BRYCE & BONIG - [2010] FamCA 999

FAMILY COURT OF AUSTRALIA

BRYCE & BONIG

[2010] FamCA 999

FAMILY LAW – CHILDREN – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where there is ongoing conflict between the parties – where it is not in the best interests of the children for the parties to have equal shared parental responsibility – presumption rebutted – orders that the mother have sole parental responsibility

FAMILY LAW – CHILDREN – relocation – where the mother seeks that the children be permitted to relocate to the United Kingdom – where the mother’s partner resides in London – where the mother proposes to set aside $30,000 to fund yearly trips for the children to travel to Australia – best interests – where there is a history of domestic violence between the parties – where there are concerns that the father will not encourage and facilitate the children’s relationship with the mother – where there is a risk of the children suffering from psychological harm from being exposed to family violence – orders that the mother be permitted to relocate to the United Kingdom – orders that the children spend time with the father in Australia or the United Kingdom annually – children to communicate with the father by way of telephone, email or other similar forms of communication

Family Law Act 1975 (Cth) ss 43(1), 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 61DA, 65AA & 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Friscioni & Friscioni [2010] FamCAFC 108
Hall & Hall (1979) FLC 90-713
Harris & Harris (1977) FLC 90-276
Hepburn & Noble [2010] FamCAFC 111
M & M (1978) FLC 90-429
MRR v GR (2010) 263 ALR 368
Marvel & Marvel [2010] FamCAFC 101

APPLICANT:

Ms Bryce

RESPONDENT:

Mr Bonig

FILE NUMBER:

DNC

184

2007

DATE DELIVERED:

10 November 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

28-30 June 2010; 1-2 July 2010; 8-9 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hurley

SOLICITOR FOR THE APPLICANT:

DS Family Law

COUNSEL FOR THE RESPONDENT:

Ms Giacomo

SOLICITOR FOR THE RESPONDENT:

Ward Keller

Orders

All previous parenting orders are discharged.
The mother have sole parental responsibility for the children L born on … January 1998 and W born on … June 2000.
The children live with the mother.
The mother be permitted to relocate with the children to the United Kingdom.
The children spend time with the father unless otherwise agreed in writing as follows:
(a)In Australia from the first Tuesday of the United Kingdom summer school holiday periods to the last Thursday of the United Kingdom summer school holiday periods each year commencing 2011;
(b)In Australia from the first Tuesday of the United Kingdom December/ January school holiday periods to the last Thursday of the United Kingdom December/January school holiday periods in each alternate year commencing December 2011;
(c)in the United Kingdom for two periods of up to two weeks duration on each occasion each year…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BRYCE & BONIG

Details

AGLC: BRYCE & BONIG [2010] FamCA 999
Case: [2010] FamCA 999
Decision Date: 10 November 2010

CaseChat Overview and Summary

In this matter before Dawe J of the Family Court of Australia, the dispute concerned parenting orders for two children, L and W. The mother sought sole parental responsibility and permission to relocate with the children to the United Kingdom, where her partner resides. The father opposed these applications.

The court was required to determine whether the presumption of equal shared parental responsibility under s 61DA of the *Family Law Act 1975* (Cth) had been rebutted. Additionally, the court had to consider the paramount consideration of the children's best interests, as outlined in s 60CA and s 60CC of the Act, in relation to the mother's application for relocation and the father's proposed time with the children. This involved assessing factors such as the benefit of a meaningful relationship with both parents, the need to protect the children from harm, the children's relationship with each parent, the parents' ability to facilitate a relationship with the other parent, and the practical difficulties and expenses associated with the proposed arrangements.

Dawe J found that the presumption of equal shared parental responsibility was rebutted due to ongoing conflict between the parties and the determination that it was not in the children's best interests for them to have equal shared parental responsibility. In reaching this conclusion, the court applied the principles from *Hepburn & Noble* and *Collu & Rinaldo*, which emphasise the importance of considering the best interests of the child and the reasonable practicability of proposed arrangements, particularly in relocation cases. The court noted the history of domestic violence between the parties and concerns that the father might not facilitate the children's relationship with the mother, as well as the risk of psychological harm to the children from exposure to family violence. The court also considered the practicalities of relocation, including the mother's proposal to fund annual trips for the children to visit Australia.

The court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility and the children were ordered to live with her. The mother was permitted to relocate with the children to the United Kingdom. The court made detailed orders regarding the children spending time with the father, both in Australia and the United Kingdom, and stipulated communication arrangements between the children and the father. The mother was ordered to pay the costs of the children's travel to Australia and to accompany them on flights. Further orders were made to ensure the children's communication with the father, and to keep the father informed of the children's medical and educational progress. The mother was also required to place $30,000 into an interest-bearing account as security for future orders relating to the father's costs of enforcing orders and the children's travel expenses.

Orders

Orders of the court

All previous parenting orders are discharged.

The mother have sole parental responsibility for the children L born on … January 1998 and W born on … June 2000.

The children live with the mother.

The mother be permitted to relocate with the children to the United Kingdom.

The children spend time with the father unless otherwise agreed in writing as follows:

(a) In Australia from the first Tuesday of the United Kingdom summer school holiday periods to the last Thursday of the United Kingdom summer school holiday periods each year commencing 2011;

(b) In Australia from the first Tuesday of the United Kingdom December/ January school holiday periods to the last Thursday of the United Kingdom December/January school holiday periods in each alternate year commencing December 2011;

(c) in the United Kingdom for two periods of up to two weeks duration on each occasion each year commencing April 2011 PROVIDED THAT the father give the mother not less than four weeks written notice of:

(i) his intention to travel to the United Kingdom;

(ii) his address and full travel itinerary for his visit to the United Kingdom; and

(iii) the dates he seeks to have the children and where they will be residing whilst with him in the United Kingdom;

(d) such further or other times as may be agreed in writing between the parties.

The mother shall pay the costs of the children travelling from the United Kingdom to Darwin and return. The mother or some other responsible adult known to the children shall accompany the children on all flights.

The mother take all necessary steps to encourage the children to communicate with the father at all reasonable times by post, webcam and email.

Each parent shall keep the other parent informed of the current telephone numbers of the other parent and any changes to the telephone numbers.

Each parent shall keep the other parent informed of their current postal and email addresses and any changes thereto.

10.

Each parent shall ensure that the children have appropriate access to computers and internet at all reasonable times.

11.

The mother shall do all things, sign all documents and pay all amounts as might reasonably be necessary to permit the children to communicate by telephone, email and Skype (or other similar forms of communication) at all reasonable times as the children may request and in any event encourage the children to communicate with the father in one such manner not less than once a week.

12.

The mother shall keep the father informed of the names and addresses of any and all treating medical practitioners or allied health practitioners who may be treating the children and authorise those practitioners to provide the father with all such information relevant to the children.

13.

The mother shall inform the father as soon as practicable of any medical condition, significant health issue or significant illness suffered by the children.

14.

The mother shall do all things and sign all such document necessary to authorise the schools attended by the children to give the father information about the children’s educational progress and related activities and to permit the schools to supply to the father (at his cost) copies of reports, photographs, certificates and awards of the children.

15.

The father forthwith do all things necessary and sign all necessary documents to enable the mother to obtain and thereafter maintain valid passports for each of the children.

16.

Prior to the children travelling from Australia to the United Kingdom the mother shall place the sum of THIRTY THOUSAND DOLLARS [$30,000.00] into an interest bearing account in the name of her solicitor to remain so invested until further order (it being intended to provide security for any future order in relation to the father’s costs of enforcing any order and security for costs of the children’s travel to spend time with the father in Australia) PROVIDED THAT if no further order is made the monies and interest thereon be released to the mother on the expiration of five [5] years from this date.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In Hepburn & Noble [2010] FamCAFC 111 (a decision delivered on 21 June 2010) the Full Court said at paragraphs 98 to 103:“98.By this ground the father asserts that the Federal Magistrate failed to apply or properly apply the guidelines set out by the Full Court in A v A: Relocation Approach (2000) FLC 93-035. 99.At the hearing of the appeal, counsel for the father clarified that this ground was in fact quite narrow, and that the father was challenging the sufficiency of the Federal Magistrate’s reasons. Counsel for the father referred to the need to explain “matters of weight” as outlined by the Full Court in A v A: Relocation Approach (supra). The challenge to the adequacy of reasons has been discussed above in relation to grounds 1 and 9, and we do not propose to revisit that. 100.With respect to the guidelines in A v A: Relocation Approach (supra), the appropriateness of these guidelines in light of the amendments to the Act introduced in 2006 was not the subject of substantial argument before us, although at first blush this issue is raised by this ground of appeal. For our part we are concerned that this decision is still being referred to given that since then the Act has been substantially amended via the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), and there have been a number of significant decisions of the Full Court addressing the issue of relocation since those amendments commenced on 1 July 2006. We refer to decisions such as Taylor and Barker (supra), Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, and McCall & Clark (supra). Of course, the Federal Magistrate here had regard to and followed the legislative path now contained in the Family Law Act as amended, but it seems to us that rather than refer to and rely on a decision of the Full Court from prior to the amendments it would have been more relevant for the Federal Magistrate to have had regard to the guidelines and principles emanating from the subsequent Full Court decisions.101.That is not to say though that as a result the Federal Magistrate fell into appellable error. Indeed, we find that there is no merit in this ground of appeal.Conclusion102.No ground of appeal having been made out the father’s appeal will be dismissed.103.Following the hearing of this appeal the High Court published its reasons for judgment in MRR v GR [2010] HCA 4. We do not consider that that decision raised any issues necessitating further submissions to be sought from the parties given the nature of the appeal and the submissions already made on behalf of the parties. The decision does however reinforce our earlier suggestion that A v A: Relocation Approach (supra) no longer reflects the law.” On 25 March 2010 a Full Court of the Family Court of Australia delivered its decision in the matter of Collu & Rinaldo [2010] FamCAFC 53 which had been heard on 1 September 2009 and 4 March 2010. In that case the Full Court said:“339.In considering s 65DAA of the Act there are two important matters a court must deal with first, namely:1.whether the child spending equal or substantial and significant time with each parent is in the child’s best interests; and 2.whether the child spending equal or substantial and significant time with each parent is reasonably practicable.340.The best interests considerations in s 60CC of the Act are therefore of importance when considering the equal or substantial and significant time requirements of s 65DAA of the Act. Also s 65DAA(5) sets out matters that the court must have regard to in determining whether it is reasonably practicable for a child to spend either equal or substantial and significant time with each parent. 341.In MRR v GR the High Court said:13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub‑section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent (footnotes omitted).…15.Section 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 presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. 342.In relation to the second question of reasonable practicability, in MRR v GR the High Court said:9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.343.In dealing with the various statutory provisions and in particular the matters in s 60CC it is also relevant to consider what was said in a number of cases prior to the 2005 amendments. In Maday and Maday (1985) FLC 91-636 Fogarty J, with whom Emery SJ and Murray J agreed, after referring to Gronow v Gronow, said at 80,142:However, those principles proceed on the assumption that the trial Judge has weighed the various factors in contention in the individual case, and demonstrate that the appellate court may not in ordinary circumstances substitute its own conclusions for those of the trial Judge as to the weight to be given to the different factors of the case. It was submitted here for the appellant that his Honour had not adequately, or at all, weighed these aspects and that he had not provided proper or adequate reasons for the conclusions at which he did arrive.It is of the essence of the exercise of the judicial function that reasons be given explaining the actual decision arrived at. That is, it is the duty of the judge to give appropriate reasons for the orders which are made, and this involves ordinarily the application of the ascertained and relevant facts to the law: see for example Pettitt v. Dunkley (1971) 1 N.S.W.L.R. 376; Grimshaw v. Dunbar (1953) 1 Q.B. 408; Gillies and Gillies (1981) FLC 91-054, and the authorities therein referred to.The central aspect is the application of the relevant law to the established facts. It is essential that the parties understand not merely the orders which are made but the reasons which led the Court to arrive at those particular orders rather than some other orders. That is equally essential to an appellate court so that that court may properly consider any challenge to the exercise of discretion by having before it not merely the result but the reasons that have led to that result. In a custody case it is the duty of the trial Judge to weigh against each other the various competing factors which exist in that proceeding and to determine the proceeding having regard to the significance or weight that the trial Judge attaches to those various factors. This really involves two aspects although they are obviously interrelated. Firstly the trial Judge must give adequate reasons for the conclusions at which he has arrived, and secondly those conclusions must include the identification of and evaluation of the relevant factors. Where a trial Judge does that it is then that the task of the appellant in challenging those conclusions confronts the difficulty which Gronow's case, amongst others, demonstrates. Where there are no adequate reasons in the judgment, and/or where the competing factors are not adequately evaluated the Gronow principles do not come into play. (emphasis in original)…374.As to the best interests requirement of s 65DAA of the Act, in our view, it is not necessary for a court to repeat all of the findings made in relation to the primary and additional considerations in s 60CC of the Act. However, at some point the best interests considerations must be considered in the context of or by reference to the requirements of 65DAA(1)(a) and 2(c) of the Act. In McCall v Clark the Full Court (Bryant CJ, Faulks DCJ and Boland J) said at 498:In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.In this case, in our view, the trial Judge did not consider the requirements of 65DAA(1)(a) and 2(c).375.Then the trial Judge was required to consider 65DAA(1)(b) and (2)(d) of the Act. Section 65DAA(5) sets out matters that the Court must have regard to in determining whether it is reasonably practicable for the child to spend either equal or substantial and significant time with the parents. As Bryant CJ and Warnick J said in Sampson and Hartnett at 82,013: “The court must meet these obligations irrespective of the proposals of the parties”. Kay J said at 82,031: “The legislative requirement under section 65DAA(5) is mandatory”. The requirement to consider the matters in s 65DAA(5) is put beyond doubt by the High Court in MRR v GR.376.The trial Judge was obliged to undertake what the High Court in MRR v GR described as a “practical assessment” of whether equal time or substantial and significant time was “feasible”. The trial Judge had to undertake an analysis of the reasonable practicability of each of the proposals of the parties and, in our view, she failed to do so. For example, if her Honour had undertaken this task then it would have revealed that the Mother was proposing an equal or substantial and significant time arrangement and there would then have been analysis of the matters in s 65DAA(5) of the Act. Of particular importance in this case would be the provisions of s 65DAA(5)(b), (c) and (d).”

Ratio Decidendi

Legal Principle Established

Section 60CA provides:Section 60CA - Child’s best interest paramount consideration in making a parenting orderIn deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Section 60CC provides:Section 60CC - How a court determines what is in a child’s best interestsDetermining child’s best interests(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).Primary considerations(2)The primary considerations are:(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).Additional considerations(3)Additional considerations are:(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;(b)the nature of the relationship of the child with:(i) each of the child's parents; and(ii) other persons (including any grandparent or other relative of the child);(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:(i) each of the child’s parents; and(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(h)if the child is an Aboriginal child or a Torres Strait Islander child:(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and(ii) the likely impact any proposed parenting order under this Part will have on that right;(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j)any family violence involving the child or a member of the child's family;(k)any family violence order that applies to the child or a member of the child's family; if:(i) the order is a final order; or(ii) the making of the order was contested by a person;(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;(m)any other fact or circumstance that the court thinks is relevant.(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:(a) has taken, or failed to take, the opportunity:(i) to participate in making decisions about major long-term issues in relation to the child; and(ii) to spend time with the child; and(iii) to communicate with the child; and(b) has facilitated, or failed to facilitate, the other parent:(i) participating in making decisions about major long-term issues in relation to the child; and(ii) spending time with the child; and(iii) communicating with the child; and(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.Consent orders(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).Right to enjoy Aboriginal or Torres Strait Islander culture(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a)to maintain a connection with that culture; and(b)to have the support, opportunity and encouragement necessary:(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii)to develop a positive appreciation of that culture.