BRINDLE & OTTO
[2015] FamCAFC 164
•21 August 2015
FAMILY COURT OF AUSTRALIA
| BRINDLE & OTTO | [2015] FamCAFC 164 |
| FAMILY LAW – APPEAL – CHILDREN –Where the mother appeals against an order which required her to return the children from Melbourne to live Sydney to be closer to the father – Where the orders provided that the children would see the father for three hours each week once they returned to Sydney – Where the mother otherwise had the care of the parties’ six children and such contact as took place was instigated by her – Where the mother had familial and financial assistance available to her in Melbourne which was not available to her in Sydney – Where mother caring for children under difficult financial circumstances – Inconsistent findings about benefits to children of living in Melbourne – Failure to consider relevant matters – Appeal allowed– Matter remitted for rehearing. FAMILY LAW – APPEAL – COSTS – Where the appeal was allowed on the basis of an error of law – Costs certificates ordered. |
| Family Law Act 1975 (Cth): s 94AAA(3) Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 8, 9 |
| APPELLANT: | Ms Brindle |
| RESPONDENT: | Mr Otto |
| FILE NUMBER: | PAC | 5320 | of | 2013 |
| APPEAL NUMBER: | EA | 42 | of | 2015 |
| DATE DELIVERED: | 21 August 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 9 July 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 February 2015 |
| LOWER COURT MNC: | [2015] FCCA 778 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | AC Law Group |
| COUNSEL FOR THE RESPONDENT: | Ms Snelling |
| SOLICITOR FOR THE RESPONDENT: | Peter Jurd Lawyer |
Orders
The appeal be allowed.
Set aside Orders 1 and 4 made on 20 February 2015.
The proceedings be remitted to the Federal Circuit Court of Australia for
re-hearing before a judge other than Judge Dunkley.
There be no order as to costs.
That the Court grants to the appellant mother 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.
The Court grants to the respondent father 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.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brindle & Otto has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 42 of 2015
File Number: PAC 5320 of 2013
| Ms Brindle |
Appellant
And
| Mr Otto |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed on 20 March 2015, Ms Brindle (“the mother”) appeals against an order made by Judge Dunkley on 20 February 2015 which required her to return the parties’ children to live in the greater Sydney region (Order 1). Interim orders were made for the parties to have equal shared parental responsibility for the children (Order 2), that the children live with the mother (Order 3) and after they return to Sydney to spend time with the father for three hours each Saturday (Order 4) and at such other times as might be agreed (Order 6).
The orders closely accord with those sought by the children’s father, Mr Otto (“the father”) albeit, the area within which the mother is required to establish the children’s home extends much further than he wanted. The mother sought orders for the children to live with her in Melbourne where, in June 2014 and knowing of the father’s opposition, she moved them.
The parties agreed that the children should continue to live with the mother and that they have equal shared parental responsibility. The pivotal issue for the primary judge was whether they should live with the mother in Melbourne or Sydney.
According to the father it was in the best interests of their six young children to return to Sydney where they had been settled, attended school and could see him. The mother agreed the children were happily settled in Sydney and that it was in their interests to see the father. However, after separation, he did not have substantial time with them and thus the entire responsibility for the care of their children fell to the mother. Having struggled on her own for a year she went to Melbourne where she had family and financial support. The essence of her case was that in Sydney, both financially and personally, the pressures on her as a parent were enormous but somewhat reduced if she and the children lived in Melbourne. In this regard, the fact that the father sought interim and final orders to have three hours with the children each week was telling.
His Honour was satisfied that if the children continued to live in Melbourne, they would not be able to spend time with the father and their relationship with him would cease and ordered they be returned.
The father seeks to uphold the decision of the primary judge and says the appeal should be dismissed.
Pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) the Chief Justice issued a direction that the appeal be determined by a single judge.
Background Facts
So as to provide context to the appeal, reference needs to be made to some key and largely uncontroversial facts.
The father was born in 1976 in North Africa.
The mother was born in 1984 in North Africa.
The parties married in 2001 and their first child, V was born in 2002.
In April 2004, the family fled North Africa and sought refuge from the UNHCR. They eventually entered a refugee camp which is where, in 2005, their daughter W was born.
The family was granted refugee status and arrived as refugees in Australia in June 2006. They were sponsored through their church.
The family established their home in suburb T in greater western Sydney, which is where until separation, they remained.
The child Y was born in 2007. The child X was born in 2009 and twins, U and Z were born in 2012. The children have generally enjoyed good health though the child Y will require surgery to address a longstanding condition.
Because the parties could not speak English, as soon as they arrived in Australia, they started English language classes. Thus, the children were placed in childcare and all children went on to attend preschool at suburb T. As the children reached school age, they started school at a nearby Catholic school where they attended until they moved to Melbourne.
Both parties sought to obtain work and qualifications. The father was able to obtain some labouring work and employment as a landscaper. He last had paid employment in either 2010 or 2011. The mother commenced study to be an assistant nurse but it is not clear whether she graduated.
In any event, with the father unemployed and the family living in rental accommodation and reliant on Centrelink benefits, the parties came under financial stress. There is a dispute about whether the father contributed his Centrelink benefits to the family albeit resolution of that issue is for present purposes irrelevant. There is no dispute that the parties fell behind in necessary day to day expenses and that the mother remains liable for comparatively significant utility debts incurred prior to separation.
In an attempt to improve the family’s financial circumstances, the mother became a family day care worker and cared for a small number of children from the family home. By then the parties’ relationship was under pressure and there were arguments about their parlous financial circumstances. Some of the arguments were sufficiently serious that on a number of occasions one or the other of them called police to their home and mutual apprehended violence orders were made for the protection of one or the other. It would seem common ground that although interim orders were made, most, if not all, apprehended violence order applications were dismissed.
The mother asked the father to leave the home in 2012 but he declined. It would seem the parties’ relationship continued to deteriorate and by agreement, in July 2013, he moved out.
Having separated, the father was eligible for a Newstart allowance of about $260 per week which was his sole source of income. He was unable to afford to establish a home for himself, and moved into a hostel at suburb M. Since then, he has been able to stay with different friends and at the time of hearing was living in shared accommodation in suburb T. Constrained by his accommodation the father was unable to have the children overnight and he has only seen them in public places; for example shopping centres and parks. There was an issue at trial as to whether X stayed with the father overnight “on some occasions”; and whether the father last saw the children on 17 February 2014 (according to the mother) or 7 June 2014 (according to the father).
After separation the mother and children continued to live in the family home at suburb T where she paid about $400 per week rent. Her income comprised Centrelink benefits and approximately $15 per week child support.
Not long after the parties separated, the mother wanted to move to Melbourne where she has a cousin who lives with his wife and five children. In late 2013, the father commenced proceedings to restrain her from going. Agreement was reached early in these proceedings that the mother would not move, albeit no orders were made to stop her. The mother and children then moved to suburb S where she paid $450 per week rent.
Notwithstanding their agreement and without discussing her proposal with the father, in mid 2014, the mother made arrangements to move with the children to Melbourne. The father heard about her plans from friends and confirmed with the children’s school that the school understood the mother and children would shortly move to Melbourne. He did not raise the issue with the mother or children.
In any event, the father commenced proceedings in the Federal Circuit Court to restrain the mother from removing the children. His application was filed on 11 June 2014 and served on the mother on 14 June 2014.
The mother and children moved to Melbourne on 18 June 2014. The father has not seen the children since.
By consent, interim orders were made on 12 December 2014 which enabled the father to spend time on nominated dates in Melbourne with the children. It is common ground he did not avail himself of this opportunity.
Without descending into detail, it is necessary to record that the matter was repeatedly adjourned before it was ultimately listed for hearing before the primary judge, some eight months after it was filed. As his Honour explained at [39] of his reasons “[i]t is not through the fault of the parties that until now, a decision had not been made in respect of that very urgent and important issue”.
In any event, the matter came before his Honour and he heard and determined the competing applications on 20 February 2015 for which he gave oral reasons the same day.
On the application of the mother, on 11 May 2015, his Honour stayed the relocation order.
The Primary Judge’s Reasons
In his Honour’s reasons for judgment, the primary judge set out the parties’ applications, the agreed and background facts to which reference has already been made and then determined the relocation issue. His Honour found there were few facts in dispute, those being allegations of minor family violence and whether the father met his financial obligations towards the children. His Honour was satisfied that the parties’ financial circumstances were limited and that the mother had practical support from family members in Melbourne and the father had practical family support in Sydney.
Prior to June 2014, the parties and children had a long period of stability in Western Sydney whereas the mother and children had a much smaller period of stability in Melbourne.
The mother’s decision to move to Melbourne, according to her, was because the rent was cheaper which turned out to be the fact. That is, that her rent in Melbourne was cheaper than the family paid in Sydney. However, when the mother moved “she did so well aware of [the father’s] opposition seemingly without regard to the impact it would have in upsetting the children’s relationship with their father” [61]. The children’s move to Melbourne “… made it impossible for the children to spend time with the father, and there is limited opportunity to be able to communicate with him although it would seem that both parties have access to Facebook”. It followed “… that the move occasioned by the mother in June 2014 was to sever all relationship between the children and their father” (at [63]).
His Honour was satisfied that the parties’ financial circumstances made it impossible for them to facilitate the children’s relationship with the father with him living in one city and the children in the other. In circumstances where the father said his limited financial circumstances, desire to continue a course of study and long term connection with the suburb T community meant he could not move to Melbourne, his Honour addressed the question of whether it was in the best interests of the children to live with their mother in Melbourne or Sydney. At [43], his Honour found that the mother’s move to Melbourne “may have improved the living circumstances of the children” and, if she returned to Sydney, she would require “a not insignificant period of time to obtain accommodation” and that restricting her to an area within 25 km of suburb T “… may well artificially result in her being unable to afford or find appropriate accommodation for herself and the children” (at [80]).
However, by giving the mother some months to search for accommodation in Sydney, an order for her to return the children was reasonably practicable and in the best interests of the children. In this regard, the ratio of his Honour’s decision is found at [78] and is set out below:
In balancing all of those factors, an order that the mother return the children to live in Western Sydney is, on the balance, in the children’s best interest as the best means of enabling those children to have any sort of relationship with their father. The children seem to have achieved little benefit from moving to Melbourne.
Discussion
Although the challenge made to the decision of the primary judge was broadly framed, it encompassed the following asserted errors:
·his Honour failed to have regard to the uncontroverted evidence that such contact as took place between the children and the father post separation was instigated by the mother;
·his Honour proceeded on the erroneous basis there was no dispute about the frequency post separation, that the children spent with the father;
·his Honour made inconsistent findings, namely that the move to Melbourne improved the living circumstances of the children (at [43]) compared to the children achieved little benefit by moving (at [78]); and
·his Honour failed to consider the practical effect of his orders on the mother’s care of the children in circumstances where the father proposed that he spend time with them three hours a week while in Melbourne she had family who helped her with the children but no assistance in Sydney.
Although there was a dispute on the evidence about how often the children spent time with the father after the parties separated, it was common ground that the arrangements were ad hoc, took place at the mother’s instigation and other than for the child X did not involve him spending time with the children overnight. It was uncontroversial that the mother sought orders that the children spend time with the father far more extensively than he proposed. These matters were overlooked by the primary judge and yet they were undoubtedly relevant to his Honour’s consideration that the mother moved without regard to the effect this would have on the children’s relationship with the father. Considered in its proper light, this evidence ought to have resulted in his Honour viewing the mother as a parent who made considerable efforts to promote the children’s relationship with the father. Had he done so, this ought to have invited more careful consideration about why it was she moved with the children to Melbourne.
It was the mother’s unchallenged evidence that in Sydney she paid $900 per fortnight rent and in Melbourne her rent was $600 per fortnight. In addition, in Melbourne the mother had family who provided her with financial assistance “to help support us” whereas in Sydney “…no one helped us financially” (mother’s affidavit at [25]). It would seem that these unchallenged facts underpin his Honour’s findings at [43] that the move to Melbourne improved the children’s living circumstances. That is to say, that in the mother’s parlous financial circumstances every bit of extra money she had at her disposal improved the children’s circumstances. However, these facts and his Honour’s finding at [43] cannot be reconciled with his finding at [78] outlined above. Yet that inconsistency is important and suggests that notwithstanding his Honour’s statements about the difficult financial circumstances in which the mother found herself and how it would be difficult for her to rehouse the children in Sydney, he did not accept that her having an additional $300 per fortnight and other financial assistance in Melbourne, not to mention familial support, made a material difference to her and the children’s lives. This evidence made such a finding all but irresistible.
It is also plain that his Honour failed to consider the mother’s case that she needed more assistance in caring for the children than the three hours a week which the father proposed and, that this practical assistance was available to her in Melbourne but not in Sydney.
These were all highly relevant matters which his Honour needed to balance with those factors he was satisfied weighed in favour of the mother being required to return the children to live in Sydney, albeit almost certainly not to where they used to live and attend school. His Honour’s failure to consider these matters is an error of law and warrants appellate intervention.
Order 4 is consequential to Order 1. As Order 1 will be set aside, it is appropriate to also set aside Order 4.
The parties agreed that in the event error is established, the proceedings should be remitted for rehearing by a judge other than the primary judge. They also agree that there should be no order for costs and each sought certificates under the Federal Proceedings (Costs) Act1981 (Cth) in relation to the appeal and any rehearing. An order for costs would not be warranted and it is appropriate that certificates issue to the appellant and respondent in relation to the appeal and rehearing.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 August 2015.
Associate:
Date: 21 August 2015
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