Wilkinson and Feeney - [2008] FamCAFC 18

FAMILY COURT OF AUSTRALIA

WILKINSON & FEENEY

[2008] FamCAFC 18

FAMILY LAW - APPEAL FROM FEDERAL MAGISTRATE – PARENTING – Where the father has a medical condition affecting his mobility – The Federal Magistrate made orders concerning the time the child would spend with the father – The orders did not provide for the father to spend time with the child at his childcare centre (as had previously occurred) – The orders did not allow the child to spend time with the father overnight until he turned three (unless the paternal grandmother was also present) but at the same time permitted the father to spend substantial time during the day with the child – Appeal allowed – Discretion re-exercised to amend parenting orders.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981(Cth)

APPELLANT:

Mr Wilkinson

RESPONDENT:

Ms Feeney

FILE NUMBER:

CAC

2007

APPEAL NUMBER:

118

2007

DATE DELIVERED:	28 February 2008
PLACE DELIVERED:	Canberra

JUDGMENT OF:

Finn J

HEARING DATE:

20 February 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

31 August 2007

LOWER COURT MNC:

[2007] FMCAfam 722

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Nr Nash

SOLICITOR FOR THE APPELLANT:

Phelps Reid

COUNSEL FOR THE RESPONDENT:

Ms Rees

SOLICITOR FOR THE RESPONDENT:

Campbell & Co

Orders

That the appeal be allowed.
That Order 1 of the orders made on 31 August 2007 be varied to read as follows:
(1)The child … live with the father as follows:
(a)For a period of four weeks commencing Tuesday 4 September 2007:
(i)From 4.00pm to 6.30pm each Tuesday and Thursday with the father to collect the child from child-care at the commencement of such period and the mother to collect the child from the father’s residence at the conclusion of such period.
(ii)On each alternate weekend from 10.00am to 4.00pm on both Saturday and Sunday.
(b)After four weeks and until the child turns two years of age:
(i)Each Tuesday from 1.00pm to 6.30pm and each Thursday from 4.00pm to 6.30pm with the father to collect the child from child-care at the commencement of such period and the mother to collect the child from the father’s residence at the conclusion of such period.
(ii)On each alternate weekend from 10.00am to 4.00pm on both Saturday and Sunday.
(c)Upon the child turning two years of age:
(i)Each Tuesday from 8.30am to 5.30pm and each Thursday from 4pm to 6.30pm with the father to collect the child at the commencement of such period from the mother’s residence on Tuesday or the childcare centre on Thursday and the mother to collect the child from the father’s residence at the conclusion of such period.
(ii)On each alternate weekend from 8.30am on Saturday to 5.30pm on Sunday.
(d)Upon the child turning three years of age:
(i)Each Tuesday from 8.30am to 5.30pm and each Thursday from 4pm to 6.30pm with the father to collect the child at the commencement of such period from the mother’s residence on Tuesday or the childcare centre on Thursday and the mother to collect the child from the father’s residence at the conclusion of such period.
(ii)Each alternate weekend from 8.30am Saturday to 5.30pm Sunday.
(e)Upon the child turning four years of age:
(i)Each Tuesday from 8.30am to 5.30pm and each Thursday from 4pm to 6.30pm with the father to collect the child at the commencement of such period from the mother’s residence on Tuesday or the childcare centre on Thursday and the mother to collect the child from the father’s residence at the conclusion of such period.
(ii)Each alternate weekend from 4.00pm Friday to 5.30pm Sunday.
(f)Upon the child commencing formal education:
(i)Each alternate weekend during school term, from after school on Friday until the commencement of school the following Monday.
(ii)On one other day each week as determined by the father, not being a Friday or a Monday, from after school until the commencement of school the next day.
(iii)For one half of each term school holiday; being the first half in years ending in an even number and the second half in years ending in an odd number.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Wilkinson & Feeney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 118 of 2007
File Number: CAC 89 of 2007

Mr Wilkinson

Appellant

And

Ms Feeney

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Mr Wilkinson (“the father”) against certain orders made by Henderson FM on 31 August 2007 in proceedings between the father and Ms Feeney (“the mother”) concerning the future living arrangements for their son who is now aged about 22 months, and who was born after the parties had separated following their 8 year cohabitation.
The appeal is being determined by me as a single Judge of the Appeal Division of the Family Court, pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).
The notice of appeal states that the appeal is against Orders 1, 2, 3, 8 and 12 of her Honour’s orders of 31 August 2007. But as no ground of appeal and no submission on behalf of the appellant father was directed to the content of Order 3 (which was concerned with Christmas holiday arrangements), Order 18 (which was concerned with arrangements for father’s day), or Order 12 (which was concerned with the school which the child is to attend), and as no variation to any of those three orders was proposed by either party in the event that I was to re-determine the matter, I regard those orders as unchallenged.
Therefore the orders to which this appeal was ultimately directed are Orders 1 and 2, although Order 2 will be seen to be no more than consequential on Order 1. Furthermore paragraph (a) of Order 1 will be seen as no longer having any operation by the time the appeal was heard, and thus need not be discussed. Orders 1 and 2 were in the following terms:
(1) The child … live with the father as follows:
(a)For a period of four weeks commencing Tuesday 4 September 2007:
(i)From 4.00pm to 6.30pm each Tuesday and Thursday with the father to collect the child from child-care at the commencement of such period and the mother to collect the child from the father’s residence at the conclusion of such period.
(ii)On each alternate weekend from 10.00am to 4.00pm on both Saturday and Sunday.
(b)After four weeks and until the child turns two years of age:
(i)Each Tuesday from 1.00pm to 6.30pm and each Thursday from 4.00pm to 6.30pm with the father to collect the child from child-care at the commencement of such period and the mother to collect the child from the father’s residence at the conclusion of such period.
(ii)On each alternate weekend from 10.00am to 4.00pm on both Saturday and Sunday.
(c)Upon the child turning two years of age:
(i)Each Tuesday from 8.30am to 5.30pm with the father to collect the child from the mother’s residence at the commencement of such period and the mother to collect the child from the father’s residence at the conclusion of such period.
(ii)On each alternate weekend from 10.00am to 5.00pm on both Saturday and Sunday.
(iii)In the event the child’s paternal grandmother is staying with the father whilst the child is living with him, the father’s time pursuant to order 1(c)(ii) is to include overnight Saturday.
(iv)The mother is to be notified 7 days prior to the child spending overnight time with the father.
(d)Upon the child turning three years of age:
(i)Each Tuesday from 8.30am to 5.30pm.
(ii)Each alternate weekend from 8.30am Saturday to 5.30pm Sunday.
(e)Upon the child turning four years of age:
(i)Each Tuesday from 8.30am to 5.30pm
(ii)Each alternate weekend from 4.00pm Friday to 5.30pm Sunday.
(f)Upon the child commencing formal education:
(i)Each alternate weekend during school term, from after school on Friday until the commencement of school the following Monday.
(ii)On one other day each week as determined by the father, not being a Friday or a Monday, from after school until the commencement of school the next day.
(iii)For one half of each term school holiday; being the first half in years ending in an even number and the second half in years ending in an odd number.
(2) Otherwise the child is to live with the mother.
The notice of appeal also stated that in the event that the appeal was upheld, there should be a re-hearing of the applications before her Honour. However at the conclusion of the hearing of the appeal, both parties sought that in the event that I found appealable error on the part of her Honour, I should re-exercise the discretion rather than subject them to the costs and stress of a further hearing. To this end I was provided by each party with a minute of the orders that he or she would have me make on a re-determination of the matter.
It is important, however, to emphasise that although the minute provided by the mother contained some variations to her Honour’s orders, the mother’s position was that the appeal should be dismissed, and her Honour’s orders thus remain in place.
It is also important to emphasise at this introductory stage that there are well established limits on the capacity of an appeal court to interfere with a decision of the type which her Honour had to make, and which is known as a discretionary decision. Put briefly and relevantly for present purposes, the appeal court can only interfere with such a decision if it is persuaded that the Judge or Magistrate at first instance in reaching his or her decision has made an error of law or of significant fact, or has overlooked a relevant matter or taken into account an irrelevant matter, or has given too much or too little weight to a relevant matter. Again relevantly for present purposes, a failure by the Judge or Magistrate to deal with an application which is before him or her, or the provision of inadequate (including inconsistent) reasons for the decision will amount to an error of law.

Background

The father (who is now 36) and the mother (who is now 30) commenced to live together in 1997 and married at the end of 2002.
Since at least 1998 the father has suffered from an arthritic condition which affects his mobility.
In the period September 2002 to December 2004 he suffered a series of epileptic seizures but that condition is apparently now controlled.
The parties separated on 7 October 2005, some seven months before their son was born in May 2006.
During November and December 2006 the child spent some overnight time as well as day time with the father. However the mother apparently became concerned that the overnight arrangement was not in the child’s interest and therefore stopped the arrangement. This caused the father to bring proceedings in the Federal Magistrates Court.
Orders were made on 12 February 2007 and again on 20 March 2007 by that court for the child to spend overnight time with the father. But on 16 May 2007 orders were made by that court ceasing the overnight time, although the child continued to spend some time with the father during the day.
At the hearing before Henderson FM on 30 August 2007, the father sought that the child recommence spending overnight time with him immediately, and that such time should increase until the child reached four years of age when he should live with each parent on a week about basis during school terms and for half the school holidays.
For her part the mother sought that the child have no overnight time with the father until he turned three, when overnight time would be for one night each alternate weekend increasing to three nights on alternate weekends once the child started “kindergarten at primary school”, at which time the child would also spend half the school holidays with the father.
The mother also proposed that the child continue to spend time with the father during the day including during periods when he was at the childcare centre (which he currently attends four days per week). Importantly for present purposes, the father had also sought that he be able to visit the child at the childcare centre.

The orders and reasons of Henderson FM

Her Honour’s orders did not provide for the father to spend any time with the child at the childcare centre, and notwithstanding that both parties had sought an order to this effect, her Honour did not deal with this matter in her reasons for judgment.
As will be seen from Order 1 of her Honour’s orders, the child was not to stay overnight with the father until he turned three, unless and only after he turned two, his paternal grandmother was visiting his father’s residence. Such overnight stays were initially to be for one night each alternate weekend, but increasing to two nights when the child turned four and to three nights once he started school. As will also be seen from Order 1, her Honour provided for some daytime or early evening periods with the father in each week.
Because it will be necessary to refer in some detail to relevant passages in her Honour’s reasons for judgment when I discuss the father’s specific challenges to her orders, I will only at this point provide an outline of the structure and content of her Honour’s reasons.
After referring in broad terms to each party’s application which was before her and in some detail to the facts of the case, and after recording the affidavits and exhibits which had been before her and the witnesses who gave oral evidence, her Honour discussed at some length what she termed “the first issue” being the father’s health.
In the course of that discussion her Honour said:
58.I have formed the view that it is his father's lack of mobility only that may pose a threat to him for the next 18 months or so.
To the extent that there is any ambiguity in this sentence, its meaning is made clear by her later statement:
84.… The father has serious mobility issues and his lack of mobility presents a real risk to [the child] for at least the next 18 months. …
I note that 18 months from 31 August 2007 would be 1 March 2009 when the child would be about two and ten months.
The next issue which her Honour considered that she had to assess, was “the amount of time that the child should spend with each of his parents”, and she went on to say:
64.… Part of this deliberation is an assessment of the child’s attachment to his parents and the effect on [the child] of any change to his care regime.
In this context her Honour referred to the different perceptions which each parent had of how the child had coped with spending overnight time with the father when that had occurred.
Her Honour concluded this discussion by saying:
75.Any order I make today must ensure this child's primary bond is securely attached so that he can go on to develop other important bonds in his life. …
It was clear from the discussion which preceded that conclusion that her Honour had found that the child’s primary bond was with his mother, although her Honour did indicate in the course of that discussion (at paragraph 74) that the father had an “excellent relationship” with the child.
Then under the heading “Parties parenting capacities”, her Honour first stated that the mother “has an extremely high capacity to put the child's needs before her own” (paragraph 76), and went on to explain the reasons why she had reached that conclusion, before saying:
79.I find the father has not demonstrated the same high capacity to place his son’s needs before his own as the mother has, for the following reasons.
In providing her reasons for making this finding concerning the father, her Honour referred first to the fact that the father had not taken the paternity leave which he apparently could have taken to care for the child after the mother returned to work from maternity leave, and to the fact that he had not been prepared to take one day each week off work to care for the child.
Her Honour then referred again to the father’s mobility difficulties, and in this context (paragraphs 84 to 86) she concluded first, that there could be no overnight contact while the child was being breastfed, but that breastfeeding would stop by the time he was two, and secondly, that because of the father’s mobility difficulties, there should be no overnight stays until the child was three unless the paternal grandmother was present.
Next her Honour referred to the mother’s application that she should have sole parental responsibility for the child. She concluded that there was not sufficient evidence to rebut the presumption of equal shared responsibility (now contained in s 61DAA of the Act).
Her Honour then turned to the dispute concerning the school which the child was to attend. But given, as I earlier indicated, no issue was ultimately pursued on the appeal concerning the order which her Honour made in relation to that matter, I need say no more about that matter.
Finally under the heading “Conclusion”, her Honour said that she had considered all relevant matters set out in s 60CC(2), (3) and (4) of the Act and that she had weighed the competing proposals. She then observed that there were no issues of violence or abuse of the child, and went on to indicate that she preferred the mother’s proposals saying:
93.The mother's position regarding the orders sought … is preferred to the father's as it balances the child’s needs at this time to maintain his secure primary attachment, right to enjoy the benefit of a meaningful relationship with his father, and minimises and deals with some of the risks the father's health poses to his son.
Her Honour then proceeded (in paragraphs 94 to 96 of her reasons, which I will later set out) to reject an arrangement for the child to spend equal time with each parent (which she was required, under s 65DAA of the Act, to consider given that she had determined that the parents were to have equal shared parental responsibility).
Having rejected an equal time arrangement, her Honour was then required (again under s 65DAA) to consider an arrangement whereby the child spent “substantial and significant time” with each parent. With regard to this option her Honour said:
97.However, contrary to the mother’s proposal I find that [the child] should commence spending overnight time with his father on Fridays when he reaches age 4. [The child] does not need to wait until he commences formal education at age 5 to enjoy a full weekend with his father.
98.In all other respects I will make the orders as contended for by the mother. They provide [the child] with the ability to spend significant and substantial time with his father, being time during the week, on the weekends, in school holidays and on other special occasions. These are the orders I consider are in [the child’s] best interests.

The scope of the appeal

The father’s grounds of appeal as contained in his notice of appeal are as follows:
1.Her honour erred in finding that the child … is at risk in the care of his father in that:
(i)She failed to take into account the father’s past substantial history of sole care of [the child] during which time no risk or adverse effect to [the child’s] well-being was shown;
(ii)She found that the father’s epilepsy was well controlled by medication (paragraph 13) and that he had had no fit since December 2004 (paragraphs 13, 25); and that he regularly reviewed his condition with his rheumatologist (paragraph 43);
(iii)She found that the father sees his rheumatologist at least every 6 months (paragraph 26) and keeps his specialist medical advisors up to date with any changes to his health (paragraph 43);
(iv)She found that the father had limited mobility and manual dexterity (paragraphs 50, 51) and that it would be difficult if not impossible for him to bathe [the child] (paragraph 53). In so finding, she ignored the evidence of the father’s past sole care of [the child], including overnight care;
(v)She found that the evidence of the father’s flatmate Mr [K] did not assist in allaying her concerns as to the father’s physical capacity to protect [the child] (paragraph 62) when there was no evidence by Mr [K] to support that finding, nor any suggestion put to him of risk to [the child] because of the father’s physical limitations. This finding is against the evidence.
2.Her honour did not adequately take into account the evidence of the father’s past sole care of [the child] in reaching her conclusions as to the father’s physical capacity, in the following respects:
(i)The appellant repeats Ground 1(i), (iv) and (v);
(ii)In ordering no overnight time until [the child] is 3 years of age, unless the paternal grandmother is present (paragraph 86), she ignored Mr [K] as a suitable alternative and his greater availability;
(iii)Other than a minor bruise to [the child’s] ear, for which neither party sought to blame the other (paragraph 31), the father’s past sole care of [the child] was not the subject of complaint;
(iv)The findings of risk to [the child] because of the father’s physical limitations during the time [the child] is active during the day (paragraphs 46, 51, 53) are inconsistent with her limitation of overnight time with the father, at which times [the child] would being [sic] the familiar environment of the father’s house; and further, would be sleeping during the night. Consequently any risk, even if it existed, would be minimal.
The submissions made by counsel for the father in support of the appeal were, in essence, that her Honour had erred in principle in determining that the time which she provided for the child to spend with his father was “significant and substantial”; that in reaching her decision, she had failed to have regard to the history of the past overnight times which the child had had with the father; and that the risk apparently posed to the child by the father’s lack of mobility was inadequately defined or quantified, was not properly based on the evidence, and was inconsistently relied upon or applied by her Honour.
At the commencement of his submissions counsel referred me to the apparently uncontradicted history given by the father in his affidavit (filed on 10 August 2007). In summary, that history was as follows:
·    For the first six months after the child was born on 1 May 2006 the father would visit the child from 6pm – 8pm when he would change, bath and bottle-feed him; he also spent substantial times on weekends with the child.
·    When the child was 6 months old in November 2006, the mother returned to work four days per week and the child went to childcare on those days; the father would then visit the childcare centre; this arrangement lasted until 16 January 2007.
·    In addition during November 2006 the father continued to spend time at weekends with the child and on five occasions during November 2006 the child stayed overnight with the father.
·    From 10 December 2006 to 10 January 2007 the parties trialled an equal shared care arrangement which resulted in the child spending 14 nights with the father.
·    On about 10 January 2007 the mother terminated the shared care arrangement apparently on the basis that she considered it was unsettling for the child.
·    On 12 February 2007 Brewster FM made orders for a shared care arrangement and accordingly in the period 20 February to 27 April 2007 the child stayed overnight on 17 occasions with the father.
·    As a result of a successful appeal by the mother against the orders of 12 February 2007, there was a re-hearing of the matter; as a result of that re-hearing, Donald FM made orders for the father to visit the child at the childcare centre from 1pm to 3pm on the four days that the child attends the centre; for the father to collect the child from the centre each Tuesday and Thursday at 5pm and remain with him until 6:30pm; and for alternate weekend contact from 1pm to 4pm on both Saturday and Sunday. But there was no provision for overnight stays.
It was thus submitted by counsel for the father that the orders made by Henderson FM were more restrictive than the previous orders made by Donald FM in that they did not provide for the two hourly visits to the childcare centre on four days each week, and thereby resulted in a situation where the child would see less of his father following her Honour’s orders than he had been prior to those orders. That submission is clearly correct at least in so far as Henderson FM’s orders would operate until the child turns three (which is some fifteen months away).
It must, however, be acknowledged in relation to the complaint that her Honour did not have regard to the past history of the father’s sole care of the child overnight, that her Honour did record accurately, it would seem, in paragraph 65 of her reasons the overnight periods which the child had spent with the father:
65. The father says his overnight time with [the child] should immediately recommence. By order of the Court, [the child] spent 17 nights with his dad between 20 February 2007 to 27 April 2007. By agreement between the parties he had spent five nights with his dad between 13 December 2006 to 6 January 2007 and he had spent five nights with him by agreement in November 2006.
It can be assumed that her Honour did not place weight on this history of overnight stays because of the difficulties which according to the mother, the child had experienced with, or as a result of, the earlier overnight contact; those difficulties were discussed in the immediately following paragraphs (66 to 68 of her reasons) and then in paragraph 86 (which paragraphs I later set out). Nevertheless the fact remains that the overall result of her Honour’s orders was to reduce the time the child would spent with his father.
Counsel for the father next directed his submissions to her Honour’s findings and conclusions concerning the father’s mobility problems and the risk that these problems may pose for the child. In order to provide a background to those submissions and also to the submissions in response from counsel for the mother, I now set out the salient passages of her Honour’s discussion of the father’s health, which, it will be recalled, was the first issue which she discussed in her judgment:
43.The father, most unfortunately, has serious health issues. I am satisfied on the evidence that his last epileptic fit of any real concern was in December 2004 and that his medication is controlling that condition. [the father] pays careful and particular attention to his health, which is necessary. He ensures his doctors are up to date with any changes to his health. It is a credit to him that he takes such care of his health.
44.Of real concern is the effect [the father’s] serious arthritic condition has on his capacity to care for a rambunctious toddler. I accept Ms Rees’ submission that in his affidavit the father minimised the severity of his rheumatic condition and its impact on his mobility.
45.Turning to paragraph 106 of the father's affidavit he gives his arthritic condition an almost a fleeting reference. The extent of his disabilities and the restrictions this disease cause him were only revealed in cross-examination. I found the father was very honest with his answers to the Court. The father has had knee surgery, which has improved his ability to go up and down stairs, but he still has problems with his knees. He cannot walk far or fast. He cannot run at all.
46.The father accepted that his lack of ability to run is likely to be a problem as [the child] grows older and that [the child] will, as all toddlers and young children do, run around. The father agreed he could not chase his son.
…
49.The father was unable to pick up a cup and use his hands in the same manner as those who do not have this wretched disease are able to do. He could not turn his head fully or easily to speak to me. He was much slower in rising from his seat and entering and leaving the witness box than, for example, the mother. The father clearly has restricted mobility and dexterity in his hands and his knees.
50.Since surgery to his right hand the father has achieved about 60 per cent use of the hand. However to put this another way he has 40 per cent less dexterity in his hands than the mother or anyone else who does not suffer the effects of this dreadful disease.
51.It was clear to me from my own observations that the father would be unable to grab [the child] or pick him up the same way that his mother can. The father’s lack of dexterity and restricted movement would make these tasks more onerous and difficult for him, although not impossible.
…
53.I am satisfied that at [the child’s] young age and with his father's lack of mobility and dexterity in his hands bathing this child would be very difficult if not impossible for the father. It will be difficult for the father to catch [the child] if he breaks away from him or to catch him if he falls.
54.Although these difficulties will continue and be present when [the child] is three years of age, [the child] will be able to enter and exit the bath himself with some limited assistance, obey some basic commands and have an understanding of his father’s limited mobility.
55.I am satisfied that, unfortunately, the father's health may pose a risk to the child as he enters the terrible two’s if he breaks free of his father, or falls while he is playing because his dad cannot chase him or get to him as quickly as his dad needs to and would like to be able to .
…
58.I have formed the view that it is his father's lack of mobility only that may pose a threat to him for the next 18 months or so.
59.[The Doctor’s] evidence did little to allay my concerns in this regard and, I suspect, the mother's concerns. I found the doctor extremely defensive of the father and his capacity as a father.
60.The Doctor had no idea of [the child’s] age or weight, yet she said the father could lift him even if he was soapy wet and wriggly. She likened lifting [the child], a 16-month-old toddler, to lifting a bag of groceries. These activities could not be more dissimilar.
61.[The Doctor] said the father could run and could catch the child. The father said in his evidence he knew he could not run and catch his son. [The Doctor] appears to believe that [the father’s] capacity to be a father was at issue in this hearing. It was not, it never has been, and such a view could not further from reality. It is [the father’s] safety which is at the forefront of my deliberations and is one of the primary considerations I must have regard to under the Act.
62.Mr [K], the father's flatmate, did not assist in allaying my concerns as to [the father’s] physical capacity to protect [the child]. In relation to bathing the child, he said he had never observed this occurring although he has seen [the father] prepare [the child] for a bath.
63.Again Mr [K] was defensive of [the father] as a father and wanted to make a comment at the end of his evidence about [the father] as a father. There is no issue of [the father] as a father. I told Mr [K] this was not the issue the Court was looking at. [The father] is a committed and caring father. He loves his son and his son loves him. It is [the child’s] safety which is in issue because of his father’s disabilities.
It is not, in my opinion, necessary for the purpose of determining this appeal to consider the various submissions made by counsel for the father to the effect that certain of her Honour’s findings in the above passages were not supported by the evidence, or the submissions from counsel for the mother which were directed to establishing that those findings were open on the evidence. This is because this aspect of the appeal can, in my opinion, be disposed of on the basis which is asserted by Ground 2(iv) of the grounds of appeal, being that there is an apparent inconsistency in her Honour’s reasoning regarding the risk that the father’s lack of mobility may pose to the child (assuming that such a risk exists).
In short, the issue here is, why if the father cannot run after the child in order to protect him from danger, should he nonetheless be permitted, as from the date the orders were made, to pick up and drive the child from the childcare centre on two afternoons a week and then be with him for a couple of hours, and then again for a substantial part of the two days on each alternate weekend (on which occasions he could well be out of doors with the child), and yet not be permitted to have the child stay overnight (when for most of the time the child is likely to be indoors, and for much of that time, in bed)?
In my view, there is a clear inconsistency in the reasoning in relation to this matter. It is, however, important to stress both out of fairness to her Honour, and also in case it be thought that the inconsistency identified could be resolved by the father having no time unsupervised with his child, that this inconsistency is also contained in the mother’s application which was before her Honour, and in which the mother sought the daytime arrangements which her Honour put in place. Indeed her Honour acknowledged this situation when she said:
85.I have concerns regarding the father's capacity to care for his son during the day because of his health. However, the mother says to me she has balanced this risk with [the child’s] right to a relationship with his father and she believes the balance tips in favour of the relationship with the father. In those circumstances, I will make the day to day orders that the mother contends for, even though I have some concerns.
I do not overlook the fact that there is the issue of the father’s capacity to safely bath the child while he is in his care, and also that the evidence about this matter was not entirely satisfactory. But the underlying assumption in the controversy regarding the bath issue, would seem to be that a young child must have a regular evening or morning bath. I cannot see why there could not be some flexibility as to when, and by what means, the child is washed at least in the circumstances where he was only to spend one night at a time with the father.
In considering what effect this inconsistency in reasoning regarding the father’s mobility problems might have on her Honour’s order in the context of an appeal, I also take into account that, as was forcefully submitted by counsel for the mother, there was another reason why her Honour decided against the child staying overnight with the father at least until the child was two, and that was the importance of breastfeeding to the child. Her Honour’s findings about this matter were as follows:
66.The father said the child was fine with him during all overnight periods. The father asserts [the child] ate well, was well settled, slept well, and there were no problems other than what one might usually expect with a young child. I accept that evidence.
67.However, the father’s experiences with [the child] are vastly different from the evidence presented by the mother The mother said that [the child] was distracted, clingy, whinging, wanting to continually suckle, demanding cuddles, waking up during the night quite distressed, not eating as well as usual and his behaviour was quite unsettled from what it had been. [The child’s] breastfeeding has increased rather than decrease as he has grown older. I find this is likely to be in part as a direct consequence of his being separated from his mother overnight at such a young age. The mother has continued to breastfeed [the child] in an endeavour to settle, comfort and reassure him.
68.Despite the father's evidence that he believes [the child] copes well with overnight times [the mother’s] description of her son is precisely the description of a stressed child who has been separated from his primary carer for too lengthy a time and is not coping with that separation. The father had to agree, after some pressing by Ms Rees, that the family consultant whom he and the mother saw told him that the child was too young for overnight time and too young to cope with the orders he sought.
…
86.In summary, this is a young child still being comforted and enjoying breastfeeding. Overnight time with his father or anybody else will not interfere with this important activity at this stage. Breastfeeding in the day is likely to cease well soon and all together before he is 2. The father has significant mobility issues and unless the paternal grandmother is available and in the same home with the father until [the child] is three years of age overnight time will not occur.
It is important to note that the father acknowledged the importance of breastfeeding for the child. (See Transcript 30/8/2007, p 30.)

Conclusions in relation to orders concerning pre-school years

(i) Overnight stays before the child turns two

In view of what I have just said concerning the issue of breastfeeding, and the importance which her Honour placed on that matter, I do not consider that I should interfere with her Honour’s decision that the child should not stay overnight with the father at least until the child is two, notwithstanding the inconsistency which I have identified in her Honour’s reasoning concerning the risk (if any) posed by the father’s mobility problems. Put another way, even if I was to interfere with her Honour’s decision as to what is to happen before the child turns two on the basis of that inconsistency, I would on re-exercise of the discretion, arrive at the same decision as her Honour, because of the breastfeeding issue.
I note in this regard that in the minute of orders sought by the father (in the event that I was to re-exercise the discretion), he has not pursued any claim for overnight contact until the child is two. He does however seek to be permitted to visit the child at the childcare centre, and if this were not to be permitted, I am uncertain as to whether he would maintain his position concerning overnight time. Thus, I make it clear that I have reached my own decision that until the child is two, he should not stay overnight with his father.

(ii) Overnight stays after the child turns two

I understand it to be accepted by the mother that breastfeeding will no longer be an issue once the child turns two (that is, on May 1 this year). Therefore I consider that my interference with her Honour’s decision not to permit overnight stays once the child turns two (unless the paternal grandmother is present) is warranted. This is because of the apparent inconsistency in reasoning concerning the risk (if any) posed by the father’s mobility, and because that risk was apparently the only reason for not permitting overnight stays once the child turned two.

I would therefore allow the appeal against Order 1(c) and vary that paragraph of the order to provide for the child to spend the whole of alternate weekends with the father, but only staying on the Saturday night and not on Friday night as well (as the father seeks in his minute of orders).
My reasons for this order are that if the mother is prepared to permit substantial daytime periods with the father, it seems to me to be inconsistent, for the reasons which I earlier explained, to prevent the child from staying overnight with the father. I also take into account that the child has on some previous occasions stayed overnight with the father, albeit now a considerable time ago. However, as I have already indicated, I would limit the overnight visits to one night, both to familiarise the child with the new arrangement and because of the bath issue.

(iii) Overnight stays after the child turns three

Her Honour’s order (Order 1(d)) provides that once the child turns three, he should spend alternate weekends with the father from 8.30am Saturday to 5.30pm Sunday. In his minute of orders sought in the event of a re-exercise of the discretion, the father sought that such alternate weekend stays should commence on Friday after childcare. Having regard to the limitations on appellate interference with a discretionary judgment (as was her Honour’s), I see that no justification to interfere with her order concerning overnight arrangements once the child turns three.

(iv) Overnight stays after the child turns four

Her Honour’s order (Order 1(e)) provides that once the child turns four, he should stay with the father each alternate weekend from 4pm Friday to 5.30pm Sunday. The father’s minute of orders sought in the event of a re-exercise of the discretion, did not refer to the arrangements when the child turned four. This may well have been because the father was seeking to start the Friday night stays once the child turned three.
But however that may be, I will make no change to her Honour’s order for the two weekend nights to start once the child turns four, although I will vary her Honour’s order to increase the weekday time that the child spends with the father for the reasons which I will now explain.

(v) The father’s visits to the childcare centre

As I mentioned much earlier in these reasons, both parties had sought orders from her Honour that the father be permitted to spend time with the child at the childcare centre on the days when the child was there, but that her Honour made no order in response to these applications, nor did she refer to them in her reasons for judgment.
Even though on at least two occasions during the course of the hearing before her (see Transcript 30/8/2007, p 8 and pp 93 to 94) her Honour expressed her disapproval of parental visits to childcare centres, and can be seen as giving some reasons for her disapproval, it was, with respect, an error on her part not to address the relevant applications in her reasons. It is an error which requires my intervention in the sense that I must reconsider the applications in question.
Although the mother had sought a continuation of the arrangement contained in Donald FM’s order for the father to visit the childcare centre, she had in her evidence to Henderson FM expressed her reservations about a continuation of the practice at least as the child grew older:
[The child] has a lot of parent contact during his childcare hours – more than any other child in the babies’ room. I am concerned that if this practice continues when [the child] moves up to the toddler’s room his social interactions with other children will suffer and the constant parent visits will interfere with the childcare routines. For my part I intend on reducing [the child’s] daytime breastfeeds such that I only need visit once or twice per day when [the child] moves up to the toddlers’ room (scheduled for December 2007 when [the child] is 19 months old). I am concerned that [the father] will want to continue visiting [the child] in the toddler’s room for two hours each day, which I think would detract from [the child’s] social development. (Paragraph 85 of the mother’s affidavit filed 13 August 2007).
The mother’s position as it emerges from her minute of orders sought in the event of a re-exercise of the discretion, now is that the father’s visits to the childcare centre should not continue, but in place of those visits once the child turns two and until he starts school there should be a continuation of the arrangement put in place by Henderson FM whereby the father collects him from childcare on Thursdays and then spends time with him until 6.30pm.
The father continues in his minute of orders to seek to be permitted to visit the childcare centre for an hour each day so long as the child attends the centre.
On balance I prefer the mother’s proposal for the father to pick the child up on an additional day each week and then have two and a half hours together, rather than the father’s proposal for a resumption of the visits to the centre.
I consider that the mother’s proposal is better suited to the child’s interests for the reasons given by the mother in paragraph 85 of the affidavit. I appreciate that the father may not perhaps have quite as much time with the child in the daytime on the mother’s proposal as he would on his own proposal. But once the child turns two, he will under my orders be having overnight time on alternate weekends with his father.
To the extent that the father is no doubt interested in the child’s activities and progress at the centre, he will be able to see what is happening and to talk to the centre’s staff when he picks up the child on Thursdays (and Tuesdays also at least for the next couple of months). I also take a somewhat similar view to the mother that it well may not be in the child’s interests to have his father continuing to visit the childcare centre as he gets older. No doubt there was some justification for the practice when the mother was also visiting for the purpose of breastfeeding, but once the mother stops visiting (which I understand would be soon), I see no reason for the father to visit. In any event the child may well in time not appreciate the distraction from his other activities and friends which his parents’ visits may well cause.

Conclusion in relation to orders once the child starts school

Before her Honour the father had sought that once the child started school he live with each parent on a week about basis. Her Honour rejected this proposal for the following reasons:
94. At this time in his life and at his young age I do not find that equal time with each parent is an order in the child’s best interest .He is too young to be separated from his mother for any lengthy time. The separation he was exposed to by order of the Court has resulted in anxiety for him and unsettled behaviour.
95.Secondly, the parties do not at this stage have good communication. One necessary component of making orders for equal time workable, particularly with young children, is an ability for parents to communicate. Without this necessary skill equal time may pose problems for a young child
96.Thirdly, the father's health may deteriorate in the future. This is unknown. I hope it is improved and he is more mobile. With the uncertainty surrounding the father’s health and the other two matters I have referred to, I would not make an order for equal shared time as this would not be an order in [the child’s] best interests.
According to her Honour’s order (Order 1(f)), once the child started school he would have each alternate weekend from Friday night to Monday morning (and one overnight stay in each week (that is, five nights in fourteen) with the father and half the school holidays.
Although in the submissions made before me there was little focus on what should be the arrangements once the child starts school, the father in his minute of orders sought in the event of a re-exercise of the discretion, sought an arrangement which I understood amounted to six nights in fourteen.
I consider, with respect, that her Honour’s reasoning in paragraph 94 of her reasons is open to some challenge on the basis that she seems to be referring to the child at the age and in the unsettled state which he may have been in, at August 2007 when he was about 15 months old, when in fact, at least as I understand it, the father’s application for equal time related to the time when the child was to start school.
Nevertheless, I think that there is force in her Honour’s reasons as contained in paragraphs 95 and 96 for not putting in place an equal time arrangement. Thus, were I to re-exercise the discretion, I would not depart from her orders for the reasons given in those two paragraphs, and accordingly this aspect of the appeal could not ultimately succeed.

Proposed orders

Given the various conclusions which I have reached, the appeal must be regarded as having succeeded overall. Rather than attempt to make orders which amend the various parts of Order 1, in my view, it will be more convenient for the parties if, while formally stating that I am varying rather than setting aside her Honour’s order, I will provide a complete re-draft of the order, which will incorporate my amendments together with those parts of her Honour’s order with which I have not interfered.

Costs

Given the overall success of the appeal and in light of the submissions made concerning the costs of the appeal at the conclusion of the hearing of the appeal, I consider that there should be no order as to costs and that each party should be granted a certificate under the Federal Proceedings (Costs) Act 1981 in respect of the costs of the appeal.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 28 February 2008