Yustakov & Yustakova
[2008] FamCAFC 120
•8 August 2008
FAMILY COURT OF AUSTRALIA
| YUSTAKOV & YUSTAKOVA | [2008] FamCAFC 120 |
| FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – Not established that the orders of the learned Federal Magistrate failed to provide substantial and significant time for the child to spend with the father or were otherwise not in the child’s best interests – father’s contention that the orders were “unfair” to the child not established – Not established that the Federal Magistrate’s discretion miscarried in making the orders that she did. No basis for appellate intervention established. Appeal dismissed. Parties each to bear their own costs. |
| Family Law Act 1975 (Cth) Part VII |
| Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627) House v The King (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513 CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 Penfold v Penfold (1980) 144 CLR 311 |
| APPELLANT: | MR YUSTAKOV |
| RESPONDENT: | MS YUSTAKOVA |
| FILE NUMBER: | PAC | 2208 | of | 2007 |
| APPEAL NUMBER: | EA | 25 | of | 2008 |
| DATE DELIVERED: | 8 August 2008 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 22 July 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 February 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 103 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self Represented |
| SOLICITOR FOR THE APPELLANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Greenaway |
| SOLICITOR FOR THE RESPONDENT: | Ms. Webber |
Orders
That the appeal be dismissed.
That there be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Yustakov & Yustakova is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EAA25/2008
File Number: PAC2208/2007
| MR YUSTAKOV |
Appellant
And
| MS YUSTAKOVA |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed on 30 June 2008 Mr Yustakov (“the father”) appealed against orders made by Federal Magistrate Housego on 5 February 2008 in parenting proceedings between the father and Ms Yustakova (“the mother”).
The orders which give rise to this appeal relevantly provided that in 2008 the child of the parties A Yustakova born December 2004 spend time with the father:
15) In 2008:
a)For five days from 5.00pm on the Sunday which falls at the mid point of each gazetted school holiday period until 5.00pm the following Friday at the end of terms 1, 2 and 3.
b)In the end of year school holiday period for five days from 5.00pm on the first Sunday until 5.00pm the following Friday and thereafter each alternate week until the conclusion of the school holiday period subject to Order 3(f), 3(g), 3(h), 3(k) and 3(j).
The orders provided that the child spend time with the father:
16) In 2009:
a)For the second half of the school holidays at the end of terms 1, 2 and 3 commencing at 5.00pm Saturday and concluding at 5.00pm on the following Saturday.
b)During the end of year school holidays for seven days from 5.00pm on the second Saturday and each alternate week thereafter subject to Order 3(f), 3(g), 3(h), 3(i) and 3(j).
As and from the year 2010 the child was to spend time with the father for the second half of all school holiday periods. During school holiday periods the time that the father was to spend pursuant to other orders made by the Federal Magistrate, which are not controversial, was suspended for the New South Wales school holiday periods. Her Honour’s orders stipulated that such periods included “the weekend immediately after the cessation of the school term and the weekend immediately before the commencement of the next school term”.
As will become apparent, the inclusion of the weekend immediately preceding and immediately following school holiday periods essentially gives rise to the present appeal. By so including those weekends during which the child would otherwise spend time with the father, in each alternate year the father was likely to spend three less weekends with the child than if, as the father contends, school holiday periods were expressed to commence with the first Monday of such holiday periods and conclude with the final Friday of such holiday periods.
The orders sought by the father in lieu of the orders made by the learned Federal Magistrate would have the effect of increasing by three weekends in each alternate year the time which the child was likely to spend with the father.
The mother opposed the father’s appeal and sought to maintain the orders of the Federal Magistrate.
Background
The parties were married in June 2004 and their child A was born December 2004. The parties separated on 20 February 2007. An Application for Divorce was filed by the wife on 30 June 2008 and is due to be heard on 14 August 2008.
The proceedings which gave rise to the orders of the learned Federal Magistrate were commenced by the husband on 20 April 2007.
Since separation the child has lived primarily with the mother, and since mid March 2007 up until the time of the Family Report, the child spent time with the father for four days in fourteen, according to the Family Report.
Court orders were made on the 25 May 2007 providing, of relevance to this appeal:
10. The child live with the father as follows:-
a.In week one and alternating each week thereafter from 7.00pm Wednesday to 5.00pm Friday, commencing Wednesday 30 May 2007.
b.In week two and alternating each week thereafter from 7.00pm Friday to 5.00pm Sunday, commencing Friday 8 June 2007.
c.At such other times as agreed between the parties.
11.The child to live with the mother at all other times she is not living with the father.
Those orders did not make provision for the child to spend time with the father in block periods, either by reference to school holidays or otherwise.
Prior to the matter being heard by the learned Federal Magistrate, the parties had reached substantial agreement with respect to parenting matters. Other than time to be spent with the father, and other minor issues which are not now controversial.
The matter was heard before Federal Magistrate Housego on 5 February 2008. Final Orders were made on 5 February 2008, Orders 1-10 being made by consent and the remaining Orders 11-20 as a result of decisions of the Court. Her Honour’s Reasons for Judgment were published on 14 February 2008.
The Judgment of the Federal Magistrate
The learned Federal Magistrate’s Judgment is concise, for reasons pointed out by her Honour at the commencement of her judgment. They were that the parties had reached “substantial agreement” prior to the commencement of the hearing, with only “some small matters” remaining for determination which the Federal Magistrate made Orders in relation to, thereby supplementing the orders made by consent.
The orders appealed against by the father are related to the time the child spends with the father in school holiday periods. Other issues which are not relevant to this appeal were briefly considered by her Honour, namely, whether and how the mother is to keep the father appraised of her contact details, and whether the changeover place should be varied.
Her Honour detailed the parties’ proposals for school holiday periods. The father had sought “a regime equivalent to half school holiday periods” to “commence fairly promptly.” The mother had sought that “such arrangement should not be put in place until [A] commences school which will not be until the beginning of 2010”.
The Family Report recommendation for block periods during school holidays was considered, and the absence of “adverse comment” in relation to the proposals of the father in this regard was noted.
Her Honour acknowledged the mother’s concerns that A was “too little to have extended periods with her father as she has now spent no longer than four days in a block with him since the separation”.
Her Honour concluded:
9.…In the circumstances, it seems to me appropriate for a stepped up school holiday period to be put in place which would have the effect of ensuring that by the time [A] commences school in 2010 that the half school holiday period can commence.
10.Accordingly, what I have set out in my Orders is an arrangement which will ensure that during 2008, at least until the conclusion of the third term, [A] will spend no more than five days consecutively away from her mother. This will continue during the school holiday period for the years 2008 and 2009. In 2009 I have extended the period of time that [A] will spend with her father making that period of time to a period of seven days. Hence, extended periods such as those contained within the father’s proposals will not actually commence until 2010 and accordingly, having regard to the content of the report, that will give [A] ample time to develop her relationship with her father.
The Family Report’s reference to “attachment by [A] both to her mother and also to her father” and observations of behaviour between the father and the child were described by her Honour as:
11.…consistent with demonstrable attachment and also what is known as “a safe base” which the social scientists would suggest indicates that [A] is able to spend period of time overnight with the father and absent from her mother.
Her Honour concluded her Reasons for Judgment in the following terms:
12.It is for these reasons having regard to the requirement that I make orders in accordance with [A’s] best interests having regard to those matters in section 60CC so far as they are relevant. In the limited determinations before me I have made the Orders made today.
The Grounds of Appeal
The father’s grounds of appeal provided:
1.Order 18. I appealed the part of The Order that states: “including the weekend immediatelly [sic] after the cessation of the school term”.
a.I believe it was an unintended consequence of FM Housego’s orders that there will be 16 days block period when my daughter and I will be apart when my time with the child is suspended on a weekend immediately after the cessation of the school term.
2.Order 15. Part b. I appeal the parts of The Order whitch [sic] state that the five day block period should start on a Sunday at 5.00pm and finish on following Friday at 5.00pm.
a.I believe The Order does not provide me with substantial care during school holidays as school holidays weekends are not shared.
b.I believe it is unfair not to give me access to my child during school holiday weekends.
3.Order 16. Parts a and b. I appeal the parts of The Order whitch [sic] state that the five day block period should start on a Saturday at 5:00pm and finish on following Saturday at 5:00pm.
a.I believe The Order does not provide me with substantial care during school holidays as school holidays weekends are not shared.
b.I believe it is unfair not to give me access to my child during school holiday weekends.
4.Order 17. I appeal the part of The Order whitch [sic] states that my time with the child should commence at 5:00pm on the Saturday.
a.I believe The Order does not provide me with substantial care during short school holidays as school holidays weekends are not shared.
b.I believe it is unfair not to give me access to my child for a full weekend during short school holidays.
As the father’s oral submissions at the hearing of the appeal made clear, there were, howsoever articulated in his Grounds of Appeal, two broad challenges to the learned Federal Magistrate’s exercise of discretion.
The first of those was that her Honour erred in making orders which resulted in there being periods of up to 16 days in duration, on potentially three occasions in each alternate year, during which the child spent no time with the father. Although not so expressed, this challenge necessarily involves the contention that the regime of contact ordered by the learned Federal Magistrate thus failed to provide substantial and significant time being spent by the child with the father, notwithstanding the learned Federal Magistrate’s acceptance that substantial and significant time spent would be in the child’s best interests.
Although agitated in reliance upon the same factual matrix as the first broad challenge, the second broad challenge raised by the father was that the orders made by the learned Federal Magistrate were “unfair” in the manner already indicated. Objectively, it is difficult to see how the second broad challenge to her Honour’s decision could succeed if the first fails. Conversely, if the first challenge succeeds, it would be unnecessary to consider the second basis of the father’s appeal.
The father provided a concise Summary of Argument. Learned Counsel for the mother filed a comprehensive and cogently reasoned Outline of Argument in response. Rather than paraphrase the father’s Summary of Argument, his contentions are reproduced below:
Order 18:
1.I believe it was an unintended consequence of FM Housego’s orders that there will be 16 days block period when my daughter and I will be apart when my time with the child is suspended on a weekend immediately after the cessation of the school term. Her Honour did look at possible arrangement/s when I will spend 5-6 days with the child during school holidays and then my wife will be with the child for 7 days during school holidays (The Transcript: from page 93 line 41 to page 94 line 20).
2.Her Honour acknowledged that it is not good for the child to be away from me for a long period of time, as well as from the mother (The Transcript: page 94 lines 15 to 22). 7 days was the maximum time my daughter and I spent apart. Current 16 days period when [A] spends away from me before and during school holidays could break continuality of our relationship. It does conflict to Her Honour’s above mentioned statement and to the recommendation of the family report (Family Report: Page 92, last paragraph).
3.Her Honour implemented a stepped up regime which insures gradual increase in time the child wills pend with me (Reasons for Judgment: from Page 13, Paragraph 8 to Page 14, Paragraph 11). Currently, six days my daughter and I would normally spend together are suspended and replaced with five days. This replacement conflicts to the idea of the implemented stepped up regime as it reduces time I spend with the child, not gradually increases it.
The father also submitted:
Orders 15, 16 and 17:
4.I want to have substantial involvement in my daughter’s life. By that I mean that I want my wife and I to share our time with the child during a week, weekends, public holidays and other special days.
5.The Orders do provide me with the substantial care except for school holidays.
6.Currently, I would not be able to spend full weekends with [A] during any school holiday period for the next one and a half years. This fact does conflict to the definition of the substantial care, as weekends during school holidays are not shared.
7.School holiday weekends are different to routine mid year weekends. There are more events created especially for minors during these times. I believe it is unfair that I can not participate in events with my daughter.
Although not the subject of oral agitation, it is apparent from the father’s Summary of Argument that the father contends that the commencing and concluding times for holiday contact periods are not in the best interests of the child’s welfare. There are thus in effect three complaints raised by the father which will be considered.
A convenient starting point for the consideration of the issues raised in the appeal are the relevant passages of the learned Federal Magistrate’s Reasons for Judgment. As the father confirmed, pivotal to his contention that the 16-day periods during which the child would spend no time with him are inconsistent with the child’s best interests and/or less than substantial and significant time spent by the child spent with the father, are a consideration of the transcript of the trial and the Family Report.
The father conceded that there was no expert evidence before the learned Federal Magistrate suggesting that an absence of time spent with the father for a period of as long as 16 days was inconsistent with the child’s best interests and/or less than substantial and significant time spent by the child with the father. However, the father, understandably, relied on the fact that the interim orders in force at the time of the hearing before the learned Federal Magistrate entailed periods of only seven days between occasions when the child spent time with him.
The father also fairly conceded that, whether there was evidence to support such a contention or not, he had not submitted to her Honour that her orders should avoid periods of up to 16 days during which the child would spend no time with him, either on potentially three occasions in each alternate year or otherwise.
It is perhaps unsurprising in those circumstances that the learned Federal Magistrate did not expressly refer in her Reasons for Judgment to this issue. What her Honour did say however is significant. Having referred to the anticipation of the Family Report writer that the child would spend time with her father “for block periods during the school holidays”, her Honour referred to the absence of adverse comment by the report writer with respect to the father’s proposal that such “block periods” include “a 14 day block period”.
It is clear, on that basis, that her Honour did not decline to order that the child spend block periods of 14 days with the father prior to 2010. Although the father does not really complain about that, it is, in context, the first step in the process of reasoning which led the learned Federal Magistrate to the orders which she ultimately made.
Having identified the father’s proposal, her Honour then recounted, accurately there is no doubt, the basis upon which the mother opposed such extensive block periods, noting the “mother’s concerns that [A] is still too little to have extended periods with her father as she has now spent no longer than 4 days in a block with him since the separation”.
The learned Federal Magistrate concluded that it was “appropriate for a stepped up school holiday program period regime to be put in place which would have the effect of ensuring that by the time [A] commences school in 2010 that the half school holiday period can commence”. In fairness, the father makes no complaint about that.
Her Honour observed that the orders she proposed making would mean, at least until the conclusion of third term in 2008 that the child would “spend no more than five days consecutively away from her mother”, a situation which would continue during 2008, increasing to 7 days away from the mother during 2009 and, of necessity having regard to the terms of the orders, by up to 3 weeks during the end of year school holiday periods from 2010.
It is clear that the Federal Magistrate understood the orders the father was seeking. It is also clear that her Honour understood the effect of the interim orders which had been in place. To the extent that her Honour may not have appreciated the impact on the time the child would spend with the father by virtue of the period of “suspended” time spent with the father at weekends as a result of school holidays being defined to include the weekend when such holiday periods commenced and the weekend when such holiday periods concluded, as noted earlier, there was no expert evidence before her Honour suggesting that to be inconsistent with the best interests of the child, or with the child spending substantial and significant time with the father.
The father referred the Court to a portion of the transcript of the proceedings before the learned Federal Magistrate in support of his contentions. It is common ground that, although the father has not provided the whole of the transcript of the proceedings before the learned Federal Magistrate, the passages which he has provided (pages 93 and 94) are relevant to the Court’s consideration of the various challenges he makes. It is not suggested that other parts of the transcript impacting upon this topic have been withheld by the father. In the interests of completeness, the passages of the transcript relied upon by the father are reproduced in full:
FEDERAL MAGISTRATE: There was one a few years ago that caught everybody by surprise and no doubt the insurers needed to find out about it and there’s one this year and I don’t think there’s another one for a long time. So, this year, if we looked at an arrangement that, say, put [A] with you, say five nights and six days in school holiday periods for end of term 1, end of term 2, end of term 3, and then Christmas, rather than, say for half, which I think is too long at this stage, have a week with you or five days with you say, and then the rest of the two weeks with the mother, back to five days with you, seven days with the mother, five days with you, that sort of arrangement, through that Christmas. Then we keep going with – we can move up to the weeks in the mid-year holidays for next year and then, in that next Christmas, which would be the last one before she goes to school, we could keep a broken-up arrangement of week about, and then she starts school and then we just go to half school holidays.
MR YUSTAKOV: I don’t – I’m agreeing with what you say. I don’t have any problems with that.
FEDERAL MAGISTRATE: Ms Sloane, that seems to me to fit in with age-appropriate orders.
MS SLOANE: Yes, I’d agree with your Honour. Perhaps I should, if your Honour could give me a moment, just explain that to the mother.
FEDERAL MAGISTRATE: Absolutely, I understand. I’m more than happy for you to do that but it does seem to me that that’s a better way of doing it and I would have thought that’s consistent. If we got the family consultant on the phone, I think it’s the sort of thing he’s likely to say yes – the spectre of three weeks in one household and not the other is just too long. It’s too long in fact for her to spend away from her father at this stage as well, so it works both ways, because if she’s three weeks with her mum and then three weeks with you that’s three weeks she’s not seeing you and that’s bad for her as well. So if we do this stepped-up arrangement until – for two years, then we can go to half school holidays.
It emerges from the transcript that her Honour considered three weeks of not seeing either parent “bad” for the child. It is equally apparent that the learned Federal Magistrate mooted an arrangement for the Christmas holidays which, if implemented, would have meant that the child spent, at most, nine days without spending time with the father. Not surprisingly having regard to his assertions before this Court, the father indicated his absence of “problems” with such an arrangement. It is reasonably apparent by reference to her Honour’s Reasons for Judgment, that the father and the learned Federal Magistrate may well have been somewhat at cross purposes in the exchange set out above in that it was never there made clear that the status of the first weekend of school holidays was not clarified. Some support for that can be gained from her Honour’s reference to five days with the father and seven days with the mother.
To the extent that the father seeks to suggest that the learned Federal Magistrate’s orders were not consistent with what she had indicated during final submissions to her, would be her orders, while the father may in the circumstances have been somewhat confused, the transcript does not establish that her Honour expressed a concluded view that the child not spending time with the father for up to sixteen days was inconsistent with the child’s best interests and/or the child spending substantial and significant time with the father. Nor, on the evidence before her, should her Honour necessarily have so concluded. Clearly, in the passages relied upon by the father, the learned Federal Magistrate expressed the view that the child not spending time with either parent for three weeks was too long, but it cannot reasonably be inferred by anything said by her Honour, or any evidence before her Honour, that not spending time with the father for sixteen days was, or should have been similarly viewed.
As also previously noted, the father did not raise this issue before the learned Federal Magistrate with the clarity or emphasis that he has before this Court. As the father acknowledged, her Honour was exercising an undoubtedly broad discretion, albeit within a defined and reasonably small ambit. Her Honour could have made the orders for which the father contended without thereby erring in ways of which the mother could complain. This Court may have come to a different conclusion to that arrived at by her Honour but that does not render her Honour’s conclusion erroneous.
It is convenient at this stage to identify the principles that govern an appeal from a discretionary judgment.
The presumption that a trial Judge’s decision is correct is outlined by Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627):
I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp 532–534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
The husband thus bears the onus of demonstrating that his Honour’s decision was “clearly wrong”.
In House v The King (1936) 55 CLR 499 the High Court said at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Norbis v Norbis (1986) 161 CLR 513 Brennan J said, albeit in the context of property settlement proceedings, at 539 – 540:
Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at p.345 Asquith LJ stated the rationale of an appellate court’s approach:
“…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.”
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.
In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230 – 231:
Discretionary and evaluative decisions
186.A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
The words of Stephen J in Gronow v Gronow (1979) 144 CLR 513, at 519-20 are apposite in the circumstances of this appeal. His Honour there said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
It is not suggested that the learned Federal Magistrate’s exercise of discretion miscarried by virtue of any material error of fact. It is not suggested that her Honour failed to have regard to any relevant fact or circumstance, or that her Honour had regard to irrelevant facts or circumstances.
Nor is it suggested in this appeal that the learned Federal Magistrate misused her advantage as the trial Magistrate. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 (“Earthline”) the High Court said (at 619, par 90):
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge was driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
Although not so expressed, the father’s contention is in substance that the orders of the learned Federal Magistrate which result in three periods in alternate years in which the child would not spend time with the father for periods of 16 days could not be in the child’s best interests and/or constitute substantial and significant time spent with the father.
The absence of any expert opinion evidence in support of this contention, combined with the absence of any authority, psychological, legal or otherwise in support of it, renders this challenge particularly difficult to establish. Those difficulties are not assisted by the father’s frank concession that he did not raise this issue with the learned Federal Magistrate.
This Court cannot conclude that the learned Federal Magistrate’s discretion miscarried in making the orders that she did.
As her Reasons for Judgment make clear, her Honour sought to balance on the one hand a gradual increase in the time the child would spend with her father with, on the other, the child’s age and limited time which she had historically spent with the father, and thus been away from her mother.
With all due respect to the father, who has presented his case concisely, cogently and with undoubted sincerity, nothing to which this Court has been referred establishes a basis for appellate intervention. Realistically, the only basis upon which this Court could interfere with her Honour’s decision would be that this Court thought that the 16 day absence of time spent with the father was too long. As the authorities make clear, that is not a permissible basis for appellate intervention.
So far as the unfairness is concerned, it must be construed that the father complains that the orders are “unfair” to the child. As the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) make clear, the focus of inquiry in parenting proceedings is the child, whose welfare is and remains paramount. It could be said with some justification that fairness or unfairness to a parent is subservient to the best interests of the child.
Realistically, the only way in which the father’s “unfairness” challenge could be successfully raised would be if he were able to demonstrate that the learned Federal Magistrate’s orders failed to provide substantial and significant time for the child with the father and/or that the orders were not in the child’s best interests. This the father has been unable to do. That is unsurprising having regard to the principles governing his appeal to this Court.
It remains to consider the contention of the father that block periods of time spent by the child with the father should commence at 5.00pm on Friday rather than 5.00pm on Saturday.
With all due respect to the father, nothing to which he has referred the Court establishes a basis for appellate intervention, largely for the reasons provided in support of the dismissal of the father’s earlier complaints. It is implicit in the orders for block time spent by the child with the father that the father would be available to the child during such periods. In those circumstances, quite apart from any absence of demonstrated appealable error, any valid distinction for present purposes between weekends and weekdays becomes difficult to suggest.
Conclusion
Having not established a ground of appeal, the father’s appeal must be dismissed.
Costs
Counsel for the mother, as was his obligation, sought an order that the father pay the mother’s costs of the appeal in the event of the appeal being dismissed.
As is not in doubt, the question of costs is itself discretionary. In Penfold v Penfold (1980) 144 CLR 311 at 315 the High Court said:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117 (2) in "a clear case".
Whilst the father’s appeal has been unsuccessful, it cannot be said that the father had no basis for challenging the learned Federal Magistrate’s decision or that the way in which he sought to do so rendered failure in this Court inevitable. To his considerable credit, the father presented his case competently, concisely and dispassionately. The real issue which was capable of being pursued was the only issue which the father pursued.
Notwithstanding that the appeal was wholly unsuccessful, the Court is not of the opinion that the father should pay the mother’s costs of the appeal.
I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.
Associate:
Date: 8 August 2008
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