X & W
[2006] FamCA 733
•11 August 2006
[2006] FamCA 733
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA15 of 2006
(No. DGM2444 of 2004)
BETWEEN:
X
Appellant Mother
AND:
W
Respondent Father
BEFORE THE HONOURABLE JUSTICE WARNICK
REASONS FOR JUDGMENT
Dates of Hearing: 19 July 2006
Date of Judgment: 11 August 2006
Appearances: Ms McDiarmid of Counsel, instructed by Tyler Tipping & Woods, Solicitors, 81-89 Hotham Street, Traralgon, in the state of Victoria appeared on behalf of the Appellant Mother
Mr Blaxland of Counsel, instructed by McLaughlin & Associates, Solicitors, 18 Carol Avenue, Springwood, in the state of Queensland appeared on behalf of the Respondent Father
X and W NA15 of 2006 (DGM2444 of 2004)
Heard: 19 July 2006
Delivered: 11 August 2006
APPEAL FROM FEDERAL MAGISTRATES COURT – CHILDREN – RESIDENCE – BEST INTERESTS – The parties cohabitated for approximately 5 years in Victoria, until separation occurred in October 2003 – Two children were born during the relationship – Following separation, the father moved to Queensland, while the mother remained in Victoria with the two children – In April 2004, the older child went to live with the maternal grandmother due to the mother’s difficulty in managing the child’s behaviour – In July 2004, the mother moved to Queensland with the younger child, while the older child remained living with the maternal grandmother – In February 2005, the mother returned to Victoria and throughout the remainder of that year, the mother lived on and off with the maternal grandmother – There was evidence that there had been significant rifts in the relationship between the mother and the maternal grandmother – The Federal Magistrate considered that the relationship between the mother and the maternal grandmother was not sufficiently stable as to provide the ongoing co-parenting that the children needed – The Federal Magistrate also considered that the mother’s propensity to enter into dysfunctional relationships could have a negative impact on the children – The conclusion arrived at by the Federal Magistrate in relation to the mother/maternal grandmother relationship was not unsupported by other findings and, consequently, the conclusion was well open to him – While it may be debatable whether entry into one dysfunctional relationship can support a finding of a “propensity” to enter into such relationships, the mere observation that it may be so points to the conclusion that the finding of the Federal Magistrate was also open to him
FAMILY REPORTS – The mother argued that the Federal Magistrate failed to ensure that adequate family reports were prepared by the family reporters – There is no duty or obligation on a trial Judge to ensure that the trial of issues over parenting orders includes evidence in the nature of a family report – There is also no duty or obligation to take steps to ensure that a family reporter takes every step which, in ideal circumstances, the court would wish the family reporter to take.
Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
Norbis v Norbis (1986) 161 CLR 513
Appeal dismissed.
“Ms X” and “Mr W” commenced to cohabit in June 1998. Two children were born to them, “CL” in May 2000 and “J” in August 2002. Both parents were young when they began living together, the mother not quite 18 years the father not quite 21. The relationship foundered and cohabitation ceased in about October 2003. Subsequently, disagreement arose between the parties about the arrangements for the children. On 21 February 2006, upon an application of the father filed in October 2004, Slack FM ordered that the children live with the father.
The mother appeals the orders made by Slack FM, seeking orders that the children live with her. These reasons are for the disposition of that appeal.
At the time of trial, the father was living in Queensland. The mother was living in Victoria, with the children. The movements of residence by the mother since the separation, her care of the children, the time which the children (particularly CL) had spent in the primary care of the maternal grandmother and the degree of contact between the children and the father were all significant issues in the hearing before the Federal Magistrate.
There are eight grounds of appeal. One ground asserts that the Federal Magistrate erred by not appointing a child representative and ensuring that the two authors of family reports conducted their assessments “with best practice”. Though in the other grounds there are no assertions of outright mistake of fact, within one of the grounds and within submissions are some complaints that inferences should not, or even could not, have been drawn. Otherwise the appeal rests on the assertion that the exercise of discretion was plainly wrong, because of a failure by the Federal Magistrate to give proper weight to relevant factors.
I will return to the grounds of appeal after a summary of Slack FM’s reasons for judgment.
Summary of the reasons of the Federal Magistrate
The facts stated in this section are derived from Slack FM’s reasons.
“During the course of their relationship, the parties lived at [N] in Victoria. The father was generally in full-time employment and the mother was primarily responsible for the care of the children.”
Upon separation (as stated, in October 2003) the mother remained in the matrimonial home with the children and the father moved to stay with friends. A short time after, he moved to Queensland and has resided in Queensland from that time on. In March 2004, the mother moved from the former matrimonial home to “M” in Victoria. During 2004, the mother was in a relationship with a “Mr T”. In April 2004 CL moved to live with the maternal grandmother because the mother was having difficulty managing her behaviour. The mother (with J) moved to Queensland to escape Mr T in July 2004, while CL remained with the maternal grandmother.
While in Queensland, J had contact with the father. The mother said that Mr T followed her to Queensland, kidnapped her and removed her to South Australia, but she escaped the relationship and moved back to Victoria.
Slack FM recorded that:
“18. The mother concedes that, during 2004, she:
(a)was using cannabis to such extent that “it may have affected her short-term memory”;
(b)had difficulty managing her financial situation and, in her words, “would receive the pension and then ‘blow the money’;
(c)was in a violent and dysfunctional relationship with [Mr T] (although [Mr T] and the mother did not live together);
(d)was suffering from depression.
19. In or about August/September 2004, after her return to Victoria, the mother moved in with the maternal grandmother. A caravan was put into the backyard of the home of the maternal grandmother and the mother, [J] and, occasionally, [CL], stayed in the caravan for approximately 4 months.
20. In November 2004, the mother moved to [K Avenue, M] and she had both children in her care at that time. She lived at that address for 11 to 12 weeks. It was the evidence of the maternal grandmother (which I accept) that the mother was not confident in her parenting of the children during this period and she made the decision to move back to the home of the maternal grandmother.
21. In or about February 2005, the mother moved into the home of the maternal grandmother. The maternal grandmother had shifted house to a larger house so that she could accommodate the mother and the children.
22. The mother and the children continued to live with the maternal grandmother until July 2005 when the mother travelled to Queensland. The mother says she made the move to Queensland because there had been discussions between her and the father towards a reconciliation. She left [CL] with the maternal grandmother. She moved into the father’s residence with [J]. Conflict commenced almost immediately and the mother left the father’s home after 5 days. She returned shortly thereafter and remained for another week or so and then moved into the [S Caravan Park]. Eventually she obtained a unit in [E] but after approximately 3 months (in October 2005) the mother returned to Victoria and again took up residence with the maternal grandmother.
23. Throughout 2004 and 2005, [CL] was living with the maternal grandmother. She commenced pre-school at the [MS Pre-School] in February 2005. [CL] had some behavioural problems in early 2004 that required management and treatment from a paediatrician.
Contact between the children and their father
24. In December 2003, the father was in Victoria and had contact with the children on several occasions over a 4 or 5 week period. During this period, the mother alleged that the paternal grandmother was harassing her and she brought intervention proceedings against the paternal grandmother. The father left Victoria because of the continuing conflict with the mother and also because his immediate family had then relocated to Queensland.
25. The father next had contact with [J] in July/August 2004 for approximately 8 weeks. During this period, the mother stayed with an aunt and uncle at [BI] in Queensland. It was during this period that the mother was escaping the relationship with [Mr T].
26. The mother travelled to Queensland in July 2005 and lived in Queensland for 3 months. [CL] stayed with her maternal grandmother and [J] stayed with the mother in Queensland. During this period, the father had regular contact with [J] including most weekends.
27. The father had contact pursuant to orders made on 11 October 2005 between 19 and 26 November 2005 and between 7 and 31 January 2006.
28. Otherwise, the father has had telephone contact with the children although there is a dispute between the parties about the regularity of that contact.”
The Federal Magistrate further recorded that the witnesses in the mother’s case had been the mother, the maternal grandmother and one other person. The father had relied upon his own evidence, that of his mother and his sister. Apart from a short initial report from one “Ms B”, noting that the mother had not attended for an initial interview, two family reports were received into evidence; that which Ms B was eventually able to compile and one by Ms J. (Ms B, whose report was the earlier, had recommended that the children live primarily with the mother. Ms J recommended that they live primarily with the father). As to those family reports, Slack FM said:
“39. …There are some limitations to both family reports. The mother and the maternal grandmother did not attend for the interviews of [Ms J] and were interviewed over the telephone. [Ms J] was therefore not able to make an assessment of the nature of the relationship between the children and their mother and maternal grandmother. [Ms B’s] report was completed in May 2005 and she did not have any access to any of the documentary records relied upon in the proceedings.
40. Notwithstanding the limitations of the reports, I did not consider it necessary to obtain any further reports in the matter.”
His Honour then addressed the principles set out in various sections of the Family Law Act 1975, as amended. Having done so, he returned to the evidence and his conclusions from it under the headings “Wishes and Attachments”, “Needs of the Children”, “Parenting Capacity”, “Likely consequences of any change”, “The attitude of the parents to parenting”, “Domestic Violence” and “Risk of Harm”. He then summarised his findings in relation to “S.68F(2) factors” and expressed his conclusions as follows:
“134. In relation to the relevant S.68F(2) factors, I have come to the following general conclusions:
(a)The children do not seem to have a secure attachment to either of their parents.
(b)The maternal grandmother is likely to have been the significant carer of both children since at least April 2004 and it is likely the children have a significant attachment to her.
(c)The children would appear to have appropriate attachments to the father’s extended family including his mother and sister and to the mother’s extended family.
(d)Although [CL] has needed medical intervention and other assistance in relation to behavioural difficulties, those issues have largely settled (largely through the intervention of the maternal grandmother).
(e)I do not consider that the mother, on her own, can provide stable and consistent parenting for the children.
(f)I accept that, with the direction and significant assistance of her mother, she is able to provide stable parenting. However, past indications are that there have been significant rifts in the relationship between the mother and the maternal grandmother. The mother has continued to make decisions, particularly in relation to [J], that have not indicated the ability to provide stable parenting, even with the assistance of her mother. For example, she left Victoria in July 2005, initially with the intention of reconciling with the father but when that attempt failed after a short time she nevertheless remained in Queensland for three months, resulting in the separation of the children and [CL] having limited contact with her.
(g)The father is an untested parent. I consider him to be a committed parent who has demonstrated some stability in his life which suggests that he has the capacity to provide stable consistent parenting for the children. I accept that he will receive support and assistance from his mother and other family members. I do not have the same concerns about the relationships between the father and his family members as I do about the mother and her relationships with family members. Whilst I accept that the maternal grandmother does what she can to support her daughter, there are times when the relationship is very volatile due I suspect to the personality of the mother.
(h)I consider that there will be adjustments for the children in any change to their primary residential arrangements. They are both young. [CL] has only just commenced school and I am satisfied that there will not be significant consequences as a result of any change in their arrangements in the long term.
(i)I do not consider that either parent has the capacity to positively promote the relationship with the absent parent although I accept, subject to financial constraints, that the parties will comply with orders in relation to contact.
(j)I do not consider that the children are directly at risk of abuse from either parent although the mother has the propensity to enter dysfunctional relationships that could impact on the children.
The Proposals of the parties
135. The advantages for the children in remaining with their mother and maternal grandmother in Victoria are that they will continue the parenting arrangements that have been in place for them for much of 2004 and 2005. So long as the household (and, in particular, the mother) remains stable, then the mother, with the significant assistance from her mother, can provide stable parenting for the children. [CL] has experienced consistent and stable parenting from her grandmother since 2004 and that has largely resolved the behavioural difficulties that she experienced. Also, the children will continue to have at least holiday contact with their father.
136. The capacity for the children to receive stable and consistent parenting in the mother’s household is largely dependent upon whether the mother and the maternal grandmother can continue to co-exist and agree about arrangements for the children. I do not consider the mother, by herself, can provide adequate and proper stable parenting for these children.
137. The advantages of living with their father are that he appears to be able to provide a higher level of parenting than the mother and has shown stability in his personal life, at least since he moved to Queensland. I am satisfied it is likely that he will continue to receive ongoing assistance from his mother. Also, the children will continue to have at least holiday contact with their mother.
138. The principal disadvantages are that the father is untested as a parent and there is some uncertainty about how the children will respond to the change in their living arrangements.
139. In this very difficult matter, I have ultimately concluded that, on balance, it is in the interests of these children that they reside with their father.
140. In summary, my findings and reasons for that are as follows:
(a)I do not consider that the mother, on her own, can provide stable and consistent parenting for these children.
(b)Although I accept that the mother can, with the significant assistance of her mother, provide an appropriate level of stability in her parenting, I do not consider the relationship between the mother and the maternal grandmother is sufficiently stable to provide the ongoing co-parenting that the children need. I do not consider that the mother demonstrates stability in her own personality and life. I consider that the mother will not be able to maintain a stable environment for the children. The relationship between the mother and her mother has been volatile and, while they currently present a united front against the father, I do not consider that the volatility in their relationship will be contained for long. When there have been difficulties in their relationship, the mother has moved and has taken the children with her. As I have already said, I do not consider that the mother can provide stable and consistent parenting on her own.
(c)I consider that the father, with the assistance of his family, is able to provide more stable consistent parenting for the children in the long term.
(d)In view of the history of behavioural problems of these children, I consider that the provision of a stable, secure and routine environment will be vital for these children if they are to develop in the best possible way in the circumstances. I am not satisfied that the mother can provide the necessary environment in the long term for the stable parenting that these children require.
141. I intend to make orders that will provide for the children to reside with their father and for the mother to have regular holiday contact with them and more regular contact in Queensland if she chooses to move to Queensland to be closer to the children.”
The grounds of appeal and submissions in support
The failure to appoint a children’s representative and to ensure adequate Family Reports – Grounds 1(d) and 1(e)
These grounds are:
“1. The learned Federal Magistrate failed to:-
…
(d)ensure that the authors of the family reports accepted into evidence conducted their assessments in accordance with best practice which included interviewing the children in company with the mother; and
(e)failed to appoint a child representative in accordance with the decision in Re K.”
Counsel for the mother on the appeal sought leave to rely upon an Amended Summary of Argument. This request was not opposed and leave was granted. In the amended summary, these grounds were not repeated verbatim but were paraphrased as follows:
“1(d) and (e) that the learned Federal Magistrate failed to ensure that family report assessments were adequate and failed to appoint a child representative (a denial of natural justice in denying procedural fairness or a fair hearing)”
The only written submission in support of these grounds was:
“These matters were raised at the commencement of the trial on 30 January and an adjournment application was refused.”
I do not consider that the grounds in the Notice of Appeal, or even as paraphrased in the Amended Summary of Argument, amount to an appeal against the refusal of an application for an adjournment. Nor do I regard counsel for the mother as submitting that as an exercise of judicial discretion, the refusal to adjourn was flawed. Rather, the failure to adjourn was simply a result of the “failure” to ensure that the family reports were “adequate”. I expressed to counsel for the father on the appeal, during his submissions, the view that there was no appeal against the refusal to adjourn. Counsel for the mother made no submissions in reply.
Further, I think it unnecessary to consider the alleged “failure” to appoint a child representative, as the only real significance said to have attached to such an appointment had it been made was that (it was also said) a child representative was likely to have arranged for a further family report, to overcome the limitations of the reports before the Federal Magistrate. The real question then is whether the Federal Magistrate should have taken steps, of whatever nature, to ensure that the family reports were “adequate”.
The passages in which the Federal Magistrate considered the adequacy of the family reports were earlier set out but are repeated here:
“39. …There are some limitations to both family reports. The mother and the maternal grandmother did not attend for the interviews of [Ms J] and were interviewed over the telephone. [Ms J] was therefore not able to make an assessment of the nature of the relationship between the children and their mother and maternal grandmother. [Ms B’s] report was completed in May 2005 and she did not have any access to any of the documentary records relied upon in the proceedings.
40. Notwithstanding the limitations of the reports, I did not consider it necessary to obtain any further reports in the matter.”
There is of course no duty or obligation on a trial Judge to ensure that the trial of issues over parenting orders includes evidence in the nature of a family report. Equally, there is no duty or obligation on a trial Judge to take steps to ensure that a family reporter who does give evidence via a report and/or orally has taken every step which, in ideal circumstances, a family reporter would wish to take or the court would wish the family reporter to take.
Moreover, at a practical level, here, although each of the reports was limited, those limitations were different as between the reports. Taken together, the reports offered a range of observations including interviews with all relevant persons and a range of opinions, based upon what each reporter was able to observe, including opposed recommendations for residence.
Even further, it is of course entirely speculative as to whether a further family report would have advantaged the mother in any way or for that matter, further assisted the court.
In essence, the argument presented on appeal was no more than that, because there were limitations in the reports (recognised by the Federal Magistrate), he was obliged to ensure those limitations were removed.
As stated, I consider that argument is unsound.
There was a further point. In the Amended Summary of Argument, the following submission relevant to the “adequacy” of the family reports appeared, albeit as part of the submissions in respect of another ground:
“Prior to compiling their reports, neither report writer had the benefit of reading the reports from medical specialists annexed as REX 8 through 11 of the mother’s affidavit filed 11 January 2006. Such reports demonstrate the close involvement of the mother and maternal grandmother in the children’s lives and that both the mother and maternal grandmother have consistently sought and implemented appropriate advice and behaviour or management strategies and that [CL’s] behaviour had improved as a result. The reports also demonstrate the serious nature of [CL’s] special needs. It can be inferred that a change of residence to the father was likely to impact at first on [CL’s] behaviour and ability to cope.”
As to this submission, firstly, I think that the propositions about the conclusions to be drawn from the medical reports, particularly those propositions contained in the last two sentences of the submission, are contentious.
Secondly, as counsel for the mother conceded, had the mother wished the reporters to be apprised of the information in the annexures, there was nothing to prevent her (or her legal representative) placing the content of the reports before the family reporters. This was not done.
In my view, for all the above reasons, the grounds as framed must fail.
Challenges to particular conclusions
As indicated earlier, these challenges appear both in submissions in support of grounds (which do not themselves challenge the conclusions) and in ground 7, which is as follows:
“7. The learned Federal Magistrate drew conclusions about the likely course of the relationship between the mother and maternal grandmother which were not justified on the evidence.”
As to ground 7, the “ultimate” conclusions which are the focus of the challenge are:
“134. In relation to the relevant S.68F(2) factors, I have come to the following general conclusions:
…
(f)…However, past indications are that there have been significant rifts in the relationship between the mother and the maternal grandmother…
…
140. …
(b)… I do not consider the relationship between the mother and the maternal grandmother is sufficiently stable to provide the ongoing co-parenting that the children need. …The relationship between the mother and her mother has been volatile and, while they currently present a united front against the father, I do not consider that the volatility in their relationship will be contained for long…”
The significance of the findings about the relationship between mother and maternal grandmother arises from the following further finding:
136. The capacity for the children to receive stable and consistent parenting in the mother’s household is largely dependent upon whether the mother and the maternal grandmother can continue to co-exist and agree about arrangements for the children. I do not consider the mother, by herself, can provide adequate and proper stable parenting for these children.
Counsel for the mother made no attack on any finding of fact subsidiary to the learned Magistrate’s ultimate conclusion about the likely course of the relationship between mother and maternal grandmother. She simply focussed on the declaration of support by the maternal grandmother for the mother and on the history of the mother and maternal grandmother together looking after the children, to argue that Slack FM’s assessment of the likely course of events was wrong.
However, the Federal Magistrate’s conclusion about the future of the mother/maternal grandmother relationship was not unsupported by other findings which were, as said, unchallenged. These included:
“98.… Whilst I accept that the mother’s proposal involves her continuing to reside with the maternal grandmother, I have significant concerns about the nature of that relationship and whether it will remain stable.
99. The documents that were tendered from QSS will indicate that, throughout 2004, the mother was having ongoing difficulties in her relationship with the maternal grandmother and, in one incident, the mother described an attempt by the maternal grandmother to stab her. The notes for October 2004, for example, detail ongoing difficulties in the relationship between the mother and maternal grandmother and the mother’s increasing desire to leave the home of her mother. The mother and maternal grandmother in their oral testimony gave similar versions about the “knife” incident. In the way that they both described the incident it was a minor argument which would barely have raised a memory. Yet the mother told the QSS worker, that her “mum tried to stab her and she has been told to leave.” The mother and maternal grandmother are united in their opposition to the father. I do not consider that they told the truth about this particular incident or that they have been truthful about their relationship over the past few years. Whilst I accept that the mother relies on her mother, I consider that it is a volatile relationship. I detected in the maternal grandmother, as she gave her evidence, frustration with some of the behaviour of her daughter over the past few years. Whilst they are united for this application before the Court, I consider that it is likely that the relationship will continue to be volatile and, as a result, poses a significant risk of instability for the children.”
…
108. The history of the relationship between the mother and her mother since the separation is such that I can have no confidence that the mother will continue to rely upon the maternal grandmother for support and assistance. The records would indicate that the mother and her mother have had angry altercations, and the mother has been desperate to leave.”
In my view, in these circumstances, the ultimate conclusion drawn by Slack FM about the likely course of the mother / maternal grandmother relationship was well open to him.
“…that [CL] had lived with the maternal grandmother since April 2004”
The complaint in this regard was that the learned Magistrate either failed to appreciate or to give proper weight to, the role that the mother had played in the upbringing of CL, albeit the child was at times living in the house of the maternal grandmother. The contention was that, for much of these times, the mother also lived in the house or in a caravan in the yard of the house or close by.
The challenge is directed to findings such as that expressed in paragraph 134(b), in which the Federal Magistrate said:
“134. …
(b)The maternal grandmother is likely to have been the significant carer of both children since at least April 2004 and it is likely the children have a significant attachment to her.” (emphasis added)
Of course, in its terms, it is not stated there that the maternal grandmother was the only carer since April 2004. As earlier seen, the learned Magistrate set out the history of the whereabouts of the children since the separation in paragraphs 15 through to 23 and the contact they had with their father in paragraphs 24 through to 28. No finding of fact in that recount was challenged. In my view it is clear that the learned Magistrate had well in mind the past arrangements for the children, including the mother’s involvement in their care since the separation, and based on that history, conclusions such as that the maternal grandmother was likely to have been the significant carer of the children since at least April 2004, were well open to him.
Mother’s propensity to enter dysfunctional relationships
As earlier seen, in paragraph 134(j) the learned Magistrate said:
“134. …
(j)I do not consider that the children are directly at risk of abuse from either parent although the mother has the propensity to enter dysfunctional relationships that could impact on the children.”
As also earlier seen, the Federal Magistrate had found that since the separation the mother had entered into a dysfunctional relationship with Mr T. While it may well be debatable whether entry into one such relationship can support a finding that a person has a “propensity” to enter into such relationships, the mere observation that it may be so points to the conclusion that the finding of the learned Magistrate was open to him. Moreover, as counsel for the father contended, the degree of support for such a finding may depend upon the history of the mother’s behaviour in respect of the dysfunctional relationship. He submitted that the evidence showed that the mother had left and re-entered that relationship on more than one occasion.
In paragraph 133 of his reasons, under the heading “Risk of harm”, the learned Magistrate said:
“133.There is a risk to the children if the mother falls into another violent relationship of being exposed to violence in that relationship. However the mother has not, on the evidence before me, entered into any new relationship since her failed relationship with [Mr T]. Whilst I consider that the mother has the capacity to enter into further dysfunctional relationships, I do not propose to give that issue significant weight for the purposes of this decision.”
In the light of the learned Magistrate’s comments and my view that in any event the conclusion challenged was open to him, I consider that there is no merit in this argument.
The father’s capacity to assist the children adjust to change
Counsel for the mother submitted that the father gave no evidence of what he would do to manage the difficulties that could be expected to arise for the children following a change to their primary residential circumstances. As seen earlier, the Federal Magistrate was well aware that the father was an “untested parent”. He had said:
138. The principal disadvantages are that the father is untested as a parent and there is some uncertainty about how the children will respond to the change in their living arrangements.
However, he also said:
“134.…
(g) I accept that he will receive support and assistance from his mother and other family members. I do not have the same concerns about the relationships between the father and his family members as I do about the mother and her relationships with family members.…
(h)I consider that there will be adjustments for the children in any change to their primary residential arrangements. They are both young. [CL] has only just commenced school and I am satisfied that there will not be significant consequences as a result of any change in their arrangements in the long term.
…
137. The advantages of living with their father are that he appears to be able to provide a higher level of parenting than the mother and has shown stability in his personal life, at least since he moved to Queensland. I am satisfied it is likely that he will continue to receive ongoing assistance from his mother. Also, the children will continue to have at least holiday contact with their mother.
…
139. In this very difficult matter, I have ultimately concluded that, on balance, it is in the interests of these children that they reside with their father.
140. …
(c)I consider that the father, with the assistance of his family, is able to provide more stable consistent parenting for the children in the long term.
(d)In view of the history of behavioural problems of these children, I consider that the provision of a stable, secure and routine environment will be vital for these children if they are to develop in the best possible way in the circumstances.…”
In my view it is clear enough that the Federal Magistrate considered that the environment offered by the father would be adequate to cope with any adverse reactions of the children to a change in their residence.
Moreover, the findings that any judicial officer might be expected to make are related to the conduct of the case before him or her. Counsel for the mother did not point to any cross-examination of the father expressly directed to the issue of his capacity to cope with any consequences of change on the children’s behaviour.
Further, in so far as Counsel for the mother argued that CL had serious behavioural difficulties and therefore the inference should have been drawn that a change of residence would impact adversely upon her, the learned Magistrate’s unchallenged findings (as seen earlier) included:
“134.…
(d) Although [CL] has needed medical intervention and other assistance in relation to behavioural difficulties, those issues have largely settled (largely through the intervention of the maternal grandmother).
…
135…[CL] has experienced consistent and stable parenting from her grandmother since 2004 and that has largely resolved the behavioural difficulties that she experienced.”
I see no merit in this argument.
Remaining grounds of appeal
These are:
1. The learned Federal Magistrate failed to:-
(a)take into account the effect of the separation anxiety which the evidence disclosed would be caused to the children by the decision he made.
(b)take into account the strong bond existing between the mother and maternal grandmother and the children in rejecting the mother’s application for residence orders.
(c)take into account the evidence of the psychological and mental health problems of the elder child and the effect of relocation upon her.
…
2. On the propensity (sic) of the evidence the best interests of the children’s welfare would see them reside with the mother.
3. The evidence of the mother’s previous parenting and relationship with the maternal grandmother was not such as to justify the change of residence to the father whom the learned Federal Magistrate described as “an untested parent”.
4. The evidence disclosed a significant status quo in relation to the mother’s parenting and the children’s residence which was not taken into account at all or was not given sufficient weight by the learned Federal Magistrate.
5. The learned Federal Magistrate placed undue and inappropriate weight upon the evidence of the mother’s relationship history and in particular that with [Mr T] which the evidence showed had ended some time previously.
6. The learned Federal Magistrate placed no or insufficient weight upon the children’s strong bond with the maternal grandmother, and the effect of the relocation thereon.
8. The learned Federal Magistrate did not make orders which would see the needs of the children as disclosed by the evidence given any or sufficient regard.”
In respect of some of these grounds, namely 3, 4, 6, 7 and 8, there were no separate submissions. To a considerable extent the assertions made in these grounds have already been discussed.
All of these grounds and in my view, the submissions in support of them, did no more than simply attack the result, on the basis that the Federal Magistrate’s exercise of discretion miscarried because he failed to properly weigh the relevant factors. Moreover, in my view, submissions in support merely highlight the arguments that at first instance were or could have been put on behalf of the mother and in any event they are for the most part expressed in the grounds.
Apart from matters already identified, counsel for the mother suggested that there had been unfairly differential treatment of drug use by the father and by the mother and that insufficient weight had been given to anger management problems, to which, to some extent, the father had admitted. However, there were important differences arising from the evidence about drug use by each party, both as to extent and time.
There is an oddity when two passages of the Federal Magistrate’s reasons are compared. This occurs in relation to the following comments:
“98 …Whilst I accept that the mother’s proposal involves her continuing to reside with the maternal grandmother…”
And then:
“107.It is not the mother’s case that she intends to continue to reside with her mother or that she will be principally involved in the care of the children.”
I think it beyond doubt that the learned Magistrate clearly understood the mother’s case, which he carefully set out and discussed. Either paragraph 107 contains a typographical error or it means that, beyond the mother’s present proposal, she did not say that she would always live with the maternal grandmother or always have the maternal grandmother involved in the rearing of the children. Paragraph 108 of Slack FM’s reasons, set our earlier and referring to the mother’s past desperation to leave the maternal grandmother’s house following altercations, supports the meaning just described.
To return then to the main arguments represented by these grounds. Against all of the factors favouring the mother’s residence claim, the learned Magistrate had to weigh those which he clearly identified and which favoured a change of residence to the father. In respect of such a challenge as is here made, the words of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 are apposite:
“… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
To similar effect is the statement of Brennan J in Norbis v Norbis (1986) 161 CLR 513 at 540:
“The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.”
I am satisfied that the ultimate conclusion which the Federal Magistrate reached was well and truly open to him.
Conclusion
There being no merit found in any of the grounds of appeal, it follows that the appeal should be dismissed.
ORDERS
That the appeal filed 13 March 2006 be dismissed.
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Appeal
-
Procedural Fairness
-
Natural Justice
0
1
0