Bonnor & Loverdos
[2021] FamCAFC 93
•11 June 2021
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 2018APPEAL 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 respondent a costs certificate pursuant to the provisions of s 6 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 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) 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 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bonnor & Loverdos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KENT, WATTS & TREE JJ:
INTRODUCTION
By an Amended Notice of Appeal filed 21 August 2020, Ms Bonner (“the mother”) appeals final parenting orders made 3 February 2020 by a judge of the Federal Circuit Court. The mother made an application that the two children of the marriage, then aged four and two, be permitted to relocate from Sydney to Brisbane. The primary judge made an order preventing that relocation. The mother’s appeal is resisted by Mr Loverdos (“the father”).
The advantages and disadvantages of the mother’s proposed move to Brisbane brought into focus the mother’s existing and future relationship with her partner, Mr C, who lives in Brisbane; the mother’s desire to pursue her career in Brisbane; and how the mother’s current mental health impacted upon both those issues.
The mother asserts the primary judge made errors when considering each of these matters and adopted an approach which placed an onus upon her to prove that a relocation to Brisbane was in the children’s best interests.
At the hearing of this appeal on 3 February 2021 we made various procedural orders including orders permitting the mother to rely upon supplementary written submissions and permitting the father to file submissions in response subsequent to the hearing. The father’s submissions were filed on 17 February 2021.
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.
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.
At [52] the primary judge referred critically to the “stark difference” in the way the mother on the one hand and Mr C on the other has introduced their respective children into their relationship. As set out below, at [72] the primary judge concluded that Mr C would not bolster the mother’s capacity and would not provide the mother help to look after the children.
At [43]–[50] the primary judge discussed the mother’s future employment prospects. The primary judge recorded at [43]:
The other substantial reason for the mother’s move relates to the mother’s desire to pursue employment in Brisbane. The topic of the mother’s employment took up a substantial portion of the family report and also the hearing…
And concluded at [49] and [50]:
49.The court questions, however, whether the mother must move to Brisbane to pursue her career with [Business D], particularly where the current business owner, Ms [E], lives in City F. The mother did accept that she could obtain other work, but that she had previously struggled working what would be best described as a fulltime job whilst trying to juggle commentary commitments on the side.
50.The court was left with a distinct impression that [Business D] is a business that may very well flourish in the future, but that it is not the primary driving force behind the mother’s relocation…
The primary judge found that the “primary driving force behind the mother’s relocation” was to pursue a relationship with Mr C.
At [51]–[57] the primary judge dealt with issues concerning the mother’s mental health which his Honour described as “a significant issue in the proceedings” (at [51]). This part of the primary judge’s reasons is the subject of complaint by the mother in Grounds 4, 5 and 6 and are discussed in more detail below.
At [58]–[62] the primary judge reiterated his conclusions in relation to the mother’s relationship with Mr C and the likely success of the mother’s current business. The primary judge also referred to the mother’s move, meaning that she would be away from her own mother who has provided her with support and away from the father who could mind the children when the mother had work commitments.
At [63] the primary judge set out in full the single expert’s opinion in relation to the mother’s relocation proposal and the single expert’s concern about the risks to the children if their residence was to be relocated to Brisbane. As part of [63], the primary judge sets out paragraphs 122–131 of the single expert’s 2019 report, where the single expert discussed why it is her conclusion that, “[w]hilst there may be some potential benefits to the mother if the Court permits the children to be relocated to Brisbane, it is my view that these benefits are significantly outweighed by the risks and uncertainties for the children in causing such a major change to their living circumstances”.
At [64]–[66] the primary judge sets out a summary of what his Honour stated were the principles in A v A: Relocation approach (2000) FLC 93-035 (“A v A”) (this summary is the subject of the complaint in Ground 2).
At [67]–[74] the primary judge considers matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). His Honour found that there would be real benefit to the children having a meaningful relationship with both their parents; expressed concern that the meaningful relationship between the children and their father will be diminished by reason of tyranny of distance if an order is made in accordance with the mother’s proposal; found there was no fact that would enliven any consideration of s 60CC(2)(b) of the Act; and observed the children were young and no weight was given to their expressed views. The primary judge referred to the children’s extremely strong and loving relationship with both of their parents and also with their grandparents and particularly the maternal grandmother with whom the elder child had spent significant time in her formative years. The primary judge acknowledged the role both parents played in the children’s lives.
At [69] the primary judge found that:
…There will be an effect upon these children, including the effect of separation from the father and the maternal grandparents and otherwise paternal family, if the mother is to relocate to Brisbane. The effect of this separation having regard to [the single expert’s] opinion in the view of the court will be profound and also detrimental.
The primary judge found that it would make things extremely difficult in terms of face to face time with the father if the mother was permitted to relocate to Brisbane and said that his Honour was highly concerned about the mother’s capacity to provide for the needs of the children, including their intellectual and emotional needs. His Honour reiterated at [71] that the mother’s capacity is currently bolstered by the fact that:
…she has her mother around, upon whom she has typically relied during the course of the children’s lives. The reliance has been substantial. The mother has also had the assistance of the father.
At [72] the primary judge found that on the mother’s proposal, the mother’s parenting capacity would diminish and, as already mentioned, found that “[t]he court does not accept that Mr [C] will bolster her capacity…The court is of the view that that help will not be provided by Mr [C]”.
The primary judge otherwise found the parents had demonstrated a good attitude towards the responsibility of parenthood and that they both acknowledged the other was an excellent parent.
No issue arose in respect of family violence.
At [89] the primary judge found “the father, on his evidence, will not move”. In that context, the primary judge had already found at [75]:
The court finds that having regard to all of the evidence, it is a difficult ask for the father to move to Brisbane. The father has given strong evidence about his employment, and to be quite honest, he is the only person of the mother, Mr [C] and the father who has had long-term stable continuing employment. The father earns good money in a reliable business that has been ongoing for a long period of time.
And at [76]:
…It is the view of the court that the father is not in a position to be able to give up his strong long-term employment to relocate to Brisbane.
Also at [76] the primary judge reiterated his concern about the mother’s financial position and his view that the mother cannot necessarily rely on Mr C’s future financial support.
At [77] and [78] the primary judge concluded the presumption in s 61DA of the Act applied and it was in the children’s best interests to make an order for equal shared parental responsibility, which in any event was the application of each of them.
Between [79] and [90], and in the context of s 65DAA of the Act, the primary judge considered what he said were the three proposals “made by the mother”. Those three proposals were:
… one is the proposal that the children live with her in Brisbane and the father live in Sydney, the second proposal is that the father and her live in Brisbane, and the third proposal is that she and the children live in Sydney…
Overall, the primary judge, not unsurprisingly, found that the proposal that both parties remain in Sydney best fulfilled the requirements of s 65DAA of the Act. The primary judge made a specific finding at [82] that the parties did not have the current and future capacity to implement an arrangement of equal time when one of them lived in Brisbane and the other lived in Sydney.
The primary judge concluded as at the date of delivery of judgment, that the children were of an age where it was not in their best interests for there to be an immediate equal time arrangement but the primary judge concluded at [88] that, “moving forward as the children get older, once [the younger child] starts to attend school that equal time would be in their best interests”.
GROUNDS OF APPEAL
Did the primary judge sufficiently identify the parties’ respective parenting proposals and did the primary judge fail to properly assess the advantages and disadvantages of those proposals? (Ground 1)
Did the primary judge err by determining the proceedings on the basis that the mother bore an onus to demonstrate that her proposed arrangements were in the best interests of the children and consider as a separate issue, the viability and genuineness of the mother’s reasons for seeking relocation? (Ground 2)
The mother did not press the first limb of Ground 1. As indicated, the primary judge had identified the competing proposals of the parties at [1]–[3] and [79].
By the second limb of Ground 1 and both limbs of Ground 2, the mother asserts the primary judge made three distinct errors:
(a)That the proceedings were conducted as though the mother bore the onus of proof;
(b)That as a result the viability and genuineness of the mother’s reasons for seeking a relocation were considered as a separate issue; and
(c)That the advantages and disadvantages of each proposal were not properly assessed.
Onus of proof (Ground 2.2)
At [64]–[66] the primary judge sets out the legal principles which his Honour applied when considering the competing applications of the parties. At [65] the primary judge purports to summarise the Full Court’s guidelines in A v A stating that this authority:
…provides that in reaching a decision where a party proposes to relocate with a child…:
…
(b)Compelling reasons for or, indeed, against the relocation need not be shown;
…
(d)Neither the applicant nor the respondent bears an onus;
…
(f)If a parent seeks to change arrangements affecting the residence of or contact with a child, he or she must demonstrate that the purported arrangements, even if those new arrangements involve a move overseas, is in the best interests of the child.
The mother focuses upon the primary judge’s statement at (f) which on its face is inconsistent with statements at (b) and (d).
The primary judge’s statement at (f) paraphrases part of the seventh principle that Kirby J set out in AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) where his Honour said at [148]:
… If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, and in the best interests of, the child…
(Footnote omitted)
In A v A the Full Court discussed at [99] and [100], with reference to footnotes cited by Kirby J, what his Honour might have meant by this statement. The Full Court there noted that if Kirby J was suggesting that there is an onus on the party proposing relocation that suggestion ought not be adopted. The Full Court however went on to conclude that the better interpretation of what Kirby J meant to say was “that a party proposing to relocate the residence of a child must present his or her case with a focus on the impact such a move will have on the best interests of the child”.
Whilst the primary judge’s statement of principle at [65(f)] might have been drawn from Kirby J’s statement, on its face it is a bare assertion that the mother in this case, bore an onus of demonstrating change was in the children’s best interests. That is a misstatement of the law.
The mother argues that this error informed the primary judge’s approach to the analysis of the facts. The father argues that this misstatement of the law does not affect the manner in which the primary judge undertook his task and that the error of law is not material if it is apparent it did not have an effect upon how the primary judge approached his task.
This argument is resolved by considering the other limb of Ground 2.
Did the primary judge consider the viability and genuineness of the mother’s reasons for seeking a relocation as a separate issue? (Ground 2.1)
The mother argues that the effect of the structure of the primary judge’s reasons leads to the conclusion that his Honour had impermissibly determined issues relevant to the mother’s reasons for wishing to relocate, as issues which were separate from a consideration of the advantages and disadvantages of the parties’ proposals, and what was in the best interests of the children.
The father correctly submits that his Honour at no time called into question the “genuineness” of the mother’s reasons for seeking relocation.
As set out above, the primary judge at [28] identified “[t]he mother seeks relocation for essentially two reasons” nominating the pursuit of her relationship with Mr C and work in her business as those two reasons. This statement is not accurate given that the mother had laid emphasis on a significant third reason, namely, her mental health.
Paragraphs 10–12 of the mother’s written submissions filed 16 December 2019 before the primary judge are as follows:
10.After consideration of the evidence, it is submitted that the Court will find that the proposal for the children’s care arrangements advanced by the mother has the following advantages for the children:
a.it will assist the children’s primary carer with her mental health and wellbeing;
b.it will provide the children with a primary carer who is more present for them;
c.it will provide the children with a primary carer who can avoid taking out her frustrations on her children;
d.it will provide the children with a primary carer who is permitted to pursue her career aspirations with consequent benefits for her self-esteem and wellbeing;
e.it will provide the children with a primary carer who has direct access to her chief source of support, namely, her current partner;
f.it will provide the children with a primary carer who is in a better financial position to provide for her children;
g.it will provide the children with access to a household where in due course their mother is supported and assisted in day to day care arrangements for the children.
11.It is accepted that no person seeking to make an application for relocation must establish compelling reasons. However, the presence of compelling reasons is significant in this case because of the advantages that the proposal would bring to the children.
12.The corollary of the identified advantages to the children is the concern regarding the disadvantages to the children if the Court were to make orders which required that they remain residing in New South Wales. In that eventuality it is plain that the children would continue to reside in a household where:
a.their primary carer feels isolated from her chief source of support;
b.their primary carer is thwarted in her attempts to re-establish her career post the birth of her children and separation;
c.the children’s primary carer may continue to resort to inappropriate coping mechanisms such as the use of alcohol;
d.the children’s primary carer may continue to experience extreme distress;
e.the children’s primary carer will be required to reside in any event some distance from where the father chooses to reside;1
f.the children’s primary carer will either continue to experience difficulties in obtaining fulfilling work or, in the alternative, will be required to, in her late thirties, retrain and find new employment;
g.the children’s primary carer will almost inevitably face the end of what has been a supportive and fulfilling relationship with Mr [C].
(Footnote omitted)
It can be seen in paragraph 11 that the mother presented her case to the primary judge on the basis that even though there was no need for her to establish any compelling reasons for moving, there were such reasons and that was significant “because of the advantages that the proposal would bring to the children”.
Given that presentation of the mother’s case, it is not surprising that the primary judge turned first to consider the three issues which the mother identified as significant and made findings about those issues.
It is important to read the primary judge’s reasons as a whole. The primary judge ultimately turned to consider the three proposals his Honour found were possible through the prism of the statutory considerations. The findings in relation to the mother’s reasons for moving were relied upon by his Honour as being significant to more general findings in relation to the effect of change, practical difficulties for the children spending time with their father and the mother’s parenting capacity. Whilst it is true that the reasons for the mother wishing to move were dealt with first, and were undoubtedly a significant factor in his Honour’s final determination, these were ultimately incorporated into the reasons in a holistic way. Accordingly, there is no basis for the complaint in the second limb of Ground 2.
Did the primary judge assess the advantages and disadvantages of the parties’ various proposals? (Ground 1)
As set out above, at [65] the primary judge refers to the Full Court’s decision in A v A as providing guidelines when determining parenting cases involving relocation.
In A v A at [108], the Full Court said that it is to be expected that reasons for decisions will display three stages of analysis:
1.A court will identify the relevant competing proposals;
2.For each relevant [s 60CC] factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to [s 60CA];
…
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
…
(Emphasis in original)
At [66] the primary judge comments:
In 2002, the High Court was afforded the opportunity to consider the approach to be taken in relocation cases, this time in relation to the proposed international move in a decision in [U v U]. In [U v U], the High Court left the approach taken as articulated in [A v A] unchallenged.
That is incorrect. In U v U (2002) 211 CLR 238 (“U v U”) their Honours, Gummow and Callinan JJ at [80] questioned whether or not the Court was obliged or would be able in every case to treat the steps set out in A vA as discrete and in the suggested order.
In Bolitho and Cohen (2005) FLC 93-224 at [72] the Full Court pointed out that U v U had “…ameliorated the somewhat rigid and/or formulaic approach set out in A v A”. Further, in Taylor and Barker (2007) FLC 93-345 at [63] the Full Court (Bryant CJ and Finn J, Faulks DCJ dissenting) observed that the failure to follow a logical approach did not lead to appealable error unless error arose from the failure to give adequate reasons or to have regard to mandatory considerations.
In submissions before us, counsel for the mother strenuously complained that having articulated the test in A v A, the primary judge did not apply it in the structure of his Honour’s reasons. However counsel for the mother agreed that A v A did not set down a prescriptive test.
We accept the primary judge’s reasons are to be read as a whole and we do not accept the argument that his Honour erred when he did not assess the advantages and disadvantages of each of the proposals in a formulaic way.
The second limb of Ground 1 fails.
Did the primary judge make a material erroneous finding of fact about what the mother told her counsellor in a 2019 meeting and if so, was that mistake material? (Ground 3)
Did the primary judge fail to properly understand and wrongly evaluate the nature and strength of the relationship between the mother and her partner and the relevance of their future proposals? (Ground 8)
The primary judge found that the main reason the mother wanted to move to Brisbane was to pursue her relationship with Mr C. Both these grounds relate to the adverse findings made by his Honour about the strength of that relationship and the level of commitment Mr C had to a shared life with the mother.
The mother submitted that findings of fact concerning the nature and the strength of the mother’s relationship with Mr C were so unreasonable and demonstrably erroneous that no reasonable person could have arrived at them on the evidence.
Counsel for the mother submitted that the significance of the erroneous factual findings (separately and individually) was that they formed a factual premise relating to a cardinal issue that was so badly flawed as to render any finding that arrived from such premise infected by that error, including the ultimate question of whether to allow the mother to relocate the children’s residence to Brisbane. We accept, to use the High Court’s words in Blair v Curran (1939) 62 CLR 464 at 533 that the primary judge’s findings about the mother’s relationship with Mr C were “fundamental or cardinal … and is the essential groundwork” to the primary judge’s ultimate decision which prevented the children relocating to Brisbane.
It is convenient to set out, in their context, significant parts of the primary judge’s reasons with which the mother challenges under these grounds. The mother seeks to impugn findings of fact made by the primary judge at [33], [34], [36], [40], [42], [50], [52] and [72]:
33.The answers given by Mr [C] to [the single expert] cause the court to question the strength of his relationship that the mother is in no small part seeking to move to Brisbane to pursue. The mother and Mr [C] have been together since at least the beginning of 2017, now some three years ago. Mr [C’s] children were not told that their parents had separated until more than a year and a half after Mr [C] and the mother were in a relationship.
34.At the time of the interviews for the report of [the single expert] in July 2019, some two and a half years after the mother and Mr [C] had started a relationship, Mr [C’s] children had not even met [the children]. In fact, at the time of the hearing they had, it would seem, only have met them twice. The comment by Mr [C] that he did not want the children introduced to one another in case that things went pear-shaped is also concerning. Talking about things going pear-shaped after two and a half years causes the court to question the level of commitment Mr [C] has to a shared life with the mother.
…
36.Again, these comments were made about a meeting that had taken place after the mother and Mr [C] had been together for two and a half years. Mr [C] indicating to [the single expert] that he had met [the children] approximately 50 times, but the mother had met with Mr [C’s] children only once. This suggests to the court, a lack of commitment by Mr [C] to a shared relationship with the mother. To put it this way, it seems fine to introduce [the children] to the mother’s partner, but Mr [C] does not think it appropriate for his children.
…
40.Mr [C] was not present for the whole hearing to support the mother, staying only two nights, as he had commitments looking after his children back in Brisbane. At probably the hardest event in the mother’s life, the partner who she is seeking to move for was not there to support her. The optics regarding this lack of physical support are nothing less than terrible.
…
42.Mr [C] was both blunt in the interview process and during the
cross-examination about the future of his relationship with the mother. If the mother does not move, the relationship will end. The court was left underwhelmed about the future relationship, and while the mother suggests other reasons for moving, including employment, the court accepts that in a meeting between the mother and her counsellor in 2019, the mother had expressed a concern that the relationship with Mr [C] might end and that would put a stop to [relocating].
…
50.The court was left with a distinct impression that [Business D] is a business that may very well flourish in the future, but that it is not the primary driving force behind the mother’s relocation. The court very much accepts that if the mother’s relationship with Mr [C] did not work out, that the mother’s comments to her counsellor made in 2019 would ring true and that [relocating] would be off.
…
52.The mother’s comments about being unable to understand how refusing her application to move to Brisbane was not in the best interests of the children cause the court to question the mother’s capacity to prioritise her own needs over those of the children. This is particularly so given the stark difference in the way the mother had engaged [the children] in her relationship with Mr [C] as compared to the way in which he had engaged his children in his relationship with the mother.
…
72.The mothers’ capacity will be diminished by a move to Brisbane in circumstances where the court does not accept that Mr [C] has prioritised his relationship with the mother over his work commitments or his need to look after his own children. The court does not accept that Mr [C] will bolster her capacity. The court is concerned that if the mother moves to Brisbane, that her capacity may diminish in circumstances where those people she relies upon are no longer there to care for her children- where she seeks to pursue a career in circumstances where she will need to have people assist her to look after the kids. The court is of the view that that help will not be provided by Mr [C].
(As per the original) (Emphasis added)
What had the mother said to her treating clinical psychologist?
The complaint in Ground 3 relates to statements made by the primary judge in the reasons at [42] and [50] as highlighted above.
The mother submits that his Honour fundamentally misconceived the evidence of her treating clinical psychologist, to be, that the mother told her that if her relationship with Mr C ended, she would no longer wish to move to Queensland for work and for her mental health. The mother submits that as a consequence, the primary judge failed to understand that the mother’s motivation to move to Brisbane included to pursue her career whether or not her relationship with Mr C continued.
The mother’s treating clinical psychologist had produced her notes from an interview with the mother in early 2019 and was asked to read out part of them. During cross examination by counsel for the mother, the following passage appears:
[COUNSEL FOR THE MOTHER]: Can you read that for us?
[THE MOTHER’S TREATING CLINICAL PSYCHOLOGIST]: Yes:
Worries if relationship with [Mr C] ends will that prevent move to Queensland. Excited about her job. Wants to leave Sydney regardless.
[COUNSEL FOR THE MOTHER]: Wants to leave Sydney regardless?
[THE MOTHER’S TREATING CLINICAL PSYCHOLOGIST]: Yes, regardless.
(Transcript 15 November 2019, p.271 lines 32–37)
The notes of the mother’s treating clinical psychologist were tendered and are Exhibit J.
In supplementary written submissions filed 17 February 2021, the father makes the following comments in relation to the note:
21.The words then appear approximately one third of the way down the page and it is accepted are accurately set out in the submissions of the [mother] to the Court of Appeal at paragraph 37:
“Worries if relationship with [Mr C] ends that will prevent move to Queensland. Excited about her job. Wants to leave Sydney regardless”.
22.That is slightly different from the extract which was read onto the transcript at page 271. When [the mother’s treating clinical psychologist] read her note onto the Court record at line 35 page 271 “that will” is transposed into “will that” so that the first line reads “worries if relationship with [Mr C] ends will that prevent move to Queensland”.
23.Perhaps nothing turns on this point but the [mother’s] argument does not make it clear which piece of evidence His Honour was supposed to have misinterpreted.
24.The main challenge though to this point of appeal is that the statement is inherently ambiguous. It carries at least two meanings namely:
a.That the [mother] still wants to go to Queensland if the relationship fails, but will not be able to or;
b.That the [mother’s] move to Queensland will be challenged if the relationship ends but will go nevertheless.
25.His Honour was aware that the statements were made in January 2019. That is almost 12 months prior to the hearing. It doesn’t matter which of the two interpretations were favoured by His Honour or whether one of them is more probable than the other.
We agree with the submission at paragraph 23 that nothing turns on the mother’s treating clinical psychologist reversing the two words. She was not challenged about that at trial. We do not accept there is any ambiguity in the mother’s treating clinical psychologist’s evidence. It is clear the mother told her treating clinical psychologist that she wanted to move to Brisbane “regardless” of the future of her relationship with Mr C. The primary judge erred in using this evidence to conclude that if that relationship ended “that would put a stop to [relocating]” or “[the relocation] would be off”.
In any event, even on the father’s submission, if the evidence was ambiguous, it was inappropriate for his Honour to prefer one meaning which the primary judge clearly did, and to place weight on that meaning.
We find that the primary judge erred in interpreting the mother’s treating clinical psychologist’s evidence and that error was material because the primary judge used it to evaluate the nature and strength of the relationship between the mother and Mr C and the strength of the mother’s resolve to move to Brisbane, even if her relationship with Mr C did not continue.
Did the primary judge misinterpret and misapply Mr C’s “pear-shaped” and “low chances” comments?
This part of the mother’s complaint focuses upon the primary judge’s statements at [34] and [42]:
34. … The comment by Mr [C] that he did not want the children introduced to one another in case that things went pear-shaped is also concerning. Talking about things going pear-shaped after two and a half years causes the court to question the level of commitment Mr [C] has to a shared life with the mother.
…
42. Mr [C] was both blunt in the interview process and during the cross-examination about the future of his relationship with the mother. If the mother does not move, the relationship will end. The court was left underwhelmed about the future relationship…
The evidence which provides the genesis for these findings is contained in the single expert’s 2019 report and Mr C’s oral evidence. Mr C’s comments were made by him in the context of him being asked to contemplate the hypothetical proposition that the primary judge did not ultimately allow the mother’s move to Brisbane.
At paragraph 79 of the single expert’s 2019 report, she recorded:
At this point, Mr [C] indicated to me that one of the reasons he has not introduced his children to [the children] is if the Court does not allow their relocation. He said, “what if it all goes pear-shaped?” He indicated that he did not think it was fair to introduce his children to [the children] if they were not to live together.
During the solicitor for the father’s cross examination of Mr C, the following exchange occurred:
[SOLICITOR FOR THE FATHER]: What do you think the realistic chances of your relationship with [the mother] surviving if [the mother] doesn’t relocate to Brisbane?
[MR C]: You know, long term I don’t see how that would be sustainable.
HIS HONOUR: So is the answer nil?
[MR C]: Beg your pardon?
[HIS HONOUR]: You were asked about chances so is the chance of it surviving nil?
[MR C] No. I would say low.
(Transcript 14 November 2019, p.191 lines 35–43)
In final written submissions filed 16 December 2019, the mother lists at paragraph 12 as one of the identified disadvantages:
…
(g)the children’s primary carer will almost inevitably face the end of what has been a supporting and fulfilling relationship with Mr [C].
The primary judge has taken the comments about “things going pear-shaped” and the likelihood of the continuation of the relationship as being “low” as a basis for questioning the level of commitment Mr C had to a shared life with the mother and the primary judge being left underwhelmed about the future of the relationship. The primary judge subsequently used those findings to underpin adverse findings about the level of support Mr C would provide to the mother if she was allowed to move to Brisbane and in turn, part of the reason why the primary judge did not allow that move to happen.
We find there is a fundamental flaw in the logic of the primary judge’s reasoning. Mr C made a statement to the single expert and answered questions in cross examination based upon the hypothetical assumption of an outcome in the case adverse to the mother. Making that assumption Mr C predicted a dramatic impact upon his relationship with the mother. Mr C’s prediction is then used by the primary judge to support the assumed outcome.
Also we accept the submission by counsel for the mother that the words “going pear-shaped” read in context, do not describe the relationship going pear-shaped, as the primary judge seems to conclude, but is a description by Mr C of the potential outcome of the proceedings.
It was not suggested that Mr C could permanently move to Sydney. He was currently involved in a shared care arrangement of two children aged seven and five years in Brisbane.
It was inappropriate for the primary judge to place weight on a misunderstanding of Mr C’s comments as his Honour clearly did, to cast aspersions on the relationship between Mr C and the mother and in turn, as part of the basis upon which the primary judge did not allow the move.
Was the finding about terrible optics open?
The mother challenges the primary judge’s adverse finding at [40] that “[t]he optics” of Mr C’s lack of physical support by not being present for the whole of the hearing was “nothing less than terrible”.
During his cross examination, the following exchange occurred:
[SOLICITOR FOR THE FATHER]: You’re flying back to Brisbane tomorrow?
[MR C]: That’s correct.
[SOLICITOR FOR THE FATHER]: And you need to get back tomorrow because you’ve got the care for your children?
[MR C]: Yes.
(Transcript 14 November 2019, p.184 lines 16–19)
In the father’s written submissions filed 9 December 2019 he makes reference at paragraph 28 to Mr C not staying until the end of the hearing:
[Mr C] could not be present and supportive of the [mother] for the duration of the hearing and also look after his children under the shared care arrangement. This is not any form of criticism. It is simply to state the obvious that he could not both support the [mother] and care for his children in this important instance.
Based on the evidence and submissions, it was not reasonably open to the primary judge to make a finding that “the optics” of Mr C not being there was “nothing less than terrible”. In addition, to the extent that the primary judge is referring to his Honour’s own reaction to the optics of Mr C no longer being in his court room, his Honour should have given the mother fair warning about that reaction and an opportunity to respond to that reaction in circumstances where the primary judge has placed some significance upon it (Zantiotis v Zantiotis (1993) FLC 92-367 at 79,837). Given the dates for the trial had been rescheduled, further explanation may have been available and the father may have conceded that the fact that Mr C had left the court room should not draw “any form of criticism”.
The harshness of the findings at [40] are amplified by the collateral finding that the trial was probably the hardest event in the mother’s life, in circumstances where she had survived a horrendous accident involving the death and serious injury of teammates and had experienced grave difficulties with her mental health, including suicidal thoughts and resort to alcohol abuse.
The observation of terrible optics formed part of the basis of material negative findings in respect of the mother’s relationship with Mr C.
Creating a new blended family
At [33] and [34] of the reasons, the primary judge made adverse findings about Mr C’s children not being told that their parents had separated until more than a year and a half after Mr C and the mother were in a relationship, and the progress the mother and Mr C had made towards creating relationships between the children and Mr C’s children.
At paragraphs 74 and 75 of the single expert’s 2019 report the single expert discusses the fact that Mr C and his former wife did not tell their children about their separation until August 2018 and that his former wife reacted badly to learning of Mr C’s relationship with the mother. The evidence was that Mr C and his former wife have a good working arrangement at present and had agreed upon an equal time arrangement.
The words at [34] of the reasons “some two and a half years after the mother and Mr [C] had started a relationship, Mr [C’s] children had not even met [the children]” implies that the primary judge had formed a view that that should have happened. The mother on appeal complains that the primary judge drew an inference from this decision by the mother and Mr C in order to make an adverse finding in relation to the quality of their relationship. The issue as to why the four children ought to have met was not explored. Mr C said he did not wish for his children to develop an expectation or an attachment with the children if ultimately the court decided they could not live together.
Prior to the hearing the outcome of the mother’s application to relocate could not be known. She could not assume an outcome and she and/or Mr C made the decision not to introduce the children to one another until it was clear whether or not they could move to Brisbane to avoid establishing an expectation that may not be realised. Whilst it was open to the primary judge to make the findings that his Honour did about the history of the relationship between Mr C and his former wife and between the children and Mr C’s children, the primary judge erred in using those findings to support the overall negative finding about the strength of the relationship between the mother and Mr C.
Conclusion in relation to Grounds 3 and 8
We are mindful of the advantage enjoyed by the primary judge who heard the mother and Mr C give evidence and had available the opinions expressed by the single expert about their relationship. The primary judge should not be reversed by this Court simply because we form a different view about matters of weight (Gronow v Gronow (1979) 144 CLR 513 at 519 (“Gronow”). However, as the preceding discussion demonstrates, the primary judge has mistaken evidence and allowed extraneous or irrelevant matters to guide or affect his Honour’s determination about the future viability of the mother’s relationship with Mr C if she were allowed to move to Brisbane.
The father argues that the errors identified must be considered in the context of the primary judge’s overall analysis, discussion and consideration of the mother’s relationship with Mr C. However, his Honour’s findings about the stability, durability and degree of support that Mr C would in fact be able to offer the mother were fundamentally infected by a number of errors which have been identified above. His Honour’s finding that the relationship would fail, even if the mother moved to Brisbane, was an important part of the primary judge’s reasons for the decision that his Honour made.
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.
At [56] the primary judge sets out what his Honour describes as a “large slab of evidence”, being paragraphs 104–115 of the single expert’s 2019 report.
At [57] the primary judge provides the following summary:
57: Having regard to [the single expert’s] opinion, the court notes:
a)The mother’s mental health is declining.
b)That despite the mother’s mental health issues, she is still functioning as a parent, although the children have not been insulated from the mother’s depressed mood in that they’re aware of her ongoing upset.
c)The mother may be harder on herself than other parents with respect to self-reporting about her parenting capacity. The court is satisfied the mother is looking after her mental health and seeking out appropriate treatment.
d)The concerns of [the single expert] where the mother seemed unable to contemplate an outcome where she did not move to Brisbane. The court notes that during cross-examination, the mother gave evidence that she had contemplated a future where she did not move to Brisbane and had settled on the idea of moving to live in the [Suburb G] area.
e)[The single expert] expressed concerns regarding the mother’s mental health in Brisbane where she will, on the evidence, clearly be exposed to conflicts in her relationship with Mr [C], particularly where Mr [C] is struggling to come to terms with his separation and his family’s view about it.
At no point in the reasons does the primary judge refer to the written evidence led by the mother from her own treating professionals about her mental health. There is no reference at all to the evidence of her treating psychiatrist. The single expert refers to an earlier report of the mother’s treating psychologist (incorrectly recorded as being dated 21 March 2019) at paragraph 105 of her 2019 report.
There is no direct reference in the reasons to the oral evidence of either the single expert or the mother’s treating clinical psychologist relevant to the issue of the mother’s mental health.
In the single expert’s 2018 report, she does not diagnose the mother with any mental disorder. The single expert reports that the mother said she experienced “severe anxiety” as a result of conflict with the father including him insisting on a paternity test in relation to the second child. The single expert also records that the mother denied having any symptoms of postnatal depression.
At paragraph 104 of the single expert’s 2019 report, she records that the mother presented “with symptoms of low mood, emotional lability, suicidal ideation and a decline in motivation and some aspects of functioning”. At paragraph 108 she records the mother had commenced “antidepressant medication and regular sessions with a clinical psychologist” and as a consequence, “experienced a decline in symptoms of anxiety to the extent that she is largely asymptomatic”. On the other hand, the mother reported “symptoms of low mood and increased stress”. It was clear that between the 2018 and 2019 report the single expert had formed the opinion that the mother’s mental health had deteriorated. As recorded above, at [55] the primary judge found that the single expert had not deviated from her opinions as expressed in the report. If it is assumed that the primary judge is referring to the single expert’s oral evidence when compared with her evidence in her 2019 report, the mother challenges that finding.
We do not accept that when taken as a whole the evidence in relation to the mother’s mental health was no different from the evidence given by the single expert in her 2019 report. The following extract is one example of the shift in the single expert’s opinion in her oral evidence:
[COUNSEL FOR THE MOTHER]: And both Dr [H], the psychiatrist, and Ms [I], the psychologist, agree that the current diagnosis for [the mother] would have to be of a major depressive disorder. Did you read that yet?
[THE SINGLE EXPERT]: Yes.
[COUNSEL FOR THE MOTHER]: Now, that is a very different presentation than the one that [the mother] had in 2018, isn’t it?
[THE SINGLE EXPERT]: Yes. I think the diagnosis at that time was an adjustment disorder. Yes.
[COUNSEL FOR THE MOTHER]: And an adjustment disorder following separation wouldn’t be particularly unusual, would it?
[THE SINGLE EXPERT]: No. It’s not unusual. In fact, I think it would be rare to find someone who didn’t meet diagnostic criteria for an adjustment disorder.
[COUNSEL FOR THE MOTHER]: Yes. So for it to have developed in that period into a major depressive disorder demonstrates a marked deterioration in the mother’s mental health, doesn’t it?
[THE SINGLE EXPERT]: Yes.
(Transcript 15 November 2019, p.314 lines 4–16)
The single expert did not diagnose the mother as having a major depressive illness in her 2019 report. In the single expert’s oral evidence she described the mother’s presentation at the interview for the 2019 report as “highly distressed” and that it was unclear to the single expert whether the mother had a depressive disorder or was suffering an acute mental health episode (Transcript 15 November 2019, p. 304 lines 28–31).
In oral evidence, the mother’s treating clinical psychologist, when reporting on a period which included the time from after July 2019, when the single expert had interviewed the mother for the 2019 report and the trial, opined:
… I think her mood has progressively worsened throughout the year, and I have talked to [the mother] about when there is an outcome to consider irrespective of what it might be, be open to an inpatient hospitalisation.
(Transcript 15 November 2019, p.261 lines 38–40)
The mother’s treating psychiatrist in her written report also opined that the mother suffered symptoms of post-traumatic stress disorder, in the context of the stress arising from this litigation.
The single expert also agreed that although she had been given written authority to do so, she had not had the opportunity to speak with the mother’s treating psychiatrist.
It was an error by the primary judge to find, as his Honour recorded at [55], that in her oral evidence at trial the single expert “did not deviate from her opinions as expressed in the report”. Comparison between the opinions expressed by the single expert in her written report and her oral evidence in cross-examination in fact reveals fundamental differences on centrally important matters. An important example is that in her oral evidence under cross-examination the single expert accepted the correctness of a diagnosis by each of the mother’s treating practitioners that the mother suffers from a major depressive disorder, and further accepted that the mother’s mental health may deteriorate further upon an unsuccessful outcome of the litigation. The primary judge quotes extensively from the single expert’s written report yet makes no references to the single expert’s departures in oral evidence, and makes the erroneous finding at [55]. Aside from misconstruing the evidence of the single expert the primary judge appears to have paid no regard to highly material evidence sourced from the mother’s treating mental health practitioners.
Whilst it might be literally true that “there was no other evidence of a single expert” (see the dictionary definition of “single expert” in the Family Law Rules 2004 (Cth)), that was no basis for the primary judge to conclude that “the court was reliant upon the opinions expressed by [the single expert] about the prognosis of the mother’s mental health struggles”.
Reasons will be inadequate if an appeal court is unable to ascertain the reasoning upon which the decision is based or justice is not seen to have been done (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, quoting Sun Alliance Insurance Ltd v Massoud [1989] VR 8). The reasons should enable the parties to identify the basis of the judge’s decision and the extent to which their arguments have been understood and accepted (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279). Reasons need not be “lengthy or elaborate in order to be adequate” (Thorne v Kennedy (2017) 263 CLR 85 at [61]). Here the primary judge gave no indication as to why his Honour apparently took no account of the evidence given by the mother’s treating professionals. The mother’s treating clinical psychologist’s report of 20 October 2019 (Exhibit G) provides evidence of the impacts upon the mother’s condition and parenting capacity which had deteriorated markedly in the time that she had waited in Sydney for this case, which had not been reached on one occasion, to be heard.
The solicitor advocate for the father in submissions to us, makes arguments which would go to the weight that should be placed upon the evidence of the mother’s treating professionals. On appeal those arguments are not of great assistance because we are unable to say what the primary judge would have made of them. The solicitor advocate for the father also submitted that the primary judge should be taken to have been well aware of all the expert evidence before him, including the oral evidence. The difficulty with that submission is that the primary judge’s reasons do not allow us to know how his Honour assessed that evidence.
Accordingly, the primary judge did err in finding the single expert did not deviate from opinions expressed in her 2019 report, did err in failing to consider and make findings about the evidence of the mother’s treating clinical psychologist and treating psychiatrist and erred in failing to give adequate reasons as to why that evidence was not considered. It also follows that the primary judge erred in placing reliance upon the opinions of the single expert as to the mother’s mental state and her prognosis in circumstances where the mother’s treating professionals had expressed more recent opinions to which the primary judge did not refer.
Grounds 4, 5 and 6 succeed.
Did the primary judge err in failing to properly assess and have regard to the mother’s right to choose and pursue the career of her choice in the place which best advantaged her to do so and the intersection of that right with a consideration of the children’s best interests? (Ground 7)
This ground of appeal complains that the primary judge did not “properly assess” the mother’s right to freedom of movement. It is fundamentally a challenge as to the weight the primary judge gave that consideration and the difficulties with challenges based on weight are well-known (Gronow at 519).
At [44]–[50] the primary judge records the mother’s desire to pursue employment in a sporting business and in media. The primary judge questioned the mother’s need to move to Brisbane to pursue her career and at [49] concluded:
…The mother did accept that she could obtain other work, but that she had previously struggled working what would be best described as a full time job whilst trying to juggle [other] commitments on the side.
Nonetheless, at [74] the primary judge acknowledged that the mother “desperately wants to move to Brisbane”.
The mother cites the well-known statements by Kirby J in AMS v AIF about Australia being a society which attaches a high importance on freedom of movement and Gaudron J’s statement in U v U at [35]–[38] pointing out the forensic disadvantage of a primary carer who is not prepared to leave a child behind.
In this case however the primary judge did consider and make findings about the viability of a possible move by the father to Brisbane. When considering the father’s ability to himself move to Brisbane, the primary judge concluded at [75]:
The court finds that having regard to all of the evidence, it is a difficult ask for the father to move to Brisbane. The father has given strong evidence about his employment, and to be quite honest, he is the only person of the mother, Mr [C] and the father who has had long-term stable continuing employment. The father earns good money in a reliable business that has been ongoing for a long period of time.
Whilst freedom of movement is a relevant consideration, it at all times needs to be subordinate to an overall assessment of what arrangements are in the best interests of a child. Whilst other judges may have reached a different conclusion, his Honour exercising a wide discretion, made an assessment of the weight to place upon the mother’s right to choose where she lives when considering all s 60CC matters.
Accordingly, Ground 7 fails.
Did the primary judge err in making an order for equal time to commence when the younger child commences school when the date of that commencement was uncertain, the place of residence was uncertain and the living arrangements, partners and relevant other children within their respective households at that time was unknown? (Ground 9)
The date of commencement of the younger child’s schooling was unknown given that she was born in June 2017. In all probability however, the younger child would start school in 2023. His Honour made orders that the children would remain in Sydney and that there would be a graduated regime to an equal time arrangement when the younger child commenced school. His Honour was required not just to look at the immediate term but at least to the mid-term arrangements. His Honour was entitled, upon the evidence which was available to him, to make orders that came into effect no later than January 2023.
There is no merit in Ground 9.
CONCLUSION
Given we have found merit in Grounds 3, 4, 5, 6 and 8, the appeal succeeds. In the event the appeal succeeds the mother sought that the proceedings be remitted for rehearing rather than this Court re-exercising the discretion and clearly that is the appropriate course given the nature of, and issues in, this case.
The matter shall be remitted for rehearing by a judge other than the primary judge. Orders 3 to 8 made 3 February 2020 shall be set aside upon the making of new final parenting orders.
COSTS
In the event that the appeal was allowed and the matter was remitted, both the mother and the father sought costs certificates for the appeal and the rehearing. The appeal has been successful as a result of errors of law. Costs certificates will be granted.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Kent, Watts & Tree. Associate:
Dated: 11 June 2021
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