ADAMSON & ADAMSON
[2013] FamCAFC 157
•9 October 2013
FAMILY COURT OF AUSTRALIA
| ADAMSON & ADAMSON | [2013] FamCAFC 157 |
FAMILY LAW – APPEAL – CHILDREN – with whom a child shall live – relocation.
| Family Law Act, 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 De Winter and De Winter (1979) FLC 90-605 Goode and Goode (2006) FLC 93-286 Porter & Byrne [2009] FamCAFC 8 Sasterawan v Morris [2008] NSWCA 70 |
| APPELLANT: | Ms Adamson |
| RESPONDENT: | Mr Adamson |
| FILE NUMBER: | PAC | 1461 | of | 2007 |
| APPEAL NUMBER: | EA | 122 | of | 2013 |
| DATE DELIVERED:: | 9 October 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 16 September 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 August 2013 |
| LOWER COURT MNC: | [2013] FCCA 1228 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr S Schonell |
| SOLICITOR FOR THE APPELLANT: | Blackman Legal |
| COUNSEL FOR THE RESPONDENT: | Ms A Petrie |
| SOLICITOR FOR THE RESPONDENT: | Fortis Law Group |
Orders
Appeal against the orders of Judge Scarlett of 12 August 2013 be dismissed.
Appellant mother pay the Respondent father’s costs of and incidental to the appeal as agreed or assessed.
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 122 of 2013
File Number: PAC 1461 of 2007
| Ms Adamson |
Appellant
and
| Mr Adamson |
Respondent
REASONS FOR JUDGMENT
Ms Adamson (“the mother”) appeals against injunctions made by Judge Scarlett on 12 August 2013 whereby his Honour restrained the mother from removing two children X (born in 1999) and Y (born in 2001) from outside the Sydney Metropolitan area and requiring her to return the children to an address within the Sydney Metropolitan area within 14 days of his order.
The father of the children, Mr Adamson opposes the appeal and seeks to maintain the judge’s orders.
Background
In order to give some context to the appeal, it is necessary to set out some factual and procedural history of this matter.
The parties met in 1995 and commenced to live together in 1997. They married in 2000 and separated in late 2004. In 2006 the mother commenced proceedings for divorce. The parties agreed on a division of the property and on arrangements for the children by which the father would spend time with the children every second weekend, where his work commitments allow, in school holidays. The parties had a home in C and as a result of their agreement, the father transferred his interest in that property to the wife in return for a payment to him of $50,000. There was a mortgage on the property which the wife took over.
In 2006 they agreed that the children would spend time with the father from Friday afternoon until Sunday. In 2008 the parties agreed that the father would also spend time with the children each Wednesday evening. The father said, and it appears uncontentious that he speaks to the children twice each day. The father said, also uncontroversially it seems, that he attends such of the children’s school functions as he is able.
According to the father, in 2010, the wife first mooted moving away from Sydney to live in the country to be closer to her parents. The father opposed the move. The mother did not move.
In February 2013 the father said that the mother told him that she was planning on moving to the country within six to eight weeks. The father told the mother he objected to this course and sought legal advice. On 25 February 2013 the father’s solicitor wrote to the mother again indicating the father’s objection to her proposed move. At the same time the parties were attempting to obtain mediation.
On 26 April 2013 the father filed an application in the Federal Circuit Court seeking parenting orders; that he and the mother have equal shared parental responsibility for the children, that they live with her and spend time with him. The father’s application also sought injunctions restraining the mother from moving the children further than five kilometres from their then residence in C. He also sought an order that if the mother did move the children’s residence more than five kilometres from C, they live with him. On 13 June 2013 the mother filed a response to that application seeking an interim order that the parties share parental responsibility for the children and that she be permitted to move with the children to the country. Her response sought orders that the father spend time with the children each alternate weekend from Friday afternoon until Sunday evening and for one half of the school holidays. She proposed that the father travel to M to collect the children from her. The application also sought permanent orders that she be permitted to relocate the children and that they live with her.
Both parties filed affidavits in support of their applications.
In her affidavit the mother said that she was experiencing financial difficulties and finding it difficult to meet the mortgage payments which were, against her income, considerable. She said that she could not afford to pay for the children’s extra curricular activities.
The mother said that her parents sold their house and, with the proceeds, purchased a property in the country in which it is proposed that the mother and children will live. The mother further said that she had sold the house in C to her cousin although at the time of hearing before the judge, the sale of that property had not finalised. The mother said it was her intention to use the proceeds from the sale of the C property to purchase a share in the country house. She had enrolled both children in schools in the country and they were due to start at those schools in July.
The father’s solicitor swore an affidavit in which he said that the parties had been scheduled to attend a child dispute conference on 7 August 2013 and that the applications were to be listed for further mention on 10 August 2013. He further said that the father had travelled to the United States and while there received a message from the mother that she had moved the children to the country.
The father’s application came before the Federal Circuit Court on 12 August 2013. He sought three orders; a recovery order, an injunction restraining the mother from removing the children from Sydney and an order requiring her to return them to Sydney.
The judge determined the matter on the documents filed by the parties and on hearing submissions.
The mother argued against both the making of the recovery order and the injunctions. It was suggested that the nominated point at which the father could collect the children, M, was a ninety minute drive for each of them from their respective houses. For the father it was submitted that taking into account the time for him to drive to collect the children and to return to his house, it was likely that they would not arrive until 10 pm on the Friday night and as a result time over the weekend curtailed.
At the conclusions of the submissions his Honour delivered ex tempore reasons in which he declined to make a recovery order but made the two injunctions sought by the father namely:
2. The Respondent Mother is restrained from removing the children [X] born in 1999 and [Y] born in 2001 from outside the Sydney Metropolitan area
3. The Respondent Mother must return the children [X] and [Y ADAMSON] to reside at an address within the Sydney Metropolitan area within fourteen (14) days.
Reasons of the judge
After observing that the proceedings resulted from the mother’s unilateral decision to move to the country while the father’s proceedings were on foot, the judge first considered the father’s application for a recovery order and declined to make that order, observing that to have the police remove them from the mother’s care would have a negative effect on their relationship with the father [6].
He then said:
7. This is not to say that the mother’s unilateral action in relocating the children away from the former address is a matter that would meet with the Court’s approval. Whilst relocation matters are not a separate category of law, there are certain matters that the Court would take into account and it appears clear that the Respondent, in the knowledge that there were proceedings on foot seeking an order restraining her from relocating the children, has acted unilaterally to do so.
8. The distance involved, notwithstanding the Mother’s suggestion that a changeover point could be established at a halfway area such as [M], will clearly affect the current parenting orders. That does not seem to me to be in the best interests of the children. I note that the mother has been refused a grant of legal aid and is currently appealing against it and whilst I take that into account I am not prepared to adjourn the proceedings simply to allow that appeal to take its course. The concern is that if the Court does not act swiftly to deal with the situation a status quo could arise which is not necessarily in the best interests of the children or the parents concerned.
His Honour made the injunction restraining the mother from removing the children from outside the Sydney Metropolitan area rather than the distance sought by the father in his application, noting that five kilometres from C was too restrictive.
The mother did not comply with his Honour’s orders and remained in breach of them until the judge granted a stay pending determination of the mother’s appeal. It follows that she remains in the country with the children.
The appeal
By amended notice of appeal filed on 5 September 2013 the mother raises five grounds of appeal.
Many of the grounds of appeal asserted by the mother have at their heart a challenge to the adequacy of his Honour’s reasons and indeed ground 5 asserts that his Honour failed to give sufficient reasons for his determination. I propose to deal with Ground 5 first.
Ground 5. That His Honour erred in providing insufficient reasons for the Orders the subject of this Appeal.
The focus of the argument in relation to this ground was on his Honour’s judgment alone. That focus is in my view misconceived.
First, it is to be borne squarely in mind that his Honour determined the matter having read the affidavits and applications of the parties and having heard the submissions made on behalf of both parties. He then delivered ex tempore reasons which were later produced as a written judgment. Secondly, his Honour’s focus was whether to grant three interlocutory orders sought. Thirdly the reasons were articulated in the presence of the parties and their lawyers. Finally and potently in my view, it was not argued that the appellant was in any doubt as to why his Honour came to the view that he did, rather the challenge was to that which was not contained or referred to in his reasons for decision. In this case, that is a significant distinction.
In Sasterawan v Morris [2008] NSWCA 70 the NSW Court of Appeal considered adequacy of reasons and at [32] Beazley JA said:
32....However, as McHugh JA said in Soulemzis in the passages to which I have referred, the duty to provide reasons can be rested on the wider basis that justice must not only be done but must be seen to be done. Although there are no “formulae” for determining whether reasons are sufficiently detailed, it is usually sufficient as Mahoney JA observed in Soulemezis (at 273E), “if by his reasons the judge appraises the parties of the broad outline and constituent facts of the reasons on which he has acted.”
33. This requirement does not necessarily mandate lengthy or detailed reasons The extent of the duty to give reasons is, as McHugh J observed in Soulemezis (at 280G), “related to the function to be served by the giving of reasons”.
Her Honour continued:
49. I accept, as did Mahoney JA in Soulemezis at (271C-D), that it is not necessary for a judge to reason or be seen to reason from one fact to the next. Nevertheless the conclusion to which he or she comes must be sufficiently explained to enable the unsuccessful party to understand why they have lost.
In Cox and Pedrana [2013] FamCAFC 48 the Full Court said:
12. As in our view is only proper, we have had careful regard to the fact that his Honour is, with respect, a trial Judge of great experience. Counsel for the Respondent father submits as much in seeking to argue, in effect, that his Honour can be presumed to have known the law, and in particular the mandatory provisions of Part VII of the Act, and to have applied the relevant principles, even if, as was effectively conceded, the reasons did not articulate those matters.
13. That submission might be seen to have resonance in what was said by Lady Justice Black in Re F(Children) [2012] EWCA Civ 828 at [39]:
…Experienced judges should be encouraged to set out robustly, and where appropriate relatively briefly, the reasons why they have come to particular decisions. It is well established that the judgment must explain sufficiently what the judge has found and the process of reasoning by which he arrived at his findings, but equally the reasoning should be read on the assumption that, unless he has demonstrated to the contrary, the judge knew how to perform his functions and which matters he should take into account. An appellate court has to resist the temptation to subject the judgment to a narrow textual analysis….
Finally, in Porter & Byrne [2009] FamCAFC 8, Warnick J said as to whether the reasons were adequate:
43.I do not accept this argument. Coker FM did make some references to the mother’s case on point (eg. paragraph 23). In any event, as Gleeson CJ, McHugh and Gummow JJ said in Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447 at 464
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
44.Further, as recognised, the reasons were given extempore. In a paper entitled “Practical Impediments to the Fulfilment of Judicial Duties” published in The Judicial Review Vol 6 number 4, Heydon J said:
Thirdly, appellate courts will make assumptions in favour of an ex tempore judgment which they will not make for a judgment reserved for some time. A failure to refer to evidence in an ex tempore judgment, or to analyse it fully, is more likely to be excused on the ground that the recency of its tender makes it unlikely that it was overlooked…
It is thus against this background of principle that the challenges to his Honour’s findings and reasons must be made.
It was submitted in support of this ground after asserting that his Honour provided inadequate reasons for making the orders continued; “while some insight into his Honour’s reasoning is there revealed, it appears nothing more than a desire to avoid a status quo”.
The submissions of counsel for the father at page ten correctly in my opinion set out the matters considered by his Honour in coming to his determination.
His Honour’s reasons read in the understanding of the matters clearly fresh in his mind and to which I have earlier referred are adequate and disclose his process of reasoning to the orders he made.
This ground of appeal is not made out.
Ground 1. That His Honour erred in failing to consider and determine the appellant’s application for interim parenting orders.
In the written argument it was submitted that in the mother’s application in response to that of the father, she sought orders which were “consistent with that which had already been in place between the parties…to the exclusion of an hour or so contact between the respondent and the children on a Wednesday night”.
It was thus said that his Honour erred in not taking into account the parenting arrangements that existed before the mother’s move and that which was proposed as an interim measure.
It was not entirely clear from the written argument or the oral submissions how his Honour had in fact erred, although it seems that it is a challenge to the adequacy of his reasons, it being submitted that he made no mention of the mother’s interim proposal nor that which had existed before.
His Honour, having had the benefit of the parties’ applications and affidavits could not have helped but been aware of the circumstances as existed before the mother’s move with the children, nor could he have been unaware of the parties’ competing proposals. His Honour’s orders were made in the context of ongoing litigation and in circumstances that the matter would return to him for further consideration shortly [11].
This ground further asserts an error in making the injunctions without first determining the mother’s application for interim orders. No written argument was addressed to this point.
When the matter came before his Honour, the solicitor for the father pressed his application for a recovery order, which was opposed by the mother’s solicitor who applied to his Honour for an adjournment of the proceedings on the basis that the mother’s application for legal aid had been refused and she had appealed that decision (transcript 12.8.13 page 2 line 35).
The legal representatives who appeared both addressed his Honour on the recovery order. The solicitor who appeared for the mother, observed that the mother had made her intention to move to the country clear and that there were no orders in place which prevented her from moving. He then addressed the judge on the effect of her move on the father’s time with the children (transcript pages 4-5). Finally, the mother’s solicitor addressed his Honour on why the move to the country, and for the children to remain there, was in their best interests.
At no time in the proceedings was his Honour asked to consider the mother’s application for interim orders permitting her to relocate the children to the country.
In those circumstances, it is difficult to see how it could be asserted that his Honour erred in not considering and determining her application for interim orders before making the injunctions.
This ground is not made out.
Ground 2. That his Honour erred in failing to consider and apply the relevant statutory principles, and in particular those in section 60CC, to the facts in the proceedings.
The written submission of the mother cited the well-known passage from Goode and Goode (2006) FLC 93-286 which considered the approach to be adopted by a court in determining an interim parenting issue. I set out the preamble to the submission here because the balance of the argument under this ground rests on its foundation.
“What was required of his Honour in this regard was the subject of comment by the Full Court in Goode v Goode in the following terms: (d) considering the matters in s60CC that are relevant and, if possible making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);”
Of course, his Honour was not considering an interim parenting matter. His Honour was making an interim injunction pursuant to s 68B. In that case, his Honour was not making a parenting order but an order in relation to the welfare of the child and in those circumstances was not required to follow the Goode and Goode “pathway”. That is not to say that those factors, to the extent they are relevant would not inform his decision or that the best interests of the children was not the paramount consideration.
Thus, to the extent that many of the matters to which the submissions refer and which are said to be relevant to his Honour’s determination are, in my view, misguided. It was further submitted that, in determining whether to make the injunctions sought, his Honour failed to consider “a concern that the children living in the country would result in the Respondent being denied a meaningful relationship with his children” and the submission continued to assert that, with the move to the country, the father would continue to see the children, excluding Wednesday evenings and with longer distances.
Whether the mother is permitted to relocate the children to the country will presumably be the subject of a prompt hearing before his Honour in which these matters, and no doubt others will be fully ventilated. It is plain, however from his Honour’s reasons in deciding to make the injunctions sought that he was concerned that the act of removing the children from Sydney was a matter of concern as evinced by his comments at [8] and to which I have already referred.
There is no substance in this ground.
Ground 3. His Honour failed to properly, if at all, consider:
3.1 the terms of the appellant’s application;
3.2 the evidence adduced by the appellant in support of her application;
3.3 the relevant factors arising pursuant to section 60CC;
3.4the parenting arrangements that were in the best interests of the child;
3.5the effect on the children and/or the appellant of the Orders entered and, in particular, for relocation;
3.6the arrangements available for the children to live with and/or spend time with the Respondent whilst remaining primarily resident in the country;
3.7 the right of the Appellant to choose her place of residence; and
3.8the availability of, and time within which, a Court could hear and determine the proceedings on a final basis.
As with Ground 2, it is somewhat misguided in this ground to assert error in his Honour failing to consider all of the matters there set out given the issue before him, which I repeat was the making of the recovery order and injunctions. His Honour was not considering, nor was he asked to consider, the mother’s application for interim orders that she be permitted to move the children to the country. As I have indicated, his Honour was bound to consider the children’s best interests, which he clearly and expressly did at [8].
As I have already found, given the circumstances in which his Honour determined the matter, he could not have helped but had the parties’ applications and evidence squarely in his mind. It is not an error that he did not recite that information which was plainly before him and considered just a short time before in submissions. The solicitor for the mother had made submissions to his Honour on the children’s best interests and the effect on them and the mother of the move to the country and the arrangements suggested by the mother by which the father would see the children. No submission was made to his Honour about the mother’s “right to choose her place of residence” and, had it, no doubt his Honour would have referred to the decision of the High Court in AIF v AMS (1999) 199 CLR 160. Counsel for the mother, sensibly abandoned reliance on this particular of the ground.
Equally, in relation to the final asserted particular in ground 3, it was conceded and indeed it is apparent from reading the transcript that at no point was his Honour asked about the court’s capacity to deal with the proceedings finally. However, given the final paragraph [11] in which he said; “I will bring the matter back to Court in a short period of time so that I can hear further from the parties’ legal advisers as to what the situation is” demonstrates that his Honour is clearly keen to have the matter heard and determined, as is appropriate.
None of the particulars or the ground as a whole has been made out.
Ground 4. That his Honour erred in:
4.1considering (erroneously) that there were current parenting orders concerning the children
4.2considering as determinative, or in any event as relevant, the development of a “status quo” unless orders were entered.
A third particular of this ground was not pressed.
True it is that his Honour referred to “current parenting orders” at [8] and it is also true to say that there were no parenting orders in place. Counsel for the mother was unable to say how this error of fact affected his Honour’s determination. It is insufficient to point to an error of fact. As was said by Gibbs J in De Winter and De Winter (1979) FLC 90-605 at 78,092:
…The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations…
The written submission, after repeating the error argues that his Honour’s mistake might “give some insight into the reason why his Honour ordered the relocation”. It is difficult to understand what this submission means and, in the light of counsel’s inability to articulate how this error affected the exercise of his Honour’s discretion, it is unnecessary to consider it further.
The error was immaterial it could not, nor does it found a ground of appeal.
The judge said, in the course of rejecting the mother’s application for adjournment of the proceedings pending an outcome of her application for legal aid said at [8]:
8.…whilst I take that into account I am not prepared to adjourn the proceedings simply to allow that appeal to take its course. The concern is that if the Court does not act swiftly to deal with the situation a status quo could arise which is not necessarily in the best interests of the children or the parents concerned.
In articulation of the ground the written submission assert:
…Given His Honour did not expand any further on this is it not possible to second guess the reasons why his Honour felt this may not be in the best interests of the children or the parents concerned.
The submission then refers to the following ground, being a challenge to the adequacy of his Honour’s reasons.
In the circumstances where the submission in support of the ground does not assert any appealable error, it is somewhat mystifying that this court is expected to do that which counsel for the mother could not. No error has been identified. None is found.
It is important to observe that his Honour was not, as the submissions both oral and written made on behalf of the mother assert, determining the issue of whether the mother is able to relocate the children’s residence to the country. This misunderstanding of his Honour’s consideration was fatal to the appeal. However, even if the appeal had challenged the exercise of his Honour’s discretion in making the injunctions sought by the father, it would not have succeeded. To make the injunctions was an exercise of his Honour’s discretion. To demonstrate error in that regard it would be necessary to show, not that another judicial officer would have come to a different conclusion, but that his Honour’s findings and orders were not reasonably open to him. That challenge, in this case, could not have succeeded.
The appeal will thus fail.
Costs
As is customary, submissions were sought from both parties on the question of costs of the appeal. Counsel for the mother conceded that if the appeal failed, he could not resist an order for costs. It is appropriate that an order for costs be made.
I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 9 October 2013.
Associate:
Date: 9 October 2013
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