Beaton & Beaton
[2020] FamCAFC 297
•1 December 2020
FAMILY COURT OF AUSTRALIA
| BEATON & BEATON | [2020] FamCAFC 297 |
| FAMILY LAW – APPEAL – PARENTING – INTERIM RELOCATION – Appeals against interim relocation orders and dismissal of a stay of those orders – Conduct of proceedings – Nature of the orders made – Interim findings of fact – Weight challenges – Proper consideration given to relevant matters – Findings open on the evidence – Adequate reasons – No error of fact or law established – Appeals dismissed – Costs ordered in a fixed sum. |
| Family Law Act 1975 (Cth) ss 93A, 117 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 House v The King (1936) 55 CLR 499; [1936] HCA 40 Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108 Morgan and Miles (2007) FLC 93-343; [2007] FamCA 1230 Robinson HelicopterCo Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Sawant & Karanth [2014] FamCAFC 235 SS & AH [2010] FamCAFC 13 Stringer & Nissen (No. 2) (2019) FLC 93-922; [2019] FamCAFC 185 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Walker & Sampson [2011] FamCAFC 225 |
| APPELLANT: | Mr Beaton |
| RESPONDENT: | Ms Beaton |
| FILE NUMBER: | SYC | 7906 | of | 2019 |
| FIRST APPEAL NUMBER: | EAA | 114 | of | 2020 |
| SECOND APPEAL NUMBER: | EAA | 129 | of | 2020 |
| DATE DELIVERED: | 1 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 29 October 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 14 July 2020; and 24 August 2020 |
| LOWER COURT MNC: | [2020] FCCA 2048; and [2020] FCCA 2485 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPELLANT: | ATW Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | De Saxe O’Neill Family Lawyers |
Orders
The appeals against orders of a judge of the Federal Circuit Court made on 14 July 2020 and 24 August 2020 are dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the sum of $23,617.77 within twenty-eight (28) 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 Beaton & Beaton 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EAA 114 of 2020; EAA 129 of 2020
File Number: SYC 7906 of 2019
| Mr Beaton |
Appellant
And
| Ms Beaton |
Respondent
REASONS FOR JUDGMENT
By his Amended Notice of Appeal (Appeal No. EAA 114 of 2020) filed on 4 September 2020 Mr Beaton (“the father”) appeals against interim parenting orders made by a judge of the Federal Circuit Court on 14 July 2020. The orders allowed Ms Beaton (“the mother”) to relocate from Sydney to Melbourne with the parties’ two children X born in 2015 and Y born in 2018 (“the children”) from 17 October 2020 or when the border between New South Wales and Victoria re-opens, whichever is the later. The orders also made provision for the children to spend time with the father both in Sydney and in Melbourne when they move there. All orders were expressed to be made on an interim basis.
On 17 August 2020 the father filed an Application in a Case seeking a stay of the orders made on 14 July 2020 which was heard by the primary judge on 24 August 2020 and dismissed. The father, by way of Notice of Appeal (Appeal No. EAA 129 of 2020) filed on 4 September 2020, also appeals the orders dismissing his application for a stay.
The matter came before the primary judge on the father’s Initiating Application for parenting orders in relation to parental responsibility, time with each of the parties and with whom the children shall live. In the mother’s response to the father’s application, the mother sought, amongst other orders, interim orders that she be permitted to relocate the two children to live in Melbourne. This application was opposed by the father who sought that it be dismissed. It was not disputed that the children should remain in the primary care of the mother and the primary judge made orders for equal shared parental responsibility and for the children to live with the mother. Neither of these orders is challenged on appeal.
Background
So as to give context to the appeal it is helpful to provide some background facts.
The father was born in 1980. The mother was born in 1979. The parties commenced cohabitation when they married in 2012. The children were born in 2015 and 2018 and since separation the mother has been their primary carer and they have spent time with the father.
Although the mother is a lawyer, she ceased working at the birth of the parties’ second child and has no immediate plans to re-enter the workforce.
Up until October 2019 when the parties’ relationship ended, the mother, father and the children lived together in Sydney. After separation, the father moved to accommodation not far from the home in which they all had previously lived.
After a brief period in which the father’s time with the children was supervised, from January 2020, the children have spent time with the father alone.
The mother said that the separation caused her significant emotional distress and she sought the assistance of a psychologist. She described herself as having panic attacks one of which required treatment at hospital and she was prescribed with benzodiazepines.
The mother grew up in Melbourne and all her family and long standing friends live there. It seems that the parties and the children frequently visited Melbourne and following the birth of each child, the mother and the children went to live in Melbourne for some weeks in order to receive family support. The mother said she received considerable support from her parents both before and after separation and, indeed, the primary judge noted the extensive level of support provided by the mother’s parents in coming to Sydney for weeks at a time and looking after the children (at [12]).
The mother contended that she could not live in the home that she and the father had previously occupied as it was partially renovated and she could not manage the two children in the house in its then incomplete state. It seems that occasionally before separation, she and the children had moved away from the home because of the inconvenience caused by the renovations.
In short, it seems that the mother’s application to relocate the children stemmed from her contention that she needed the physical and emotional support of her parents, extended family and her extensive network of friends in Melbourne.
The father proposed the mother and children to remain living in the former marital home and he would see that the renovations were completed. He sought orders that she and the children remain living in Sydney, within 10 kilometres from the formal marital home.
For the purpose of the proceedings, Mr D a Family Consultant and senior mental health social worker with considerable experience in children’s matters was engaged to provide a report to the Court. In the course of preparing the report, he interviewed the parties and observed the children with each of them. That report was provided on 9 June 2020. On 26 June 2020, the father obtained a report from Dr F, a child and family psychiatrist. Dr F did not see the children nor did he interview the parties. However, he offered a critique of Mr D’s qualifications, report and conclusions.
It appears that considerable time was spent in the hearing arguing the relative merits and demerits of the two reports with the father arguing that Mr D’s report should be “discharge[d]”, by which I understand to mean not admitted into evidence (at [18]). Her Honour did not accept this submission and Mr D’s report formed part of the evidence before her. The ground of appeal that challenged her Honour’s conclusion was not pressed.
The primary judge discussed the mother’s ardent desire to move to Melbourne noting that she had held that view for some time. Her Honour referred to the evidence of the mother’s treating psychologist (“Dr C”) and said:
25.On 29 June 2020 in the second report, [Dr C] refers to ongoing management of anxiety and depression in the context of relationship breakdown and the subsequent stressors relating to single parenting. [Dr C] views the mother as meeting the DSM-5 criteria for major depression disorder and a generalised anxiety disorder. The criteria of those conditions she refers to include: depressed mood, appetite disturbance, sleep disturbance, fatigue, excess worry, anxiety and difficulties in controlling worry. She refers to the mother having clinically significant distress on a daily basis.
26.She refers to the symptoms of post-traumatic stress disorder in terms of their negative effect on the mother. That is, she feels isolated, has difficulties experiencing positive affect, and emotional distress after exposure to her ex-partner. It is clear from the evidence of [Dr C] that the mother is struggling.
27.[Dr C] refers to the treatment as therapy predominantly focused on cognitive behavioural therapy, and that a return to Melbourne would significantly assist treatment as her lack of emotional support in Sydney is minimising her treatment outcomes and causing significant distress. It is important for parents, especially single parents in early parenting years in relation to both parental and child psychological wellbeing, to have support available.
Her Honour then turned to the father’s stated reasons for opposing the children’s move to Melbourne; that he believed that it would not be possible for them to maintain and build their attachments with him if they lived away from Sydney. Her Honour concluded that, notwithstanding the mother’s initial response to the separation which was to require the father’s time with the children to be supervised, which the primary judge described as “[un]helpful” (at [31]), her Honour said that she would expect the mother to support the children’s relationship with the father once her own anxiety lessened.
The father sought an immediate commencement of overnight time with the children, a position which Mr D thought should take time to occur, and her Honour concluded that it could not realistically happen until the younger child was two years old (at [38]).
Her Honour considered it to be in the children’s best interests for the mother to move to Melbourne and to that end, provided time with the children and the father before the move which would assist them in developing their relationship with him; although the orders she made did not include overnight time until the end of 2020 (following the children’s move to Melbourne).
Thus her Honour ordered that on an interim basis, from 17 October 2020 or when the border between New South Wales and Victoria opened, the mother and children may move to Melbourne and made orders providing for time between the children and the father up until the move and further orders once the move had taken place.
On 24 August 2020 the father sought a stay of her Honour’s orders which was refused and that refusal was also appealed.
At the date of the appeal hearing, the border between New South Wales and Victoria remained closed and the mother and children remain living in Sydney. The mother agreed, through her counsel that should the borders re-open before judgment on the appeal was delivered, she would not act on her Honour’s orders. That concession means that the stay appeal requires no further consideration and for this reason that appeal will be dismissed.
The matter is to return to the primary judge’s list on 19 November 2020 and it is anticipated that it will be called over in June 2021 for the allocation of a hearing date.
It is against these orders that the father appeals.
The appeal
In relation to the relocation appeal the father asserted nine grounds of challenge to her Honour’s orders. Grounds 1 and 9 were not pressed. The remaining grounds were argued in groups and it is convenient to consider them in the same way.
The conduct of the proceedings – Ground 4
Ground 4 contends that her Honour erred in hearing the matter on an interim basis in a “busy Duty List” and it was also submitted that the primary judge erred in not considering whether, instead of being heard on an interim basis, the application ought to have had a fuller, expedited hearing or have been transferred to the Family Court. It was argued that by hearing the matter on an interim basis, without cross-examination, her Honour’s decision did not take into account the full effect of the parties’ evidence and thus hampered her capacity to frame orders in the children’s best interests.
Fatal to this ground is the fact that her Honour was not asked to transfer the matter to the Family Court nor indeed was any objection raised by counsel for the father to her Honour dealing with the matter as she did, on an interim basis.
In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, Latham CJ and Williams and Fullagar JJ said at 438:
… The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards… The decision whether or not to refuse specific performance in the exercise of the discretion is one peculiarly for the trial judge and his Honour should have been given an opportunity of exercising his discretion before being told that the appeal had been allowed upon a point he had no opportunity of considering…
(Citations omitted)
The High Court in Metwally v University of Wollongong (1985) 60 ALR 68 said at 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so…
It was argued that the ground should not founder on the reef of this authority because it was said that the Full Court has a “remedial” function as referred to in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) and it was argued that, unlike other intermediate appeal courts dealing with non-family law matters, this remedial function would allow the Full Court to consider the point even though it had not been first raised at trial.
In CDJ v VAJ, which concerned the admission of further evidence on appeal, the High Court considered the nature of the Full Court of the Family Court and said that nothing in the Family Law Act 1975 (Cth) (“the Act”) prevented a party from bringing an Application in an Appeal to adduce further evidence on an appeal. The plurality said:
108.When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion. The discretion is more ample than the principles applicable in common law proceedings…
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Clearly then, the “remedial nature” there referred to was in relation to the capacity of the court to receive further evidence on an appeal. What the plurality there said does not give the Full Court a wide ranging remit to conduct a fresh hearing of issues not agitated below. Indeed in CDJ v VAJ the Court said:
111.… Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice…
Counsel for the father also sought to take refuge in the decision of Morgan and Miles (2007) FLC 93-343 (“Morgan and Miles”) which was an appeal against interim relocation orders. In that matter, Boland J, sitting as a single judge of the appeal division, said:
88.It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases… make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis…
(Citations omitted)
It was argued that this decision constituted a “guideline” for the determination of cases such as these and where, as here, or so it was contended, the primary judge failed to adhere to the “guideline”, the Full Court should act to correct the error whether or not the point had been raised below.
This submission should be rejected. Justice Boland’s decision is not a “guideline” in the sense that it sets a benchmark for determination of similar cases. Further, it is apparent from the multitude of decisions of judges in interim hearings confirmed on appeal, that the principal issue in relocation cases is not whether the case is “an emergency”. The determination of issues regarding children whether on an interim basis or at a final hearing is by reference to the best interests principle.[1]
[1] See Stringer & Nissen (No. 2) (2019) FLC 93-922 at [26]–[27]; Sawant & Karanth [2014] FamCAFC 235 at [9]–[10]; Malcolm & Monroe and Anor (2011) FLC 93-460 at [106]–[107].
For example in Walker & Sampson [2011] FamCAFC 225, the Full Court said referring to Boland J’s decision in Morgan and Miles:
17.In the circumstances, the learned Federal Magistrate’s exercise of discretion was not vitiated by any failure to have regard to the asserted “urgency” or “emergency” of the mother’s relocation. Her Honour was required to and did, assess the competing proposals by reference to such evidence as there was before her, and the provisions of Part VII of the Family Law Act 1975 (Cth)…
Finally and while not entirely on the same point, but in reference to another aspect of Boland J’s judgment in Morgan and Miles, in Deiter & Deiter [2011] FamCAFC 82 (Finn, Thackray & Strickland JJ) the Full Court said:
108.Before concluding our discussion of this appeal, we wish to make mention of the use Kaeser AM made of the checklist which Boland J provided in Morgan and Miles as being useful in relocation disputes.
…
110.We accept that in preparing her checklist, Boland J was attempting to provide guidance for parties and practitioners involved in relocation disputes. However, one difficulty in creating a “checklist”, is that a gloss will be added to a statute that is already overly complicated. A further concern is that judicial officers will begin to apply the checklist, rather than the legislation, thereby overlooking the nuances contained in the statute.
None of the authorities to which counsel for the father referred provides support for the contention raised.
Any objection to her Honour’s proposal to hear the matter on an interim basis, any application that rather than the matter proceeding as an interim hearing, it have an expedited final hearing, or that the application should be transferred to the Family Court, was not raised with her Honour. In fact, she did what both parties asked her to do. The father cannot raise these matters on appeal.
This ground fails.
Failure to give proper consideration to relevant matters – Ground 6
This ground is expressed in somewhat oblique terms and it is helpful to set it out in full:
Her Honour failed to properly weigh and consider, two important factors at paragraph 28 and elsewhere, despite identifying the same and approached those considerations in isolation but from the presumption that such a re-location should take place…
As I apprehend the ground, the challenge is that her Honour approached the matter having already determined that the mother should be permitted to move with the children to Melbourne and, having taken that stance, rather than assessing all of the evidence to determine whether an interim relocation should take place, only had regard to the evidence which favoured that conclusion, or put another way, failed to give proper consideration to the evidence weighing against the move.
It was argued that the foundation for the assertion that her Honour had pre-determined the issue flowed from her reasons for judgment at [21] to which I will shortly come.
Starting then with [28] of her Honour’s reasons. Her Honour said:
28.The mother has engaged well with treatment, as [Dr C] observes. Notwithstanding that, she continues to experience significant anxiety and subsequent low moods and needs ongoing therapeutic intervention. [Dr C] concludes that the mother would benefit psychologically and practically from being in Melbourne and having consistent emotional and practical support from her extended family.
Before turning to the arguments advanced in support of the ground, some more context is helpful.
Dr C prepared a report for the Court about her therapeutic interaction with the mother. The mother had been referred by her general practitioner in November 2019 for ongoing management of anxiety and depression in the context of the relationship breakdown. Dr C said that the mother meets the DSM-5 criteria for Major Depressive Disorder and for Generalised Anxiety Disorder. She further said that the mother experiences symptoms of post-traumatic stress.
Dr C further said:[2]
… It is also important to note that despite these significant symptoms that [the mother] is experiencing, she is able to continue to meet and prioritise the needs of both of her children and the demands of parenting.
[2] Dr C’s affidavit filed 30 June 2020, p.4.
Although, Dr C said that the mother had engaged well with therapy, she still experiences significant anxiety and low moods. As a result, Dr C thought she would benefit from continuing therapeutic intervention.
After referring to the mother’s belief that her symptoms predominantly relate to her lack of support in Sydney and wanting to be in Melbourne, Dr C said the mother would benefit both psychologically and practically from returning to Melbourne.
Her Honour also had the benefit of Mr D’s reported observations of the children with each parent and his assessment of the children’s relationship with each of them.
Mr D said that the children have a secure attachment and close bond with the mother. He said that they were warmly attached to the father and they benefit from his presence in their lives.
However, he said:[3]
78.As is the case with many relocation matters, there does not appear to be a resolution to this dispute that does not entail negative outcomes for the children. If they were to relocate with their mother to Melbourne they would miss their father and his engagement with them would probably be limited to (largely) leisure (holiday time and weekend time) given that he is in full time employment. If the children do remain living in Sydney they would be living with a mother who, in the writer’s opinion is experiencing post-traumatic stress symptoms following the abrupt termination of the parents’ marriage and family life. It is not unusual for the ‘left behind parent’ to experience such symptoms - even when separation has been discussed and the marriage has been troubled. It is noted that when the separation from a partner is experienced as a traumatic loss, emotional recovery tends to be a more complicated and enduring grieving process.
[3] Mr D’s report dated 9 June 2020.
Mr D continued and said:
80.The attachment history in this matter, together with observations, strongly indicate that the mother has been their primary attachment figure. Children usually have a hierarchy of attachment figures. In the writer’s view both children in this matter identify their mother as the preferred attachment figure with respect to meeting their nurturing needs when they are upset or stressed. Her emotional availability is central to their sense of security. Her absence from their lives as their primary caregiver would, in the writer’s view, be emotionally intolerable for them.
(Emphasis added)
He then said:
91.If the children were to be living in Melbourne with their mother, it seems likely that the emotional and practical support available to her from her parents would aid her recovery and facilitate her emotional and physical availability to the children. If this were to occur the children would miss their father and would no doubt be distressed. However, if the Court determines that, on the balance of evidence, as the writer suggests, it would be psychologically untenable for [the mother] to remain living in Sydney, the Court would need to consider ways of maintaining and developing the father-child relationship across a distance. The following suggestion seeks to take into consideration: [the mother’s] mental state and its impact on her parenting capacity and (to the degree possible) the children’s need to have a meaningful relationship with their father.
Mr D also expressed the opinion that each parent would facilitate the children’s relationships with the other.[4]
[4] Mr D’s report dated 9 June 2020, paragraph 85.
Her Honour referred to Mr D’s account of the mother’s reported symptoms and said:
9.[Mr D] was concerned that the symptoms would be unlikely to abate in the short or medium term, in the absence of emotional support. The children would be aware, or likely become aware, of the mother’s unhappiness. This would have an impact on the children, particularly as their mother is their primary attachment figure. [Mr D] opined that the mother’s emotional availability is central to the children’s sense of security.
Her Honour then made reference to the father’s submissions as to why the mother did not need to relocate to Melbourne with the children, including his argument that she had abundant support available to her in Sydney, a submission which was not accepted by her Honour (at [12]), she finding that the nature and quality of that support in Sydney did not equate to that which the mother would enjoy from her parents in Melbourne.
In the reasons for judgment, the primary judge encapsulated the mother’s case for a relocation where she said:
15.The problems for the mother in parenting the children in the current circumstances are obvious from the report, from her own evidence and that of her parents. She is living somewhere she has not wanted to live for some time with the care of a five year old and an almost two year old. Having two young children has highlighted the problems for her in managing herself, and has increased her feelings of isolation. She is anxious. She is not sleeping well. She is sad. That is the import from [Mr D’s] observations, all of which are matters within his remit to comment on.
In concluding her discussion on whether Mr D’s report should be admitted as evidence, her Honour said, apropos the report:
18.… The fundamental aspect of that is a consideration of the attachment relationships of these children, and that is within [Mr D’s] expertise…
Returning to the ground, a number of evidentiary controversies were identified as being central to the ability of the Court to determine what orders were in the children’s best interests. It was argued that these issues required “fulsome [sic] exploration”[5] without which the Court could not properly consider the relevant issues.
[5] Father’s Summary of Argument filed 28 September 2020, paragraph 20.
The mother’s mental health
The identified controversy about the mother’s mental health was whether it was such that it required a move to Melbourne. Dr C’s opinion about the mother’s mental health and that it would assist her to move to Melbourne was said to contrast with her further comment that, despite the severity of her symptoms, the mother was able to prioritise and meet the children’s needs.
First, it must be said that the issue of the mother’s mental wellbeing and how it factored into the relocation application was far more nuanced than the argument contends.
The issue of the mother’s mental health was a complex one as her Honour’s reasons demonstrate. Her Honour accepted the uncontested fact that the mother was the children’s primary attachment figure and reflected on the importance to the children that that attachment is secure (at [23]). Her Honour concluded at [27] that it was important for parents of young children to have support available for the welfare of both the parent and child.
Further, her Honour accepted that the mother desired the support of her parents and her familiar network in Melbourne, and said that she was sad and anxious, emotions her Honour found the children would pick up. Her Honour said:
16.The problems in terms of the impact on the children are again matters which are within the ambit of [Mr D’s] report. That is, that children pick up on distress, upset and unhappiness, particularly in the parent who is their primary attachment figure…
(See too [58]).
Thus considered, even though the mother was managing to meet the children’s needs notwithstanding her emotional distress, as Dr C observed, her Honour’s reasons clearly expose the effect on the children of the mother’s continuing distress.
Dr C’s report was criticised and it was said it “lack[ed]… depth” because it recorded what the mother had self-reported about her emotional state. Further, amongst other things, it was said that the doctor’s records not having been produced, Dr C’s opinion could not be tested.[6]
[6] Father’s Summary of Argument filed 28 September 2020, paragraph 19(b).
No objection was taken to Dr C’s report nor, at any point, was the “apparent self-reporting nature of”[7] the assertions in it raised with the primary judge and on that basis, it cannot now be challenged. In any event, such a challenge would have failed for two reasons. First, Dr C was the mother’s treating psychologist and of course her report would contain the mother’s accounts of how she was feeling and managing from time to time. Secondly and importantly, that the mother was experiencing mental distress was not an issue in the case before the primary judge.
[7] Father’s Summary of Argument filed 28 September 2020, paragraph 19(b)(i).
The lack of notes of the mother’s other treating doctors was a matter raised by Dr F in his critique under the heading “[c]orroboration of relevant history”. While saying that he did not know whether the doctor’s notes had been produced under subpoena, he said they would have “assisted Mr D’s report to have reviewed them”.[8] The assistance was said to be that if the notes were produced, a psychologist could have independently assessed the mother’s condition.
[8] Dr F’s affidavit filed 26 June 2020, p.13.
Mr D was not a psychiatrist or a psychologist. He was chosen with the consent of both parties as being an appropriate person to conduct the interviews and make the report (at [18]). Objection to his qualifications only arose after the report was produced and Dr F’s critique obtained.
However, there was no dispute that the mother was in emotional distress nor was it disputed that it was of sufficient severity that she required hospital treatment and the prescription of benzodiazepines.
Her Honour dealt with this argument by noting, entirely correctly, that what was important was the symptoms experienced by the mother and how those described symptoms affected the children and her parenting capacity (at [11]).
It was also argued that her Honour failed to take into account the father’s submission that there was treatment for the mother available in Sydney. Again this submission misses the complexity of the issue with which her Honour was faced, which was the undoubted emotional distress the mother suffered, its clear impact on these two young children and whether her desire to move to Melbourne would be in their best interests. Whether or not there was psychological support available to the mother in Sydney, was not a matter determinative of the decision then to be made.
The father’s case was that the mother could continue to have psychological treatment in Sydney from Dr C as she had been doing and further that the mother had friends in Sydney who could offer her the emotional support that she said she craved.
Her Honour did not accept that what the mother had in Sydney was equivalent to that in Melbourne. Her Honour compared the support and assistance given to her by her parents with that available from friends (at [12]). Her parents, her Honour said: “… have been on hand to assist her in all the practical matters of child rearing when it involves two very young children, and to assist her with all the emotional aspects that come with this”. Her Honour further took into account the mother’s parents’ close relationship with the children and concluded it was “not easily replicated” by non-family members (at [13]).
The accommodation available to the mother and children in Sydney
There was no dispute that the parties’ former marital home was in the throes of significant renovation. The mother in her affidavit complained about the difficulties that the half-finished house imposed on her and her day to day care of the children.[9]
[9] Mother’s affidavit filed 30 June 2020, paragraph 29.
Quite what the extent of the controversy that existed between the parties about this is unclear, however her Honour said:
35.The father floated the idea, and I say floated because I understand it had not been previously raised, of taking out a further loan for accommodation for the mother outside the former matrimonial home, whilst renovations are concluded. There are a number of options that the parties might wish to explore which may assist the father, once the mother and children move to Melbourne, in being available there if he is not required to be physically in the office in Sydney.
Therefore while some of these identified evidentiary controversies may be subject to further evidence and perhaps cross-examination at a final hearing, her Honour had before her an interim application for the mother to move with the children to Melbourne. The father has not demonstrated that any of these asserted evidentiary disputes, if indeed they are controversial, were so critical to her Honour’s decision that her discretion miscarried by not resolving them in the interim hearing.
Then what of the ground, that her Honour erred in commencing her deliberations accepting the mother’s case that there should be a relocation, is revealed at [21]?
Her Honour said:
21.Turning to the issues, there is the mother’s need for practical and emotional support from her parents and extended family in Melbourne in the context of her, on an interim basis, being the uncontested residential parent. On a final basis, the father seeks a shared care arrangement, but for the moment, that is the position. This is as against the need for [the children] to be able to develop a meaningful relationship with their father.
It could not be argued, nor was it, that the mother did not suffer from emotional distress nor that she was receiving therapeutic support for that distress and she believed that her distress could be alleviated by moving to Melbourne to be with her parents.
Equally so, it was not the father’s case at that point that the children should do other than live primarily with the mother. True it is that he sought an expansion of his time with the children ultimately to a shared-care arrangement, but at the point at which her Honour heard this matter, the father had not commenced to spend overnight time with the children.
Thus at [21] her Honour accurately identified the issues then before her and it does not support the challenge that her Honour erroneously concluded in the mother’s favour without having considered the evidence.
No error has been established.
Challenges to the primary judge’s fact finding – Grounds 2 and 8
These grounds contend that the primary judge erred in “impermissible fact finding” in the context of an interim hearing. Impermissible, because such findings were “not available given the interim nature of the proceedings”.[10]
[10] Father’s Summary of Argument filed 28 September 2020, paragraph 27.
Examples of the facts “impermissibly found” include her Honour’s findings as to the mother’s mental health (at [26]) and the course of her treatment (at [28]).
Her Honour said, in reference to the opinion of Dr C:
26.She refers to the symptoms of post-traumatic stress disorder in terms of their negative effect on the mother. That is, she feels isolated, has difficulties experiencing positive affect, and emotional distress after exposure to her ex-partner. It is clear from the evidence of [Dr C] that the mother is struggling.
She continued referring to the report of Dr C and said:
28.The mother has engaged well with treatment, as [Dr C] observes. Notwithstanding that, she continues to experience significant anxiety and subsequent low moods and needs ongoing therapeutic intervention. [Dr C] concludes that the mother would benefit psychologically and practically from being in Melbourne and having consistent emotional and practical support from her extended family.
It is clear that her Honour was repeating, with acceptance, the opinion of the mother’s treating psychologist. It is also clear that no submission was made to her Honour that Dr C’s opinion was not a fair representation of her findings consequent on her treatment of the mother. Indeed, it is tolerably clear that there was little dispute that the mother was suffering emotionally although how and whether it would affect the mother’s parenting capacity was an issue for her Honour’s ultimate determination.
In submissions before the primary judge, the then counsel for the father said:[11]
[COUNSEL FOR THE FATHER]: … The evidence from the mother, in respect of her mental health, is not anything other than she is engaged and working well with her mental health treaters.
[11] Transcript 2 July 2020, p.31 lines 19–21
This if anything, underscores the point that there is nothing “impermissible” in accepting matters of fact where they are not disputed.
In Robinson HelicopterCo Inc v McDermott (2016) 331 ALR 550 the High Court said:
43.… But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences…
(Footnotes omitted)
In Eaby & Speelman (2015) FLC 93-654 (“Eaby & Speelman”) at [18], the Full Court discussed fact finding in the context of interim hearings where, of course, generally speaking, the evidence is untested and said that findings ought to be couched with great circumspection. However in SS & AH [2010] FamCAFC 13, the majority of the Full Court said:
100.… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…
(Emphasis added)
And, of course, even if there were evidentiary controversies, her Honour was nonetheless entitled to make findings on that evidence as Eaby & Speelman makes plain albeit while advocating a cautious approach.
Dr C expressed the opinion that the mother would receive psychological benefits from being in Melbourne and having the consistent support of her family, an opinion her Honour accepted in circumstances where there was no countervailing evidence.
This ground goes further and particularises an impermissible finding of fact at [30] where her Honour said:
30.The separation occurred in circumstances where the mother was in Melbourne visiting her family with the children. She had no advanced notice from the father. She was collected by him from the airport, and once they arrived home told that they were separating, and he had moved out. This has had a significant impact on her.
None of this is controversial, the father agreed as to the fact. The mother said it had a significant impact on her. The father did not dispute it.
Equally at [31] apparently “impermissible” facts are found when her Honour discussed the mother’s requirement in the immediate post-separation period that the father’s time with the children be supervised. Her Honour said that the mother had “moved through” that requirement, has supported time with the father since then and her Honour noted that it might be expected that she will continue to support the relationship of the children to the father.
None of these matters was in dispute. The father’s submissions to the primary judge concentrated on the paucity of time, as the father saw it, that would be available between him and the children if the mother moved to live in Melbourne.
Dr F said that he thought Mr D’s optimism that the mother would support the relationship between the children and the father is misplaced, so to this degree it might be said that this was a matter in dispute although I note that Dr F offered the opinion that the mother’s initial requirement that the father’s time with the children be supervised was “unnecessarily restrictive and over-protective”.[12] However, her Honour fell far short of concluding positively that the mother would support the relationship but merely expressed an expectation.
[12] Dr F’s affidavit filed 26 June 2020, p.15.
This ground has not been made out.
The nature of the orders made – Ground 3
Ground 3 argues that her Honour erred in finding that the orders she proposed to make would promote “a meaningful or substantial” relationship between the children and the father should they move to Melbourne and in considering those orders, her Honour failed to account for the practicalities of the children spending time with the father.
It is useful to set the evidentiary context for this ground. Mr D’s evidence on having seen the children with both parents, was:[13]
80.The attachment history in this matter, together with observations, strongly indicate that the mother has been their primary attachment figure. Children usually have a hierarchy of attachment figures. In the writer’s view both children in this matter identify their mother as the preferred attachment figure with respect to meeting their nurturing needs when they are upset or stressed. Her emotional availability is central to their sense of security. Her absence from their lives as their primary caregiver would, in the writer’s view, be emotionally intolerable for them.
81.Whilst it is evident that the children are primarily attached to their mother, observations indicated that they are also warmly attached to their father and they benefit from his presence in their lives…
…
90.As previously mentioned, any resolution of this dispute entails least worst alternatives. In this instance the outcome that would be emotionally intolerable for the children, given the nature of their attachment to their mother, would be for them to be living apart from her.
91.If the children were to be living in Melbourne with their mother, it seems likely that the emotional and practical support available to her from her parents would aid her recovery and facilitate her emotional and physical availability to the children. If this were to occur the children would miss their father and would no doubt be distressed. However, if the Court determines that, on the balance of evidence, as the writer suggests, it would be psychologically untenable for [the mother] to remain living in Sydney, the Court would need to consider ways of maintaining and developing the father-child relationship across a distance…
[13] Mr D’s report dated 9 June 2020.
The primary judge was clearly alive to the choice of the “least worst” option.
Her Honour continued:
15.The problems for the mother in parenting the children in the current circumstances are obvious from the report, from her own evidence and that of her parents. She is living somewhere she has not wanted to live for some time with the care of a five year old and an almost two year old. Having two young children has highlighted the problems for her in managing herself, and has increased her feelings of isolation. She is anxious. She is not sleeping well. She is sad. That is the import from [Mr D’s] observations, all of which are matters within his remit to comment on.
16.The problems in terms of the impact on the children are again matters which are within the ambit of [Mr D’s] report. That is, that children pick up on distress, upset and unhappiness, particularly in the parent who is their primary attachment figure. The problem for the Court is to balance that issue with the need for these children to be able to have the benefit of a meaningful relationship with their father.
17.These problems are exacerbated by the ages of the children, the geography between Sydney and Melbourne, and the current pandemic. The recent closure of the border between New South Wales and Victoria highlights that issue. The legislation refers to a period of six weeks, but it is also clear that that could be varied depending on what happens.
Her Honour clearly acknowledged the need to balance the children’s need to be able to develop a meaningful relationship with the father, and balanced it against the mother’s need for “practical and emotional support from her parents and extended family in Melbourne” (at [21]).
As to the relationship with the father, her Honour said:
29.In terms of the boys’ relationship with their father and how best for that to be developed if the mother were in Melbourne, it was raised whether it would be possible for them to develop a meaningful relationship. The father was concerned that the mother, certainly in the initial phases post-separation, was not promoting or facilitating the relationship. This was exemplified by her initial requirement for supervision by [H Services]. That was done without Order and by agreement between the parties. [The younger child], at that time, was just one year old.
…
32.In my view, it is possible for the children’s relationship with their father to develop and move to a meaningful relationship with them living with their mother in Melbourne. The move to overnight time is something that will need to be managed given that [the younger child] is not yet two.
…
37.The issue then is, when [the younger child] will be ready for overnight time. [Mr D] suggests that one would take a very slow approach to that, and that it would not be until [the younger child] was around the age of four. [The younger child] of course has the advantage of his brother whom he will be travelling with in terms of building that relationship. That can provide for very young children a level of security in terms of being able to move from one parent to the other.
38.Whilst the father wishes overnights to start as soon as possible, it needs to be done in a way that is realistic for [the younger child]. In my view, it could not occur prior to [the younger child’s] second birthday. There needs to be the opportunity to develop the relationship with the father over the coming months in Sydney. The timing, then, of any move, would be from [the younger child’s] second birthday or the releasing of the border restrictions between Victoria and New South Wales, or whichever is the later.
Her Honour noted that “[t]he important aspect now is the benefit to the children of maintaining and developing a meaningful relationship with their father” (at [41]).
In Moose & Moose (2008) FLC 93-375, Boland J with whom May & O’Reilly JJ agreed said:
70.In Godfrey & Sanders (2007) 208 FLR 287 Kay J said, in the context of discussing a relocation proposal which involved the father spending less regular periods of time with his child than he was at the date of hearing, “even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
71.The question then raised in this appeal is – Did his Honour appropriately consider, give reasons and craft orders to enable these children to have a relationship with their father, which was, even if not optimal, important, significant and valuable to them…
What is clear is that given their age and the undisputed evidence that the mother was the children’s primary attachment, her sense of emotional wellbeing was a prominent consideration. Equally so, her Honour was astute to the difficulties for the children in moving away from their father. Finally too, her Honour understood that a move away for the children would reduce their time with him and her orders included an increasing regime of time prior to the children’s relocation to give effect to her Honour’s view that there needed to be an opportunity for the younger child to develop the relationship with his father in the months before the move (at [38]).
During the hearing, the principal focus of the father’s submissions was that the move to Melbourne would result in a diminution of the children’s time with him. When the proceedings were re-opened, counsel for the father submitted to her Honour that there may be difficulties in the father seeing the children if the borders were closed again or that a period of isolation was imposed on travellers and therefore any proposal that the children move to Melbourne and yet see the father was “untenable”.[14]
[14] Transcript 14 July 2020, p.3 lines 12–15.
As to the “practicalities” of the children spending time with the father, it was submitted on appeal that her Honour failed to consider the “accoutrements” necessary for the children including prams, toys and fresh clothing, which would need to be transported between Victoria and New South Wales and that the father would need to rent either a flat or hotel for the time he spent with the children.[15]
[15] Father’s Summary of Argument filed 28 September 2020, paragraph 36.
Given that the principal focus of the father’s submissions on the proposed relocation was his concern to maintain the relationship between him and the children, a point which her Honour clearly addressed, it is hardly surprising if time was not taken up in discussing logistics of prams and the like. That no mention was made of these items in submissions to her Honour is entirely consistent with its peripheral relevance.
Neither did her Honour turn her mind to the fact that the father would have to rent accommodation in Melbourne to see the children. How that point is material to her ultimate decision was not explained.
Further it was argued that her Honour failed to consider Dr F’s opinion that video calls between the children and the father would be inadequate to meet the children’s needs to maintain the relationship.
In the extensive suite of orders made by the primary judge, video calls between the children and the father is but one order and is in addition to the other detailed orders for face to face time both before and after the children’s move to Melbourne.
Her Honour did not mention Dr F’s opinion of the utility of video calls but in any event, his focus was on the efficacy of video calls per se and not their usefulness as an adjunct to face to face time.
Neither the father’s need to rent accommodation nor the usefulness of video calls was significant nor material to her Honour’s consideration and weighed against the significance of the issues considered by her in accordance with the parties’ submissions, her Honour’s failure to consider both of these points does not sound in error.
Ultimately, as her Honour’s reasons conclude, the balance tipped in favour of the move. That was an exercise of her Honour’s discretion and success in the appellate sense requires that the father demonstrate that her Honour made an error of the type identified in House v The King (1936) 55 CLR 499 at 504–505. No such error has been demonstrated and this ground fails.
Failure to give adequate reasons – Ground 7
Ground 7 contends that the primary judge failed to give adequate reasons which exposed her “[w]eighing and assessing via the s60CC factors as to the best interests considerations and the advantages and disadvantages” (as per the original) of the move to Melbourne. In this ground, it was further argued that her Honour did not give adequate reasons as to the children spending “quality” time with the father in Melbourne and as to the school in which the older child should be enrolled at.
In particular it was argued that her Honour’s reasons do not enable the reader to understand the weight ascribed to various parts of the evidence.
For example, while it was conceded that the meaningful relationship between the children and the parents was mentioned in a “few places”,[16] it was contended that the discussion was insufficient. It was also said that her Honour’s reasons do not refer to an observation of Mr D of the older child’s pleasure at seeing his father nor did her Honour consider the likely effect on the children of a separation from either of their parents.
[16] Father’s Summary of Argument filed 28 September 2020, paragraph 44(i).
It is not immediately apparent how many references to the meaningful relationship issue would meet the requirement for a proper consideration, but a plain reading of her Honour’s reasons makes it clear that this was, quite properly, a significant issue. Not only does her Honour consider this but she had the benefit of Mr D’s observations and conclusions about the children’s relationship with the parents and much of the earlier discussion in these reasons refer directly to her Honour’s consideration of this at [29] and [32].
Again her Honour’s reasons are entirely clear as to the effect on the children of being separated from one or other of the parents. In fact, the underpinning of her Honour’s orders is seen at [23] where she says:
23.The mother describes herself as anxious, and not being able to sleep or eat. One might call this in lay terms, not coping. She is the primary attachment parent for the two boys. They are developing their relationship with their father. It is important for the development of that relationship that they have a secure attachment with their mother, who is their primary attachment figure. It is clear that the father is an important person to them, and of course they to him.
Her Honour too had the benefit of Mr D’s opinion that the children would be distressed and would miss their father if they moved to live in Melbourne.[17] He referred to the Court needing to consider ways of maintaining the relationship.
[17] Mr D’s report dated 9 June 2020, paragraph 91.
It was further argued that there was a lack of reasons given as to where the older child should attend school commencing 2021. The mother sought that the child be enrolled at G School in Victoria, the father sought orders that the child be enrolled in school in Sydney. Her Honour said:
44.Whilst [the older child] will start school next year, it is a very early stage of schooling. If he were required to change school, one would expect that would not cause [the older child] a major impediment.
While clearly aware of the controversy, her Honour’s orders reflect the opinion of Mr D[18] and, in any event, in the context of an order clearly intended to operate until the final hearing of the matter sometime in 2021, her Honour’s intention is plain enough.
[18] Mr D’s report dated 9 June 2020, paragraph 88.
This ground is not made out.
Weight challenges – Ground 5
Here, the father argues that the primary judge erred in the weighing of the relevant factors and in failing to give sufficient weight to the “uncertainties confronting the parties and the children by virtue of the [COVID-19] pandemic”.
When the border between Victoria and New South Wales was closed, the hearing before her Honour was re-opened and submissions were made about the impact this would have on her Honour’s consideration. Counsel for the father contended that if the mother moved to Victoria (assuming that the borders opened to allow her to do that) and then they were closed again, the father would not be able to visit the children in Melbourne, nor could they come to New South Wales. Counsel for the father said that the “safest course” was that the children remain in New South Wales and “… be permitted to continue their relationship with their father”.[19]
[19] Transcript 14 July 2020, p.3 lines 44–46.
Whatever might have been anticipated in mid-July 2020, her Honour’s orders provided for the mother to relocate the children to Melbourne from 17 October 2020 or when the border re-opened. While the border remained closed during the appeal hearing, it is presently open. However, there still remains the guarantee of the mother in not acting on her Honour’s orders should the borders re-open before the judgment on appeal is delivered. Thus, the mother and the children are still in Sydney and no doubt the father is taking full advantage of the time with orders in order to continue their relationship.
It was further argued that the primary judge failed to act on a proposal made on the mother’s behalf which, as argued in the father’s Summary of Argument, “indicated an acceptance of a position wherein there were no isolation requirements”.[20]
[20] Father’s Summary of Argument filed 28 September 2020, paragraph 53.
Actually what was said on the mother’s behalf in response to the father’s submissions about the “uncertainties” attending the pandemic was:[21]
[COUNSEL FOR THE MOTHER]: … [M]y instructions are that we will accept a position that no order should commence until the borders are open to permit travel to and from Sydney and Melbourne, or that there are no isolation requirements in place, which would be applicable to the implementation of any order to spend time…
[21] Transcript 14 July 2020, p.4 lines 37–41.
The mother suggested two possible solutions, not one as submitted. Her Honour opted to defer the implementation of the order until the borders were re-opened. No error has been demonstrated and this ground will fail.
Conclusion and costs
Thus the appeals will be dismissed.
Counsel for the father conceded that if the interim relocation appeal failed (noting the undertaking given by the mother that should the borders re-open before judgment on the appeal was delivered, she would not act on her Honour’s orders), he could not resist an order for costs.
Costs in appeals, like costs in other causes in the Family Court is considered under the rubric of s 117 of the Act and, the concept that parties ought bear their own costs (s 117(1) of the Act). Section 117(2) provides that an order as to costs is to be made subject to consideration of the matters to which s 117(2A) refers. Here, there should be a departure from the usual rule because the appeal has been wholly unsuccessful (s 117(2A)(e) of the Act) and, no doubt, that was the basis on which the father’s counsel quite properly conceded that he could not resist an order for costs.
Thus there will be an order for costs in the mother’s favour in the sum of $23,617.77.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 1 December 2020.
Associate:
Date: 1 December 2020
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