Mother Appeals Final Parenting Orders

Homewood & Parkinson [2021] FedCFamC1A 79 (9 December 2021)

Final parenting orders were made providing for the mother to have sole parental responsibility for the children, that the children live with her, for X to spend time with the father as he wishes and for a regime of time to be spent between the father and Y, commencing with three months of supervised time but later moving to unsupervised time, and gradually increasing in duration. 

The mother  appealed from the final parenting orders asserting lack of procedural fairness and inadequacy of reasons.  The Court, in resolving this dispute, assessed whether the slip rule is applicable and the wording of the order. 

Facts:

The parties commenced cohabitation in November 2009.  There are two children of the relationship; X who is now 11 years of age and Y who is now seven years of age.  The children left the family home with the mother in February or March 2015, and they have remained in her primary care ever since.   The father intermittently spent time with the children, following the parties and the children attending a family holiday in April 2017. 

In May 2018, the mother initiated proceedings in relation to both parenting and property matters. In the parenting proceedings, it was the mother’s position that the children should not spend any time with the father, whereas the father proposed that both children spend time with him on a gradually increasing basis, culminating in substantial and significant time.  The parenting orders made on 16 July 2021 provide for the mother to have sole parental responsibility for the children (Order 2), that the children live with her (Order 3), for X to spend time with the father as he wishes (Order 4), and for a regime of time to be spent between the father and Y, commencing with three months of supervised time (Order 5), but later moving to unsupervised time, and gradually increasing in duration (Order 7).  The orders mandate that the move to unsupervised time is predicated on a Family Report being prepared and released (Order 7(a)).  

The mother sought to amend Grounds 1 and 2(a) to additionally assert error by the primary judge in the making of Order 7(e) which is premised upon a construction of Order 7(e) to the effect that it establishes an equal time regime for Y commencing in the Christmas school holidays in 2022.    The mother submitted that the making of Order 7(a) imposing a mandatory precondition to the father spending unsupervised time with Y comprised a denial of procedural fairness, as the further Family Report was not sought by either party at trial, was not the subject of cross-examination, and not foreshadowed by the primary judge.  The father however submitted that Order 7(a) contains an error in its wording, and in fact, no further Family Report was intended to be prepared as a condition of Y’s time with the father progressing to unsupervised.  Ground 2(a) presumes that the impugned words in Order 7(a) were deliberately included 

Issue:

Whether or not the appeal should be granted. 

Applicable law:

Family Law Act 1975 (Cth) s 117 - provides that each party should bear their own costs. 

Analysis:

The father says the intention behind Order 7(a) is that it contemplates a period of unsupervised time of six months on each alternate Saturday for four hours following directly on from the supervised time provided for in Order 5.  While the inclusion of the impugned words in Order 7(a) is a patent error, no application to vary the order under the slip rule has been made by the father to the primary judge, although he now contends it can now be so remedied by this Court on the appeal. 

The primary judge accepted that “Y may well have something to gain by maintaining a relationship with the father” and was not satisfied that the father posed a direct threat to the children.  Although accepting that the mother “remains highly distressed and anxious at the possibility of the father resuming a relationship with the children”, the judge was also satisfied that “appropriate clinical therapeutic intervention...would enable her to function as a parent”.

In any event, his Honour required the father to “engage in therapeutic intervention to assist the father in gaining insight into the deleterious impact of family violence upon the children and the mother” and noted the father’s concession that “if there is to be a resumption of time with Y there should be an initial period of supervision”.  None of these findings were challenged on appeal.  Contrary to Ground 3 and 4 which asserts that the learned Trial Judge erred in finding that it was in [the] best interests of the said child [Y] to have a meaningful relationship with his father and that the learned Trial Judge erred in failing to give sufficient weight to the evidence of Dr J, Ms H and family consultants Ms L and Ms M, evidence before the primary judge provided a sufficient basis for the conclusion that Y’s best interests lay in him having a meaningful relationship with the father, or at least him having the opportunity to do so. 

Conclusion:

The Court concluded that since the impugned words plainly were erroneously inserted into Order 7(a), the natural justice challenge is misconceived, and Ground 1 fails.  As to Ground 2(b), it contends no, or an inadequate, exposure of reasoning by the primary judge in making orders for Y to spend time at all with the father, whether supervised or not.  The Court ordered the mother's oral application to further amend her Amended Notice of Appeal filed 20 October 2021 dismissed.  The appeal is allowed in part, Order 7 of the primary judge made on 16 July 2021 is set aside, and in lieu thereof it is ordered that providing that the father has forwarded to the mother a report evidencing that he has attended at least six (6) sessions of therapy over a period of no less than six (6) months as required by Order 10, then thereafter the father shall spend time with Y.