Browne & Keith
[2015] FamCAFC 143
•24 July 2015
FAMILY COURT OF AUSTRALIA
| BROWNE & KEITH | [2015] FamCAFC 143 |
| FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Where the orders appealed are interim – Where the mother had lived in Western Australia until the commencement of her relationship with the father – Where the parties lived together in northern New South Wales – Where the parties agreed to return with the child to Western Australia whether as a family or if separated – Whether the trial judge erred by failing to identify the source of power used to make orders – Where the trial judge erred by finding that the mother had “unilaterally” relocated to Western Australia – Where the trial judge relied on a misstatement of law – Where the trial judge failed to give weight to serious matters such as the father’s drug abuse and mental health – Where the trial judge uncritically accepted the father’s evidence – Where the mother has no financial or emotional support and limited access to housing in New South Wales – Where the trial judge failed to consider the effect on the mother of requiring her to relocate to New South Wales from Western Australia – Appeal allowed. FAMILY LAW – APPEAL – Costs – Where the parties sought costs certificates – Where the appeal has succeeded on a question of law – Costs certificates ordered for the mother and the father – Where the contribution of the Independent Children's Lawyer to the appeal hearing was such that it is not appropriate to make an order for a costs certificate in her favour – Application of the Independent Children’s Lawyer dismissed. |
| Family Law Act 1975 (Cth) s 60CC, s 68B, s 114(3) Federal Proceedings (Costs) Act 1981 (Cth) s 6, s 8, s 9 |
| MRR v GR (2010) 240 CLR 461 |
| APPELLANT: | Ms Browne |
| RESPONDENT: | Mr Keith |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara J Garrick |
| FILE NUMBER: | NCC | 2905 | of | 2014 |
| APPEAL NUMBER: | EA | 55 | of | 2015 |
| DATE DELIVERED: | 24 July 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Loughnan JJ |
| HEARING DATE: | 1 July 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 March 2015 |
| LOWER COURT MNC: | [2015] FCCA 1496 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Clifford |
| SOLICITOR FOR THE APPELLANT: | Bannerman Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Graham |
| SOLICITOR FOR THE RESPONDENT: | Flintoff Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brennan Garrick Lawyers |
Orders
Appeal against the orders of Judge Myers made on 27 March 2015 be allowed and the orders be set aside.
Remit the matter for re-hearing before a judge of the Federal Circuit Court other than Judge Myers.
The Court grants to the appellant mother 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.
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 the appellant and respondent in relation to the rehearing of the application.
The application by the Independent Children’s Lawyer for a costs certificate be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Browne & Keith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 55 of 2015
File Number: NCC 2905 of 2014
| Ms Browne |
Appellant
and
| Mr Keith |
Respondent
and
| Barbara J Garrick |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Ms Browne (“the mother”) appeals against interim orders of Judge Myers made on 27 March 2015 which required her to relocate with X (“the child”) to Town A in northern New South Wales from Town B in Western Australia. X is the child of the relationship between the mother and Mr Keith (“the father”). The child was born in early 2014 and was thus not yet one year old at the date of the hearing before his Honour.
The father opposes the appeal.
Relevantly his Honour ordered:
1. The mother have sole parental responsibility of the child [X…Keith] born … 2014.
2. The mother must relocate the child’s residence to the [Town A] or [Mid North Coast of New South Wales] Council area within 56 days of today’s orders.
3. The mother is hereby restrained from changing the residence of the child from any address outside the [Town A] or [Mid North Coast of New South Wales] Council area without the written consent of the father.
The orders further provide that the child will live with the mother and for the father to spend time with the child for three hours on four days each week.
Earlier interim orders were made by the trial judge on 19 November 2014 providing for the mother to have sole parental responsibility for the child, for the mother and the child to live in Town B in Western Australia, and for the father to spend time with the child for four hours at a time on the days when the father is in Western Australia.
Background
So as to give context to this appeal it is necessary to set out some uncontentious facts.
The mother has, but for what she described as “sporadic periods of time”, lived her entire life in Western Australia. She met the father in Western Australia and commenced a relationship with him in October 2012. The father had lived in Western Australia since 1990 although returned to New Zealand, the country of his birth, for six years. The mother’s family and friends live in Western Australia.
The parties purchased a property in Town W in northern New South Wales in June 2013 and moved to live there.
At some point in 2013, the parties agreed that they would sell the property in Town W, the mother and child would return to Western Australia visiting Town W from time to time until the property was sold and then the parties would move back to Perth together. Indeed, in the father’s affidavit filed in support of the application for orders, he said:
We agreed that when the property sold we would all move back to Perth together (same house or separate houses).
In October 2014 the mother told the father she wished to separate and return to Western Australia. The father drove the mother and child to Sydney to the airport and she left New South Wales on 20 October 2014 for Perth. It seems that after that time, the father visited the child in Perth.
Although it was agreed between the parties that the mother would live with the child in Western Australia, where she would have the benefit of the support of her family and friends, and return to New South Wales on a month about regime, she resiled from the latter part of the agreement and declined to return to New South Wales.
Nonetheless, the position of the parties at the hearing before the trial judge clearly was that once the property at Town W was sold, they would all move to Western Australia.
While the father, by his application before the Federal Circuit Court, sought orders that the mother return with the child from Western Australia and take up residence in or around Town W, he did not seek orders that the child live with him and, in the interim, sought that he spend time with the child for three hours on four days each week.
The mother did not work outside the home and her income consisted of a widow’s pension in the order of $600 per week, paid to her as a result of her first husband’s death. Her first husband, a member of the armed forces who had served with the father, took his own life, it was said, by reason of his diagnosed Post Traumatic Stress Disorder. The mother also had the benefit of child support payments from the father of $166 per month.
The father had also been a member of the armed forces and was medically discharged in 2003 as a consequence of suffering from Post Traumatic Stress Disorder and chronic back pain. He receives a pension which is in the order of $1,200 per week. He is prescribed Oxycontin for the back pain.
On 15 May 2014, the father attempted to take his life by an overdose of Oxycontin combined with vodka. He was admitted to hospital although discharged himself shortly after admission. He later attended another hospital, but again discharged himself.
On 5 November 2014 the father commenced proceedings in New South Wales seeking various parenting orders, including an interim order that the mother relocate the child’s residence to the Town A or Mid North Coast of New South Wales Council area.
As to his Honour’s reasons for judgment, we are conscious that the matter proceeded before his Honour as an interim hearing without the benefit of parties and other witnesses being cross examined on their evidence. However, although his Honour’s judgment spans some 147 paragraphs, it consists of little more than a recital of the parties’ evidence in which his Honour identifies the issues of dispute between them and, save for in respect of a handful of inconsequential matters, he makes no relevant findings.
The Appeal
Counsel for the mother reframed the grounds of appeal in an annexure to the Summary of Argument and we will consider those grounds rather than the grounds contained in the Notice of Appeal. There are four asserted grounds. We will consider Ground 1 separately but Grounds 2 to 4 can be considered together.
Ground 1
His Honour erred in making orders 2 and 3 as the only power to do so is either section 68B or section 114(3) which cannot be enlivened in the absence of a finding of jurisdictional facts that it appeared to the Court that it was “appropriate for the welfare of the child”, or “just and equitable” to do so.
The words quoted in the ground refer to the conditions precedent to the making of either an order under s 68B or s 114(3).
The ground as argued devolved to two assertions, first that the trial judge was obliged to identify the source of power used by him in making the orders and secondly was further obliged to make findings sufficient to satisfy those conditions precedent.
To the extent that the challenge asserts that a judge is required to resort to a form of incantation, identifying the power being used to make the order, we reject it. In our view, if the content of the judge’s reasons are adequate to indicate the matters to which the judge has had regard in making orders, it is both unnecessary and unhelpful to impose a requirement that calls for such an incantation. We do agree however, that whatever the source of power being used in this instance, it is incumbent on a judge to be satisfied either that the order being made is appropriate to the welfare of the child or is just and equitable. It is also trite to say, but overarching all considerations in matters involving children is the obligation to consider the best interests of a child by reference to s 60CC.
We do not find that his Honour’s failure to identify the source of power for the making of his orders was an error of law, and this ground is not made out.
Grounds 2 to 4
Ground 2 relates to his Honour’s finding that the mother had “unilaterally relocated” the child’s residence to Western Australia, and asserts:
2. That the learned Trial Judge erred in finding that the Appellant had “unilaterally relocated” the child’s residence to Western Australia, in that such a finding was unsupported by the evidence and/or contrary to the evidence, or, in the alternative, the learned Trial Judge failed to adequately expose the reasoning process which led his Honour to so conclude.
His Honour said:
101. The question to be asked by the court, or answered by the court is, was this a unilateral relocation? Based upon the evidence the court has gone through today in the proceedings, taking into account those matters that are agreed and not agreed, it is agreed that the mother left. It is agreed that the father drove her to the airport. On the material available the court does make the finding that the relocation was unilateral – that the father was under a belief, and the mother was on notice of his belief, that she was intending to return back to New South Wales. That, in large part, is evidenced by the copy of the return air ticket that is annexed to the father’s affidavit material.
As can be seen, it was contended that his Honour’s finding that the mother’s decision to relocate the child’s residence was “unilateral” was unsupported by the evidence and, in any event, his Honour gave no reasons to support the finding. Given that the bulk of his reasons involves setting out the parties’ contentions and noting that where matters were not agreed he could make no findings, and where, it seems that despite that, the trial judge has in some way relied on controversial matters in coming to his conclusion, this argument certainly has force. However, the thrust of the ground and those which follow was not so much the finding but his Honour’s application of a mistaken principle to the issue before him.
Thus, Ground 3 asserts:
3. The learned Trial Judge’s statement at paragraph 112, page 31 of the Reasons for Judgment (“Reasons”) that “the court should not readily grant interim relocations where there has been a unilateral relocation except in cases of emergency” was erroneous in principle in that:
a. the statement was wrong in law;
b. the statement led his Honour to impose on the Appellant an onus of proof which was contrary to law;
c. the Trial Judge misdirected himself by relying upon the statement.
His Honour, after finding that the mother’s decision to move to Western Australia with the child was unilateral, set out extracts from the authorities relevant to the issue and then said:
112. … The case law suggests the Court should not readily grant interim relocations where there has been a unilateral relocation except in cases of emergency. This is not a matter where there is an emergency.
It first needs to be said that nothing in the authorities quoted by his Honour gave support for this novel statement of the law, nor, so far as we are aware does it exist in any other authority. Thus, his Honour was wrong; that is not the law. Indeed, the law is as espoused by the High Court in MRR v GR (2010) 240 CLR 461, but his Honour failed to refer to that decision in his discussion of the relevant law.
It was argued for the mother that by misstating the law his Honour caused his subsequent consideration of the issues to miscarry.
First, it was argued that his Honour’s incorrect statement of law caused him to impose on the mother an onus of proof that is not recognised in the law, that is, to prove that the circumstances constituted “an emergency”. We accept that submission.
Secondly, it was argued that although his Honour proceeded to consider the matters referred to in s 60CC, he did so through the prism of this erroneous statement of the law. We agree.
It is plain that some of the issues raised by the parties were serious. In particular the mother said that the father’s mental health was precarious, he was prone to violent outbursts and he used illicit drugs, principally the drug “ice”. As we have said, it was uncontroversial that the husband attempted to kill himself by taking an overdose of Oxycontin with vodka. In his reasons,
his Honour further refers to the mother’s evidence that on an occasion after the father returned from an appointment with his psychiatrist the father said: “it’s either homicide or suicide” (at [62]). However, curiously, his Honour declined to make a finding on this or any of the issues raised by the mother because the evidence was untested.
Furthermore, it was uncontested that the mother had received the benefit of an interim violence order in relation to the father. His Honour found at [86] that he could not put significant weight on the order because it was “not clear as to whether findings were made by what might be described as the magistrate’s court that issued the order” (at [85]). These are circumstances where at least prima facie, a court exercising lawful jurisdiction has made an interim order for the protection of the mother from the father. It is difficult to understand why
his Honour declined to give weight to such an order unless, as was contended, his consideration of the proper factors was distorted by his misapprehension of the law.
When his Honour came to consider the need to protect the child from risk of harm, he concluded that he could make no finding about the father’s alleged drug use and gave weight to an opinion of the father’s treating psychiatrist that the father poses no risk of harm to the child. This document, a report from
Dr G was referred to by his Honour but was not in the appeal books. It was however attached to the father’s affidavit sworn on 2 March 2015. His Honour placed considerable reliance on that document. Dr G said in that report that while having treated the father between 2004 and 2009 he had not had contact with the father until requested to do so by the father’s solicitors in late 2014.
Dr G interviewed the father and concluded:
Risk Assessment:
39. From the information provided to me and from my assessment of Mr [Keith] on 23 December 2014, Mr [Keith] does not pose any risk of the safety of himself or the safety of another person, including a child.
Dr G did not indicate what information was provided to him nor did he indicate what history he took from the father in forming his opinions. It is difficult to understand how his Honour could take comfort from the opinion expressed in the report given the paucity of information supporting the opinion.
Nevertheless, when his Honour considered at [144] whether there is a risk of harm to the child if he was to spend time with the father, he relied on and apparently accepted the father’s evidence about himself and, again, relied on the opinion of the psychiatrist.
In circumstances where his Honour had declined to make findings about the serious issues raised by the mother about the father’s mental health, drug use and psychological functioning, it is difficult to understand how then his Honour came to rely on the father’s assertions and denials in determining this very important issue.
Clearly, in an interim hearing, a judge is constrained in relation to which findings can be made, but it is not the case that where serious issues are plausibly raised they can be safely ignored.
Finally, Ground 4 asserts that in considering whether the proposed orders were in the child’s best interests, his Honour failed to take into account significant matters such as:
·The circumstances in which the mother and child came to be in Western Australia, that is, as part of an agreement that the whole family would live there once the property in New South Wales was sold. Although the mother did not honour the part of the agreement that required her to move between Western Australia and New South Wales on a monthly basis, the overriding agreement was that the parties would live in Western Australia;
·The capacity of the respondent to travel to Western Australia to see the child. The force of this submission is brought into clear focus at the point when the trial judge considered the effect on the child if the mother and child were permitted to remain in Western Australia. His Honour concluded that to do so would affect the child’s attachment to his father. His Honour did not turn his mind though to the father’s capacity to travel to Western Australia to see the child as he had in the past; and
·The uncontested evidence that the mother had no family, no friends and no support for her in New South Wales and the agreement between the parties which recognised that she needed that support which she received in Western Australia.
No consideration at all was given by his Honour to the effect on the mother if she was required to return to live in New South Wales. Her evidence was that she had no emotional support in New South Wales. His Honour turns to this issue at [129] and refers to the distress experienced by the mother at the death of her husband and said:
129. …there is not sufficient evidence before this Court today to make a finding that the background of the mother is such that it would prevent her providing for the needs of the child including the child’s intellectual needs if the child was required to reside in New South Wales in the [Town A] area.
This finding takes no account of the mother’s evidence about her lack of support.
Finally, and perhaps most significantly, the trial judge did not mention let alone give sufficient consideration to how the mother and the child would be accommodated if she was required to return to New South Wales. The mother said in her affidavit filed on 18 December 2014:
87. I had no family support or friends in New South Wales and had nowhere to live when I decided to separation (sic). …
...
89. Further, I have no emotional and financial support in New South Wales given that I have resided in Western Australia my entire life except for the time that I lived with [Mr Keith]. I also have nowhere to live (other than the property) if I am forced to relocate back to New South Wales.
90. I am presently residing in [Town B] in one of my parent’s properties. I am not required to contribute towards my living expenses until I get back on my feet. Further, I have the support of my parents to assist with [X] if required.
The trial judge said at [46] apropos of the tender by the father documents relating to the cost of renting properties in or around Town W; “…It would appear that there are available, having regards to that material, rental properties available for rent in the sum of $260 to $350 per week.” His Honour incorrectly noted at [84] that the mother’s income is approximately $1,270 per week. Her evidence was that she received that sum each fortnight. However, nowhere in his reasons did the trial judge mention the mother’s capacity to meet the rental of any property, whether she would be required to pay a rental bond and where those funds would come from and how she would manage to support herself and the child from her remaining funds. Indeed, his Honour referred to a message sent by the father to the mother while she was in Western Australia telling her that she needed to commence paying the rent for the W property and that as a result he would reduce his payments into their joint account to $200 [26].
Grounds 2 to 4 are made out.
Conclusion
We have found merit in Grounds 2 to 4, and thus the appeal must be allowed. Further, given the lack of findings and the lack of adequate reasons by
his Honour, the orders must be set aside and the matter remitted to the Federal Circuit Court for rehearing by a judge other than Judge Myers. On that basis, the interim orders made on 19 November 2014 will be effectively revived.
Costs
We sought submissions in relation to costs at the conclusion of the hearing depending upon the result of the appeal. The mother did not seek an order for costs in the event the appeal was successful, but rather sought an order for the issue of costs certificates for the appeal and the rehearing pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). A similar submission was made on behalf of the father.
The appeal has succeeded on a question of law and this is a matter in which we would not otherwise make an order for costs inter partes. We will thus order that both the mother and father receive costs certificates both in relation to the appeal and the rehearing.
The Independent Children's Lawyer also sought a costs certificate in relation to the appeal. The summary of argument filed by the Independent Children's Lawyer was nothing more than a chronology and recitation of events and expressions of broad and uncontroversial principles. At the conclusion of the summary was the statement that “the Independent Children's Lawyer is not in a position to contend that his Honour made an error at law which warrants setting aside the order.”
Counsel who appeared for the Independent Children's Lawyer on the hearing however submitted that there was merit in Grounds 2 to 4 of the appeal but stopped short of seeking to uphold the appeal.
The contribution of the Independent Children's Lawyer to the appeal hearing was such that we do not consider it appropriate to make an order for a costs certificate in her favour.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Loughnan JJ) delivered on 24 July 2015.
Associate:
Date: 24 July 2015
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