Boyle v Zahur & Anor (No.2)
[2017] FamCAFC 263
•14 December 2017
FAMILY COURT OF AUSTRALIA
| BOYLE & ZAHUR AND ANOR (NO. 2) | [2017] FamCAFC 263 |
| FAMILY LAW – APPEAL – RELOCATION – where the mother applied for orders to permit the children to relocate overseas with her for four years – where the primary judge dismissed that application – where the primary judge failed to take into account considerations that were relevant to the making of orders in the children’s best interests – where there were inconsistencies in the primary judge’s findings – where the primary judge’s approach to the identification and treatment of the parties’ respective proposals was erroneous – appeal allowed – matter remitted for rehearing. |
| Family Law Act 1975 (Cth) ss 60CC, 65DAA, 65DAC Federal Proceedings (Costs) Act 1981 (Cth) |
| Bondelmonte v Bondelmonte (2017) 341 ALR 179 |
| APPELLANT: | Ms Boyle |
| RESPONDENT: | Mr Zahur |
| INDEPENDENT CHILDREN’S LAWYER: | Jeanine Lloyd & Associates |
| FILE NUMBER: | CAC | 429 | of | 2014 |
| APPEAL NUMBER: | EA | 62 | of | 2017 |
| DATE DELIVERED: | 14 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Murphy & Carew JJ |
| HEARING DATE: | 30 October 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 May 2017 |
| LOWER COURT MNC: | [2017] FamCA 295 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Lawrence |
| SOLICITOR FOR THE RESPONDENT: | Concordia Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lloyd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jeanine Lloyd & Associates |
Orders
The amended Application in an Appeal filed on 25 July 2017 be dismissed.
The appeal be allowed.
The orders made by the Honourable Justice Gill on 11 May 2017 be set aside.
The proceedings be remitted to the Family Court of Australia for rehearing by a judge other than the Honourable Justice Gill.
Each party bear their own costs of and incidental to the appeal.
That the Court grants to the appellant a costs certificate pursuant to the provisions of 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.
That the Court grants to the respondent and the Independent Children’s Lawyer costs certificates 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 and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
The Court grants to the appellant and the Independent Children’s Lawyer costs certificates 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 the appellant and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boyle & Zahur and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 62 of 2017
File Number: CAC 429 of 2014
| Ms Boyle |
Appellant
And
| Mr Zahur |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 23 May 2014, some nine months after the parents of two girls separated, orders were made by consent by which the girls lived with their mother and spent every alternate weekend and one afternoon per week with their father, with other times to be as agreed between the parties. Subsequently, the parties agreed that the ordered afternoon contact each Wednesday should extend to overnight. The result was that the father spent time with the girls each alternate Friday and Saturday night and each Wednesday night, together with half of all school holidays and special days such as Christmas, birthdays and the like.
Despite the parties’ agreement, the co-parenting of their two daughters has been marked by very significant conflict.
In March 2015 the mother and the girls commenced residing with the mother’s new partner (“Mr D”). Mr D is employed with a government agency and was posted to Country H for a minimum of two years and a maximum of four years. He moved to Country H to take up that position in early 2017. Ahead of the then proposed move, in September 2016 the mother applied for orders that would permit the children to live with her and Mr D in Country H for the period of Mr D’s posting.
On 11 May 2017, Gill J refused to make orders facilitating the desired move which the father had opposed. His Honour made orders continuing the existing co-parenting arrangement. In addition, his Honour made orders by consent which provided for the girls to travel with the mother to Country H “on up to two occasions for a period of up to six weeks in aggregate” (Order 22).
The mother appeals his Honour’s orders.
The Mother’s Application in the Appeal
The mother, who represented herself before us and prepared her own material for the appeal, applies to adduce further evidence. That evidence was contained in three affidavits, each effectively pertaining to events in different time frames all subsequent to the trial.
The evidence can be seen to have three “themes”. First the asserted continued failure by the father to provide financially for the girls. Secondly, the asserted failure by the father to exercise time with the children and, thirdly, the asserted continued reluctance on the part of the children to spend time with their father. All were issues at the trial. All were contentious.
The principles applicable to the receipt of further evidence on appeal have frequently been referred to and have their modern formulation in what was said by the High Court in CDJ v VAJ.[1] Relevantly, the “principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous” bearing in mind that “the discretion to receive further evidence is [not] so wide that the Full Court can admit further evidence merely because it is useful”.[2] Equally, if evidence is likely to be controversial that fact may militate against its reception.
[1](1998) 197 CLR 172.
[2]At 201 [109], 203 [113] per McHugh, Gummow and Callinan JJ (emphasis as per original).
While we accept that the evidence sought to be led by the mother is, from her perspective, important information in respect of the children and, again from her perspective, both crucial to her arguments and supports what she says are errors made by the primary judge, the evidence must be seen as highly controversial. It requires a resolution of issues that this Court is unable to undertake.
In our judgment the evidence should not be admitted as additional evidence on the appeal. (It may of course be highly relevant and admissible on any retrial that might be ordered.)
Is the Primary Judge’s Decision Wrong?
We sought to explain to the mother a principle emphasised again very recently by the High Court:[3]
It is only an error of [the kind identified in House v R[4]] which will permit an appellate court to interfere with parenting orders made by a primary judge under s 65D of the Family Law Act. It is well recognised that orders made in the exercise of a judicial discretion under the Family Law Act, including orders as to the alteration of property interests, orders as to custody and parenting orders, can be set aside only on a strictly limited basis, in accordance with House v R.
(Footnotes omitted)
[3]Bondelmonte v Bondelmonte (2017) 341 ALR 179 at [31].
[4](1936) 55 CLR 499.
The earlier decision in House v R contemplates that discretionary error can be established by reference to the recognised categories there referred to or where:[5]
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
[5]At 505 per Dixon, Evatt and McTiernan JJ.
Yet, a decision is not wrong in the appellate sense of being “unreasonable or plainly unjust” or “plainly wrong [because it is] no proper exercise of … judicial discretion”,[6] merely because the judges on appeal would themselves have reached a different conclusion.[7]
[6]Gronow v Gronow (1979) 144 CLR 513 at 519 per Stephen J.
[7]See, for example, Sharman v Evans (1977) 138 CLR 563 at 565 per Barwick CJ. See also, the cases referred to (albeit in the context of a property case) in Rodgers & Rodgers (No 2) (2016) FLC 93-712 at [72].
That can be seen to be particularly true of parenting cases which “necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof”:[8]
The evidence in [parenting] cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.
[8]CDJ v VAJ at 219 [151]; [152] per McHugh, Gummow and Callinan JJ.
Having referred to the well-known passage from the judgment of the High Court in Fox v Percy,[9] the Full Court in Zotkiewicz & Commissioner of Police (No 2)[10] said:
The references to the “constraints marked out by the nature of the appellate process” and the need to “give respect and weight to the conclusion of the trial judge” [as referred to in Fox v Percy[11]] are a reminder that the appellate process is essentially a search for error. We therefore ought not interfere unless the Judge’s conclusion is erroneous, either because it was not available on the evidence, or because the process by which he arrived at it was flawed: Zafiropoulos & State Central Authority; Simpson and Brockmann. If, however, we conclude that error is shown we are “authorised, and obliged, to discharge [our] appellate duties…”: [Fox v Percy at [27]].
(Citations omitted)
[9] (2003) 214 CLR 118.
[10] (2011) FLC 93-472 at 85,763 [63].
[11]At 126–7 [25] per Gleeson CJ, Gummow and Kirby JJ.
While having due regard to the advantages enjoyed by the primary judge, this Court is “obliged to conduct a real review of the trial and … of [the] judge’s reasons” and must:[12]
… conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, [the court] conclude[s] that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
[12] Fox v Percy at 126–7 [25]; 127–8 [27].
These reasons seek to explain our respectful conclusion that his Honour erred.
The Primary Judge’s Approach and Reasons
The trial proceeded by reference to a “consolidated list adding together what each [party] saw as the factual issues for the determination of their cases” (at [5]). Within that list the parties identified two issues as “the most important” (at [6]). Those two issues are expressed in these terms:
(7)Whether the children are reluctant to see their father and if so, the reasons;
(8)The likely extent of harm to the relationship between the [father] and the children if the proposed relocation takes place;
That approach can be seen to have had the intended advantage of crystalizing, and potentially confining, the very many factual disputes between the parties. However, in our respectful view it also distracted proper attention from the applicable principles; the clarification of the proposals of each of the parties; and a proper analysis of those proposals.
The bitter conflict that marked the parents’ post-separation co-parenting of their children cast a long shadow over the proceedings and, with respect, properly, played a significant role in his Honour’s reasons and ultimate conclusions. As his Honour pointed out, the conflict and the manner in which it manifested itself – including in particular by each of the parties involving the children directly – was plainly connected to a number of the considerations which s 60CC of the Family Law Act 1975 (Cth) (“the Act”) mandated being considered.
We observe that, against the background of this conflict and the parents’ manifest inability to communicate in any meaningful way, his Honour ordered the parties to have equal shared parental responsibility. His Honour said, at [4], that “[w]hile there are significant communication problems between the parents” they had agreed to the making of such an order. There is no reference by his Honour to s 65DAC of the Act. Nor can we see that counsel for the mother; the (then self-represented) father or indeed the Independent Children’s Lawyer (“ICL”) made submissions about its terms to his Honour.
It is, respectfully, not at all clear how a finding could have been made (implicitly) that the parties could or would comply with s 65DAC’s mandatory requirements in light of that same lack of cooperation and conflict which his Honour found. That is all the more so because issues of religion inform at least some aspects of that conflict. So, too, bitter conflict raises issues more generally in respect of what might be expected of parties sharing parental responsibility when it comes to issues that are not major long term issues.
However, no ground of appeal or argument by either party addresses the issue of parental responsibility and as the issue was also not contentious at trial, we say no more about it.
The order for equal shared parental responsibility led mandatorily to a consideration of s 65DAA. That consideration led to a finding at [80] which conveniently encapsulates the findings leading to his Honour’s ultimate conclusion and orders. That paragraph of the reasons contains the following findings:
·“[E]ach of the parents has exposed and involved the children in [their] conflict”;
·There was a “lack of cooperation” between the parents;
·There was a “likelihood of further conflict being generated by that lack of cooperation”;
·There was a “likelihood of the children being involved in that [further] conflict”;
·The girls have different relationships with each of their parents;
·“At present the girls feel emotionally safe and understood with their mother”;
·“The Family Report demonstrates a high degree of connection between the girls and their mother”;
·“At the same time, there are difficulties in [the children’s] relationship with their father and in the way that they perceive him”; and
·“The present state of the relationship between the father and the girls is not such as to support an equal sharing of time”.
Similar concerns, plainly central to his Honour’s conclusions as to the children’s best interests, can be seen expressed later in the reasons. Indeed, they underpin the central reason for his Honour holding, at [92], that the children should not live with the father:
Given the nature of the relationship between the parents it is necessary to make orders that minimise both their interaction and the need for cooperation between them. Having determined that an equal sharing of time is not appropriate, the different nature of the relationships that the girls have with their mother as opposed to the father means that she should continue in her role as the parent with whom the girls primarily live.
Thus, important premises for his Honour’s conclusions as to the children’s best interests are the predomination of the role of the mother as the children’s historical and current primary carer; the differing nature of the relationship between the children and their respective parents; and the need for minimisation of interaction and cooperation between the parties.
His Honour’s ultimate conclusion and orders are also shaped by a number of findings, the effect of which is that the mother would not support a relationship between the children and their father. His Honour found that if the relationship was “reliant upon Skype and a single visit per year, [the relationship] is at risk of diminishing further” (at [86]). To similar effect, his Honour found:
87.… If it were the case that the mother was positive about the relationship and could be relied upon to support the relationship between the girls and their father, then a proposal for the Skype time and yearly visit may have the capacity to continue to support some relationship between the girls and their father, albeit a significantly reduced relationship to that which they currently experience. Absent that support, it is difficult to anticipate anything more than a marginal role for the father in his daughters’ lives over the next four years. Such a marginal involvement by the father accompanied by an unsupportive environment for the relationship is unlikely to give the children the benefit of meaningful involvement from him in their lives. They would certainly not be able to spend time with him on a regular basis and it is unclear whether communication would occur on a regular basis between the girls and their father.
His Honour continued:
88.While such an arrangement might accord with their current views, it is far from clear that the girls appreciate fully the impact of the move to [Country H], both in terms of their connections and lives in Australia generally and more so in relation to their relationship with their father.
89.There is a significant risk that such a change in circumstances will see a further degradation of their relationship with their father. [The family report writer’s] view of the potential benefits of the move to the relationship between the girls and the father was heavily reliant upon support for that relationship coming from the mother. While I doubt that even with support it constitutes a better arrangement, without that support it does not better facilitate a relationship between the father and the girls than an arrangement whereby the girls spend time with him each week.
90.While there may be benefits in a move to [Country H], for example, a broadening of experience, a potential lessening of financial pressure on the mother, and closeness for the mother with her family and … [Mr D], the benefits of these matters for the girls do not rise to the same level of significance as the consideration of the benefits of relationship with the father.
Earlier in the judgment his Honour found:
83.… Once the litigation is resolved and the question of a move to [Country H] is resolved that there might be some degree of dissipation of conflict between the parties, although it cannot be concluded that there will be a resolution of the underlying hostility that has been exposed in the litigation…
His Honour acknowledged that the order he proposed making was contrary to the views of the girls, then aged 12 and 11 years. Each had expressed enthusiasm for the move when interviewed by the family report writer. Indeed, his Honour found, at [66], that “[t]he father agrees that the girls want to go, accepting that they are genuinely enthusiastic”. However, his Honour found that the move to Country H, and the consequent significant reduction in face to face time with their father, might (at [88]):
… accord with their current views, [but] it is far from clear that the girls appreciate fully the impact of the move to [Country H], both in terms of their connections and lives in Australia generally and more so in relation to their relationship with their father.
The Parties’ Proposals
The central role of the parties’ proposals
A proper understanding of the parties’ respective proposals was central to his Honour’s determination of the children’s best interests in accordance with principle. In that regard, it is important to repeat what was said by the Full Court in Jurchenko & Foster.[13] There the Court quoted what was said by Gaudron J in U v U,[14] observing that, although “Gaudron J was in the minority as to the outcome”, her Honour’s observations were “not only a perceptive statement of the forensic realities but also an accurate statement of the required approach to cases where one parent wishes to ‘relocate’”.[15]
[13] (2014) FLC 93-598 (“Jurchenko”).
[14] (2002) 211 CLR 238.
[15] At 79,421 [127].
Gaudron J in U v U said at 248–9:
36Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
37It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.
…
41The trial judge’s failure to separately evaluate the three proposals and, hence, to properly determine what was in N’s best interests was almost certainly the result of his Honour’s erroneous understanding of the counsellor’s statement that “[i]deally, [N’s] best interests would be served by her having frequent and liberal contact with both parents”. Clearly, his Honour understood the statement to mean that such contact was more important than any other consideration. It may be that a finding that frequent contact with both parents was more important than any other matter could properly have been made by the trial judge but, if so, it could only be made by separately evaluating each of the proposals.
(Footnotes omitted)
In the same case and to similar effect, Kirby J said at 278:[16]
144… Treating the wife’s refusal to abandon her child and her expression of willingness (if necessary) to stay with the child in Australia as an “alternative proposal” requires, in effect, that parent to show “good” or “compelling” reasons to relocate, given that doing so will always make it more difficult (and in some cases virtually impossible) for physical contact between the other parent and the child to be maintained. Such an approach stacks the cards unfairly against the custodial/residence parent…
[16]Noting that Kirby J, too, was in the minority, but the statement was adopted by the Full Court in Jurchenko at 79,415 [100].
In allowing an appeal against an order refusing relocation, a later Full Court set out the position this way in Heaton v Heaton:[17]
His Honour was first required to determine the children’s best interests by reference to the well-known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents … Although the mother’s “fall back position” of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section.
[17] (2012) 48 Fam LR 349 (“Heaton”) at [32].
His Honour determined that the parents should share equally parental responsibility for the girls. Consequently, as with respect his Honour correctly apprehended, it was mandatory for his Honour to apply s 65DAA of the Act. In respect of that section’s requirements, where a relocation is proposed, the High Court held in MRR v GR[18] that s 65DAA(1) “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent”. The Court held further that s 65DAA(1)(b) “requires a practical assessment of whether equal time parenting is feasible”.
[18] (2010) 240 CLR 461 at 467 [15].
Respectfully, the same is equally true of a consideration of “substantial and significant time” if an equal time order is rejected as not being in the children’s best interests or not reasonably practicable (s 65DAA(2)).
The mother’s proposal
The mother’s partner had been posted to Country H for two years. He moved there in early 2017. A further two-year posting was very likely. The mother sought to relocate with the children for four years or until the posting otherwise terminated (or her relationship came to an end). Upon the occurrence of any of those events, she intended to move back to City K with the children.
If the children moved with her to Country H, the mother said that she initially proposed an arrangement whereby the children would visit the father in Australia once a year and Country J three times a year (although the father contended that only twice a year in Country J had been proposed). The father refused that proposal. Ultimately, the mother’s “minutes of proposed orders” contended for an order that the children spend time with their father “[o]nce a year in Australia during the children’s school holidays”; otherwise “[a]s agreed between the parties should the Respondent Father wish to visit the children in [Country H]” and, in addition, communication “by Skype twice a week”.
The mother’s minutes of proposed orders contained no proposal for the children to spend time with the father in the event that an order was made for the children to remain in Australia.
The mother did not at any time contend, in respect of the four-year period under consideration, that it was in the children’s best interests to live with her in Australia for that period and there spend the regular time with their father that the existing orders permitted. Her sole contention was that the children’s best interests were served by the temporary move to Country H and the (necessarily restricted) face to face time with their father that would entail.
The father’s proposal
The father’s initial proposal that the children live with him was, it would seem, based primarily on his assertion that the mother had schizophrenia. There was, as he admitted in cross-examination, no proper basis for alleging that the mother had, or had ever had, such a condition.[19] The father’s proposals for the children to spend time with the mother in the event the children lived with him were unspecified and remained unclear.
[19]Transcript, 22 March 2017, p 207–9.
It would appear that, by the end of the trial (where he represented himself) the father had abandoned his proposal that the children live with him. It seems he pursued in lieu the proposal contained in his filed Response that the children live week about between the mother and him. However, it should be borne in mind that those orders sought in the Response were predicated upon the mother “remain[ing] in Australia”. The first order sought was predicated on the opposite assumption, namely “if the Applicant Mother leaves Australia and for so long as she remains outside of Australia” the children should live with him and he should have sole parental responsibility.
The orders sought by the father brought about the choice to which Gaudron J and Kirby J referred in the passages earlier quoted. The mother’s “fall back” position, as it was described in Heaton, that she would stay in Australia if the children could not move to Country H for four years, was not a proposal advocated by her and should not have been elevated as such.
Conversely, the father’s proposal assumed that he could not and would not himself move to Country H. He deposed that he “believ[ed] it would [not] be practical for [him] to move to [Country H]” as he did not know the country or the language; he had no friends or family there; and he did not “believe [that he] would be able to obtain gainful employment”.[20] The father was unemployed at the time of trial, although apparently engaged in casual taxi driving.
[20] Father’s Affidavit filed 6 March 2017, paragraph 135.
No proposal put forward by the father contended for the children to spend any time with him if they lived with their mother in Country H for that four‑year period. His proposals countenanced no arrangement in the best interests of the children that did not see them living with him. The father’s sole contention was that the children’s best interests were served by them remaining in Australia and living with him, or living with the mother and him week about.
The Mother’s Grounds and Arguments
The errors as pleaded
Although represented before the primary judge, the appellant mother represented herself before this Court and her six grounds of appeal were apparently drawn by her. They are as follows:
1.His Honour erred in failing to give adequate reasons for his decisions.
2.His Honour erred in failing to place sufficient weight to the views and conclusions of the Family Consultant Report.
3.His Honour erred in failing to give sufficient weight on the mother facilitating time between [the] children and their father despite the allegations leading to the involvement of Care and Protection Services, the children not wishing to spend time with their father, and not going to [Country I] with the children in [early] 2017.
4.His Honour erred in failing to consider the effect on the children of not being able to relocate to [Country H].
5.His Honour erred in failing to place sufficient weight to the father’s decision not to exercise time with the children.
6.His Honour failed to consider evidence to support that the mother supported the children’s relationship with their father.
The challenge to the adequacy of the primary judge’s reasons should be rejected. In essence the mother’s argument is that his Honour did not include matters in the reasons which she would have had his Honour include. That is not the test; rather the adequacy of the reasons is determined by whether the path to the ultimate result can adequately be discerned. We consider that it is.
As can be seen, Grounds 2, 3 and 5 each assert error in the attribution of weight. The significant hurdles facing an appellant challenging a discretionary judgment on the basis of attribution of weight have frequently been referred to and need not be repeated. The passage from the decision of the plurality in CDJ v VAJ earlier quoted is particularly apposite. We are not persuaded of error in the attribution of weight.
The remaining grounds as pleaded assert a failure to take account of relevant considerations. It is not, in our view, correct to assert as Ground 4 does, that his Honour did not consider the effect on the children if the proposed move did not occur. His Honour plainly did so. However, as will be seen, we consider there is merit in an assertion that his Honour did not consider matters directly relevant to a determination of the order that best met the children’s best interests.
Ground 6 appears to us to be a reframing of Ground 3. The contention is that his Honour failed to consider evidence that the mother continued to support the children spending time with their father in the face of a number of difficulties impeding the same. The implication appears to be that the mother did so in circumstances where other people in her situation may not have done so. We are unpersuaded of that assertion. We consider that his Honour did take account of that fact, albeit perhaps not in those words, and did so within the rubric of the parties’ co-parenting conflict and the specific examples of the same referred to and examined by his Honour.
The mother’s arguments
The mother’s written Summary of Argument was, with respect, prosaic and discursive. Her oral argument was impeded by her self-representation. It was also impeded – much more acutely – by a level of manifest grief and distress that at times gave the Bench concern for her well-being. We sought to have her elucidate further the errors sought to be encapsulated by the grounds and her discursive written Summary of Argument. Counsel for the father and the ICL, properly and sensibly with respect, claimed no prejudice in our so doing, they being well able to make arguments in respect of the matters raised by the mother and further elucidated by the Bench.
The mother’s oral argument used expressions such as that the primary judge “didn’t get the family dynamic” and that his Honour’s consideration of the issues did not “include the meat on the bone”. Re-framed as best we can in more familiar terms, the mother’s arguments appear to be directed to assertions that important conclusions reached by his Honour are based on a failure to consider evidence relevant to the findings made and, allied to that, an assertion that some important findings are inconsistent. We think there is merit in those assertions.
The mother contends that while his Honour plainly took account of the prospect of the deterioration in the relationship between the parties, and between the children and their father, if the children were to live temporarily in Country H, his Honour did not take into account the prospect of each of those relationships deteriorating if, contrary to the children’s wishes and the mother’s wishes, they all remained in Australia. To the extent that his Honour did take that matter into consideration it is said his Honour’s conclusion is based on an assumption not justified by the evidence. We also think there is merit in those contentions.
Unsurprisingly, the self-represented mother did not assert that his Honour’s approach to the identification and treatment of the parties’ respective proposals is inconsistent with authority and erroneous. However, we respectfully consider that it is.
Notwithstanding that specific errors are not pleaded in the grounds, if we are of the view that there is appealable error then, subject to procedural fairness and otherwise a lack of prejudice to the respondent, we “are authorised, and obliged, to discharge [our] appellate duties in accordance with the statute”[21] so as to correct any such error.
[21]Fox v Percy at 128 [27]; See also, Warren v Coombes (1979) 142 CLR 531.
The error in approach
His Honour found:
83.The mother’s position if she does not move to [Country H] is that the current orders made by consent on 23 May 2015 [sic], which provide for each second weekend and every Wednesday after school, should continue…
84.Regular time that incorporates school and non-school time, holiday and special events time, gives the father and the children a good opportunity to build and maintain their relationship and for the children to enjoy the benefits of a meaningful relationship with the father. In the event that the mother remains in Australia, her orders sought accept that there ought be substantial and significant time. It is this benefit of relationship that is supportive of an order for substantial and significant time.
(Emphasis added)
The mother never contended that the father spending substantial and significant time with the children in Australia was in the children’s best interests. Rather, she conceded that, if the children were forced to remain in Australia, she would, in effect, be forced to remain also because her unequivocal position was that the children’s best interests lay in her being their primary day to day carer and because she was the parent who had the closer present attachment to them.
The father’s proposal that the children should spend equal time with their parents was rejected by reason of his Honour accepting the “high degree of connection between the girls and their mother” and the “likelihood of further conflict being generated by [a] lack of cooperation” between the parties (at [80]). Further, while rejecting other broad conclusions emanating from the parties’ and children’s reactions to a particular event (attendance at the fireworks), his Honour found that “[t]he incident does, however, reflect the degree of difficulty that the father may face in emotionally caring for the girls should their desires not coincide with his” (at [29]).
We consider with respect that his Honour elevated to the status of a proposal by the mother something which was never a proposal by her.
Further we consider that his Honour erred in the manner described in Jurchenko.[22]Respectfully adapting what the Full Court said in that case, in our view, the error lies in his Honour approaching the matter:
… with a mindset in which it was assumed that the outcome needed to be one which would ensure a meaningful relationship with both parents – which according to his Honour could be achieved only if both parents lived in the same location. Having posed the question in this way, there then became only one available answer when the father’s [professed inability to move to or visit [Country H or elsewhere] was accepted as beyond criticism, and the mother was treated as having made a concession she would stay in [City K]…
[22] At 79,420 [125].
Earlier in those reasons,[23] the Full Court framed the error in this way:
… [His Honour] was diverted to determination of the location in which the child could maintain a “meaningful relationship” with both parents, rather than determining which of the proposals was better for the child…
[23] At 79,418 [112].
We consider, with respect, that his Honour erred in the same manner.
Failure to take account of Relevant Considerations
The ability and willingness of the father to visit
Plainly the primary judge considered, as was entirely open, that a face to face relationship between the father and the children was important to orders that best met their best interests. Bearing in mind that a crucial central consideration was that the move to Country H was temporary, the enquiry thus presented was whether orders could facilitate face to face time occurring without the necessity for the mother to “subordinate her ambitions and wishes”, and without relatively mature children being denied their wish to (temporarily) move to Country H.
In U v U, Hayne J said:[24]
… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing.
(Italics in original)
[24] At 286 [176] with Gleeson CJ and McHugh J agreeing.
In our view, highly relevant to the primary judge’s enquiry was a consideration not only of whether the father could move to Country H for the duration of the children’s stay, but also whether the father could, and would, facilitate time in Country H, including for example block periods of time, or facilitate time in an alternative place, for example the mother’s suggested “half way point” of Country J. Of course, it is axiomatic that if the parties’ proposals did not facilitate orders that met the children’s best interests his Honour was obliged to do so, subject to procedural fairness considerations.[25]
[25] U v U at [247] per curium.
The only finding made by his Honour is, with respect, an ambivalent finding related to the question of a move to Country H for the duration of the children’s stay. His Honour said:
3.… While the father has indicated that there is some possibility of him moving to [Country H], should he be able to find work, noting that he has [a European] passport and shortly the fruit of an inheritance, there can be no confidence that there are real prospects of such a relocation on his part.
The father made no proposal and adduced no evidence to show why he could not, or would not, facilitate time with the children by means of visits outside of Australia.[26] (Nor, indeed, did he make any such proposals for time in Australia predicated upon the children being in Country H).
[26] s 60CC(3)(c)(ii) of the Act.
In respect of the mother’s suggestion that there be three visits in Country J and one in Australia, the father’s evidence in cross-examination was as follows:[27]
[27]Transcript, 22 March 2017, p 200–1.
[COUNSEL FOR THE WIFE]: … you heard [the mother] say that she offered initially that the children could – if she were to be permitted to travel to [Country H], that she would arrange for the children to visit once a year in Australia and three times a year in [Country J]?---First time I’m hearing three times in [Country J]. Twice, what I heard before.
…
And you rejected that?---Yes.
Yes. Just not within your contemplation that that was a satisfactory arrangement?---No. It was not satisfactory for me, the [Country J], because I don’t know [Country J], girls don’t know [Country J], ticket cost a lot – expensive ..... it is, plus the residence, plus buying things for girls and everything. So each trip, roughly calculated, was costing about 6 – $7000. So twice a year, like 11 to $12,000 I don’t have it.
So for you to travel for, say, a week to [Country J], you think, including airfares, would be 6 or $7000?---With – with the girls. By myself, I am not sure. Probably 4 – 3 or $4000. With the girls, it will double up.
All right?---And you provide no details of those costs in your affidavit, do you?---No, because I didn’t – I – I did rough costing, then on the phone I look at how much is a ticket - - -
…
You didn’t put it in your affidavit, did you?---No. I did not.
…
Did you see that [the mother’s] view was that she had suggested [Country J], that it was because there was a direct flight from [City K] to [Country J] that - - -?---Nowadays. Yes.
And you accept that was the reason she suggested [Country J], that she was trying – in addition to paying for one to Australia, she would pay for two to [Country J], and that you could fly directly from [City K] to [Country J]?---Well, look, I – I refuse it – if you – if somebody paying two for [Country J], why can’t they pay one for Australia – another one?
So would it make a difference, then, if she - - -?---Absolutely.
Well, please let me finish?---Yes. Yes. Yes.
If she paid for two trips to Australia a year, it would be all right, would it?---That would be much nicer than offer three trip to [Country J] and one to Australia.
In respect of the father’s assertion that he could not afford visits in Country J or, more broadly, Country H, the evidence revealed that the father had both the time and the financial capacity to facilitate any such travel.
As to available time, he was unemployed save for casual taxi driving. As for financial capacity, the evidence revealed, first, that he had received an inheritance of $23,000 which he had spent on legal fees and “living expenses”. Secondly, the evidence revealed that the father had facilitated travel to Asia to participate in his marriage in that country. Thirdly, his Honour found, at [13], that “in circumstances where he was paying no child support the inheritance was not used to make good the arrears, [of child support] nor to make up for time when he was the subject of a nil assessment”. Fourthly, the evidence revealed that the father was due to receive a further inheritance of approximately $125,000.
In our view, his Honour failed to take account of this highly relevant consideration in determining the orders which best met the best interests of the children.
The parties’ respective care arrangements
In considering whether the continuation of existing time arrangements were in the children’s best interests in the face of the mother’s subordination of her post-separation “ambitions and wishes” and the children’s clearly expressed desire to move temporarily to Country H, his Honour was clearly obliged to consider the respective living and care arrangements for the children if they and the mother were to remain in Australia.
That embraced, importantly, a consideration of the nature of the relationship of the children with each of their parents and “others” and changes to existing living arrangements, including separation from any person with whom the children had been living.[28]
[28] s 60CC(2)(b) and (d) of the Act respectively.
For about two years prior to Mr D’s move to Country H he had (but for a short period when he and the mother lived apart) lived with the mother and the children. All of the evidence before his Honour suggested that the children had a warm and engaged relationship with him. They spoke fondly of him and the activities in which they participated. It was not suggested to the contrary. Mr D had played a significant role in the day to day lives of the children in circumstances where the children spent the majority of their time within that family constellation.
By contrast, his Honour made no reference to the fact that, on the father’s case, the children’s time with him, pursuant to the orders which his Honour made, would be shared with his wife who remained in Asia pending satisfaction of Australian visa requirements. The father proposed that his wife, whom the children had never met in person, would play a significant role in the children’s lives and told the children as much.[29] Further, the father made it clear that his wife would play that role because of his discomfort in dealing with issues arising from their pubescence. In cross-examining the family report writer, he said:[30]
[THE FATHER]: My point is here that – I have discussed with my daughters that I may be getting married, “re-partner like your mother is”, and I have given my reasons why I want to because – and one of my main reasons is the girls are in the age where the menstruation and all of this happen and it’s uncomfortable for being a father or a male to discuss those things. So my family or my friends suggest for my welfare and for my children that you need a woman in your life to guide the girls with these, so – and the whole sole condition of my marriage, even the proposal – that there was a condition that my girls are my first priority. So in that I am informing the girls that, yes, I will be married, so that point – the raised – it confuses me that – is it raised because I’m doing something wrong ethically or socially to remarry?---No.
[29] Transcript, 22 March 2017, p 198–9.
[30]Transcript, 23 March 2017, p 300 ln 24–33; again noting that the father was then representing himself.
We are, with respect, unable to see where his Honour took account of these highly relevant considerations in fashioning orders in the children’s best interests.
The children’s views
His Honour acknowledged that the girls had firmly expressed views in favour of moving to Country H. His Honour also found that the father acknowledged that. However, his Honour found that the girls’ views should be seen in light of a finding that “it is far from clear that the girls appreciate fully the impact of the move … and more so in relation to their relationship with their father” (at [88]).
That finding would appear to emanate from evidence of the family report writer Ms F. In her report, Ms F says that the girls would miss their father, “probably more than they realise”. That comment immediately succeeds the opinion that “the children would adjust relatively easily to the separation from their father”. The comment also exists within the context of opinions that “the girls will both miss their dad if they go, but regular talking or correspondence will enable them to experience having him in their lives” and an ultimate opinion that “[t]he ideal outcome for this family … would be if the children were allowed to go with their mother to [Country H]” and a recommendation accordingly.[31]
[31]Family Report filed 27 February 2017 paragraphs 7.7 – 7.9.
It goes without saying that his Honour was not in any sense bound by the opinions of the family report writer and could accept or reject her opinions as he saw fit. However, we are unable to see where his Honour considered at all highly relevant opinions central to the children’s wishes and, importantly, opinions as to the impact upon their primary carer, the mother, if they were not permitted to move to Country H.
Ms F opined that “[h]aving given them the opportunity to express their wishes, it would be damaging to dismiss their clearly expressed preferences, and could have an indelible effect on their sense of self-worth”.[32] His Honour, seemingly rejecting that opinion, found that “[t]here is no assessment of how likely this is, nor what its actual impact may be, nor what the damage might be” (at [66]).
[32]Family Report filed 27 February 2017 paragraph 7.6.
Leaving aside the issue that prediction, including prediction by an expert, has its proper limits and that the likelihood and extent of damage would involve a prediction upon a prediction, the proper context for Ms F’s opinion is made explicit in the same paragraph of the report in which the opinion is expressed, as is the implicit likelihood that the damage would be immediate. It is in our view made plain that the mooted damage arises from the children, otherwise exposed to the polarised opinions of their parents, being given the opportunity to express their views to the report writer in a neutral setting only to see those views ignored and them again being in the middle of the parental conflict swirling around them.
Further, his Honour did not address an opinion offered by Ms F which, again, we consider highly relevant to a proper assessment of the children’s views seen in the context of the parental conflict which, it should be emphasised, had been experienced within the operation of the existing orders for over two years. Ms F comments in her report:[33]
… I was not able to comment on the question of the children being used as “intermediaries by the mother”, other than to say that the state of the parental relationship was such that [the mother] appeared to have attempted direct communication and failed. It seemed to me that the children were expressing their own wishes, and that allowing the children’s wishes to enter the decision-making process in such matters went against [the father’s] principles.
[33]Family Report filed 27 February 2017 paragraph 7.4.
That opinion in respect of the father not allowing the children’s wishes to enter the decision-making process echoes evidence given by the mother both as to her own observations and as to what the children had said to her. It is evidence which has broader ramifications for the efficacy and benefit to the children of the continuation of the existing orders and all the more so in the context of the father’s explicit recognition of the girls’ approaching pubescence.
The opinion just referred to is also reflected in a finding made by his Honour in respect of the “[fireworks] incident”.[34] While not providing a foundation for a “conclusion as to the father’s general ability to emotionally support the girls” his Honour nevertheless concluded that the father’s words and actions “reflect the degree of difficulty that the father may face in emotionally caring for the girls should their desires not coincide with his” (at [28], [29]) (emphasis added).
[34]Broadly, this involved a dispute about whether the children were prevented by the father from attending an event in [City K] contrary to their wishes during their time with him and the reactions and counter-reactions of the parties accordingly.
Of course, the orders made by his Honour posit this very issue at the heart of future relationship contemplated by those orders.
The mother’s emotional and psychological health
We are unable to see where his Honour has considered the evidence of the impact of the orders upon the emotional and psychological health of the mother – who, it must be remembered, his Honour found to be the children’s primary carer. Ms F had opined that “both children felt more understood and emotionally safe with their mother”.[35]
[35]Family Report filed 27 February 2017, paragraph 7.7.
His Honour referred to, and apparently accepted, the evidence of the mother’s treating psychiatrist who “identified stress as the main cause for a potential relapse of the mother’s now well maintained condition [of clinical depression]” (at [17]).
Ms F opined that the mother “was already somewhat emotionally vulnerable” and the effect upon her of not being permitted to move “might be severe”.[36] The report of the single expert psychiatrist Dr E suggested a likely positive impact upon the mother’s mental health if the children were permitted to move with her. In cross-examination, the psychiatrist said that refusing the move was likely to affect the mother “emotionally and possibly psychologically as well” but that it was difficult to predict whether it would trigger the major depressive illness from which she had previously suffered.[37]
[36]Family Report filed 27 February 2017, paragraph 7.8.
[37]Transcript, 23 March 2017, p 288 ln 1–6.
It cannot sensibly be contended that the refusal of the mother’s application which results in her living apart from her partner and being the primary carer for two children whose wishes have been thwarted by the orders, would not increase significantly her stress levels.
The dissipation of conflict and the family report writer’s opinions
We have earlier made reference to the central premises for the orders which his Honour made. The mother’s lack of support for the children’s relationship with their father would likely result in nothing “more than a marginal role for the father in his daughters’ lives over the next four years” (at [87]). Thus, it is concluded, “a proposal for the Skype time and yearly visit” would not be sufficient to sustain the relationship between the father and the girls (at [87]). There was, his Honour found, “a significant risk” that the move would “see a further degradation of [the children’s] relationship with their father” (at [89]). What his Honour saw as the benefits of a move to Country H “do not rise to the same level of significance as the consideration of the benefits of relationship with the father” (at [90]).
There was and is no issue that the children should have a relationship with their father. There was and is no issue that the children love their father and want a relationship with him and, indeed, that they would miss their father if they moved to Country H. Equally, there was and is no issue that the reduction in face to face time with their father (noting, again, that the proposed move was temporary) was not ideal. These matters are the axioms upon which the vast majority of so-called “relocation cases” proceed. Yet, the task is to fashion orders which best meet the best interests of the children by reference to the proposals of the parties or those fashioned by the Court (subject to procedural fairness considerations) by reference to “the reality of the situation”.
As a consequence, orders that contemplate a continuation of the existing orders which thwart the legitimate desire of the mother and are contrary to the wishes of relatively mature children, involves a conclusion that those orders are more in the best interests of the children than other available alternatives.
A central inescapable fact in this case is that parental hostility and conflict to which the children were exposed and the impact upon the children to which Ms F had referred arose during the currency of the existing orders which his Honour’s judgment and orders would see continued.
The premises for his Honour’s orders are prefaced by an apparent finding that “[o]nce the litigation is resolved and the question of a move to [Country H] is resolved … there might be some degree of dissipation of conflict” (at [83]). Yet, in the same sentence, his Honour says that “it cannot be concluded that there will be a resolution of the underlying hostility that has been exposed in the litigation”.
As to the last sentiment we respectfully consider that no other conclusion could reasonably have been reached on the evidence before his Honour. However, with respect to his Honour, we find it difficult to understand how it can be inferred that the conflict “might” dissipate to some degree by the making of orders that deny both the mother and the children what they each seek. Indeed, all of the evidence points to the contrary conclusion.
Similarly we cannot, with respect, see how it was open to conclude on the evidence and his Honour’s other findings that the conflict would, or would be likely to, dissipate upon the end of the litigation. All of the evidence before his Honour points to the conflict being bitter, entrenched and rooted in mutual disrespect by one parent for the other.
The last point is important. His Honour’s central premises focus upon findings as to the mother not supporting the relationship between the father and the children if they move to Country H. Yet, other important findings made by his Honour are plainly to the effect that the father does not support the role of the mother and that he criticises and undermines her in significant ways. That degradation of the mother occurs, it should be noted, in the context of orders which have pertained for over two years and which are the very orders which his Honour finds should continue in the children’s best interests.
His Honour’s reasons consider the “[m]any hundreds of text messages” (at [30]) annexed to the father’s affidavit and include an analysis of eight video recordings made by the father.
The text messages were, of course, self-selected by the father and are as a result quintessentially self-serving. His Honour found that “[t]he dominant impression” was “one of a deep hostility on the part of the mother towards the father, which is centred on the subject matter of their children” (at [35]). His Honour concluded that “[t]he consistent hostility, in particular as it regards the father being a father, undermines the notion that the mother will be positive or supportive of the relationship with the father” (at [36]). Notwithstanding that finding, his Honour also found that “[n]either of the parties comes out of this set of text message exchanges … unscathed” (at [35]).
His Honour then analysed at some length eight video recordings made by the father and introduced into evidence by him.
His Honour found that the videos did “not reveal a complete picture, being absent context, presumably being a less than complete record, and potentially being selective in what was presented” (at [42]). Again, they are quintessentially self-serving. Notwithstanding that finding, his Honour concluded, with respect anomalously as it seems to us, that they “still provide strong evidence of the mother undermining the father’s relationship with the girls” (at [42]). That anomaly is all the more acute, as it seems to us, in light of the fact that, as his Honour found, much of what is recorded in the videos involved the father questioning the children in a manner “suggestive of what a favourable answer would be” (at [41](a)).
In addition, the video evidence also resulted in a finding at [46] that:
It is also clear from the recordings that both parents have involved the girls in the parenting dispute. What was said by the mother, the questioning by the father and the recording by the father drew the girls in to become participants in the parents’ dispute.
(Emphasis added)
In addition, and directly relevant to the issue of the “degradation” of the relationships between the girls and their parents, his Honour found in respect of the father’s videos (which, we repeat, included pointed leading questions directly related to their mother):
39.The father demonstrated no insight regarding this involvement of the girls in the proceedings and the harm that it could do to them in their relationship with him, or their relationship with their mother.
40.This involvement of the girls in the proceedings by the father reflects badly upon his capacity to emotionally care for the girls and of his ability to protect the girls from exposure to conflict between he and the mother. It also represents a failure to support the relationship between the girls and the mother.
(Emphasis added)
His Honour also does not refer to a matter reported upon by Ms F that is not only central to the issue of the potential “degradation” of the relationship with the father, but also directly relevant to “the attitude to the child[ren], and to the responsibilities of parenthood”[38] and whether the father’s attitudes are child-focussed or, rather, focussed upon the mother. Ms F reports that:[39]
In [the father’s] view, “There is no advantage to the girls to go to [Country H]”. He emphasised, “Even if there is, I will totally disagree”. A little later he said, “I will not allow the children to leave. End of story”. He elaborated, “If there had been reasonable connection and cooperation, I’d have allowed it, but with her vindictiveness … over my dead body”.
(Emphasis added)
[38]s 60CC(3)(i).
[39]Family Report filed 27 February 2017, paragraph 5.37.
His Honour also makes no mention of Ms F recording a statement from the father which mirrors what the mother asserted had been said repeatedly to her, including in front of the children: “[the father] was not complimentary about the children’s [cultural] heritage [on the mother’s side], informing me that ‘lying and denying is a part of [the mother’s cultural heritage]’”.[40] Further, the father has made it clear to the girls that he considers the mother to be “filthy” – so much so that he makes them shower when they come from their mother’s place for periods of time with him. Ms F reports:[41]
[The father’s] policy of not allowing the girls to take anything he bought for them to their mother’s place, came about, [the father] said, because “Anything I buy never comes back”. According to [the father] “Every time they come they’re filthy. So I say to the girls, ‘You know the drill’.” (The girls shower, put on clean clothes, and the dirty clothes are washed)…
(Emphasis added)
[40]Family Report filed 27 February 2017, paragraph 5.33.
[41]Family Report filed 27 February 2017, paragraph 5.29.
In terms of one parent denigrating the other in the eyes of the children, his Honour also makes no mention in that context of the father’s case as presented to his Honour. The father framed his entire case on an entirely unfounded assertion that the mother suffered from schizophrenia. He told the family report writer, “‘I feel sorry for my daughters’ … ‘[the mother] has a mental illness’”.[42] He proposed, by reference to that totally unfounded allegation, that the children should live with him (and, eventually, his new wife whom they had never met) and suggested no orders for time between the girls and their mother.
[42]Family Report filed 27 February 2017, paragraph 5.26.
The point again needs to be made that each and all of these important considerations remained extant during orders which his Honour determined should continue in the children’s best interests.
In referring to the report of Ms F, his Honour said (at [65]):
… My assessment on the balance of the evidence, in particular the texts and videos, leads me to conclude that the mother is unsupportive and undermining of that relationship. She does not hold a positive attitude to the relationship between the girls and the father.
While that finding is plainly open, we consider that the inescapable conclusion from the evidence and his Honour’s findings is that neither parent has a positive attitude to the relationship between the girls and the other parent and that each parent undermines the relationship of the girls with the other.
At [68], his Honour held:
The rationale advanced by Ms [F] for assessing a move to [Country H] as being the best chance to improve the relationships between the girls and the father, and as it is being more likely to flourish, is difficult to accept. The best chance for such an outcome from a move to [Country H] seems to be reliant upon two factors. One is the reduction of conflict between the parties and the other from a positive attitude to the relationship from the mother.
With respect, we do not consider that finding to be open to his Honour. First, Ms F’s opinions were, with respect properly, directed to the question of which of two central proposals was in the best interests of the children, not which was more likely to improve the relationship between the girls and the father (albeit that such an outcome is to be hoped for). Secondly, the “rationale” for Ms F’s opinions is not, with respect, confined to the two matters to which his Honour refers. Ms F’s ultimate opinion that a move to Country H was in the best interests of the children and her recommendation accordingly is the culmination of a number of opinions emerging from the report read as a whole, and also her cross-examination:
·“The girls were now expressing a fear of their father’s anger and questioning both his control over so many aspects of their lives and the way he indulged them, even though they were not averse to being on YouTube for hours on end”;[43]
·The girls would not forget their father if they moved temporarily to Country H;[44]
·“[T]he girls will both miss their dad … but regular talking or correspondence will enable them to experience having him in their lives”;[45]
·The girls would “adjust relatively easily to the separation from their father”;[46]
·“The ideal outcome for this family … would be if the children were allowed to go with their mother to [Country H], and if this event were to be utilised as a circuit-breaker for the parental conflict”;[47]
·“The children’s future well-being will be enhanced by being able to resolve the issues they have with their dad. One element of this will be the realisation that their differences have their origins in the cultural differences”;[48]
·Dismissing the children’s “clearly expressed preferences” “would be damaging … and could have an indelible effect on their sense of self‑worth”;[49] and
·“Although I considered the children would adjust relatively easily to the separation from their father, I also believed that they would miss him, probably more than they realise. His willingness to ‘spoil’ them was his way of showing his love”.[50]
[43]Family Report filed 27 February 2017, paragraph 7.3.
[44]Transcript, 23 March 2017, p 294 ln 26–31.
[45]Family Report filed 27 February 2017, paragraph 7.7.
[46]Family Report filed 27 February 2017, paragraph 7.9.
[47] Family Report filed 27 February 2017, paragraph 7.8
[48]Family Report filed 27 February 2017, paragraph 7.8.
[49]Family Report filed 27 February 2017, paragraph 7.6.
[50]Family Report filed 27 February 2017, paragraph 7.9.
CONCLUSION
We are of the view that his Honour’s approach was erroneous and that his Honour failed to take account of relevant considerations. Error is established and the appeal should be allowed.
RE-EXERCISE OR REMITTER
The notion that these parties and, more importantly these children, should be exposed to another trial is repugnant. It goes without saying that this Court would seek to re-exercise the discretion if that is at all possible. However, that decision is bound by principle, not by what is desirable or even highly desirable.
We canvassed the possibility of re-exercise at the hearing of the appeal bearing in mind that we could only do so by reference to the evidence as it exists as at the hearing of the appeal. The short period of time between the making of the orders and the hearing of the appeal gave us some hope that we might be able to re-exercise by reference to the record.
However, what was said by each of the parties renders that impossible. We have already referred to additional evidence, likely to be highly controversial, sought to be adduced by the mother. In addition, we suspect strongly that evidence of the mother’s current emotional and psychological health may well be a relevant matter to be considered. The father’s counsel asserts that further evidence from the father may well need to be led.
Unfortunately, remitter is inevitable.
We would, however, seek to point out that the appeal has been heard expeditiously and, when these reasons are delivered, the mother’s partner will have been in Country H almost 12 months and the period of the proposed move reduced to three years accordingly. The notion that these parties might resolve the issue seems to be the height of hope over expectation.
We would respectfully request that a rehearing date be allocated with the utmost expedition and will refer these reasons and our orders to the Registrar accordingly.
COSTS
We called for submissions on costs ahead of reserving our decision.
Having regard to all of the circumstances of this case, including the financial circumstances of both parties, the mother’s self-representation and issues of child support canvassed at the trial, we do not consider that the circumstances justify an order for costs.
The appeal has succeeded on a question of law. Certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) have been requested. We note that the mother represented herself but incurred significant costs in obtaining the transcript. The father was represented on the appeal but represented himself at the trial.
We consider it appropriate that the parties should have certificates in respect of the appeal and that the mother and ICL should have a certificate for the rehearing.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Carew JJ) delivered on 14 December 2017.
Associate:
Date: 14 December 2017
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