Ardagh & Ardagh (No. 2) - [2018] FamCAFC 160

FAMILY COURT OF AUSTRALIA

ARDAGH & ARDAGH (NO. 2)

[2018] FamCAFC 160

FAMILY LAW – APPEAL – PARENTING – Where the primary judge allowed the mother’s application for relocation – Where the primary judge allowed the mother’s application to remove the child from the watch list and allow travel with the child to Japan – Whether her Honour erred in her approach to the competing proposals – Whether her Honour gave sufficient reasons – Whether her Honour gave sufficient weight to the evidence – Where her Honour’s order was supported by the evidence – No appealable error established – Where the appellant was ordered to pay the respondent’s costs.

Family Law Act 1975 (Cth)

Hague Convention on the Civil Aspects of International Child Abduction
Vienna Convention on the Law of Treaties

D & D (Costs) (No. 2) (2010) FLC 93-435; [2010] FamCAFC 64
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40

APPELLANT:

Mr Ardagh

RESPONDENT:

Ms Ardagh

FILE NUMBER:

BRC

1708

2017

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

17 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ainslie-Wallace & Baumann JJ

HEARING DATE:

31 July 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

12 December 2017

LOWER COURT MNC:

[2017] FCCA 3312

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Brasch QC

SOLICITOR FOR THE APPELLANT:

Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McGregor

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

Orders

The appeal be dismissed.
The appellant father pay the respondent mother’s costs of the appeal fixed in the sum of $4,200 within twenty eight days of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ardagh & Ardagh (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NOA 5 of 2018
File Number: BRC 1708 of 2017

Mr Ardagh

Appellant

and

MsArdagh

Respondent

REASONS FOR JUDGMENT

On 12 December 2017 Judge Cassidy made orders determining competing parenting applications between Ms Ardagh (“the mother”) and Mr Ardagh (“the father”) concerning the parties’ only child, G who was born in 2014 (“the child”).
The mother sought orders, inter alia, that she be allowed to relocate from Central Queensland to Far North Queensland with the child and that the child be removed from the airport watch list with the intention that she be allowed to travel with the child to Japan. The father opposed these orders seeking instead that the mother and child remain living in Central Queensland.
In summary the primary judge ordered that the parties have equal shared parental responsibility of the child, that the mother be allowed to relocate to Far North Queensland with the child, and provided a regime by which the child would spend time with the father whilst the father lived in Central Queensland, and a different regime should he move to live in Far North Queensland. An order was also made that the mother be permitted to travel with the child to Japan.
The father appealed those orders.
The thrust of the appeal challenged her Honour’s consideration of the issue of relocating the child’s residence to Far North Queensland from Central Queensland. It was contended that her Honour failed to give reasons for her conclusion and, further that she failed properly to consider the competing proposals of the parties on the question of relocation (Grounds 1 and 6). At the hearing of the appeal the father also sought to complain that the primary judge had failed to give any reasons for the orders made for the child spending time with the father if he did not move to Far North Queensland (Ground 1).
However, before we turn to the essence of the appeal, we may usefully and shortly deal with the balance of the appeal which fell into three parts. The first challenges the opinion and recommendations of the family report writer (Grounds 4(a) and 5), the second contends that the presiding judge erred in failing to mention the evidence of a witness and the third contends that her Honour erred in her decision to permit the mother to travel to Japan with the child in circumstances where such an order was not in the best interests of the child and exposed the child to a real risk that the mother would not return with him to Australia.

Challenge to the opinions of the Family Report writer

Ground 4(a) contends that the presiding judge gave decisive weight to the opinion and recommendations of the family report writer in circumstances where the opinion was based on “speculation, then conjecture”. Ground 5 argues that the presiding judge ought to have rejected the recommendations of the report writer on the basis that there was no evidence to support the writer’s views or conclusions.
During the trial the submission was made to the primary judge that she ought not rely on the family report because, as her Honour records, it was asserted that, the opinions rested on assumptions that had not been established by the evidence.
Her Honour, after correctly responding that it was for the court to determine what facts are proved by the evidence, said this:
66. The report has significant value in the observations of the parents with the child and the expert evidence about the developmental needs of a child of [G’s] age, and significant evidence of the interviews with the parties. To that extent, it is of a great deal of assistance.
There was no dispute that in the report the author identified six issues of significance relevant to the issue of relocation. Her Honour by reference to each of those issues, and in response to the submissions of counsel for the father, explained the relevant factual matrix. For example her Honour noted:
68. In counsel’s submissions, the first [issue] identified is:
The imbalance of power between the parents, the possibility
Mr Ardagh has misused this, and the impact of this on Ms Ardagh’s ability to co-parent with the father.
69. The submission of the [father] is that:
It is conjecture and it is built on speculation. The question of imbalance of power cannot be answered unless there is some evidence that there has been a misuse.
70. I have made findings in relation to the imbalance of power based on the evidence before me of the recorded conversation in 2016 that, in my view, exemplifies a troubling imbalance of power.
In respect of another identified issue, the emotional well-being of the mother, the primary judge acknowledged that there was no evidence on the point and she would thus make no findings in that regard.
The summary of argument on this point (and we note that counsel who appeared on the appeal made no further submission in support of this challenge) contended, incorrectly, that the primary judge gave “decisive weight to the report and opinions” of the report author. Clearly her Honour did not, as her reasons demonstrate. She did take into account the matters on which the report writer had expertise such as the developmental needs of the child, her observations of the child with the parties and evidence of what the parties said to her in the interviews. Her Honour’s approach to the opinions and issues identified by the report author was, in our view, entirely orthodox, and no error is established. Her Honour was entitled to rely on the expertise of the report author as she did.
There is no substance to the challenge based on the primary judge’s treatment of the family report.

The evidence of the paternal grandmother

It was contended that the primary judge erred in that she made no mention in her reasons of the evidence of the paternal grandmother, Ms P Ardagh (Ground 2).
Ms P Ardagh’s evidence went to her observations of the child while in his father’s care after separation and of her observations when she visited the parties during the marriage. After the parties separated, Ms P Ardagh visited the father on seven occasions and she gave evidence of what she observed during that time. She further said that just after the child’s birth she spent three months with the parties helping out with the new baby. She gave no evidence as to whether or when or with what frequency she would visit the child if the mother moved to live in Far North Queensland.
Despite it not being the subject of the ground of appeal, it was argued that her Honour erred in failing to take into account what was said to be a relationship of importance between the child and his paternal grandmother in determining the issue of relocation. Further, and this was the subject of the ground, that the primary judge in concluding that the mother had a better understanding of the child’s needs than the father, failed to take into account the paternal grandmother’s observations.
These challenges devolve to challenges to the weight or importance given to evidence. That determination is quintessentially a matter for the primary judge and the bar to appellate intervention is high indeed (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513).
Given the lacuna in the witness’s evidence, that is, there being no indication of whether she proposed to continue to spend time with the child wherever he lived, or potently that if the child moved to Far North Queensland she would not be able to see him, we do not see what value her evidence was to the primary judge. Further, without needing to refer to this witness’s evidence, her Honour was satisfied that the father was quite capable of caring for the child, and indeed that was not put in issue by the mother. Thus no error has been established.

The child’s travel to Japan

The child’s mother is from Japan, but a permanent resident of Australia. Amongst other orders, she sought to be able to take the child to Japan to visit his maternal family living there. Significantly, there had been three previous visits to Japan, on two of those visits both parents went, and on the most recent visit, in May 2016, the mother alone took the child with her (and returned).
The father opposes any travel by the mother and the child to Japan, expressing himself to be “terrified” that she will not return to Australia with the child. There is no issue of the mother being ordered to provide a monetary bond to secure her return because she is impecunious.
It needs to be understood that Japan has been a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) since 2014 and its obligations under the Hague Convention commenced on 1 April 2014. The Hague Convention provides a cooperative mechanism by which signatory countries facilitate the return of children wrongfully removed from other signatory countries.
Each party to the Hague Convention is bound to perform the obligations imposed on it in good faith (“pacta sunt servanda”) (Art 26, Vienna Convention on the Law of Treaties).
It was agreed that while a submission was made to the primary judge that Japan would not honour its obligations, there was no evidentiary basis for that submission. Her Honour concluded in respect of the child’s travel to Japan that it was an appropriate order to make and she observed at [84] that Japan is a “Hague Convention country”.
By application in an appeal to adduce further evidence, the father sought to make good the claim that Japan would not, in the event that the mother took the child to Japan and declined to return him, honour its obligations, by seeking to rely on part of the annual report prepared in April 2018 by the United States of America Department of State on the operation of the Hague Convention. Part of the report addressed “Countries Demonstrating a Pattern of Non-Compliance” one of which identified by the Department of State was Japan. The report while noting that there had been “measureable progress on international parental child abduction[s]” to Japan since becoming bound by the Hague Convention, the report goes on to criticise the lack of “effective means to enforce the order [for return]”.
This document if admitted was said by counsel for the father to add evidentiary support to his expressed fear that if the mother took the child to Japan she would not return him.
We do not propose to admit the document as evidence even had it been properly proved so as to be admitted. First, and obviously, the document addresses itself to issues as between Japan and the United States of America and cannot speak to Japan’s compliance with its obligations in respect of any other country. Nor does the document address whether there was some systemic or perhaps principled reason why enforcement of orders for return to the United States of America were difficult. It has no forensic value at all in a determination of the question of whether the child would be returned if the mother took him to Country W and refused to return him.
In our view, it would be an affront to Japan as a signatory to the Hague Convention to give any credence to the father’s expressed fear whether supported by the Department of State document or at all.
The application to adduce further evidence will be dismissed and the ground to which it relates is not made out.

The relocation of the child to Far North Queensland

We turn then to the central issue in the appeal, namely the primary judge’s decision to permit the mother to relocate the child’s residence to Far North Queensland.
It is helpful to give some factual context to the discussion of these grounds. None of the primary judge’s findings of fact was challenged on the appeal and we take this background from her Honour’s reasons.
The parties commenced to live together in October 2011 and married in October 2013. The child was born in October 2014. They separated in October 2016. For the preponderance of their relationship, the parties lived in Far North Queensland where the father was working. In about July 2016 they moved to live in Central Queensland. The mother said, and the primary judge found that the mother felt that she had no choice but to move and, indeed, the primary judge found that there was an imbalance of power in the relationship and the father misused his power in pressuring the mother to move to Central Queensland [35]. As a result, the parties separated shortly after the move and, after spending some time with the child, the father refused to return him to the mother’s care, keeping him for some two months. Eventually orders were made that the child live with the mother and spend time with each parent on a week about basis. That arrangement was in place at the date of the hearing before the primary judge.
The primary judge found that while the parties were living in Far North Queensland, the child was principally cared for by the mother, and that after the move to Central Queensland, following which the father ceased working, the father was actively involved in the care of the child [17].
Her Honour noted that the child has a warm and affectionate relationship with both parents, and has a secure attachment to each of them [89] and [99]. However, she found that the mother had a better understanding of the child’s developmental needs and had demonstrated this to be the case over time [94].
Her Honour found no basis to rebut the presumption of equal shared parental responsibility and turned then to a consideration of the time to be spent by the child with the parties. She concluded that equal time was not in the child’s best interests. She earlier recorded the view of the family report author that despite the child’s attachment to each party, an equal time arrangement was not optimal for a child of his age [88]. She further found that the parties were unable to communicate effectively about the child’s day to day circumstances [57], and this lack of capacity to communicate caused her to conclude that equal time was not in the child’s best interests. Further, she noted that in any event, if the mother was permitted to move to Far North Queensland, such time would not be reasonably practicable.
Her Honour concluded that the time that the mother proposed would take place if she was permitted to move to Far North Queensland, amounted to substantial and significant time but would only be reasonably practicable if the father was living close to the child.
Thus, against these earlier findings, the primary judge found that it was in the child’s best interests to live with the mother in Far North Queensland because it would allow her to be in a place where she has friends, a Japanese community and access to work opportunities [113]. The primary judge had earlier noted that the mother’s friends had provided her with financial support [47]. Her Honour also took into account that the mother is best able to assist the child in learning about his Japanese heritage and for that reason it is in the child’s best interests to live with her. She concluded that the mother’s parenting capacity was “marginally” better than that of the father and, finally, expressed concerns about the father’s attitude towards the mother as evidenced by a conversation had with her, recorded by the father, and which was in evidence before her Honour [113].
We turn then to the challenges to the orders.
It is contended that the primary judge failed properly to assess the parties’ competing proposals and gave no reasons for her determination that the child’s best interests required that he live with his mother in Far North Queensland.
The mother’s proposal was that she should be permitted to relocate the child’s residence to Far North Queensland and she proposed two regimes of time for the child to spend with the father, depending on whether he continued to live in Central Queensland or moved to Far North Queensland. The father’s proposal was that the mother and child should continue to live in Central Queensland and that the child should spend time with the parents week about. He advanced no proposal about the time the child would spend with him in the event that the child was living in Far North Queensland.
It was argued that in considering the relative merits of living in Far North Queensland as opposed to Central Queensland, the primary judge failed to take into account the unchallenged evidence of the benefits of living in Central Queensland. We reject that argument, the submission mischaracterising her Honour’s reasoning.
The reasons of the primary judge make it plain that she considered the child’s best interests to be served by living with the mother, that having been determined, her Honour considered where that would be and concluded that it would be in Far North Queensland.
We therefore reject the arguments both that the primary judge failed to consider the parties’ respective proposals in concluding that the mother should be permitted to relocate to Far North Queensland as we do the argument that her Honour gave insufficient reasons for that finding.
As to the other issue raised by the father, namely the alleged lack of reasons for the orders providing for the time the child is to spend with the father if the father does not move to Far North Queensland, we also reject that submission and find no error by the primary judge.
Once her Honour determined that it was in the best interests of the child to relocate to Far North Queensland, her Honour was required to turn her mind to the time the child should spend with the father. That was a relatively easy task if the father were to move to Far North Queensland, and no challenge is made to those orders. However, if the father remained in Central Queensland, then her Honour was left to do the best that she could on the evidence before the court, given that the father put no proposal to the court as to what time should be ordered in that event. There is no doubt that the child had a good relationship with the father, and that it was in the child’s best interest to enjoy a meaningful relationship with the father, but her Honour could do little else than make the order she did in the circumstances. Accordingly this complaint also fails.

Conclusion

Given that no ground of appeal has succeeded, the appeal must be dismissed.

Costs

The mother sought an order for costs against the father in the event that the appeal failed. The mother is in part time work but qualified for representation by legal aid. Costs in the sum of $4,200 were sought.
It was submitted by the father that he was unemployed, his legal fees were being met by his family, and he had no means to pay an order for costs.
In this case, the appeal was wholly unsuccessful and, the impecuniosity of the father is no barrier to an order for costs (D & D (Costs) (No. 2) (2010) FLC 93-435). Accordingly, the father should pay the mother’s costs in the sum sought.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie‑Wallace & Baumann JJ) delivered on 17 August 2018.

Associate:

Date: 17 August 2018