BENWORTH & BENWORTH
[2012] FamCAFC 32
•7 March 2012
FAMILY COURT OF AUSTRALIA
| BENWORTH & BENWORTH | [2012] FamCAFC 32 |
| FAMILY LAW – APPEAL – CHILDREN – where trial judge refused mother’s application to relocate to London with parties’ child – where numerous grounds of appeal – where one ground found to have merit – where trial judge made orders in relation to time over the school holidays which were not agitated by either party – where his Honour’s Reasons do not make explicit how his Honour determined that the order made was in the child’s best interests – whether trial judge erred – where appeal allowed in respect of this ground. FAMILY LAW – APPEAL – PROPERTY – where trial judge made an order requiring transfer of a property in London to the appellant – where both parties ultimately sought an order that the property be sold – whether his Honour erred – where no evidence that his Honour proposed the order ultimately made during proceedings – where neither party afforded opportunity to make submissions in respect of transfer of the property to the mother – where appeal allowed in respect of this ground. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981(Cth) Family Law Rules 2004 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 AMS v AIF (1999) 199 CLR 160 Bennett & Bennett (1991) FLC 92-191 CDJ v VAJ (1998) 197 CLR 172 Collu & Rinaldo [2010] FamCAFC 53 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 MRR v GR (2010) 240 CLR 461 Puttick v Tenon Ltd (2008) 238 CLR 265 Sigley v Evor (2011) 44 Fam LR 439 Taylor & Barker (2007) FLC 93-345 |
| APPELLANT: | Ms Benworth |
| RESPONDENT: | Mr Benworth |
| FILE NUMBER: | SYC | 8541 | of | 2007 |
| APPEAL NUMBER: | EA | 47 | of | 2011 |
| DATE DELIVERED: | 7 March 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Strickland and Murphy JJ |
| HEARING DATE: | 22 September 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 May 2011 |
| LOWER COURT MNC: | [2011] FamCA 328 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr M Kearney |
| SOLICITOR FOR THE APPELLANT: | Reid Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms L Judge |
| SOLICITOR FOR THE RESPONDENT: | Goldrick Farrell Mullan Solicitors |
Orders
The appeal be allowed in part.
Orders 6(c) and 19 to 22 inclusive of the Orders made by Rose J on 13 May 2011 be set aside.
The issue of the number of consecutive nights during which the child shall spend time with his father during the school holiday time ordered by Rose J be remitted for re-hearing by a judge of the Family Court of Australia.
The issue of the terms of the orders affecting the property situate at and known as … J Street, London in the United Kingdom be remitted for re-hearing by a judge of the Family Court of Australia.
The appeal otherwise be dismissed.
Each of the appellant and the respondent shall, within 21 days of the date of these Orders file with the Appeals Registrar, Sydney, and serve on the other party, written submissions as to the issue of the costs of this appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Benworth & Benworth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 74 of 2011
File Number: SYC 8541 of 2007
| MS BENWORTH |
Appellant
And
| MR BENWORTH |
Respondent
REASONS FOR JUDGMENT
In contested parenting proceedings before Rose J in respect of M Benworth (born May 2004), the central issue, as expressed in his Honour’s Reasons for Judgment, was “whether or not it is in the best interests of the child to live with the mother on the basis of her relocating with him to London ...”.
His Honour ultimately held that it was not and made orders, relevantly, that the child live with his mother and spend five nights per fortnight with his father (one night in one week; four in the other), and one half of all school holidays. The mother appeals from those orders.
Property proceedings were also contested before his Honour. The net property and superannuation interests of the parties within the meaning of s 79 of the Family Law Act 1975 (Cth) (“the Act”) were determined by his Honour to be about $1.13 million.
His Honour made orders dividing the property of the parties or either of them in the proportion 60 per cent to the mother and 40 per cent to the father. The mother also appeals from those orders.
Background
The background to this matter is uncontentious. The parties met in London and commenced cohabitation in January 1999. They were married in Australia in April 2000 and M was born four years later in May 2004. The parties subsequently moved to Sydney in August 2005. The parties separated in December 2006.
The father has subsequently remarried. He and his wife have an infant child.
As at the date of trial the father was employed in a professional capacity and residing in Sydney Suburb 1. The mother was residing in Sydney Suburb 2 and engaged in home duties on a full-time basis. She had previously been employed as a health professional and had founded a company providing health related consultancy services. She ceased paid employment in approximately May 2009.
Since separation, M has lived predominantly with his mother. In November 2007, the father accepted the mother’s proposal that he spend time with M five days (four nights) per fortnight. In June 2008 a child responsive memorandum, prepared by a Family Consultant, recommended that the father spend five nights with M each fortnight. That recommendation was put into effect, without order, by the parties.
In late August 2009, the mother told the father, via email, that “[i]t is not good for [M] to spend I [sic] night in your care. I have decided to withhold the alternate Monday night”. The mother subsequently withheld M on the following Monday, stating in another email “[y]ou will not be caring for [M] on alternative Mondays. There is no Court order and there is nothing you can do about it”.
The mother first sought orders to the effect that M be permitted to live with her in London on 11 August 2008. On 5 January 2010, a Further Amended Response was filed to that effect. On 30 June 2010, Loughnan J made interim orders regarding time to be spent between the child and his father. On that date, the mother indicated that she would not be pursuing an application to relocate with M to London. The mother subsequently changed solicitors and determined to again pursue such an order.
The first day of trial occurred on 9 February 2010. Interim orders were made by consent providing for the child to spend time with his father five nights per fortnight, each alternate week from Thursday afternoon to Friday morning and from Thursday afternoon to Monday morning every other week. That situation has pertained since.
On 15 December 2010, Rose J made further interim orders regarding time between M and his father during the Christmas school holidays. It is relevant to note that those orders provided for M to spend not more than four nights at a time with his father during those holidays.
The composition of and the value of the net property and superannuation interests of the parties or either of them (totalling $1,129,423.93) is uncontroversial in this appeal. The most significant assets are a property in Sydney Suburb 1 and a property in London, both of which were jointly owned by the parties and both of which were encumbered.
No ground of appeal challenges his Honour’s assessment of the parties’ contributions which were found to be equal.
By reference to s 79(4)(e) (“the s 75(2) factors”), in particular the father’s “vastly superior” “financial circumstances”, the mother’s primary care-giving responsibilities and her “serious health issues”, his Honour made an adjustment of 10 per cent in favour of the mother.
His Honour thus determined that the parties’ net property and superannuation interests should be divided in the proportions 60 per cent to the mother and 40 per cent to the father. His Honour’s orders provided, inter alia, that the mother would retain the parties’ London property and the father would retain the parties’ Sydney property.
Grounds of Appeal
Counsel for the mother sought, and was granted, leave to rely upon Amended Grounds of Appeal annexed to the summary of argument filed on 9 September 2011. The “Amended Grounds of Appeal” are:
As to the parenting orders:
1.That His Honour erred in failing to properly consider the impact upon each of the appellant and the child of the effect of the appellant’s health of both:
4.2 [sic] the refusal to permit relocation; and,
4.3 [sic] relocation to the United Kingdom.
2.That His Honour erred in the findings made in relation to the child’s wishes and, in particular in both:
2.1in drawing inferences as to the child’s wishes, including in relation to the time to be spent with each party; and,
2.2in placing no weight upon the expressed wish of the child to live with the appellant in London.
3. That His Honour erred in considering the willingness and ability of the appellant to encourage a close and continuing relationship between the child and the respondent, in particular in:
3.1drawing an apparent distinction between the appellant’s “ability” and “willingness”; and
3.2failing to deliver adequate reasons in relation to the distinction drawn and the findings made and conclusions reached consequent upon the same.
4.That His Honour erred in the findings made in relation to the child’s anxiety, in particular:
4.1in finding that the child’s anxiety had, in fact, lessened during 2010 based on a comparison of school reports; and
4.2in failing to consider the impact upon the child’s anxiety of the outcomes put forward by each of the parties and unlimitedly ordered by the Court.
5.That His Honour erred in failing to properly consider the impact upon each of the appellant and the child of:
5.1the refusal to permit relocation to the United Kingdom;
5.2the appellant’s proposed [sic] to relocate to the United Kingdom.
having regard inter alia to the matters the subject of each of grounds 1 to 4 inclusive.
6.That His Honour erred in failing to properly apply the relevant legislation and principles in determining the parenting orders to be entered and, in particular:
6.1in failing to properly apply and consider the matters required by section 65DAA;
6.2in failing to properly consider the advantages and disadvantages of the proposals put forward by each of the parties; and
6.3in failing to properly determine, in accordance with Part VII of the Family Law Act 1975, that which was in the best interests of the child.
7.That His Honour erred in, having considered whether there should be significant and substantial time, failing to consider whether such time:
7.1was reasonably practicable; and.
7.2was (in the circumstances of these proceedings) nevertheless in the child’s best interests.
8.That His Honour erred in relation to the orders made as to the division of time during school holiday periods in:
8.1failing to evidently consider and provide reasons for the order entered; and
8.2failing, to the extent that the issue was considered, to enter orders consistent with such consideration.
As to the financial orders:
9. That His Honour erred in finding that the appellant:
9.1 had an income of $681 per week on average; and,
9.2was likely to obtain employment in Australia in the foreseeable future.
10.That His Honour erred in making an adjustment of 10% on account of section 75(2) factors in favour of the appellant, such adjustment being outside the reasonable range of discretion.
11. That His Honour erred in:
11.1entering orders transferring the respondent’s interest in the London property to the appellant rather than ordering a sale, where the latter was the course sought by the appellant and the respondent did not seek the property; and,
11.2failing to require each of the appellant and the respondent to effect a discharge of the other in respect of liabilities secured over the real property to be transferred to each of them.
[Italics in original]
For the reasons which follow we are of the view there is merit in grounds 8 and 11 and the appeal should succeed on those grounds. We will deal briefly with the remaining grounds which we found to be unmeritorious.
School Holiday Time – Ground 8
As his Honour correctly pointed out, the mother’s position at trial was contained in her Further Amended Response filed 17 September 2010. That document made it clear that the orders sought by her in respect of school holiday time were confined to the child spending four consecutive nights with his father. On the other hand, the father sought that school holiday periods be divided on the basis of half/half. Thus, there can be no doubt that this was a live issue at the trial, and his Honour determined that it should be as the father sought.
However, we can see nothing in any part of his Honour’s Reasons for Judgment by which we are able “… to ascertain the reasoning upon which the decision [on this aspect] is based”. (Bennett & Bennett (1991) FLC 92-191 at 78,266 citing Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18).
We reject the contention of counsel for the father that it is possible to “infer” the reasoning process by which his Honour’s decision on this aspect was made. Indeed, it might be thought that the very necessity to “infer” reasons is a cogent indication that they may be lacking.
We agree with the submission made by counsel for the mother that it is possible for the same path of reasoning to support multiple findings. But, each finding must be clearly referable to that path of reasoning. Here, there were two separate issues. One related to how much school holiday time there should be and the other related to how many consecutive nights might be a component of that time. There were, in our view, ample reasons for his Honour’s conclusion as to the former.
Put another way, it is not possible to discern his Honour’s reasons for concluding that it was in M’s best interests to reject the mother’s contention as to the number of consecutive nights which should comprise the father’s time – an issue plainly joined between the parties.
It is indeed unfortunate that, in a parenting case in which one issue (international relocation) dominated the parties’ evidence, cross-examination, and the proceedings generally, that the appeal in respect of parenting orders should succeed in respect of what is, on any view, an extremely narrow issue within those proceedings. Nevertheless, we consider that error has plainly been established and we are constrained to allow the appeal in respect of that ground.
The father contends, understandably enough, that we should re-exercise our discretion in respect of this narrow issue. Plainly, it would be desirable for all concerned, and not least M, if we are able to do so. But, if we are to do so, the discretion must be exercised by reference to evidence before the Court at the date of the hearing of the appeal (Allesch v Maunz (2000) 203 CLR 172).
The issue, although narrow, has been a recurrent component of the parties’ conflict in respect of parenting and in their proceedings seeking parenting orders. Counsel for each of the parties effectively concede that there may be evidence which the mother (or even the father) would seek to place before the Court in respect of the facts and circumstances which now pertain to that issue.
Thus, we have no alternative but to remit that question for re-hearing.
The Sale of London Property – Ground 11
The parties jointly owned real property in London. At the trial the mother sought an order that the property be sold. During cross-examination, the father conceded that he too wanted the property sold (Transcript, 30 November 2010, p 84, lines 26 – 44). Further, each party agreed that there will be a capital gains tax liability in respect of the property, although neither party was able to quantify that potential liability with precision. So, too, in respect of the costs of sale.
His Honour ultimately ordered in respect of that property:
19.That on or before 5.00pm 10 June 2011 or such other date and time as the parties may agree upon in writing the father shall transfer to the mother the whole of his right title and interest in the property situate at and known as [J Street], London in the United Kingdom (“the London property”) and all of the contents thereof which may be owned by the parties jointly or severally AND FURTHER THAT the father sign all documents and do all acts and things necessary to ensure that the mother is acknowledged and permitted to receive all rent paid or payable for the occupation of the London property from the date of these Orders.
…
21.That the parties equally bear the liability for any capital gains tax arising from the transfer by the father to the mother of his interest in the London property pursuant to these Orders and they shall appoint an independent accountant to calculate such liability if any and meet the fees of doing so equally.
It is common ground in this appeal that neither party sought an order in those terms from his Honour. Further, neither counsel is able to point to any part of the proceedings before his Honour where an order in those terms was proposed by his Honour and the opportunity afforded to each of the parties to make submissions in respect of that course of action.
A failure to accord the parties natural justice in that respect does not form any part of any ground of appeal. However, a corollary of that position is that no part of his Honour’s Reasons for Judgment reveal a path of reasoning indicating why his Honour made an order to that effect, bearing in mind the effectively identical positions of the parties with respect to that property.
We consider that a failure to provide those reasons constitutes appealable error and that, accordingly, ground 11 must succeed.
Again, this might be seen to relate to a narrow issue and, indeed, one in respect of which, given the respective positions of the parties at trial, might be thought capable of agreement. We canvassed precisely that point with counsel for each of the parties, inviting the possibility of a joint minute of order so as to permit this Court to make an order giving effect to an agreed position. However, counsel eschewed that suggestion, submitting that, again, there exists the possibility that one or other party might seek to call additional evidence in respect of the situation now (Allesch v Maunz).
Again, then, the issue of the terms of the order needed to give effect to
his Honour’s assessment of the parties’ entitlement will need to be remitted to be heard by a trial judge.
The Remaining Grounds of Appeal Pertaining to Parenting Orders
The “Approach Grounds” – Grounds 5 to 7
In oral address, counsel for the mother, grouped grounds 5, 6 and 7 together and described them as the “approach grounds” or the “principal grounds”. Ground 5 does not easily fit that description and indeed, it was not dealt with in that manner in written submissions. However, it is, nevertheless, convenient for us to address these grounds in the same way.
As counsel’s description implies, these grounds attack the approach taken by his Honour to the determination of the central issue before his Honour which was whether the child should live with his mother in London.
Pared to its essentials, the argument by counsel for the mother, Mr Kearney, proceeds in the following manner. If (as we will ultimately find) there is no merit in the challenges to the findings made by his Honour in respect of the relevant s 60CC considerations, it can be assumed that it was in the best interests of the child to live with his mother in Sydney and to spend substantial and significant time with his father, s 65DAA of the Act required his Honour to, as it were, revisit that central finding once an assessment had been made of reasonable practicality as required by s 65DAA(1)(b).
It is said that this is so because his Honour was “not entitled to foreclose options other than Australia at the s 65DAA stage” of proceedings. The section contemplates, counsel argued, a “third stage”, being a stage at which the Court should consider “… making an order to provide [relevantly] for the child to spend substantial and significant time with each of the parents”. In so doing, the argument proceeds, it is necessary to consider whether that can be achieved if M is to live with his mother in London.
Having carefully examined the relevant statutory considerations pursuant to s 60CC, and having then drawn them together under the heading “Conclusion”, his Honour determined, in what we consider to be an unimpeachable way, that M’s best interests were best met by an order to the effect that M should remain in Australia living predominantly with his mother, but spending substantial and significant time with his father.
His Honour then proceeded to consider the requirements of s 65DAA in these terms:
189.The parties have each sought an order for equal shared parental responsibility, notwithstanding their conflicted parental relationship and poor communication. The parties are intelligent, well educated people with worldly experience. Equal shared parental responsibility will not work for the benefit of the child unless immediate steps are taken by the parties to improve communication between them. I will make appropriate orders for the parties to engage in suitable programs for that purpose.
190.Given that there will be an order by consent for equal shared parental responsibility, I am required by s 65DAA to consider whether the child should spend equal time with the parties and matters of substantial and significant time as well as reasonable practicality.
191.I have considered those matters and they do not apply in these proceedings, save and except for substantial and significant time with the father. Counsel did not make submissions in relation to these matters. That was understandable given that the proceedings were focused upon the mother’s application for an order to live with the child in London, UK. Neither party sought orders for equal time.
192.I will make an order for substantial and significant time for the reasons that follow.
The principles applicable to parenting cases in which one parent seeks to live with a child in a place geographically remote from the other parent have been considered by this Court subsequent to the decision of the High Court in MRR v GR (2010) 240 CLR 461. (See e.g., Collu & Rinaldo [2010] FamCAFC 53; Sigley v Evor (2011) 44 Fam LR 439).
While counsel for the mother, no doubt acutely aware of what this Court has said, for example, in Taylor & Barker (2007) FLC 93-345, eschewed reliance upon a contention that there should be any “slavish adherence” to a particular order of dealing with the mandatory considerations, the argument as ultimately advanced nevertheless echoes that approach. It bears repeating that the Act does not prescribe an order in which the relevant provisions of Part VII should be addressed.
Moreover, while the legislation prescribes the mandatory consideration of various matters – including those “upon which power is conditioned” (MRR at [13]) – slavish adherence to form is not required in the manner by which trial judges do so. What is essential is that each and all of the Act’s requirements are in fact met and that this be manifest in a path of reasoning sufficient to demonstrate that this has occurred leading to the ultimate result.
When the power to make an order is conditioned upon compliance with s 65DAA because “…a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child …” two questions are to be answered: is either of the relevant orders (equal time or substantial and significant time) in the child’s best interests and is such an order reasonably practicable? The latter is to be answered by reference to “… all the circumstances” (MRR at [14]) and in so doing, what must be looked at is “… the reality of the situation …” (MRR at [15]).
However, before the Court is required to consider whether the specified periods of time are reasonably practicable, the section mandates a consideration of whether each is in the best interests of the child. The Act prescribes but one means of determining best interests, namely, an assessment of those statutory considerations prescribed by s 60CC and applying the objects and principles in Part VII. As the terms of s 65DAA make clear, it is those findings that drive “… the reality of the situation” to which “reasonable practicability” must attach.
The argument on behalf of the mother renders s 65DAA as requiring a consideration of “best interests” again in respect of an assertion as to best interests that has already been rejected. Moreover, it seeks to “compartmentalise” the assessment of best interests. But the inquiry is not compartmentalised; rather, it is holistic. Counsel would have it that there are two inquiries as to best interests: the first is about whether best interests permit, as it were, a relocation; and, if that is rejected, the second (what counsel called the “third stage”) is an inquiry about the best interests of the child absent relocation when considering equal time or substantial and significant time.
The argument ignores the fact that the resolution of the first inquiry must, by the Act’s clear terms, canvass precisely the same matters as the second inquiry. It is the very findings about s 60CC which will shape the order; some of those findings will pertain to orders as to the child remaining in a geographical location, others will pertain to the nature and quantity of time – including as part of the mandatory consideration of equal time or substantial and significant time.
We observe in any event that counsel did not make submissions about the s 65DAA periods of time or, specifically, reasonable practicability. His Honour also records that neither party sought an order for equal time.
We reject the interpretation of s 65DAA which underpins “the approach grounds” 6 to 7. No error is identified in those grounds.
General Considerations – Grounds 1 to 4
As is well known, considerable challenges face an appellant appealing from a discretionary judgment (House v The King (1936) 55 CLR 499). That is all the more so when the challenges pertain, essentially, to the weight attached to evidence by the trial court (Gronow v Gronow (1979) 144 CLR 513).
Those challenges are also exacerbated in this Court in parenting cases “… given the large element of judgment, discretion and intuition” which is involved in cases of that type (AMS v AIF (1999) 199 CLR 160 at [150] per Kirby J) and where value judgments as much as facts are involved (CDJ v VAJ (1998) 197 CLR 172). In CDJ the High Court said (at 219) “[i]t is a mistake to think that there is always only one right answer to the question of what the best interest of the child require … [b]est interests are values, not facts”.
The exquisitely difficult tasks for a court inherent in parenting cases and, in particular, where a proposal to relocate internationally is concerned, involve a balancing of all relevant considerations – either primary or additional – as are mandated by the legislation together with a consideration of Part VII’s Objects and Principles. Seriatim attention on an appeal to the weight attached to specific considerations can tend to mask the fact that the task is a holistic one (see e.g. s 60CA and s 65D), albeit comprised of many mandatory components. The elucidation of considerations in the Act renders the task no less value-laden nor less difficult. As a result, cases where error will be exposed by seeking to assess what relative weight was, or was not, attached to any particular component in that process are likely to be rare.
In this appeal, grounds 1 to 5 can be seen to, in essence, challenge the weight which the trial judge attached to some evidence over other evidence or some considerations over other considerations.
The Mother’s Health and Capacity to Parent – Ground 1
At paragraph 90 of his Honour’s Reasons for Judgment, his Honour said this:
The child has progressed well in the care of the mother notwithstanding the anxiety which he has demonstrated and the mother’s own health issues. In those circumstances, I find that the mother does have the capacity to provide for the child’s needs whether in Sydney or London, although such capacity is likely to be improved in terms of her own health should she be able to live with the child in London.
In what Mr Kearney described as the “nub of the matter” in respect of this ground, it is asserted that his Honour had insufficient regard to the deterioration in the mother’s health if she was “not permitted to relocate” and was (effectively) forced to remain in Sydney. In particular, counsel pointed to the Family Report (19 May 2010). Counsel also referred to oral evidence from the family consultant, Ms B. An example is that it would be a “very poor outcome” for M if his mother was to remain in Australia and her physical health deteriorated (Transcript, 6 December 2010, p 16, lines 25 – 27).
It is also necessary to look at the expert evidence from the mother’s endocrinologist, Professor Y, and psychologist, Dr D, which was before his Honour. An example is Dr D’s evidence that the mother would have “much great difficulty with her recovery” if she were to remain in Australia (Reasons for Judgment, p13).
We agree with the submission made by counsel for the father that the evidence of Professor Y and Dr D needs to be seen in its proper context. In particular, the cross-examination of both the mother and Dr D provide, we agree, such context. Specifically (Transcript, 2 December 2010, p 280, lines 1 – 8; p 282, line 45 – p 283, line 25):
MS JUDGE: Assume for the moment that email traffic between [the mother and father] is twice a week at the moment in relation to [M] and assume that email traffic between them remains exactly the same level of frequency when there’s a move to London, twice a week in relation to [M], there’s no additional reduction of stressors or triggers there, isn’t there?
DR D:No.
MS JUDGE: Isn’t not [sic] dependent on whether or not her husband is on the other side of the world or local in Sydney.
DR D:If the content is solely about the child, then it’s the same.
…
MS JUDGE: Okay. So you have not had the opportunity to have cast your professional mind to how healthy or otherwise her move to London would be in the context of knowing or being advised of how she is going to be meeting various commitments on a day-to-day basis?
DR D:Well, I formed the belief in my clinical experience of working [the mother] that for her to gain employment would be a – would be something that could, again, aid in her recovery – build her up as an independent and stronger person than she has felt recently.
MS JUDGE : And if she had employment in Sydney it would have the same impact, wouldn’t it?
DR D: I don’t know.
MS JUDGE: Well, if it’s a fact of the employment that is the positive aspect of her recovery, then surely it doesn’t matter whether that employment is in Sydney or in London, assuming the offer of employment is the same – the area of employment is the same?
DR D: I think I’m thinking of in context of all the other things, her environment, social network, medical care; kind of all those things together.
MS JUDGE: But you haven’t taken into account, have you, how much time she would be having to spend looking after her child and what different arrangements she would be required to make in relation to her child, have you, in forming your opinion?
DR D: No.
MS JUDGE: You haven’t taking into account, have you, what arrangements she will need to make on a day-to-day basis to manage financially in coming to your opinion, have you?
DR D: No.
MS JUDGE: You haven’t taken into account in coming to your opinion what financial or practical arrangements she might be required to put herself through in order to arrange for – to come back to Australia from time to time with her child, have you?
DR D: No.
We would add in respect of a specific submission by counsel for the mother relating to the finding by the trial judge that the mother’s anxiety would diminish over time that, in our view, such a finding was well open to his Honour on the evidence before him.
We have not been taken to anything in the record which persuades us that his Honour failed to take account of any evidence that was relevant to the issue here under discussion, or that his Honour took account of any irrelevant considerations in that respect.
We consider that his Honour was alive to, and properly considered, the issue of the mother’s health and the impact that remaining in Sydney might produce. The findings that his Honour made were well open to him on the evidence. We see no error in the conclusion his Honour reached or in the manner in which his Honour reached it.
The Child’s Views – Ground 2
In respect of this ground, counsel for the mother contends that his Honour erred in inferring M’s views from the evidence of his parents and the Family Consultant and in determining that no weight ought to be attached to M’s expressed desire to travel to England with his mother (as reported by the Family Consultant) given his “sensitivity to the aspirations of [his mother]”.
In written submissions on behalf of the mother it is asserted that:
34. …it is not contended that [M’s] views ought have been considered as particularly relevant to the determination. It is submitted, however, that his Honour erred in drawing inferences:
34.1not advanced by either party nor identified in the course of the evidence (including by the [Family Consultant]…);
34.2not necessarily safe or open upon the evidence in any event; and,
34.3which accord to a child “indirect” views in circumstances where the child’s age, capacity and circumstances have led the Court to effectively ignore those views directly expressed by him.
[Italics in original]
Counsel for the father argues that there “was…undisputed evidence by the mother and the Family Consultant…as to the close relationship between the respondent and child” and as such, “[h]is Honour was entitled to infer from this and other evidence” that M wished to spend significant and substantial time with his father, just as his Honour was entitled to make the inferences that he did about the child’s views in relation to his mother.
We agree. In our view the inferences drawn by his Honour were well open to him on the evidence. Nothing to which we have been taken persuades us that his Honour made any error in the manner alleged.
Ability vs Willingness to Promote Relationship – Ground 3
It will be recalled that ground 3 asserts that the trial judge erred in “drawing a distinction between the mother’s ‘ability’ and ‘willingness’ to encourage a close and continuing relationship between [M] and the father” and “failed to give adequate reasons for the distinction”.
We consider that the mother’s challenge on this ground is answered by simply referring to what his Honour said in his Reasons, noting that the distinction complained of can be seen to have a context. His Honour held:
100.I find that the parties do have a basic willingness and ability to achieve the objects described in this particular issue.
…
103. In the context of the mother’s application for an order to enable her to live with the child permanently in London, the question of her ability to facilitate and encourage a close and continuing relationship between the child and the father, as opposed to her willingness to do so, falls for consideration in my subsequent findings of the likely effect of changes in the child’s circumstances as well as in the course of the ‘Conclusion’ set out in relation to the parenting proceedings between the parties.
…
116.A[n]…important factor is the loss of the father’s parenting skills and a possible reduction in them as his only direct personal and physical interaction with the child would occur during a maximum four weeks per annum and possibly less.
…
118.The mother’s proposal of regular communication between the child and the father by…Skype as well as by correspondence will assist in maintaining the relationship. There is a material difference between such electronic means of communication compared to physical interaction between a very young child and a parent with whom he has a loving and enjoyable relationship.
…
128.I find that there is obvious and very substantial practical difficulty and expense of the child spending time with the father in the United Kingdom…
…
173.The mother’s affidavit evidence is that she understands the importance of the child “maintaining a close and continuing relationship” with the father. The mother states that she has attempted to facilitate and encourage that relationship since the parties separated. The mother’s affidavit evidence is that the child in his manner “is the image of his father”. The child enjoys activities with the father and is “excited” at helping the father in various ways. The mother quite candidly stated in her affidavit:
“I honestly believe that these characteristics of [M] are present in him from the time he has spent with [the father] and the development of their relationship together. I understand the benefit to [M] of this relationship in terms of his developmental growth and maturity.”
…
186.…Whilst there will be some enhancement of a continued meaningful relationship with the father and benefit to the child as a result due to the various electronic and other means of communication outlined by the mother, the physical engagement between the child and the father and the benefits to the child of those aspects of the meaningful relationship that he has with the father and enjoyed with him over a considerable period of time will be largely dissipated.
[Emphasis in original]
Counsel for the father argues that it is entirely open to his Honour to consider “willingness” and “ability” as two distinct elements of s 60CC(3)(c) as “willingness” “goes to state of mind” and “ability” “goes to how the matter is to be put into effect”. We agree. Counsel also submits that his Honour, whilst acknowledging the mother’s willingness, addressed in detail the constraints on her ability should she relocate to London.
The trial judge’s reasons in respect of this statutory consideration are, in our view, entirely consistent with the evidence and appropriate. We can see no merit in this ground and have been taken to nothing which persuades us that
his Honour erred.
The Child’s Anxiety – Ground 4
Ground 4 seeks to challenge his Honour’s findings as to M’s anxiety and the inferences said to have been improperly drawn by his Honour about that anxiety having improved.
His Honour found:
61.Exhibit 16 records the opinions of the family consultant that the child “seems quite anxious about the issues between his parents”. The effect of his anxiety in that regard appears to have ameliorated to some extent, compared to the views expressed by Dr [C] in her report, in that he is apparently progressing well at school, there has been much development in his speech and cognitive ability and otherwise appears to be developing well as a young boy, notwithstanding continuing to show signs of anxiety.
[Italics in original]
Counsel for the mother submits that “there was a commonality in the evidence of the [mother], [Dr C] [a psychologist who treated [M] in 2009 and 2010] and [Ms B] [the Family Consultant] as to problems being suffered by [M], including as to anxiety and stress”. Specifically, counsel submits that it was not open to his Honour to rely upon a comparison of M’s school reports to assess the extent and severity of M’s anxiety and distress, in particular because “[M’s] anxiety [was] being caused by and manifesting itself in manners and circumstances other than at school”.
Counsel points to his Honour’s recognition that the parental conflict, being the primary source of M’s anxiety, “has existed for a considerable period time” and is continuing to impact upon M, as proof of his Honour’s error in relying upon M’s reports as evidence of the lessening of his anxiety.
Counsel for the father submits that “[h]is Honour was mindful throughout his judgment of the likely continuation of conflict between the parties and of the anxiety of the child”. In our view that is plainly so (see, e.g. [131] – [133] and [155] of the Reasons).
More importantly, in our view, a reading of his Honour’s reasons reveals that his Honour does not find, or purport to find, that M is anything other than an anxious child for whom the conflict between his parents continues to be a source of concern to him.
The findings made by his Honour were, in our view, well open to him. Nothing to which we have been taken persuades us that there is error in the manner asserted. There is no merit in this ground.
The Remaining Grounds – Settlement of Property
The Mother’s Income, Expenses and Capacity for Employment –
Ground 9
This ground challenges his Honour’s finding that the mother’s weekly income was $681 and the finding that the mother was likely to obtain gainful employment in Australia in the foreseeable future.
In respect of the former, it is said that “his Honour has regarded the mother’s income as being on average $681 per week gross, but failed to have regard to the mortgage repayments required to be made out of the rent received from the London property, reducing here income to $536 per week”.
His Honour, at [274], found that the mother’s income was “an average of $681 per week gross” (our emphasis). No error attends that finding. That finding occurs in the context of a consideration by his Honour of the mother’s Financial Statement, which includes an estimated $145.31 per week payable to Mortgage Express in respect of the London property. As is plain from
his Honour’s Reasons, his Honour was aware of the contents of the mother’s Financial Statement and there is nothing remarkable about the mortgage payment.
No error is demonstrated as is alleged in this part of Ground 9.
In relation to the mother’s ability to gain employment in the foreseeable future, the written submissions by the mother assert that his Honour “failed to recognise”:
73.1 the evidence of [Prof Y] and [Dr D] as to the impact on the appellant of remaining in Australia subject to the ongoing stressors identified;
73.2 the evidence of [Prof Y] that the appellant’s health will decline; and
73.3 the effect on the appellant of the dismissal of her application for relocation;
all of which, it is submitted, militated against a finding of the appellant being able to maintain employment in the foreseeable future.
Despite the assertion of error in “failing to recognise” the specified evidence, as the conclusion to the submission plainly indicates, the challenge is, in fact, to the weight which his Honour attached to some of the (expert) evidence in preference to other (expert) evidence.
His Honour held that:
277.The mother’s qualifications and experience for gainful employment are as a health professional. Her ability to exercise the capacity for appropriate gainful employment in that field is currently restricted due to the impact of her various health issues to which earlier reference has been made.
278.However, whilst the stress of the litigation and all factors related to it will not diminish following upon the making of orders, nonetheless I accept the evidence of [Dr D] that the effect of it and the orders made will almost certainly continue to bear adversely upon the mother. The mother has not been gainfully employed since about May 2009.
279.The mother has a wealth of experience and knowledge in her chosen fields. The mother had been invited albeit not taking employment in an administrative role. That possibility was not progressed due to her health issues at the time.
280.Whilst the mother will not be living in London with the child as proposed by her and remaining to live with him in Sydney where she has been unhappy for some time, it is clear that the mother has had the benefit of a range of good support from the health professionals who she has consulted and there is no reason to doubt that such support will not continue in the future.
281.There is no evidence from those expert witnesses that the mother will be incapable of re-entering the workforce in a position commensurate with her qualifications, knowledge and experience perhaps similar to the prospective employment in London. The gray area is when that is likely to occur.
282.I infer that the mother’s practical prospects of doing so are likely to occur in the foreseeable future given the lack of expert and other evidence suggesting that that will not be the case.
…
295.The mother is currently unemployed. The mother suffers from serious health issues, albeit not to such an extent that she no longer has a capacity to re-engage in the workforce in the foreseeable future…
[Our emphasis]
His Honour was, as the Reasons plainly indicate, acutely aware of the expert evidence before him. The mother concedes in written submissions that
“his Honour [was] correct to observe that there was no evidence from expert witnesses that the mother would be incapable of re-entering the workforce”. The father submits, correctly, that “[t]he appellant admitted in cross-examination that she had been offered employment at a rate of pay at the rate of $80,000 per annum as recently as May 2010” and that “[Dr D] confirmed that the appellant had told her this and that she was looking forward to returning to work”.
We consider that the conclusion reached by his Honour was more than open on the evidence before him. No error is demonstrated as is alleged in this part of Ground 9.
The s 75(2) Adjustment – Ground 10
His Honour dealt with the relevant s 75(2) factors specifically in paragraphs 267 to 297 of the Reasons. His Honour also made findings relevant to some of those same matters throughout his judgment, for example in relation to s 60CC(3). His Honour addressed the mother’s health issues, the mother’s current unemployment, the mother’s primary caregiving responsibility, the father’s “vastly superior” financial circumstances, the security of the father’s employment and the benefit to the father of his wife’s previous employment.
The error asserted is that, having considered those matters, the adjustment in favour of the mother “was inadequate and outside the reasonable range available”. The submission notes that the adjustment “in ‘dollar terms’ … represented approximately $113,000” which is “an amount equal to approximately one year of the father’s net income”.
A consideration of s 79(4)(e) involves a broad discretion and is a part of a process which itself involves the exercise of a broad discretion.
We are not persuaded of that in this case. Thus, Ground 10 fails.
Conclusion
We are of the view that the appeal should succeed on the issues the subject of Grounds 8 and 11.
For the reasons earlier given, we are unable to re-exercise the discretion and, unfortunately for these parties – and, indeed for their child – the issues the subject of those grounds must be remitted for re-hearing by a judge of the Family Court of Australia.
Costs
At the conclusion of this appeal we sought submissions in respect of costs. Counsel for the mother advised that there were matters about which this Court may need to be informed in respect of the issue of costs.
We will, then, make orders for the filing of written submissions by each of the parties in respect of the issue of costs.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for the Honourable Full Court (Bryant CJ, Strickland and Murphy JJ) delivered on 7 March 2012.
Associate:
Date: 7 March 2012
0
9
4