Zabini & Zabini - [2010] FamCAFC 10

FAMILY COURT OF AUSTRALIA

ZABINI & ZABINI

[2010] FamCAFC 10

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE - CHILDREN – Appeal against interim spends time with orders – Discussion of difficult position of the Court in determining interim applications – Father submitted that the Federal Magistrate failed to properly consider s 60CC and follow the legislative pathway – Federal Magistrate’s analysis and synthesis of issues was contained in six specific paragraphs – Parties agreed that an order for equal shared parental responsibility ought be made – Father submitted that the Federal Magistrate failed to properly consider s 65DAA factors – Father submitted that the Federal Magistrate applied a Cilento approach to the case – Federal Magistrate did not undertake the cascading consideration required by Goode – The legislative pathway was described but not applied – Appeal allowed – Application for interim orders remitted

Family Law Act 1975 (Cth) s 60CC; s 61DA; s 65DAA

Goode & Goode (2006) FLC 93-286

APPELLANT:

Mr ZABINI

RESPONDENT:

Ms ZABINI

APPEAL NUMBER:

124

2009

FILE NUMBER:

SYC

4364

2009

DATE DELIVERED:

2 February 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Warnick J

HEARING DATE:

22 January 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 September 2009

LOWER COURT MNC:

[2009] FMCAfam 963

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Sansom

SOLICITOR FOR THE APPELLANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Ms Gillies

SOLICITOR FOR THE RESPONDENT:

Rachel Stubbs & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

That the appeal be allowed.
That order 2(a) made in the Federal Magistrates Court of Australia on 15 September 2009 be set aside as an interim order, save for its continued operation as an interlocutory order, pending resolution of the application for interim orders hereinafter referred to.
That the applications for interim orders be remitted to the Federal Magistrates Court of Australia for rehearing by a Federal Magistrate, other than Federal Magistrate Kemp.
That the application of the mother to adduce further evidence in the appeal, be dismissed.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: EA 124 of 2009

File Number: SYC 4364 of 2009

Mr ZABINI

Appellant

And

Ms ZABINI

Respondent

REASONS FOR JUDGMENT

The usual interim hearing for parenting orders involves fact-heavy material, full of contention that cannot be resolved on the papers, yet there is no cross-examination. Nor does any party usually bear an onus to assist a court in the determination of an application or response.
In such hearings, since the amendments to the Family Law Act in 2006, in reasoning to a conclusion as to the proper parenting orders, the court must follow one or other of prescribed paths. Yet the essential platform underpinning each of those paths is a detailed fact-finding process required by s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).
Thus, a dilemma of labyrinthine complexity arises.
Moreover, the orders are no mere interlocutory orders, preserving a position for a short time, but are likely to operate until a final hearing, which may be a year or more away. The potential for dissatisfaction is high. It is not surprising that appeals such as this arise.
Mr and Ms Zabini have two children; T, now nine years of age and M, six years of age. The parents separated on 16 July 2009. Upon separation, the mother took the children from Sydney to the southern highlands area, where she may have intended to live for a time. The mother asserted that the father had been violent towards her and in his treatment of the children.
The father promptly commenced proceedings about parenting arrangements in the Federal Magistrates Court of Australia, on 23 July 2009. On 28 July 2009, “holding” orders were made providing for the mother to return to Sydney with the children. An order for appointment of an Independent Children’s Lawyer (“ICL”) was made and the interim application adjourned.
After a hearing on 15 September 2009, Federal Magistrate Kemp made interim orders. The terms of the orders were similar to those made on 28 July 2009. The ICL had suggested a continuation of the then existing orders, on the basis that little evidence was available. The father had effectively sought an equal shared care arrangement.
Pursuant to the orders, the children live primarily with the mother, but live with the father each alternate week from Thursday, from after school, until 6.00pm Sunday and for half of all school holidays.
It is the father who appeals. He challenges only the order for periodic contact. In its stead, he seeks an order for a week-about arrangement.
Grounds of appeal in the amended Notice of Appeal are:
1.That the Learned Federal Magistrate failed to provide any or adequate reasons.
2.The Learned Federal Magistrate failed to properly consider the Primary and Additional considerations under ss 60CC(2) and (3).
3.That the Learned Federal Magistrate failed to follow the Legislative Pathway under Part VII of the Act.
4.The Learned Federal Magistrate erroneously took certain matters into account or dealt with them in an erroneous fashion.
The mother filed an application to adduce further evidence in the appeal, to be pursued only in the event this court sought to re-exercise the Federal Magistrate’s discretion.
It is convenient to discuss the arguments directed to each of the grounds, together.
The essential proposition for the father, put by Mr Sansom of counsel, is that the parties having agreed, and Kemp FM accepting as appropriate, that there be equal shared parental responsibility and the court having found that the children had a meaningful relationship with both parents, the learned Magistrate nonetheless failed to apply the terms of s 65DAA of the Act. In other words, the Federal Magistrate did not consider, in a positive way, whether orders should be made for equal time, and if not, for substantial and significant time for the father with the children.
The learned Magistrate’s reasons, excluding the orders, are some 24 pages in length. However, Mr Sansom says that, in effect, his Honour’s reasoning is contained in paragraphs 65 to 71. I substantially agree. However, as Ms Gillies for the mother and Ms Stolier for the ICL say, it is also undoubtedly true that one must have regard to the balance of the judgment.
His Honour began by setting out in full the orders sought by the father. He recorded that the mother sought a continuation of the orders made 28 July 2009, save for a different proposed order with respect to holiday time. He set the orders of 28 July 2009 out in full.
Kemp FM then addressed a heading “Principles to be applied and procedure to be followed”. He recorded that “the best interests of the child” remained the paramount consideration and he set out the terms of s 60B of the Act, dealing with the objects and underlying principles of Part VII. He then referred to the decision of the Full Court in Goode & Goode (2006) FLC] FLC 93-286 and quoted at length from that decision, including noting that, if the presumption of equal shared parental responsibility applied and was not rebutted, the court was obliged to consider making an order that the child spend equal time with the parents, unless that was contrary to the child’s best interests or impracticable.
In ways which are uncontroversial in this appeal, his Honour then referred to the proposals of the parties, the issues, and to factual matters, listing relevant uncontested facts and disputed facts. Among matters that he recorded in the last category were:
·(e) the father’s involvement in caring for the children,
·(i) whether the father pushed the mother to the floor,
·(j) whether the father emotionally or physically abused the children,
·(k) whether the father hit the children with a belt, squeezed their heads, flicked them in the face or head, locked them in a garage, shed or car, locked them in their rooms, or called them “stupid”, “lazy” or “fat”,
·(l) whether there has been an investigation of the father by DOCS,
·(m) whether the father had dealt in drugs.
Kemp FM then turned to “Presumption of equal shared parental responsibility”. Nothing his Honour there said, during considerable discussion of that term and “major long-term issues”, seems of significance to the appeal. However, in the next heading, “Parental responsibility”, his Honour said:
28.The Court finds that the presumption will apply in this case, as the parties have agreed to that position.
29.Further, under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
Whether that was the best approach in this particular case is a question addressed later.
His Honour then moved to “Time to spend”. He noted that, by virtue of the order for equal shared parental responsibility, the terms of s 65DAA were “triggered” and he said:
31.If the presumption is applied, certain matters follow by virtue of s.65DAA of the Act and the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” or some other time with both his parents.
…
33.To determine what time orders should be made, the Court must look to the best interests of the child and whether the actual spending of such time is reasonably practicable.
His Honour then addressed “Primary considerations”, which he set out and he referred to discussion of some issues arising from the terms of the legislation. He then said:
36.The considerations listed in s.60CC(2) of the Act do not inevitably outweigh the other considerations, but the Court must give some weight to the term “primary”. See Elspeth & Peter [2006] FamCA 1385.
37.In this regard:
a) The Court accepts that the children have a meaningful relationship with both parents. The Court notes that the mother had, herself, sought that the father reduce his travel commitments to spend more time with the children. She must have, at that time, considered more time with the father to be of benefit to the children.
b) The primary consideration referred to in s.60CC(2)(b) of the Act is, however, relevant on the facts of this case. The Independent Children’s Lawyer’s submission is that, subject to further investigation, the Orders of 28 July 2009 should continue. In particular, the mother’s allegation concerning reports to DOCS about the father would need to be further addressed.
His Honour then turned to “Additional considerations” and discussed matters related to each of the paragraphs of ss 60CC(3) of the Act.
In so doing, he noted that there was no evidence before the court as to the children’s views upon which any weight could be placed.
Importantly, in relation to the questions raised in this appeal, he then addressed paragraph 60CC(3)(b), dealing with the nature of the relationship of the children with each of the children’s parents and other persons. He said:
41.The mother’s evidence was that she had been the children’s primary carer. She stated that her parents, who lived on a farm, had a close and supportive relationship with the children. She further asserted that the father had tried to unsettle [T], as he was the more sensitive of the two children.
42.The mother’s evidence was also to the effect that she had made a number of decisions including where to live and where the children would attend school, without, it would appear, any discussion with the father.
43.The mother submitted that the children could be cared for by her extended family or the paternal extended family, if the parties were otherwise unable to so care for them, due to their work commitments.
44.The father submitted that the maternal grandparents had allowed the mother’s sister … to supervise the children and that she, while intoxicated, was involved in a motor vehicle accident with the children and was charged and gaoled for 11 months. The father submitted that she had a history of drug and alcohol abuse.
45.The father also submitted that the paternal grandfather (the paternal grandmother having passed away in 2008) had cared for the children in January/March/May of 2009, when the parties travelled to Melbourne.
Mr Sansom argues, in my view accurately, that there is in the above passages no finding about the nature of the relationship between the children and the father, notwithstanding that earlier the Federal Magistrate had determined that the children had a meaningful relationship with each parent. That finding, of course, came when Kemp FM was addressing the primary considerations, which are more about a value to be ascribed, where a meaningful relationship is found, to the promotion and maintenance of that relationship, rather than a question of fact as to the nature of the relationship.
In considering the next factor, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent, the Federal Magistrate did not refer to any inferences drawn from the mother’s unilateral move to the southern highland area.
Mr Sansom is critical of that absence.
However, later, under the heading “The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents”, the learned Magistrate said:
53.The mother’s removal of the children from their home and schools gives some concern as to her attitude to parental responsibility. However, her reinstatement of the children to their school environment and her return to the former matrimonial home gives the Court some comfort as to her ability to exercise that responsibility going forward.
In paragraph 59 of his reasons Kemp FM also recorded the father’s contentions about the mother’s move to the southern highland area.
Notwithstanding this discussion, by Kemp FM, Mr Sansom points out that the mother did not voluntarily return to Sydney and he suggests that the Federal Magistrate ought have drawn an inference, in relation to this factor, against the mother, because of her removal of the children.
In considering this argument, I note that in his reasons for judgment, Kemp FM recorded that the orders of 28 July 2009 had been made by consent. On their face, it does not say so and there are some other indications that the orders, whether ultimately by consent or not, were entered into after some “indications” from the bench.
In my view however, factors such as the reasons for the mother’s decision, particularly in the light of her assertions about the father’s violent conduct, might well have needed determination before any inferences were drawn. Furthermore, though the mother did not return voluntarily, she did at least, as recorded by the Federal Magistrate on 15 September 2009, not pursue the relocation issue, at least until a Family Report became available.
I do not consider that the Federal Magistrate treated this factor wrongly.
Nothing arises, for present purposes, from the learned Magistrate’s consideration of other factors, save that I note that, in relation to the capacity of the parents, the court found:
50.The Court accepts that both parents have the relevant capacity to provide for the children.
Such a finding may possibly have founded inferences about the nature of the relationship between father and children.
Next, the Federal Magistrate referred to the factors described in s 60CC(4) and (4A), and then he addressed “Reasonably practicability of ‘spending’ time” but no issue arises from either of those segments of his reasons, but none were expressly drawn.
Then, his Honour moved to the “Conclusion”. To that point in his reasons, the Federal Magistrate had set out the competing proposals, stated principle in an uncontroversial way, and made some findings. The only areas of note, for present purposes, are firstly in respect of the application of the presumption of equal shared parental responsibility, in the context that he also said that the primary consideration referred to in s 60CC(2)(b) – the need to protect children from harm – was relevant and secondly, the absence of specific findings about the nature of the relationship between father and children, though he did find it was “meaningful”.
As earlier indicated, I accept that the concluding paragraphs essentially contain the Federal Magistrate’s reasoning, that is, his analysis and synthesis of his earlier findings. The first four of those six paragraphs are:
66.The parties have both conceded that the presumption as to equal shared parental responsibility should apply. The Court is of the view that the orders the subject of the father’s proposal, should not be made at this time, for the reasons referred to below.
67.The mother’s employment, whereby she works three 24 hour shifts per fortnight, usually on a Saturday or Sunday in one week and a Wednesday or Friday in the second week, enables her to care for the children after school. This is of some significance.
68.The father is in receipt of a high income of some $159,000 per annum, and it would appear, works some 38 hours per week. His employer had provided a letter that the father would be given some accommodation to the effect that the employer would be “entirely flexible with his work commitments”. The letter states that “it will no longer be obligatory for [the father] to travel outside the Sydney area, at any time which would interfere with him being able to care for his children, in an appropriate and responsible manner”. The father’s proposal would see him working from 10.00am to 2.00pm for five days in the week that he had the children. This would be 20 hours work. The father’s position seemed to be that he would then need to make up the shortfall in his time in the subsequent week, when the children were not with him. That would mean that he would then work 56 hours in that week. Ms De Vere submitted that the father could also work additional hours outside the 10.00am to 2.00pm slot from his computer at home in both weeks one and two.
69.The Court’s concern is that the father’s proposal is predicated on quite a fundamental change to his current working routine. The actual working arrangement flowing from the father’s proposal has not been formally approved by his employer, notwithstanding the expression of accommodation referred to above. The father’s employment letter did acknowledge that the father had previously been required to travel outside Sydney as part of his work obligations. The mother asserted that he travelled extensively interstate and internationally as part of those work commitments.
Mr Sansom argues that Kemp FM was mistaken in relation to whether the father’s proposal had been formally approved by his employer or not.
I am not satisfied that the Federal Magistrate erred in this regard.
In one of his affidavits, the father had deposed that he had spoken to his employer “in relation to my requirements for travel and have come to an agreement in relation to this”. He annexed a letter from his employer, in which the employer stated that it was:
“…willing to be entirely flexible with his work commitments. We are fully accommodating with [the father], allowing him as much time as needed to dedicate himself to the needs and requirements of his children. …it will no longer be obligatory for [the father] to travel outside the Sydney area, at any time which would interfere with him being able to care for his children. …”

In my view, it was nonetheless open to the learned Magistrate to find that the actual working arrangements proposed by the father had not been approved by his employer.
Kemp FM continued:
70.Further, the father’s proposal sees the children living with him on a week about regime at the paternal grandfather’s home. There is no evidence before the Court as to the willingness of the paternal grandfather to facilitate this. Nor is there any evidence of the children’s relationship with the paternal grandfather, referable to them potentially living in his household and how this would impact on them.
In Goode & Goode (2006) FLC 93-286 the Full Court said:
64.…the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2). (emphasis added)
For the mother and the ICL, it is argued that, in paragraphs 69 and 70, Kemp FM can be seen to be fulfilling the obligation upon the court to consider equal time, pursuant to s 65DAA.
I disagree. What can be seen are three reasons why his Honour preferred the proposal of the mother to that of the father; the mother’s lesser work commitments and so increased availability to care for the children and doubts about the availability to the father and children of accommodation with the paternal grandfather, on a week about basis. Thirdly, there was no evidence of the relationship between the children and the paternal grandfather.
Mr Sansom points out, correctly I think, that whatever concerns the Federal Magistrate had in relation to the grandfather’s position, they did not trouble him in ordering that the children be with the father three nights out of each fourteen and half of school holidays.
In my view, while in paragraphs 69 and 70 Kemp FM was undoubtedly addressing the father’s proposal, which was for equal time, there is no indication that he was considering equal time in a positive way.
Nor is there any obvious attention to the primary consideration set out in s 60CC(2)(a) namely, the benefit to the child of having a meaningful relationship with both of the children’s parents, nor to the object expressed in s 60B(1)(a), namely ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child.
However, because his Honour earlier set out the terms of relevant sections of the Act, one might argue that, seen overall, his Honour has met the requirements of the statute. Looking only at paragraphs 69 and 70, but bearing in mind what precedes those paragraphs, that proposition may be tenable.
However, in the final paragraph of reasoning for rejecting the father’s proposal for equal time, Kemp FM said:
71.The Court prefers the proposal that sees the children continuing in as stable an environment as possible, including their schooling, pending the final hearing. That was the basis upon which the Court made its views known when it first considered the application by the father for a recovery order. The mother has conceded that position by returning the children to the former matrimonial home (which the father offered as accommodation for her and the children) and to their schools. The children will then continue to have the stability of their existing accommodation.
Mr Sansom points out (and nothing was said to me to the contrary) that the father’s proposal did not involve a change of school.
More significantly, the terms of paragraph 71 persuade me that, on the balance of probabilities, his Honour has misdirected himself. Indeed, to use Mr Sansom’s terms, the learned Magistrate seems to have applied a test such as was once termed “the Cilento Principle”. That “principle” is no longer applicable.
In Goode’s case, the Full Court said:
66.In broader terms, the question that arises is the extent of the impact of the amending Act to the determination of interim applications. Prior to the amendments, it was left to case law to formulate the methodology to be adopted in interim applications. The decision in Cowling was handed down after the 1995 amendments to the Act and followed the earlier decisions Cilento and Cilento (1980) FLC ¶90-847, …
…
69.It remains the case that the Court must regard the best interests of the child as paramount in deciding what interim parenting order to make. However, there are passages in Cowling that do not sit comfortably with the Act as amended. …
70.There are many elements in the Act as amended that would militate against the continued application of the principles in Cowling, and in particular the passage cited above. While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if the presumption in s 61DA applies, then the Court is obliged by s 65DAA to consider the outcomes previously discussed. First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable. Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable. Section 61DA must be applied in any case, including interim proceedings, where a court is considering making a parenting order.
71.The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
I accept the submission of Mr Sansom that, in Kemp FM’s reasons:
34.There is no consideration, as is required in cascading fashion by Goode in paragraph 82 (supra).
In reaching this conclusion I am mindful of what I said at the outset about the conundrum faced by judicial officers in proceedings for interim parenting orders. Further, in Goode’s case, the Full Court said:
74.We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.
However, their Honours also said:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
I repeat my conclusion that though that pathway was described, it was not applied.
One wonders if Kemp FM adopted the approach of preserving a status quo because of concerns that he had about allegations of family violence made by the mother and his Honour’s recognition that “the mother’s allegation concerning reports to DOCS about the father would need to be further addressed”. I say this partly because, in paragraph 73 of his reasons, Kemp FM said:
73.The Court would, however, be minded to provide for some mid-week overnight time for the father in the week when he is not exercising time pursuant to the current orders, if that proposal was supported by the Independent Children’s Lawyer after appropriate investigations have been carried out. The Court will give the Independent Children’s Lawyer leave to apply with respect to this issue, on 3 days notice.
The paucity of findings about the nature of the father’s relationship with the children may also be because serious allegations about his treatment of the children were unresolved.
This may have been a case in which a preferred course would have been to find, as the evidence then stood, that the presumption of equal shared parental responsibility did not apply, because there were reasonable grounds to believe that a parent of the child had engaged in abuse or family violence, or simply to have determined, pursuant to s 61DA(3), that it would not be appropriate in the circumstances, for the presumption to be applied when making an interim order.
Additionally, or in the alternative, it might have been wise to make orders of an even more temporary nature, until further material could be available.
In summary, the enquiry at first instance may well have set off down a wrong path, which, therefore, towards its end, could not be successfully traversed.

Conclusion

I appreciate that the decision appealed from is a discretionary one. However, I consider the learned Magistrate erred in principle. The appeal should be allowed.
This court is not in a good position to receive further evidence and make findings of fact. That should be done at first instance. It will be necessary for the applications for interim orders to be remitted for rehearing.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate:

Date: 2 February 2010