Bergmann & Bergmann
[2022] FedCFamC1A 38
•21 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bergmann & Bergmann [2022] FedCFamC1A 38
Appeal from: Bergmann & Bergmann [2021] FamCA 599 Appeal number(s): EAA 92 of 2021 File number(s): SYC 7892 of 2015 Judgment of: AUSTIN, TREE & STRUM JJ Date of judgment: 21 March 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother appeals from orders providing for the children to live with the father in Australia, declaring Australia their habitual place of residence, and providing for them to spend time with the mother – Whether there was a denial of procedural fairness – Whether the wrong legal test was applied – Whether there was a failure to consider mandatory considerations – Adequacy of reasons – Mistaken findings – Where the primary judge fell into error by finding, contrary to the available evidence, that the father could not travel to France – Where the error is material and critically fed into the exercise of discretion, causing it to miscarry – Appeal allowed – Proceedings remitted for re-hearing – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Denham & Newsham (2021) FLC 94-043; [2021] FamCAFC 141
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257; [2021] HCA 6
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
Number of paragraphs: 85 Date of hearing: 2 March 2022 Place: Sydney (via video link), delivered in Newcastle Counsel for the Appellant: Mr McHugh SC with Ms Clifford Solicitor for the Appellant: Barkus Doolan Family Lawyers Counsel for the Respondent: Mr Walker SC with Mr Othen Solicitor for the Respondent: Karras Partners Counsel for the Independent Children's Lawyer: Mr O’Brien Solicitor for the Independent Children's Lawyer: Russell Kennedy Aitken Lawyers ORDERS
EAA 92 of 2021
SYC 7892 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BERGMANN
Appellant
AND: MR BERGMANN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, TREE & STRUM JJ
DATE OF ORDER:
21 MARCH 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The proceedings are remitted to the Federal Circuit and Family Court of Australia (Division 1) for re-hearing by a judge other than the primary judge.
3.Orders 2, 3, 4, 5, 6, 7, 8, 9, 10 and 14 made by the primary judge on 12 August 2021 are set aside as and from the date upon which the proceedings are next listed before a judge exercising original jurisdiction under Pt VII of the Family Law Act 1975 (Cth).
4.The respondent shall pay the appellant’s costs of and incidental to the appeal in the fixed sum of $20,000.
5.The appellant and the respondent shall each pay the sum of $1,980 in part satisfaction of the Independent Children’s Lawyer’s costs of and incidental to the appeal, fixed in the sum of $3,960.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bergmann & Bergmann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, TREE & STRUM JJ:
By an Amended Notice of Appeal filed on 25 October 2021, the mother appeals from some, but not all, orders made by a judge of the Family Court of Australia (as the Court was then known) on 12 August 2021 under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the parties’ two children.
The parties were ordered to equally share parental responsibility for the children (Order 1), from which order there is no appeal because it was jointly sought by the parties and the Independent Children’s Lawyer (“the ICL”).
The appealed orders essentially made provision for the children to live with the father in Australia (Order 2), with Australia declared to be their habitual place of residence (Order 3), and for the children to spend time with the mother, with due allowance for her residence in City B, France (Orders 4–10). The father is to hold the children’s passports (Order 14). The balance of the orders were not appealed.
It had been the mother’s case that the children should live with her in City B and that they should spend as much time with the father as was reasonably commensurate with his chosen place of residence in Sydney and his work commitments.
The mother’s appeal was opposed by both the father and the ICL but, for the reasons which follow, the appeal must be allowed on one ground.
BACKGROUND
The parties were both born overseas. They met in City DD and commenced cohabitation in 2006, moved to live in Australia shortly afterwards and, in June 2007, settled in Sydney.
The elder child was born in 2008 and the younger child was born in 2011. They were aged 12 and 10 years at the time the orders were pronounced.
When the children were young, the mother regularly travelled overseas for work. At those times, the father managed the children’s care with the help of the maternal grandmother and a nanny.
The parties separated in December 2015 and, although they continued to occupy the same Australian home, over ensuing months, the mother’s principal place of residence gradually became City DD.
The father commenced proceedings for parenting orders in December 2015, shortly after the marital separation. By May 2016, the mother raised with the father the prospect of the children moving to live with her in City DD, but he rejected the idea (at [43], [112] and [115]).
Interim orders were made in May 2016 with the parties’ consent, providing for them to have equal shared parental responsibility, for them to share the children’s care, and restraining them from removing the children from Australia other than for designated holidays.
More interim orders were made in October 2016 with the parties’ consent, providing for the children to live with them for equal time, with each week broken into equal increments (at [49]). By December 2017, the parties agreed to vary the existing interim orders such that the children would live with them for equal time in weekly rotations (at [56]).
During 2018, it was the mother’s practice to often travel overseas for work in the weeks when the children lived with the father (at [40], [57], [275] and [343]). She felt isolated living in Australia and closed the Sydney office in which she had been working (at [62], [64] and [359]). By May 2019, the mother confirmed she would live permanently in City B with her new partner and she wanted the children to live with her there (at [61]). From 2020, she no longer had any projects in Sydney and worked exclusively in Europe.
During 2020, the interaction between the mother and the children was frustrated by the COVID-19 pandemic because the mother was in France for months at a time and international travel was difficult (at [88]–[102]). As a consequence, more interim orders were made in February 2021 to adjust arrangements for the children’s care, depending upon either the mother’s presence in or absence from Australia.
The trial proceeded in April 2021. It was common ground between the parties that they should have equal shared parental responsibility for the children and, regardless of with whom the children would primarily live, the mother intended to live in City B and the father intended to remain living in Sydney.
Judgment was reserved at the conclusion of the trial in April 2021 and, pending the delivery of judgment, interim orders were made for the children to live in Australia with the parties for equal time in alternating monthly cycles.
The appealed orders were pronounced in August 2021, requiring the children to primarily live with the father in Australia.
THE APPEAL
The appeal contends for errors of procedure, legal principle, fact, and discretion.
For good measure, despite the inordinate length of the reasons for judgment, it is also contended the reasons are inadequate in one respect.
Ground 6 – denial of procedural fairness
This ground contends the mother was denied procedural fairness by the primary judge addressing, in the reasons for judgment, an appeal decision not published until after the trial was complete, without giving her the opportunity to be heard.
As with allegations of judicial bias, contentions of the denial of procedural fairness tend to strike at the integrity of the trial process and should therefore be considered first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
The trial concluded with final submissions made on 19 April 2021. Judgment was reserved. On 6 August 2021, the Full Court delivered judgment in an unrelated appeal (Denham & Newsham (2021) FLC 94-043) and, in the reasons for judgment delivered several days later on 12 August 2021, the primary judge referred to that authority, saying this:
894.As at the finalising of this judgment the Full Court delivered a decision in the matter of [Denham & Newsham (2021) FLC 94-043] on this very issue, namely, a relocation to Europe of a child. The Court held the impact of restrictions on travel and evidence in relation to international border restrictions due to COVID-19 are material facts to be taken into account in such judgments. Their Honours held that there was a material error as the judgment proceeded on the basis of freedom of movement across borders and this was incorrect.
The mother contended the rules of procedural fairness demand that the primary judge should have re-listed the matter to foreshadow her Honour’s intended reliance upon the Full Court authority and then permit her to make more submissions about the aptness of the authority and “its applicability to the case at hand”. We reject that proposition.
Ordinarily, the final instance of any right or entitlement to procedural fairness enjoyed by the parties occurs when they make their final submissions and, thereafter, the trial having finished, the concept of procedural fairness has no further role to play in respect of the justiciable dispute (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257 at [1]–[4], [14] and [22]).
Procedural fairness is a practical, not abstract, concept and is only designed to avoid injustice (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]). The rules of procedural fairness do not have immutably fixed content and are adaptable to the specific circumstances. Fundamentally, each party needs to know what case the opposing party seeks to make, how that party seeks to make it, and be given the opportunity to meet it (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [156]–[157]; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 312; Kioa v West (1985) 159 CLR 550 at 582 and 585).
Those tenets were certainly observed in this instance. The mother well knew the father intended to remain living in Sydney and wanted the children to live with him. She intended to live in City B and wanted the children to live with her there. The parties mutually accepted the children must predominantly live with one of them and would consequently see much less of the other parent. They also knew that whilst ever the pandemic restrictions hamper international travel, the children’s face-to-face time with the non-residential parent will tend to be contained or perhaps even frustrated. The parties were cross-examined about their capacity for international travel and each had the chance to make whatever submissions they thought appropriate about all of those issues – including the travel limitations for which they contended, whether or not by reason of the pandemic restrictions. The requirement for procedural fairness ended when the parties completed their submissions in full knowledge of the salient issues. No new issue, unheralded at trial, was raised for the first time in the reasons for judgment.
The situation here was quite unlike that at first-instance in Denham & Newsham, which required the Full Court’s corrective intervention, because there the subject child’s international relocation was determined by the primary judge in ignorance of some evidence, including international travel restrictions, imposed during the pandemic, curtailing the ability of the child and parties to travel easily between Australia and Europe. The orders enabled the mother and the child to relocate to Europe in expectation the father and child could see each other not less than four times each year, when the father’s personal circumstances and international travel restrictions prevented it (Denham & Newsham at [8] and [36]–[52]).
The primary judge’s reference to Denham & Newsham in the closing paragraphs of the reasons for judgment had no bearing upon the appealed orders and had no effective work to do, aside from showing the primary judge was alive to appeal judgments dealing with evidence about international travel restrictions during a pandemic.
The irrelevance of Denham & Newsham may be tested and duly proven by asking rhetorically what submission could possibly have been made if the primary judge had re-listed the proceedings, as was asserted to be necessary? There is no plausible answer to give. Before the primary judge, the mother’s counsel correctly contended her Honour should take a cautious approach to the ability of the children or the parties to undertake international travel during the pandemic, which her Honour duly did. There was nothing more to say, since the primary judge expressly acknowledged this:
693.… I accept there are difficulties in the parents travelling, no matter what order I make given the impact of COVID-19 restrictions and its continued resurgence. …
…
725.There are clearly practical difficulties with both parties' proposals and currently neither parent could spend the time they may desire to spend with the child due to COVID-19 restrictions.
…
829.Further, as at the writing of this judgment I am unsure when quarantine will no longer be required for travel to Australia. Currently, and for an unknown time into the future, the travelling parent will also lose 21 days being 14 days to quarantine in Australia and 7 days in France on each trip. The result is whatever parent the children live with they will, for the first time, be without the other parent for significant and substantial periods of time in both school term times and holidays.
In our view, the mother was not denied procedural fairness by the primary judge’s reference to Denham & Newsham without prior recourse to her but, even if she was, the denial was merely technical and so immaterial to the outcome that no new trial is warranted (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). To conclude otherwise would corrupt the inherent requirement of pragmatism.
Ground 1 – applying the wrong test
This ground contends the primary judge fell into legal error by applying an incorrect test.
The mother submitted the primary judge applied a test as to which party’s proposal created the least uncertainty for the children, thereby wrongly elevating that consideration above all others prescribed by s 60CC of the Act.
At trial, several propositions were certain: the mother would live in City B, the father would live in Sydney, the children would live primarily with one parent, and their face-to-face interaction with the non-residential parent would be drastically reduced.
Although the principal decision as to whether the children should live with the mother in City B or with the father in Sydney had significant ramifications for the family, as the primary judge correctly recognised, the issue was narrow and binary (at [727], [797] and [817]). Nevertheless, the evidence was plentiful, the trial still lasted six days, and the reasons for judgment are extraordinarily lengthy.
The reasons betray the parties’ needless pre-occupation with a multitude of factual disputes and grievances, which seemingly caused even the solicitors to lose perspective, infecting the tone of their correspondence. As the primary judge correctly observed:
366.… Aggressive letters from lawyers do not assist parents to parent their children or deal with the difficult consequences of the decision I am tasked to make for the children and the parents.
While the primary judge was critical of both parties in some respects, overall, they were found to be “excellent people” (at [695]), with each of them being an “exemplary parent” (at [450], [626] and [646]), so the intricacy, the intensity, and the expanse of the litigious dispute tended to distract from the central issue.
Relevantly for this ground of appeal, her Honour was obliged to deal with the uncertainties created by each party’s proposal because the single expert gave opinion evidence on that issue (at [507], [517], [522], [528] and [866]–[868]), about which issue he and the parties were cross-examined. In any event, s 60CC(3)(d) of the Act required her Honour to consider the likely effect of any changes in the children’s circumstances, including the likely effect upon the children of their separation from either parent.
On the topic of “uncertainty”, the primary judge said this in the reasons for judgment:
4.[The single expert] did not state what option was better for the children in his reports per se and was at pains in his oral evidence to confine his opinion and recommendations to his view that the children remaining in Sydney was the “more certain option” and this conclusion led him to the position of not supporting the children living with their mother in France. This was the highest his opinion reached even after extensive cross-examination. There is no doubt the children remaining in Sydney is the less disruptive option for the children and that there are many uncertainties for the children living in France with their mother.
5.The evidence I must have regard to in the exercise of my discretion in determining the order in the children’s best interests is not confined only to disruption to their usual care arrangements and the consequences to them of such a disruption. My enquiry is far broader than that. Disruption to a child’s usual care arrangements is, however, a most important aspect of my deliberations.
…
293.I accept the father’s concerns that living with the children and [the mother’s partner] on a full-time basis would inject uncertainty into their collective lives and there is no doubt initially, in 2019, [the elder child] in particular was resistant to sharing her mother with [the mother’s partner] and expressed a disquiet about him as she has done with Danielle, the father’s friend.
…
373.The mother agreed the children did not know what day-to-day life in City B would be like, and they do not. They know holidays, which are a very different living arrangement. …
…
394.I accept that there is a level of uncertainty for the father and the Court regarding the mother’s financial positon as the mother was not forthcoming about her income. …
…
404.The mother agreed blending into a new family will not be without problems …
…
408.… There will be a change to the children’s care, whether the children live in City B or Australia. I accept living in City B will be by far the more significant change for them. They have never lived in that country or city or with [the mother’s partner] and his children.
…
449.The mother agreed with [the single expert’s] conclusion that it is difficult to predict exactly how the children are going to respond being away from their father, their friends, their Australian family, all they have known. The mother said “I can only say what I would think” and that she could not predict how the children are going to respond.
…
506.… I am tasked to consider the impact upon the children of the available options and then determine which option is in their best interests. I may be selecting the least-worst option as the order in their best interests as both options necessarily have downsides. …
…
508.I agree with [the single expert’s] comments and observations of the significant change for the children of living in City B and this is weighing heavily on my mind in this matter and is contra indicating to such an order being in their best interests. In his oral evidence [the single expert] was not as firm as in his reports about this negative impact and although pressed on many occasions to agree that moving to City B was not in the children’s best interests, the highest he took it to was that remaining in Sydney was the “least disruptive option” and he is correct.
…
513.… The evidence is that the children do want to move and do have an understanding of what it would mean however no one knows what the reality will be for them. As their mother said, it is their hope it will all be well as it was her hope. That is as high as it can be put.
…
531.Life in Sydney, [the single expert] agreed, was less uncertain than life in City B. …
…
564.… Whichever parent [the children] are away from, their relationship with the other parent will remain strong. It is the uncertainties in the move to City B that caused [the single expert] concern.
…
648.I accept entirely the children have never lived day to day with [the mother’s partner], his children and their mother. It is an entirely new and untested living arrangement, with a new school, a new culture, an entirely different society and climate, and the father and paternal family will be absent. This is a living situation the children have never experienced.
…
652.… This concern was not mentioned in the ICL’s submissions which were primarily focussed on the risk of change and uncertainty for the children in living with their mother in City B and I accept this is a highly relevant factor.
…
685.The relocation creates far more uncertainty and more risk than the alternative option, which is for the children to remain in Australia where they have excelled and flourished. That was the highest [the single expert] put it.
…
687.Similarly, significant and substantial time would be in the children's best interests but again it is not reasonably practicable, and not available. Certainty for children is very important. The parents have been litigating for over five years. Prior to COVID-19 I accept the children were in a well-settled arrangement being equal time weekly given their mother’s commitment to them in travelling to Australia every second weekend to co-parent her children. Since mid-2020 they have been in a state of flux and this arrangement is no longer viable for the mother. Currently they live a month-about arrangement with each parent until this decision is delivered.
…
702.With the mother, the overt problems the evidence has revealed are the substantial and unknown consequences for the children living overseas in the absence of their father and his family and their usual school and friendship groups with people they know but with whom they have never lived. That the mother did gloss over these issues somewhat however accepted that how things would go was not known and that she and [the elder child] were hopeful all would be well. Further, there is a lingering doubt in my mind regarding the impact on the children and their wishes of the mother’s yearning that they live with her in City B which, when coupled with the uncertainty of such a move, is troublesome. …
…
714.The evidence supports a finding that [the elder child] will be distressed, let down and grieve the absence of her mother in her life as she has known it to be which has been, at minimum, every second week. That will no longer occur. That emotion does not come from the mother, it comes from that which [the elder child] understands will be the circumstance if she is not to live in City B with her mother and that she has had a taste of such a consequence in 2020 and it was not good for her or [the younger child].
…
716.I accept [the father’s counsel’s] submission that the uncertainty of the children's move to City B with the certainty of what their life in Australia would look like was insurmountable for [the single expert] and he believed that was the overwhelming consideration militating against the mother’s proposal.
…
785.… [The children] have never lived without their father yet they did so without their mother. …
…
791.There is a risk for the children with either option, namely remaining in Australia or living in France. The risk in moving to City B is the impact of change and the uncertainty for the children coupled with not living with their father and the important scaffolding he has provided to them and his asserted inability to travel to France at all on his proposal, with the children having to do all the travel. However both parents agree that the children will not travel whilst they have to quarantine.
…
818.Two factors to consider in tandem are the consequences of assuaging the children’s wish to live with their mother in City B and, in particular, [the elder child’s] need to live with her mother and for her physical presence with the uncertainties for the children of such a change and the consequences of no longer living in Australia with their father and his family and where they have lived all their life.
…
831.The two salient issues that have distilled for me is the consequence of the children living in Australia without their mother, given I have found she is the most emotionally attached parent for the children and best able to assist them with change and the uncertainty that necessarily attends them living in France, coupled with the consequences of them living without their father and all that they know in Australian, a living arrangement they have never experienced.
…
834.There is a significant uncertainty for the children living in City B.
…
862.The impact of change upon the children. This is a significant factor. The mother glossed over what will clearly be fundamental changes for the children in living in City B which are, primarily, they will be living full-time with [the mother’s partner] and his two children who they know and have spent holidays with but have never lived with full-time.
863.Secondly, they will be living in a different city with a different culture, society, climate and lifestyle and where, although they speak French, they are not native French speakers.
864.Thirdly, they will be attending a new school whereas they have always attended the schools they are currently enrolled in in Australia and they are doing well both academically and socially. I accept the school they are to attend, the American School, conducts lessons in English and that they will be at the same school, something [the elder child] has expressed a wish to do. However, they will be living in France not Australia and will not have the support of their father or paternal family to assist them to deal with these changes as they did to assist them to deal with their mother’s absence from Australia in 2020.
865.Fourthly, that the children will not be surrounded by the supports they have always enjoyed from the father and his family and although they have a good relationship with their maternal grandmother, she has not been as involved in their life day-to-day as has the paternal grandmother and the father’s extended family.
…
878.There is a risk that by the children moving to City B this will destabilise them and interfere with their positive progress which is so evident in Sydney. This would be a tragedy and it is a possibility.
…
888.Whether the children remain in Australia or move to City B they are in for a roller coaster of emotions. That roller coaster may be amplified by the uncertainties and changes of moving to City B. …
The primary judge exhaustively canvassed the evidence and made numerous other significant factual findings, including these: there was no risk of harm to the children in either household (at [728] and [853]); the children would retain meaningful relationships with both parties regardless of the outcome (at [543], [644], [729], [753] and [852]); each party could count on family support to help care for the children (at [265]), but the children had deeper emotional support from the paternal family in Australia (at [758]); the mother had concrete reasons for wanting to live abroad (at [269], [279], [357] and [850]); and the father’s work commitments are more restrictive than the mother’s and hamper the ease with which he can travel (at [296], [306], [410], [494], [533], [691] and [693]).
Because there was little to differentiate the quality of the parties’ respective proposals, the primary judge identified the pre-eminent factors which were likely to influence the outcome as (at [789]): the children’s expressed views; the weight which should be afforded to those views; the changes and uncertainties which would arise from uprooting the children from their established home with the father in Australia; and the parties’ respective capacity to support the children’s relationships with the other parent.
Eventually, the primary judge turned to calibrate the factual findings with the mandatory considerations prescribed by s 60CC of the Act to determine what orders would meet the children’s best interests (at [840]–[897]).
Her Honour, confronted with two competent parents who wanted starkly different outcomes for their children, understandably found the decision to be “nuanced” and “finely balanced” (at [584], [587] and [901]) and ultimately reached this conclusion:
896.Despite the view I have formed that the children’s closest emotional attachment is their mother and that she is the parent best able to deal with changes for the children, the unknown for the children in, at best, seeing their father once a year for some time into the future when he has been the constant in their lives in having always lived in the country they live in and being available to them immediately, combined with the unknowns of the changes for them of living in City B, I have formed the view consistent with [the single expert’s] position that a move to live in City B is the least certain option. Having so found, it is not an order in their best interests that they live in City B with their mother despite accepting the children wishes that they want to move and live in City B with their mother are genuine.
897.The uncertainties of the move for the children to City B coupled with the consequences for them of not having their father in their life as they have always known it to be and the possibility of those uncertainties impacting negatively on their pleasing progress to date is overwhelming for me despite the positive view I have of the mother as their closest emotional attachment, the parent best able to deal with change for the children and her positive attitude to the father.
Evidently, in an orthodox exercise of discretion, the primary judge was persuaded that the effect upon the children of any profound structural change to the residential life they had hitherto enjoyed in Australia, primarily in the father’s care, carried more probative weight than the countervailing considerations of the mother’s marginally better parenting capacity and the children’s closer emotional attachment to her.
So analysed, there was no legal error in the primary judge’s approach. The wrong test was not applied. The uncertainties attending the children’s future under either proposal was a mandatory consideration, so it was considered and it duly proved to be influential, but it was not dispositive in isolation from all other mandatory considerations. It properly took its place among others. This ground fails.
Ground 2 – failure to consider mandatory considerations
This ground contends the primary judge fell into legal error by failing to properly consider “mandatory statutory considerations”. Although the complaint implies plurality in the disregarded considerations, during the hearing it was clarified to be confined to the failure to consider a single factor, namely s 60CC(3)(d) of the Act.
In support of this ground, the mother submitted in her Summary of Argument:
11.… At trial each party proposed a substantial change to the children’s living arrangements.
12.Given the parties’ proposals, her Honour needed to consider the provisions of section 60CC(3)(d) in the context of this case. She failed to do so adequately (or at all). The section is concerned with the effect of change on the child, not with the occurrence of change per se. In particular, the change to be considered will include the effect of separation from either parent.
…
14.Notwithstanding lengthy reasons her Honour’s judgment does not examine either party’s proposal through the lens of section 60CC(3)(d) so as to make a finding about the likely effect of the children’s separation from the mother (under the father’s proposal) or conversely the likely effect of the children’s separation from the father (under the mother’s proposal).
15.It is not the change occasioned by the orders sought which is the matter for consideration but the likely impact of that change on the subject children. The primary [j]udge stops the analysis at the point of determining that the mother’s proposal would constitute a change.
(Underline emphasis in original) (Bold emphasis added)
Shortly stated, we reject those submissions. For the reasons we gave above, when dealing with Ground 1, her Honour expressly considered the evidence which engaged s 60CC(3)(d) of the Act. The prospective effects upon the children of the parties’ competing residential proposals were directly addressed at several points in the reasons for judgment (at [293], [404], [408], [508], [648], [652], [687], [702], [714], [785], [791], [831], [862]–[865], [878], [885] and [888]).
As argued, Grounds 1 and 2 appeared to evolve into a contention that the primary judge failed to make any finding about the probable, as distinct from possible, adverse effects upon the children of either residential proposal. Given the single expert was only willing to speak in terms of potentialities and resisted making any firm predictions, there was a scant evidentiary basis for the primary judge to do anything other than observe the possible deleterious consequences of each option.
Section 60CC(3)(d) of the Act only required the primary judge to “consider” the likely effect of changes upon the children – not to actually make a finding about the “likely” effect of any changes, particularly if the evidence would not permit such findings about the probable effects. Even if only inferentially, the primary judge concluded the move to City B to live with the mother was fraught with more risk for the children than the retention of their primary residence with the father in Sydney.
Ground 4 – inadequate reasons
This ground contends the primary judge gave inadequate reasons for making orders which were contrary to the expressed views of the children.
The legal principles concerning the adequacy of reasons are not immutably applied in every case regardless of the particular circumstances. Generally speaking, the obligation borne by a judge is to give reasons for the judgment (as reflected in the operative orders); not to explain every factual finding or the acceptance or rejection of every argument advanced by the parties (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at [59]).
The content and detail of reasons varies according to the nature of the jurisdiction and the particular matter the subject of the decision. Reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge, but the judge need only assign reasons for the rejection of a “substantial” argument raised by a party (DL v The Queen (2018) 266 CLR 1 at [32] and [130]–[131]).
This ground of appeal specifically raises the sufficiency of reasons given by the primary judge for the rejection of the mother’s contention about the importance of the children’s views which, for present purposes, is assumed to be a “substantial” argument.
In relation to that issue, the primary judge accepted that the elder child expressed her genuine desire to live with the mother (at [270], [340], [486], [731] and [876]), but found the younger child was ambivalent about his preference (at [489], [738] and [877]). It was not contended those findings were mistaken. This complaint goes to the explanation afforded for the synthesis of those findings in the discretionary process.
The primary judge found the elder child’s views were influenced, though not deliberately (at [434], [812] and [813]), by the mother’s inability to refrain from discussing the issue with her (at [312], [431], [484] and [811]). So much was unsurprising since it is well known that children’s views are malleable and liable to be influenced by adults within their immediate orbit, even if only inadvertently (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]–[41]; RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at [52]).
Her Honour also accepted the elder child might have been unrealistically idealising the prospect of living with the mother in City B (at [340], [428], [501], [514] and [882]), particularly since the pandemic travel restrictions had constricted the children’s time with her over the year before the trial (at [468]).
While the elder child’s views were clear, they were still not as implacable as the mother’s. The elder child volunteered how she knew the mother would be more upset than her if she was to continue living with the father in Sydney (at [569] and [646]). Still, the primary judge was acutely conscious of how a decision contrary to the elder child’s expressed view might adversely affect her, saying:
509.What must also be considered by me is the impact upon the children of their wish to live with their mother being unfulfilled and, from [the elder child’s] perspective in particular, totally ignored.
Given the qualitative difference in the nature of the children’s stated views and the contextual certainty that they would live together with one parent and not be separated, the primary judge was conscious of being careful not to pull the younger child into the draught of the elder child’s stated view (at [515], [519] and [645]).
The primary judge’s reasons therefore expressly acknowledge the significance of the children’s views (at [789], [896] and [897]), particularly those of the elder child, but adequately explain why such views did not carry the discretionary weight for which the mother hoped. This ground fails.
Ground 5 – mistaken findings
This ground contends findings made by the primary judge at numerous points in the reasons for judgment, to the effect the children would rarely see the father if they lived with the mother in France, were “against the weight of the evidence (and unavailable having regard to further evidence)”. The mother confirmed in the appeal that the reference to “further evidence” was a reference to other evidence before the primary judge to which her Honour did not advert; not a reference to further evidence she wished to adduce in the appeal.
Ordinarily, a finding is open and immune from appellate challenge if it is reasonably premised upon, or is permissibly inferred from, some foundational evidence (Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307). It is only judgments (as distinct from findings) which are susceptible to challenge on the basis that they are “unreasonable”, “plainly unjust” or “plainly wrong” for allegedly being contrary to the weight of the evidence (House v The King (1936) 55 CLR 499 at 504–505; Norbis v Norbis (1986) 161 CLR 513 at 539–540), which issue was separately taken up under Ground 3.
As it transpired, this ground was not an argument mounted about the “weight” of supposedly countervailing evidence, as its terms implied. Rather, the mother submitted there was no evidence at all to underpin the subject findings.
Before resorting to the available evidence, it is useful to set out what the primary judge said in the reasons for judgment on the topic of the children’s future ability to see whomever would be the geographically distant non-residential parent. Without necessarily being exhaustive as to the references, the primary judge said this:
409.If [the children] remain in Australia they will permanently be separated from their mother for lengthy periods of time given I accept she cannot continue the travel as she has, although I accept she will still travel to spend time with the children in Australia during term time and in holidays until they can holiday in City B without quarantine. However this may be, at best, three to four times year.
410.If they live in City B with their mother they will be permanently separated from their father for lengthy periods of time for the first time in their lives. Given the father’s apparent inability to travel to City B at all they are likely only to see him when they travel to Australia in their holidays. This can only occur when they no longer quarantine and so it may be a very long time before they see their father. This will be distressing for them and it is unknown how they will cope with such an outcome which will be combined with the clear changes of living in City B. At best their father may be able to travel to see them once a year before quarantine is lifted.
411.Additionally, they will be separated from their paternal family, schools and friends. Whatever the decision it will result in a significant change for them. The mother agreed [the elder child’s] day-to-day life would look very different and for [the younger child] and when asked this question replied “absolutely”.
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454.The mother said 13 weeks a year in Australia would enrich their lives and the children would not object. The father’s response was that he only has four weeks annual leave and cannot travel to City B even if there was no quarantining required. However whether the children remain in Australia or live in City B the father will only have four weeks leave and may need to call on family to assist when the children are on holidays with him in Australia. Fortunately the children have loving grandparents, devoted aunts and uncles to assist the father.
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705.… the father tells the Court it is unlikely he can travel to City B at all and the children will not be travelling to Australia to spend time with him until quarantine is no longer required and when that occurs, no one knows.
706.Although the father’s proposal if the children live in City B sees him travelling to that city, from his oral evidence I formed the view this may not be likely and that, at best, the father can perhaps manage one trip per year given at present 21 days is lost in quarantine.
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722.[The mother’s counsel] submitted that the father's option or proposal in option “C” at pages 25 of 31 of his case outline provided he be permitted, if he gives notice, to spend more time in City B than the mother proposes to spend in Australia. It is his proposal and must be practical. The wording of his order 20 is that, in the event the father can travel to City B and provided he gives the notice, he can spend a period of up to 14 consecutive nights on the same condition as for the mother in the reverse and there be a seven-day period between. Although [the mother’s counsel] made that submission, following [MRR v GR], the practical reality is that due to the father's work commitments this would not be possible for him more than once per annum. His oral evidence was that he could not see himself so travelling at all and I note he did use the word “can” in his proposed order. The father will not spend more time with the children in City B than the mother will so do with them in Australia.
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724.The father said in evidence he hoped the mother would continue to travel as she has when it is clear even when COVID-19 restrictions are over she will not and cannot. The children will not be travelling until there is no quarantine. With the current COVID-19 restrictions [the mother’s counsel] submitted that the father’s orders are not reasonably practicable. For the mother to travel to Australia from France, she has to spend two weeks in quarantine and seven days upon her return. For the father to travel to France, he has to spend seven days in quarantine and two weeks upon his return. For the father this is not feasible with his work and this would cause him significant difficulty in spending time in City B with the children if he is also to have time with them for holidays in Australia. Having said that, however, he has his family to assist him in that regard.
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893.The evidence from the father orally is that he will be unable to visit them in City B more than once a year and I accept that evidence. The parents agree that until the children are no longer required to quarantine they will not be travelling to Australia or City B. The children’s life has, since 2012, been their father’s continued presence in the country that they live in and their mother travelling to and from Australia to parent them. One of the most significant changes for the children in living in City B is that the children may see their father only once a year for the foreseeable future given the children will not be travelling to Australia for an unknown period of time due to quarantine.
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895.The above scenario of the children only seeing their father once in the next 12 months if they are to live in City B may have significantly destabilising consequences for both children and the impact upon them is unknown. Yet once a year time may be a likely scenario for some period of time into the future. The mother, due to her work and capacity, will come to Australia on her own proposal no less than three times a year to parent the children.
(Emphasis added)
As can be seen, the primary judge said different things at different points, including:
(a)the father is apparently unable to travel to City B at all (at [410]), even when quarantine restrictions are lifted (at [454]);
(b)the father asserts it is unlikely he can travel to City B at all (at [705]);
(c)at best, the father may only be able to visit the children in France once each year while quarantine restrictions exist (at [410] and [706]); and
(d)it is not possible for the father to travel to City B more than once per year at any point in the future, regardless of international travel restrictions, due to his work commitments (at [722], [724] and [893] and [895]).
The mother capably demonstrated none of those findings accurately tallied with the evidence, as the following analysis reveals.
It was an agreed fact the children would not travel between France and Australia whilst ever the pandemic travel restrictions are in place. The parties agreed the non-residential parent would undertake all of the international travel until the restrictions are lifted, after which time the children and the non-residential parent will share the travel burden.
On the topic of travel, the father deposed in his affidavit:
243.Whilst I have some flexibility with my start and end times during working hours, I am employed pursuant to an employment contract which affords me 4 weeks of annual leave per year. Whilst this has enabled me to share equally in the care of the children as they are currently in Sydney, if they were not in Sydney it would not be possible for me to spend regular time with the children.
244.As of the date of this affidavit there is a ban on overseas travel from Australia and specifically a “Do not travel” advice regarding travel France from the Federal Government. There is no assurance that I would be given an exemption to visit the children in France. There is also no assurance I would be able to return from any trip given the difficulties with flights into Australia and these flights are very expensive. Further I would have to undertake a 14 day period of quarantine on my return at a significant cost. Given the worldwide epidemic there is no certainty that there will not be further restrictions in the future such as quarantines in both countries or closed borders.
The father’s capacity to travel to France to see the children (if they live there with the mother) was taken up with him in cross-examination, when he gave this evidence:
[SENIOR COUNSEL FOR THE MOTHER]: … Are you, for the benefit of your children, prepared to travel there to see them?
[THE FATHER]: As much as is possible, I will try to, yes.
[SENIOR COUNSEL FOR THE MOTHER]: … And for the purpose of being flexible enough to do that, how often do you think that you could travel there?
[THE FATHER]: I don’t know. I would have to consider it when the opportunity presents. It’s very hard to say with any certainty right now.
(Transcript 12 April 2021, p.88 line 44 to p.89 line 3)
The father was asked to think about that issue overnight and the topic was re-visited the next day in this way:
[COUNSEL FOR THE ICL]: … And you propose also in your orders time with – for periods that you go there, if the children were to relocate?
[THE FATHER]: I propose – that’s correct, yes, during term time. Yes.
[COUNSEL FOR THE ICL]: … And yesterday, I think your Honour asked you to think about overnight what time you might spend in City B?
[THE FATHER]: Yes. Yes. Yes.
[COUNSEL FOR THE ICL]: If the children were to relocate. Have you thought about that?
[THE FATHER]: I – I have thought about it, and it’s very difficult to – to balance everything, and my thoughts are that if the children are to come here for three roughly two-week periods per year, that’s about six weeks. My annual leave is four weeks. I have some accumulated long service leave that I could apportion over a number of – of years, and I would try to supplement the four weeks annual leave I have with two weeks of long service leave to cover the period when the children are here. That then doesn’t leave me anything to be able to visit City B, but if it were possible to do so – and I understand this would be difficult for the children to spend less time here, but it could be that perhaps for one of those weeks in the six-week period I could use that to go and visit them in – in France, rather than them spend that time here. But again, it would be difficult to – to balance with them not having that time with friends and family here, but I – it’s very hard to make any commitment to be able to travel to France when I – I don’t have the leave available to do so.
[COUNSEL FOR THE ICL]: So does that mean that you – you don’t foresee being able to travel to France if the children were to relocate there?
[THE FATHER]: I – I don’t at – at the moment, because I don’t have the annual leave and long service leave to do so, so that I could care for them when they were here.
HER HONOUR: Okay.
[COUNSEL FOR THE ICL]: And?
[THE FATHER]: But, sorry, with the only proviso that if I could possibly on one period try to shift the one week we were here, that I could go and spend that in – in France, but I would have to consider that against balancing the children’s needs to spend time here with family and friends.
(Transcript 13 April 2021, p.137 line 22 to p.138 line 6) (Emphasis added)
Several propositions follow upon the assumption that the children live with the mother in City B: the father proposed fall-back orders which required him to travel to City B to see the children, being an acknowledgment of his capacity to do so; he has four weeks annual leave to use; and he likely can use another two weeks of saved long-service leave at his disposal each year. In total, the father can likely use six weeks of leave each year. While his preference was to use that leave looking after the children in Australia, he was not bound to do so.
Those propositions were all premised upon the assumption that the children would spend roughly six weeks per annum visiting the father in Australia, which the parties agreed would not happen until the end of the global pandemic. Until that time arrives, if the children lived with the mother in City B, the entirety of the father’s leave was available to exhaust on his travel to France to see the children. His evidence about the uncertain prospect of his capacity to spend one week each year in France assumed he would be exhausting his leave entitlements looking after the children whilst they visited him in Australia.
In addition, the father’s employer gave evidence that there was some prospect the father would be granted conditional permission to work remotely, which offered the chance for the father spending more time in France, provided he still attended to work duties.
The final submissions of the father’s senior counsel fell within the confines of that evidence, asserting:
[COUNSEL FOR THE FATHER]: … even if [the father] could get to City B in addition to the school holiday time [spent by the children in Australia] it must be for the most limited of periods …
(Transcript 19 April 2021, p.595 lines 37–38)
The primary judge therefore fell into error by finding, contrary to the available evidence, the father could not travel to France at all, or alternatively, could at best only do so once per year for a short period, regardless of whether or not pandemic travel restrictions were in place.
The materiality of that error could hardly be in doubt. The father conceded the materiality, even though the ICL remained unconvinced. The dispute was determined in the fallacious context of the father’s virtual elimination from the children’s lives if they live with the mother in City B and he is required to quarantine and/or isolate during the pandemic restrictions.
In the ultimately dispositive paragraphs of the reasons for judgment (at [895]–[897]), the mistake of fact critically fed into the exercise of discretion, causing it to miscarry. The primary judge traded-off, on the one hand, the mistaken finding about the father’s practical inability to travel and the consequential deleterious effect upon the children of their separation from him and, on the other hand, the children’s closer emotional attachment to the mother and her enhanced ability to help the children adapt to changes. This ground succeeds.
Ground 3 – result against the weight of evidence
This ground contends the orders made by the primary judge were “against the weight of evidence”, thereby causing the appealed orders to be “plainly wrong”.
Since the mother has demonstrated a frank error of material fact under Ground 5, which requires remitter of the proceedings for re-hearing, it becomes unnecessary to consider this ground which contends for only an inference of error.
DISPOSITION
The appeal succeeds for the appealable error demonstrated under Ground 5.
Absent an agreement between the parties and the ICL about the facts upon which this Court could re-exercise discretion, the prospect of which agreement was mooted but never consummated, it was mutually accepted that remitter of the proceedings for re-hearing by another judge was the only viable option.
The specific orders from which the mother appealed (being Orders 2–10 inclusive and 14) must be set aside, but it would be premature to set them aside immediately and thereby create a vacuum concerning the children’s residence and the arrangements for them to spend time and communicate with the non-residential parent. The vitiated orders should be set aside from the time at which the proceedings are next listed before a judge of the Federal Circuit and Family Court of Australia (Division 1) exercising original jurisdiction under the Act, when there will be an opportunity to consider fresh interim orders pending the re-hearing.
Many other orders were not the subject of the appeal and need not be set aside in the exercise of dispositive power (s 36(4) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
The parties agreed they should pay, in equal shares, the very modest costs of the ICL, regardless of the outcome of the appeal.
In the event of the appeal being allowed, the mother sought an order compelling the father to pay her party/party costs in the sum of $48,169.58. He had no complaint about the manner in which her costs were calculated, but resisted any order being made on the basis that there should be no departure from the ordinary rule that the parties bear his and her own costs of the appeal (s 117(1)) and it was not unreasonable for him to have resisted the appeal.
The father’s submissions are rejected. The appeal succeeded for an error of fact, which he staunchly resisted and could easily have conceded. However, since Ground 5 was but one of several grounds, with the remainder being vainly pursued and understandably defended, we are persuaded the mother should only have a portion of her costs. By resort to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the mother’s costs are fixed in the sum of $20,000.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tree & Strum. Associate:
Dated: 21 March 2022
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