Asher v Wilkinson

[2020] FamCAFC 44

FAMILY COURT OF AUSTRALIA

ASHER & WILKINSON [2020] FamCAFC 44

FAMILY LAW – APPEAL – PARENTING – Relocation – Competing proposals – Where the mother and the child were ordered to live in Western Australia and geographical restrictions were imposed on where they could live in Western Australia – Where the primary judge erred by concentrating on what his Honour perceived to be the practicalities of where the parents should reside and not on the parties’ competing proposals – Discussion of the Jones v Dunkel (1959) 101 CLR 298 inference – Where the mother’s fall-back position was incorrectly elevated to a proposal – Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – No order as to costs – Costs certificates granted to each of the parties for the appeal and the rehearing of the matter.

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Lee v Lee (2019) 372 ALR 383; [2019] HCA 28
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sampson and Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
U v U (2002) 211 CLR 238; [2002] HCA 36
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT: Ms Asher

RESPONDENT: Mr Wilkinson

FILE NUMBER: PTW 4950 of 2016

APPEAL NUMBER: WEA 8 of 2019

DATE DELIVERED: 5 March 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Perth

JUDGMENT OF: Strickland, Ainslie-Wallace & Aldridge JJ

HEARING DATE: 17 October 2019

LOWER COURT JURISDICTION: Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

7 February 2019 – reasons for judgment

20 February 2019 – orders

LOWER COURT MNC: [2019] FCWA 20

REPRESENTATION

THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Bannerman

SOLICITOR FOR THE RESPONDENT: Bannerman Solicitors

Orders

1. The appeal be allowed.

2. The orders made on 20 February 2019 be set aside on and from the next occasion on which this matter is before the Family Court of Western Australia.

3. The matter be remitted to the Family Court of Western Australia for rehearing before a judge other than the primary judge.

4. There be no order as to costs.

5. The Court grants to the appellant mother 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 of the costs incurred by the appellant mother in relation to the appeal.

6. The Court grants to the respondent father 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 of the costs incurred by the respondent father in relation to the appeal.

7. The Court grants to each of the parties a costs certificate pursuant to 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 of the parties in respect of the costs incurred by them in relation to the rehearing ordered.

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 Asher & Wilkinson 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 PERTH

Appeal Number: WEA 8 of 2019
File Number: PTW 4950 of 2016

Ms Asher

Appellant

And

Mr Wilkinson

Respondent

REASONS FOR JUDGMENT

1. This appeal concerns the parenting arrangements for X, born in 2015 (“the child”).

2. At the hearing before the primary judge, Ms Asher (“the mother”) primarily sought orders that the child live with her in South Australia. For his part, Mr Wilkinson (“the father”) proposed that the child live within a 200 kilometre radius of his home in Town C, a town approximately 200 kilometres from Perth, Western Australia. The father’s primary position was that the child should live with the mother, but if the mother chose not to return to Western Australia, then the child should live with the father.

3. The parties were agreed that wherever the child lived he should spend reasonable time with the other parent.

4. The primary judge accepted the father’s contentions that the best interests of the child required the child to live with the mother in Western Australia. His Honour ordered the mother to “cause the child’s principal place of residence to be within the Perth Metropolitan Area, no further south than [Suburb B] …” (Order 3 made on 20 February 2019).

5. The practical effect of the orders made by the primary judge on 20 February 2019 was to require the mother to return from South Australia to Western Australia and live within a quite limited area of northern Perth or in a rural location.

6. The mother appeals against these orders. The father opposes the appeal.

7. In order to understand the appeal it is necessary to set out the relevant factual context.

Background

1. The parties began their relationship in Western Australia in 2008.

2. In 2012, the father purchased a property in Town C. The parties’ plan was to eventually build a house on the Town C property. Initially, the father lived in a caravan on the property and the mother lived in rental accommodation in nearby Suburb E, and then lived with the father’s aunt and uncle in Suburb F, also nearby.

3. Difficulties in the relationship arose in early 2014 and the mother moved to the eastern states.

4. The parties reconciled in October 2014 and the mother moved to Town C to live with the father.

5. The parties’ child was born in 2015.

6. On 6 July 2016, the mother took the child to South Australia, despite telling the father that she was staying with a friend in Suburb H. On 8 July 2016, the mother told the father that the relationship was over and that she would not be returning to Western Australia.

7. The father filed an Initiating Application on 17 August 2016 seeking that the mother return the child to Western Australia. On 14 October 2016, orders were made for the father to spend three consecutive days per month with the child in South Australia.

8. The father’s first visit to South Australia did not go well because contrary to the wishes of the mother, the father brought his parents with him. Nonetheless, subsequent time was spent according to the orders made on 14 October 2016, seemingly without difficulty.

9. On 9 December 2016, the mother filed a Response to the father’s Initiating Application seeking orders that the child live with her in South Australia.

10. The mother and the child returned to Western Australia on 10 August 2017. The father’s case, which was substantially accepted by the primary judge, was that the mother’s move back to Western Australia was voluntary and part of a planned reconciliation. The mother said, however, that the move was the result of threats and coercion on the part of the father.

11. In any event, the mother and the child’s return to Western Australia was not successful, at least from the mother’s perspective. On 20 October 2017, the mother emailed the father confirming arrangements for the father to spend time with the child on 28 and 29 November 2017 (as recorded by the primary judge – the father’s evidence was that it was the 28 and 29 October 2017). The mother also told the father that the maternal grandmother was coming from South Australia to Western Australia on 24 October 2017 to spend a week with the child so he would be unavailable to spend time with the father.

12. On the same day, the mother attended a general practitioner and completed a Depression and Anxiety Stress Scale (“DASS”) self-assessment which indicated that she was suffering from severe depression and anxiety. The primary judge did not accept that the mother accurately completed the DASS assessment and found that she had been “likely motivated by a desire to gather or manufacture evidence to justify her actions after the event” (at [129]).

13. The maternal grandmother arrived in Western Australia on 21 October 2017 and helped the mother pack her belongings. On 23 October 2017, the mother, the child and the maternal grandmother returned to South Australia by car, without telling the father.

14. The parenting proceedings between the parties which had been put on hold because of the mother and the child’s return to Western Australia on 10 August 2017, were reactivated by the father on 27 October 2017 when he filed an urgent application seeking an order restraining the mother from removing the child from Western Australia.

15. On 17 November 2017, interim parenting orders were made for the child to spend time with the father, alternating between Western Australia and South Australia. Some, but not all of the travel costs, including the costs of airfares for the mother and the child returning to Western Australia, were to be borne by the father.

16. The final parenting hearing before the primary judge commenced on 24 July 2018 and ran for four days.

17. On 24 August 2018, the father sought to reopen the matter to give evidence of the difficulties that had arisen with the existing interim parenting orders. The father asserted that the mother refused to travel to Western Australia unless the father paid all her expenses associated with the trip. The mother had not travelled to Western Australia in August, and she would not be travelling in September 2018. The mother’s case was that she simply could not afford to do so. There was no issue that the mother’s only sources of income were Centrelink benefits and child support.

18. Nonetheless, the primary judge did not accept the mother’s explanation and pointed out that the mother had borrowed some $70,000 from relatives for the purpose of paying lawyers to represent her in the proceedings. His Honour was of the view that this money should have been spent on complying with the orders, but there was no evidence that the mother’s relatives were prepared to lend the mother funds for that purpose.

19. The father was successful in his application to reopen the matter. Both parties adduced further evidence and the hearing concluded on 10 October 2018.

20. The primary judge published his reasons for judgment on 7 February 2019 but no orders were made on that day. His Honour requested and received submissions from the parties as to the form of the orders, which were then made on 20 February 2019. No further reasons were given. We shall return to this aspect of the matter shortly.

The Appeal

1. The mother’s Summary of Argument filed on 9 July 2019 contained many submissions which ranged beyond the grounds of appeal outlined in her Notice of Appeal filed on 20 March 2019. At the appeal hearing, we indicated that we would have regard only to those submissions that fell within the grounds of appeal.

2. Applications in an Appeal were filed by both parties on 30 July 2019, 11 October 2019, 14 October 2019 and 15 October 2019 which, in the main, sought to adduce further evidence in the appeal but also sought some procedural orders. The proposed evidence was said to be relevant only if the appeal was allowed and this Court was to re-exercise the primary judge’s discretion. Ultimately, all parties agreed that there was no need to receive the evidence. The proposed procedural orders were of no moment or relevance and these applications were dismissed.

Grounds 1 and 4

1. Ground 1 is in the following terms:

   The [primary judge] having determined that the child’s best interests were met by remaining in the primary care of the mother, erred in determining that it was “easier and more practical for the mother to move to the Perth metropolitan area than it is for the father to move to South Australia” rather than a proper consideration of the competing primary proposals of the parties.

   (Notice of Appeal filed on 20 March 2019) (Emphasis removed)

2. It is convenient to deal with Ground 4 also at this stage. It states:

   The [primary judge] erred in failing to consider the current, and prospective arrangements for the child and whether they would be in the child’s best interests.

   (Notice of Appeal filed on 20 March 2019)

3. The primary judge recorded the parties’ proposals as follows:

   51.The father proposed that [the child] should return to live in Western Australia, to live with the mother within 200 km by road from [Town C]. It was only in the event that I made an order that [the child] live in Western Australia, but the mother declined to herself return, that he proposed that [the child] live primarily with him.

   52.The mother proposed that [the child] continue to live with her in South Australia. In the event that I order that [the child] live in Western Australia, she would return with him and continue as his primary carer. In those circumstances, she submits that she should be permitted to live with [the child] anywhere in the Perth metropolitan area.

4. Despite the suggestion made by the father that the child might live with him, his Honour’s reasons for judgment and, as far as we can see, the hearing before the primary judge proceeded on the basis that the child live with the mother.

5. At [90] the primary judge noted that the child “has been in the primary care of the mother since his birth, that he has a meaningful relationship with her, and that it is in his best interests for that relationship to continue”.

6. After finding that an order for equal shared parental responsibility was appropriate, the primary judge turned to the question of equal time, which his Honour found was not in the child’s best interests. The reasons given by the primary judge were:

   141.It is unnecessary to repeat the history of [the child’s] care arrangements since his birth. It is sufficient to note again that the mother has been [the child’s] primary carer since birth, and that even prior to separation the father’s parenting role was limited by circumstance. I emphasise that there is no criticism of the father implicit in that observation; prior to separation he was working hard both in his employment and in his efforts to improve the physical accommodation available for the parties at the [Town C] property. While the mother was critical of him in that regard, and of the involvement of his family and particularly his father in particular in work on the property, by the same token she was unhappy with the quality of the accommodation and both parties wanted it improved.

   142.The father’s proposals recognise that, at this stage at least, an arrangement for equal time would not be in [the child’s] best interests. In the circumstances of this case I do not consider it appropriate to, in effect, make a pre-emptive decision that a move to such an arrangement would be in [the child’s] best interests by the time he commences full-time schooling. Self-evidently, much can happen between now and then. Both parties, and [the child], will need to adjust to the arrangements for [the child’s] care which will result from these proceedings.

7. Again, the premise of these paragraphs is that the child’s best interests were served by him continuing to live with the mother.

8. After finding that the child should spend “very regular time with the father” (at [144]), the primary judge turned to how that might be best achieved. His Honour framed the issue in the following terms:

   146.That in turn leads to a consideration of what is in effect the central matter in issue between the parties – whether the mother should be required to return to Western Australia if she is to continue as the primary carer for [the child], and if so on what terms.

9. As the primary judge had already determined that the child should live with the mother, it is clear that the issue then considered by his Honour was whether the mother should be required to live in Western Australia (at [146]) or where she was “permitted” to live (at [52], [130] and [147]).

10. We pause here to observe that the task before the primary judge was to determine what parenting orders were in the child’s best interests. It was not to determine the location in which the mother was “permitted” to live. The use of that phrase in the context that it was used tends to focus on the mother having to justify to the Court where she wishes to live and obtain its approval. The use of that phrase obscures, if not overrides, the mother’s undoubted right to live where she chooses as explained in AMS v AIF (1999) 199 CLR 160 at [92] and [191] and U v U (2002) 211 CLR 238 (“U v U”) at [37], [137] and [176].

11. At [147]–[164] his Honour undertook the consideration of the question that he had identified at [146]. His Honour recorded that the mother was not working, was receiving Centrelink benefits and was currently studying part-time for a diploma. The primary judge added:

    147.… [The mother] went on to give evidence as to the difficulties she would anticipate in continuing those studies if required to return to live close to [Town C], while confirming her “fall-back position” seeking to be permitted to reside in the Perth metropolitan area if required to return to Western Australia, saying that would “at least allow [her] to continue [her] studies and afford [her] more employment opportunities.”

12. The mother’s acknowledgment that she had considered undertaking her studies in Western Australia was set out (at [148]). The mother’s previous employment was noted and a finding was made that she could seek such work in either Western Australia or South Australia (at [149]).

13. His Honour went on to reject the mother’s contention that her rent would be higher in Perth (at [150]).

14. It was the mother’s case that she gained valuable support from living with her mother in South Australia. At [152]–[154] his Honour placed little weight on the value of this relationship because he drew an adverse inference from the failure of the maternal grandmother to give evidence at the hearing. As we shall explain shortly, this was an erroneous approach.

15. The primary judge found that the mother’s aunt, who lived in South Australia, “will continue to provide the mother with support, as she does her other 14 nieces and nephews” (at [155]).

16. This led his Honour to conclude:

    158.I conclude that there is no significant difference between the mother’s capacity to provide for the practicalities of life in South Australia or the Perth metropolitan area. I conclude further that the family support available to the mother in South Australia is not a factor to which she attaches the level of importance she would assert.

    159.I do, however, draw a distinction between the prospect of the mother being required to reside in the Perth metropolitan area (which she describes as her “fall-back” position) and the prospect of her being required to live in close proximity to [Town C]. I accept that she would have little support available to her on the latter scenario, that she would not wish to live in that area, and that her prospects of completing her studies and subsequent employment would be adversely affected. I accept also that she would likely be very unhappy living in close proximity to [Town C], and that her unhappiness would likely adversely affect [the child].

17. The primary judge then moved to a discussion of the possibility of the father moving to South Australia and said:

    161.Under cross-examination, the father accepted that he could move to the Perth metropolitan area, or for that matter to South Australia, while saying it would be difficult for him to do so, and that he wishes to continue living in [Town C] and remain in his current employment.

    162.The mother acknowledged that the father has no friends or family in South Australia, and no connections of any nature there. She acknowledged also that her family who live there do not hold him in high regard, and that there would be no employment available for him in his current line of work in or around her current location. She maintained, however, that with his skills he could obtain employment of some nature.

    163.In my view, the totality of the evidence establishes that it is easier and more practical for the mother to move to the Perth metropolitan area than it is for the father to move to South Australia. The evidence also establishes that the medium and long-term prospects of the mother in the Perth metropolitan area are superior to the medium and long-term prospects of the father in South Australia, both in terms of employment and other opportunities, and in more general terms. The difficult nature of the [mother’s] relationship with her family over many years, dating back at least to the time when she left home permanently at the age of 15 or 16, and the fact that the mother chose to live in Western Australia prior to meeting the father also inform my view.

1. This led the primary judge to the conclusion that:

   164.Having concluded that it is in [the child’s] best interests to live primarily with the mother but to spend regular and frequent time physically with the father, I conclude that outcome is best achieved by the mother living with [the child] in the Perth metropolitan area. In reaching that conclusion, and those set out below, I have considered the matters set out in s 65DAA(5)…

2. The passage at [161] does not, in our opinion, completely deal with the father’s evidence.

3. When it was suggested to the father in cross-examination that he could move to South Australia, he said “[n]o reason I couldn’t” (Transcript 24 July 2018, p.128 line 50).

4. The cross-examination of the father continued:

   [COUNSEL FOR THE MOTHER]:  And you’ve just conceded to [h]is Honour that you could find employment somewhere else?

   [THE FATHER]:  Yes.

   [COUNSEL FOR THE MOTHER]:  And you’ve conceded to [h]is Honour that you could move somewhere else?

   [THE FATHER]:  Yes.

   [COUNSEL FOR THE MOTHER]:  And you can do these things, because you want to be with [the child]?

   [THE FATHER]:  Yes.

   [COUNSEL FOR THE MOTHER]:  And you want to be a part of [the child’s] life?

   [THE FATHER]:  Yes, that’s correct.

   (Transcript 24 July 2018, p.130 lines 15–25)

5. The father also agreed that Western Australia has been difficult for the mother and that South Australia was “easier” because “she’s developing a support network for herself and [the child]” (Transcript 24 July 2018, p.131 lines 1–9).

6. During the course of re-examination the following exchange took place between the primary judge and the father:

   HIS HONOUR:  Yes. So you can tell me whether I’ve got that right?

   [THE FATHER]:  Yes…

   [HIS HONOUR]:  I’m saying – my impression from your evidence yesterday - - -?

   [THE FATHER]:  Yes.

   [HIS HONOUR]: - - - was that you want to live where you’re living?

   [THE FATHER]:  That’s correct.

   [HIS HONOUR]:  You want to keep doing the work that you’re doing?

   [THE FATHER]:  Yes.

   [HIS HONOUR]:  But that if the only way you were going to be able to see [the child] more often - - -?

   [THE FATHER]:  ---Yes.

   [HIS HONOUR]:  - - - was to move to Perth with [the mother] moving to Perth, then that was something – it would be something that you would seriously consider doing?

   [THE FATHER]:  Yes. Yes, your Honour.

   [HIS HONOUR]:  But I didn’t form the impression that meant it would be just easy for you to just up stumps and do it?

   [THE FATHER]: No, it wouldn’t be easy, your Honour, but I definitely would consider it.

   [HIS HONOUR]:  All right.

   (Transcript 25 July 2018, p.22 lines 15–38)

   …

   HIS HONOUR:  Well, I didn’t put it any higher, again, than that, you know, you wouldn’t want to do that - - -?

   [THE FATHER]:  ---Yes.

   [HIS HONOUR]:  and it wouldn’t be easy for you but that my impression is that your answers were, well, spending as much time as you can with [the child] is your priority - - -?

   [THE FATHER]:  ---Yes.

   [HIS HONOUR]:  - - - and you have clear preferences as to how that should happen. If it doesn’t happen the way you want it to happen you would have to consider all other options as tough, though, that they might be for you?

   [THE FATHER]:  That’s correct.

   (Transcript 25 July 2018, p.23 lines 32–43)

7. Clearly, the father’s evidence taken as a whole, was that it would be inconvenient and “tough” for him to move and that he would prefer not to do so, however, he could if necessary.

8. The same might be said of the mother having to move to Western Australia. It is not clear to us why the “practicality” on which his Honour placed so much weight, clearly favoured the mother moving to Western Australia.

9. More importantly, this discussion was not a discussion of the two competing proposals before the Court. Save for the primary judge’s finding that his Honour had “no confidence in the mother’s willingness and capacity to genuinely support [the child’s] relationship with the father if permitted to remain living in South Australia” (at [130]), there is no discussion of what meaningful relationship could exist between the child and the father if the child was to live in South Australia, bearing in mind that such a relationship need not be optimal (McCall & Clark (2009) FLC 93-405 at [116]). This, of course, could be achieved by the father moving to South Australia or by regular visits by him. Whilst his Honour obliquely referred to the cost and expense of such visits (at [132]), this consideration was overtaken by a discussion of the practicalities as set out earlier.

10. In Sampson and Hartnett (No. 10) (2007) FLC 93-350 (“Sampson”), the majority (Bryant CJ and Warnick J) said:

    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.

    …

    78.Insufficient scrutiny was given to alternatives to enable the development of the father/children relationship. Insufficient scrutiny was given to the practicality of the mother living in Sydney.

11. Further in Sampson, the majority also said:

    53.      In D and SV (2003) FLC 93-137 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. Among other authorities, the court discussed passages from AMS (supra) and U v U (supra), including some of those quoted above.

    54.The Court said in D and SV (supra) (at p 78,280):

    16.It should be noted that her Honour did not give consideration at all to any alternative contact arrangements that could be made if the children moved to Drysdale. As early as 1976 in Craven v Craven (1976) FLC 90-049… in setting aside an order that restrained a mother from moving her children from Geelong to Queensland, the Full Court said at FLC 75,205…

    “Our concern in this case is that his Honour did not give adequate consideration to alternative forms of access which could have been arranged. In our view an order restricting the freedom of movement of the custodial parent should be made only if the welfare of the children clearly indicates that the other parent should have regular weekly access rather than less frequent but longer periods of access. In our view as children grow older there can be advantages in the latter form of access. In this case the children have been in regular contact with their father and we agree that it is desirable in the interests of the children that they maintain their relationship with their father. However, when alternatives are considered, there is no preponderance in favour of weekly access provided that it is practical and reasonable to arrange for less frequent but longer periods of access; e.g. 3 or 4 visits each year of one or two weeks duration.”

    17.Then, in AMS v AIF (1999) 199 CLR 160… Kirby J, when speaking of relocation within Australia, said at CLR 224…

    “192 …the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet the child’s welfare…”

    18.Recently in U v U… Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed, said… (emphasis added):

    “80. We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties … But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”

    …

    21.In our view it was as early as this point in her Honour’s reasons for judgment that her Honour fell into error. It was essential that her Honour give consideration to how the best interests of the children could be advanced in this case…

    (Citations omitted) (Emphasis in original)

12. It follows that we consider that the primary judge did not apply these principles because of the pre-occupation with the economic advantages and disadvantages of the mother living in Perth.

13. The difficulties that we have identified are compounded by what occurred after the delivery of the reasons for judgment.

14. At the hearings before the primary judge in both July 2018 and February 2019, the mother made submissions that she considered that it was in the best interests of the child to attend pre-school and to engage in extra-curricular activities. The mother’s evidence was that specific days needed to be set aside for that to occur and that the father’s time on those days had to be moulded around those activities.

15. The problem was that the father worked a four day roster, 65 kilometres from his home. This meant that he worked for four days and then he had four days off work, worked for four nights and again had four days off work. The inevitable consequence is that the days that the father was free to have the child spend time with him were different every week.

16. The father sought orders that would enable him to spend time with the child whenever he was not working. It was the father’s view that it was more important for the child to spend time with him than to go to pre-school or engage in any extra-curricular activities. If the child was to live in Western Australia, this would mean that on the days that the child was spending time with the father, the child would be precluded from attending pre-school or regular extra-curricular activities.

17. The mother submitted that this was not in the child’s best interests.

18. The primary judge said:

    165.The father presently works on a four day on, four day off roster … approximately 65 km away from his residence. The mother is not presently employed, and [the child] is presently too young for full-time school.

    166.The father’s proposals to spend time with [the child] in the event that the mother is living in the Perth metropolitan area are reflective of his work commitments, suggesting two blocks of three nights in a 16 day cycle until [the child] commences full-time schooling. The mother’s proposals are based on a fortnightly routine; no explanation was proffered for that arrangement to apply between now and when [the child] starts school, and it presents obvious difficulties given the nature of the father’s employment.

    167.Of course, I am not bound to simply choose between the competing proposals of the parties.

    168.Until [the child] commences full-time schooling, I regard it as being preferable that the routine for him to spend time with the father be reflective of the father’s work roster. Once [the child] commences full-time schooling, it will in my view be appropriate for the routine to be based around his school commitments, unless the father chooses to live sufficiently close to the mother to make it practical for him to take [the child] to and from school while in his care, and personally supervise him outside school hours.

19. There was no reference to the mother’s submissions in this regard. As we have already recorded, the primary judge heard submissions on the form of the orders to be made after the delivery of his reasons and then made the orders without giving further reasons. The effect of this is the primary judge was silent on this significant aspect of the case.

20. In Sampson at [84], the majority noted the “extreme nature of the orders effectively requiring the mother’s relocation” which “reinforced the need for close scrutiny of alternatives”. Here, there was no close scrutiny of either the father’s relationship being adequately maintained if the child was to live in South Australia or orders that would permit the child to see his father but also to engage in the ordinary activities for a child of his age.

21. These were practicalities that needed close attention but did not receive it. We are satisfied that the primary judge erred by concentrating on what he perceived to be the practicalities of where the parents should reside and not on the parties’ competing proposals.

22. It follows that we find merit in these grounds.

The Jones v Dunkel (1959) 101 CLR 298 inference

1. Above we referred to the primary judge’s finding that “the family support available to the mother in South Australia is not a factor to which she attaches the level of importance she would assert” (at [158]).

2. His Honour also said:

   152.The mother’s evidence was that her reason for staying in South Australia was the presence there of her mother in particular, and also her aunt and grandparents. As already noted, the maternal grandmother did not give evidence in circumstances which were not satisfactorily explained and when she was clearly available to do so. Given the centrality to the mother’s case of her asserted relationship with, and reliance upon, the maternal grandmother that failure to give evidence cannot sensibly be dismissed as likely arising from an oversight on the part of the mother or those advising her. I infer that the evidence of the maternal grandmother would not have assisted the mother’s case.

   153.That is particularly so in circumstances where there is clearly a history of significant difficulties in the relationship between the mother and the maternal grandmother.

3. As we have observed, the family support available to the mother in South Australia was a matter to which the primary judge gave very little weight. Clearly, this finding was primarily based on the failure of the maternal grandmother to give evidence at the hearing.

4. We consider that this inference was wrongly drawn by the primary judge. Although it was not raised as a ground of appeal by the mother, we cannot let it pass, particularly as the mother is acting in person and the appeal is being allowed on the grounds of appeal raised by the mother. In Warren v Coombes (1979) 142 CLR 531 at 552, Gibbs ACJ, Jacobs and Murphy JJA said:

   … [W]e can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process…

5. As we have recorded above, the mother returned to live in Western Australia on 10 August 2017 but left for South Australia again on 23 October 2017. It was not in dispute that the maternal grandmother flew to Western Australia to help the mother return to South Australia by car.

6. The primary judge also recorded:

   68.It subsequently emerged in cross-examination of the mother that the maternal grandmother had travelled with her and [the child], and was present in Perth for the duration of the trial.

7. In cross-examination, the father agreed that the mother had family support in South Australia (Transcript 24 July 2018, p.99 lines 43–44 and p.131 lines 7–9). Such support could only have come from the maternal grandmother and the mother’s aunt.

8. Despite this quite cogent evidence of active support for the mother and the child, his Honour found:

   70.The relevant legal principles in relation to that submission are most commonly traced to the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298. An inference favourable to one party, and grounded in the evidence, may be more confidently drawn when a person able to put a “true complexion on the facts relied on as the ground for the inference” has not been called as a witness by the other party, and the evidence provides no sufficient explanation of that absence. Similarly, evidence which might have been contradicted by such a witness can be accepted more readily if the witness is not called. The rule permits an inference not that evidence not called by a party would have been adverse to the party, but that it would not have assisted her: Kuhl v Zurich Financial Services Ltd (2011) 243 CLR 361 at [64].

   71.The rule cannot be applied to the non-calling of a witness unless that witness would be expected to be called by one party rather than another. That may occur, for example, where it would be “natural” for one party to produce the witness, where the witness would be expected to be available to one party rather than the other, or where he might be regarded as “in the camp” of one party, so as to make it unrealistic for the other party to call him: Payne v Parker [1976] 1 NSWLR 191 at 201-202. Clearly, those criteria are met in this case.

   72.The failure of the mother to call her mother as a witness in the circumstances already described, and where she was actively involved in the unilateral arrangements made for the mother’s second departure from Western Australia with [the child], was not satisfactorily explained and properly gives rise to the drawing of the suggested inference.

9. The inference drawn was that the evidence of the maternal grandmother “would not have assisted the mother’s case” (at [152]).

10. In Jones v Dunkel (1959) 101 CLR 298 at 312, Menzies J summarised the law as follows:

    In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant … as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.

11. Here, all the evidence pointed one way. There was no contrary case to consider or an inference unfavourable to the mother to be drawn. The undisputed evidence was that the maternal grandmother had supported the mother by twice travelling to Western Australia – once to help her return to South Australia and once to support her during the hearing. That evidence, and the evidence of the father acknowledging that support, could not be undone by any inference drawn by the failure of the mother to call the maternal grandmother.

12. Whilst the principle was correctly identified by the primary judge, it was erroneously applied.

Ground 2: Did the primary judge fail to give appropriate weight to the mother’s mental health history and the impact of that on the child?

1. The mother submitted that she has a long-standing history of depression and anxiety which was not given appropriate weight by the primary judge. The mother added that this history points to the mother’s need, in times of difficulty, to have the support of her family.

1. It is clear from his Honour’s reasons that no weight at all was given to any depression and anxiety that may have been suffered by the mother. This was because the primary judge did not accept the mother’s evidence on this issue and found that the evidence of her treating psychologist, Dr F, was of little assistance.

2. The role of an appellate Court in reviewing a primary judge’s findings of fact is constrained. In Lee v Lee (2019) 372 ALR 383, Bell, Gageler, Nettle and Edelman JJ said:

   55.A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”…

   (Footnotes omitted)

3. The mother’s evidence indicated that she had been anxious and depressed at many stages during her life. The father agreed that during the mother’s pregnancy and up to the time that she left Western Australia, she suffered from “general ongoing unhappiness” and “general ongoing depression” (Transcript 24 July 2018, p.99 lines 13–15).

4. On arrival in South Australia the mother consulted a general practitioner who referred her to Dr F. She consulted Dr F at least six times before returning to Western Australia.

5. The primary judge did not refer to all of this unchallenged evidence. However, it is well established that a trial judge need not refer to every piece of evidence called in a case (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).

6. On each occasion that the mother consulted Dr F she completed a DASS assessment. We shall return to those assessments shortly.

7. On 20 October 2017, three days before she left Western Australia, the mother consulted a general practitioner that she had never previously attended. The primary judge described the consultation in the following terms:

   122.… She said that she was “very keen to access psychology to get over this” but had financial constraints. She undertook a Depression Anxiety and Stress Scale (“DASS”) self-assessment and recorded “extremely severe” scores for depression and anxiety. The evidence established that the mother had undertaken DASS self-assessments previously. The evidence also established that the nature and wording of the questions put in the DASS are such as to make it a simple matter for a person undertaking the assessment to answer in such a way as to result in a desired score.

8. This led the primary judge to the following conclusions:

   128.While the tenor of the communications between the parties on 20 October 2017 was terse, the communications by the mother were clear, unemotional and controlled. She was, to put it colloquially, ‘dictating terms’ and was firm and unequivocal in her dismissal of proposals by the father with which she did not agree.

   129.I accept the evidence of the father as to the dealings between the parties in the period between the mother’s return to Western Australia on 10 August 2017 and her departure on 23 October 2017. To the extent the mother’s evidence was inconsistent with that of the father, I reject it. Specifically, I dismiss any suggestion that the mother’s actions in the period 20 to 26 October 2017 arose as a result of depression, stress or anxiety on her part. I find that, consistently with her earlier behaviour, she formulated a plan to leave Western Australia without the father’s knowledge, and took active steps to both avoid raising his suspicions, and ensure that he would not become aware of her plans until it was too late for him to take appropriate steps to stop her. I find further that her attendance on a new general practitioner on 20 October 2017 was likely motivated by a desire to gather or manufacture evidence to justify her actions after the event.

9. Dr F gave evidence of his consultations with the mother, largely in the form of an expansion of his notes taken during the consultations and including the results of the DASS assessments completed by the mother.

10. His Honour dealt with Dr F’s evidence in the following terms:

    86.The mother’s psychologist Dr [F] also gave evidence. Dr [F] first met with the mother on 10 November 2017, when she reported that she was in South Australia “to seek refuge from her experience of domestic violence in Western Australia”. He met with her on six occasions in November and December 2017, before receiving a letter from the father’s lawyers in January 2018 requesting specific information and copies of documents. That request enclosed an authority provided by the mother and dated 22 November 2017 in terms ordered on 17 November 2017. In response to that request, Dr [F] provided a report exhibited to his affidavit filed in the proceedings.

    87.Under cross-examination, Dr [F] acknowledged having liaised with the mother as to the proposed content of that report, including providing her with drafts for comment, prior to sending it. His explanation for doing so was unconvincing. He further became defensive when questioned regarding the content of his report and his expressed opinions. He had not been asked by the father’s lawyers to provide a report (other than to provide copies of any reports already in existence) but did so anyway, and included in that report details of a session at which the mother attended with [the child] and he was able to observe them together in a local playground. His explanation of the role of that session in the provision of therapy to the mother was unclear.

    88.In the course of Dr [F’s] evidence it became clear that he had not sought to challenge or question any of the factual history provided to him by the mother. He was unable or unwilling in the course of oral evidence to adjust the opinions he expressed when confronted with the inaccuracy of some of that reported history. Even acknowledging his role as a therapist for the mother, as distinct from an independent expert witness, his evidence lacked the degree of objectivity necessary to instil confidence in the acceptance of his expressed opinions. His evidence was accordingly of little assistance.

11. It follows that the primary judge was not satisfied that the mother was relevantly suffering from any depression or anxiety that needed to be taken into account.

12. The mother’s challenge, therefore, is in reality, a challenge to the primary fact finding of his Honour and not to the weight to be given to those facts. Thus, the mother’s challenge falls outside this ground of appeal.

13. Nonetheless, we can indicate that we ultimately see no appealable error in the primary judge’s approach. Whilst not all judges would have taken the leap to a finding that it was likely that the mother had “gather[ed]” or “manufacture[d]” her evidence as to depression and anxiety during October 2017 (at [129]), and we have some doubts as to whether it was permissible on the evidence, the same result would have ensued had the mother’s evidence on this issue simply not been accepted. That was a course entirely open to his Honour.

14. Similarly, we consider that the finding made in relation to Dr F was available on the evidence as it stood. The point is not that other judges may have come to different conclusions. The findings are not “contrary to compelling inferences” or “incontrovertible facts” and are not “glaringly improbable” (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]).

15. This ground of appeal does not succeed.

Ground 3: Did the primary judge err by elevating the mother’s “fall-back” position to a proposal in the event that she was required to return to Western Australia?

1. It is to be recalled that the father’s primary proposal was that the child should live with the mother within 200 kilometres of Town C, although at some stage during the proceedings, it was proposed that the limitation be only 50 kilometres from the father’s home. The 200 kilometre zone includes the northern tip of Perth but excludes most of its suburbs.

2. The mother primarily sought orders for the child to live with her in South Australia. However, if those orders were not made, her “fall-back” position was for her and the child to live in Perth generally.

3. It is well established that each compelling proposal must be separately evaluated. In U v U, Gaudron J said:

   37.It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.

   38.In the present case, the need to give proper consideration to the wishes of the parent was not the only reason why each of the proposals had to be separately evaluated. Rather, in a context in which each of the proposals involved some disadvantage for N, as the trial judge acknowledged, a determination could only be made as to what was in her best interests by separately evaluating each of them.

   (Footnotes omitted)

4. Comments of the same effect were made by Kirby J at [138]–[146] and to some extent by Hayne J at [173]–[174]. Importantly, a party’s “fall-back” or “back-up” position is to be considered only if his or her primary proposal is not accepted and is not to be treated as if it was a primary proposal.

5. It follows that the Court’s first task is to identify and consider the parties’ primary proposals. The dangers of not doing so are evident from the cases outlined above and from the detailed discussion in Jurchenko & Foster (2014) FLC 93-598, which was an authority relied upon by the mother.

6. It is worth repeating that the mother’s primary proposal was that the child live with her in South Australia. The father’s proposal was that the child and the mother should be required to live within 200 kilometres of his home, which if the mother was to live in Perth, would restrict the mother and the child to a few suburbs around the northern part of Perth or in a rural location.

7. However, in his Honour’s critical analysis at [158]–[164], the primary judge referred only to the Perth metropolitan area in unrestricted terms. This was not the father’s proposal, it was the mother’s fall-back position.

8. This is sufficient to establish error. It may be thought that the difference is of little significance but that is not so. If the mother was free to live where she chose in Perth then the father’s travelling time would be increased, possibly to the effect of preventing the child from seeing him every day that he was not working. That prospect makes the comparison between the maintenance of a meaningful relationship between the father and the child in Perth, on the one hand, and South Australia, on the other hand, more important. Also, from the mother’s perspective, she did not want to be so restricted as to where she could obtain accommodation or work.

9. However, we should add that the orders that were made on 20 February 2019 did not enable the mother to live in the Perth metropolitan area but only a part of it, i.e. “no further south than [Suburb B] …” (Order 3 of the orders made on 20 February 2019). Evidently, the intention of the primary judge was to make an order that accorded with the father’s proposal to require the mother and child to live within 200 kilometres of Town C. There is no reference to this geographical restriction in the reasons for judgment, which only refer to the Perth metropolitan area. Again, as we have said, despite hearing submissions on the form of the orders after the primary reasons had been delivered, no further reasons were given. This confirms our concerns as to the nature of the enquiry conducted by the primary judge.

10. There is merit in this ground of appeal.

11. It follows that the orders made on 20 February 2019 should be set aside and the matter remitted for rehearing. The existing orders should remain in place until the matter is first heard by a judge other than the primary judge.

Costs

1. Neither party sought an order for costs in the event that the appeal was allowed. Instead, both parties sought costs certificates.

2. Certificates under the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth) will be granted to both parties for the appeal and the rehearing.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Aldridge JJ) delivered on 5 March 2020.

Associate:

Date:  5 March 2020