Bonnor & Loverdos

Case [2021] FamCAFC 93

FAMILY COURT OF AUSTRALIA

Bonnor & Loverdos [2021] FamCAFC 93

Appeal from: Bonnor & Loverdos [2020] FCCA 382
Appeal number(s): EAA 19 of 2020
File number(s): SYC 1387 of 2018
Judgment of: KENT, WATTS & TREE JJ
Date of judgment: 11 June 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals final parenting orders preventing the interstate relocation of the children – Where the primary judge made material erroneous findings of fact and failed to properly evaluate the nature of the relationship of the mother and her new partner – Where there was a significant issue in relation to the mother’s mental health – Where the primary judge made an incorrect finding that the single expert did not deviate from opinions expressed in her report – Where the primary judge failed to consider and make findings about the evidence from the mother’s treating mental health professionals – Appeal allowed – Matter remitted for rehearing – Costs certificates ordered.
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Family Law Rules 2004 (Cth)

Cases cited:

A v A: Relocation approach (2000) FLC 93-035; [2000] FamCA 751

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Blair v Curran (1939) 62 CLR 464; [1939] HCA 23

Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Taylor and Barker (2007) FLC 93-345; [2007] FamCA 1246

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

U v U (2002) 211 CLR 238; [2002] HCA 36

Zantiotis v Zantiotis (1993) FLC 92-367; [1993] FamCA 32

Division: Appeal Division
Number of paragraphs: 134
Date of last submission/s: 17 February 2021
Date of hearing: 3 February 2021
Place: Sydney (via video link)
Counsel for the Appellant: Ms Eldershaw
Solicitor for the Appellant: Holmes Donnelly & Co Solicitors
Solicitor for the Respondent: Marsdens Law Group

ORDERS

EAA 19 of 2020
SYC 1387 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS BONNOR

Appellant
AND:

MR LOVERDOS

Respondent

ORDER MADE BY:

KENT, WATTS & TREE JJ

DATE OF ORDER:

11 JUNE 2021

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.Orders 3 to 8 made 3 February 2020 are set aside upon the making of new final parenting orders.

3.The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

4.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

5.The Court grants to the…

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AGLC
Bonnor & Loverdos [2021] FamCAFC 93
Case
[2021] FamCAFC 93
Decision Date

CaseChat Overview and Summary

The appeal was brought by Ms Bonnor, the mother, against Mr Loverdos, the father, concerning final parenting orders made by the primary judge. The primary judge had ordered that the parties share parental responsibility equally, that the children live with their mother, and that the mother could not move the children to Brisbane without the father's consent. The mother appealed on several grounds, including the primary judge's failure to consider and make findings about evidence from her treating mental health professionals, and incorrect findings about her relationship with her new partner, Mr C. The appeal raised significant issues about the mother's mental health and the impact of the delay in final determination of the proceedings on her.

The court found that the primary judge had made material errors in his findings of fact and had failed to properly evaluate the evidence regarding the mother's mental health and her relationship with Mr C. The court held that the primary judge had not adequately considered the evidence from the mother's treating clinical psychologist and psychiatrist, and had incorrectly relied on the opinion of the single expert. The court also found that the primary judge had not given adequate reasons for preferring the opinion of the single expert over the evidence from the mother's treating mental health professionals. The court held that these errors were significant and had a material impact on the outcome of the case.

The appeal was allowed and the matter was remitted to the Federal Circuit Court for rehearing. The court set aside the final parenting orders made by the primary judge and ordered that the proceedings be reheard by a different judge. The court also granted costs certificates to both parties in relation to the appeal and the new trial. The court held that the errors made by the primary judge were significant and warranted a new hearing before a different judge to ensure that the children's best interests were properly considered.

Orders

Orders of the court

EAA 19 of 2020

SYC 1387 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS BONNOR

Appellant

AND:

MR LOVERDOS

Respondent

ORDER MADE BY:

KENT, WATTS & TREE JJ

DATE OF ORDER:

11 JUNE 2021

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Orders 3 to 8 made 3 February 2020 are set aside upon the making of new final parenting orders.

3. The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

4. The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

5. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

6. The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

For the reasons that follow, the appeal shall be allowed.BACKGROUND At the hearing before the primary judge, the father was almost 48 years of age and the mother was 37 years of age. The mother is a former sportswoman. She was a member of a sporting team and witnessed a horrific accident during training where one of her teammates died and others were seriously injured. The mother reported to her treating psychiatrist “feeling numb for years” (“Exhibit K”) after that time. In 2009 the mother suffered a significant back injury that ended her sporting career. The parties commenced cohabitation in 2013. Their first child was born in 2015 and their second child in mid-2017. The parties separated in early 2017, prior to the birth of their second child, and the father sought a DNA test to establish he was her biological father. The mother commenced a relationship with Mr C by February 2017. After separation the elder child, then aged two and a half years, spent four nights a fortnight with her father. The proceedings had initially been listed for final hearing in June 2019 but the matter was not reached. The mother’s treating clinical psychologist reported upon the effect on the mother of the delay in the final determination of the proceedings. During the time it took for the case to come on for hearing, the mother and Mr C had managed their relationship with the mother ordinarily living in Sydney and Mr C in Brisbane. Their stated intention was to cohabit in Brisbane about 12 months after the mother’s arrival in Brisbane to allow their respective children to integrate into a blended household. At the hearing before the primary judge the father sought orders that would prevent the mother from removing the children from Sydney to live in Brisbane, and that the children’s time with him be progressively increased to ultimately a shared care arrangement. Both parties sought equal shared parental responsibility. The mother sought orders which would enable her to relocate the children’s residence to Brisbane, and initially spend fortnightly time with their father; one weekend in four in Brisbane and one weekend in four in Sydney. The mother proposed that once the elder child commenced school, the children’s time with their father move to three weekends each school term with two weekends in Brisbane and one weekend in Sydney in terms 1 and 3 and two weekends in Sydney and one weekend in Brisbane in terms 2 and 4. Other orders were sought in relation to school holidays and special occasions. The hearing took place before the primary judge on 13–15 November 2019 and written submissions were ordered, the last of which was filed on 23 December 2019. The primary judge delivered oral reasons for judgment on 3 February 2020 and on that day made orders that the parties have equal shared parental responsibility (as sought by the parties); that the children live with the mother; and that the mother be prevented from relocating the residence of the children outside Sydney without the written consent of both parties. The reasons for judgment were provided in writing on 23 April 2020.

Evidence

Evidence Before The Court

Accordingly, there is merit in Grounds 3 and 8.Did the primary judge err in failing to consider and make findings about the evidence of the mother’s treating clinical psychologist and treating psychiatrist? (Ground 5) Did the primary judge err by failing to give adequate reasons for preferring the opinion of the single expert? (Ground 6)Did the primary judge err in placing reliance on the opinions of the single expert as to the mother’s mental state and her prognosis? (Ground 4) Grounds 4, 5 and 6 relate to the primary judge’s consideration of the mother’s mental health. The mother submits that the error revealed by Ground 5 is that the primary judge erred in law by finding that the Court should rely on the evidence of the single expert “where there was no other evidence of a single expert” (at [55]). Ground 6 complains that the primary judge did not explain why the mother’s evidence from her treating clinical psychologist and treating psychiatrist about her mental health was not referred to. Ground 4 pertains to what the mother asserts are erroneous factual findings that arise out of the error in Ground 5. The deterioration in the mother’s mental health, whilst she remained in Sydney and how it affected her parenting capacity, were central issues in the case. At [54] the primary judge observed that: … this is a case about more than just the mother’s own happiness if she is not able to move to Brisbane. The court was left in a position, having heard the evidence, of being highly concerned about the mother’s capacity to parent. The hearing took place in November 2019. The evidence before the primary judge about the mother’s health was:(a)The single expert’s report dated 23 August 2018, paragraphs 28–33 based upon interviews in July 2018;(b)The single expert’s report dated 29 August 2019, paragraphs 104–115 based upon interviews in July 2019;(c)An affidavit of the mother’s treating clinical psychologist who had been treating her since December 2018, filed 2 May 2019 annexing a report dated 22 April 2019; an updating report from the mother’s treating clinical psychologist dated 20 October 2019 (Exhibit G); the mother’s treating clinical psychologist’s clinical notes of sessions with the mother (Exhibit J); a report from the mother’s treating clinical psychologist to the mother’s GP dated 15 February 2019 (Exhibit H);(d)A report dated 18 August 2019 from the mother’s treating psychiatrist, and her clinical notes subsequent to that time (Exhibit K);(e)Oral evidence of the single expert at trial; and(f)Oral evidence of the mother’s treating clinical psychologist at trial. In written submissions filed 16 December 2019, counsel for the mother summarised this evidence (paragraphs 66–88). The primary judge deals with the issue of the mother’s mental health at [51]–[57] of the reasons. At [55] the primary judge says:[The single expert] was an impressive witness in the proceedings. She did not deviate from her opinions as expressed in the report and was significantly helpful to the court gaining an understanding of the dynamics at play in this family and the impacts of both parties’ proposals on the children. But more importantly, where there was no other evidence of a single expert, the court was reliant on the opinions expressed by [the single expert] about the prognosis for the mother’s mental health struggles.

Decision

Reasons for decision

The primary judge also made orders on a graduating basis for the children to spend increasing time with their father. Initially, the orders provide for the children to spend each alternate weekend with their father from after school/day care on Friday until before school/day care on Monday and for one afternoon each week for four hours. From the beginning of 2022 (and until the younger child commenced school), that time was to be extended to each alternate week from after school Thursday to before school Tuesday and then when the youngest child commenced school, culminated in an equal time arrangement.THE PRIMARY JUDGE’S REASONS FOR JUDGMENT Because of the nature of the challenges, particularly in Grounds 1 and 2, it is appropriate to discuss in some detail, the structure of the primary judge’s reasons. The primary judge pithily summarised the proposals of the parties at [1]–[3] and [79]. At [4]–[27] the primary judge discussed:·Aspects of the history of the parties’ cohabitation;·The mother’s career;·The reason the mother retired from her sport;·The mother’s subsequent health;·The breakdown of the parties’ relationship;·The commencement of the mother’s current relationship with Mr C;·The mother’s post-separation career;·The father’s doubts about the paternity of the younger child;·The flexible arrangements for the care of the children between the parties and what the mother described as “an exceptionally functional relationship” as parents; and ·Why the mother had a good reason to move to a new part of Sydney if she was prevented from moving to Brisbane. At [28] the primary judge recorded:The mother seeks relocation for essentially two reasons, the first being to pursue her relationship with [Mr C] and the second to pursue work in the business known as [Business D]. The court was left in no doubt the catalyst for the breakdown in the parties’ relationship was the mother meeting [Mr C] at the [a sporting event]. [The single expert] noted in the report dated 9 August 2019 that the mother indicated it is extremely difficult being separated from [Mr C]. At [29]–[42], [50], [52] and [72] the primary judge then discussed the mother’s relationship with Mr C, the evidence of the single expert about this relationship, the progress of introducing the mother and the children to Mr C’s children and comments made by the mother to her treating clinical psychologist in 2019. Findings made in this section are the subject of separate challenges (Grounds 3 and 8). The primary judge said that his Honour had “cause…to question the strength of [the] relationship” (at [33]), cause “to question the level of commitment Mr [C] has to a shared life with the mother” (at [34]) and that “[t]he court was left underwhelmed about the future relationship” (at [42]). The primary judge referred to Mr C returning to Brisbane before the end of the trial to fulfil a commitment to look after his children, concluding at [40]:… The optics regarding this lack of physical support are nothing less than terrible.

Ratio Decidendi

Legal Principle Established

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