, payer or both the payee and payer that is intended by the payee and payer to be a payment in complete or partial satisfaction of an amount payable pursuant to a child support liability. It appears that the application of s 71B is limited by the considerations detailed above regarding ss 71 and 71A.
Section 71C provides for other payments of up to thirty percent of child support liability and states that:
(1) If:
(a) the payer of an enforceable maintenance liability in relation to a payment period or initial period has made one or more payments to the payee of the liability, or to another person; and
(b) the payment is a payment of the kind specified in the regulations; and
(ba) at the time the payment is made, the payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates; and
(c) the sum of those payments exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods; and
(d) the payer does not, at the time at which the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment relates;
then the Registrar must, despite section 30, credit the excess amount mentioned in paragraph (c) against the amount payable under the payer’s liability for the period, up to a maximum of 30% of the amount payable…
The reference in s 71C(1)(b) to “the regulations” is to regulation 5D of the Child Support (Registration and Collection) Regulations 1988 (Cth) that states:
For paragraph 71C(1)(b) of the [CSRCA], specified payments are payments of the following kinds:
(a) child care costs for the child who is the subject of the enforceable maintenance liability;
(b) fees charged by a school or pre-school for that child;
(ba) amounts payable for uniforms and books prescribed by a school or pre-school for that child;
(c) fees for essential medical and dental services for that child;
(d) the payee’s share of amounts payable for rent or a security bond for the payee’s home;
(e) the payee’s share of amounts payable for utilities, rates or body corporate charges for the payee’s home;
(f) the payee’s share of repayments on a loan that financed the payee’s home;
(g) costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.
Regulation 5D does not include the payment of airfares or costs associated with contact or for the payer to spend time with the child the subject of the child maintenance liability. Further, any payments credited pursuant to s 71C cannot exceed thirty percent of the amount of child support payable for the period. Even in the event that regulation 5D provided for the crediting of costs associated with contact or travel under s 71C, the father’s child support liability at the time of the trial was then $287 per month, which would amount to $3444 annually, thirty percent of which would have then been $1033.20. That sum or part thereof may be all that the father could claim as a potential credit under s 71C in the event that s 71C is applicable and could give effect to order 33.
Finally, notwithstanding the preceding provisions s 71D provides the Registrar with the discretion to refuse to credit an amount under ss 71, 71A and 71C if satisfied that in the circumstances of the particular case the amount ought not be credited.
Sections 71 to 71D of the CSRCA, and particularly ss 71, 71A and 71B, consistently refer to the intention of the payer and payee regarding the amounts to be paid, debts to third parties and non money payments in partial or complete satisfaction of child maintenance liabilities. The underlying reason for the use of the words intend and agree between the payee and payer under the provisions of the CSRCA is apparent in the reasoning of the Full Court (Nicholson CJ, Fogarty and O’Ryan JJ) in the decision of Strauss v Strauss (1998) FLC 92-797.
In that decision the Full Court discussed the underlying structure and relationship between the CSAA and CSRCA and at 84,949 to 84,950 commented that:
The Assessment Act and the Registration Act, although integral parts of the overall child support reforms, are directed to different aspects within that overall framework. The Assessment Act… provides for the administrative assessment of child support by the application by the Registrar of the formula provided in that Act or by the acceptance by the Registrar of a child support agreement. The Assessment Act is not concerned with the question of the collection or enforcement of that liability by the Registrar…
On the other hand, the Registration Act is concerned with the registration of certain maintenance liabilities and their enforcement and collection by the Registrar…The purpose of that Act was to remedy the previous situation under which there were no satisfactory methods of enforcement of maintenance liabilities through a government agency dedicated to that purpose. Where the payee is in receipt of an income tested pension or benefit, that person is generally required to register a child support assessment or agreement with the Registrar. That enables the Registrar to collect and enforce the liability, and the Department of Social Security to make any appropriate adjustments to the pension or benefit payments.
…
Difficulties can arise in that process where payments are made by the payer direct to the payee and accepted by both as being on account of the child support liability and/or where the payer on the same basis makes payments to third parties such as the payment of school fees or medical expenses. It was for those reasons that ss 71 and 71A were introduced into the legislation.
But the sections are quite specifically delineated in their operation. The essential point in this case is that the sections apply only to “an enforceable maintenance liability” which… means a child support assessment from the time it is registered with the Registrar under the Registration Act. In those circumstances, but only in those circumstances, and where the amount is intended by both parties to be in complete or partial satisfaction of the child support liability (present or future), and the Registrar is satisfied that “in the special circumstances of the particular case” the amount in question should be treated “as having been paid to the Registrar”, the Registrar “shall, in spite of section 30, credit the amount received by the payee against the liability of the payer to the Commonwealth in relation to the amount payable under the liability.”
As the above reasoning makes clear the crediting of debts, payments to third parties or non money payments under the CSRCA can occur in circumstances where there is a registered and enforceable child maintenance liability and where the money or non money amount or debt owing to a third party is intended by both parties to be paid by the payer in partial or complete satisfaction of a child support liability. It seems that the use of the word intend in s 71B(1) and intended in s 71(1)(a) and s 71A(1)(c), and the limitation in s 71C of a thirty percent credit of the amount of any other payments made pursuant to regulation 5D, indicate that these sections of the CSRCA attempt to ensure that a payee continues to receive the majority of an assessed amount of child support payable in circumstances where a credit is not agreed or intended by the payer and payee to be paid in partial or complete satisfaction of a child support liability and is sought to be paid by the payer in order to reduce the amount of child support payable.
Notwithstanding the above provisions in Part V of the CSRCA we observe that under s 37 of the CSRCA the Registrar may vary the Child Support Register to give effect to an order of the Family Court that affects a registered maintenance liability.
Section 37 provides that:
Where the Registrar is of the opinion (otherwise than because of the receipt of an application or notice (as the case may be) under subsection 33(1), 34(1) or 35(1) or (2)):
(a) that, under this Act, the Assessment Act, the Family Law Act 1975 or the law of a State or Territory:
(i) an order has been made by, or registered in, a court; or
(ii) a maintenance agreement has been registered in, or approved by, a court;
and the order or agreement varies or otherwise affects a registered maintenance liability; or
(b) that an affecting event in relation to an enforceable maintenance liability has happened;
the Registrar shall make such variations (if any) to the particulars entered in the Child Support Register in relation to the liability as the Registrar considers necessary or desirable to enable the order or agreement to be given effect to under this Act or to take account of the happening of the event, as the case may be.
In Conway & Child Support Registrar & Clivery(SSAT Appeal) [2008] FMCAfam 896 a father appealed from a decision of the Social Security Appeals Tribunal. The decision of the Registrar the subject of the father’s SSAT appeal that was challenged by the father on appeal before Slack FM related to an order of the Family Court. The order provided for the payment of airfares to facilitate contact between the mother and child with the amount paid by the mother in airfares to be deducted from the mother’s assessed child support liability. The Registrar initially treated the payment of airfares by the mother for the purpose of contact with the child as a cost arising under s 71A of the CSRCA but subsequently determined, pursuant to s 37 of the CSRCA, that any payment of airfares by the mother for the purpose of contact with the child should result in a reduction in her child support payable for the relevant child support period.
Slack FM summarised the father’s complaint as follows:
17. The crux of the applicant’s argument would appear to be that the Child Support Registrar did not have the power to register and/or treat the orders made by the Family Court on 6 March 2006 to allow those payments to be deducted directly from the child support payable under the assessment.
At paragraphs 29 to 33 Slack FM determined that:
29.I am satisfied that the reasoning of the SSAT does demonstrate an error of law in that the SSAT failed to properly construe the legislative provisions applicable to the applicant’s application.
30.The issue that should have properly been considered by the SSAT was whether the Child Support Registrar was entitled to amend the child support register to give effect to the orders in the way that it did, namely, to directly reduce the amount of child support payable under the child support assessment.
31. Having regard to my reasons, I am satisfied that:
a.The Child Support Registrar was, pursuant to s.37 of the Collection Act, able to, and indeed may well have been obliged to, amend the register in the way that it did and the orders clearly anticipated a direct reduction in the amount of child support payable under the assessment having regard to the payment of the airfares…
. . .
33.In the event that I am wrong in that approach, I can indicate that, even if I allowed the matter to succeed, I would not remit the matter for further determination before the SSAT and I would come to a conclusion based on the reasoning I have already provided that the Child Support Registrar was entitled to amend or vary the register to give effect to the orders of Justice Waddy and it was proper and appropriate for the Child Support Registrar to give effect to those orders by amending the particulars on the Register by directly reducing the amount payable by way of child support under the assessment by the amounts paid by the second respondent in respect of airfares.
It is clear that this issue, regarding the payment of airfares to facilitate contact between a parent and child and the offset or crediting of some or all of the costs of such airfares against a payer’s child support liability, has arisen previously and has been dealt with by the Child Support Registrar under ss 71, 71A, 71B, 71C or alternatively s 37 of the CSRCA. Notwithstanding the issues that arise regarding how order 33 may be given effect under the CSRCA and CSAA, the question that more particularly arises in this appeal is whether in making order 33 the trial judge afforded the mother procedural fairness.
Senior counsel for the mother contended that although the issue of the payment of airfares was raised before the trial judge the question regarding the crediting of the payment of airfares was not. He submitted that order 33 impinged on the exercise of the mother’s rights under child support legislation in circumstances where the trial judge did not provide her with the opportunity to make submissions on such an order.
Natural justice requires that a party be provided with a reasonable opportunity to present their case, however, as Gaudron J (with Dawson J agreeing) observed in Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305:
…Ordinarily, when a decision on a question of law will affect the nature and range of the factual matters by reference to which the matter in issue may be decided, considerations of fairness require that the parties be given an opportunity to lead evidence and make submissions by reference to the principles of law to be applied. This must be so even if the existence of the question is not apparent until the hearing has concluded. Although, of course, the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 CLR 323 at 343, procedural fairness requires only that a party be given “a reasonable opportunity to present his case” and not that the tribunal ensure “that a party takes the best advantage of the opportunity to which he is entitled”. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers’ Industrial UnionEx parte Gallagher (1988) 62 ALJR 81 at 84; 76 ALR 353 at 358.
In the decision of Ex Parte Fealey (1897) 18 LR (NSW) 282 (approved in Ex parte Taylor; re Butler (1924) 41 WN (NSW) 81 at 83) Owen J stated that:
A decision contrary to natural justice is where the presiding Judge or Magistrate denies to a litigant some right or privilege or benefit to which he is entitled in the ordinary course of the proceedings, as for instance where a magistrate refuses to allow a litigant to address the Court, or where he refuses to allow a witness to be cross-examined, or in cases of that kind. That conduct is said to be contrary to natural justice, and is a ground for the interference of this Court.
We accept that in making order 33 the trial judge was not purporting to exercise any power under the CSAA or CSRCA and it is apparent that his Honour accepted that the father’s child support assessment would stand. In making order 33 the trial judge sought to ensure that the mother would contribute half of the cost of international airfares for the child to spend time with the father in the United States. The order was structured to avoid further disputes that would likely arise by requiring the mother to pay for half of the airfares and that may have frustrated the father’s ability to spend time with the child according to the orders pronounced by his Honour. However, in view of our consideration of the above provisions of the CSRCA and CSAA we are satisfied that it was necessary for his Honour to give the parties proper and timely notice of his intention to make order 33 in the manner that he did so as to allow the parties to make submissions. We respectfully consider that the learned trial judge’s failure to do so deprived the mother of the possibility of a successful outcome (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147)
In the absence of any submissions at first instance or at the hearing of the appeal we would prefer not to express any concluded view on the application of the provisions of the CSAA or CSRCA to order 33.
We are satisfied that the trial judge erred in failing to provide the parties with the opportunity to make submissions on order 33. We therefore find merit in Ground 8.
It follows that the question that then arises is whether we should redetermine this discrete issue, or whether the matter should be remitted for rehearing. If the matter is remitted the issue arises as to whether the matter should be heard by Watts J or another judicial officer. We will direct the filing of written submissions on these matters.
Adequacy of reasons and sub-grounds 2.1 and 6.1
By sub-grounds 2.1 and 6.1 it was argued that the trial judge erred at law in failing to provide adequate reasons for making orders 16.4 and 16.9.
In relation to sub-ground 2.1, senior counsel for the mother argued that order 16.4 was unsupported by the reasons of the trial judge in that it may operate in a manner that is manifestly unjust and developmentally inappropriate when it is considered that the child will be approximately 5 years of age when the order comes into effect. In the alternative it was submitted that, as the order operates contrary to the graduated development in time with the father recommended by Dr M, and found by the trial judge to be in the child’s best interests, his Honour did not provide adequate reasons for departing from those recommendations. It is further argued, in sub-ground 6.1, that the trial judge erred at law in failing to provide adequate reasons for making order 16.9 in that the order could also operate contrary to the child’s graduated development in time with the father recommended by Dr M and found by his Honour at paragraph 325 to be in the child’s best interests.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 McHugh JA reasoned that:
The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do justice”: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):
“… A requirement that judges give reasons for their decisions - grounds of decision that can be debated, attacked, and defended - serves a vital function in constraining the judiciary’s exercise of power.”
Thirdly, under the common law system of adjudication, courts not only resolve disputes — they formulate rules for application in future cases: Taggart “Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases” (1983) 33 University of Toronto Law Journal 1 at 3-4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.
This decision was discussed and applied by the Full Court in Bennett v Bennett (1991) FLC 92-191 (Nicholson CJ, Simpson and Finn JJ) at 78,266. Their Honours continued at 78,267 to conclude that:
In our opinion, if adequate reasons are not given in a custody proceeding, it becomes impossible for an appellate court to properly examine the decision appealed from.
. . .
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge’s discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
More recently Coleman J, exercising the appellate jurisdiction of the Court in Wen & Thom [2010] FamCAFC 81, at paragraph 57, similarly observed:
As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
Insofar as it is contended by sub-ground 2.1 and 6.1 that the trial judge erred in failing to give adequate reasons in support of orders 16.4 and 16.9 we are not satisfied that this complaint is made out given our conclusions in these reasons. In our view the trial judge’s extensive and detailed reasons were more than adequate and we are wholly satisfied that his line of reasoning was readily discernable and that justice has been done between the parties.
We conclude that sub-grounds 2.1 and 6.1 have no substance.
CONCLUSIONS, ORDERS AND COSTS
We have found merit only in Ground 8. The appeal will therefore only be allowed to the extent that we will set aside paragraph 33 of the orders of the trial judge made on 28 February 2011.
We will make orders as foreshadowed above for the filing of written submissions concerning the possible remission of the issue relating to the payment and apportionment of travel costs. We will also make orders for the filing of submissions concerning the costs of the appeal.
I certify that the preceding two hundred and twenty-two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray & Young JJ) delivered on 3 February 2012.
Associate:
Date: 03.02.2012
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