C v S
[1998] FamCA 66
•15 MAY, 1998
[1998] FamCA 66
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT BRISBANE Appeal No.NA4 OF 1998
File No. BR11430X OF 1997
IN THE MATTER OF: C
Appellant/Mother
AND: S
Respondent/Father
CORAM: ELLIS LINDENMAYER & WARNICK JJ
DATE OF HEARING: 15 MAY, 1998
DATE OF JUDGMENT: 15 MAY, 1998
JUDGMENT OF THE COURT
Appearances: Ms Hogan of Counsel (instructed by Duells as Town Agents for Francis Kelly & Grant, Solicitors) for the Appellant/Mother
Mr Galloway of Counsel (instructed by Christine Vachon, Solicitor) for the Respondent/Father
ELLIS J: I will request Warnick J to give the first judgment.
WARNICK J: This is an appeal by the mother against orders made by the Honourable Barry J on 4 December, 1997. The father, the applicant below, is the respondent to the appeal.
BACKGROUND FACTS:
The parties commenced cohabitation in the second half of 1992. They have two children, J born in May, 1994 and S born May, 1995. Initially, the parties lived together in the Riverina district in New South Wales. The mother's parents and other members of the mother's family live there, as do the father's parents and other members of his family.
The parties however moved to Brisbane in about August, 1994. The child J was then about three months of age and it follows from what I have said that the child S was born later in Queensland.
The father has been in employment at all material times and the mother has been the primary carer of the children. The parties separated on Saturday, 15 November, 1997. On 16 November, 1997, the mother left the family residence and she has not subsequently returned. On one version, at and subsequent to separation, the mother expressed the wish or intention to return to the Riverina district with the children. The father expressed opposition but when the mother persisted and started making plans to leave, the father brought an application seeking an injunction restraining the mother from moving.
That application was filed on 18 November, 1997, returnable on 21 November, 1997. However, the father could not effect service of the application on the mother before she left for the Riverina district with the children. In the Riverina district the mother resided with her mother. On the return date, namely 21 November, 1997, the father filed a further application seeking an order that the mother return forthwith with the children to Brisbane pending determination of the issue of relocation to the Riverina and he also sought contact orders. The mother responded to that application. She, in her material, alleged an incident of violence against her by the father on 15 November, 1997, the date of separation.
She said that because of that assault she developed fears for her safety and had then decided to return to the Riverina district. After the move of the mother to the Riverina district, the father pursued frequent telephone contact with the children. When the matter was heard by the trial Judge on 4 December, 1997, he made orders that are set out in Appeal Book pp.4-6. There is no issue about the effect of those orders, but for the purpose of clarity, some comments might be made. Prior to the numbered orders, the words "it is ordered by consent until further order" appear. That is followed by eight paragraphs, after which the words "it is ordered by the Court" appear and Order 9 provided that the mother return the said children to Brisbane by Tuesday, 23 December, 1997.
It is common ground that the question of the mother's return was a litigated question; that his Honour indicated that he intended to make an order for the return of the mother and the parties consequently conferred and reached agreement on those matters which are set out under the heading; "is ordered by consent until further order" and numbered paragraphs 1 to 8. It is also appropriate to observe that there are no undertakings mentioned as prefacing or being relevant to the orders made, but I will say something further about that later.
THE JUDGMENT OF THE TRIAL JUDGE
The reasons for the orders made are to be found at pp.7-11 of the Appeal Book. There were no challenges to facts found by the trial Judge, however it is appropriate to note that his Honour accepted the mother's evidence about the assault on 15 November, 1997, saying that he believed it to have occurred more or less in the terms of her description.
His Honour also found, with particular reference to evidence of the mother herself, that there was a good relationship between the father and the children and that the father had exhibited, by his behaviour since the move by the mother and children to the Riverina district, a close interest in the children.
The application by the trial Judge of principle and reasoning to the case before him is to be found at the foot of p.9 of the Appeal Book:
“Under the decision of B v B, a recent decision of the Full Court, the Court laid down various tests that were appropriate in considering whether there should be relocation or not. The Court has to consider the degree and quality of the existing relationship between the children and the residing parent, that is the mother. That is not an issue. The mother's right to care for the children is not challenged. I have to look at the degree and quality of the existing contact between the children and the contact parent. Separation is only a matter of weeks ago and really there has been no opportunity for contact other than that. I note, that the father has exercised regular telephone contact which is indicative on one interpretation of a close interest in the children.”
His Honour then, shortly thereafter, continued and said:
“The parties have resided in Brisbane for three years. The mother's reasons for relocation are evident from the submissions made. The father challenges the mother's bona fides, in that he says that well prior to the events of the day - he denies the events of 15 November 1997 - but says prior to that time, the mother had been asserting that she wished to return to the Riverina district and her conduct after 15 November 1997 simply gave effect to what she had already been saying.
I have to consider the distance and permanency of the proposed change, the dislocation from other aspects of the children's lives. The children are not at school. We are not able to ascertain the wishes of the children because of their age. The mother is on the Pension. The father's income is limited. It seems to me, in the circumstances, that there will be no meaningful contact between the father and his children unless the mother returns to Brisbane”.
What I have quoted represents the development of the reasons for the view expressed in the last sentence of the passage quoted and it is clear, from what follows in the reasons, that by that stage his Honour the trial Judge had reached a conclusion that he ought order the mother to return to Brisbane. In following passages, the trial Judge discussed the question of the practicalities, including financial arrangements for going about having the mother return to Brisbane and indicated that he would stand the matter down for a time. Having given that indication, his Honour said:
“That it is not to say that it has to be on a final basis. This is only an interim decision, but I believe the standard to be applied on an interim decision is even more stringent than on a final basis. That where a relationship ends it is not for one party to relocate thousands of kilometres away from the other party on a unilateral basis without any consultation whatsoever.”
His Honour then noted that the father had agreed to give undertakings or submit to orders that he would not assault or molest the wife.
GROUNDS OF APPEAL
The grounds of appeal at p.2 of the Appeal Book are numbered 1 to 9; 9 is no significance as it simply referred to the possibility of other grounds that might have become apparent on receipt of the reasons for judgment. Of grounds 1 to 8; 4 and 8 have been abandoned. The first three, of the then remaining grounds, can be classified as being assertions that the trial Judge gave insufficient weight to certain factors. Those factors are:
the reasons for and circumstances of relocation and the bona fides of the mother; (2) the issue of family violence; and
comparative family support in Brisbane and the Riverina district.
The remaining three grounds, that is, numbered 5, 6 and 7 in the appeal document, are slightly different and in effect are that the trial Judge failed to consider certain matters or alternatively, if he did consider them, fail to give those matters proper weight. The matters can be summarised as:
the possible effect of forced relocation on the mother impinging on her capacity to parent and thereby affecting the interests of the children;
the possible beneficial effect for the children in relocation; and
the alternative arrangements for contact possible.
DISCUSSION OF THE GROUNDS FOR APPEAL.
The assertion that the trial Judge failed to give sufficient weight to the reasons for and circumstances of relocation and the bona fides of the mother, is simply dealt with by noting that, as appears at p.10 of the Appeal Book, his Honour did not consider on the interim basis heard, that he could resolve the question of the mother's bona fides and connected with that, her reasons for relocation.
As to the weight given to the issue of family violence, the evidence before his Honour consisted of that relating to the event on 15 November, 1997 in respect of which, as I indicated, his Honour accepted the mother's evidence, and another incident some four weeks or so beforehand, and as set out in an affidavit of the mother in paragraph 7(b) at p.30 of the Appeal Book.
I doubt whether those matters can be said in the sense in which the words are generally used to constitute a history of family violence but they certainly are episodes of family violence. However, there is nothing about the context of those matters which would necessarily give rise to a strong concern of repetition of such behaviour. Given that the trial Judge recorded the father's agreement to give undertakings about such issues, I am not satisfied that it can be said that he failed to give weight or proper weight to that issue. I note at this stage that, as I indicated earlier, the order contains no recitation of undertakings.
It appears from what we have been told from the bar table a written undertaking was provided by the father, though it is not clear whether that has been filed or not.
The next matter was the question of the weight given by the trial Judge to the comparative family support available to the mother in the Riverina district as against Brisbane. It is true that this is not a matter canvassed in the reasons for orders. The question of the sufficiency of reasons is connected with the nature of the hearing. This is a matter conceded by counsel for the appellant and this of course was a hearing on an interim basis.
In my view, where facts are not the subject of dispute and there is clear evidence about a particular situation, it ought not be assumed that because those matters are not set out in a judgment they have been overlooked by a trial Judge hearing a matter on an interim basis. There was clear, undisputed evidence about the family support available in the Riverina district and the lack thereof in Brisbane for the mother. I am not, for the reason just stated, persuaded that his Honour ought be regarded as having overlooked that evidence and therefore having failed to give it its proper weight.
The next ground is the first of those grounds which assert that the trial Judge failed to give consideration to a factor or alternatively, sufficient weight. That ground is that the trial Judge did not consider the possible adverse effects of the refusal to allow the relocation of the mother on the interests of the children, in that the pressures thus imposed upon the mother may impinge upon her capacity to function as a parent, thereby diminishing the quality of life of the children. It is conceded by counsel for the appellant that a submission to the effect of the ground was not directly made to the trial Judge.
Nor was there any direct evidence of any such adverse effects. The submission was put on the basis that an inference that there might have been such effects could have been drawn. In my view this is quite insufficient to found a ground for appeal, for it has not been shown or even argued, that the inference ought to have been drawn.
Ground 6 related to the failure to consider the possible beneficial effects for the children in re-location. Again, this is a matter not specifically referred to in the reasons. Again, it was the subject of clear evidence about the matters from which inference of beneficial effect might have been drawn, and in the circumstances of the hearing, the absence of a specific mention in the reasons does not, without more, persuade me that the trial Judge ought to be considered to have, or likely to have, overlooked the possible beneficial effects for the children in re-location.
Finally, it is said that his Honour failed to consider possible alternative arrangements for contact. At p.10, the last sentence in the passage which I previously quoted, is:-
“It seems to me in the circumstances that there can be no meaningful contact between the father and his children unless the mother returns to Brisbane.”
It is not suggested that there was evidence before the trial Judge of some alternative arrangement which offered anything like, in the financial circumstances of these parties, the opportunity for contact which might be taken by the father if the mother were living in Brisbane or close to Brisbane. In those circumstances it has not been argued that the observation of the trial Judge, which I have just quoted, was not an observation well open to the trial Judge, and in those circumstances any failure to discuss alternative arrangements being arrangements offering far less meaningful contact, cannot be seen in my view as an error.
I deal with two other matters which I have not discussed in dealing with the grounds specifically set out, but which are more squarely raised in the appellant's outline of submissions. They are that his Honour misdirected himself away from the question of the paramountcy or the consideration of the paramountcy of the children's best interests as the determinative issue in the exercise of his discretion. I earlier quoted that part of the trial Judge’s reasons where he referred to B v B and the tests laid down in that case. The paramountcy of the children's interests in these matters is of course so fundamental that it would require a powerful combination of factors, or at least a combination of factors not in existence here, to persuade me that an experienced judge who specifically referred to a decision such as B & B, overlooked the position of paramountcy in his deliberations.
The other matter referred to in the appellant's outline of submissions follows from another passage which I earlier quoted from the judgment of the trial Judge. That statement appearing at the foot of p.10 of the Appeal Book and going to the top of p.11, which statement I repeat, came after his Honour had indicated he intended to order the mother to return to Brisbane. After his Honour had noted that such an order would be only on an interim basis, he then said, as I earlier quoted, and again quote :
“But I believe the standard to be applied on an interim decision as even more stringent than on a final basis that where a relationship ends it is not for one party to re-locate thousands of kilometres away from the other party on a unilateral basis without any consultation whatsoever.”
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.
His Honour in referring to the standard to be applied on an interim decision, in my view, was recognising, albeit perhaps in a shorthand way, the proposition which I have just ennunciated and given what I have said of the proposition, it is clear that, in my view, I do not consider his Honour to have been expressing any wrong principle in the statement he made.
It follows from what I have said that I am not satisfied that in the appellate sense it is shown that his Honour has failed to give sufficient weight to any matter raised or that he has failed to consider any matter which he ought to have considered.
Accordingly, I would order that the appeal be dismissed and given the nature of the issue and the consent to the course to be referred to by the respondent, I would also order that the hearing of the application for substantive relief be expedited. The orders therefore that I would make are :
that the appeal be dismissed; and
that the hearing of the Form 7 filed 18 November, 1997 be expedited.
ELLIS J: I agree with the orders proposed by Warnick J and with his reasons. There is nothing further I wish to add.
LINDENMAYER J: I also agree. I would add only this with respect to grounds 1, 2 and 3. In his reasons for judgment at Appeal Book p.8 his Honour referred, in the penultimate paragraph on that page, to the wife's stated reasons for re-locating as she did, namely that she was in fear of further violence from the father and that, having separated, there was no family support available to her in Brisbane but considerable family support in the Riverina district where the parties had previously lived for a period of time.
That indicates to me that, in what was clearly a short-form extempore judgment in interlocutory proceedings, his Honour did take those matters into account and gave them such weight as he thought appropriate in the circumstances. As authority teaches, questions of weight are essentially a matter for the trial Judge, see Gronow v Gronow (1979) 144 CLR 513.
ELLIS J: The order of the Court will then be :
That the appeal be dismissed.
That the hearing of the Form 7 application filed by the father on 18 November, 1997 be expedited.
RECORDED : NOT TRANSCRIBED
ELLIS J: The order of the Court will be that there be no order as to costs.
CHILDREN - Interim residence - Contact - Relocation of children interstate - Family violence issues
This was an appeal by the mother against the orders of Barry J of 4 December, 1997 whereby the children were to reside with her on the condition she live within 35 km of the Brisbane GPO.
The parties commenced cohabitation in June, 1992 and separated on 15 November, 1997. There are two children of the relationship, born in May, 1994 and in May, 1995.
The parties initially resided in the Riverina district, NSW but moved to Brisbane in 1994 where they remained until separation. Allegedly as a result of an assault by the father upon the mother, the parties separated and the mother returned with the children to the Riverina district in November 1997.
Upon finding that unless the mother returned to Brisbane, there would be little opportunity for meaningful contact between the father and the children as a consequence of the parties’ limited incomes, the trial Judge ordered that the mother return to Brisbane. The father gave an undertaking not to assault the mother.
On appeal, it was submitted that the trial Judge failed to give sufficient weight to the bona fides of the mother and her reasons for relocation, to the issue of family violence or to the existence of family support for the mother in the Riverina district. In addition, the wife submitted his Honour failed to consider, or to give proper weight to, the effect of the forced relocation on the mother’s ability to parent and the beneficial effect to the children of the relocation to NSW.
Held, dismissing the appeal:
The matter was heard by the trial Judge on an interim basis and it ought not be assumed that because particular matters are not set out in the reasons for judgment that they have been overlooked. It was not shown that, in reaching his decision, the trial Judge had not paid sufficient regard to the evidence before him nor afforded it the appropriate weight.
The ground of appeal relating to the adverse effect of relocation on the mother related to matters not raised before the trial Judge and it is insufficient to found a ground of appeal to submit that an inference of such effect could have been drawn.
Hearing of the father’s Form 7 application expedited.
No order made as to costs.
NOT REPORTABLE
103
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