Yamada & Cain - [2013] FamCAFC 64

FAMILY COURT OF AUSTRALIA

YAMADA & CAIN

[2013] FamCAFC 64

FAMILY LAW – APPEAL – CHILDREN – where the mother appeals orders placing the child in the care of the paternal great aunt – where the mother claims the Federal Magistrate erred in not giving the fact of parenthood primacy – whether the Federal Magistrate erred – where it is the quality of parenting rather than the fact of parenthood that is relevant to a determination of best interests – where the mother also claims a failure on the part of the Federal Magistrate to provide adequate reasons – whether the reasons were inadequate – where the mother also claimed that the Federal Magistrate failed to consider alternative orders – where no such orders were proposed at the hearing before the Federal Magistrate – where no error demonstrated – appeal dismissed.

Family Law Act 1975 (Cth), ss 60CC, 94(2A), 117

Aldridge & Keaton (2009) FLC 93-421
Donnell & Dovey (2010) FLC 93-428
Kitsannis & Netopoulis and Anor [2010] FamCAFC 214
Metwally v University of Wollongong (No 2) (1985) 60 ALR 68
Mulvaney & Lane (2009) FLC 93-404
Prantage & Prantage [2012] FamCAFC 84

APPELLANT:

Ms Yamada

RESPONDENT:

Ms Cain

FILE NUMBER:

MLC

4263

2010

APPEAL NUMBER:

SOA

2011

DATE DELIVERED:

26 April 2013

PLACE DELIVERED:

Perth

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Murphy & Macmillan JJ

HEARING DATE:

4 March 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

3 June 2011

LOWER COURT MNC:

[2011] FMCAfam 539

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Glass

SOLICITOR FOR THE APPELLANT:

Hartleys Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Buchanan

SOLICITOR FOR THE RESPONDENT:

Bayani Harvey Lawyers

Orders

The appeal be dismissed.
Each party shall bear their own costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yamada & Cain 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 MELBOURNE

Appeal Number: SOA 80 of 2011
File Number: MLC 4263 of 2010

Ms Yamada

Appellant

And

Ms Cain

Respondent

REASONS FOR JUDGMENT

Thackray J

I have had the benefit of reading in draft the reasons of Murphy and Macmillan JJ. I agree with those reasons and the orders proposed.
In my view, the Federal Magistrate properly balanced the risk of instability to the child if she were to be returned to her parents against the risk of “the loss of close familial connectedness with her parents and siblings” if she were to remain with her great aunt. Importantly, this balancing exercise was conducted in light of the finding that the great aunt had shown “the requisite insight” in appreciating the importance to the child of being able to maintain her “very important relationships” with her parents and her siblings.

Murphy and Macmillan JJ

Parenting proceedings before Bender FM concerning Z (born July 2005) involved competing proposals for parenting orders sought by, on the one hand, Z’s mother and, on the other, her paternal great aunt (“the aunt”). The child’s father was not a party. However, he lives with the mother and supported in all respects the orders sought by her at trial.
The child Z has four older siblings, aged eleven, nine, eight and seven at trial. They were all living with the father and mother in South Australia. The aunt lives in Melbourne. Her grandson, K, aged six at trial, lives with her as a result of his parents having both died of drug overdoses in January 2010.
The child Z had been living with the aunt from when she was a baby until she visited her parents in January 2010 for what was to have been a four-week stay. She was not returned. Proceedings ensued by which, ultimately, orders were made by consent on 16 July 2010 for Z to live with her parents and for her to spend time with the aunt during specified school holiday periods. The child and the parents were then living in a remote part of South Australia.
It was uncontroversial before the Federal Magistrate that the mother has a criminal history involving cultivating and possessing marijuana and two convictions for trafficking in that drug. It was also uncontroversial at trial that the father had “an extensive criminal history from 1991 to 2008”. His offences, too, included possessing and trafficking marijuana.
In September 2010, when the child spent time with the aunt, it emerged that the father had been charged with serious criminal offences and was in custody in South Australia. In October 2010, the mother and the children moved to South Australia to be closer to him. That move was the latest in many. The Federal Magistrate found that the father, mother and children had lived, as her Honour described it, “a transient lifestyle”. All of their children other than Z have been to a number of different schools; the eldest child, currently in year 7, has been to seven and the youngest, only in year 2, has been to four.
In January 2011, Z visited the aunt in Melbourne. At the conclusion of that visit, when delivering the child into the mother’s care at the airport, the aunt observed the mother being arrested by the Australian Federal Police. The aunt did not return the child to the mother’s care. The child has lived with the aunt thereafter.
Those events were the genesis for the trial before her Honour. Her Honour ordered, relevantly, that the child live with the aunt and for face-to-face time with the parents to occur during school vacations and for contact otherwise to occur by telephone and via electronic means. The mother appeals from those orders.
In our opinion, the appeal has no merit and should be dismissed.
We propose to give brief reasons; s 94(2A) of the Family Law Act 1975 (Cth) (“the Act”) permits the Court to give reasons in short form where an appeal is to be dismissed and does not raise any question of general principle. Each such consideration plainly applies here. Moreover, as will be seen, the challenge to her Honour’s orders is, ultimately, a narrow one.

The Grounds and the Appeal as Argued

The appellant was granted leave, without objection from the respondent, to amend her Notice of Appeal so as to abandon the 11 grounds there outlined and substitute for them the three grounds contained within the appellant’s written Summary of Argument. Given that no Amended Notice of Appeal has been filed, it is appropriate to set out those amended grounds as they there appear:
GROUND 1
Her Honour failed to consider, or in the alternative, gave insufficient weight to:
(a) ss.43(1)(b), 60B(1)(a),(2)(a)(b)(c), 60CC(2)(a),(3)(e), 61DA, 65DAA of the Family Law Act 1975 (the Act);
(b) The United Nations Convention on the Rights of the Child (UNROC) – Preamble and Articles 7, 8 and 9.
…
GROUND 2
Her Honour failed to provide adequate reasons so that it can be seen how, within the framework of the relevant legislation and instrument, the ultimate decision was reached.
…
GROUND 3
Her Honour impermissibly narrowed her inquiry as to the variety of orders which could be made.
…
(Italics in original).
As the appellant’s argument unfolded, it became clear that each of the first two grounds depend upon premises all of which are effectively a subset of a central premise which, in simple terms, can be described as a contention that the Federal Magistrate had insufficient regard to the fact of parenthood as an overriding (or predominant or primary) factor in arriving at a decision in the child’s best interests.
Ground 3 is a challenge also emanating from that general premise but with a different application. It is argued that, because parenthood should have been given greater primacy in the decision, alternatives to the orders made ought to have been considered and orders made accordingly.

Ground 2 and Reasons Generally

Before dealing with that central argument, it should first be said that, to the extent that Ground 2 is a challenge to her Honour’s reasons more broadly, it has no merit. Four days after the conclusion of the trial, the Federal Magistrate gave comprehensive and, with respect, thoughtful reasons comprising 216 paragraphs that plainly elucidate the path by which her Honour reached her ultimate conclusions expressed in the orders her Honour made.
The reasons deal with all of the matters to which the Act demands mandatory regard must be had. The reasons are plainly adequate.

The Importance of Parenthood - Grounds 1 and 2

Although Ground 1 is specified as a challenge to the lack of weight attributed to specified sections of the Act and to the United Nations Convention on the Rights of the Child, (“UNROC”), the argument as developed concentrated on a central premise. While acknowledging that “there is no presumption or preferred position” in favour of a parent, it is nevertheless contended that where, as here, proposed parenting orders involve a contest between “live with” arrangements in favour of a parent and those of a non-parent, both the Act and authority demand that significant weight must be attached to parenthood in making “live with” orders and her Honour paid no, or insufficient, regard to each.
The argument advanced on behalf of the appellant should be rejected on two bases.
First, neither the Act nor authorities emerging from this Court since the 2006 amendments to the Act, provide a basis for the submission made by the appellant. It is axiomatic that the fact of parenthood is centrally important to a decision about the best interests of a child. Unsurprisingly, the Act makes that clear by outlining the powers, duties and responsibilities of parents. Some of Part VII’s provisions do not apply to non-parents. The appellant contends that particular significance should attach to the fact that the first of the Act’s two Primary Considerations (s 60CC(2)(a)) is directed, in terms, only to parents. It is contended that, as a result, there is a manifest legislative intention to give primacy to parenthood in determining best interests and, thereafter, in making parenting orders when the claims of non-parents compete.
It is argued that this reasoning emerges from what was said by Moore J (after the 2006 amendments) which statements have been subsequently approved by this Court (see, for example, Donnell & Dovey (2010) FLC 93-428 at [121] and Aldridge & Keaton (2009) FLC 93-421 at [112]). The provisions of s 60CC (as well as other sections within Part VII) must be mandatorily applied and, in that context, it has been held that “there can be no doubt that s 60CC(2)(a) has no application to a person who is not a parent” (Donnell at [101]).
It has also been said that the provisions of Part VII, and s 60CC in particular, do not give a clear “indication of the weight to be attached to the child’s relationship with a person other than his or her parent compared with the child’s relationship with the natural parent …” (Mulvaney & Lane (2009) FLC 93-404 per Finn J at [15]). As also noted in Donnell (at [120]) it has been suggested that “in proceedings between a parent and a non-parent all of the relevant provisions of the Act referring specifically to parents ‘fall away’” (emphasis in original). That expression was adopted in certain of the oral submissions made by counsel for the appellant.
Those matters found the appellant’s central premise earlier referred to. In oral submissions, her counsel – having properly noted that arguments in respect of s 60CC(2)(a) were not put to the Federal Magistrate – developed the argument by reference to what this Court said in Donnell, emphasising in particular what the Court said in the passage quoted above. Counsel went on to argue:
That formulation and that gloss starting with the line of authority in Potts & Bims is of significance and it is something that her Honour has not had regard to … it is not clear from her Honour’s reasoning that she has accepted that the benefit to [the child] of the meaningful relationship with both of her parents is a primary consideration and it cannot be equivalent to the benefit to [the child] of the relationship with [the aunt].
(Bold emphasis added).
Both the terms of s 60CC(2)(a), and the authorities in this Court earlier referred to, make it plain that the Primary Consideration there contained does not apply to non-parents. However, that does not lead to the conclusion advanced by counsel contained within the emphasised part of the submission above.
No decision of this Court was cited as authority for that proposition and we are not ourselves aware of any such authority. Indeed, authority suggests an entirely different conclusion.
In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
(Bold emphasis added).
Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:
It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …
and more broadly, at [75]:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …
The 2006 amendments did not alter the fact that:
s 60CC(2)(m) of the Act gives a broad opportunity to a court to consider many diverse matters relevant to the welfare of a child, and may have particular relevance when dealing with an application by persons other than a parent.
(Aldridge at [111], cited in Kitsannis & Netopoulis and Anor [2010] FamCAFC 214 at [81]).
The broad inquiry as to best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
Contrary to the appellant’s argument, there can in our view be little doubt that her Honour was acutely aware of, and gave proper prominence to the fact that there were competing applications between a parent and a non-parent. Further, her Honour was alive to the importance of the relationship between the child and her siblings and between the child and her parents. Her Honour, properly in our view, weighed those factors with other factors which, again properly in our view, gave rise for concern about the child’s best interests if she was to live with her parents as they proposed.
So much is, in our view, clear from her Honour’s reasons. For example,
214.Having considered and balanced the risks that face [Z] in the choice as to where she lives, I have formed the view that the risk of instability if she were to return to her parents outweighs the risk to her of the loss of the close familial connectedness with her parents and siblings in the event that she were to live with her paternal great aunt. I am not satisfied the parents will remain living in [South Australia] for the next five years and that an order by me requiring them to do so would be complied with.
Further, her Honour was plainly alive to the mandatory requirements of Part VII and s 60CC in particular. The reasons are replete with her Honour balancing the importance to the child of the relationship with her parents and her siblings against what her Honour found – with respect correctly as it seems to us – were concerns about the parenting that would likely be provided to the child by her parents. Chief among her Honour’s concerns was what her Honour found to be – again, with respect correctly as it seems to us – the parents’ transient lifestyle and a consequent potential for lack of stability for the child. Examples in her Honour’s reasons include [109]-[112]; [123]-[124]; and, [127]-[132].
Contrary to the appellant’s argument that her Honour “does not recognise [Z]’s relationship with her parents as a matter of primacy”, we are of the view that her Honour gave the important matter of the child’s relationship with her parents the context which the evidence demanded and a proper place among the matters which the Act mandatorily requires must be considered in arriving at a decision about her best interests.
Grounds 1 and 2 fail.

Ground 3 – A “Narrow Inquiry”?

The point has already been made that, although this ground is expressed in terms not tied to the central issue just discussed, it nevertheless emanates from it as oral submissions on behalf of the appellant concede:
With respect to ground 3, in my submission it is precisely because of the significance the law places on filial relationship that her Honour ought to have considered making an order that [Z] live with my client subject to remaining in [South Australia].
Counsel for the appellant also concedes that neither the alternative courses of action nor the form of orders which, it is now contended, should have been the subject of a broader inquiry by her Honour were raised before the Federal Magistrate. As a result counsel “… fully accept[ed] that the difficulties I have in advancing this argument is that it was not advanced at trial”. The concession is properly made; it is, generally speaking, not open to an appellant to raise matters not raised below on appeal (see, for example, Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 at 71 and Prantage & Prantage [2012] FamCAFC 84 at [88]). Counsel contends, correctly, that only “exceptional circumstances” can found an exception to that principle.
Counsel sought to argue that the “exceptional circumstances” in this case had three bases. Having dealt with how it was contended that her Honour had power to make an order of the type now contended for, counsel continued:
With respect to the difficulties of putting a case now that wasn’t put at trial, I say that it is hard to imagine what other evidence could have been called to rebut that proposition. The central issue in the case was my client’s transience. That was a matter explored at length, both in affidavit evidence and in cross examination. Indeed, her Honour’s judgment focuses on that issue extensively and, as your Honours pointed out, indeed at [214] she makes findings about the likelihood of my client remaining transient into the future. With respect to the exceptional circumstances that I’d need to demonstrate to advance a case now that wasn’t put a trial, I say they are threefold. Firstly, her Honour finds that there is no doubt as to the adequacy of care that the parents were able to provide to [Z]. That’s at [127] on p. 46 of the Appeal Book. As I’ve just indicated, she identifies transience as the main risk in both framing the dispute at [197] and her conclusion at [214], and it is the very fact of the significance of parenthood that, in my submission, should have led her Honour to consider that very order; namely, that [Z] live my client conditional upon them remaining in [South Australia]. That would have addressed the primary risk that her Honour had concerns about; namely, stability and, in my submission, is a matter to which her Honour ought to have had regard.

We are not persuaded that any of the matters raised by counsel, or the combination of more than one of them, constitutes a basis for the appellant raising now in argument other possible orders or courses of action that may have been open to her Honour but which were not agitated at trial. Not only was no such submission made before her Honour, no such suggestion was at all alluded to during the course of the proceedings. Further, as counsel effectively concedes, the argument is dependent upon a premise which, as will be clear from our earlier reasons, we are not persuaded is correct.
In any event, as was pointed out during the course of the hearing, the argument confronts a specific finding by her Honour that is not the subject of challenge on this appeal. At [214], her Honour finds: “I’m not satisfied the parents will remain living in [South Australia] for the next five years and that an order by me requiring them to do so will be complied with.”
In our opinion, that unchallenged finding is, of itself, sufficient to defeat the argument advanced in respect of this ground.
There is no merit in ground 3.

Outcome of the Appeal

For the reasons outlined, the appeal should be dismissed.

Costs

As is customary, we sought at the conclusion of the hearing of the appeal submissions from both parties as to costs in the event of each alternative outcome of the appeal.
The appeal having failed, the appellant points to the fact that each party is legally aided and contends that, in conformity with s 117(1) of the Act, each party should bear their own costs. The respondent does not contend to the contrary.
The Court will so order.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 26 April 2013.

Associate:

Date: 26 April 2013