A & L

[2005] FamCA 160

[2005] FamCA 160       

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                 Appeal No EA124 of 2004
AT SYDNEY  File No SYF 3567 of 2004

BETWEEN:

A
Appellant Husband
- and -

L
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  Bryant CJ, Kay and Boland JJ
DATE OF HEARING:                 22 December 2004
DATE OF JUDGMENT:             11 March 2005

APPEARANCES:  Mr Brereton, Senior Counsel, instructed by Pearson Family Lawyers, Level 22, 222 Clarence Street, Sydney NSW 2000, appeared on behalf of the Appellant Husband.

Mr Maurice of Counsel, instructed by Broun Abraham Burreket, Solicitors, Level 16, 338 Pitt Street, Sydney NSW 2000, appeared on behalf of the Respondent Husband.

A & L
EA124 of 2004

Coram:   Bryant CJ, Kay and Boland JJ

Date of Hearing:                22 December 2004
Date of Judgment:            11 March 2005

CATCHWORDS  Children – Residence – Orders – Interim orders – Where interim orders made enabling mother and children to relocate – Whether Cowling and Cilento principles properly applied – Whether children living in a settled environment – Whether mother’s employment prospects and mental health relevant considerations

1. This is an appeal against orders made by Lawrie J on 29 November 2004 wherein her Honour ordered that on an interim basis the parties’ children B born 1997 and G born 1999 reside with their mother in Sydney and have contact to their father

(a)      during school term on two alternate weekends after every four at a rural town from after school on Friday until 2.00pm Sunday and for one weekend out of four in Sydney from after school on Friday until 5.00pm on Sunday and on one day during the week preceding or succeeding the weekend that the children are with the wife, such contact to be in Sydney and to be from after school on the particular day until school on the next day;

(b)      for the duration of the first and third term school holiday periods and for one half of the second term and Christmas holiday periods (with some contact with the wife mid-way through the holidays in the initial stages);

(c)       that the wife be responsible for taking the children to and fetching them from the rural town;

(d)      that when the children are with one parent they shall have reasonable telephonic contact with the other parent;

(e)      that if necessary weekend contact be adjusted so the children are with the husband on the weekend of Father’s Day and the wife on the weekend of Mother’s Day.

1. We made orders dismissing the appeal at the conclusion of the hearing and indicated we would publish our reasons later.

1. The parties commenced to cohabit in 1991 and married in 1992.  They lived in Sydney until May 2002 where the husband was involved in the banking industry and the wife had worked as an interior designer for commercial interiors.  In May 2002 the parties moved to a rural town (‘the rural town’) about 50 kilometres out of a country town (‘the country town’) which in itself was some 300 kilometres out of Sydney.

1. In June 2004 the wife took the children on a holiday to visit her family in the United Kingdom.  She was due back in Australia in July 2004.  In July 2004 she advised the husband that she wanted a divorce and that she would stay in the United Kingdom until matters were sorted out.  She subsequently deposed that she had been unhappy in the marriage for some time and whilst the move of the parties to the rural town was something that she did not want she was willing to try it for the sake of the family.  She found life there increasingly unsatisfactory and decided to terminate the marriage.  She said she had a strong network of friends in Sydney which included the husband’s family.  She said:

“Ultimately when both children are well established at school I wish to return to a career as an interior designer.  There is far more scope for me to fulfil this role in Sydney than in the country.”

1. Proceedings were commenced in the United Kingdom for the return of the children and orders were made by consent on 23 August 2004 upon undertakings being given by each party.  Competing applications concerning the children came on for hearing before Le Poer Trench J on 10 September 2004.  His Honour adjourned the matter to 16 November 2004 and made interim orders that the children live with their father

·    from after school Thursday until school time Monday on alternate weeks;

·    from after school each Tuesday until school time Wednesday;

·    for one other afternoon each week from after school until 5.30pm;

·    that otherwise they live with their mother.

They thus spend six nights each fortnight with their father and saw him for some part of 11 days each fortnight.  Those orders were made on the basis that the mother would acquire temporary housing in the country town pending the adjourned return date. 

1. At the time those orders were made Le Poer Trench J had before him a family report prepared by Paul Lodge, Deputy Director Mediation Sydney Registry.  In that report Mr Lodge indicated that whilst the children had strong attachments to each of the parents they were emotionally dependent upon the mother especially G.  He concluded that G would experience considerable anxiety if she was to be separated from her mother for more than a few days.  He felt that contact between G and her father once per fortnight would be insufficient to the task of sustaining and developing her attachment relationship with him.  Similarly contact once per fortnight for B would be insufficient for the development of a fulfilling and balanced parent/child relationship at a cost to his emotional, social and intellectual development.  He thought that as a final decision was unlikely to be forthcoming in the short term, the factors relevant to the children’s welfare were:

“…the strong attachment between the mother and the children, the need to protect and promote their relationship with their father and their need for a stable and familiar environment during a period of significant change.  This outcome might best be achieved by the children and the mother returning to the [country] area for the time being until the outcome of any property settlement is known.”

1. The counsellor then recommended that the children live with their father from after school Thursday to the following Monday morning each fortnight (ie four nights) and with the mother the balance of the time.  He further recommended the father spend one evening with the children during the week when they are primarily living with the mother.  He was aware that that interim proposal would necessitate the mother’s return to the country area.

1. When the matter returned before his Honour on 17 November 2004 the mother swore an affidavit saying that changeover at contact time had been particularly distressing for the child G who was clinging on to her or running away and hiding.  G was also waking in the night having nightmares.  She further deposed that B was exhibiting disturbing behaviour including anxiety and being unusually withdrawn and in need of reassurance.  She said that the experience of living in the country town in her present circumstances was unbearable.  Her mother was returning to the United Kingdom on 24 November 2004 and

“I dread the prospect of living in [the country town] alone. 

Having tried the [the country town] option, I am now more convinced than ever that it will be in the bests interests of the children that I be permitted to move to live with them in Sydney.”

1. She also deposed that her financial position was dire.  She had seen no employment positions advertised in the country town suitable for her qualifications or experience.  She said that in Sydney she had many contacts from her career prior to having children who would be able to assist her in obtaining work in Sydney.  She proposed to rent a home in the suburbs of Sydney and send the children to local public schools.  She said:

“…I am already feeling like a prisoner in [the country town] and I am becoming very depressed by the circumstances in which I find myself…I cannot contemplate moving away from [the country town] and leaving the husband to look after the children primarily.”

1. She then proposed contact two weekends out of four at the rural town and a further weekend each month in Sydney.  In the alternative, if she was not permitted to live in Sydney pending final hearing, then she sought orders that accorded with the recommendations of the counsellor, alternate weekends Thursday through Monday and one afternoon in the alternate week after school.  She went on to say that should she be allowed to move to Sydney with the children:

“…I will be in a position in the foreseeable future to obtain employment and accordingly contribute towards my maintenance and to the support of my children.”

1. In opposition to that proposal the husband sought orders that the children, on a four weekly cycle, live with him for two weekends from Thursday through Monday, on a third weekend from Friday through Monday, and on the fourth week from Wednesday through Friday.  This would amount to 13 out of 28 nights living with him.  He also sought some holiday contact.

1. Mr Lodge gave further viva voce evidence before Le Poer Trench J on 17 November 2004 in which he said that he had spoken to the parties but had not seen the children again.  The only matter upon which they had reached common ground was that they both agreed the current arrangement had too many changeovers and returns involved in it.  The father was anxious to maintain the amount of time that he was having with the children “in what he would describe as shared parenting”.  The counsellor suggested that the least changeovers the better.  He observed that the way the parties were talking was not conducive to the most ideal situation for shared parenting, they were very tense with each other, there was a lack of trust in the communication.  He went on to say that the opportunities for the parent to be involved in a child’s life did not always need to be done in a 50/50 arrangement.  After discussing the logistics of contact should the mother be in Sydney, including importantly the active encouragement of the mother, the counsellor said that whilst the relationship with the father would be very different:

“I don’t think the children would experience a sense of loss in the clinical sense of loss as in bereavement. 

…

The bottom line would be in terms of the deepest psychological consequences this sort of situation, the mother’s capacity to actively and positively foster the relationship in terms of both the image of the father and in terms of visiting the father whilst they’re with her in his home.  They would have to have a sense that he remains, and continues to remain, an important figure and that can only come from the mother.”

1. He went on to say that if there was not positive support from the mother about the father’s role then he would have doubts about relocating as if the mother did not encourage the relationship, the relationship would diminish rather more than was psychologically healthy without the encouragement.

1. The matter was then adjourned to the hearing on 29 November 2004 before Lawrie J. Her Honour heard submissions from counsel on behalf of each of the parties and otherwise decided the matter on the papers. She summarised the parties’ proposals saying that the mother wanted to return to Sydney where the family had lived for 10 out of 12 years of the marriage, obtain employment, support herself and drive the children back to the country town for weekend contact, share holidays, set up webcams and telephone contact, and so on. The husband proposed that the wife should be forced to stay in the country town where she has never lived so that the contact between himself and the children can be more frequent and more convenient. She pointed out that for the wife to remain in the country town the husband proposed to take out a stock mortgage and give the wife $50,000 to support herself from the parties’ capital. Her Honour then made reference to s 60B of the Family Law Act saying that the outcome of the final proceeding would not necessarily be indicated by what happened on the interim proceeding.  She said:

“The children and the family are stressed.  The wife does not want to live in [the country town], the wife wishes to return to Sydney.  The husband is a Sydney person, his family live in Sydney.  The wife is prepared to get work, contribute to the support of the children and herself and make the major input into having the contact arrangements working.”

1. Her Honour expressed the view that if the mother was to feel she was forced to live where she did not want to live it was very unlikely that would improve the relationship and the attitude she had towards the husband.  The wife appeared from the counsellor’s observations to be insightful into the needs of the children and to have a commitment to maximizing their relationship.  Her Honour felt that the move to Sydney in the short term was:

“a far better option than having money being borrowed against an entity that already has had some difficulties, it would appear, and with one parent being extremely unhappy on a day to day basis in an area where they have no support network and no realistic job prospects.”

1. It was effectively put to us on appeal that the trial Judge had failed to apply the principles settled by the Full Court in Cowling and Cowling (1998) FLC 92-801 where it was said:

“18.The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long-term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.

19.Having regard to the earlier authorities of the court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for residence and contact as follows.

20.First, having regard to the provisions of s 65E, in determining what interim parenting order should be made, the court must regard the best interests of the child as the paramount consideration.

21.Second, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability.

22.Third, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment.

23.Fourth, the court is entitled to place such weight upon the importance of retaining the child’s current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the court to take account of the circumstances giving rise to the current status quo. In particular, the court may examine the following issues:

•whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence.

•whether the current arrangements have been unilaterally imposed by one party upon the other.

•the duration of the current arrangements and whether there has been any undue delay in instituting proceedings or in the proceedings being listed for hearing.

24.Fifth, where the evidence does not establish that at the date of hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s 68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child’s best interests. In undertaking that evaluation regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (1995) 20 Fam LR 24; (1996) FLC 92–651.

25.Finally in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following:

•          the wishes, age and level of maturity of the child;

•the current and proposed arrangements for the day to day care of the child;

•the period during which the child has lived in the environment;

•whether the child has any siblings and where they reside;

•the nature of the relationship between the child, each parent, any other significant adult and his or her siblings;

•the educational needs of the child.”

1. It was urged upon us that the settled environment of these children was in the country town and absent any strong or overriding indication relevant to the children’s welfare that situation should have been preserved pending the outcome of the hearing as to what long term orders should be made for the children. 

1. The difficulty with that submission is that the only real element of settled environment that presented itself on the facts of the case was the school that B was attending.  He had been there throughout the year and had taken some time to settle into the school but was now progressing satisfactorily.  The children had lived for two years at the rural town up until June, then had lived for 11 weeks with their mother in the United Kingdom and now lived for eight weeks with their mother in the country town.  Accordingly the third principle in Cowling had little application as the present environment could not be said to have been a settled one.

1. There was no serious suggestion put that the children should not be living with their mother on an interim basis, and given the welfare report, that was really the only option open to the trial Judge.  The issue was whether or not the mother should be obliged to stay in the country town, where she had never previously lived and where she said she found life unbearable, or be allowed to live in Sydney where she would endeavour to re-establish herself and the children with a view to the long term as well as the immediate short term.  This would of course have the effect of interfering with the elder child’s schooling next year and with the opportunity that the father had to play a role in the children’s lives.  Whilst the Judge payed no apparent attention to the schooling issue in her reasons for judgment she was clearly conscious of the effect that the move to Sydney would have upon the father’s involvement in the children’s lives but concluded that that could be adequately compensated for when weighed against the unhappiness that the wife found herself suffering by having to stay in the country town where she had no ties and little if any support. 

1. Faced with an unenviable choice her Honour chose the mother’s position rather than the father’s position.  There is nothing in the Family Law Act that would indicate that her Honour had acted upon the wrong principle.  She was obliged to make an order that would best advance the welfare of the children on the facts as they presented themselves to her Honour.  Her Honour concluded that was the outcome that was appropriate. 

1. It is not for an appellate court to interfere with an exercise of discretion unless it can be shown to be plainly unjust or reached by reason of the application of a wrong principle or a mistake of fact.  Whilst the wife’s evidence as to when it was that she would hope to obtain employment in Sydney was somewhat ambiguous it was clear that her job prospects were far better in Sydney than they were in the country town.  It was also clear that the state of her mental health would be likely to be far better in Sydney than it would in the country town where she saw herself as imprisoned.  These were all important matters for the trial Judge to take into account and we see nothing wrong in the manner in which she approached the case. 

1. This case should not be seen as a charter for any disenchanted parent to simply expect to be able to up and leave with the children, relocating them some considerable distance away from the other parent.  Each case has to be looked at on its own merits.  The options available to the court here were extremely limited given the remote community that the parties lived in and the strong attitudes being expressed by the mother.

1. Whilst it would not have surprised us to see a result whereby the mother was obliged to stay in the country town at least until the case could be given an expedited hearing, the fact that the trial Judge chose to accede to the mother’s application rather than the father’s in circumstances where the father was really placing no material before the court that would help alleviate the mother’s stress, is not a basis for interfering with the judgment.

1. Looking in turn at each of the matters set out in Cowling we conclude that

·    her Honour clearly approached the matter by making orders that she concluded would best advance the children’s welfare.

·    Given the state of the parties’ relationship and the impracticability of requiring the wife to live in a strange town in temporary accommodation with no support bases or employment there was little opportunity for ensuring stability in the life of the children pending a full hearing of all relevant issues.

·    The evidence did not clearly establish that, at the date of hearing, the children were living in an environment in which they were well settled.  In any event the prospect that their primary caregiver was finding life “unbearable” could amount to convincing proof that the children’s welfare would be harmed by remaining in that environment.

·    Her Honour clearly placed such weight upon the importance of retaining the child’s current living arrangements as she saw fit in all the circumstances.

·    As the evidence did not establish that at the date of hearing the children were living in an environment in which they were well settled, her Honour made a limited evaluation of the relevant matters referred to in s 68F(2).  She paid attention to the wishes, age and level of maturity of the children, the current and proposed arrangements for the day to day care of the children, the period during which the children had lived in the environment and the nature of the relationship between the children and each parent.

1. The principle that comes out of the case is that each and every case has to be determined upon its merits.  It is correct that as a general rule the stability of the children in any one circumstance may be seen as an appropriate method of best advancing their welfare.  In considering stability for a child the need for a parent to live in a stress free environment may have significant weight.  In the instant case, the evidence disclosed that the prime factor in providing stability for the children was their emotional support from the mother.  The mother's ability to provide that support in a stress free environment in Sydney was a very relevant factor to be taken into account in determining appropriate interim arrangements for these children. 

I certify that the 25 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate