Adamson & Adamson
[2014] FamCAFC 232
•3 December 2014
FAMILY COURT OF AUSTRALIA
| ADAMSON & ADAMSON | [2014] FamCAFC 232 |
| FAMILY LAW – APPEAL – CHILDREN – Parenting proceedings – Whether the trial judge erred in making a coercive order for the mother to relocate the child’s residence – Whether the trial judge erred in assessing reasonable practicability within the meaning of s 65DAA – Whether rare or exceptional circumstances existed in this case such as to justify a legitimate exercise of discretion to make the coercive order. FAMILY LAW – APPEAL – CHILDREN – Parenting proceedings – Undesirability of credit findings against parents where not necessary to legitimate disposition of the case – Whether adverse credit findings required here – Whether the trial judge erred in making findings adverse to the mother’s credit – Whether the trial judge’s Reasons infected with inconsistent findings. Appeal allowed – Matter remitted for re-hearing – Costs certificates granted to both parents for the appeal and the re-hearing. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 AMS v AIF (1999) 199 CLR 160 Carlson & Fluvium [2012] FamCA 32 Ember & Assadi [2013] FamCAFC 107 House v The King (1936) 55 CLR 499 MRR v GR (2010) 240 CLR 461 Muldoon & Carlyle (2002) FLC 93-513 Sampson & Hartnett (No 10) (2007) FLC 93-350 U v U (2002) 211 CLR 238 |
| APPELLANT: | Ms Adamson |
| RESPONDENT: | Mr Adamson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5547 | of | 2011 |
| APPEAL NUMBER: | EA | 41 | of | 2014 |
| DATE DELIVERED: | 3 December 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Murphy and Kent JJ |
| HEARING DATE: | 2 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 March 2014 |
| LOWER COURT MNC: | [2014] FCCA 73 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sanson |
| SOLICITOR FOR THE APPELLANT: | Crawford Ryan Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Maurice |
| SOLICITOR FOR THE RESPONDENT: | Prime Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The appeal be allowed.
Orders (3) and (20) of the Orders made by Judge Altobelli on 7 March 2014 be set aside.
Order (4) of the Orders made by Judge Altobelli on 7 March 2014 be varied by substituting that order with the following:
(4) That the child, X, live with the Mother and spend time with the Father as follows:
(a)Each alternate weekend from 7pm on Friday until 6pm on Sunday; and
(b)During each school holiday period as agreed between the parents but failing agreement in the first half in even numbered years and the second half in odd numbered years, limited to:
(i) Three nights during the first term school holiday this year;
(ii)Four nights during the second term school holiday this year;
(iii)Five nights during the third term school holiday this year; and
(iv)Half the 2014-2015 summer school holidays, taken in one week blocks as agreed but failing agreement during the first, third and fifth weeks of such holidays.
Order (5) of the Orders made by Judge Altobelli on 7 March 2014 be varied by discharging that order and replacing it with the following:
(5)For the purpose of facilitating the child, X, spending time with the Father, the changeover point is to be the Subway Restaurant, ...
The proceedings be remitted to the Federal Circuit Court for re-hearing before a judge other than Judge Altobelli.
There be no order as to the costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect to the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect to the costs incurred by the respondent in relation to the appeal.
The Court grants to the appellant and to the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the re-hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamson & Adamson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 41 of 2014
File Number: SYC 5547 of 2011
| Ms Adamson |
Appellant
And
| Mr Adamson |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
In parenting proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning their daughter X (“the child”), born in 2010 (who was three and a half years old at trial and almost four years of age when final orders were made), both of the child’s parents contended that it was in the child’s best interests that they have equal shared parental responsibility for the child and that she continue to live with the mother.
The trial judge accepted those common contentions as being in the child’s best interests and made orders giving effect to them. That left as the predominant issue the orders to be made for the child’s time with the father.
As at the trial of the proceedings, which proceeded on 12 to 14 August 2013 and resumed and concluded on 8 October 2013, the child had been living with the mother in Town S in New South Wales, about 200 kilometres north of Sydney, since soon after the parents separated in July 2011 when the child had just turned 12 months old. Prior to separation the family had been living in Sydney. Throughout the trial the mother proposed that she and the child would continue living in Town S. When the final orders were made on 7 March 2014 the mother and the child had been living in Town S for more than two and a half years.
Shortly before the trial’s conclusion in October 2013 the father had moved from Sydney to live in Town C on the Central Coast of New South Wales. Town S and Town C are separated by a distance of approximately 140 kilometres and a travel time by car, of about two hours. The father proposed, as at the conclusion of trial, that an order be made requiring the mother to relocate the child’s residence from Town S to within an area more proximate to his then chosen place of residence in Town C.
The order which is the central focus of this appeal is:
That the Mother do all things necessary to relocate [the child’s] home so that she resides in the New South Wales Central Coast region within a radius not exceeding 20 kilometres of [G] railway station (“the Central Coast area”) no later than 17 January 2015.
Consequent upon that order, further orders provided for the father to spend time with the child each alternate weekend from 7.00 pm Friday until 6.00 pm Sunday (together with graduating amounts of time during holidays) for a period of about 10 months until the ordered move. Thereafter, upon the coercive order taking effect regular time was ordered to occur from after kindergarten or day care Friday until the following Monday morning each alternate week and overnight Wednesday in the other week. Additional holiday time and special days was also ordered once the child started school – which his Honour ordered should occur, subject to conditions contained in paragraph (6) of the orders, in 2015.
As is reflected in grounds 1 and 2 of the mother’s Notice of Appeal the central issue in this appeal is whether in all the relevant circumstances of the case – including, importantly, the parents’ common contention that it was in the child’s best interests for the child to continue living primarily with the mother – it was legitimate for the trial judge to exercise power to make a coercive order, as one of the final parenting orders made, requiring the mother to relocate the child’s residence (and in reality her own residence), by no later than 17 January 2015 and orders for time consequent upon that.
Notably, the final orders made did not include any order imposing any restriction upon the father’s ability to live wherever he chose.
As will be seen, the orders for time made by his Honour provide for less time than was sought by the father and more time than was sought by the mother, including the introduction of overnight time earlier than what the mother desired.
The father and the Independent Children’s Lawyer appointed to separately represent the child’s interests in the proceedings oppose the appeal.
Mother’s contentions on appeal
In advance of the hearing of the appeal the mother gave notice via correspondence from her lawyers that eight of the grounds or sub-grounds contained in her Notice of Appeal (1(d), 4 to 7 (inclusive) and 10 to 12 (inclusive)) were abandoned.
The remaining grounds are as follows:
1. That his Honour erred in finding that the orders proposed were reasonably practical and there was jurisdiction to make an order for substantial and significant time and in particular:-
(a)His Honour failed to consider at all, or properly, s.65DAA(5) (b) and (c), it being noted other than from paragraph 115 (where the issue is dealt with discreetly) his Honour makes findings in other contexts utterly inconsistent with a finding for the orders proposed being reasonably practical;
(b)His Honour failed to consider at all, or properly, important aspects of the evidence touching upon s.65DAA(5) (b) and (c) including evidence of the Single Expert;
(c)His Honour misdirects himself as to the test that applies (at paragraph 118 and elsewhere); and
(e)His Honour failed to properly take into account the Expert evidence as to the effect of this (by way of example the findings as to the evidence of Dr [B] at paragraph 74) upon the child;
2.That as a result of ground one (supra) and /or otherwise in the exercise of any discretion, his Honour erred in ordering the mother to move to relocate the child’s home to within 20km of the father no later than 17 January, 2015 or at all;
3.His Honour erred in making findings adverse to the mothers credit (from paragraph 43 of the Reasons for Judgment and elsewhere) and erred further in the reasoning process contained within the reasons for Judgment as a result;
8.His Honour erred in finding that the mother clearly exaggerated the evidence concerning the Maternal grandfather’s cancer diagnosis;
9.That his Honour erred in making Order 6 as to both the exchange of proposals within 60 days as to [the child’s] treating GP and the school she is proposed to attend and as to the requirement that the parties jointly obtain an assessment of the child, in circumstances where on the available findings it is unlikely the parties could agree and further his Honour erred in ordering that otherwise the child start school in 2015;
In the manner in which the mother’s remaining grounds of appeal (1(a), (b), (c) and (e), 2, 3, 8 and 9) were advanced in written submissions and were developed in argument of the appeal the mother’s challenges may be summarised and paraphrased as follows:
a)Neither the primary consideration of the benefit to the child of having a meaningful relationship with both parents (s 60CC(2)(a)) nor the need to consider the child spending substantial and significant time with the father (s 65DAA(2)) either separately, or in combination, justified the exercise of power to make the coercive order in the circumstances of this case (grounds 1 and 2);
b)Reasonable practicability in terms of s 65DAA(5) fell to be considered on the respective proposals of the parents and on the evidence as a whole, including the expert evidence, and the trial judge erred in failing to do either (grounds 1 and 2);
c)The trial judge failed to make a practical assessment of the feasibility of orders for substantial and significant time given the parents’ long history of acrimony and inability to communicate (grounds 1 and 2);
d)The trial judge erred in making findings not supported by evidence and in making inconsistent findings and such errors infected the reasoning process (ground 3);
e)The trial judge erred in making findings adverse to the mother’s credit and that error infected the reasoning process (grounds 3 and 8);
f)Order 6 which required “the parties” (presumably intended to mean “the parents”) to exchange proposals as to the child’s proposed treating general medical practitioner and proposed schools and to make a genuine effort to jointly decide those issues was contrary to central findings made by the trial judge (ground 9).
Whilst ground 9 was not abandoned that ground was argued only faintly before us and, with respect, sensibly so. Save to the extent that success on any of the other grounds might consequentially effect the order which is the subject of ground 9, we see no merit in the challenge to it.
Parental circumstances and proposals for the child
The uncontroversial facts, as found by the trial judge drawn from the Reasons, provide the context in which the parents’ respective proposals as at the conclusion of the trial were advanced and thus the context in which the trial judge exercised power to make the coercive order.
The parents married in May 2006 and finally separated in July 2011 after a period of cohabitation of five years, on the mother’s case, or six years on the father’s case.
Separation took place after an assault of the mother by the father which occurred on 17 July 2011. This resulted in a final apprehended violence order being made against the father at the Local Court for 12 months; and also the father’s conviction on a charge of common assault of the mother, with the imposition of a good behaviour bond for two years (Reasons, [9]).
The child was barely 12 months old when her parents separated. About a month later, she and her mother moved from the former matrimonial home in Sydney to Town S (about 200 kilometres north of Sydney) where they commenced living with the mother’s parents. They provided the mother with significant support and were continuing to do so as at trial.
The father initially remained living in Sydney. He lived in the former matrimonial home for about nine months until it was sold and he thereafter rented in Sydney. In the course of the trial (on 19 September 2013) the father relocated from Sydney to Town C (about 90 kilometres north east of Sydney) on the Central Coast of New South Wales. He continued in his pre-separation employment in Sydney and does so from where he now resides (although his hours and rosters appear to have altered consequent upon his move to Town C).
The father, who at that time had chosen to continue to live in Sydney, commenced proceedings shortly after the mother and the child left for Town S. His application sought then a recovery order, and, relevantly, that the mother be “… prohibited from again taking or removing the child more than 20kms from the father’s resident [sic] for a 12 month period unless a court order permits otherwise/pending further court orders” and, thereafter, the child live with each parent week about.
The father’s affidavit evidence at that time included his deposition that he had “… suggested to [the mother] that she return to the house so that we can both parent [the child] as it was before, however, she just won’t listen or acknowledge my suggestion”. In the same affidavit, the father deposed, seemingly as an alternative, that “I have offered a number of times recently to vacate the house and rent a unit nearby”.
Between April 2012 and August 2013, the father saw the child on sixteen occasions, each on a Saturday and a Sunday, none overnight. Nine of those occasions were in Sydney; seven in Town S.
In her Minute of Order filed prior to the commencement of the trial on 9 August 2013, the mother sought an order that the child live with her and spend time with her father “… each 4th weekend commencing 9am Saturday until 3pm Sunday and from 1st February 2014 each alternate weekend from 9am Saturday until 3pm Sunday” as well as time on festive days. The mother proposed that the first four visits occur in Town S and thereafter with the parties meeting at a changeover point approximately halfway between their then respective residences.
Written submissions made on the mother’s behalf at the end of trial sought, relevantly, that the child spend time with her father “each alternate weekend from Saturday 9am until Sunday 5pm” together with graduating periods of time during “holiday periods” commencing with “two … periods of 2 nights duration” from 1 January 2014 and concluding with two occasions of five nights duration until the child started school. From when the child started school (which the mother proposed should occur in 2016), she proposed that the father should spend time with the child each alternate weekend from “Friday at 7.30pm until 7.30pm Sunday…” and for one half of the school holidays.
A Minute of Orders filed by the father prior to the commencement of the trial in August 2013 sought orders, relevantly, that “[The child] live in the [U] Shire with the mother”. The father lived in Sydney within the [U] Shire at that time; the mother in Town S. In broad terms, the father sought an order that, consequent upon that living arrangement, the child spend time with him three days per week. An alternative order was sought by the father “in the event that the Court does not consider a relocation order to [U] Shire to be appropriate”. In that circumstance, the father sought an order that each party “shall relocate to the Central Coast area and no further than 20 kilometres from [G] railway station …” with each party being “restrained from relocating outside of the central coast area before [the child] attains the age of 18 years”. An additional order sought in those circumstances was that the “father shall not be required to relocate to the Central Coast area unless the Mother also relocates to the Central Coast area”.
The trial was adjourned part heard on 14 August 2013 and resumed about two months later on 8 October 2013. As already noted, in the interim, on 19 September 2013, the father elected to relocate from Sydney to Town C about 90 kilometres north of Sydney on the Central Coast, and about 140 kilometres from Town S.
As at the time the trial resumed on 8 October 2013 the child was living with the mother in Town S and spending time with the father each alternate weekend from Saturday 9.00 am until Sunday 5.00 pm, at the father’s home in Town C with changeovers occurring at a fast food outlet located about equidistant from the parents’ respective homes (Reasons, [15]).
By the conclusion of the resumed hearing, the father’s proposed orders were recorded by his Honour as being:
17.… contained in a document entitled Second Amended Minutes of Parenting Orders … He too proposes equal shared parental responsibility. But he seeks an order that both parents relocate to reside on the New South Wales Central Coast within a 20 kilometre radius of [G] railway station, no later than 30 days after the orders were made. He then proposes that [the child] continue to live with her mother, provided she complies with the order to relocate, and he then proposes an arrangement for [the child] to spend time with him. As mentioned above, however, he does not go on to articulate a proposal for [the child] to live with him, if the mother does not comply with the orders.
Although that proposed order refers to both parties being required to relocate to the specified area, the father had of course already moved to Town C on 19 September 2013, some four weeks or so prior to filing his Minute of Order. That town satisfied the criteria specified in his proposed order.
Important to the issues on this appeal the trial judge found that if the mother did not relocate from Town S to the Central Coast region, despite an order for the child’s relocation there, it was not the father’s proposal that he assume primary care of the child. At [11] of the Reasons the trial judge noted “the dissonance between the Independent Children’s Lawyer proposal, and the father’s proposal.” The trial judge there noted that it was the Independent Children’s Lawyer’s proposal that if the mother does not relocate with the child from Town S to the Central Coast region then the father is to assume primary care for the child and the mother would spend time with her. However, the trial judge specifically found that not to be the father’s proposal and further found that the father does not believe it to be in the child’s best interests that she live primarily with the father and spend time with the mother.
Commencing at [12] of the Reasons the trial judge found:
12.The father’s proposal about [the child] living in his full-time care, and spending time with her mother, is articulated at its highest at order 28 of the … orders sought by him …. The effect … is that should the Court determine that [the child] live with him he seeks to be heard as to the precise form of orders he would seek in those circumstances.
13.The comprehensive written submissions provided by the father’s counsel dated 22 November 2013 advances this issue no further. The Court can only infer, in these circumstances, that the father does not believe it to be in [the child]’s best interests that she live primarily with him and spend time with her mother.
The trial judge determined that it would not be in the child’s interests to live with the father (Reasons, [21]).
Power to make the coercive order
Before dealing specifically with this power, we note in passing that under the heading “Applicable law” commencing at [32] of the Reasons the trial judge set out in full a number of sections within Part VII of the Act in the form in which these were amended, with effect from 7 June 2012. However, most of these amendments, including the amendments to s 60CC, do not apply to these proceedings given that these amendments do not apply to proceedings commenced prior to 7 June 2012. These proceedings were commenced on 12 September 2011.
However, no point was taken in this appeal with respect to this apparent error and we do not identify it as having any material affect upon the outcome which we would be obliged to correct upon appeal, irrespective of the parties’ positions. (De Winter and De Winter (1979) FLC 90-605 at 78,091-78-092 per Gibbs J; Warren v Coombes (1979) 142 CLR 531 at 553)
No ground of appeal asserts error in the trial judge’s finding that the Court has the power to make an order requiring the mother to move. Nor was it contended below that the Court lacked that power. His Honour found specifically that the power “is found in s 65D and 68B of the Act” (Reasons, [39]). Authority supports his Honour’s conclusion (Sampson & Hartnett (No. 10) (2007) FLC 93-350 (“Sampson”); Ember & Assadi [2013] FamCAFC 107 - although it might be noted that his Honour appears to adopt the reasoning in the latter case which holds, contrary to what is asserted in the former, that the court’s power lies not in s 114 of the Act but in the sections to which his Honour referred. Again, no issue arises on this appeal in relation to any such distinction.
Notwithstanding the assumption as to the Court’s power both at first instance and before this Court, it is important to the issues later to be discussed to observe that this Court said in Sampson:
47.As indicated earlier, the purpose of a “coercive” order is more to create a situation, rather than choose between situations that already exist …
…
53. In D and SV (2003) FLC 93-139 the Full Court (Nicholson CJ, Kay and Monteith JJ) considered the degree to which, generally, alternatives to restricting freedom of movement ought be explored. Their comments apply equally or more so to an order requiring relocation, contrary to a party’s proposals …
…
57. If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location at some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom.
58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
(Emphasis added)
In Sampson this Court thus made it plain that “[t]he proper exercise of such a power is likely to be rare” and orders made pursuant to an exercise of that discretion would be “…at the extreme end of the discretionary range…” (Sampson at [58] and [83]). It follows that there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make “coercive” orders requiring a parent to relocate so as to continue to be the primary carer of their child/ children (Sampson at [17]).
For reasons which will also be expanded upon below, it is important to observe that this Court also said in Sampson, when discussing the application of s 65DAA:
74.As preface to this discussion, we make the following observations. A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving. In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
75.To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
(Emphasis added)
In MRR v GR (2010) 240 CLR 461, the High Court said at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
(Footnotes omitted)
At [15] the High Court emphasised that s 65DAA is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time (or substantial and significant time) spent by the child with each parent; and that reality requires a practical assessment of the feasibility of an order for equal time (or an order for substantial and significant time).
It can thus be seen that having the power to make a coercive order is one thing, but the circumstances which must exist to justify its legitimate exercise is quite another.
Trial judge’s central findings
A number of findings made by the trial judge are of crucial importance to the mother’s challenges, particularly those embraced by grounds 1 and 2, including the challenge to the exercise of power by the trial judge to make the coercive order.
First, in the context of the child being just 12 months of age when the parents separated; and having lived with the mother in Town S for more than two and a half years between then and the final orders, the trial judge found that:
·The child had a meaningful relationship with both parents;
·The child “…will continue to enjoy a meaningful relationship with her father on any of the proposals that have been advanced to the Court.” (Reasons, [12])
(Emphasis added)
Thus, the trial judge found that, even on the mother’s proposal that she and the child continue living in Town S whilst the father remained in Town C with the child spending time with the father as proposed by the mother, the child would continue to have a meaningful relationship with the father.
It follows that it could not be said that the coercive order was founded upon any identified need, in the child’s best interests, essential to establishing or maintaining the child’s meaningful relationship with the father.
The trial judge’s findings concerning the continuation of the child’s meaningful relationship with the father were supplemented by the further finding (Reasons, [23]) that the child’s “contact with her father since separation, as problematic as the father may perceive it to be, has not in any way detracted from the parents’ and Dr [B’s] view that [the child] has an excellent relationship with him.”
Second and crucially, as earlier referred to the trial judge found that it was common to the proposals of both parents that it was in the child’s best interests that she should continue living with the mother. The trial judge found that it was not the father’s proposal that the child should live with him even if the mother did not herself relocate. Moreover, apart from the findings recorded in [11] to [13] of the Reasons earlier referred to, the trial judge at [21] “summarily dismissed” the Independent Children’s Lawyer’s proposal that the child live with the father if the mother chose not to herself relocate from Town S; “for the following briefly stated reasons”:
·This is not a proposal advanced by the father;
·To impose the obligation of responsibility for primary care of the child upon the father “is hardly child-focused”;
·That the father’s “enthusiasm for the idea could be described, at its highest, as lukewarm and, in reality, in evidence he quite clearly felt that such a proposal was not in [the child’s] best interests”;
·The father assuming primary care of the child “on any scenario, was not supported by the Court appointed expert, Dr [B]”;
·The mother “strongly opposes the idea”.
(Emphasis added)
Having dismissed that proposal by the Independent Children’s Lawyer the trial judge made the specific finding, “It is not an option, and therefore it is not an issue for determination, that [the child] live in the full time care of her father.”
Third, in the context of the trial judge’s findings that:
·Separation took place after the assault of the mother by the father on 17 July 2011 resulting in a final apprehended domestic violence order being made against the father at the Local Court for 12 months;
·The father’s conviction on a charge of common assault with the imposition of a good behaviour bond for two years (Reasons, [9]); and
·The subject actions of the father constituted family violence (Reasons, [113]).
the trial judge made specific findings that in moving to Town S at separation the mother “had no other option open to her” and that “it is clear the mother had no alternative.” In reaching those findings the trial judge expressly rejected the father’s criticisms of the mother’s move (Reasons, [84]).
It is thus clear on the trial judge’s findings that not only did the mother and the child commence living in Town S soon after separation (in mid-2011) as a result of the choice made by the mother as to where she (and the child) would live, the reality for the mother was that at separation she had no alternative but to make that choice. In this context it bears repeating that by the time of the final orders being made the mother and the child had been living together in Town S for more than two and a half years.
No person or court order required the father to move to Town C in September 2013. He moved to a place and at a time of his choosing. He chose to maintain his previous employment in Sydney.
Fourth, the trial judge found (Reasons, [22]) that as a result of the father choosing to re-locate from Sydney to the Central Coast (to Town C) “the issues about travel time associated with contact are reduced.” As already noted, Town S where the mother and M continued to live and Town C where the father took up residence are about 140 kilometres apart or a travel time by road of a maximum of two hours. Axiomatically, locations alternative to Town C would have afforded even less travel time and further reduction (if not elimination) of issues associated with contact, but none of these were chosen by the father.
In our judgment the central findings which we have identified thus far do not sit conformably with a conclusion that rare or exceptional circumstances existed in this case such as to justify a legitimate exercise of discretion to make the coercive order. However, recognising that a discretionary determination cannot legitimately be overturned on appeal simply because the appellate Court would have determined the matter differently, and the discretion must be demonstrated to have miscarried in the appellate sense, we propose to address the challenge to the trial judge’s application of s 65DAA.
The trial judge’s application of s 65DAA
Perhaps as a result of the fact that each of the parties and the Independent Children’s Lawyer sought an order for “equal shared parental responsibility”, no specific determination was made by the trial judge concerning the presumption contained within s 61DA of the Act, nor the fact that the presumption was rendered inapplicable by the trial judge’s finding (Reasons, [113]) that the father had engaged in family violence (s 61DA(2)(b)).
While the presumption was rendered inapplicable, the fact that the trial judge proposed making orders providing in any event for the parties to have equal shared parental responsibility rendered mandatory a consideration of s 65DAA (see s 65DAA(1) and (2)).
Findings about where the mother was likely to live in future or where she could live are central to his Honour’s conclusion that the mother should be required to “relocate [the child’s] home”. (See, for example, reasons at [44]; [47]; [49]; [50]; [61]; [64]; [88]; [89]; [92]-[97]).
In affidavits filed early in the proceedings the father deposed to his belief that the mother would move to the Central Coast at (an unspecified) future time: for example, he deposed in an affidavit sworn in April 2012 that the mother
“… indicated that she may live on the Central Coast (near her sisters)”. In a later affidavit filed shortly prior to the trial in August 2013, the father purported to swear to advantages for the mother in her living in either Sydney or on the central coast.
Whatever may have been the father’s perceptions of where the mother might intend to live, or what he might perceive as advantages for her as to where she lived, the mother deposed neither to any present intention to live anywhere other than Town S and nor did she herself express any advantages for her or, importantly, the child in moving from Town S. To the contrary, in an affidavit filed shortly prior to the commencement of the trial, the mother deposed to having obtained employment in Town S and that she:
37. “… propose[d] to continue living in [Town S] with [the child]. My parents have offered me accommodation in their home indefinitely. I understand my parents have indicated to me that they intend to move from [Town S] to a house they own on the Central Coast which is currently occupied by my sister who, together with her husband, is in the process of constructing a new home when that house becomes available. [The child] and I would then have use of the [Town S] property.
38.My parents are both retired and they take extended holidays travelling within Australia so that [the child] and I have, to a degree, enjoyed exclusive occupancy of my parents’ home for periods of a few months at a time.
(Emphasis added)
The parties’ geographical separation as it existed at the trial’s conclusion is the manifestation of the perfectly legitimate right of the father to live where he chose and a further choice to continue with his erstwhile employment in Sydney and the perfectly legitimate right of the mother to continue living where she had chosen to live with the child for over two-and-a-half years. That same geographical separation and those same decisions inform the central issue which with the trial judge was confronted: in the absence of agreement between the parties, which co-parenting arrangements best met the child’s best interests.
Some important aspects of this case were central to the assessment of “reasonable practicability” within the meaning of s 65DAA and were equally important to the discretion to make a coercive order.
This was not a case of a mother, having primary care of a child, proposing to relocate at all, let alone any significant distance or internationally, as was the position in some of the cases to which we will shortly refer. Here, it was the mother’s proposal that she and the child would continue living in Town S where they had been residing for some two-and-a-half years, from the time of the parents’ separation in July 2011 to the date of final orders in March 2013.
Nor was this a case of any great, in relative terms, geographical distance between Town S, where the mother had chosen to live and wished to continue to live, and Town C where the father had chosen to live. These places are separated by a travel distance of about 140 kilometres and a travel time of about two hours.
Nor was this a case, to the extent such an aspect is relevant, where the mother’s choice to live in Town S is open to any criticism. Aside from the trial judge’s findings that the mother had “no option” and “no alternative” other than to take up residence in Town S upon separation; Town S was where the mother grew up and where her parents still lived. Aside from the mother and the child receiving the support of accommodation and other support provided by the mother’s parents in Town S; the mother’s evidence was that she had gained employment there; she retained friendships from her childhood with friends still living there; of knowing many people there; and of having relatives (other than her parents) in that locale. Her evidence was that she was happy living in that town.
Nor was this a case where each parent presented an alternative proposal or option for the child’s primary residence. The father conceded, whatever other outcome may result, that it was in the child’s best interests that she continue living with the mother and the trial judge reached the same conclusion. The father did not offer the option, nor did the trial judge see it as being in the child’s best interests, that the father would assume primary care of the child if the mother chose not to comply with a coercive order as to the child’s relocation.
It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to so do with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
Consequently, whilst the Court is not bound by the proposals advanced by parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon best interests. As Callinan J observed in AMS v AIF (cited with approval by Gummow and Callinan JJ in U v U (with whom Gleeson CJ, McHugh and Hayne JJ agreed)):
It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.
(Footnote omitted)
It can thus be seen that it was not the task of the trial judge to mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they lived and worked consistent with the child’s best interests. Rather, those rights were to be respected. Only if the exercise of such parental rights could be seen as so adversely affecting the child’s best interests could interference with their exercise be legitimate; and then only to the extent necessary to avoid such adverse effects, having considered available alternatives.
Moreover, if ultimately it was determined that interference with parental rights was called for, all alternatives, including the father’s exercise of his right to choose where he lived and where he worked, would need to be considered. As Hayne J observed in U v U (in the context of a case involving proposed international relocation of a child from Australia to India) at [176]:
It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and becared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act (s 60B(2)(a) and (b)). If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
(Original emphasis)
It is against the background of these important principles that “reasonable practicability” in s 65DAA falls to be considered and determined. As the passages of MRR v GR to which we have earlier referred amply demonstrate, it is the reality of the situation confronted in which the assessment is to be made. If it were otherwise, it would follow axiomatically that Courts exercising jurisdiction under Part VII of the Act would not only likely prevent any proposed relocation of any parent in cases where that issue arises; but the Court would routinely order restraints or injunctions interfering with the parental rights to which we have referred so that “reasonable practicability” (by requiring parents to live proximate to each other) was achieved and maintained.
In our judgment, having regard to the central features of this case as reflected in the central findings of the trial judge earlier discussed, the trial judge failed to apply these principles in assessing the s 65DAA considerations and in exercising the discretion to make the coercive order. In doing so, his Honour acted upon wrong principle and did not take into account material considerations and thereby erred in exercising the discretion (House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ).
At [39] of the Reasons the trial judge said:
This is a case where one of the orders sought in relation to the child may involve the child relocating from one geographical location to another. The Court must consider proposals advanced on merit, in accordance with the prescribed legislative pathway: Sayer & Ratcliffe [2012] Fam CAFC 209 at [47]-[48]. The focus must always be on the best interests of the child, and whether it is better for the child to live with a parent in one location or another: Muldoon & Carlyle (2002) FLC 93-513 at [91]. In some cases the issue is whether a parent can be ordered to move from one place to another. The Court has power to make such an order: Ember & Assadi [2013] Fam CAFC 107 at [55]-[60] citing Sampson & Hartnett (No.10) (2007) FLC 93-350. The Court’s power in this regard is found in ss. 65D and 68B of the Act.
As this is the formulation by the trial judge himself of the task which confronted him, and the formulation upon which his Honour later in his reasons dealt with “reasonable practicability” we think this paragraph demonstrates the failures to which we refer.
We consider that the trial judge’s observation that “the focus must always be on the best interests of the child, and whether it is better for the child to live with a parent in one location or another…”; taken with the trial judge’s identification of the existence of the Court’s power to order a parent “to move from one place to another”; without elaboration of the limited circumstances in which that power is legitimately exercised; underscores the errors the trial judge made in his approach to assessing “reasonable practicability”.
Whilst it is strictly true to say, as the trial judge observed, that “this is a case where one of the orders sought in relation to the child may involve the child relocating from one geographical location to another”; that was so only because the father sought an order for the mother to relocate the child (and effectively herself). This was not a case where the primary carer was seeking to relocate.
Paragraph [91] of Muldoon & Carlyle (2002) FLC 93-513 to which the trial judge specifically referred in [39] of the Reasons largely comprises an extensive quotation from the judgment of Hayne J in AMS v AIF. That was a case where the mother proposed to relocate from Perth to Darwin. The father not only opposed the move but sought an order for the child to be in his “custody”. Relevant to the statement about “whether it is better for the child to live with a parent in one location or another” what Hayne J actually said in that context, as cited in Muldoon at [91], was this:
The proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin).
(Emphasis added)
Understood in those terms Hayne J was referring to the competing proposals of the parents for, in the case of the father, the child to live with him in Perth or, on the mother’s case, to live with the mother in Darwin, in circumstances where the mother was proposing to move to Darwin to be with her new partner.
In this case both parents agreed that they ought have equal shared parental responsibility for the child. Both acknowledged that the mother would continue to perform the role of providing the child’s primary care with the child to spend time with the father. The Court found that agreement, and acknowledgment, to be in the child’s best interests and made orders accordingly.
It was unsurprising, given the relatively modest geographical separation between Town S and Town C, that the trial judge found that the child would continue to have the benefit of a meaningful relationship with the father on whatever proposal for time and communication was adopted. However, on that central finding, taken with all the circumstances of this case, no occasion arose for the Court to consider making a coercive order imposing on the mother’s freedom to choose where she lived and worked. That is, no sufficiently adverse effect on the child’s welfare was identified that this had to be addressed by the making of a coercive order.
If it had been necessary to consider such a coercive order in the context of “reasonable practicability” it was necessary that the trial judge not assume, as appears to have been the case, that the father’s choices and freedoms did not fall for consideration. Here it seems that the trial judge proceeded on the footing that the mother had to subordinate her ambitions and wishes to the wishes of the father to pursue his life in Town C and his work in Sydney. No consideration was given, given the respective parenting roles in contemplation, to the father moving. We consider that his Honour thus erred in principle.
For the reasons already observed it was unnecessary and in error for the trial judge to consider any coercive order in the circumstances of this case. That error infected his assessment of the s 65DAA considerations and we are satisfied that the challenges made to this assessment by the trial judge on this basis in grounds 1 and 2 are made out.
We should add that to the extent some of the challenges in some of the
sub-grounds of ground 1 rest, at least in part, on the proposition that the poor relationship of, and poor communication between, the parents precluded orders for substantial and significant time (and reasonable practicability of such orders); we do not find merit in those challenges.
Despite the poor nature of their relationship and communication both parents sought an order for equal shared parental responsibility. Having regard to s 65DAC(3) each parent thus acknowledged a capacity to consult with the other and to make a joint effort with the other to join in decisions on major long-term issues in relation to the child.
Moreover, the nature of the parental relationship was the background to any proposal for time adopted. We do not accept the proposition that it of itself precluded orders for substantial and significant time, on the one hand, but not orders for less time, on the other. That is, this was not of itself a disqualifying factor for orders for substantial and significant time.
Credit findings and asserted inconsistencies
Because the trial judge’s assessment of the s 65DAA considerations arguably depended, in part, on conclusions reached following adverse credit findings being made against the mother, the challenges to those findings (ground 3) embracing a challenge to the reasoning process ought be dealt with. It is convenient to also address in the following discussion the errors it is asserted the trial judge made concerning inconsistent findings.
We consider there is merit in some, at least, of the challenges to the Judge’s credit findings. However, we consider two broader issues arise.
First, we question the nature of the credit findings and, more importantly, the need for many, if not all, of them to have been made in the first place.
This case involved, as his Honour found, competing co-parenting arrangements where it was effectively conceded by the father that the child would continue to live with her mother. Equally crucial, the proposals for the time that the child should have with her father were not significantly disparate.
In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
165.As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
166.To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
167.Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
168.These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
169.Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
At [42] of the Reasons the trial judge recorded central credit findings adverse to the mother in the following terms:
… This Court has real concerns about the mother’s evidence about family violence and in particular the event that precipitated separation in July 2011. Apart from the fact that her oral evidence about this was glib and unconvincing, as will be discussed in these reasons below, her evidence was inconsistent in important respects. It’s not that the evidence does not establish any basis for the AVO and the criminal charge against the father. Far from it, as the evidence before this Court amply demonstrates why the AVO was imposed, and why the father was convicted of an assault, but put on a good behaviour bond. Rather, the concern is about the mother’s embellishment of these events and the inference that is drawn that she did so in order to somehow benefit her case. It is indeed somewhat ironic in these circumstances that her case before this Court was presented on the basis that there are no issues of risk to [the child]. Regrettably, and as it turns out by reference to the evidence that will be discussed below, the mother’s unreliability as a witness leads to the Court not only not accepting her premise that she was a victim of abuse who continues to suffer the consequences of the same, but also that she is quite disingenuous and opportunistic in her portrayal of herself as a victim, in the hope that it would advance her case. Another reason for the Court to be concerned about this is the blatant inconsistency between the mother’s case about violence and her apprehension of the father, but nonetheless consistently advancing proposals to the Court that would inevitably result in the two of them coming into contact with each other.
For reasons which follow, we consider there are multiple errors identifiable either within these findings or consequent upon one or other of them.
First concerns the finding that the evidence “…amply demonstrates why the AVO was imposed, and why the father was convicted of an assault…”. That finding carries the necessary corollary that the father’s affidavit evidence and oral evidence at trial about this centrally important event and issue must have been seriously in question, if not rejected outright.
In his sworn affidavit filed 12 September 2011 the father advanced this version of that incident:
8.Briefly, the circumstances were that [the mother] was screaming at [the child] at around midday. I was sleeping after being awake for 30hours coming off night shift and attending to [the child] in the morning. Unfortunately, [the mother] screaming at [the child] had occurred a number of times in the preceding 2 weeks. [The mother’s] screaming was so intense that it woke me and I got out of bed to check on [the mother] and [the child]. [The mother] was on the floor cleaning up food which [the child] had thrown and I knelt down in front of [the mother] to try to talk to her. She seemed to be in a trance like state and wouldn’t respond to me so I put my hand under her chin to get her attention. She then looked up at me and smiled. I went back to bed after checking on [the child] in the play pen and the next thing I heard was sirens.
9.I have never committed an act of violence in my life or attracted police attention. I have never had an AVO or a charge against me. I was previously married for 19 years with a son who is now 24 years old.
…
11.The final AVO hearing happened on the 12 August and was thrown out.
Leaving aside that such a version could not conceivably support an apprehended domestic violence order being made, let alone a conviction for assault, the assertion by the father in [11] that the application for an apprehended violence order “was thrown out” at the final hearing on 12 August 2011 is patently wrong. The mother annexes to her later affidavit a copy of the final Apprehended Domestic Violence Order that was made at the final hearing on 12 August 2011 and the trial judge found not only that the order was made but that the evidence “amply demonstrates” why the order was made.
Even if there was “embellishment” by the mother of this assault in her evidence about it (a conclusion necessarily resting, at least in part, on matters of impression) there was deliberate obfuscation by the father (a conclusion resting entirely on fact) on this centrally important issue.
Without further exposition in the Reasons, it is difficult to reconcile this with the trial judge’s very favourable description of the father as a witness in the following terms at [40] of the Reasons:
The father, for the most part, was an impressive, sincere witness. Notwithstanding the thorough and persistent cross-examination by Mr Sanson, counsel for the mother, he was consistently cooperative, and responsive. He was gracious and generous in his descriptions of the mother’s parenting of [the child] and [the child’s] need for and relationship with her mother. He was insightful about the communication issues that he has with the mother, appeared to accept that he was at least partly a contributor to this problem but felt largely helpless in terms of solutions. The father’s demeanour was at all times appropriate.
Second in relation to the findings in [42] of the Reasons, it was never part of the mother’s case that the child was at any risk from the father. That is, it was the mother’s evidence that all of the father’s relevant conduct (which other than the assault on 17 July 2011 consisted almost entirely of allegations of verbal abuse) was directed solely to the mother and not to the child. It was not the mother’s evidence that any of the father’s relevant conduct was directed to the child. Nor was it any part of her case that because of such conduct directed to her, it followed that some relevant risk to the child was to be inferred or implied.
The mother having herself made that important and valid distinction between the parental relationship, on the one hand, and the father-daughter relationship on the other, it was neither “ironic” nor even surprising that “her case before this Court was presented on the basis that there are no issues of risk to [the child].” That finding cannot legitimately stand, let alone be part of the foundation for significantly adverse credit findings against the mother. That finding is the product of the trial judge’s apparent failure to make the distinction the mother not only had herself made, but had advanced as part of her case.
The finding that “…the mother’s unreliability as a witness leads to the Court not only not accepting her premise that she was a victim of abuse who continues to suffer the consequences of the same…” is partly or wholly:
·inconsistent with the trial judge’s own finding that the mother was physically assaulted by the father on 17 July 2011. She was on that finding alone, in fact a victim of abuse;
·inconsistent with the issue of a final apprehended domestic violence order following the final hearing of that application on 12 August 2011;
·inconsistent with the father’s conviction on a charge of assault;
·inconsistent with the other findings of the trial judge earlier referred to that at separation (consequent upon this incident) the mother had “no other option open to her” and “no alternative” but to relocate from Sydney to Town S, a place 200 kilometres north of Sydney.
Further apparent inconsistency in findings arises when regard is had to the trial judge’s finding at [85] of the Reasons that “…the Court finds that she [the mother] has a perception of victimhood that is not based on reality but which is no doubt real in her own mind.” (Emphasis added)
Part of the “reality” is that the mother was in fact a victim of the father’s assault of her on 17 July 2011. To the extent that this informed a wider “perception” – real in the mother’s mind – as to the extent to which she was a victim of abuse, then the obvious question is where the line between “reality” and a perception that is “real” in the mind of the mother is to be drawn, when considering the mother’s evidence and, in particular, her credibility.
We interpolate here reference to the important difference, as referred to in Carlson, between, on the one hand, evidence of a witness, honestly given although unreliable because it is found to be wrong in fact, and on the other hand, founding an adverse credit finding against the witness, based upon that unreliability. Failure to make that distinction, or to assess where a real or honestly held perception might begin and end, is an obvious error if the evidence is to be used as a foundation for an adverse credit finding. Here the mother, found to have “…a perception of victimhood… no doubt real in her own mind” (a perception that must at least in part flow from her being assaulted by the father on 17 July 2011) was the subject of significantly adverse credit findings founded at least partly upon evidence that may well be sourced to her “perception” which is “no doubt real in her own mind”. Yet, the trial judge attempts no analysis of the distinction to which we have referred. In turn, adverse credit findings against the mother were used as a basis to reject the mother’s other allegations of abuse (Reasons, [114]).
The trial judge’s rejection, as expressed in [42] of the Reasons, of the premise that the mother “…was a victim of abuse who continues to suffer the consequences of the same…”, is not only apparently inconsistent with the findings at [85] referred to above, it is also inconsistent with:
·The apparent acceptance by the trial judge (at Reasons [133]) of “…concerns that the mother appears to have about violence and abuse…”;
·Both [146] of the Reasons where it is stated:
The Court also urges the mother to undertake the further counselling or therapy that was clearly suggested by Dr [B] in cross-examination designed to deal with her ongoing perception that she is recovering from abuse.
and what purports to be an order at paragraph (20) of the Orders made by the trial judge which is relevantly in these terms:
(20) Within three months of [the child] relocating to the Central Coast area in accordance with these orders, the Mother:
(a)…
(b)Is encouraged to obtain the counselling and therapy that Dr [B] recommended for her in order for her to recover from the violence and abuse that she perceives she has experienced.
As appears in [42] of the Reasons, a further reason expressed by the trial judge for the Court to be “concerned” about the mother’s credit was said to be “the blatant inconsistency between the mother’s case about violence and her apprehension of the father, but nonetheless consistently advancing proposals to the Court that would inevitably result in the two of them coming into contact with each other.” Other than the assault of 17 July 2011, neither within [42] or elsewhere do the Reasons illuminate any particulars as to what the trial judge actually meant by his reference to “the mother’s case about violence”.
For the reasons which follow, when regard is had to the place at which the mother proposed the parents would be “coming into contact with each other” and the mother’s evidence or allegations concerning the father’s conduct the trial judge’s characterisation of the mother’s position as reflecting “blatant inconsistency” cannot be supported.
As to changeovers, the mother’s proposal as advanced in paragraph 42 of her affidavit was as follows:
For the purposes of delivery and collection of [M] I would suggest that the Bunnings Store at [Town G], be the handover location. This is a hardware store which has CCTV…
(Emphasis added)
To found (in part) an adverse credit finding against the mother on her proposal as to changeovers ignored the practicalities that the mother had to address in formulating her proposal, given that the mother and the child lived in Town S while the father lived in Town C, and maintained his employment in Sydney. It was the mother’s proposal that she and the child would continue living in Town S so some method of changeover had to be advanced by her to address both her own personal concerns and these practicalities.
It bears emphasis that on the trial judge’s own findings, independently of the mother’s own evidence, the mother had legitimate cause for concern as to the father’s behaviour at changeovers. At [48] of the Reasons the trial judge expressed his unequivocal acceptance of the evidence of a witness Ms D that at changeovers which she observed “…the father was clearly angry and
non-communicative and acted inappropriately. The Court does not accept the father’s denial of these events.” Further, having quoted passages of Dr B’s report as to Dr B’s observations of the interactions between the parents during the assessment process, the trial judge recorded at [57] of the Reasons:
The father’s behaviour, however, firstly in turning his back to the mother and secondly speaking “in a forceful tone” to the mother, suggests that the father lacks insight into his own behaviour and may well have had a domineering style in the relationship.
In paragraphs [48] to [73] of the mother’s affidavit sworn 25 July 2013 under the heading “History of Difficulties with the Father” – other than addressing the assault on 17 July 2011 and an event “a few months before we separated” when the father is alleged to have become angry and to have thrown “a wooden spoon at my head” which “narrowly missed me”; the allegations essentially comprise yelling at the mother and verbally abusing her. The single exception is an allegation that on one occasion the father became angry whilst driving a vehicle in which the mother was a passenger and drove it in a manner, the mother says, causing him to lose control of the car and her to be afraid at the manner of driving.
These allegations as so framed do not appear to have been addressed further, or at all, in the mother’s subsequent affidavits for trial.
Further, there is nothing to suggest that the mother provided any expanded version concerning the father’s pre-separation conduct, in terms of the number or nature of her allegations concerning the father, when she was interviewed by Dr B, clinical psychologist, for the preparation of his family report which interviews took place on 16 July 2012. Dr B’s report relevantly records this:
10.The […] Local Court of NSW issued [the father] with an Apprehended Violence Order (AVO) on the 21.08.11, with the protected person listed as [the mother]. [The mother] reports that [the father] assaulted her in their family home. [The father] reports he did not assault [the mother], rather lifted her chin in an attempt to capture her attention and elicit a response from her. The AVO is due to expire on the 21 August 2013.
…
32.[The mother] described her marriage to [the father] as ‘long, unhappy and lonely’ where [the father] would often ‘verbally abuse or ignore me’ [The mother] advised that since their separation on 17 July 2011, herself and [the father] do not communicate.
…
67.As previously noted, [the mother] alleges one incident of family violence occurred where [the father] tried to strangle her. [The child] was reportedly present in the room at the time of the incident, leading to an AVO against [the father]. Given the isolated nature of the incident and absence of reports on further instances of domestic violence, there is no evidence to suggest that [the child] has been affected by the prior incident.
At the time of these interviews the mother and the child were living in Town S and the father still lived in Sydney. Notwithstanding that Dr B was aware of the level of acrimony between the parents (a topic he specifically addressed in his report); and that changeovers in person had been occurring between the parents prior to his interviews; and that such changeovers would continue; and the matters above with respect to the subject allegations; Dr B apparently identified no inconsistency, blatant or otherwise, in assessing the mother or her position or proposals.
Further, there is nothing we can discern in the mother’s oral evidence at trial placing any substantially different complexion (compared to her affidavit evidence earlier referred to), as to the nature and extent of her allegations.
Against that background, the mother proposed not only a public place for changeovers, but one with camera surveillance. We can see no difficulty in reconciling the mother’s proposals with her case. We can see no foundation for the trial judge’s conclusion of “blatant inconsistency” and consider this finding is erroneous as not supported by the evidence.
At [85] of the Reasons the trial judge expresses criticisms of the mother and her proposals in the context of her having received the report of Dr B. The trial judge there records:
85..… there is however, substance to the father’s concern about the mother’s post-separation parenting arrangements. Indeed, Dr [B] described the situation accurately by referring to the mother’s conservative approach to post-separation parenting arrangements, a matter that was reflected in her proposals right throughout these proceedings up to and including final submissions. Before the release of Dr [B’s] report, the mother’s conservatism and reluctance is easier to understand. After the release of the report, Dr [B’s] recommendations were quite clear and her inability to formulate a proposal consistent with his recommendation is hard to understand.
As a starting point, the premise for this criticism of the mother appears to be that she ought to have put aside her own views as to what she, as the child’s parent, considered to be in the child’s best interests in favour of deferring to an expert’s view. This would imply some requirement upon a parent in parenting proceedings to abdicate parental responsibility, including for formulating a parenting proposal considered by them to be in the child’s best interests, to an expert or risk an adverse finding. There is no such requirement. When regard is had to the feature that it is a matter of trite law that the Court is not bound to adopt an expert’s view or recommendations, and may ultimately reject these entirely, it would be obviously inconsistent to impose any such requirement upon a parent. Moreover, in this case the father conceded that the child’s best interests saw her continuing to live with her mother.
Ground 8 articulates the specific challenge that the trial judge erred in finding that the mother clearly exaggerated her own father’s cancer diagnosis. At [93] of the Reasons the trial judge recorded:
... Indeed, the mother’s evidence, and her father’s evidence, about this issue represents the nadir of her case. She clearly exaggerated his diagnosis by asserting that he had both bowel cancer and prostate cancer when according to the maternal grandfather, he had been diagnosed with low-grade prostate cancer and was merely having a colonoscopy.
On the maternal grandfather’s oral evidence it somewhat understates the position that he “was merely having a colonoscopy”. On his evidence a colonoscopy was ordered to investigate the cause of an aberrant symptom, specifically, the presence of blood in his faeces and that test was ordered to investigate the possibility that bowel cancer was the cause.
At [44] of the Reasons the trial judge said:
The last issue of concern about the mother’s credit relates to the inconsistencies between her evidence, and her own father’s evidence about his illness. She said that her father had both prostate cancer and bowel cancer, but her father made it very clear that he had only been diagnosed with prostate cancer which he himself described as low grade, and had not been diagnosed with bowel cancer. Moreover, her evidence was that these diagnoses had caused her parents to reconsider their already stated plan to relocate from [Town S] to the Central Coast which was in contrast to her father’s evidence that was nowhere near as clear or as dogmatic as she would have the Court believe.
At one point of the maternal grandfather’s evidence in cross-examination he gave evidence to the effect that a diagnosis of bowel cancer was to be determined in association with his evidence concerning the colonoscopy. If similar information was received by the mother; or even that he was being investigated for bowel cancer; it would not necessarily be a matter of clear and intentional exaggeration on her part for the mother to have an erroneous understanding of her father’s precise diagnosis.
The cross-examination of the mother as to precisely what she was told by her father plainly lacked precision in this respect. It is an unsafe foundation for an adverse credit finding against the mother.
The mother gave this evidence in the course of her re-examination on this issue:
All right. Now, in relation to the issues of your father’s health, do I understand you’ve been told certain things about that by your father or other family members?---Yes, I have.
All right. And in relation to your father’s health, what do you understand the present position to be?---His tests have come back positive for prostate cancer and also bowel cancer, but they have to do – he has to be booked in for a colonoscopy to investigate the positive test for the bowel, and similar test have to be done for the prostate. So, as far as I know, it’s undetermined now, but the signs are positive.
(Emphasis added)
Adding in the equivocal nature of this evidence of the mother we find that there is merit in ground 8. We should also add that we struggle in any event to understand the relevance of the evidence to the issues joined between these parents.
We accept that there is merit in the mother’s challenges directed to the adverse credit findings made by the trial judge and the inconsistencies in the findings. It follows that we accept that because the trial judge’s process of reasoning proceeded from such conclusions that process was flawed by reason of these errors.
It follows from our conclusions that the trial judge’s reasoning process was infected with errors made concerning the adverse credit findings against the mother and inconsistent findings.
Conclusion and orders
As we have found merit in the remaining sub-grounds of ground 1; ground 2; and grounds 3 and 8; the appeal must be allowed and consequential orders should be made setting aside the trial judge’s orders the subject of challenge.
The mother sought some specific orders in the appeal which would involve us, to some extent, in re-exercising the discretion to make parenting orders (for example, the orders as to the time the child should spend with the father in 2015 and thereafter). We are not in a position to re-exercise the discretion (see in that respect what was said by the High Court in Allesch v Maunz (2000) 203 CLR 172 especially at [29] to [32]). The final parenting orders to be made will be a matter for the trial judge hearing and determining the proceedings on the order for remitter.
However, the orders below as to the time the child was to spend with the father came into effect on 4 March 2014. No stay of those orders was sought or obtained, so the child’s experience has been, since 4 March 2014 to spend time with the father in accordance with those orders.
Section 94AAA(6) of the Act allows us to “affirm, reverse or vary” the orders made below.
Given our conclusions, and pending any further interim or final hearing of the proceedings in the Federal Circuit Court we propose to set aside the coercive order (and to set aside the consequential orders made for time also) and vary the order for the child’s time with the father so as to remove the requirement for the mother to relocate the child’s residence to the Central Coast. That is, we do not propose to arbitrarily now reduce the time the child has been experiencing with the father since the orders were made on 4 March 2014. Of course this is not to place any fetter upon the discretion of the trial judge who re-hears and determines the proceedings or any other application.
Given that we have not found any merit in ground 9 of the appeal we do not propose to set aside order 6.
Otherwise, our orders are consequential upon the appeal being allowed on the bases outlined.
Costs
No party sought an order for costs within the meaning of s 117 of the Act and there is no reason for us to make an order disturbing the effect of s 117(1) that each party is to bear their own costs.
We are satisfied that each parent’s application for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for the appeal and the re-hearing have merit and we propose to make the appropriate orders for certificates under the Costs Act.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 3 December 2014.
Associate:
Date: 3 December 2014
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