FAMILY COURT OF AUSTRALIA
| BLANDING & BLANDING | [2016] FamCAFC 21 |
| FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the mother has been the primary carer of the parties’ three children – Where the trial judge made an order for equal shared parental responsibility – Where the father sought orders for equal time – Where the trial judge made orders permitting the mother to relocate with the children from Sydney to the Central Coast – Whether the trial judge correctly applied s 65DAA of the Family Law Act 1975 (Cth) – Whether the trial judge, having decided that an order for equal time was not in the best interests of the children, was obliged to separately consider an order for substantial and significant time where such an order was not sought by the father – Whether the trial judge gave too much weight to the issue of the mother’s happiness and her financial circumstances – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 60CC, 65DAA |
| Beckham & Desprez [2015] FamCAFC 247 Bennett and Bennett (1991) FLC 92-191 Goode & Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513 Heaton v Heaton (2012) 48 Fam LR 349 Metwally v University of Wollongong (1985) 60 ALR 68 SCVG & KLD (2014) FLC 93-582 U v U (2002) 211 CLR 238 |
| APPELLANT: | Mr Blanding |
| RESPONDENT: | Ms Blanding |
| FILE NUMBER: | SYC | 3623 | of | 2013 |
| APPEAL NUMBER: | EA | 15 | of | 2015 |
| DATE DELIVERED: | 24 February 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Ainslie-Wallace & Berman JJ |
| HEARING DATE: | 14 September 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 January 2015 |
| LOWER COURT MNC: | [2015] FCCA 135 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms L Goodchild |
| SOLICITOR FOR THE APPELLANT: | Greg Elks & Associates Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms M Barnett |
| SOLICITOR FOR THE RESPONDENT: | Dignan & Hanrahan Solicitors |
Orders
The appeal against the orders of Judge Brewster made on 23 January 2015 is dismissed.
The father is to pay the mother’s costs of and incidental to the appeal, such costs to be agreed or failing agreement to be assessed and paid within forty-two (42) days of agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blanding & Blanding 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 15 of 2015
File Number: SYC 3623 of 2013
| Mr Blanding |
Appellant
and
| Ms Blanding |
Respondent
REASONS FOR JUDGMENT
Finn J
This is an appeal by a father, Mr Blanding, against orders made on 23 January 2015 by Judge Brewster of the Federal Circuit Court. The effect of the orders appealed was to confer (by consent) equal shared parental responsibility for the three children of the father’s marriage to their mother on both parents, but to permit the mother to move the children’s residence from Sydney to the Central Coast of New South Wales where they would live with her and spend some weekend time and half school holidays with the father who would remain in Sydney.
The three children were born respectively in 2003, 2006 and 2008. The father and the mother separated in mid 2012, with both remaining in the southern part of Sydney, and with the children living primarily with the mother but spending alternate weekend and school holiday time with the father. In late 2012 the mother formed a relationship with a Mr W, who lived on the New South Wales Central Coast, and in time she decided that she wished to move there with the children in order to further her new relationship.
Judge Brewster heard proceedings between the father and the mother on 19 and 20 January 2015. In his reasons for judgment delivered on 23 January 2015, his Honour recorded that before him the proposals of the parties were:
4.The father, who is the applicant, opposes the mother relocating to [the Central Coast]. He seeks that a week about shared arrangement be put in place. Should the mother decide to move to [the Central Coast] in any event he proposes that the children live with him.
5.The mother proposes the children live with her [on the Central Coast] and that they spend time with the father each alternate weekend from Friday to Sunday. She proposes that on one weekend in four she will take the children to Sydney and on the other weekend that the father travel to and remain in the [the central coast] area. She proposes that the mid-year holidays be shared equally and that a week about arrangement apply to Christmas school holidays.
Ultimately, his Honour determined that the mother should be able to move the children’s residence from Sydney to the central coast.
The trial Judge’s reasons
In his reasons for judgment, and after setting out briefly the factual background and the parties’ proposals, his Honour made findings in relation to the various matters contained in s 60CC of the Family Law Act 1975 (Cth) (“the Act”); these are the matters or considerations which a court is required to consider in determining the best interests of a child, who is the subject of parenting proceedings under the Act, and they consist of primary considerations (contained in s 60CC(2)) and secondary considerations (contained in s 60CC(3)).
In his consideration of the s 60CC matters, his Honour had regard, where necessary, to the mother’s proposal to move the children’s residence from Sydney to the Central Coast.
Having made his findings in relation to the relevant matters contained in
s 60CC, his Honour considered the issues of whether the father could relocate to the Central Coast or whether Mr W could relocate to Sydney; he concluded that neither option was practical for reasons which he gave. There is no challenge to that conclusion by his Honour.
His Honour next dealt with the father’s application that there be “an equal shared arrangement”, that is an equal shared care or time arrangement.
His Honour immediately said (at [37] of his reasons) that he rejected “that application and would have done so even if there were no relocation proposal”. He then explained his reasons for that conclusion. As his reasons in this regard appear to be very much at the heart of this appeal, I now set them out in full:
38.In this case, by consent, I have made an order that the parties have equal shared parental responsibility in relation to the children. Making such an order brings into play section 65DAA of the Act. That section addresses the issue of children spending equal time with each of their parents. Section 65DAA(1) provides that where an order is made that parents are to have equal shared parental responsibility for children the court must:
a)Consider whether the children spending equal time with each of the parents would be in the best interests if the children; and
b)Consider whether the children spending equal time with each of the parents is reasonable and practicable; and
c)If it is, consider making an order to provide for the children to spend equal time with each of the parents.
39.In MRR v GR (2010) 240 CLR 461 the High Court emphasised that it is only if the court is satisfied as the both the first two matters that it may consider an order for equal time. It must be satisfied that such an order is in the children’s best interests and is reasonably practicable.
40.Reasonable practicability is defined in section 65DAA(5). It requires the court to consider amongst other things “the parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement (for equal shared care)”.
41.It is common ground that the parties have a hostile relationship and find it difficult to communicate with each other about the children. Further their history indicates a lack of cooperation between them in relation to the children. I am not satisfied that an equal shared care arrangement is reasonably practicable.
42.Nor am I satisfied it would be in the best interests of the children generally. I am satisfied that during the parties’ relationship the mother was the primary carer. Since separation the children have lived primarily with her. I am normally reluctant to disturb a settled arrangement unless there reasons sufficient to justify my doing so. In my opinion there are not sufficient reasons in this case.
43.I am therefore faced with two alternatives. One is to make orders that the father spend time with the children each alternate weekend from Friday to Monday. This is of course the present arrangement. Such orders would prevent the mother relocating. The second is to make orders in terms of or terms similar to those sought by the mother which would enable her to relocate. I shall discuss the advantages and disadvantages of each of these.
His Honour then said that the advantages of making orders which would retain the present arrangements “are several and cogent”, and he went on to identify ten such advantages (although most might be better described as disadvantages) of a move to the central coast (at [44]), being:
·the reduced time which the children would spend with the father;
·the travel and accommodation costs involved for the father in spending time with the children on the Central Coast;
·the fact that in Sydney the children would spend time with the father “in a normal domestic situation” while such time on the Central Coast would have to be spent in rented accommodation;
·the father’s ability to be involved in the children’s schooling and sporting activities would be “gravely diminished” if they moved from Sydney;
·there would be “a greater then hitherto separation” from their extended family if the children moved from Sydney;
·the children would have to change schools;
·the children’s friends are in the Sydney area and they will see much less of them if they move;
·the children’s views as expressed to Dr R, who had prepared a family report (with such views being largely unsupportive of the move);
·the children would be moving into “an untested arrangement” should they share a residence with Mr W; and
·there would be three to four hours travel involved between Sydney and the Central Coast.
Having identified these ten matters, his Honour then said that there were “essentially only two reasons” why he had decided that the mother should be permitted to relocate (at [45])-[47]). The first of those reasons was the financial advantage to the mother of the move. The second, which his Honour described as “by far the most significant”, was the unhappiness and frustration which the mother would feel if she could not pursue a shared life with Mr W, and which “would undoubtedly rub off on the children and … have an effect on her parenting capacity”. His Honour also considered that the mother “would be extremely resentful of the father and see herself as trapped by him…”.
His Honour then concluded, before discussing the detail of his orders:
48.Overall I am satisfied that the impact that refusing to allow the mother to relocate would have on her, and through her on the children, and the impact on her parenting capacity, indicate that the best interests of the children in this case are served by my making orders which will permit her to move to [the Central Coast] and pursue her relationship with Mr [W]. I have made orders accordingly.
The grounds of appeal
There were eight substantive grounds of appeal, one of which (Ground 7) had nine sub-grounds, although one of those sub-grounds (sub-ground 7(h)) was not pursued. Counsel for the appellant father argued these grounds and sub-grounds in eight groupings. I will now address each of those groupings in the order that they were addressed by counsel (at least in so far as such an approach is practical or required).
The first ground of appeal is to the effect that having regard to the facts of the case and to the provisions of Part VII of the Act, the trial judge’s orders were not in the best interests of the children and were unreasonable and plainly unjust and wrong. In addressing this ground in her opening submissions, counsel submitted that the decision to permit the mother to relocate the children was not open to the trial judge, having regard to the then present circumstances of the children in Sydney. In order to demonstrate that there was substance in this submission, and thus in the first ground, counsel then moved to the other grounds which contain more specific complaints.
Grounds 3 and 4 are in the following terms:
3.His Honour failed to properly consider s 65DAA(1)(a) and (b) of the Act in that he failed to properly consider:
(a)whether the child spending equal time with each of the parents would be in the best interests of the child and
(b)whether the best interests of the children spending equal time with each of the parents is reasonably practicable.
4.Upon a finding that an equal shared cared arrangement is not reasonably practicable (Judgment para 41 and 42), His Honour failed to consider at all s 65DAA(2)(c) and (d) of the Act in that he failed to consider:
(c)whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.
The essential submission in support of Ground 3 appeared to be that
his Honour had not provided sufficient reasons for rejecting the equal time arrangement which was proposed by the father and which his Honour had acknowledged he was required to consider given the order for equal shared parental responsibility made by consent.
However, this submission, and Ground 3 itself, must be rejected once regard is had to [41] and [42] of his Honour’s reasons, which are earlier set out in [8] of these reasons. It is entirely clear from [41] that his Honour concluded that an equal shared care arrangement would not be reasonably practicable because of the parents’ hostile relationship, and from [42] that he concluded that such an arrangement would not be in the children’s best interests because the mother had always been their primary carer and there were not sufficient reasons to disturb that settled arrangement. In my view, his Honour’s reasons are adequate having regard to the test for adequacy of reasoning contained in cases such as Bennett and Bennett (1991) FLC 92-191 and the authorities referred to in that decision.
It is also important to note in connection with Ground 3 that no ground of appeal challenged his Honour’s findings regarding the hostile relationship between the parents and the mother’s position as the primary care-giver.
Further, it is relevant in the context of Ground 3 to mention that in the submissions of counsel for the father in support of this ground, and indeed of other grounds, there was some contention to the effect that in applying
s 65DAA(1), it is necessary to consider the issue of best interests
(s 65DAA(1)(a)) before the issue of reasonable practicability (s 65DAA(1)(b)), and that therefore in this case the trial Judge erred in considering reasonable practicability ahead of best interests (as he did in [41] and [42] of his reasons).
The recent decision of the Full Court in Beckham & Desprez [2015] FamCAFC 247 (delivered 22 December 2015) makes it clear that there is no requirement to consider s 65DAA(1)(a) and 65DAA(1)(b) in any particular order.
In the Full Court’s discussion of s 65DAA(1) in that case reference was made in the following paragraph to certain earlier Full Court decisions on which counsel for the father relied before us (emphasis added):
27. Secondly, statements from Heaton v Heaton (2012) 48 Fam LR 349 at [32]-[38] and Sayer v Radcliffe (2012) 48 Fam LR 298 at [77]-[79] were cited. Certainly, in Heaton (at [37]) the Full Court appeared to endorse an approach that required the trial judge to consider the issue of “best interests” first and, only if it was in the best interests of the child or children concerned, to then move to consider the issue of reasonable practicability. The Full Court in Sayer v Radcliffe (at [77]) appeared to adopt the approach in Heaton. However, we do not consider those statements can be treated as espousing any general principle. In Heaton, the parent who wished to relocate said she would not relocate if the children were not permitted to relocate as well, so it was clearly appropriate to look first at the issue of the children’s best interests. In Sayer v Radcliffe there is ambiguity about what the Full Court said, given the Full Court also cited with approval (at [53]) the approach outlined by another Full Court in Starr & Duggan [2009] FamCAFC 115 at [38], namely that it was logical, but not mandatory, to consider “best interests” first.
I have drawn attention to that particular paragraph in Beckham & Desprez for two reasons. First, because an explanation is there provided of earlier decisions on which counsel for the father sought to rely before us. Secondly, because I consider that there is a need to emphasise that the decision in Heaton v Heaton (2012) 48 Fam LR 349 does not establish any general principle, even in relation to a case where a parent seeking to relocate has said they would not relocate if the children were not permitted to relocate. This point needs to be emphasised because although not clear from Judge Brewster’s judgment, it seems likely in the present case that given his Honour’s focus on the mother’s unhappiness in the event that she was unable to relocate, that before his Honour the mother’s position was that she would not relocate if the children were not permitted to also relocate. If this indeed was the mother’s position, nothing in existing authority would render erroneous his Honour’s decision on the basis that he determined that an equal shared care arrangement would not be reasonably practicable before he considered whether such an arrangement would be in the children’s best interests (which in any event, he determined it would not be).
So far as Ground 4 is concerned, it has to be acknowledged that having rejected an equal time arrangement, his Honour did not, at least expressly, consider the option of the children spending substantial and significant time with their father (that is, whether it would be in their best interests and also reasonably practicable for them to do so) as s 65DAA(2) provides should be done once an equal time arrangement is rejected. Rather having rejected an equal time arrangement, his Honour went on to say in [43] (which for convenience I here repeat):
43. I am therefore faced with two alternatives. One is to make orders that the father spend time with the children each alternate weekend from Friday to Monday. This is of course the present arrangement. Such orders would prevent the mother relocating. The second is to make orders in terms of or terms similar to those sought by the mother which would enable her to relocate. I shall discuss the advantages and disadvantages of each of these.
I have earlier summarised the ten advantages or disadvantages of the two alternative options which his Honour had identified in [43].
It could be argued that in so identifying the advantages and disadvantages of the first alternative (being that the then existing arrangement for the children to spend each alternate weekend from Friday to Monday with their father), his Honour did in fact consider a substantial and significant arrangement, and thus that Ground 4 would not have substance.
However, the difficulties with this argument are first, that it was conceded before his Honour by counsel then appearing for the father, that the father would need more time if he was to be said to be having substantial and significant time under the existing arrangement (Transcript 20 January 2015, p 105, lines 40-46 and p 106, lines 1-2); and secondly, that his Honour did not make express findings as to whether such a significant and substantial time arrangement would be in the children’s best interests or reasonably practicable.
The most important consideration which, in my view, must prevent Ground 4 having merit is that before his Honour, the father was not, according to
his Honour’s summary of the father’s application in [4] of his reasons, seeking an order for significant and substantial time; he was seeking only an equal time arrangement, or that the children live with him should the mother move to the Central Coast. That this was the father’s position is confirmed by the submission made to his Honour by counsel then appearing for the mother in the course of final addresses to the effect that there was no alternative put by the father to an equal time arrangement (Transcript 20 January 2015, p 113, lines 28).
Notwithstanding the imperative language used in decisions such as
Goode & Goode(2006) FLC 93-286, it does seem to me that, as a matter of pure practicality and in the interests of the efficient disposition of parenting cases, a court need only concern itself with the actual proposals which each party puts before it and which, it can be assumed are “reasonably practicable” from that party’s point of view. In so saying, I do not overlook the fact that in
U v U(2002) 211 CLR 238 the High Court made clear that subject to procedural fairness considerations, a court in a parenting case is not bound by the parties’ proposals.
Accordingly, I would not be prepared to allow this appeal on the basis of the complaint in Ground 4, being his Honour’s failure expressly to consider and make findings in relation to the matters in s 65DAA(2).
Grounds 2 and 5 are in the following terms:
2.The learned Judge erred by treating the mother’s application for relocation as the primary issue for determination and by failing to make parenting orders based upon an evaluation of ach [sic] of the party [sic] proposal and in accordance with the legislative pathway applicable to parenting cases that seek relocation of one of the parties.
5.His Honour erred in failing to adequately consider the father’s application for equal time.
The complaint in Ground 5 concerning the adequacy of his Honour’s reasons for rejecting an equal time arrangement has already been considered in the context of my discussion and rejection of Ground 3 and need not be discussed further.
The submissions of counsel for the father in support of Ground 2 were to the effect that the trial judge had “treated the mother’s application for relocation as the primary issue” (Appeal hearing Transcript 14 September 2015, p 30, line 40-41) and had not adequately considered whether the father’s proposals for equal time or for substantial and significant time, would be in the best interests of the children. As counsel acknowledged in her opening oral submissions in support of Ground 2 (and also of Ground 5), there was some repetition between these submissions and those earlier made in support of Grounds 3 and 4; indeed much of what was put orally by counsel in support of Ground 2 appeared to me to be directed to the complaint contained in Ground 4 concerning his Honour’s apparent failure to consider a substantial and significant time arrangement. I have already explained why I would not be prepared to allow this appeal on the basis of that apparent failure by his Honour; it is therefore unnecessary to say very much more about Ground 2 other than that it must also be rejected.
I would, however, also observe in relation to Ground 2, that on its face the ground asserts error on his Honour’s part “by treating the mother’s application for relocation as the primary issue for determination”. But, it seems to me that the mother’s application to relocate the residence of the children could well be described as the primary, or most significant issue which his Honour had to decide, and that his Honour was not in error in so describing it.
In deciding that primary issue, his Honour did have regard, as he was required to do, to the children’s best interests as the paramount consideration. This he can be seen to have done in [48] of his reasons. Immediately before that paragraph, his Honour had identified the two reasons why he had reached the conclusion that the mother should be permitted to relocate. It was to the challenge to these two reasons (which is contained in Ground 7(a) and (b)), that counsel for the father next moved in her oral submissions.
Ground 7(a) and (b) provide:
7.His Honour erred in the exercise of his discretion in relation to
s 60CC(3) considerations by:(a)attaching overriding significance to the mother’s happiness in relation to her relationship with her new partner.
(b)attaching overriding significance to the mother’s financial reasons for relocation.
Although as this ground is drafted, it raises only complaints based on weight, and thus must face the well-recognised hurdles that grounds based only on weight face (Gronow v Gronow (1979) 144 CLR 513), in arguing the ground counsel for the father sought to assert that there was no evidence to support a finding that the mother would be unhappy if she was prevented from relocating, and that her unhappiness would impact adversely on the children.
However, counsel for the mother was able to take us to evidence from the expert, Dr R which would certainly support such findings. That evidence is set out in some detail in the reasons for judgment of Ainslie-Wallace and Berman JJ. So far as the weight which his Honour attached to the mother’s happiness, in a finely balanced case, which this no doubt was, one consideration must ultimately predominate. The first complaint in Ground 7 (in sub-ground 7(a)) has therefore not been established.
Similarly, in relation to the second complaint in Ground 7 (sub-ground 7(b)), which on its face was directed only to the weight placed by his Honour on the financial advantages to the mother of a move to the Central Coast, some reliance was also attempted to be placed by counsel for the father on the limited evidence available to support his Honour’s findings in this regard. However, I am not persuaded that such findings were not open to his Honour on the evidence, nor that he erred in the weight he attached to them. Accordingly, sub-ground 7(b) has also not been established.
Ground 6, which asserts that his Honour “failed to consider adequately orders less likely to lead to further proceedings”, was then addressed by counsel for the father. This ground is directed to his Honour’s discussion of the matter contained in s 60CC(3)(l) of the Act:
34.Paragraph (l) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. My decision to make orders which will permit the mother to relocate carries with it the potential for further litigation. It is possible there may be difficulties in relation to implementing the contact arrangements I have made or if the mother’s relationship with Mr [W] should break down the father may feel it appropriate to seek orders that she return to Sydney. Obviously further litigation would be inimical to the best interests of the children and this is a matter to which I have regard.
This ground appears to be somewhat misconceived in that there was no obligation on his Honour to consider “orders less likely to lead to further proceedings”. Rather the obligation was, as set out in the first sentence of [34], to consider “whether it would be preferable” to make an order that would be least likely to lead to the institution of further proceedings in relation to the children.
Moreover, I have difficulty in accepting the oral submission made in support of Ground 6 that his Honour “should have gone further” than he did in [34] “and considered in all likelihood [that] the order that would not lead to further proceedings would be effectively a status quo” (Appeal hearing Transcript, p 43, lines 18-19). I do not accept that a maintenance of the existing status quo would necessarily not have led to further proceedings.
Nevertheless, it has to be acknowledged that in [34] of his reasons, his Honour did no more than recognise that a decision to permit the mother to relocate would carry the potential for further litigation and that such further litigation would not be in the children’s best interests, and that he did not go on to consider whether it would be preferable to make another order that would be less likely to lead to the institution to further proceedings.
On balance, however, I am not persuaded that what might be termed shortcomings in his Honour’s approach to this particular s 60CC(3) matter, which of its very nature, has a very speculative quality, would be sufficient to warrant appellate interference with his Honour’s decision.
Grounds (or more accurately, sub-grounds) 7(c), 7(d), 7(e), 7(f) and 7(g) are all concerned with matters of weight, as was conceded by counsel for the father in her oral submissions.
Sub-grounds 7(c) and (d) assert that his Honour failed to give adequate weight, respectively, to the children’s opinions and to “the ambivalent relationship” of the eldest child with the mother’s new partner.
In the context of his determination of the children’s best interests pursuant to
s 60CC, his Honour considered the children’s views as reported by Dr R (at [14]-[18] of his reasons). It is fair to say that their views were unsupportive of the move to the Central Coast.
Despite Dr R’s comment that the children’s statements in this regard did not seem to be spontaneous, his Honour was prepared to proceed on the basis that their wishes were genuine, and when later in his reasons his Honour came to balance the advantages and disadvantages of the proposed move, he referred specifically to the children’s views. It can be assumed that he regarded their views as a disadvantage or as an argument against the move.
His Honour made specific reference to the “ambivalent relationship” of the eldest child with Mr W when he came to consider the issue of the children’s relationship with relevant persons pursuant to s 60CC(3)(b), but he expressed himself “satisfied overall that the children get on well” with Mr W. However, when he came to weigh up the advantages and disadvantages of the proposed move, his Honour acknowledged that an arrangement whereby the children would share a residence with Mr W was “untested”.
Sub-ground 7(e) asserts that his Honour failed “to consider adequately the legitimate interests and desires of the father and his ability to parent the children.”
The first thing to be said about this complaint is that there is no requirement in the Act for a court to consider “the legitimate interests and desires” of a parent.
As to the father’s parenting ability, that matter can be seen to be relevant under s 60CC(3)(c), (ca), (f) and (i); those paragraphs are concerned, in summary, respectively with a parent’s involvement in the child’s life, a parent’s obligation to maintain the child, a parent’s capacity to provide for the needs of the child, and a parent’s attitude to the child and to the responsibilities of parenthood. In his consideration of the s 60CC(3) matters, his Honour concluded that he had no criticism of either parent in relation to the first, third and fourth of these matters, and in relation to the second matter, being the maintenance of the children, his Honour found that the father “does appropriately meet his obligation to maintain the children.”
When he came to identify the advantages and the disadvantages of the proposed relocation, and apart from finding at [44(d)] of his reasons that “the father’s ability to be involved in the children’s schooling and extra-curricular activities will be gravely diminished” by the move, his Honour did not refer again to the s 60CC(3) matters referred to in the last paragraph of these reasons. But in my view, there was no necessity for him to do.
Sub-ground 7(f) is directed to the secondary consideration contained in s 60CC(3)(e), and it complains that his Honour failed to:
… consider adequately the ‘difficulty and expense’ of the father maintaining a meaningful relationship with the children in relation to:
1. the reduced time the father will spend with the children
2.the father travelling and spending time with the children in temporary accommodation
3.the father’s ability to be involved in the children’s schooling and extra curriculum activities will be gravely diminished
When considering the provisions of s 60CC(3)(e), his Honour said:
26.Paragraph (e) refers to the practical difficulties and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
27.The move to [the Central Coast] will not prevent the father and the children communicating but it will involve difficulty and expense in his spending face to face time with them. I shall discuss this later in this judgment.
Then, as he had foreshadowed, his Honour returned to these matters, quite extensively, it might be said, when he considered the advantages and disadvantages of the move to the central coast, as the following passages from his reasons reveal:
a)The orders I have made will have an impact on the children’s relationship with the father. He will not see as much of them as hitherto. His three nights a fortnight will be reduced to two and his time on the Friday will be reduced. I have made orders for long weekends which will, to a degree, ameliorate this problem but these orders, insofar as they create long weekends, will only last until [X] commences secondary school. I am told that this will be next year. I have no doubt that there are benefits to the children spending each alternate weekend with the father with the weekend including the whole of Friday nights and the Sunday night.
…
c)Moreover his having contact [on the Central Coast] is quite different to his having contact in Sydney. In Sydney they would be in his house in a normal domestic situation. They would have their toys, bikes etc. There is a great deal of difference between his spending time with them in his own home and spending time with them in rented accommodation.
d)The father’s ability to be involved in the children’s schooling and extra-circular activities will be gravely diminished. The children are keen on sport and involved in sporting activities. He has an involvement in these activities. This will not be practicable with the children in [on the Central coast]. …
Sub-ground 7(g) complains that his Honour failed to “adequately consider the impact on the children of:
1. ‘moving into an untested arrangement’
2.time spent between travelling between [the Central Coast]/Sydney.
3.The disruption of the children’s extra curriculum activities.
4.the children’s relationship with extended family members in Sydney.”
It need only be said about this complaint that all four of the specific matters referred to in this sub-ground were referred to by his Honour in his consideration of the advantages and disadvantages of the move to the Central Coast (see in particular [44(d), (e), (i), and (j)] of his reasons).
It was submitted by counsel for the father in support of this sub-ground that mere reference to such matters was not sufficient and that some more detailed examination of the impact on the children of such matters was required. I do not accept that submission. In my view, it was sufficient that his Honour identified the likely disadvantages to the children of the proposed move.
I thus conclude that none of the weight based challenges contained in Ground 7 have substance, particularly when regard is had to the difficulties which such challenges must face in light of authorities such as Gronow.
The only sub-ground in Ground 7 which was not a weight based challenge was sub-ground 7(i) which asserts that his Honour failed “to consider at all the report by Dr [A].”
Dr A is, or has been, the father’s treating psychiatrist. A very full report from him was in evidence before his Honour. He was not required for cross-examination.
For present purposes, it is sufficient to set out the penultimate paragraph of
Dr A’s report where he said:
As stated previously, [the father’s] Bipolar Disorder has been treated to remission. His alcohol dependence is in sustained full remission.
[The father] does not experience any side effects from his current medication regime. Neither [the father’s] psychiatric condition, nor his pharmacological treatment, are considered to impact negatively on his capacity to parent.His Honour dealt with the issue of the father’s health early in his reasons for judgment when he considered the second of the primary considerations contained in s 60CC(2)(b), which provides for “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. In this context his Honour said:
10.Each of the parties make allegations against the other which if true and which if still relevant would cause me concern as to the children coming to harm in the care or other of the parties. The mother alleges that the father is an alcoholic and also suffers from bipolar disorder. There is no doubt that he is an alcoholic. However he says that he no longer drinks and I accept his evidence in this respect. I do not believe that his alcoholism is a disqualifying factor in his caring for the children. It is also common ground that he does have bipolar disorder but this is presently well managed and I do not believe it is a disqualifying factor in his caring for the children. The father alleges that the mother abuses, or in the past has abused, alcohol. She denies this. I accept her denials.
In support of sub-ground 7(i), it was submitted both orally and in writing by counsel for the father that his Honour should have had regard to Dr A’s opinions as expressed in his report when considering an equal shared care or a substantial and significant time arrangement. Given his Honour’s accurate summary in [10] of Dr A’s opinion when making his findings in relation to the s 60CC(2)(b) matter, it was unnecessary, in my opinion, for his Honour to refer again to the father’s alcohol and mental health problems, particularly given that his Honour had found that neither was “a disqualifying factor in his caring for the children.”
Ground 8 is in the following terms:
In determining that in the circumstances of this case that “there are not sufficient reasons” [Judgment para 42] to disturb a settled relationship, the ultimate determination made by his Honour does not reflect a substantial and significant time arrangement in accordance with
s 65DAA(3) Family Law Act 1975 (Cth), which arrangement existed at the time of hearing and was in fact – “the settled arrangement.”This ground as drafted is not easy to understand. However, it emerged from the submissions of counsel for the father, that this ground was based on his Honour’s observation in [42] of his reasons (earlier set out in [7] of these reasons) that he was “normally reluctant to disturb a settled arrangement”. This observation was made in the context of his Honour’s finding that a shared care arrangement would not be in the children’s best interests because the mother had been the children’s primary carer.
The submission in support of Ground 8 then was that notwithstanding
his Honour’s expressed reluctance to disturb a settled arrangement, that was what he had in fact done when he permitted the children to move to the central coast, and thus away from close proximity to their father. In my view, Ground 8 is simply not a competent ground of appeal, and thus does not need to be further discussed.
Conclusion
As I have found no substance in any of the grounds of appeal, I agree with Ainslie-Wallace and Berman JJ that the appeal must be dismissed.
I also agree with their Honours for the reasons that they have given that the father should pay the mother’s costs of the appeal.
Ainslie-Wallace & Berman JJ
Introduction
By Notice of Appeal filed on 17 February 2015, Mr Blanding (“the father”) appeals against parenting orders made by Judge Brewster on
23 January 2015 as between him and Ms Blanding (“the mother”). The orders permitted the mother to relocate from Sydney to the Central Coast with the parties’ three children: X, who was born in 2003, Y, who was born in 2006 and Z, who was born in 2008.
Background
The parties commenced living together in 1996 and married in 2007. They lived primarily in Sydney’s eastern suburbs.
The parties separated on a final basis in June 2012. The mother and the children remained living in the matrimonial home in the eastern suburbs and the father moved to south-eastern Sydney. The father spent time with the children each alternate week from Thursday evening to Sunday evening. During 2014 this arrangement changed so that the children spent time with the father each alternate week from Friday to Monday morning.
In about September 2012, the mother formed a relationship with Mr W, who lives in the Central Coast area.
The father instituted proceedings by way of Initiating Application filed on
1 July 2013 in which he sought that the parties have equal shared parental responsibility for the children and that the children live with the mother but spend equal time with both parties.
The mother wished to relocate with the children to live in the Central Coast so that she could pursue her relationship with Mr W. In response to the father’s application, she sought orders that the parties have equal shared responsibility for the children, that the children live with her and that they spend time with the father. She proposed alternate regimes of time to be spent with the father depending on whether she remained living with the children in Sydney or whether she was permitted to relocate to the Central Coast.
After a two-day hearing, Judge Brewster made orders on 23 January 2015 that the parties have equal shared parental responsibility for the children and that the children are to live with the mother, who was permitted to relocate to the Central Coast. Orders were made permitting the father to spend time with the children in Sydney on two weekends every school term and on any weekend the father wishes to travel to the Central Coast.
On 12 March 2015, the father sought and was granted a stay of the orders made on 23 January 2015 pending the outcome of the appeal. The children remain living with the mother in Sydney.
Before we turn to his Honour’s reasons and the grounds of appeal, it is necessary to understand the evidentiary context in which the matter was decided.
It was uncontroversial that the father is a recovering alcoholic who also has bipolar disorder. At the time of the hearing before his Honour, the father was receiving treatment from Dr A, a psychiatrist. Dr A provided a report for the court. He said that the husband first came under his care in 2009 after he was hospitalised for treatment. There were a number of admissions to hospital for treatment after that time and the father also received mental health support in the community.
Dr A noted that the father described a history of significant alcohol consumption. Over the course of his treatment, Dr A noted that the father had achieved a medication regime by which, together with other measures including abstinence from alcohol and moderating his working hours, he “maintained a stable mood and has developed insight and self-awareness with regard to warning signs that his mood may be at risk of becoming unstable”.
In answer to the question of whether the father’s condition impacted on his capacity to “provide adequately for the needs of his children” Dr A said:
Mr [Blanding’s] psychiatric condition is in remission. His condition does not impact on his capacity to provide adequately for the needs of his children. Indeed, as stated previously, he described himself as an engaged father and reported a positive relationship with his children. By his account, he is at least as adept at parenting as many parents with no history of psychiatric illness.
Dr R was appointed as a single expert in the matter and accordingly interviewed all of the relevant parties and the children. In the report that he provided to the court, he said of the father:
At present if he is alcohol free (sic) and so he is probably able to continue functioning well enough. Whilst he is alcohol free and his mental condition is stable under psychiatric care he is not an unacceptable risk to the children.
He continued:
Since he has ceased alcohol 3 years ago it appears that his interest in the children has increased significantly and he now has quite a good relationship with them. [Ms Blanding] has always had a good relationship and has been very focused on the children.
In his recommendations as to the residence of the children, Dr R said:
I recommend that the children continue to reside with the mother as the primary carer. [Ms Blanding] is clearly the more stable capable parent as she does not have a mental illness, is able to support herself well, makes considered decisions and has good coping abilities. She has been able to be stable and solid for the children. She is appropriately concerned about them and wants to help achieve the best outcome for them.
He further said:
At this point I do have some concerns about [Mr Blanding] being overburdened by caring for the children on his own. I know that he is supported by his parents, which is most probably a very positive thing. However [Mr Blanding] hasn’t traditionally taken a great deal of responsibility with the children. I have confidence in him being able to be a contact parent however I am not confident he would be able to care for the children and also be able to work and manage his mental health issues and alcohol use. Should he become overly stressed he may be at risk of relapsing into alcohol abuse.
Thus Dr R recommended that the father:
…has the shorter time from Friday to Monday and then half the school holidays probably at a week at a time. During the Christmas period I don’t have a strong view as to whether it should be 3 weeks in a block or 3 weeks alternating although my concern is that 3 weeks in a block may be significant if the father is very stressed by the load of caring for three children for a long period of time such as 3 weeks.
Trial judge’s reasons
Given the grounds of appeal, it is necessary to consider his Honour’s reasons in some detail.
His Honour set out the competing proposals of the parties and said:
4.The father, who is the applicant, opposes the mother relocating to [the Central Coast]. He seeks that a week about shared arrangement be put in place. Should the mother decide to move to [the Central Coast] in any event he proposes that the children live with him.
5.The mother proposes the children live with her in [the Central Coast] and that they spend time with the father each alternate weekend from Friday to Sunday. She proposes that on one weekend in four she will take the children to Sydney and on the other weekend that the father travel to and remain in the [Central Coast] area. She proposes that the mid-year holidays be shared equally and that a week about arrangement apply to Christmas school holidays.
His Honour first discussed the considerations contained within s 60CC of the Family Law Act 1975 (Cth) (“the Act”), including the Primary Considerations referred to in s 60CC(2) and the Additional Considerations in s 60CC(3). Some of his Honour’s findings in this process are challenged in the appeal, and we will set out his findings where relevant when considering the grounds of appeal.
Having done so, his Honour said:
37.I shall first deal with the father’s application that there be an equal shared arrangement. I reject that application and would have done so even if there were no relocation proposal.
His Honour noted that he had, with the consent of the parties, made an order for equal shared parental responsibility in relation to the children. He then moved to consider s 65DAA(1), namely whether the children should spend equal time with the parents and the dual considerations of whether such a regime would be both in the best interests of the children and reasonably practicable. As his Honour correctly observed, it is necessary for a court to be satisfied of both matters before considering making such an order [39].
He said:
40.Reasonable practicability is defined in section 65DAA(5). It requires the court to consider amongst other things “the parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement (for equal shared care)”.
41.It is common ground that the parties have a hostile relationship and find it difficult to communicate with each other about the children. Further their history indicates a lack of cooperation between them in relation to the children. I am not satisfied that an equal shared care arrangement is reasonably practicable.
42.Nor am I satisfied it would be in the best interests of the children generally. I am satisfied that during the parties’ relationship the mother was the primary carer. Since separation the children have lived primarily with her. I am normally reluctant to disturb a settled arrangement unless there reasons (sic) sufficient to justify my doing so. In my opinion there are not sufficient reasons in this case.
His Honour then turned to a consideration of the proposals before him, namely, whether to make orders that in effect continued the present regime by which the father spent time with the children each alternate weekend from Friday to Monday, understanding that such a regime would prevent the mother from moving to the Central Coast with the children. The alternative was to make the orders sought by the mother which would allow her to move with the children to the Central Coast [43].
His Honour discussed the advantages and disadvantages of the two proposals at [44]. As to the disadvantages of the children moving away from Sydney,
his Honour noted that it would “gravely diminish” the father’s ability to be engaged in the children’s extra-curricular activities, including their sporting activities [44(d)].
His Honour said:
45.There are essentially only two reasons why I have decided that orders should be made which will permit the mother to relocate. The first but least significant is financial. The mother currently pays $500 per week rent for her premises in [eastern Sydney]. She says that she could rent suitable premises in [the Central Coast] for about $350 per week. Whilst it was suggested by the father’s counsel that she may not be able to obtain employment in [the Central Coast] I am satisfied that it is likely that she will be able to find work. In this respect she is a … Teacher’s Aide and I accept what she says in paragraph 52 of her affidavit of 19 December 2014 about positions available for her in [the Central Coast]. In addition it appears that the fees for the school that the children presently attend will rise in 2015 and the fees payable in [the Central Coast] will be less. Whilst the father is the party paying these fees it does apparently impact on his level of assessed child support.
46.I do not lose sight of the fact that there are additional costs involved. Once every four weeks the mother will have to travel to and from Sydney and there will be petrol costs and wear and tear on her car.
47.The second reason is by far the most significant. It involves the mother’s wish to pursue her relationship with Mr [W]. She does not plan on living with Mr [W] immediately. She wants to “test the waters” as it were and not rush the children into a “live in” relationship. However she hopes and expects that in time she and Mr [W] will live together and share a common life. I have no doubt that the mother loves Mr [W] and hopes that things work out and that she can share a life with him. It needs to be appreciated that in this case we are dealing with a fundamental element and powerful human emotion. In her affidavit she, or the person who drafted it, recites these things in a rather “matter of fact” way. But I do not criticise her for this. I have no doubt that were her wish to pursue a relationship and to share her life with Mr [W] be frustrated by being, in effect, “headed off at the pass” she would be very unhappy and frustrated. An attenuated long distance relationship in which her time with Mr [W] is confined to weekends and school holidays is no substitute for a shared life. Her unhappiness would undoubtedly rub off on the children and would undoubtedly have an effect on her parenting capacity. Further I imagine she would be extremely resentful of the father and see herself as trapped by him and perceive that he has frustrated her chance of happiness.
48.Overall I am satisfied that the impact that refusing to allow the mother to relocate would have on her, and through her on the children, and the impact on her parenting capacity, indicate that the best interests of the children in this case are served by my making orders which will permit her to move to [the Central Coast] and pursue her relationship with Mr [W]. I have made orders accordingly.
The Appeal
The thrust of the appeal challenges his Honour’s approach to the issues before him and contends that his Honour failed to consider the issues in accordance with what was described as the “legislative pathway”. While this was not the sole challenge to his Honour’s orders, it appeared to be a significant aspect of the appeal.
We understand the term “legislative pathway” to be a reference to s 65DAA of the Act and to Goode & Goode (2006) FLC 93-286.
Section 65DAA refers to a set of factors that must be considered if there is to be an order that parents have equal shared parental responsibility for children. In this case, the parties both sought and his Honour made an order that they have equal shared parental responsibility.
By way of context to our consideration of the grounds of appeal, we thus set out the passages in Goode & Goode (2006) FLC 93-286 in which the term “legislative pathway” was coined.
56. In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
…
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
At [82] their Honours continued and described the “legislative pathway”.
82. In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Although [82] refers to a process to be engaged in when determining an interim parenting proceeding, we do not understand it to be controversial that this process is to be applied in any case in which parties have, or will have, an order for equal shared parental responsibility.
We turn now to a consideration of the grounds of appeal. There are eight grounds of challenge contained in the Notice of Appeal. The grounds essentially challenge his Honour’s approach to the issue before him, contending that his Honour failed to follow the correct “legislative pathway” and thus fell into error. Although counsel for the father argued the grounds in groups, given the considerable overlap in the grounds of principle and fact we will consider the grounds in a general way but reflecting the general contentions as being that his Honour’s reasons for judgment demonstrate:
·A failure to follow the legislative pathway (Grounds 2, 3, 4, 5 and 8);
·Errors in approach to the mother’s application to relocate and errors in his Honour’s consideration of s 60CC factors (Ground 7);
·A failure to make an order not likely to lead to further proceedings (Ground 6); and
·A miscarriage of discretion leading to a generally wrong result (Ground 1).
Failure to follow the legislative pathway: equal time
Before dealing with the arguments put on appeal in relation to the asserted error in his Honour’s approach, it is helpful to set out how the case before
his Honour was framed and the context in which his Honour’s conclusions and findings were made.
During submissions counsel for the father addressed his Honour on the orders that he would consider if an order for equal shared parental responsibility was made. Counsel said:
Mr Johnson: … Your Honour, of course, considers section 65DAA, which is, of course, if in the event that your Honour is moved to make an order providing for equal shared parental responsibility, your Honour needs to consider, of course, whether it should be equal time or whether it becomes substantial and significant time. In my submission, the mother’s proposal provides neither of the above. Obviously, it doesn’t offer a ---
His Honour: Before I can make an order for either equal time or substantial and significant time I’ve got to be satisfied that (a) that it’s in the children’s best interests and (b) that it’s reasonably practical, otherwise I can’t even think about the proposal.
Mr Johnson: Correct. Well, just on that ---
His Honour: Well, these parties have a pretty acrimonious relationship and a fair bit of cooperation is not the word that I would choose to describe – well, cooperative is not the word I would choose to describe their relationship.
Mr Johnson: No.
….
His Honour: Well even, let’s assume that there’s no equal shared time or substantial and significant time, your client, I think the evidence is, is heavily involved in the children’s extracurricular activities…
…
His Honour: And his ability to participate in their homework and things like that would be more than circumscribed; it would be eliminated.
(Transcript 20 January 2015, p. 100, line 37-p.101, line 24).
Counsel for the father then moved to address his Honour on the advantages and disadvantages of the proposals before the court, namely that the children either remain in Sydney or relocate with the mother to the Central Coast. His Honour’s reasons at [43] and [44] reflect counsel’s submissions on the issue and, as stated above, his Honour came to the conclusion that equal shared care was not reasonably practicable and was not in the best interests of the children in any event.
The essence of the father’s challenge to this finding is that his Honour failed properly to consider the father’s case for equal time and the advantages and disadvantages of that case.
His Honour’s conclusions that equal shared care was not reasonably practicable rested on the admitted hostile relationship between the parties, their difficulties in communicating with each other and their failure to cooperate with each other in the past [41]. That being the case, it is difficult to see how a weighing of the advantages or disadvantages of the proposal could have had any effect on the issue since it was rejected by his Honour on this fundamental and admitted basis. Although s 65DAA(5) provides a number of means by which reasonable practicability can be ascertained, clearly the issue can be determined by reference to one or more, some or all of the matters to which the section speaks. In this case his Honour’s unchallenged finding as to the parties’ inability to communicate and cooperate with each other and the hostility that attends their relationship meant that the proposal for equal shared care was not reasonably practicable and rendered further consideration of the matters to which s 65DAA(5) unnecessary.
Although unnecessary, given his findings about reasonable practicability,
his Honour also considered that such a proposal was not otherwise in the children’s best interest in any event. His findings in this regard were that the mother had been the primary caregiver to the children, that the children have lived primarily with her since separation and that this was the settled arrangement. None of these findings was challenged, and at least so far as his Honour’s finding that the mother was the primary carer of the children, which was in fact accepted by counsel for the father during the trial (Transcript
20 January 2015, p. 102, lines 39-40).
It follows from a reading of his Honour’s reasons as a whole that the “settled arrangement” to which he refers was that the children lived with the mother and spent time with the father. That his Honour determined that it would not be in their best interests for that arrangement to be altered by an order that they spend equal time with each party was a finding well open to him on the evidence before him.
Indeed, these findings are also supported by the expert evidence before him and in particular the recommendation of the single expert, Dr R, to which we have already referred. Clearly his Honour’s findings were informed by that evidence which itself was largely unchallenged.
We do not accept that his Honour failed to evaluate or properly consider the evidence in relation to equal time. This challenge must fail.
Failure to follow the legislative pathway: substantial and significant time
The second challenge to his Honour’s orders was that, having determined that an order for equal time between the children and the parties was not to be made, his Honour failed to then move on and consider an order for substantial and significant time between the children and the father.
In support of this challenge it was asserted that at the time of the hearing before his Honour, the father was in fact spending substantial and significant time with the children.
It is necessary first to consider that assertion.
In closing submissions counsel for the father said to his Honour after addressing him on the best interests considerations, said:
Mr Johnson: In my submission, the father has a demonstrated capacity to be a parent and, indeed, a capacity and caring one at that. I think I’ve already addressed your Honour about the mother remains at the present time as their primary carer. The father says that there would need – and in order for – if your Honour concludes that it’s in the children’s best interest that he have substantial and significant time, that there would need to be an adjustment in favour of the father, if you forgive that expression, whereby he spends more time with the children. The only way that that can substantial and significant time can be effected, in my submission, is by the children remaining in Sydney.
(Transcript 20 January 2015, p. 105, line 40-p. 106, line 2).
Further, in reply to the submissions of counsel for the mother, the father’s counsel said:
Mr Johnson: … And, your Honour, so far as – bearing in mind your Honour’s observation and comments that perhaps your Honour, again, in the event of not permitting a relocation, that there be a spend-time provision on the alternate week.
His Honour: That’s not the case at the moment, is it?
(Transcript 20 January 2015, p. 127, lines 4-9).
Clearly then, so far as the father was concerned, the position at trial was that he was not then spending substantial and significant time with the children.
During the submissions on appeal, considerable emphasis was placed on a diary or journal kept by the father in which he outlined the time that he spent with the children in addition to the time provided in the orders that were operative at the time. His Honour was well aware that the father was involved in the children’s extra-curricular activities (Transcript 20 January 2015, p. 101, lines 18-19).
We do not accept the proposition that at the time of the hearing the father was spending substantial and significant time with the children, despite his considerable involvement in their extra-curricular activities.
In addition, it is clear that the father did not seek an order for substantial and significant time. As outlined above, the father sought an order for equal shared parental responsibility and equal time. On an interim basis the father sought that the mother be restrained from relocating to the Central Coast or an order, if she did relocate, that the children live with him. Similar orders were sought in the father’s case outline before his Honour. However, at the commencement of submissions counsel put the father’s position to his Honour as follows:
Mr Johnson: The father’s application, of course, seeks a shared care arrangement with the mother. Both parties seek equal shared parental responsibility and, of course, the father seeks half of the school vacations. In support of that claim he says that that arrangement could continue in Sydney, it could work…
(Transcript 20 January 2015, p. 96, lines 16-19).
It is immediately apparent that the father did not seek an order for substantial and significant time with the children in the event that his application for equal time was not granted. Indeed during final submissions, counsel for the mother said:
Mr Othen: There’s no need for me to address on the equal time proposal and ---
His Honour: No.
Mr Othen: --- and there’s no alternate put by the father, so I can’t address that. …
His Honour: Now, you can assume that if I make orders which do not permit your client to relocate the status quo will remain in relation to the time the father spends. The only issue that I – where I take – the only area I take issue with your client is the week about arrangement and the Christmas school holidays.
(Transcript 20 January 2015, p. 113, lines 24-34; our emphasis).
Two matters thus arise. First, there is a clear acceptance by the father that at the time of the hearing before his Honour, the children were not spending substantial and significant time with him. Secondly, the father did not seek any formal order for substantial and significant time in the event that equal time was not granted. The only reference to such an order was a suggestion in submissions that further additional time would need to be ordered if his Honour was minded to make such an order, which clearly he was not.
We repeat what was said in SCVG & KLD (2014) FLC 93-582:
77.Goode, and the cases that followed, establish that because these parties have equal shared parental responsibility for the children, s 65DAA required consideration. Goode and Marvel v Marvel (2010) 240 FLR 367 also establish that even where neither party applies for an equal time or substantial and significant time order, if there is or will be an order for equal shared parental responsibility in favour of a child’s parents, the court must consider whether or not such an order would be in the child’s best interests. However, neither Goode nor Marvel address the application of s 65DAA in a case where an earlier final order for equal shared parental responsibility is to continue, equal time had previously been refused and it is common ground that an equal time order would not be in a child’s best interests. Nor do those cases address the effect on the ultimate determination of earlier concessions or agreements.
78. In this regard, it is useful to recall that the necessary content of reasons for judgment depends upon the context in which they are given. Thus, factual and legal concessions, if accepted by the court, may conclusively deal with factors that legislation requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding.
Thus, the father’s application, which self-evidently did not seek an order for substantial and significant time, is relevant to his Honour’s “consideration” of
s 65DAA. We do not find that his Honour erred in not moving to a consideration of substantial and significant time when he declined to order equal time. His Honour’s approach was consistent with the way in which the matter had been conducted before him.
However, even if substantial and significant time between the children and the father had been in issue before his Honour, he had earlier found that by reason of the parties’ relationship, their inability to cooperate with each other and their lack of communication, equal time would not be in the children’s best interests. While this finding may not necessarily close off a finding that substantial and significant time was reasonably practicable, it must be potently persuasive of the issue. It is further noteworthy that in the orders sought on the appeal, the father sought that the mother be restrained from removing the children from Sydney, that he and the mother have equal shared parental responsibility and that they have equal shared care of the children. He did not seek an order in the alternative that he have substantial and significant time with the children.
Further, that the father, at trial, did not seek an order for substantial and significant time with the children in the alternative to equal shared care means that he is bound by the way he ran his case and cannot raise the matter for the first time on appeal (see Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
We thus reject the contention that his Honour erred in not considering whether the children ought to spend substantial and significant time with the father.
The approach to the application for relocation
It was next argued that his Honour erred in his approach to considering the mother’s application that the children relocate with her to the Central Coast.
His Honour said:
43. I am therefore faced with two alternatives. One is to make orders that the father spend time with the children each alternate weekend from Friday to Monday. This is of course the present arrangement. Such orders would prevent the mother relocating. The second is to make orders in terms of or terms similar to those sought by the mother which would enable her to relocate. I shall discuss the advantages and disadvantages of each of these.
The asserted errors in his Honour’s approach are characterised in the father’s summary of argument thus:
34. This approach, where his Honour considers he is “faced with two alternatives”, leads his Honour into error because his Honour incorrectly views the options for the children through the prism of either relocation or no relocation as opposed to properly considering making an order that the child (sic) spend substantial and significant time with the father – unless (in turn) substantial time would be either:
i) contrary to the child’s best interests as a result of the application of one or more of the factors in section 60CC; or
ii) impracticable.
35.Given that there is no presumption in favour or against relocation, the Judge should not have approached the decision making process in a fashion limited by 2 alternatives relating to relocation. If the Judge had approached the decision making process, considering and weighing the evidence through the prism of what orders would be in the best interest of the children and reasonably practicable, he may well have exercised his discretion differently.
Further it was argued that his Honour did not discuss the advantages and disadvantages for the children in the proposals, because he did not consider whether the children spending substantial and significant time with the parties was in their best interests and reasonably practicable.
As we have already indicated, his Honour’s findings demonstrate, both explicitly and implicitly, that an order that the children spend substantial and significant time with the parties was not reasonably practicable. When
his Honour came to consider the competing proposals of the parties, he was indeed left with two proposals as he identified at [43].
His Honour’s approach is consistent with the manner in which the case was presented to him by counsel appearing for the father. At the commencement of submissions, counsel for the father said:
Mr Johnson: … I suppose the – it appears that the two competing applications, your Honour, are somewhat diametrically opposed, principally by the application by the mother to relocate…
(Transcript 20 January 2015, p. 100, lines 25-27).
Not only was his Honour’s approach to the issue consistent with how the case was presented to him, but further, having rejected the appropriateness of an order for equal time or substantial and significant time between the parties and the children, the issues had indeed devolved to the two proposals: whether the children should remain in Sydney and continue spending time with the father as they were, or whether the children ought to relocate with the mother to the Central Coast.
His Honour made no error of approach or of principle in the manner in which he considered the issues before him.
As can be seen from his Honour’s reasons earlier mentioned, he did discuss the advantages and disadvantages of the proposals propounded by the parties. We do not accept that his Honour was in error.
Errors in the consideration of s 60CC matters
The mother’s happiness
It was argued that his Honour misdirected his consideration of the advantages and disadvantages of the parties’ proposals by considering the mother’s happiness.
His Honour found at [47] that if the mother was not able to pursue her relationship with Mr W, she would be “very unhappy and frustrated” and further that her unhappiness would “rub off” on the children and affect her parenting capacity. It was contended that his Honour placed too much weight on this factor when considering the parties’ proposals. It was further argued that there was no or insufficient factual basis on which his Honour could have come to that conclusion. Finally it was argued that this factor could not outweigh the other matters which, it was said, favoured the children remaining in Sydney.
It is to be recalled that his Honour had the benefit of a report from a single expert, Dr R, who commented on the likely effect on the mother if she was not permitted to relocate with the children to the Central Coast as follows:
To remain residing in Sydney would be a sad outcome for [Ms Blanding] who does want to be able to progress with her life and establish a more fulfilling relationship and family unit for her and for the children.
The effect on the mother if relocation was not permitted was taken up in the cross-examination of Dr R:
His Honour: And what about the impact on Ms [Blanding], if I were to stop her from going and she can’t have a normal relationship with the partner?
---Well, that – that’s the other side of the coin, your Honour. Yes, she has a right to pursue happiness for herself and for her children and to try and create a positive home environment in which she can feel emotionally fulfilled and also support the children and be well-equipped emotionally and have that stability herself. So if she’s prevented from going to be able to fulfil this relationship and – and create a home environment, then that could have an adverse effect on her emotionally and her – she – you know, she is – she has a key and, I think, the most substantial with the children.
Mr Johnson: Of course that would be turning the best interests of the children on its head, wouldn’t it, in many respects?‑‑‑Well, the best interests of the children are to be cared for as well as possible and the mother’s wellbeing is also important in being able to care for the children well.
(Transcript 19 January 2015, p. 39, line 38-p. 40, line 4)
Further Dr R was asked:
Mr Johnson: … But if the mother was not granted a relocation order – allowed to relocate, that would be the – certainly, a bad outcome for the mother?‑‑‑It would seem so, yes.
Mr Johnson: Is it a fair comment, doctor, to say that that this application to relocate is more about the mother’s interest rather than the children’s interest? --- I think it’s about the mother’s wellbeing, but I would see that that – her ability to create her own happy home environment is also a positive thing for the children, if that can be achieved.
(Transcript 19 January 2015, p. 42, lines 14-20)
There was thus ample evidence on which his Honour could conclude that the mother’s happiness in not relocating would not only affect her but also the children. We do not then accept the submission that this was a factor of no relevance to his Honour’s determination.
This ground devolves to an argument that his Honour apportioned disproportionate weight to this matter against the other countervailing considerations. As his Honour’s reasons make clear, this was not the sole basis for his determination that the order sought by the mother should be made. However, in his view, it was the most important. The weight or importance to be placed on evidence is a matter exquisitely within the preserve of the trial judge and we are not satisfied that in giving it the weight he did, his Honour erred.
It is important too to consider the contextual evidence of the parties’ relationships with the children. It was uncontentious that because of the father’s mental illness and alcoholism, he had not always been as involved in the lives of the children as he was in the relatively recent past. Indeed
Dr R commented that it has only been in the last three years that the father’s relationship with the children has improved and that he was concerned that the father may be at risk of relapsing if he becomes overly stressed, for example due to juggling the demands of caring for the children, work and managing his mental health.
Given his Honour’s findings about the importance of the relationship between the children and the mother, specifically that she had been their primary carer, as well as the strong recommendation of the single expert that she remain so, his Honour’s consideration of the mother’s happiness is thrown into clear focus.
We find no error in his conclusions in this regard.
The mother’s financial circumstances
It was submitted that his Honour erred in “attaching overriding significance” to the mother’s financial reasons for relocating.
It is apparent from his Honour’s reasons that he considered and attached weight to the benefit to the mother of moving where she had work available and where the cost of housing and schooling for the children was less than in Sydney.
His Honour also took into account that while the husband paid the children’s school fees in Sydney, that impost affected the amount of child support otherwise paid by him.
This factor was but one of a number referred to by his Honour in considering the issue and it is difficult to understand the submission that his Honour attached “overriding” significance to it. As we have said, this, together with the other matters to which he referred, were both relevant and important to his ultimate decision and the weight he attached to the individual matters was entirely a matter for his discretion. No error is demonstrated.
The likelihood of further litigation
When considering the matters referred to in s 60CC, his Honour said:
34.Paragraph (l) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. My decision to make orders which will permit the mother to relocate carries with it the potential for further litigation. It is possible there may be difficulties in relation to implementing the contact arrangements I have made or if the mother’s relationship with Mr [W] should break down the father may feel it appropriate to seek orders that she return to Sydney. Obviously further litigation would be inimical to the best interests of the children and this is a matter to which I have regard.
It was contended that his Honour erred in this regard by not weighing up the parties’ proposals against all of the factors and determining the regime that is least likely to lead to further proceedings.
This factor was but one of a number considered by his Honour when determining where the best interests of the children lay and subsequently, what order should be made in relation to them. To isolate one factor in particular, as this ground does, is unhelpful. His Honour was required to take this factor into account and he did. It was not suggested that he miscast the evidence before him. His Honour’s consideration of this factor was entirely consistent with the task before him and no error has been identified.
The views of the children and the statements of the child X
His Honour considered this matter from [12] onwards, setting out the view of Dr R who interviewed the children. Dr R expressed the opinion that the children’s statements to him seemed “pre-prepared” and not spontaneous, which he believed demonstrated the father’s influence on the children. His Honour concluded:
18. … The content of the statement does not reveal to me that the father has influenced the children. I propose to proceed on the basis that their wishes are genuine. No doubt, however, the children are aware that their father does not want them to relocate and their views may be to an extent influenced by this and by what they consider to be “fair”.
It was contended that his Honour should have “indicated what weight he places on their views and why”. We reject this submission, which carries with it the suggestion that a judge, in considering a range of issues as part of the exercise of a wider discretion in relation to the best interests of children, is in some way required to indicate “weight”. Such a submission misstates the very nature of the weighing process. His Honour clearly rejected the concern that the father had influenced the children directly but was open to the proposition that being aware of his opposition may have an influence on their views. In our view nothing further was warranted nor needed to be said.
Further, Dr R said of the interview with X:
He said he liked both parents but he thought it was unfair that his father didn’t have the same amount of time with them as their mother. He then said in a contradictory way regarding [Mr W] “I sort of like him but not as much”.
Dr R observed the children with Mr W and said that they appeared comfortable with him.
Potently, there was no cross-examination of Dr R about his comment or what effect, if any, it might have on his Honour’s determination. Equally, in closing submissions, counsel for the father made no submission about the child’s comments about Mr W, nor was any submission made to
his Honour about the children’s views or what weight should be attached to them.
In these circumstances, we do not see that his Honour was obliged to do any more than he did and we find no error.
It is convenient to consider the contended errors in the weight given by
his Honour to the following factors compendiously. It is first necessary to repeat that in respect of each of these factors, as with the earlier challenges to his Honour’s determination of best interests, are quintessentially matters of discretion and the bar to appellate intervention is set high indeed. It is not enough that a different tribunal may have come to a contrary view; rather, the appellant must establish that his Honour’s consideration and ultimate determination is frankly wrong. In none of the following respects has this been demonstrated.
The father’s desires and ability to care for the children
His Honour carefully and clearly considered the father’s desire to remain a part of the children’s lives. He was conscious of the additional time spent by the father by being involved with the children’s after school activities. His Honour found that the children had a close and normal relationship with the father and the mother [20]. He further took into account that a move to the Central Coast will change the children’s circumstances and that they will see less of their father than before [25].
The difficulty and expense of the father maintaining a meaningful relationship with the children by reason of the reduction in time spent with them, the travelling and the difficulty in the father being involved in the children’s schooling and extra-curricular activities
His Honour referred to and took into account the difficulty and expense of the father spending time with and communicating with the children at [26]. He noted that while it would not prevent them from communicating, it would be more difficult and expensive [27]. His Honour further considered these issues when determining the advantages and disadvantages of the parties’ proposals [44(a)] to [44(e)].
The impact on the children of the proposed move
His Honour directly considered this at [44(f)] to [44(j)].
The report of Dr A
Finally, it was contended that his Honour failed to give sufficient weight to the report of Dr A, who is the father’s treating psychiatrist. After providing information about the father’s condition, treatment regime and prognosis,
Dr A said:
His condition does not impact on his capacity to provide adequately for the needs of his children. Indeed … he described himself as an engaged father and reported a positive relationship with his children. By his account, he is at least as adept at parenting as many parents with no history of psychiatric illness.
Dr A was not required for cross-examination.
Counsel for the father submitted to the trial judge that although the father “readily accepts” that he has had a problem with alcohol and a previously undiagnosed psychiatric illness, he is now medicated and abstains from alcohol. He has also taken other steps to manage his mental health including reducing his work hours and introduced a generally “more stable management style to his life”. He was described by Dr A as “insightful” as to the nature and severity of his condition and highly motivated to maintain abstinence from alcohol. Further, Dr A indicated that neither the father’s psychiatric condition nor medication negatively impacts on his capacity to parent.
The extent of the submission on appeal in this regard is to assert that
his Honour ought to have had regard to the observations of Dr A. It is not suggested that his Honour failed to take into account a particularly important matter or failed to have regard to some issue. It is difficult to discern the point of this challenge.
In any event, the apportionment of weight or importance to evidence is a matter for the exercise of the trial judge’s discretion. As we have already said, the bar to appellate intervention in relation to such asserted errors in the exercise of discretion is high (see Gronow v Gronow (1979) 144 CLR 513).
No basis for appellate intervention has been established.
Miscarriage of discretion leading to a generally wrong result
It was argued that when his Honour’s reasons are read as a whole, it demonstrates that his discretion miscarried and his decision is plainly wrong.
We do not agree. His findings and his conclusions were open to him on the evidence and we do not accept that he erred.
The appeal will be dismissed.
Costs
As is customary, we sought submissions from the parties as to the costs of the appeal.
In the event that the appeal is unsuccessful the respondent sought an order for costs. Sensibly, the appellant conceded that it would be difficult to resist such an order if the appeal did not succeed. Further, the husband’s financial circumstances are demonstrably stronger than those of the wife.
We will therefore order that the husband pay the wife’s costs of and incidental to the appeal.
_____________________________________________________________________
I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Ainslie-Wallace & Berman JJ) delivered on 24 February 2016.
Associate:
Date: 24 February 2016
- AGLC
- Blanding & Blanding [2016] FamCAFC 21
- Case
- [2016] FamCAFC 21
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were primarily focused on the interpretation and application of the Family Law Act 1975 and the principles of child welfare in determining the living arrangements and financial support for the children. The father argued that the primary judge had erred in his findings regarding the children's best interests, the father's capacity to provide care, and the appropriateness of the financial orders made. The mother, on the other hand, contended that the orders were consistent with the statutory principles and that the father's appeal lacked merit.
The Full Court found that the appeal was without merit and dismissed it. The judges concluded that the primary judge had correctly applied the relevant statutory provisions and had adequately considered the evidence and the welfare of the children. The court was satisfied that the orders made were in the best interests of the children and that there was no basis to interfere with the primary judge's findings. Consequently, the appeal was dismissed, and the orders made by Judge Brewster remained in place. The father was also ordered to pay the mother's costs of and incidental to the appeal, with the costs to be agreed upon or, if agreement could not be reached, assessed and paid within forty-two days of the assessment.
Orders
Orders of the court
1.
The appeal against the orders of Judge Brewster made on 23 January 2015 is dismissed.
2.
The father is to pay the mother’s costs of and incidental to the appeal, such costs to be agreed or failing agreement to be assessed and paid within forty-two (42) days of agreement or assessment.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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