Family Court: call for change to recognise non-parents

In the recent Full Court of the Family Court case of Mulvany and Lane, the appellant husband appealed against the decision of the Federal Magistrate to allow the mother and child to relocate to Hong Kong. Ultimately the Full Court upheld the appeal and remitted the matter to the Federal Magistrates Court.

A major issue for concern for the Full Court was that the husband (who was not the biological father) was treated by the Federal Magistrate as not a parent for the purposes of the primary considerations of the best interests test under s.60CC(2) of the Family Law Act, but as if he were a parent for the purposes of the secondary considerations under s.60CC(3).

When the husband started the proceedings, he thought he was the father. DNA tests showed otherwise. The biological father was apparently unaware of the existence of the child.

Justice Finn stated:

Nowhere does his Honour explain why he adopted this apparently inconsistent
approach to the father’s position under the various provisions of the
legislation which he applied in determining this case. In my view this is a
significant flaw in his Honour’s reasoning.

His Honour determined (in paragraphs 20 and 21 of his reasons) that as
the mother was the only parent “who is a party to the proceedings”, it would
follow that the only primary consideration relevant in this case is the benefit
of the child having a meaningful relationship with the mother. His Honour then
went on to determine (in paragraphs 31-33 of his reasons) that the mother could
only properly discharge her obligations as a parent if she was living in a
country where she was happy and well settled, and that this could only be in
Hong Kong. Therefore for the child to have a meaningful relationship with the
mother, he would have to live with her in Hong Kong.
In my opinion, it was
not open to his Honour to interpret s
60CC(2)(a) in the way in which he did, that is, in effect to hold that where
a child only has one parent participating in the parenting proceedings, it will
be a primary consideration in determining the child’s best interests, that the
child have a meaningful relationship with that parent. The legislation does not
say this. Indeed it could well be asked why, if his Honour was prepared to place
an interpretation on s
60CC(2)(a) other than an interpretation clear on its plain words, did he not
interpret the expression “parents” to include the father in this case?

Justice Finn called for changes to the Act:

It is indeed unfortunate that given the now very detailed provisions of Part
VII and the acknowledgement in that Part of the important roles that persons
who are not natural parents of a child can have in a child’s life (see, for
example, s 60B(2)(b)),
that the legislation does not give some clearer indication of the weight to be
attached to the child’s relationship with a person other than his or her parent,
compared with the child’s relationship with the natural parent in the
determination of proceedings between a parent and a person other than a parent.
As the legislation currently stands, and assuming that it is correct that
“parent” means only a natural or adoptive parent, it would seem that in a case
such as this, the court can only reach its determination in parenting
proceedings on an application of s
60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3)
so far as they expressly or impliedly refer to a person other than a parent.

Justices May and Thackray set out part of the submissions of the husband:

Hence the submission that if an explanation is to be extracted from the
reasons for judgement it can only reasonably be that the learned Federal
Magistrate, having correctly identified the relevant primary consideration, then
incorrectly proceeded as if the case was to be determined simply by reference to
that primary consideration.
…
In this regard, it is noted that the word
“primary” is not the subject of definition in the Act and, in its ordinary use
means holding or sharing the first place in time or importance, initial or
original in the order of either precedence or phenomena. Thus the word “primary”
is capable, in certain circumstances, of bearing the meaning of a trump although
the appropriateness of that interpretation in the context of s.60CC
is diminished by the Parliament having eschewed the word “secondary” in favour
of “additional”.
It is further noted that if the learned Federal
Magistrate’s approach is correct then it creates a lacuna in the law whereby
parties other than parents might ever hope to successfully apply for a child to
live with them. This is because, under the approach adopted here by the learned
Federal Magistrate, it seems that the only question to ask when a parent and
non-parent each apply for a child to live with them, is to identify which
outcome will best ensure that the child has a meaningful relationship with the
parent.
To construct the question thus and to not balance it by showing why
and how the judicial officer considered the primary consideration outweighed the
additional considerations is to depart from the obligation to follow the
legislative pathway in determining parenting applications. To both pose the
question thus and not to address the question of why it outweighs other
consideration is to risk positively forcing a result in favour of only those
options that favour the parent over the non-parent. This would risk rendering
nugatory the full range of intention expressed in s.60B(2)(b)
as one of the objects to this part of the Act. …

Counsel for the father acknowledged the Federal Magistrate did not
expressly say that “primary” means “most important” or “only” or “outweighs all
others”, but submitted his Honour effectively did proceed on this basis by
asking the question he did. It was further submitted no attempt was made by his
Honour to demonstrate how the one primary consideration taken into account had
been weighed against the additional considerations.

Their Honours stated:

We find ourselves in substantial agreement with the submissions made on
behalf of the father. Whilst we accept the learned Federal Magistrate was right
to conclude the father was not a “parent” within the meaning of the Act, we
consider he erred in the way he allowed that conclusion to affect the process of
reasoning by which he reached his decision.
It is important to recognise
that the miscellany of “considerations” contained in ss
60CC(2) and (3) is no more than a means to an end. Self evidently, they are
only matters to be considered. Of course, we accept they are of great
importance, being the factors identified by Parliament as those the Court must
take into account (when they are relevant). However, they must be applied in
a manner consistent with the overarching imperative of securing the outcome
most likely to promote the child’s best interests.
It needs also to be
remembered that the importance of each s
60CC factor will vary from case to case. Whilst the list of considerations
is lengthy, no list could ever encompass all the matters that experience
demonstrates could be of relevance. This is no doubt why Parliament has included
the catchall consideration in s 60CC(3)(m),
namely “any other fact or circumstance that the court thinks is relevant”. By
this device, judicial officers may consider any matter which (within the
reasonable range of discretion) could touch on the child’s best interests.
In our view, his Honour was quite right to consider and make findings in
relation to all of the relevant “additional considerations” in s 60CC(3),
even though he acknowledged some had no application to the father because they
relate only to a “parent”. However, for the sake of consistency it seems to us
his Honour should have adopted the same approach when discussing s 60CC(2)(a).
What occurred instead is that the father was treated as a “parent” for some
purposes but not others.
If the father had adopted S, his Honour would have
been obliged to consider the benefit to S of having a meaningful relationship
with him. If the father had been the biological father, but never lived with S,
his Honour would still have been obliged to consider the benefit to S of having
a meaningful relationship with him. Why should a different approach be taken
because it was discovered that the boy was the product of an extramarital
liaison?
His Honour found the answer to this question in his acceptance of
the submission made by counsel for the mother, which we propose
repeating:
… the Court would not fail to recognise that parliament
specifically has not included in s.60CC(2)(a)
of the primary considerations to which the Court must have regard, the benefit
to the child of having a meaningful relationship with persons other than the
child’s parents – parliament’s intention, it is submitted, remains to
distinguish between parents (in respect of whom a meaningful relationship is
accorded a status of a primary consideration) and persons other than
parents (within which category the applicant in the present case
falls).
Whilst we accept, as a matter of statutory interpretation, that s
60CC(2)(a) had no application to the father, we are not convinced Parliament
ever turned its mind to whether husbands in his position should have any
different “status” for the purposes of Part
VII of the Act. It should be remembered that the law has always been quite
content to presume, absent proof to the contrary, that every child born to a
married woman is the child of the man to whom she is married – even if the
couple are not living together. (See now ss
69P(1) and 69U(1).)
Such discussion, however, is ultimately unhelpful. It diverts attention away
from the central enquiry, which is to determine the outcome that will be best
for the child. Instead, it focuses attention on semantic issues about whether
relevant matters should be discussed by reference to one s
60CC factor instead of another. In our view, provided his Honour gave due
weight to all relevant factors, it would matter not whether he considered the
child’s very important relationship with the father by reference to s 60CC(2)(a)
or by reference to one of the additional considerations.
For reasons we will
explain, it appears his Honour treated the one relevant “primary consideration”
to be the decisive factor. He did not expressly indicate whether that factor was
determinative because it was a “primary consideration” or because it was the
factor of most significance. If it was the latter, we consider his Honour erred
in failing to provide adequate reasons, as his judgment does not explain how he
weighed that one relevant primary consideration against the additional
considerations.
If it was the former, then his Honour erred in law. In this
regard we concur with the observations of Warnick and Thackray JJ in Marsden and
Winch (No. 3) [2007]
FamCA 1364 concerning the relationship between the primary and additional
considerations in s
60CC:
The present case is not an appropriate vehicle in which to
undertake a detailed analysis of the implications of the legislation prescribing
certain matters as “primary” considerations. It is sufficient to say it is
palpably clear that whilst the “primary” considerations should be accorded
particular importance in determining what order will best promote the interests
of the child, they cannot determine the outcome in every case. Not only must the
“additional” considerations be taken into account, but the two “primary”
considerations themselves may tend in different directions. That is to say,
whilst there may be great benefit attached to a particular child having a
meaningful relationship with both parents, that benefit may be outweighed by the
need to protect that particular child from physical or psychological harm
associated with maintaining such a relationship.
It follows that we
reject the premise inherent in the husband’s submission that his Honour was
obliged to indicate “what factor or factors combined to displace the primary
consideration contained in section 60CC(2)(a)”.
Firstly, that submission ignores the fact that there is a second primary
consideration which his Honour was also obliged to take into account.
Furthermore, it is not a question of other factors being needed to “displace”
one of the primary considerations. Rather, his Honour was obliged to take into
account all of the relevant considerations identified in the legislation, giving
each of them such weight as he thought appropriate in arriving at the result
most likely to promote [the child’s] best interests. In doing so, he was of
course obliged to place particular emphasis on the “primary considerations”.
This is not only because the legislature has identified them as “primary” but
also because they are manifestly of the utmost importance in determining what
outcome will best advance a child’s best interests…

The learned Federal Magistrate adopted a number of headings to separate
the component parts of his reasons. This is a central element of the “modern
style” of judgment writing and, in our view, has much to commend it. Headings
assist the reader to understand the structure and flow of the judgment, and help
in the logical arrangement of material. It is not uncommon for such headings to
be posed in the form of questions which the judicial officer has decided need to
be answered as part of the fact finding or reasoning process.
Ordinarily the
headings/questions are mundane and can be treated as nothing more than
signposts. In this case, however, one heading has become controversial. It was
suggested it reveals a fatal flaw in the process of reasoning employed by the
Federal Magistrate, especially as it was the only heading in the judgment posed
in the form of a question.
The contentious question, “What outcome will best
ensure that S has a meaningful relationship with his mother?” was used as the
heading to that portion of the reasons dealing with the s
60CC(2) “primary considerations”. Ordinarily, one would expect the heading
simply to be something like “Section
60CC(2) the primary considerations”, just as his Honour used “Section
60CC(3) the additional considerations” as the heading for his discussion of
the s
60CC(3) factors. However, his Honour obviously thought a more specific
heading would capture the essence of the discussion, since he had decided there
was only one relevant “primary consideration”. This was because subparagraph
60CC(2)(b) did not require discussion, as there were no findings of violence or
child abuse, and subparagraph 60CC(2)(a) could only apply to the mother, because
she was the only “parent” with whom S could have a “meaningful relationship”.
There can be no criticism of his Honour for attempting to be specific in
formulating the question that became the heading of this part of his discussion.
However, in our view, the manner in which he phrased the question reveals the
error inherent in his approach. The question that truly arises from s 60CC(2)(a)
is not “What outcome will best ensure that S has a meaningful relationship with
his mother”, but rather, “What is the benefit to the child of having a
meaningful relationship with his mother?”. (See in this regard the most useful
discussion by Bennett J in G and C and Independent Children’s Lawyer [2006]
FamCA 994.) …

Having elected not to consider the maintenance of the relationship
between S and the father when discussing the s
60CC(2) factors, it would have been expected that his Honour would at least
have addressed that issue when he came to consider s
60CC(3)(d), which concerns the likely effect of any change in the child’s
circumstances, including the likely effect of separation from any person with
whom the child has been living.

We are left with the impression that his Honour’s discussion of the
“additional considerations” was undertaken as a benchmark against which to
assess the decision already made that S should live in Hong Kong. We therefore
accept that the maintenance of a meaningful relationship between mother and
child did, in fact, “trump” all of the other considerations. In some cases, this
would be entirely appropriate. However, in the present matter we consider it was
necessary for his Honour to have explained why this factor was of greater
importance than the other considerations he was required to take into account.
In placing what we regard as undue emphasis on the maintenance of the
relationship between S and his mother, the learned Federal Magistrate appears to
have overlooked the benefit to S of maintaining a “meaningful relationship”
with the father. Whilst it is clear his Honour found S to have a very good
relationship with the father, his judgment seeks only to address ways in which
the impact of the relocation on that relationship could be ameliorated, rather
than focussing on the importance of the relationship in determining whether the
relocation should be allowed at all.
We accept that had his Honour placed as
much emphasis on the relationship between the father and S as on the
relationship between the mother and S, he may nevertheless have still determined
it was in S’s best interests for him to relocate to Hong Kong with the mother.
However, it is by no means clear this would inevitably have been the outcome.