Angeli & Farina
[2022] FedCFamC1A 40
•24 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Angeli & Farina [2022] FedCFamC1A 40
Appeal from: Angeli & Farina [2021] FedCFamC1F 266 Appeal number(s): NAA 84 of 2021 File number(s): SYC 5377 of 2019 Judgment of: ALDRIDGE, TREE & STRUM JJ Date of judgment: 24 March 2022 Catchwords: FAMILY LAW – APPEAL – INTERNATIONAL RELOCATION – Appeal from final parenting orders permitting the child to relocate with the respondent to the USA – Whether the primary judge gave adequate reasons – Whether the primary judge failed to take into account relevant considerations – Whether the primary judge failed to attribute appropriate weight to the evidence – Where no ground of appeal is established – Appeal dismissed – Costs ordered in favour of the respondent and the Independent Children’s Lawyer. Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 46 Date of hearing: 28 February 2022 & 7 March 2022 Place: Sydney (via video link), delivered in Cairns Counsel for the Appellant: Ms Tabbernor on 28 February 2022 and Ms Vohra SC on 7 March 2022 Solicitor for the Appellant: Broun Abrahams Burreket Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: Lander & Rogers Counsel for the Independent Children’s Lawyer: Ms Lioumis Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
NAA 84 of 2021
SYC 5377 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ANGELI
Appellant
AND: MS FARINA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, TREE & STRUM JJ
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS THAT:
1.Appeal No. NAA 84 of 2021 be dismissed.
2.Within 28 days, the appellant pay the respondent’s costs in the sum of $40,000.
3.Within 28 days, the appellant pay the Independent Children’s Lawyer’s costs in the sum of $10,962.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Angeli & Farina has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & STRUM JJ:
INTRODUCTION
On 9 December 2021, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final parenting orders which allowed the parties’ 10 year old child, Z (“the child”) to live with his mother Ms Farina (“the mother”) in the United States of America (“USA”) and spend specified time with his father Mr Angeli (“the father”) either in the USA, Australia or elsewhere.
The father appeals from those orders. The mother and the Independent Children’s Lawyer (“the ICL”) both oppose the appeal. For the reasons that follow, the appeal will be dismissed.
BACKGROUND
From late 2010 until early 2019, the parties lived in City A, in the USA. In January 2019, the father relocated to Sydney to take up an employment opportunity. On 2 July 2019, the mother and the child moved to Sydney to join the father.
The relationship broke down almost immediately and the father commenced these proceedings on 15 August 2019. Since separation, the child has been in the primary care of the mother in Sydney and has spent time with the father there.
The final hearing occurred over 11 days in two tranches between 7 May and 23 September 2021. At that hearing, the mother sought to relocate the child’s residence to City A, whereas the father sought that the child remain in Australia, although both had similar proposals for the child to spend time with the other parent during school holidays. Neither parent was prepared to relocate to the other’s preferred location (at [21]), and thus the trial centred on with which parent, and in which country, the child should primarily live.
The parties were able to agree to share parental responsibility and for orders providing a communication regime with the other parent depending upon which parent the child lived with. The balance of the issues were determined by the primary judge in his Honour’s orders and reasons for judgment delivered on 9 December 2021.
On 15 December 2021, a stay of the orders permitting the child’s relocation was granted pending determination of the appeal, and the child presently remains living in Sydney.
THE APPEAL
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The father’s Amended Notice of Appeal filed 31 January 2022 contends four grounds of appeal. Those grounds largely challenge the adequacy of the primary judge’s reasons, his asserted failure to take into account relevant facts, and the weight his Honour gave to certain matters. However as shall be seen, often the matters complained of overlapped between more than one ground of appeal.
Ground 1
This ground asserts the following:
1.In respect of family violence, His Honour made material errors of fact as to the admissions of the father as to the same, failed to give adequate reasons as to his findings of the father’s perpetration of violence and the nexus between it and the mother’s mental health.
During oral submissions, senior counsel for the father abandoned that part of this ground which asserted “material errors of fact” and argued the ground solely as to adequacy of reasons.
In order to understand this ground of appeal, some context is necessary.
At trial, the mother contended that the father had perpetrated family violence towards her, principally of a coercive and controlling kind. She said that this had caused, or at least contributed to, her then poor mental health, which was adversely impacting upon her parenting of the child. She said that returning to live in City A would assist her recovery from the impact of the family violence, and further, that recovery would be optimised if the child were living with her there.
The father denied that he had ever been domestically violent to the mother, and hence contended that the aetiology of the mother’s mental health problems lay in her pre-existing vulnerabilities. He argued that therefore the mother’s return to City A would not see a reprieve from the effects of family violence (as there had been none), and further, given the lack of family violence, her underlying mental health issues meant that her recovery would be at risk if things did not go as well as she hoped in City A. He therefore argued that there was a risk of harm to the child in returning to City A, as the father would not be available to care for him there, as would be the case in Sydney.
The mother led evidence from herself and two USA based therapists whom she had consulted over a number of years. That evidence detailed, or supported, the mother’s case that the father had perpetrated violence upon her. However in cross-examination the mother was taken to some inconsistencies in her assertions of the father’s evidence over time, and the two therapists conceded that their only source of factual information was the mother.
The father in his evidence denied any misconduct by him, but in cross-examination was taken to firstly, text messages he sent the mother which appeared to concede family violence, and secondly, communication by him with third parties which did likewise. He sought to explain those admissions as being attempts to placate the mother, in that he was acknowledging her complaints, but without admitting them to be true.
The mother’s mental health was discussed at various points in the primary judge’s reasons, including as follows:
41.That does not mean, of course, that the father’s concerns about the mother’s mental health, and the impact of this on [the child], are ignored by this Court. He says that the mother’s mental health presents a risk of harm to [the child], as well as being an obstacle to the facilitation of a long-distance relationship with him.
…
43.The Court accepts the evidence of Dr D [the single expert psychiatrist who prepared two family reports in the proceedings] and a central tenet in the mother’s case—that is, the question is whether the mother’s parenting capacity is impaired by any mental health issues she suffers, including any emotional fragility or vulnerability, and any personality traits, or any other reason. None of these issues, per se, contraindicate adequate parenting. It is self-evident, however, that impaired parenting capacity does not necessarily entail risk of harm to a child. Moreover, in this case the relevance and impact of the mother’s mental health and its impairment of her parenting capacity needs to be explored not just by reference to various geographical scenarios (e.g. child in Sydney or child in City A) but also by reference to the present and the future. Yet another relevant set of factors include the causes of the deterioration in the mother’s mental health, as well as its continuation and exacerbation. In this regard, it is part of the mother’s case that her mental health concerns (and thus, implicitly, any impairment in her parenting capacity) were caused, or exacerbated, by the father’s family violence. This family violence is in itself another risk of harm to [the child].
44.The evidence of the single joint expert, Dr D, and the evidence of the mother’s treating professionals, all indicate unequivocally that the mother suffers from depression and anxiety. This is undoubtedly having an effect on [the child], and even the mother concedes that this is affecting her present parenting of her son. The mother’s depression was observed to noticeably worsen between the first and second reports of Dr D (prepared on 29 November 2019 and 9 September 2021) and of Dr C (prepared on 6 October 2020 and 7 April 2021).
45.The mother’s mental health concerns certainly predate relocation to Australia. The evidence (including what the mother told Dr D, Dr C, and her therapist in City A, Ms O) indicates that she has been consulting mental health professionals on a non-continuous basis from at least 2003, and possibly earlier. Dr D explained that some of the mother’s pre-existing conditions suggest that some of her behaviour was part of a lifelong pattern which contributed to personality vulnerabilities. The mother contends that most of these mental health attendances were as a result of difficulties she was experiencing in her relationship with the father. When the records of the mental health professionals in question are carefully scrutinised, the mother is, like the father, found to have overstated her case. The clearly unhappy relationship with the father, and her experience of him as being coercive and controlling, were certainly issues raised, but there were other issues predating the marriage and relating to the mother’s own experience of being parented. As Dr D opined, these were likely operative underlying factors as regards her mental health.
46.The present impact of the mother’s mental health concerns on her parenting of [the child] were not in contention. To her credit, the mother’s evidence on this issue was transparent. In his second report, and confirmed in cross-examination, Dr D referred to it as the mother being so depressed that she found it difficult to break away from her own self-absorption to focus on [the child’s] needs across the whole spectrum. Thus, whilst she was well able to provide for his physical needs, his emotional needs suffered, she was insufficiently attuned to him, and her ability to respond intuitively to his emotional state was significantly compromised. Dr C’s evidence was consistent with this.
…
48.Is this a temporary situation, and thus a manageable risk of harm for him? The Court accepts the submission of the Independent Children’s Lawyer in this regard. She submitted that the risk that [the child] will continue to be stressed and burdened by worry for his mother will be mitigated by a return to City A, not exacerbated by it. Indeed, by not allowing relocation the already anxious and insecure relationship [the child] has with his mother may further deteriorate. The Independent Children’s Lawyer submitted, and the Court accepts, that the mother’s recovery will certainly be slower and harder if [the child] is not with her. This submission is consistent with Dr C’s evidence and aspects of Dr D’s evidence.
49.The fact that the mother’s mental health concerns are long-standing is a relevant consideration in assessing the likelihood, or otherwise, of the mother’s mental health improving if she is permitted to relocate to City A with [the child]. The strong impression formed from the evidence of Dr D and Dr C is that on this scenario the mother’s mental health is likely to improve, but it is difficult to predict to what extent, and how long it will take. The Court accepts this evidence. Amongst other things, the conclusion makes sense. The litigation will be over. The mother will be returning to her home, with all of the supports she had in place before relocation, including access to Ms O who has provided weekly therapy for her since at least 2017. The Court acknowledges that there is uncertainty about this, especially if the mother’s return to City A is met by unforeseen difficulties with, for example, obtaining suitable accommodation, work and the relationship with Ms H. In this regard, however, the Court was impressed by the extent to which the mother had given detailed consideration to the practicalities of returning to live in City A, both for herself and [the child]. Moreover, Ms H also impressed the Court with her child-focused and grounded attitude, and her obvious love for the mother.
50.On balance, therefore, the Court is satisfied that any risk of harm to [the child] arising from his mother’s mental health is a manageable risk should he be permitted to relocate with her to City A because of the support system available there to both of them.
51.The risk of harm to [the child] arising from his mother’s mental health is a risk that subsists if the Court orders that he lives with his father in Sydney. Dr D explained that he would be distressed and experience guilt, powerlessness and a sense of abandonment. Nonetheless, his father would clearly be a significant support for him.
(Emphasis added)
As to family violence, the primary judge relevantly said:
55.The mother’s evidence about family violence as broadly defined above is set out at length in her affidavit. This evidence is detailed and expansive. It includes evidence of repeated derogatory taunts, denial of financial autonomy, unreasonably withholding financial support needed to meet reasonable living expenses, and preventing her from making or keeping connections with family and friends. This evidence is corroborated in part by the evidence of Ms O and Dr C. The mother was cross-examined extensively about these allegations. As it turns out, nothing turns on this for reasons set out below. Nonetheless the Court records that it found some of the mother’s evidence to be exaggerated as to some of the alleged facts, but not as to how she experienced the events in question, which clearly left her feeling demeaned and controlled.
56.The Court finds that the father’s denials in cross-examination about family violence, and the explanations proffered, were disingenuous. The clearest evidence in support of a finding of family violence is the father’s own admissions. His apologetic communications with the mother e.g. in the text messages that became exhibit R16 and his engagement in a behavioural change program for violent and controlling men … , constitute clear admissions by him of, at the very least, his controlling conduct. The Court does not accept that the father was simply placating the mother.
57.The Court’s findings about family violence are unaffected by the reality that the father was not cross-examined about every allegation made against him. There is ample material before the Court, the provenance of which is the father, which enables findings to be made against him.
(Emphasis added)
His Honour then addressed the connection between the family violence and the mother’s mental health, as follows:
58.Once it is accepted that the father perpetrated the family violence referred to above, it becomes incongruent for the father to then suggest that the mother’s mental health issues present a risk of harm to [the child], when her mental health issues were either caused by, or exacerbated by, his family violence. The evidence of Ms O and Dr C suggest that the mother’s mental health issues are attributable, or at least primarily attributable, to the father’s family violence. Even if the mother’s mental health vulnerabilities pre-existed the relationship, which seemed to be an important aspect of the father’s case, given an adverse finding of family violence it is both logical and plausible to infer that any pre-existing condition was exacerbated, at the very least, by that family violence.
59.In cross-examination Dr D acknowledged that sometimes it may take some time for a parent who has been subjected to verbal abuse and control to re-establish their competence as a parent. This was especially so in the present case where the mother has been living in the shadow of these proceedings and has had to deal with the father perhaps in a way that she has found inherently coercive in itself. The Court agrees. There is no doubt that the mother did experience these proceedings as coercive and controlling.
(Emphasis added)
Ultimately his Honour concluded at [113]:
113.This is a finely balanced case. [The child] will have a meaningful relationship with both of his parents whatever order the Court makes. There has been family violence perpetrated by the father against the mother which manifested itself at least as verbal abuse and control, to which [the child] has been exposed by way of the impact the family violence has had on the mother’s mental health. There is otherwise no risk of harm to [the child] arising from his mother’s mental health. The Court also finds there is no unmanageable risk of harm to [the child] arising from the COVID-19 pandemic. [The child’s] views are not determinative in this case. He has a good relationship with both his mother and father. His mother has been his primary carer. He has lived with her for most of his life, whilst spending substantial and significant time with his father. [The child] has important relationships with his closest friend Y who is in City A, Y’s mother Ms H who is his mother’s partner, and both the maternal and paternal grandparents. These are relationships that will be better maintained if he lives in City A. The Court finds [the child] to be a resilient child. He has experienced significant change in his recent life. A return to City A is yet another change for him, but it is a return to a familiar environment where he lived for a good part of his life. [The child] will cope better if he lives with his mother, rather than with his father, in terms of his relationship with the parent with whom he does not live. There are no insurmountable issues of practical difficulty and expense of [the child] spending time with his father, should he live in City A with his mother. The Court is not concerned about the capacity of either parent to meet all of [the child’s] needs. The current conflict has adversely affected [the child] and it is essential that this litigation be brought to an end, from his perspective. There are concerns about the attitudes of each parent towards [the child], and to the responsibilities of parenthood. On balance, the Court has greater concerns in relation to the father, than the mother. The Court has no concerns that the mother will facilitate and encourage [the child’s] relationship with his father, should he be allowed to relocate with her to City A. On balance, the Court considers that it is in the best interests of [the child] that he continue to live with his mother, and that he be allowed to relocate with her to City A.
(Emphasis added)
The obligation to give adequate reasons is uncontroversial. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
However it is not necessary that the primary judge “mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at [41]).
The primary judge’s reasons here satisfy those requirements. Central to his Honour being satisfied that the father had perpetrated family violence, were the father’s admissions to third parties of having done so, and his rejection of the “placating” explanation needs no more than to be stated to be adequately explained, as put simply, the statements to third parties could not possibly placate the mother.
Before us, senior counsel for the father suggested that it was incumbent upon the primary judge to explain why the father’s case about the mother’s inconsistent reporting of family violence was rejected. However, it is plain from [55] that it was not wholly rejected, but that challenge simply could not undermine the father’s own admissions of family violence. Even if the primary judge had substantially discounted the mother’s claims, the father’s admissions would remain unscathed. This aspect of Ground 1 is without merit.
As to the “nexus” between the family violence and the mother’s mental health, his Honour’s reasoning is quite clear, and certainly adequate. That the father’s admitted coercive and controlling conduct at least exacerbated the mother’s pre-existing vulnerabilities, needs no more explanation than the primary judge gave at [58], and the reasoning behind the prognosis for her recovery in City A at [49] is more than sufficient.
Ground 1 fails.
Ground 2
Ground 2 is as follows:
2. On the issue of the mother’s mental health:
2.1.His Honour failed to take into account relevant considerations as to the mother’s historic mental health difficulties, and give any or adequate weight to this history and Dr D’s concerns that it may indicate deeper personality vulnerabilities rather than being a situational consequence of the mother being in Australia;
2.2.The inadequacy of weight identified above was such that it infected the reasoning process including as to the risk the mother’s mental health presented to the child; and
2.3.His Honour failed to take into account relevant considerations in weighing the risk of [the child] returning to [the] United States if his mother did not recover, noting Dr D’s concerns if the mother’s relationship with Ms H did not meet expectations and the impact this would have on the mother’s parenting capacity and her willingness to support [the child’s] relationship with his father; and
2.4.His Honour impermissibly elevated the needs of the mother above the needs of the child in the importance of having [the child] with her to, in effect, speed up her possible recovery.
Two things will be immediately appreciated about this ground. The first is that it traverses many of the matters already raised under Ground 1; the second is that it challenges the weight given to various parts of the evidence by the primary judge. As to the latter, it is well established that such challenges face a very high bar (CDJ v VAJ (1998) 197 CLR 172).
To the extent Ground 2.1 asserts a failure to take into account the mother’s historic mental health difficulties, it must fail given the express reference to those at [45] and [49]. Otherwise, it must also fail, as the weight to give that history and Dr D’s concerns (which were not elevated beyond a concern) were quintessentially matters for the primary judge.
Ground 2.2 all but ignores [49] of the primary judge’s reasons, and really is just the weight argument of Ground 2.1 restated.
To the extent Ground 2.3 asserts a failure to take relevant considerations as to risk to the child into account, again it must founder on [49], where his Honour expressly addressed those very risks.
As to Ground 2.4, it is premised upon a misconstruction of what the primary judge did. Particularly his Honour was advertent to the prospect of risk to the child in City A, but found it “manageable” (at [50]). That is the central conclusion in the case. That the trajectory of the mother’s recovery might be better with the child living with her there was recognised, but was incidental, and certainly not determinative.
Ground 2 fails entirely.
Ground 3
This ground contends:
3.His Honour gave no, or inadequate, reasons, for rejecting the father’s case in respect of the mother’s credit, and failed to give any, or sufficient weight to the credibility of the mother, particularly in respect of her family violence claims and in making findings as to whether or not the mother would support [the child’s] relationship with his father from the United States.
Again this ground revisits much of what we have already discussed in Ground 1, and where we explained why the critical evidence of family violence was the father’s own admissions. Turning to the specific complaint that there was an inadequate exposure of reasons for concluding that the mother would support the father’s relationship with the child if living with her in the USA, the following are relevant:
68.This consideration is not determinative and is, in any event, subsumed under issues of parental attitudes. The Court observes that if there were missed opportunities, or exclusions from joint decision-making, in the overall context of this case they make little difference to the outcome. The father’s contention that the mother played the role of gatekeeper in relation to [the child’s] time with his father is, firstly, hardly surprising given their relationship and the circumstances of their separation and, secondly, did not extend for any significant period of time given how quickly the proceedings were commenced and came before the Court.
…
77.At one point in his evidence Dr D spoke of the risk that the mother, who had hitherto been consistently supporting the relationship between father and son, would cease to do so on return to City A. Ultimately he agreed that this was mere speculation and that it was equally likely that on return to City A the mother would support the relationship even more. In any event the Court cannot discern from the evidence any suggestion that a return to City A somehow increases the risk of diminished maternal support for the paternal relationship.
…
91.This was an issue in this case. Concerns arising from the mother’s mental health have already been addressed in the context of risk of harm above. The nature of [the child’s] relationship with both parents has been explored. The Court accepts that there is an issue about the mother’s ability to meet [the child’s] emotional needs. The Court is satisfied from the evidence, however, that the mother’s capacity in this regard is likely to improve if she can return to City A with him. It must be remembered that the mother is no stranger to sole-parenting [the child] even during times when she suffered from mental health issues that were known to the father before they relocated to Australia. She cared for [the child] alone when the father was in Australia and she was in City A. She did so during his frequent work-related travels before separation. Implicit in the father’s proposals for time with the mother is an acceptance that she has the requisite capacity to meet his needs, even during extended periods overseas.
…
103.Both parents can be relied upon to follow Court orders. Indeed, the mother has gone beyond the orders to provide further contact and communication with the father. This reflects positively on both their attitudes towards [the child], and to their responsibilities as parents.
…
105.It was a part of the father’s case that the mother would not do so if she were allowed to return to City A. He submitted that, for example, a close examination of the mother’s conduct, both in terms of actions and omissions, would raise concerns about the priority that she places on the father’s relationship with [the child]. The Court accepts that there are multiple examples from the evidence of the mother expressing her antipathy towards the father, but this conduct cannot be examined or understood otherwise than in the context of her experience of the family violence perpetrated by the father. The Court has found that the mother was the victim of family violence perpetrated by the father, in the form of abusive and controlling behaviour. The focus needs to be on the mother’s actions, rather than the attitudes that she held about the father. In this regard, an objective review of the evidence demonstrates that at all relevant times the mother did support the relationship between [the child] and his father. She complied with all orders in relation to time and communication, and then during the 2021 COVID-19 lockdown she agreed to extend this time, notwithstanding her antipathy towards the father. It must be remembered that there is no evidence in this case to suggest that any antipathy the mother felt towards the father was manifested in the presence of [the child], or that he somehow assimilated his mother’s feelings, or that he said or did anything to suggest that this was the case. Indeed, in evidence were the notes prepared by Dr C during the mother’s consultations with her. These notes clearly indicate that the mother was able to hold together two seemingly inconsistent notions: on the one hand, her anger towards the father, and on the other, a clear recognition of the importance to [the child] of the relationship with his father. That the mother was able to achieve this reflects very positively on her insight into the difference between her need to be totally independent from the father, and [the child’s] needs to have the father meaningfully involved in his life.
106.In Dr D’ first report he had few reservations about the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between [the child] and his father. In his second report, he sounds a cautionary note on page 16. Dr D was clearly concerned about the possibility that the mother’s expectations of her relationship with Ms H might not be realised. If this were the case, he thought it would have an unpredictable effect on her mental state, sense of autonomy, parenting capacity, and ultimately on her attitude towards [the child’s] relationship with his father. The Court of course has had the benefit of hearing evidence from both the mother and Ms H about their relationship, and their life plans. The Court is satisfied that they have both carefully considered the future of their relationship, as well as the consequential effect of this on both of their respective children, [the child] and Y. Their collective child-focus was palpable, as was their love and affection for each other. The Court therefore does not accept that the concern identified by Dr D creates any basis for lesser confidence in the mother’s ability to facilitate and encourage a close and continuing relationship between [the child] and his father.
(Emphasis added)
Later at [113] (recited at [20] above) the primary judge concluded that “[t]he Court has no concerns that the mother will facilitate and encourage [the child’s] relationship with his father, should he be allowed to relocate with her to City A”. The paragraphs which precede that which we have recited above, provide an ample exposure of the reasoning supporting that conclusion.
Ground 3 fails.
Ground 4
Ground 4 is set out in the Notice of Appeal as follows:
4.In respect of his task of assessing the parties’ competing proposals, His Honour failed to provide any or adequate reasons and failed to take into account relevant facts when assessing:
4.1.Whether or not the mother would support [the child’s] relationship with the father;
4.2.The mother’s relocation plan, specifically in finding that it was “well-considered” or well thought out; and
4.3.The impact of change on [the child] of the move to City A.
Ground 4.1 appears to essentially be a repetition of one part of Ground 3, and fails for similar reasons. Ground 4.2 ignores that the mother and child had lived for many years in the very area of City A she proposed they return to. True it is that the mother would now be in a new relationship there, and she and the child would live in a different house and household, but otherwise it was a return to a well-known place and regime. His Honour’s exposure of reasoning was adequate, and no relevant facts were ignored.
As to Ground 4.3, what we have just said in relation to Ground 4.2 is relevant. More, to the extent that there was a change, in that the father would not then be living there too, that had been the situation prior to the mother and child moving to Australia. In any event, the primary judge considered the likely effect on the child of returning to City A at [73], [75] and [76] as follows:
73.The evidence indicates that [the child] would miss his father if he lives with his mother in City A, and would miss his mother if he lives with his father in Sydney. He has a close and important relationship with both parents. The fact is, however, that [the child] has lived with his mother all of his life, whilst having the benefit of his father’s substantial involvement in his life. [The child] has never lived away from his mother for extended periods of time. [The child] has never lived with his father for extended periods of time other than during school holiday periods. From this perspective, much more change will be experienced by [the child] if he cannot return to City A with his mother. Indeed, Dr D spoke of [the child] experiencing a possible sense of abandonment that will not necessarily go away with maturity if his mother returns to City A without him. This would be a most unwelcome change from his perspective. Given the emotional burden that [the child] currently carries, it is possible that Dr D’s fears are more than a mere possibility.
…
75.It is more likely than not that for [the child], he is returning to a familiar environment in City A, his hometown. It was common ground between the parents that he will return to school where he previously attended. It is inevitable that after two years, there will have been changes. Nonetheless, his best friend Y will still be there, as will his mother and Ms H.
76.Of course, there will be less change in one sense if he remains in Sydney. He will remain close to his father, and remain at school where he has attended since arriving in Australia. The one certainty is that his mother will not be present. This is the biggest change in his circumstances, and which indicates that City A is the better option.
That exposure of his Honour’s reasoning is adequate, and all relevant matters have been considered, including that the child had been attending the same school since arriving in Australia.
Ground 4 fails entirely.
OUTCOME
No ground of appeal is established and the appeal should be dismissed.
COSTS
In the event the appeal failed, senior counsel for the father conceded costs ought to follow the event. We fix the mother’s costs, including costs thrown away when the father’s previous senior counsel’s unavailability for medical reasons meant the appeal was adjourned on 28 February 2022, at $40,000.
The father should also pay the ICL’s costs, including costs thrown away, as claimed in the sum of $10,962.
Both amounts should be paid within 28 days.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Tree & Strum. Associate:
Dated: 24 March 2022
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