Burton & Churchin & Anor
[2013] FamCAFC 180
FAMILY COURT OF AUSTRALIA
| BURTON & CHURCHIN AND ANOR | [2013] FamCAFC 180 |
| FAMILY LAW – APPEAL – CHILDREN – Where the step-mother appeals against orders of the trial judge which provided for the child to live with the aunt in France and that the aunt have sole parental responsibility – Where the child’s father has died and where the child’s mother did not participate in a meaningful way in the proceedings – Where the step-mother’s primary ground of appeal was that the trial judge had wrongly found that s 60CC(2)(a) applied to the relationship between the child and each of the step-mother and the aunt – Where the Full Court held that the trial judge so erred and said that s 60CC(2)(a) is confined to the relationship between a child and its parents – Where the Full Court found that this error coloured everything that followed in the trial judgment – Appeal allowed – Remitted for rehearing. FAMILY LAW – APPEAL – STAY – Where the aunt appeals against an order staying the parenting orders pending the determination of the appeal against those orders – where the Full Court held it was unnecessary to determine the stay appeal because it had determined the appeal against the parenting orders – Appeal dismissed. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Aldridge & Keaton (2009) FLC 93-421 Bennett and Bennett (1991) FLC 92-191 CDJ v VAJ (1998) 197 CLR 172 Donnell & Dovey (2010) FLC 93-428 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Mulvaney & Lane (2009) FLC 93-404 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 |
| APPELLANT/FIRST RESPONDENT: | Ms Burton |
| FIRST RESPONDENT/APPELLANT: | Ms Churchin |
| SECOND RESPONDENT: | Ms Meyers |
| INDEPENDENT CHILDREN’S LAWYER: | Hamish Cumming Family Lawyers |
| FILE NUMBER: | SYC | 3338 | of | 2011 |
| APPEAL NUMBER: | EA EA | 121 131 | of of | 2013 2013 |
| DATE DELIVERED: | 15 November 2013 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland and Loughnan JJ |
| HEARING DATE: | 4 October 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 August 2013 29 August 2013 |
| LOWER COURT MNC: | [2013] FamCA 597 [2013] FamCA 741 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT/FIRST RESPONDENT: | Mr Richardson SC |
| SOLICITOR FOR THE APPELLANT/FIRST RESPONDENT: | Abrams Turner Whelan Family Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT/APPELLANT: | Mr North SC |
| SOLICITOR FOR THE FIRST RESPONDENT/APPELLANT: | Delaney Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boyle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Hamish Cumming Family Lawyers |
Orders
EA 121 of 2013
The application in an appeal to adduce further evidence filed 1 October 2013 be dismissed.
The appeal be allowed.
The orders made on 16 August 2013 be set aside.
The parenting proceedings be remitted for rehearing by a Judge other than the Honourable Justice Johnston.
There be no order for costs.
The appellant be granted a costs certificate pursuant to the provisions of s 9 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 in respect of the costs incurred by her in relation to the appeal.
The first respondent be granted a costs certificate pursuant to the provisions of s 6 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 first respondent in respect of the costs incurred by her in relation to the appeal.
The independent children’s lawyer be granted a costs certificate pursuant to the provisions of s 6 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 independent children’s lawyer in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the appellant, the first respondent and the independent children’s lawyer a costs certificate 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, the first respondent and the independent children’s lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by the appellant, the first respondent and the independent children’s lawyer in relation to the new trial granted by these orders.
EA 131 of 2013
The appeal be dismissed.
There be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Burton & Churchin and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 121 of 2013, EA 131 of 2013
File Number: SYC 3338 of 2011
| Ms Burton |
Appellant/First Respondent
And
| Ms Churchin |
First Respondent/Appellant
And
| Ms Meyers |
Second Respondent
And
| Hamish Cumming Family Lawyers |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction (EA 131 of 2013)
By amended notice of appeal filed on 13 September 2013, Ms Burton (“the step-mother”) appeals against all parenting orders made in relation to C (“the child”) by Johnston J on 16 August 2013. The first respondent to the appeal is Ms Churchin, the child’s paternal aunt (“the aunt”). She opposes the appeal and is supported in her opposition by the independent children’s lawyer. The second respondent is the child’s mother, Ms Meyers (“the mother”) and although she initially sought orders in the proceedings, she took no meaningful part in the trial or in this appeal.
The child, C, was living in the care of her father in Sydney when he died in May 2011. The mother had been having some contact with the child but upon the death of the father, by arrangement with the NSW Department of Family and Community Services, the child was initially placed with the father’s former partner, the step-mother (who is the mother of an older child of the father). The aunt, who is the father’s sister, lives in France as does the rest of the father’s extended family. The aunt and the step-mother initially agreed that the child would live in France with the aunt; however, the step-mother changed her mind, resulting in the contested proceedings before his Honour.
The effect of the orders made by his Honour was that the child would live with the aunt in France, and that the aunt would have sole parental responsibility for the child. The aunt was to ensure that the child maintained contact and had regular communication with her half-sister, D (the daughter of the father and the step-mother), her step-mother and her maternal grandmother and spend time with them in Australia, and in the case of the half-sister and the step-mother, also in France. The consequential orders made included orders aimed at securing the child’s facility in English and the provision and exchange of information about the child between the parties.
On appeal the step-mother seeks that the orders made on 16 August 2013 be set aside and that the matter be remitted for hearing before a judge other than Johnston J. At a new hearing the step-mother would seek orders including orders whereby she has sole parental responsibility for the child, the child would live with her and communicate and spend time with the aunt.
Background
A long and detailed chronology of the relationships between the step-mother, the aunt, the child and her father and mother is to be found in the reasons for judgment of Johnston J (at [9] to [92]). For present purposes it is only necessary to provide the following summary of that chronology.
The step-mother and the child’s father had met in France in 1989. They subsequently married and came to Australia in 1996. In 1997 their child, D, was born. A little over two years later, in April 1999, they separated and subsequently divorced in 2001. D remained living with her mother (the step-mother), but she continued to see the father, although there was a period between 2006 and 2007 when she did not spend time with him.
In 2001 the father commenced a relationship with the mother of C, who was born in September 2003. The father and the mother separated in 2005.
In December 2006, orders were made by consent providing for the father to have sole parental responsibility for C and for her to live with him and spend day time only with the mother.
In July 2006, the aunt, her husband and their children visited the father, D and C in Australia.
In June 2007, in mid-2008, and again in July and December 2009, the father and his two daughters holidayed in France.
In May 2011, C woke to find the father dead. According to the trial judge:
58.… She sent SMS messages to [D] but the step-mother was not aware of this until she collected [D] from school at 3.10 pm. The step-mother immediately arranged for the police and ambulance to attend. [C] returned home with the step-mother. The mother was named as a person of interest in the father’s death.
On 1 June 2011 the Department of Family and Community Services placed the child in the step-mother’s care with a provisional apprehended domestic violence order being made the next day to protect the step-mother, her husband and C from the mother.
Subsequently there was an agreement between the step-mother and the aunt that after a short period C would live in France with the aunt and her family.
The step-mother commenced proceedings against the mother seeking interim orders for the child to live with her and for sole parental responsibility.
On 7 June 2011 interim orders were made to this effect and also restraining the mother from approaching or contacting C, D or the step-mother.
On 29 June 2011 the step-mother filed an amended application seeking final orders for the child to live with the aunt in France and for the aunt to have sole parental responsibility.
On 17 July 2011 the child travelled to France with the aunt, returning on
15 August 2011.
On 15 August 2011 the aunt commenced to make weekly maintenance payments for the child of $230 per week but these ceased on 31 October 2011.
On 28 September 2011 the step-mother advised the aunt by email that she had decided that it would be preferable for the child to remain living in Australia.
On 11 October 2011 the step-mother filed an amended application seeking final orders for the child to remain living with her. The respondents to the application were the aunt and the mother.
On 30 November 2011 the mother filed a response seeking that the child live with her.
On 3 January 2012 the child travelled to France to visit her father’s family, returning in time to commence school at Z School on 31 January 2012.
In April 2012 the aunt, her husband and their two youngest children travelled to Sydney and spent four days with the child.
On 27 April 2012 Dr K, a psychiatrist, interviewed the step-mother, the aunt, her husband and their two youngest children, the mother, D and C for the preparation of his expert report.
On 15 June 2012 the mother’s solicitors filed a notice of ceasing to act in the proceedings.
On 22 June 2012 the child travelled to France to visit her father’s family, returning to Australia on 14 July 2012, and again on 7 December 2012 she travelled with her step-mother and D to France to spend time with their extended families. They returned on 13 January 2013.
On 14 August 2012 the step-mother’s solicitors forwarded a letter to the mother informing her that the step-mother was prepared to arrange for supervised contact between the child and her. No response was received, although on
19 October 2012 the child received a cardboard box containing gifts and two letters from her mother.
Between 29 January and 1 February 2013 Johnston J heard these proceedings with submissions being made on 1 March 2013. The mother did not appear at the hearing, although her own mother was in court for most of the hearing.
On 14 June 2013 orders were made by consent which permitted another holiday by the child in France from 22 June to 14 July 2013.
On 16 August 2013 the trial judge delivered reasons for judgment and made the orders which are the subject of this appeal and which are summarised at the commencement of these reasons.
The reasons of the trial judge
Given the issues raised on this appeal, it will be useful to provide an outline of his Honour’s reasons before discussing those issues (which include a challenge to the adequacy of those reasons).
After providing a brief introductory history ([1] to [6]) and setting out the orders sought by the step-mother and the aunt ([7] to [8]), his Honour set out a very detailed history of the child and of all other significant persons in this case ([9] to [92]). He then referred briefly to the credit of the step-mother, the aunt, the aunt’s husband and the aunt’s mother ([93] to [103]). No adverse finding was made in this context against any person.
His Honour then recorded at considerable length the submissions made on behalf of the independent children’s lawyer, the aunt and the step-mother ([104] to [180]), and in so doing referred to much of the evidence of the expert,
Dr K.Under the heading “The Applicable Law” his Honour next explained the provisions in Part VII of the Family Law Act 1975 (Cth) (“the Act”) which govern the determination of parenting proceedings ([181] to [196]) and referred to certain authorities to which we will later refer.
His Honour then turned to the considerations for the determination of what is in the best interests of the child contained in s 60CC of the Act. After setting out (at [98]) the primary considerations contained in s 60CC(2), he said he would return to those considerations. He then set out the additional considerations contained in s 60CC(3) and made extensive findings in relation to each of those considerations which he considered relevant ([199] to [324]). Under the heading “Discussion” his Honour then returned to the primary considerations contained in s 60CC(2) ([325] to [354]) before reaching his conclusion.
In his conclusion his Honour referred first to Dr K having changed his initial position (being that the child should be placed where her mother would have a significant role) because of the mother’s failure to participate in the proceedings ([355]). His Honour then expressed his own view that the mother could not be relied upon to take any responsibility for the child or to participate in the child’s life ([356]). His Honour noted that the prospect of the mother being involved in the child’s life had been “an important plank” in the
step-mother’s case, before referring to the risks which Dr K had identified if the mother was “to drop in and out” of the child’s life and if the child “might run off to live with her mother in unstable circumstances”, and to the doctor’s view that because the child’s “development has been disintegrated, she would derive great benefit from a stable home” ([357] to [359]).His Honour then said that he accepted that the child had expressed the view that she would prefer to live with the step-mother and D; but he noted that
Dr K had said that the child “tends to live her life in the present and would be expected to express such a view” and that she had not objected to the original plan for her to live in France ([360]).His Honour also accepted that in “a perfect world” it would be preferable for the child to live with her sibling, D, but he went on to refer to
Dr K’s reservations about aspects of the children’s relationship ([361]). The following two important paragraphs then follow in his Honour’s reasons:362.In relation to the sense of loss, grieving and distress which
[Dr K] thought would be acute for [the child] if she was removed from living with the step-mother and [D], one would of course prefer for this not to have to occur. In fact, [Dr K] said that if the merits of the competing cases were finely balanced then he would not recommend such a course. I must say that, upon a consideration of the totality of the evidence in these proceedings, I do not have the view that the merits of the proposals by each of the aunt and the step-mother are finely balanced.363.In my view, what is on offer in France for [the child] would more than balance the disadvantages and the losses when compared with requiring [the child] to remain living in Australia. As I have said, in my view, there is a clear difference.
His Honour can be read as endeavouring to explain that “clear difference”. First, he observed that there was “a difference between the parenting styles of the aunt and her husband compared with that of the step-mother”, and he went on to refer to Dr K’s evidence concerning the aunt’s parenting skills ([365]) before referring to the doctor’s “two main concerns” about the child continuing to live with the step-mother and D, being that the child might lose contact with her paternal family and that she was “at risk of going off the tracks” ([367] to [368]).
Next his Honour referred to Dr K’s views in relation to “the grief and distress” likely to be caused by the child moving to France ([369]) and to the opportunity for maintaining some relationship with her mother if she did so ([370]), before saying:
371.[Dr K’s] ultimate conclusion was that it would be in [the child’s] best interests to live with her aunt and her family in France. His reasons were broadly four-fold. Firstly, the mother has shown herself to be not functional and therefore there would be less need for the child to be in Australia than he had thought earlier. Secondly, there is a depth of resources in the aunt’s family and extended family in France and that in that setting [the child] would be likely to maintain a broader connection with family. [Dr K] had a concern that although the step-mother’s household in many respects is a great household, things would be likely to get smaller for [the child] there rather than larger. He also thought that there was considerable risk in that [the child], in that household, would be likely to lose her relationship with the French family. Finally, as indicated above, [Dr K] was concerned about the risk to [the child] of really going off the rails suddenly and that there was a resilience in the French household which would be likely to better meet her needs in such a situation compared with the step-mother’s household.
His Honour then said that he had no hesitation in accepting Dr K’s ultimate conclusion because it accorded with his own ([372]), which he then expressed in the following way:
373.In an ideal world it would make good sense not to separate the sisters. But, in my view, the Court must take a comprehensive and longer term view of what the best interests of [the child] require.
374.The aunt and her family can offer [the child] the opportunity to grow up in their large, loving family of which her father had been a part. The aunt and her husband have an impressive record as parents and have provided great opportunities for their children which they also wish to do for [the child]. And I am satisfied that they are committed to supporting the close and meaningful relationships between [the child], [her sister D] and the step-mother.
375.For all the above reasons, in my view, the best interests of [the child] will be served by the relocation of her residence to France with her aunt.
The grounds of appeal
In broad terms, the first five grounds of appeal challenge his Honour’s application of certain provisions of ss 60CC(2) and (3) of the Act. The sixth ground asserts that his Honour failed to give adequate reasons and the seventh, and final, ground contains the general assertion that his judgment “was plainly wrong”.
Discussion
Bearing in mind the strict limitations on appellate interference with a discretionary decision such as the present (as imposed by High Court authorities such as House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513), we turn to consider the grounds of appeal.
Ground 1
The step-mother’s first, and as we understood it, primary ground was that
his Honour had “wrongly found that all of the considerations in s 60CC(2) and
s 60CC(3) … applied to the circumstances of both [the step-mother] and [the aunt] and in particular it was relevant to consider the benefit of the child of having a meaningful relationship with each” of those persons.Although the ground and written submissions were expressed more broadly, senior counsel for the step-mother explained in oral submissions that the ground is confined to the construction and operation of s 60CC(2)(a) which provides that a primary consideration in parenting matters is “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
In the section of his judgment where the trial judge explained the applicable law, he did so for the most part in general terms, that is, without reference to the specific facts of this case. However, at one point in his explanation,
his Honour observed that most cases which fall for determination under
Part VII of the Act involve a contest between the natural parents of the child, or at least between a natural parent and another person, but that in this case although the mother was a party to the proceedings, she did not appear at the hearing and could not be regarded as “a serious contestant”, and that the real contest was between the step-mother and the aunt, neither of whom is a parent ([186]).His Honour then set out the following paragraph from the judgment of May and Thackray JJ in Mulvaney & Lane (2009) FLC 93-404 in which the dispute was between the natural mother of the subject child and her husband who was not the child’s natural father but was referred to in the judgment in the case as “the father”:
78.In our view, his Honour was quite right to consider and make findings in relation to all of the relevant “additional considerations” in s 60CC(3), even though he acknowledged some had no application to the father because they relate only to a “parent”. However, for the sake of consistency it seems to us his Honour should have adopted the same approach when discussing
s 60CC(2)(a) …His Honour then also set out two paragraphs ([76] and [79]) from the judgment of the Full Court in Aldridge & Keaton (2009) FLC 93-421 which it is unnecessary for us to set out here.
Later in his reasons when he came to apply the primary considerations in
s 60CC(2) his Honour said at the outset:325.As indicated above, the first of the primary considerations in
s 60CC(2) of the Act is the benefit to [C] of having a meaningful relationship with her mother. For the reasons referred to above, I also have the view that the primary considerations also extend to both the step-mother and the aunt for the reason that clearly [C] has a close relationship with each of them.It is this paragraph and those following in his Honour’s reasons which were the principal focus of the submissions of senior counsel for the step-mother in support of the appeal, with it being submitted that s 60CC(2)(a) gives a special status to the relationship between a natural parent and a child, and that the second sentence of [325] of his Honour’s reasons, with its reference to the primary considerations extending to both the step-mother and the aunt because the child had a close relationship with each of them, contained an error of principle. That error of principle, it was submitted, was sufficient to dispose of the appeal because it must be regarded as colouring the entirety of his Honour’s reasons and distorting the outcome.
It was also the submission of senior counsel for the step-mother that we should hold that the Full Court decisions of Mulvaney & Lane and Aldridge & Keaton which the trial judge cited, and on which he apparently relied, were wrongly decided. However, it was never made clear to us what was the precise error or errors in those earlier decisions which we were being asked to identify and correct. For us to speculate as to what that error was would only add to the confusion which already exists in this area because of the references in
s 60CC(2) only to “parents” but in s 60CC(3) to both “parents” and other persons, in circumstances where the Act envisages that a parenting order may be made in favour of a person who is not a parent of the child but is a grandparent, or is simply “concerned with the care, welfare or development of the child” (s 65C).We accept that his Honour did in fact make an error of law when he expressed the view in [325] that the primary considerations in s 60CC(2) “also extend to both the step-mother and the aunt for the reason that clearly [the child] has a close relationship with each of them.” There can be no question (and regardless of what may have been said in other cases) that the words of s 60CC(2), or more accurately s 60CC(2)(a), refer only to the benefit to the child of having a relationship with both the child’s parents. The paragraph says what it means, and there is no canon of statutory construction which would enable it to be rewritten. If this needs to be confirmed then we refer to and adopt what the Full Court (Warnick, Thackray and O’Ryan JJ) said in Donnell & Dovey (2010) FLC 93-428, at [101]:
In our view, there can be no doubt that s 60CC(2)(a) has no application to a person who is not a “parent”. That is so because the paragraph refers only to “parents”, and there is no extended definition of that word …
Further, we are prepared for present purposes to assume (without deciding) that s 60CC(2)(a) does apply in a case such as the present where the child’s only surviving parent has ultimately neither sought a parenting order in her favour, nor even participated in the parenting proceedings.
The question for us then becomes whether this error in the interpretation of
s 60CC(2)(a) by his Honour has so undermined his decision that that decision cannot stand and that there must be a new trial (as it was conceded there would have to be if the appeal was to be allowed for this reason).His Honour was, of course, required to consider the nature of the child’s relationship with both the step-mother and the aunt specifically under
s 60CC(3)(b). It was self-evidently important that he do so because it was ultimately only those two persons who were seeking orders in relation to the child, and it is apparent from his Honour’s reasons that his Honour did this.
It must not be overlooked that s 60CC(3)(b) is contained within the set of factors described as additional considerations as opposed to the primary considerations set out in s 60CC(2). The additional considerations do include a catch-all provision (s 60CC(3)(m)), but it is plain that it cannot be relied on to elevate the benefit to the child of having meaningful relationships with the step-mother and the aunt to a primary consideration.For present purposes, we also accept the proposition that, given the provisions of s 60CC(2)(a), his Honour had to have regard to which placement of the child would permit her to have “the benefit … of having a meaningful relationship” with her only surviving natural parent. His Honour can be seen as recognising this factor when, in his discussion of the primary considerations (at [325] to [354]) and of the factors which favoured the child remaining in Australia with the step-mother, he said:
352.It would be more likely for [the child] to be able to have opportunity to maintain and further develop her relationship with her mother in Australia.
(See also [331] of his reasons set out below)
However, this does not provide an answer to the error of law committed by
his Honour. The issue is that it is unknown whether his Honour would have reached the same result if he had not made the error. It is also no answer to say, as senior counsel for the aunt put to us, that the error is of no consequence because in the subsequent paragraphs to [325] his Honour addressed the position of the mother vis a vis s 60CC(2)(a) and (b) and then moved to address the positions of the aunt and the step-mother. As the senior counsel for the
step-mother submitted, the error colours everything that follows, and we cannot be certain that his Honour ultimately applied the correct principles in reaching his conclusion.It is also important to remember that the primary considerations include
s 60CC(2)(b) as well, being “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” It seems to us that while there can be no room for debate as to the application of s 60CC(2)(a) in a case where neither natural parent is a party to the parenting proceedings, there can be no doubt that s 60CC(2)(b) has application in every parenting proceeding, no matter who the parties to those proceedings are.It is apparent from his reasons that his Honour addressed this consideration. He recorded the evidence from Dr K concerning the possible risks that the mother posed to the child and made appropriate findings. Again though that does not overcome the uncertainty resulting from the error of law evident in [325] of
his Honour’s reasons.Despite how his Honour developed his reasons for judgment following [325] of his reasons, we consider that the error of law evident in that paragraph did undermine his decision, and that decision cannot stand. It is unknown whether his Honour would have reached the same decision if he had not committed that error. Accordingly, we find merit in this ground of appeal.
Ground 2
By this ground, the step-mother asserts that the trial judge failed to consider or to adequately consider the benefit to the child of having a meaningful relationship with her mother as he was required to do under s 60CC(2)(a). The argument runs that this relationship would best be facilitated by the child primarily living with the step-mother in Australia as opposed to with the aunt in France. In oral submissions, senior counsel for the step-mother drew on some of the matters discussed in relation to Ground 1. It was also submitted that there was a failure to give positive consideration to those matters (the mother’s role with the child, being treated differently to the roles of the other parties with the child). The assertion is that if proper consideration had been given, the result may have been different.
In his reasons the trial judge set out the submissions of the parties in a way that demonstrated that he understood and had engaged with the thrust of the arguments. The trial judge specifically noted that this issue was an important plank in the step-mother’s case. He set out his discussion of the primary considerations from [325] of the judgment to the concluding paragraph and teased out the issues associated with the mother’s relationship with the child and the meaning of that relationship. Importantly, his Honour noted that there is the second primary consideration and the additional considerations to also consider in this regard. In other words, the trial judge noted that there are risks associated with the mother’s relationship with the child.
At [352], the trial judge recorded that the best chance for the relationship between mother and child to be promoted would lie with the step-mother’s proposal. On the other hand the trial judge was alive to the import for the relationship between mother and child of an order which would have the child living in France. At [177], he recorded Dr K’s evidence: “Yes an ocean might provide that benefit, but it carries with it the detriment of inability to maintain any form of meaningful relationship between [the child] and her mother.”
The trial judge clearly gave serious consideration to the benefit to the child of having a meaningful relationship with her mother as he was required to do under s 60CC(2)(a). Importantly his Honour found that to the extent of the mother and child spending time together, a meaningful relationship might not be facilitated by the mother. Whatever the arguments about the relative treatment of the matters in s 60CC(2) and (3), there is no doubt that the legislation does not require that a meaningful relationship with a parent is the only consideration going to a child’s best interests.
The challenge in this ground must fail.
Ground 3
This ground asserts that his Honour failed to consider at all, the evidence that at the date of the trial the child was primarily attached to the step-mother. The gravamen of this challenge is based on the evidence of Dr K to the effect that, whereas the mother had been the primary attachment figure for the child, as at the date of the hearing the primary attachment was probably to the step-mother. In his report written in June 2012, Dr K expressed the view (at [389] of his report) that the child’s primary attachment figure was the mother. However, in his oral evidence he can be seen as agreeing that the primary attachment was now to the step-mother:
A child who now has a – would you agree – a primary attachment to [Ms Burton]?‑‑‑Yes. I think there’s a lot of positive ways to how she’s dealing with it. But the – there’s that concern I have that some of how they have dealt with that is to make the [D/C] bond particularly special, with special underlined, in a way that concerns me a little in terms of the significance that an adolescent who has her own troubles is playing in the mindset of the child. But broadly speaking, I think [Ms Burton] has assisted this child to get through that very difficult transition.
This depth of reserve ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ in parenting behaviour that [Ms Churchin] has got – how did it present itself to you? What led you to conclusion that she has this?‑‑‑She – at a practical level, she described her sort of practical care of her current children and her intentions for the extra one in a very hands-on, day-to-day way, and a detailed way, that suggested to me she had an understanding of what matters to kids in a day-to-day way. She had a certain balance in that there was an intensity in terms of taking things seriously, but there was always a balance in terms of there was time for her and her husband. There was pleasure in her work. So it felt like it was sustainable for her as a human being over the longer term. Just observing her with her own youngest child, there was – she had a certain poise in terms of managing him. He had space to talk and so on, but he – there was expectations of behaviour. And hearing how she spoke about her intentions with regard to the other parties and with regard to trying to help the child to fit in, she was very child-focussed. She spoke of letting the child be a child, and that was part of a criticism, I suppose, of [Ms Burton] in terms of the role that [D] might be playing. But I felt that it was a reasonable comment from a parenting perspective that I think she was accurately identifying that there was something not entirely healthy about the intensity of the sort of need, for example, to [D] and [C] to be in text and other communication at frequent intervals. So I felt that it was a poise and strength and mindfulness about the child’s needs.
Going back to your report, and going through that chronology of carers, so to speak ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ my words not yours, but the recommendations that flowed through ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ if there were risks ‑ ‑ ‑?‑‑‑Yes.
At paragraph 479 of your report, you say this:
If the risks are judged not to be as high as the situation outlined ‑ ‑ ‑
?‑‑‑Yes.
Continuing:
‑ ‑ ‑ in the preceding two paragraphs -
and they were if there was an unacceptable risk of danger ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ to [D] – to [C]:
…then in my view, the child should stay living in Australia.
?‑‑‑Yes.
You go on to say:
The main reason for this recommendation is that this will best allow for the child’s primary attachment relationship with the mother to be maintained and strengthened.
?‑‑‑Yes.
Could I interpose there this proposition, that it would also allow to maintain and strengthen what is now her primary attachment to [Ms Burton]?‑‑‑Yes. That’s true.
(Transcript, 1 February 2013, p 34, line 20 to p 35, line 38).
The trial judge dealt with the doctor’s evidence about the child’s primary attachment as follows:
203.[Dr K] said in his report that [the child] having expressed a desire to live with the step-mother and [D] should be given some weight as it reflected the warm and adequate care which she had received from them and the significance of the half-sibling relationship. But he said that the weight accorded to this view should be diminished somewhat because such a view rested in part on the step-mother and [D] having exposed [the child] to a negative appraisal of the French family and drawing [the child] into a loyalty conflict in that regard, and their idealising of the half-sibling relationship at the expense of the mother-child relationship. He said that [the child’s] view in this regard was probably also based on a desire to be close to her mother as her primary attachment figure and to [D] being [the child’s] other link with her upbringing and parents.
At [207] the trial judge said:
The step-mother first met [C] when the child was a few months old. She usually saw her at changeovers for [D] to pass into and from her father’s care, and at significant events for [D]. [Dr K] said that the step-mother had become [the child’s] significant attachment figure. I shall discuss this relationship further below.
At [224] the trial judge said:
[Dr K] said that the mother is [the child’s] primary attachment figure and that [the child] has a unique relationship with her. He said that at interview when he told [the child] that he was about to bring her mother into the room, her body wriggled with excitement and anticipation and she broke into a spontaneous natural smile. When her mother came in, they hugged which [Dr K] described as them melting into each other.
At [264] the trial judge said:
At a broader level the following two areas of effects were opined by [Dr K] if [the child] was to move to France. Firstly, she would be living a long way away from her primary attachment figure, her mother. There would be disruption to that attachment. He said that the effects could be partially mitigated by [the child] having regular Skype connection with her mother and substantial time with her mother in Australia or France twice per year. But there would still be a significant loss experienced by [the child].
At [353] the trial judge said:
[The child] is settled in Australia both in her immediate family situation and at school and that she has a supportive group of friends. [Dr K] said that [the child] has now formed an attachment relationship with the step-mother and that she would feel an acute sense of loss and distress if she was required to leave residence in the household of the step-mother and [D] and move to France.
It will thus be seen that there appears to be confusion, if not misapprehension, in his Honour’s reasons as to who was the child’s “primary attachment” by the time of the trial: the mother or the step-mother? This, in our view, was a particularly important consideration in this case given the trauma and lack of stability in the child’s life to the time of the trial, and his Honour’s apparent confusion or misapprehension about this matter provides yet another reason why we consider it unsafe to permit his orders to stand.
This ground therefore has merit.
Ground 4
By this ground, the step-mother asserts that the trial judge failed to consider or to give appropriate weight to the evidence about the child’s wishes.
The trial judge recorded the following evidence concerning the child’s views when considering the additional consideration in s 60CC(3)(a):
200.When [the child] returned from holidays with her aunt in France in July 2013 she informed the step-mother that she had had a good time but did not want to live in France.
201.[Dr K] said that [the child] told him with “some certainty, which did not appear to be constrained or rehearsed” that she wanted to live with the step-mother and [D].
202.After [the child] had met with her mother at [Dr K’s] interview she told him that she wanted to live with her mother more than she wanted to live with the step-mother.
203.[Dr K] said in his report that [the child] having expressed a desire to live with the step-mother and [D] should be given some weight as it reflected the warm and adequate care which she had received from them and the significance of the half-sibling relationship. But he said that the weight accorded to this view should be diminished somewhat because such a view rested in part on the step-mother and [D] having exposed [the child] to a negative appraisal of the French family and drawing [the child] into a loyalty conflict in that regard, and their idealising of the half-sibling relationship at the expense of the mother-child relationship. He said that [the child’s] view in this regard was probably also based on a desire to be close to her mother as her primary attachment figure and to [D] being [the child’s] other link with her upbringing and parents.
204.[Dr K] also said that every effort should be made to respect [the child’s] desire to have substantial connection with her mother.
205.He also said that he did not believe that [the child’s] negative comments about her relationship or life with her aunt’s family should be given any weight. He thought that these views had characteristics of views absorbed or overheard from others, in this case from the step-mother. He said that they did not accord with his observations of the child’s positive interactions with the aunt’s family. In his view the child’s experience with the aunt’s family had been positive and enriching and would remain so in future as either a resident or contact family.
206.When [Dr K] asked [the child] whether it was easy or hard to work out who to live with she said “hard, and weird”.
Later in his concluding paragraphs his Honour said:
360.I accept that the child has expressed the view that she would prefer to live with the step-mother and [D]. But as [Dr K] has said, [the child] tends to live her life in the present and would be expected to express such a view. In this regard I also note that [Dr K] said that both the aunt and the step-mother reported to the Department of Family and Community Services workers that originally [the child] accepted the news that she was to live with the aunt’s family in France without objection and that she engaged positively in planning for her new life in France when she spent time there in mid-2011.
We are not persuaded that his Honour’s discretion miscarried when he reached this conclusion given the state of the evidence in relation to the child’s views.
At the hearing of the appeal we were referred by senior counsel for the aunt to a passage in the transcript of the final submissions made by senior counsel for the step-mother at trial where it might appear that a concession was made on behalf of the step-mother that little or no weight should be given to the child’s views. However, a full reading of the relevant passage which we now set out indicates that there was no such concession:
Dealing then with the section 60CC factors, such of them as are relevant: each of my friends put to your Honour the evidence as they saw it impacting upon the views expressed by [the child], and I’m not going to stand here and persuade your Honour that in relation – that in respect of [the child], what she says about whether she wants to live in France or Australia, or for that matter what she thinks about each of the parties for her care should be given enormous or even some weight. [Dr K] contextualises why and we don’t put a submission to your Honour that what he says would not be open to your Honour to find, but what is important, and what is really the most important of [the child’s] views, is her earnest and heartfelt desire to maintain a relationship with her mother, and there’s no issue that for [the child], that is what her strongest and earnest wish is, and in that respect, I invite your Honour to consider what [Dr K] says at paragraphs 303, 314 to 318, 470 and 472. And what some of those paragraphs do is encapsulate the proposition that, indeed, actions speak louder than words when [Dr K] stands back and just observes the relationship between [the child] and her mother, and I think talks at one stage about [the child] melting into her mother’s arms. That is, in our respectful submission, the most powerful evidence of what [the child’s] views are and those views are clearly consistent with – albeit unstated as such by [the child] – to remain in Australia.
(Transcript, 1 March 2013, p 23, line 44 to p 24, line 14)
Ground 5
By this ground the step-mother asserts that the the trial judge failed to:
a)consider the evidence about the risk of harm to the child if the child lives in France;
b)consider and assess the short term and long term consequences for the welfare of the child if she lives in France; and
c)identify and assess the risks of harm to the child if she lives in Australia and evaluate those risks, if any, with the risks of harm to the child if she lives in France.
The submissions put in support of this ground focused on the evidence of
Dr K that the child would suffer loss and distress for 6 to 18 months if she was sent to France and would have a need for professional assistance, with the submission then being that it was never explained by his Honour why this course would be the preferable outcome.His Honour certainly recognised the risk for the child, for example at [353] to [354] where he said:
353.[The child] is settled in Australia both in her immediate family situation and at school and that she has a supportive group of friends. [Dr K] said that [the child] has now formed an attachment relationship with the step-mother and that she would feel an acute sense of loss and distress if she was required to leave residence in the household of the step-mother and [D] and move to France.
354.[Dr K] said that in France [the child] could remain in a somewhat inhibited state for up to 18 months, because it might take such a period for her to complete an attachment to the aunt.
His Honour can then be seen as addressing this risk in the concluding section of his reasons where he said:
369.In relation to the grief and distress which would be likely to be caused to [the child] in moving to France, [Dr K] offered the following thoughts. The aunt and extended family would provide a strong and loving environment for [the child] and respect for her relationship with the step-mother and [D] and that they would be able to facilitate this. Because of [the child’s] history of developmental disruption, she would be likely to have the resilience to deal with the change. Her response would be more likely to be sadness rather than aggressive or self-destructive behaviours. It would be important for [the child] to understand that the step-mother and [D] were still going to be in her life and he said that the regular Skype and routines would be important.
[Dr K] also thought that an appropriate program of counselling in France would be of considerable assistance to [the child] in managing her distress and grief.While we have some concerns as to whether sufficient weight was given by
his Honour to this potential risk to the child of the move to France, we are, on balance, again not persuaded that his Honour’s discretion miscarried on account of this matter.
Ground 6
This ground challenges the adequacy of his Honour’s reasons.
The law in this area is settled and the principles that apply are well established.
Judicial officers are obliged to provide adequate reasons for their decisions (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). In Bennett and Bennett (1991) FLC 92-191 at 78,267, the Full Court followed
Sun Alliance Insurance Ltd v Massoud [1989] VR 8) and found that an appellate court must be able “to discern either expressly or by implication the path by which the result has been reached”.
Save in relation to the complaints encompassed in the grounds of appeal which we have found to have substance, we do not find the challenge to the adequacy of his Honour’s reasons to have merit.
Ground 7
This ground is, in effect, that the outcome identified by his Honour is outside a generous range of discretion in the circumstances of the case.
Given that we have found merit in certain of the grounds of appeal and that the appeal will have to be allowed on the basis of those grounds, it is unnecessary for us to discuss this final ground.
Application to adduce further evidence
By her application in an appeal filed 1 October 2013, the step-mother sought leave to adduce further evidence in the form of an affidavit sworn by her on that day. The evidence addresses recent contact the step-mother had with the mother and with members of the maternal family. It would not be evidence which, if accepted, would demonstrate that the orders appealed are erroneous (CDJ v VAJ (1998) 197 CLR 172 at [109]) and therefore we would not receive it in support of the appeal. That, of course, is not to say that it would not be relevant in a redetermination of the matter.
Conclusion in relation to the appeal against the parenting orders
Given that we have found substance in the grounds directed to his Honour’s application of s 60CC(2)(a) and his approach to the evidence concerning the child’s primary attachment, the appeal against the parenting orders must succeed and those orders be set aside. It appeared common ground that if the appeal succeeded it would be necessary for there to be a new trial; that course is clearly required given that Dr K’s interviews with the child and the parties were conducted as long ago as April 2012.
At the conclusion of the hearing of the appeal, we canvassed with counsel for both parties what arrangements should be made in the event that the appeal was to succeed and the trial judge’s orders set aside. Again, it appeared common ground that earlier interim orders made on 7 June 2011 (albeit in proceedings between the step-mother and the mother) which provided for the child to live with the step-mother, who was to have sole parental responsibility, would revive. It also appeared to be agreed that international travel arrangements would be able to be negotiated as they had in the past.
Appeal against stay order (EA 131 of 2013)
There was also before us an appeal by the aunt against an order made by the trial judge on 29 August 2013 whereby he stayed his parenting orders pending the determination of the appeal against those orders.
It is unnecessary for us to determine this appeal given that the appeal against the parenting orders has now been determined, and we will formally dismiss this second appeal.
Costs of the appeals
It was common ground that the costs of the appeal in relation to the stay order should be costs in the main appeal.
Having regard to the submissions made to us in relation to costs at the conclusion of the hearing of the appeals and the outcome of the main appeal, we consider that no order for costs in favour of any party would be justified, but that both parties and the independent children’s lawyer should receive the appropriate costs certificates for the appeal and the new trial.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Loughnan JJ) delivered on 15 November 2013.
Associate:
Date: 15 November 2013
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