Whiteman & Newton
[2013] FamCAFC 127
•19 August 2013
FAMILY COURT OF AUSTRALIA
| WHITEMAN & NEWTON | [2013] FamCAFC 127 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application filed by grandmother to adduce further evidence – where the evidence does not fall within the categories described in CDJ v VAJ – where the evidence does not demonstrate that the decision made by the trial judge was erroneous – Application dismissed. FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Where maternal grandmother appeals against the decision of the Federal Circuit Court Judge that until further order the child live with the Father – where child was living with terminally ill mother and maternal grandmother before mother passed away – where the child has suffered from a psychiatric disorder since she was young – where following the death of the mother, the child remained living with the grandmother and the father filed an application for the child to live with him –whether the trial judge failed to follow the guideline decision of Goode and Goode – whether the trial judge failed to consider the effect on the child of moving into the father’s primary care – whether the trial judge erred in failing to consider additional s 60CC factors – where no ground of appeal was made out – appeal dismissed. |
| Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61C, 61DA, 62G, 64(B)(2), 64C, 65DAA, 65K |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Whiteman |
| RESPONDENT: | Mr Newton |
| INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker Solicitors |
| FILE NUMBER: | CAC | 715 | of | 2013 |
| APPEAL NUMBER: | EA | 75 | of | 2013 |
| DATE DELIVERED:: | 19 August 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Strickland and Ainslie-Wallace JJ |
| HEARING DATE: | 9 and 12 July 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 May 2013 |
| LOWER COURT MNC: | [2013] FCCA 754 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Batey |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ridge |
Orders
The respondent have leave to file the affidavit of Mr Newton sworn on 24 May 2013.
The appellant have leave to file an application in an appeal and affidavit of Ms Whiteman sworn on 12 July 2013.
The application in an appeal be dismissed.
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whiteman & Newton 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: EA 75 OF 2013
File Number: CAC 715 of 2013
| Ms Whiteman |
Appellant
And
| Mr Newton |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 31 May 2013, Judge Neville made interim orders in relation to the child who is nearly nine years old. His reasons were provided on 9 July 2013. As will become apparent, the matter had a considerable degree of difficulty and was listed before the judge on an urgent basis.
This is an appeal by the grandmother filed 26 June 2013 from some of the interim orders made by Judge Neville, in particular that the child live with the father, and spend one weekend per month and one half of the school holidays with the grandmother.
An application to expedite the hearing of the appeal was filed, but was resolved by the hearing of the appeal on an urgent basis on Tuesday, 9 July 2013. It was necessary however, to adjourn the hearing of the appeal to Friday, 12 July 2013 as the reasons for the orders were not yet available. As mentioned, they were provided on 9 July 2013. On 12 July 2013, we made orders dismissing the appeal. These are the reasons for those orders.
Background
The child had been living with her terminally ill mother and maternal grandmother in Sydney, and spending time with her father, who lives closer to Canberra in a country town called C. The time with the father was by agreement between the parents as contained in consent orders made in August 2012. Those orders relevantly provided that the parents have joint parental responsibility (we understand intended to mean to be equal shared responsibility), that the child live with the mother and spend time with the father one weekend every four from after school Friday to 5pm Sunday. Provision was also made for special occasions and holidays.
On Saturday, 18 May 2013, while the child was spending time with him, the father was informed the mother had died. As requested, the father took the child to the grandmother’s home.
As a result of a significant dispute between the grandmother and the father, the child remained with the grandmother and an application was filed by the father on 22 May 2013 seeking, inter alia, that the child live with him.
In a lengthy judgment, Judge Neville carefully and accurately described the very sad circumstances of this family, especially the recent history. It is not necessary for us to repeat those circumstances as there is no challenge to his Honour’s description of the facts which he took from the various affidavits placed before him.
A very significant factor is that there is no doubt that the child has suffered a psychiatric disorder since she was very young, including when her parents lived together. There have been various diagnoses of this from a number of medical practitioners.
It is obvious that in addition to the recent death of her mother after a long and painful illness, the medical history and current emotional state of this child is of considerable significance.
The relevant statutory provisions
The Family Law Act 1975 (Cth) (“the Act”) makes provision only for parents to have equal shared parental responsibility (s 65DAA), and thus that could not be ordered here. Indeed, no order was made for parental responsibility by Judge Neville, and, as the only parent, the father has sole parental responsibility (see s 61C of the Act).
In this case, it is also necessary to refer to s 65K which provides:
What happens when parenting order that deals with whom a child lives with does not make provision in relation to death of parent with whom child lives
(1) This section applies if:
(a)a parenting order is in force that provides that a child is to live with one of the child's parents; and
(b)that parent dies; and
(c)the parenting order does not provide for what is to happen on
that parent’s death.
(2) The surviving parent cannot require the child to live with him or
her.
(3) The surviving parent, or another person (subject to section 65C),
may apply for a parenting order that deals with the person or
persons with whom the child is to live.
(4) In an application under subsection (3) by a person who does not, at
the time of the application, have any parental responsibility for the
child, any person who, at that time, has any parental responsibility
for the child is entitled to be a party to the proceedings.
This section makes clear that it is not automatic that the child will live with the surviving parent and that parent or another person, in this case a grandparent, may apply for parenting orders.
This application was between the father and the maternal grandmother and is governed by s 60CA and the relevant provisions about what is in the best interests of the child (s 60CC), they being proceedings for a parenting order.
Reasons and orders of the Trial Judge
The relevant orders made by the trial judge were as follows:
6.Pursuant to section 62G(2) of the Family Law Act 1975 (‘the Act’) the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.
7.The Orders of 28 August 2012 are to continue until the end of the current school term. The time that child spends with the Father pursuant to these Orders shall recommence this weekend being 1 & 2 June 2013.
8.At the end of the current school term the child is to live with her Father and step-siblings in [C].
9.While-ever the child lives in [C], she will spend one (1) weekend per month and half school holidays with her Grandmother.
10.Changeover is to occur at an agreed location, but not at the Grandmother’s residence.
…
13.Absent cases of emergency the Grandmother is restrained taking the child to any health care professional while the child is in her care.
(Original emphasis)
The judge correctly regarded the recent report dated 30 May 2013 of Dr B, a general practitioner, who knew the mother well and is the child’s doctor, “of significant assistance”.
In paragraph 108 of the reasons, the judge set out the parts of the doctor’s report upon which he particularly relied as follows:
108.I note the following in particular from Dr [B’s] report (emphasis added):
a) 24th May was [the mother’s] funeral, which Dr [B] and his wife attended. He noted that [the child] spoke at the funeral. In his report he said, “Some might say she was glib, but I think even a child knew that [the mother’s] suffering needed to end some weeks before.”
b) Dr [B] continued: “I spoke with [the child] on Thursday 22nd May and she seemed very composed and seems to have all the adult parties and their motives pigeon-holed correctly.”
c) He observed: “[The child] is strongly attached to [the grandmother] and [S] and [M]. She is also strongly attached to her Father, but has had only three access visits this year due to a series of mishaps, misunderstandings and coincidences.
27-05-2013 [Ms Whiteman] told me that [the child] said she is sick of the adults fighting over her which is a sensible view…”d) Dr [B] provided the following further critical observation: “[The child] is coping very well with her bereavement. Her mental condition is far better than it was in 2008.”
e) In relation to how [the child] will respond to a visit to [C] at the present time, Dr [B] said:
This will present no difficulty to [the child] of itself. Indeed as the house at [Sydney] has been the site of so much trauma, I expect that her anxiety will decrease with a visit to [C]. The chance of her having meltdown or nervous breakdown induced by a visit to [C] is very low. [The child] is acutely aware of the interaction between the adult parties. I expect that she will get a certain degree of anxiety as she knows exactly how the adult parties will respond to a visit.
109.As I have previously noted, Dr [B] also provided copies of correspondence with Dr [N]. It is sufficient for current purposes to note the following from the letter to Dr [N] of 28th May 2013, where Dr [N] said (emphasis added):
Last week [Mr Newton] had arranged an urgent hearing at the Family Court [sic]. Some kind of assessment of [the child] has been arranged (? Psychologist). Yesterday [Ms Whiteman] requested that I certify that Canberra was too far and too stressful for [the child] to go. I did not do so as I think a single assessment would be okay, but I would not want anyone subjected to repeated trips. However [Mr Newton] lives in [C], so Canberra is easier if [the child] ends up there.
110.The final matter to note from the material from Dr [B] is that in his letter to Dr [N] of 2nd February 2013, he repeated the following from a letter to Dr [W] in 2009 (emphasis added):
[The mother’s] Mother [Ms Whiteman] is very close to her, but unfortunately is not well, despite brave appearances, as she has multi-level PTSD related to medical issues, [Ms Whiteman] went on to have a hysterectomy due to the family history of cancer, as she wants to ensure she’ll be around for the longer term (for [the child’s] sake rather than her own). [Ms Whiteman’s] husband [Mr Whiteman]… has recently left her. She went on to have bilateral mastectomies to avoid breast cancer.”
Having earlier referred to Goode and Goode (2006) FLC 93-286, his Honour in paragraph 112 expressed the need to “consider the matters in s.60CC that are relevant and, if possible, make findings about them”. The judge then made what he described as “observations” about the evidence.
The judge was clearly aware of the grandmother’s contention that the child is in “something approaching (if not already in) dire (mental and psychological) straits, and therefore in need of the most urgent intervention, particularly by this Court…” (at paragraph 220 of the reasons). However his Honour ultimately said as follows:
221.There is no dispute that [the child] has been generally “ok” in the Father’s and the Grandmother’s households up until the death of her Mother. It is almost trite to observe that the tragedy of recent events has clearly taken its toll. How the exclusion of the Father from [the child’s] life since that time has impacted on her is not clear, other than the Grandmother’s heightened assertions about [the child’s] well-being and the risk to her of going into her Father’s care. But since her Mother’s death, she has only been in her Grandmother’s care, and seemingly only told by her (or members of her family) of the Father’s wish to speak/spend time with her.
222.There is independent medical and other evidence that presents [the child] as being both a resilient and insightful young girl, with a maturity beyond her years. Doubtless such a maturity has been forged in the furnace of the affliction that has surrounded, if not almost enveloped, her for some time. I stress again that much of the suffering has been of no one’s making. Indeed, for all of the tragedy that has beset everyone here, this judgment is not intended to be some elegiac lament for what has happened. Rather, it is intended to assist both parties in looking positively to the future (also with the assistance of the ICL and the family report to come) with [the child]. That is where the focus needs to be, and not on litigation and its terrible cost –financially and in every other respect.
223.The Court can only, and must, rely on the evidence before it. That evidence points quite strongly, in my respectful view, to [the child] residing with her Father and spending regular time with her Grandmother. Her future is primarily with her Father and her young siblings. To say this is not to criticise or to exclude the Grandmother. She is, must be, and will be an important figure in [the child’s] life. The orders made, in my view, are in [the child’s] best interest, and provide important balance and protection to ensure that, absent agreement between the adults in [the child’s] life, her relationships with her Father and her Grandmother, as well as her siblings, are able to flourish, or at least perdure – to the degree such can occur under the thrall of Court orders.
In making the orders his Honour included the appointment of an Independent Children’s Lawyer, and provided for a detailed report to be prepared pursuant to s 62G of the Act and for the return of the matter before him on 15 October 2013. To the extent that his Honour may have given the impression that he had formed any final views about the matter, those orders would make it clear that that was not his intention.
Application to Adduce Further Evidence
The application of the grandmother is filed by leave and the affidavit admitted on the basis that the evidence contained in it was largely uncontroversial. In response to a suggestion that the grandmother might be reluctant or even obstructive in allowing the father time with the child, the grandmother described a number of occasions when she made arrangements for the child to be delivered to the paternal grandparents for time with them. In addition, reference was made to an occasion when the child had time with her father, and an offer of a further occasion.
Ultimately we determined to dismiss the application as the evidence does not fall within any of the categories described in CDJ v VAJ (1998) 197 CLR 172. The evidence, even if accepted, does not demonstrate that the decision made by the judge was erroneous.
The Appeal
The grounds were drafted and the Notice of Appeal filed before the reasons were made available. Thus we will make only brief reference to the grounds and discuss at greater length the matters pressed by counsel in oral submissions.
Ground 1 contended as follows:
a.That the learned Judge failed to follow the guideline decision of Goode v Goode, and thereby erred:
a.as a matter of law;
b.in the approach to, and determination of, the interim proceedings; and
c.in permitting himself to be drawn into making findings of fact and credit vis a vis the parties that were not open to him upon an interim determination.
Grounds 2, 3 and 4 involved allied arguments and were as follows:
2.That the learned Judge failed to consider the effect on the child of changing a well settled status quo on an interim basis, where there was no evidence, or no sufficient evidence the child’s welfare was at risk, or that the child’s welfare would be better served by a change of residence.
3.That the learned Judge erred in finding (if the learned Judge did) it to be in the best interests of the child to live with the Father in terms as ordered, there being no or insufficient evidence to ground such finding, in circumstances where the learned Judge found that in the immediate short term the child should remain in the care of the Maternal Grandmother.
4.That in making the Interim Orders of 31 May 2013, the learned Judge erred as a matter of law in failing to consider the additional considerations pursuant to section 60CC of the Family Law Act 1975 (Cth) when determining what was in the best interests of the child pending further Order, namely:
a.The nature of the relationship of the child with the Father and Maternal Grandmother, with specific reference to the close relationship with the Maternal Grandmother particularly in light of the Mother’s recent death;
b.The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from the Maternal Grandmother, with whom the child has resided during the course of the Mother’s terminal illness; and
c.The capacity of the Father and the Maternal Grandmother to provide for the needs of the child, including emotional and intellectual needs particularly in the circumstances of the Mother’s recent death.
After making appropriate reference to Goode and Goode and reflecting on the earlier decision of Cowling v Cowling (1998) FLC 92-801 decided prior to the current legislation, it was submitted that s 65DAA does not apply in this case. In addition, it is submitted by the grandmother that the father’s and grandmother’s homes are too far apart for equal time or substantial and significant time to be “reasonably practicable”.
The presumption contained in s 61DA of equal shared responsibility refers to “the child’s parents”. Of course, parenting orders may be made in favour of a parent of the child or some other person (see s 64C). A parenting order as defined by s 64B(2) includes an order about where a child will live or spend time with parents or other persons, and may allocate parent responsibility.
To that extent the submissions of counsel for the grandmother that s 61DA and s 65DAA have no application is correct. This means that the usual approach commencing with a consideration of equal shared responsibility does not apply in this case.
How then should the matter have been determined by the judge? The question for his Honour was what orders were in the best interests of the child on an interim basis.
In paragraph 9 of the grandmother’s amended summary of argument, counsel submitted that:
If section 61DA has no application, or even if it did and section 65DAA applied but could never have led to equal time or substantial and significant time, all that was left before His Honour was a straightforward contest between two homes. The law is long established that there is to be no presumption applied in favour of a natural parent. His Honour needed only to apply the by now well-known guide to interim decision making in Goode as follows:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
[and since it did not apply…]
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
In essence counsel submitted that as significant portions of the amended legislation to which we have referred do not apply in this case, the Cowling approach should apply. The well known paragraphs from Cowling were set out in counsel’s submissions with emphasis on the child living in settled circumstances.
As to the remaining grounds, counsel set out by reference to the list contained in paragraph 9 of the submissions that the reasons are deficient in particular by failing to identify certain matters.
Although the first and to some extent the subsequent grounds contend that the judge had erred in not following Goode especially in the approach to interim proceedings, as we have said counsel sought to persuade us that the earlier decision in Cowling was the proper approach in this case. That is that the child was settled with the grandmother and to move her residence may cause her harm. Some support for this proposition is to be found in Goode in paragraph 68:
In our view some of the comments of the Full Court in paragraph 18 [of Cowling] are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
However, in Goode the Court also referred to paragraph 22 of Cowling in which reference was made to a child living in a well settled environment and the importance of the child’s stability and went on to say that “such passages do not sit comfortably with the Act as amended”. The court then said in paragraph 71:
The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
It need hardly be said that the Court would always take into account the stability of a well settled arrangement and that, where there is controversial evidence about the child’s needs, a decision may well be made to leave the child in that environment. However, in this case the child was not really in a well settled arrangement because she had been living with both her grandmother and mother. The judge also had the benefit of the doctor’s evidence about the child’s state which was compelling.
Counsel for the grandmother appropriately referred to the relevant paragraphs of Goode and emphasised that the decision made in that case does not apply to the present as this is not a dispute between parents. In our view, while it is correct that in Goode there was considerable emphasis on s 61DA and s 65DAA, reference was also made to s 60B and s 60CC. It is these paragraphs that dominated the decision in this case and which the judge properly applied.
In ground 5 it is said that the judge erred “in determining a preference or presumption in favour of the natural Father as between the Father and the Maternal Grandmother”. We do not see that his Honour did this. His Honour merely referred to the reality of the situation that living with the father are other children and a baby expected. His Honour said at paragraph 216 “[The child] will have the best of all worlds in being able to live with her Father (and the young family he has) and still see and spend regular, quality time with her Grandmother”. We do not see that in saying this his Honour gave any preference to the father as a parent, over the grandmother. In paragraph 211, his Honour made clear the central reason for his decision by saying “[t]he deciding factors for this conclusion are the very helpful and independent report of Dr [B].”
In ground 9 it was complained that there were inadequate reasons. It is appreciated that this Notice of Appeal was drafted prior to receiving the settled reasons of the judge. Although length does not necessarily demonstrate sufficiency of reasons it should be noted that the reasons were some 59 pages and carefully referred to the evidence and the relevant sections of the Act.
A number of the other grounds were not pressed in the written and oral submissions. However, we would mention one concern that was expressed being in paragraph 213 where the judge referred to the grandmother’s own health. In our view the contents of Dr B’s report where he refers to the opinion of another doctor in relation to the grandmother’s health was not a deciding factor. All this evidence did was to put this as a question in issue for later consideration. His Honour made this clear where in paragraph 212 of the reasons he said as follows:
His evidence, while in no way conclusive, puts in issue also the Grandmother’s health, including her mental health. This is also challenged by [Mr Whiteman], but I do not place too much weight on his evidence at this stage.
The other significant submission made on behalf of the grandmother was that to take the step decided upon by the judge was merely a “gamble” with the child’s health. Emphasis was placed on the use of Dr B’s report which referred not to the child living with the father permanently but rather having a visit to his home. Whilst it is correct that they were the words used by the doctor, his Honour was entitled to conclude, based on all of the evidence, that the child could safely live with her father on an interim basis. The child after all had been having regular contact with the father and his family.
In view of our decision in relation to the appeal it is not necessary for us to refer to the submissions of the father or the Independent Children’s Lawyer at any length. We observe that the Independent Children’s Lawyer opposed the appeal being allowed. The Independent Children’s Lawyer explained that the child would be returning to the school she had attended between January 2010 and July 2011 and that he understood the school knew that special arrangements would need to be made for the child.
Conclusions
The task for his Honour was to consider the benefits each household could offer and decide what was in the best interests of the child on an interim basis by reference to the legislation.
The proper principles to be considered in this matter are those contained in Goode and Goode, to which his Honour referred.
There are no apparent errors by the judge in the assessment of the evidence, particularly considering that this was an interim decision, nor an improper weighing of the evidence. The judge correctly placed emphasis on the independent evidence of the doctor especially in view of the allegation of the grandmother that to remove the child from her current circumstances would not be in her best interests and positively harmful.
It must be understood that to allow an appeal the court must conclude that a decision was wrong (Gronow v Gronow (1979) 144 CLR 513 at 519), not that another judge may have come to a different conclusion (CDJ v VAJ (1998) 197 CLR 172 at 186). For example, another judge may have taken a different course, ordering that a report be prepared before moving the child but this does not mean that the approach taken by Judge Neville was wrong. The judge had the report of the doctor. His Honour inserted some safety mechanisms by ordering the appointment of an Independent Children’s Lawyer and the preparation of a report.
In our view, there is no basis for allowing this appeal in particular considering that it was one made as an interim decision in urgent circumstances.
Costs
Although we have determined that the appeal should be dismissed, in our view there are no circumstances which would justify an order for costs. The father is self-represented and has not incurred any legal costs. On behalf of the grandmother there were arguments in the appeal which could reasonably and were properly raised.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland and Ainslie-Wallace JJ ) delivered on 19 August 2013.
Associate:
Date: 19 August 2013
5
3
1