Creagh & Davies [2008]

FAMILY LAW - APPEAL – CHILDREN - Child related proceedings – Whether the Federal Magistrate erred in the exercise of discretion –Where the Federal Magistrate ordered a gradual regime of shared care leading to an equal shared care arrangement - Whether Federal Magistrate erred in failing to consider how orders would affect the mother’s earning capacity – Where the mother’s evidence was that she had flexible work hours – Whether Federal Magistrate inappropriately made findings based on the Family Report – Whether Family Report flawed because of report writer’s methodology – Federal Magistrate’s findings available on totality of evidence – No challenge made to Family Report at trial – Challenge not open on appeal - Whether inappropriate weight was given to matters favouring the father’s parenting capacity – Whether Federal Magistrate properly considered s 60CC factors - Where the Federal Magistrate appropriately considered relevant factors under s 60CC before determining the periods of time which the child should spend with each parent – No error found – Appeal dismissed.

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the appeal is dismissed.
(2) That each party pay their own costs of and incidental to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Creagh and Davies.

Appeal Number: EA 96 of 2007
File Number: SYM 7529 of 2006

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Creagh and Mr Davies are the parents of C who was born in June 2002 and is thus presently aged 5 years.
2. The mother and father were unable to resolve disputes about parenting arrangements for the child and defended proceedings were heard in the Federal Magistrates Court before Federal Magistrate Altobelli on 11 May 2007 and 17 May 2007. His Honour delivered reasons for judgment and made orders on 26 July 2007.
3. It is from those orders that the mother now appeals. The appeal is resisted by the father.
4. This appeal was heard by me as a single judge by direction of the Chief Justice dated 24 September 2007 pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
5. The mother agitated two grounds of appeal in her Notice of Appeal filed 23 August 2007. Those grounds were as follows:
   1. The ground of appeal in relation to the first ground is that Federal Magistrate Altobelli erred in law by failing to properly apply s.60CA and s.60CE of the Family Law Act 1975 (Commonwealth).
   2. The ground of appeal in the [sic] relation to the second Ground is that Federal Magistrate Altobelli erred in law by failing to properly apply s.65DAA in the Court’s determination under s.60CC.
6. The mother’s written submissions in support of the grounds of appeal were not directed to s 60CE of the Act but rather to s 60CC(3)(f), in that it was asserted on behalf of the mother that his Honour failed to take into account the practical effect of his orders on the mother’s capacity to work. As the mother’s written submissions were filed on 26 November 2007 I was satisfied no prejudice would be caused to the father by permitting the mother’s counsel to orally amend ground 1 of the Notice of Appeal.
7. At the hearing of the appeal I granted leave to the mother’s counsel to further amend the Notice of Appeal. The mother amended ground 1 of the Notice of Appeal to delete s 60CE where appearing and to substitute in lieu s 60CC(3)(f). She was also permitted to rely on an additional ground (ground 1(a)) which ground is in the following terms:

Federal Magistrate Altobelli erred in the exercise of his discretion in concluding that the allegations the mother raised in her evidence in relation to the parenting capacity of the father were of insubstantial weight because they were absent from the Expert Family Consultants [sic] Report.

1. The other substantial complaint agitated by the mother on the appeal was directed to his Honour’s determination of the time that the child should spend with each of her parents. The mother submitted his Honour did not ensure that the child had “substantial and significant time” with the mother because the effect of his Honour’s orders is that the mother does not have a “full weekend” with the child.

BACKGROUND

1. The following background is contained in his Honour’s judgment and the Appeal Book and does not appear to be controversial.
2. The father was aged 45 years at the date of hearing and is of Irish background.
3. The mother was aged 36 years at the date of hearing and is of Filipino background.
4. The parties commenced a relationship in 1999 and separated under the one roof in December 2003. They physically separated in October 2006.
5. In October 2006 the father moved out of the parties’ former shared residence (being a property owned by the mother and her family members) and commenced living in rented accommodation located within 5 to 10 minutes of the mother’s house.
6. The father asserted in April 2006, without his consent, the mother reduced the child’s time at day-care from two days per week to one day per week.
7. In January 2007 the father asserted the mother gave the child’s day-care one months notice, and at the end of February 2007, the child ceased attending day-care and had not recommenced day-care or pre-school up to the date of hearing.
8. The father asserted between April 2006 to February 2007 the child went to pre-school on Mondays, the maternal grandmother looked after her for two days of the week and the mother cared for her for the remaining two days of the week.
9. On 16 October 2006 the parties, whilst legally represented, reached an interim agreement for the care of the child which agreement became subject of consent orders (“the consent orders”). Pursuant to the consent orders the child’s care was shared between the parties on a fortnightly cycle with the child living with the mother for nine days each fortnight, and with the father for the remaining five days. The five days were not consecutive, but having regard to the child’s needs, exercised in block periods not exceeding two nights.
10. The parties reached a subsequent agreement with the assistance of a Family Consultant, Ms G. The agreement increased the period of time to be spent by the father with the child from five days to six days. However the agreement was not implemented by the making of final orders, and prior to the hearing the mother resiled from the agreement.
11. For a period of some months from February/March 2007 the father failed to pay child support for the child.

FEDERAL MAGISTRATE’S REASONS FOR JUDGMENT

1. At the commencement of his reasons, his Honour explained that there were four possible outcomes to the proceedings which he recorded as follows:
   1. The father seeks orders that, in effect, provide for [C] to spend equal time as between each of her parents.
   2. The mother seeks orders that, in effect, provide for [C] to spend three days with her father, and 11 with her mother, in each 14-day period.
   1. The current interim orders made on 16 October 2006 provide, in effect, for [C] to spend five days with her father and nine days with her mother, in each 14-day period.
   1. The Family Consultant says that during her meetings with both parents, they had, in fact, agreed that [C] would spend six days with her father and eight days with her mother, in each 14-day period. (paragraph 2)
2. His Honour noted that during the course of the hearing the mother’s position changed to one “where she would accept a shared parenting arrangement that had the same effect as the current orders – i.e., five days with the father, and nine days with the mother...” (paragraph 3), from one where she sought the father spend more restricted time with the child.
3. His Honour recorded that it was common ground that the presumption of equal shared parental responsibility should apply, and that either equal time, or substantial and significant time, with each parent was reasonably practicable. His Honour then explained the main issue in the case was whether an order should be made that the child spend equal time with both parents, or that she should spend substantial and significant time with the father. His Honour concluded:

...[h]aving regard to how s.65DA is framed, if I consider that, having regard to the evidence, equal time is in her best interests, then that is the order I would probably make. If, however, I decide that having regard to the evidence equal time is not in her best interests, then an order for substantial and significant time would be made, and that would mean either five or six days per fortnight. (paragraph 5)

1. His Honour also recorded it was common ground that the child had a meaningful relationship with each of her parents. His Honour then proceeded to set out a short background history of the parties’ relationship, and noted the level of conflict between the parents “was, and is, very high”. His Honour thereafter referred to the Family Report prepared by the Family Consultant, Ms G, which he noted contained very clear recommendations that the child should spend six nights with her father.
2. Under the heading “Issues and findings” his Honour explained that “[i]dentifying and understanding the real issues in this case was made much more difficult because of what seemed to be the changing positions of the mother”. His Honour referred to the fact the mother’s response filed on 14 October 2006 contained a detailed proposal that commenced with:

...supervised daytime time for three months followed by unsupervised time two evenings during the week and each alternate fortnight from Saturday to Sunday, for six months, followed by each alternate weekend from 9.00am Saturday to 6.00pm Sunday, together with one evening during the week through to 7.00pm, such arrangement to continue until [C] turns eight... (paragraph 12)

1. His Honour thereafter recorded the further proposals of the mother.
2. His Honour then explained that by 3 May 2007 the mother had filed an amended response in which she sought the child spend three nights per fortnight with the father. His Honour said “...[a]s I indicated above, the mother opened the case from that position but seems to have shifted, at some stage, to adopt the position that the current interim order should be made final...” (paragraph 13). He then referred again to the recommendations of Ms G, and noted the recommendations reflected the agreement reached between the parents during their discussions with Ms G.
3. His Honour explained the mother had expressed a series of concerns which were:

...quite inconsistent with her own actions, both in agreeing to the consent interim order on 16 October 2006, and then agreeing with the father as a result of the involvement of the Family Consultant. (paragraph 15)

1. In discussing the prior agreement and recommendations, his Honour set out an extract from the Family Report of Ms G and noted the mother’s subsequent withdrawal from the agreement. His Honour recorded that during her cross-examination, Ms G “readily conceded” that her recommendation was based on the agreement reached between the parties. Having referred to Ms G’s evidence that, from the child’s perspective, it did not matter whether the periods with the father were five or seven days, his Honour said “...I inferred that, in the opinion of the Family Consultant, [C] could cope with both of the proposed arrangements and anything up to equal time.” (paragraph 20)
2. His Honour then asked himself the question why it was the mother had resiled from the agreement. At paragraph 23 of his reasons, his Honour referred to the mother’s concerns which he noted had been set out “quite extensively in her affidavit filed 8 May 2007”. His Honour summarised the mother’s concerns as follows:
   • that the father had been late in collecting the child on Wednesday afternoons;
   • on return from spending time with the father the child was usually hungry;
   • that the father regularly forgot to return “something” with the child;
   • the father’s inflexibility about swapping days to fit in with commitments;
   • safety concerns about the windows in the father’s apartment;
   • the child’s behaviour on return from spending time with the father;
   • the father’s lack of support or involvement with the mother and child’s Filipino heritage;
   • concerns about the father’s ability to care for the child and that during his care he may need to access after school care;
   • alleged non-payment of child support.
3. At paragraph 27 in his reasons, his Honour considered the mother’s complaints and said:

I observe, at this stage, that all of these concerns of the mother do need to be understood in the context of the interim order that provides for five nights a fortnight with the father, and the agreement reached with the Family Consultant which provide [sic] for six nights a fortnight. The mother’s evidence in her affidavit of 8 May 2007 and her cross-examination clearly indicates, that the vast majority of these concerns existed either at the time these agreements were made, or beforehand. That is not to say that these concerns are not issues that I need to take into account. For example, in deciding as between five, six or seven days per fortnight (ie, between substantial and significant time or equal time) it is most important that I consider the working commitments of both parents as that has an impact on their capacity to meet [C’s] needs. If there is an issue about non-payment of child support, for example, that reflects on attitudes towards parenthood and is a factor caught by s.60CC(4) anyway. The genuineness of these concerns, however, and the extent to which they are a real issue in this case, is a matter I need to consider.

1. His Honour then posed for himself the question as to whether or not the mother’s concerns were reflected in the Family Report. The parts of the report extracted by the Federal Magistrate in his reasons disclose the mother advising Ms G that the child had become gradually more comfortable with the arrangements (although she was noted to prefer that the child not be away for more than two consecutive evenings). Ms G also noted neither party described any undue distress shown by the child and that she did not present as a child “...who is unduly burdened or pre-occupied with her parents’ conflict...” The extract from Ms G’s report also referred to both parents reporting considerable improvements in their relationship since they had lived in separate households.
2. His Honour concluded from the extracted passages of the Family Report “...either the mother did not express the concerns to the Family Consultant, or the Family Consultant did not consider them significant enough to warrant reporting...” (paragraph 29). His Honour thereafter referred to the mother’s counsel’s cross-examination of the consultant. His Honour summarised the evidence of Ms G given in cross-examination concluding “...there was nothing that would give rise to any concern about the child’s welfare and there was nothing that might undermine the very basis of the report...” His Honour said “[t]o the extent that there is a conflict between the evidence of the Family Consultant, and the mother, I prefer the independent evidence of the former.” (paragraph 31)
3. His Honour then referred to the father’s evidence given in cross-examination, and concluded the only unsatisfactory evidence was the father’s evidence about child support. His Honour was, understandably, critical of the father’s failure to pay child support finding that he had elevated the needs of his own business and finances above those of the child.
4. Having noted that the mother had not expressed any concerns about the parenting arrangements since the interim orders, or instructed her solicitors to complain about them, the Federal Magistrate went on to record the mother asserted she had complained to the father, and that she had not been able to raise concerns with the Family Consultant. Then, after setting out in some detail the matters put to the mother in cross-examination, his Honour concluded:

I did not form the impression that the mother was prepared to do whatever was necessary to ensure that [C] did not spend more time with her father. I believe that her evidence, viewed in its totality, when compared to what she told the Family Consultant, and how she answered questions in cross-examination, all create the impression of an overanxious mother whose subjective concerns have no objective basis save as regards the matters to which I will expressly refer... (paragraph 36)

1. His Honour then made findings in relation to the parties’ evidence, and determined he preferred the evidence of the father to that of the mother.
2. His Honour then referred to the mother’s concerns, and explained that he had determined that only one matter would justify a conclusion that it was not in the child’s best interests that she should spend other than six or seven nights with the father. The matter determined to be a genuine one related to the father’s work commitments, and the impact of those commitments on his ability to care for the child. He noted that the mother’s concern was that the father was only responsible for looking after the child pursuant to the interim orders on one evening during the working fortnight, but said “under his proposal contained in his amended application it would be three nights during the working week.” His Honour recorded that the mother’s counsel at trial “spent considerable time and effort on this topic.”
3. His Honour then referred to the father’s position, which was that he was able to adjust his working hours to provide for the care of the child. His Honour also noted that the father had conceded he might from time to time have to travel, but that his evidence was he could do that on days he was not caring for the child.
4. His Honour then said:

There is no doubt that the current shared parenting arrangements reflected in the interim order of 16 October 2006 enable the father to spend time with [C] with minimal distraction from his work. Any increase, either to six nights per fortnight or equal time, will exacerbate this impact. However, based on all the evidence as set out above, I am satisfied that [C] will cope and that the father will make the necessary adjustments so that he can be there, as much as possible, to provide the care for her. (paragraph 38)

1. His Honour then again posed a question to himself as to whether he should make orders in accordance with the parties’ agreement, notwithstanding the mother had resiled from it, or should he make an order for the child to spend equal time with her parents.
2. Thereafter, his Honour considered relevant matters under s 60CC(2) and (3). His Honour rejected the submission that the child was primarily attached to the mother and concluded, relying on the Family Report, that she was attached to both of her parents.
3. His Honour then considered under s 60CC(3)(d) the likely affect of any change in the child’s circumstances, noting that “...[e]ven on the father’s amended application, [C] is not away from her mother for longer than four nights...” (paragraph 45)
4. His Honour found that it would not be appropriate to move immediately to a regime where the child spent a four night block period with the father, and recorded that the Consent Orders provided for the arrangement of five nights per fortnight to continue until September 2007.
5. In his consideration of relevant s 60CC factors, his Honour rejected the mother’s position that the father lacked the necessary capacity to meet the child’s needs and concluded:

...[e]ven though the mother in this case expresses her subjective concerns in this regards [sic], I find they have no objective basis in fact. Her own agreement with the father is testimony to this. Having regard to all the evidence, I have no concerns about the father’s capacity to care for [C]. (paragraph 48)

1. His Honour did not accept the mother’s position that the father did not support the child’s connection to her Filipino culture, and rejected the mother’s evidence on this topic preferring that of the father.
2. In dealing with the parties’ respective attitudes to parenthood, his Honour found that the father’s failure to pay child support was “truly disappointing”. Insofar as the mother was concerned, his Honour found that the mother demonstrated an overprotective view about the time the child should spend with the father. His Honour concluded:

...[o]ne forms the impression that there are many unresolved issues between the mother and the father including, perhaps, emotional and financial ones... (paragraph 52)

1. His Honour concluded that he was satisfied on all of the evidence before him that the child would “cope, indeed will thrive, in the shared parenting arrangement.”
2. Ultimately his Honour concluded the arrangements set out in the consent orders should continue until September 2007, from September 2007 to September 2008 a shared care arrangement on the basis of the parties’ earlier informal agreement should be implemented (eight days per fortnight with the mother and six days with the father), and from September 2008 an equal shared care arrangement should be implemented subject to the proviso that during school terms the child should not be away from either parent for more than four nights.

Ground 1

The ground of appeal in relation to the first ground is that Federal Magistrate Altobelli erred in law by failing to properly apply s.60CA and s.60CC(3)(f) of the Family Law Act 1975 (Commonwealth).

The parties’ submissions

1. The mother submitted that his Honour erred in law in failing to consider the impact of Orders 5, 8 and 11 on the mother’s ability to obtain and perform work. It was asserted:

[t]he said Orders operate to place the entire responsibility for collecting the Child from pre-school and then school upon the Appellant Mother and require the Mother (subject to the Father’s discretion in Order 5(c) noted in paragraph 3 above), for the duration of the Orders (which the Magistrate intended to be permanent in operation) to collect the Child from pre-school and school five (5) days a week. (Submissions p 8, paragraph 4)

1. The father’s counsel’s written submissions in respect of ground 1 were directed to the ground prior to its amendment at the hearing, and understandably do not specifically canvass the issue as argued by the mother’s counsel at the hearing. However, helpfully, the father’s counsel briefly addressed the mother’s written submissions on this ground in a general way in her written submissions. It was noted that the effect of the orders on the mother’s earning capacity was not raised by the mother at trial. The father’s counsel noted “No evidence was given by the mother about her ability to obtain employment and no submissions were made on that issue.”
2. In order to understand the mother’s complaint it is necessary that I set out Orders 5, 8 and 11 of the orders made by his Honour. They provide as follows:

(5) From 3 September 2007 until 4 September 2008, the Child live with her father on a fortnightly cycle as follows:

(a) In the first week of the fortnightly cycle from 4.00pm on Friday to 9.00am on Monday; and

(b) In the second week of the fortnightly cycle from Wednesday afternoon to before preschool on Friday and from 6.00pm on Sunday night to 9.00am Monday morning.

(c) On Wednesdays when the Child is to live with the Father, the Father will pick the Child up from pre-school, or from the Mother’s house after work, with 24 hours notice to be given to the Mother as to the site of the pickup.

...

(1) From 4 September 2008, the Child is to live with her Father as follows:

(a) During school term time on a fortnightly cycle:

(i) In the first week of the fortnightly cycle from 5.15pm on Wednesday to 5.15pm on Friday, and 6.00pm on Sunday to the beginning of school on Monday; and,

(ii) In the second week of the fortnightly cycle, from 5.15pm on Thursday to the beginning of school on Monday.

(iii) During school holiday periods Order 8(a)(i) and (ii) to be suspended during such time with the Child to live with the Father one half of each school holiday period, such half to be as agreed between the parties, but failing agreement, for the first half during even numbered years, and the second half during odd numbered years.

(b) The Child is to live with the Mother at all other times.

...

(11) That when the Child is not attending preschool, school or after-school care, changeover shall be facilitated by the Mother delivering the Child to the Father at the conclusion of the Mother’s time with the Child, and the Father delivering the Child to the Mother at the conclusion of his time with the Child.

1. Although not referred to by the mother’s counsel in her written submissions, also relevant is Order 10 which is in the following terms:

That the parents are to collect the Child and return the Child to preschool, school or after-school care at the commencement and conclusion of the time the Child is to live with them.

1. The consent orders made no provision for delivery or collection of the child by either party. His Honour’s orders provide that from September 2007 until September 2008 in week one of the fortnightly cycle it is the obligation of the father to collect the child at 4.00 pm from pre-school if she is at pre-school or school on that day. I accept however the evidence before his Honour was that at the time of the hearing the child had been withdrawn from pre-school. Thus the practical effect of Order 5(a) is that the child lives with the mother Monday to Thursday night and until 4.00 pm on Friday.
2. In the alternate week, as the child is not attending pre-school, she is with the mother on Monday and Tuesday, and collected by the father from the mother’s home at an unspecified time on Wednesday afternoon if the father gives the requisite notice. This provision may be said to be inconsistent with the provisions in Order 11, but relieves the mother of the obligation to deliver the child to the father on that day. The father has responsibility for the child overnight on Thursday and it is his responsibility to return the child to mother on Friday morning. The mother is required to deliver the child to the father at 6.00 pm on Sunday night, and the father has responsibility to return the child to the mother at 9.00 am Monday morning at least until she commences full time schooling (which should occur in February 2007) or is re-enrolled at pre-school.
3. After September 2008, when the child will have been attending full time school for the previous twelve months, Order 8 provides that the child will live with the father in week 1 from 5.15 pm Wednesday to 5.15 pm Friday. There is prima face an inconsistency between this Order and Order 10, which requires the father to collect the child from school at the commencement of periods she to live with him, and likewise requires her to commence living with the mother on Friday at 5.15 pm rather than from the conclusion of school on that day, unless his Honour envisaged the child would attend after school care and be collected respectively by the father and mother from such after school care at 5.15 pm. It appears to me having regard to paragraph 55 of his Honour’s reasons that the inconsistency, if any, between Order 8(a)(i) and (ii) and Order 10 could, if necessary, be subject to an application under the slip rule.
4. At the hearing before the learned Federal Magistrate, the mother’s application, as confirmed in final submissions by her Counsel, was that the child should live with her for nine days each fortnight, and spend five days with the father.
5. In her affidavit sworn 8 May 2007 the mother in paragraphs 30, 31 and 32 deposed:
   1. As the Orders stand, the Applicant Father only has to concern himself with the Wednesday evening during the Monday to Friday working week. I work three days per week and my hours and days are flexible. I never take work home, it is not a job requirement, and I have been advised by my employer that if required I can work school hours.
   2. I would prefer [C] not to attend after school care. It has always been my intention and also that of the Applicant Father that [C] receive as much of my time as possible and that we not rely on outside agencies for her care. I arranged my life and career to accommodate this decision.
   3. [C] currently undertakes a number of activities that [sic] she would be unable to do so if she were to attend after school care. Each Thursday between the hours of 3.15 p.m. for thirty minutes, [C] undertakes tennis coaching. On a Tuesday she attends soccer training between the hours of 5.30 p.m. and 6.30 p.m. and she has a soccer game each Saturday morning. [C] and I regularly attend ice skating, indoor climbing, concerts, mother’s group and enjoy such activities as art and painting during the evening. We also do an enormous amount of cooking because [C] very much enjoys this activity.
6. The mother relied on the affidavit of her direct work supervisor Ms Y. Ms Y deposed in her affidavit sworn 8 May 2007 in paragraphs 5, 6 and 12 as follows:
   1. I am [the mother’s] direct supervisor at [SM]. [The mother] is employed to work twenty two and a half hours per week. These hours and days are flexible for [the mother].
   2. [The mother] has requested that when [C] commences school that she be permitted to work school hours to allow her to deliver [C] to school and collect her after school. The company has agreed to allow [the mother] to work these hours.

...

1. I have been working with [the mother] for just over one year. She has specifically requested part time work with hours to fit in with her responsibilities as a parent. Whilst at work she contacts her mother by telephone a number of times a day to enquire as to [C’s] welfare, including whether or not she has eaten her lunch and how she is generally.
2. Unsurprisingly, given the mother’s own evidence and that of Ms Y, about her employment and availability to care for the child, and her application before his Honour, no submissions were made to the effect that orders providing for six nights per fortnight with the father would impede or restrict the mother’s ability to engage in appropriate employment.
3. Counsel for the father submitted that the case now sought to be agitated by the mother was not the case conducted before his Honour.
4. The law in this area is well settled. In Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 the High Court said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

See also Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279.

1. I am satisfied there is merit in the submissions made by counsel for the father in respect of this ground, and that the case the mother now seeks to assert is contrary to the manner in which her case was conducted at trial. Accordingly I am satisfied that ground 1 (as amended) has no merit.

Ground 1(a)

1. Before me the mother’s counsel identified in writing those parts of her written submissions on which she relied in respect of this ground, which was subject of leave to amend the Notice of Appeal.
2. It was submitted that the Federal Magistrate “erred in law in concluding that the allegations the Mother raised in her evidence in relation to the parenting capacity of the Father were without foundation because they were absent from the Expert Family Consultant’s Report” (submissions paragraph 26). Counsel submitted the expert report was flawed because the Family Consultant did not “follow the usual course” and that she “‘contained’” the parties [sic] articulation of the mothers [sic] parenting concerns” (addendum to written submissions).
3. This new ground as argued before me raised two issues for determination. It is convenient that I deal first with the criticisms directed to the Family Consultant’s report. Ms G was called, as is permissible under Division 12A of the Act (and often of great assistance in shortening a trial, or identifying real issues to be determined) at the commencement of the hearing. She was first cross-examined by the mother’s counsel, a barrister of substantial experience in the jurisdiction.
4. The transcript reveals the following exchange between the mother’s counsel and Ms G:

[MR MACPHERSON:] And even at the last that you saw them in March there was still a high degree of conflict between them, albeit reduced from when you first saw them?

[MS G:]---It had certainly reduced. There was not quite the same amount of distress, particularly in the mother. However, I was very aware with the mother that there was [sic] a lot of issues that she remained very anxious about and that she was really trying to contain as well, which I actually think is a positive thing as looking at co-parenting and I made the choice to actually keep that contained. I would have to say that because I felt that was in the interests of this whole situation.

FEDERAL MAGISTRATE: Sorry, when you say, “I made the choice,” do you mean you made the choice or are you saying that is what the mother did?---Well, I made a choice in how – you know, I was aware I was doing a report, your Honour, and obviously there’s always a level of a report where a certain level of information has to be contained but I also – and this is – I would have to say this is probably one of the first reports I’ve done where I’ve – since the new Act where I’d actually met the parents in October so I’d – normally with a report you have to go through all the – all of the information, but with this report I already had that information before the interim decision and I’d actually seen the parents a lot. I’d actually seen them together before the interview. I had an individual appointment with each of them and I had seen them again together and there was no – they were so far apart at that point that I was completely surprised about the sort of interim arrangement that ended up happening. So what I mean by that is at – for this report, because I’d already met them, I did not go over all of the old ground...

...

MR MACPHERSON: I suppose one of the things that would have led to [C’s] improvement would have been the fact that the parties weren’t living in the same house and the - - -?---Absolutely.

[MS G:]...and I am aware that the mother’s concerns about – which we didn’t actually directly discuss again but I was already aware that the mother was concerned that – the mother still didn’t really trust the father, and I know previously her concerns had been about his drinking and his physical discipline issues, and, you know, [the mother] all along was treading a fine balance between trying to sort something out and then having the evidence heard. So I’m aware that the issues hadn’t gone away but in actual fact in many of these situations the issues do not go away, they never go away but parents have still got to be parents together and look at how are they going to contain themselves and manage it in a way that’s constructive for their child and not destructive, particularly given how destructive this situation has been.

(Transcript 11 May 2007 pages 6-8)

1. Before his Honour there was no challenge to the admissibility of the family report on the basis that the family report did not have the necessary foundation for conclusions drawn by the Family Consultant (see Makita v Sproules(2001) 52 NSWLR 705; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 55 IPR 354). The mother’s counsel did not put to Ms G an assertion that her report was deficient, rather the evidence in respect of nature of and issues covered in the report she had prepared, was volunteered initially by Ms G (see transcript 11 May 2007 p 6-7).
2. Similarly to my determination in respect of ground 1, I am satisfied it is not now open to the mother to challenge the admissibility of Ms G’s report or the opinions expressed by her, as her counsel failed to mount such a challenge at the hearing.
3. The second issue raised under this ground was directed to the weight afforded by his Honour to the parties’ conflicting evidence about their respective parenting capacities. It is appropriate to note here that this challenge, and the challenge contained in ground 2 is a challenge to the exercise of discretion by the Federal Magistrate.
4. The principles applicable to the challenge of such discretion are well known. In CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172; (1998) FLC 92-828, Kirby J said at 230 – 231 (footnotes omitted):

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.
3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self - restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.
4. There is no dispute that his Honour correctly recorded the mother’s position at trial, that is, although at the commencement of the hearing her position was that the child should spend three nights per fortnight with the father, she later adopted the position that the interim consent orders, which provided for the child to spend five night per fortnight with the father should be made as final orders. (judgment paragraph 13).
5. Paragraph 22 of his Honour’s reasons discloses, notwithstanding the parties had reach an agreement before Ms G, that the mother had resiled from that agreement. His Honour noted the mother’s changed position required him to “understand what her concerns were and to relate that back to the issues ....in this case”. In paragraph 23 to 28 of his reasons his Honour succinctly, but comprehensively, set out the concerns expressed by the mother in her affidavit sworn 8 May 2007. His Honour explained, at paragraph 27 of his reasons, that the mother’s concerns were ones which existed prior to the agreement. He thereafter discussed the necessity for him to consider the parties’ work commitments as those commitments impacted, or could impact, on their respective ability to care for the child.
6. Although his Honour made a finding that the mother did not express her concerns to Ms G, later in his reasons he referred to the cross examination of Ms G “about the issues raised by the mother in her affidavit of 8 May 2007” noting the effect of oral evidence given by Ms G, rather than her report, did not raise issues of concern, and critically made the finding that he preferred the evidence of Ms G to that of the mother.
7. His Honour also referred, in paragraph 32 of his reasons, to the cross-examination of the father by the mother’s counsel which was directed to the mother’s complaints. Except for the father’s evidence about his payment of child support, his Honour preferred, as he was entitled to, and in a unique position to do having observed the parties in the witness box, the evidence of the father rather than the evidence of the mother. I discern no appealable error by the Federal Magistrate in his acceptance of Ms G’s oral evidence and that of the father in respect of issues relating to the father’s parenting capacity, and the weight he afforded to that evidence. Thus I am satisfied Ground 1(a) has not been established.
   

Ground 2

1. It was agreed before his Honour that it was appropriate that he should make an order for equal shared parental responsibility. His Honour was therefore obliged to consider the provisions of s 65DAA of the Act.
2. His Honour’s reasons disclose that he appropriately considered the relevant factors under s 60CC, and concluded in the exercise of his discretion, that it was in the child’s best interest that she spend six nights per fortnight with the father until September 2008 and thereafter spend equal time with each parent.
3. His Honour’s reasons disclose he was acutely conscious that, having regard to the child’s age and needs, the mother’s position that she should not be absent from her care for more than three consecutive nights, and Ms G’s evidence that the child would cope whether the regime was for periods of five or six nights, of the need to devise a regime of shared parenting which was in the child’s best interests. Although the effect of balancing the relevant factors had the result the child did not spent either Sunday night in the fortnightly cycle during school term in the care of the mother, the basis for “the every Sunday night” order was primarily because of the mother’s objection to longer periods of block time with father, such as a week about regime, when the child commenced full time school.
4. In weighing the competing proposals his Honour carefully considered all relevant s 60CC factors, and made findings about those matters before determining the periods of time which the child should spend with each of her parents. His Honour did not fail to take into account any relevant factor, nor was the weight which he placed on particular factors in arriving at his determination in paragraph 55 of his reasons outside the reasonable ambit of his discretion. No appealable error having been demonstrated, this ground too must fail.

COSTS OF THE APPEAL

1. At the conclusion of the appeal, I sought submissions from the parties’ counsel in respect of costs of the appeal. The mother’s counsel sought, in the event that the appeal was unsuccessful, that each party should pay their own costs. The father’s counsel sought if the appeal was dismissed, that the mother pay his costs, and that the payment of costs be deferred until completion of the parties’ property proceedings, which are subject of proceedings under the Property (Relationships) Act 1984 (NSW).
2. It is necessary for me to briefly examine relevant matters under s 117(2A) of the Act to determine whether there are circumstances which warrant a departure from s 117(1) such that I should make an order that the mother pay the father’s costs, or some proportion of them, of and incidental to the appeal.
3. There was scant evidence before me of the parties’ respective capital positions. The transcript of the cross examination of both parties discloses that the father’s income considerably exceeded that of the mother. The father did not pay child support for several months. There was no evidence that either party was in receipt of legal aid. The mother has been wholly unsuccessful in the appeal. Considering all these circumstances I do not find on balance that I should made an order for the mother to pay the father’s costs, and that the appropriate order is that each party pay their own costs of and incidental to the appeal.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.

Associate:

Date: 6 February 2008