CARMODY & ELRIDGE
[2012] FamCAFC 123
•17 August 2012
FAMILY COURT OF AUSTRALIA
| CARMODY & ELRIDGE | [2012] FamCAFC 123 |
| FAMILY LAW – APPEAL – CHILDREN – appeal by the mother against orders of the Federal Magistrates Court that the child live with the father unless the mother live within 60km of the father’s residence in which event there would be a shared living arrangement for the child – where the parties were not given the opportunity to comment on the practicability of the mother living within 60km of the father’s residence – where the father conceded the practical difficulties for the mother in terms of housing and employment under the Federal Magistrate’s Orders – appeal allowed and discretion re-exercised to extend the distance to 80km as the proximity between the residences of the mother and the father, and to ensure that the mother would not have to move if the father moved his residence from his current residence – grounds directed to whether the Federal Magistrate properly considered or gave appropriate weight to the likely effect of any separation of the child from the mother and alleged family violence found to be without merit. FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – application to adduce further evidence dismissed except to the limited extent that the evidence related to the whereabouts of the relevant towns in question. FAMILY LAW – APPEAL – COSTS – no order for costs – costs certificate granted to appellant. |
| Family Law Act 1975 (Cth) ss 60CC(2) and (3) Federal Proceedings (Costs) Act 1981 (Cth) s 9 |
| MRR v GR (2010) 240 CLR 461 |
| APPELLANT: | Ms Carmody |
| RESPONDENT: | Mr Eldridge |
| FILE NUMBER: | BRC | 2059 | of | 2011 |
| APPEAL NUMBER: | NA | 2 | of | 2012 |
| DATE DELIVERED: | 17 August 2012 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Finn and Forrest JJ |
| HEARING DATE: | 6 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 9 December 2011 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Pedder |
| SOLICITOR FOR THE APPELLANT: | Legal Aid Queensland |
| SOLICITOR FOR THE RESPONDENT: | Mr Elridge in person |
Orders
The appeal is allowed.
(a) Orders 4, 5, 6, 7, 12 and 17 of the orders made by Federal Magistrate Hughes on 9 December 2011 (“the orders”) be varied by deleting the words “60km of the father’s home” and inserting in their stead “80km from the town of [R]”.
(b)Order 8 of the orders be varied by deleting the words “more than 60km from the father’s home” and inserting in their stead “more than 80km from the town of [R]”.
(c)Order 14 of the orders be varied by deleting the words “within 60km of each other” and inserting in their stead “within 80km of each other”.
The appeal is otherwise dismissed.
There be no order for costs in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 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 the appellant in relation to the appeal.
IT IS NOTED that publication of this judgment by this Full Court under the pseudonym Carmody & Elridge has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 2 of 2012
File Number: BRC 2059 of 2011
| Ms CARMODY |
Appellant
And
| Mr ELRIDGE |
Respondent
REASONS FOR JUDGMENT
This is an appeal by Ms Carmody (“the mother”) against orders made by Hughes FM on 9 December 2011 in proceedings between the mother and Mr Elridge (“the father”) in relation to the future living arrangements for the child of their relationship, J, who is now 4 years old. It will be more instructive to describe the orders which are appealed after providing some explanation of both the factual background to the proceedings and also of her Honour’s reasons for judgment.
Background
Both the mother and the father were born in 1980. They commenced cohabitation during 2007 and their son was born in March 2008. They separated in June 2010.
At the time of separation the parties were living at a small town a few hours drive north of Brisbane called C. Shortly after separation the mother moved south to the town of P and the father further north to the town of H. The child lived primarily with the mother but spent time with the father.
In early March 2011 the mother and child moved to be with her family of origin on the Gold Coast. The move was apparently necessary on account of accommodation issues caused by the Queensland floods in early 2011.
On 13 March 2011 the father retained the child after a weekend visit and a recovery order issued for the return of the child to the mother. Interim orders were made in the Federal Magistrates Court at that time which provided that the child continue to live with the mother but spend some days each week with the father.
Meanwhile, the father had returned to the area where the parties had lived, and was living, and continues to live, with his new partner and her three children in the town of R.
Proceedings between the parties for final orders were heard by Hughes FM at the end of June 2011. The mother was represented by Counsel in those proceedings while the father was self-represented.
On 9 December 2011 her Honour delivered judgment and made the orders now appealed.
The parties’ proposals and the reasons and orders of the Federal Magistrate
Her Honour recorded at the commencement of her reasons (paragraph 3) that each party proposed that the child live with that party and spend time each fortnight and during school holidays with the other.
However, it emerged later in her Honour’s reasons (paragraphs 89 and 90) that the father’s proposal was that the child should not live a greater distance than 150km from the parties’ former home in the town of C, and that while his initial proposal was that the child live week about with each parent, he was ultimately prepared for the child to live four nights with the mother and three with himself. But in the event that the mother remained living on the Gold Coast, he sought that the child live with him and attend school in the town of R and spend time with the mother.
The mother’s proposal, as recorded by her Honour (at paragraph 88 of her reasons), was that the child should live with her and spend Thursday evening to Tuesday evening each fortnight with the father until he started school, but once he started school, which would be in 2013, he would spend one weekend each fortnight with the father. It seems clear from her Honour’s reasons (for example, at paragraph 16) that the mother’s case was that she should remain living with the child on the Gold Coast where she had family support, employment and housing (see paragraphs 34 to 45 of her Honour’s reasons).
After setting out the factual background, her Honour considered at some length the mother’s allegations that the father had been violent and abusive to her during the relationship. She concluded (at paragraph 30 of her reasons) that while she was satisfied on the evidence that “the father did sometimes raise his voice at the mother and use offensive language”, she was not satisfied that the father was violent during the relationship or after it; nor did she accept that the mother was, or ever had been, afraid of the father.
Her Honour next considered the mother’s living, employment and child-care arrangements on the Gold Coast, and concluded (at paragraph 44) that the arrangements put in place there for the child’s care were “all perfectly appropriate” and “would be ideal if the child did not live so far from the father”. Her Honour recorded the mother’s evidence that since she returned to the Gold Coast she was less anxious and stressed and was no longer being treated for depression, and continued:
45.… All of these factors are important. I accept that if the mother is happy and well settled, the child is more likely to also be happy and well settled. The critical issue is whether the benefits to the child of living on the Gold Coast, including those which flow to him from having a happy mother, outweigh the adverse effects of being so far from his father.
Her Honour then considered at length the evidence of a family consultant, Mr M, which was contained in a memorandum prepared after conducting a child-inclusive dispute resolution conference on 12 April 2011, and in a family report dated 26 May 2011 prepared after again meeting with the parents and child. Mr M also gave oral evidence at the trial.
Her Honour concluded her consideration of Mr S’s evidence with the following:
84.Mr [M] identified the mother’s behaviour as crucial in assessing whether or not she was capable of supporting the child’s relationship with his father. He doubted that the mother has any real commitment to protecting the child’s relationship with his father. …
85.Mr [M] said that, in his opinion, relocation to the Gold Coast with his mother would not be in [J]’s best interests. He said it is preferable for [J] to maintain weekly time with both parents while he is under school age. He said the crucial issue is the extent to with (sic) each parent can support the child’s relationship with the other. He said the father clearly understood the importance for [J]’s development of maintaining a positive relationship with his mother but doubted the mother’s understanding and commitment in relation to the child’s relationship with his father.
86.Mr [M] recommended that the best option was for both parents and [J] to continue living in the [S] area and for [J] to spend time with both parents each week, at least until he starts school. In the event the mother is permitted to remain with the child on the Gold Coast. Mr [M] recommended that [J] spend four or five nights each fortnight with his father. However, Mr [M] urged the Court to seriously consider ordering instead that [J] live with his father. He said the father was better able to meet the child’s needs than the mother because he was very child focused and could be trusted to ensure the child maintains his relationship with his mother. The same could not be said of the mother.
Then having set out the parties’ proposals, as we have earlier summarised them, her Honour recorded the father’s reasons as to why he could not relocate to the Gold Coast to be closer to the child. These reasons were that he has a business which involves the supply of vehicles to the area of F and that those vehicles leave from the town of R. While he could get a job as a mechanic on the Gold Coast, he would not earn enough to pay his mortgage and support his family.
Her Honour then proceeded to make findings in relation to the various matters which are contained in ss 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) and to which the Court must have regard in determining the best interests of a child for the purposes of making a parenting order. To the extent that those findings have relevance to particular grounds of appeal, we will refer to them when discussing the grounds.
Her Honour’s ultimate conclusion was expressed in the following way (emphasis added):
117.If the mother remains living on the Gold Coast, the best interests of the child will be best met by him living with his father [in the S area]. The major factor leading to this conclusion is the father’s understanding of the importance of the child’s relationship with his mother to the emotional and psychological well-being of the child. If the child lives with his father, the father will ensure the child continues to develop and maintain a meaningful relationship with both parents. I have little confidence in the mother to do the same if the child lives with her.
118.During the assessments for the family report the father demonstrated not only his instinctive understanding of the concept but also his capacity to act in accordance with it to support the child’s relationship with his mother. The mother did not.
119.The mother has good reason for living on the Gold Coast and has made good arrangements for the child which would be perfectly acceptable but for the fact that it is so far from the father’s home.
120.The mother’s choice of residence is, of course, a matter for her. However, if she chose, she could re-establish herself back [in the S area]. I did not find persuasive her evidence that she would not be able to find similar appropriate accommodation, work opportunities and child-care in that area. The aspects which were not replaceable were the close proximity of her family and friends. Although this is very important to the mother and has benefits for the child, those relationships can still be maintained at reasonable level through regular visits by the mother and child from the [S area].
121.If the mother was prepared to move back to the [S area] and live within a reasonable distance of the father’s home, the existing shared arrangement can continue. Although the father initially sought a week about arrangement, he accepted the advice of Mr [M] that, at [J]’s age, a week at a time was too long to go without seeing a parent. Once [J] is older, however, there is merit to a week about arrangement. Mr [M] noted that [J]’s capacity to live with each parent for a week at a time may, in fact, already be greater than he initially thought because, when he did the assessments for the family report, [J] had been with his father for five days and was not at all perturbed about further time with him before returning to his mother. I intend to order a week about arrangement operate during holiday periods but not at other times until mid-2014 when [J] will be in his second year at school. Of course, a week about arrangement during school term can only occur in the event the parties live closer together.
122.Although the father sought orders for the mother to relocate the child’s residence within 150km of [the town of C], in my view, for a fully or substantially shared arrangement to work, the parties will need to live within about 60km or one hour’s drive of each other. Any greater distance would require the child to be transported for unreasonably long periods to and from kindergarten and school, at least from the home of one of his parents.
Although all her Honour’s orders are appealed by the mother, it is only necessary for the present purposes to set out the following:
(1) The parties shall have equal shared parental responsibility for the child [J] born [in] March 2008.
…
(4)From 28 January 2012, provided the mother lives within 60km of the father’s home, the child shall live with his parents during school terms as follows unless otherwise agreed:
(a)with his father:
(i)from after kindergarten (or 5pm) on Wednesday until 5pm on Sunday every second week;
(ii)from after kindergarten (or 5pm) on Wednesday until the commencement of kindergarten (or 9am) on Friday in the alternate week;
(iii)such additional or alternative times as agreed; and
(b)with his mother at all other times.
(5)If by 28 January 2012 the mother is not living within 60km of the father’s home, the child shall live with the father during school terms and spend time with his mother as follows:
(a)every second weekend from after kindergarten or school on Friday until 6pm on Sunday; and
(b)such additional or alternative times as agreed.
(6)From the time the child commences school in 2013, provided the mother lives within 60km of the father’s home, the child shall live with his parents during school terms as follows:
(a) with his father:
(i)from after school on Wednesday until the commencement of school on Monday every second week;
(ii)from after school on Wednesday until the commencement of school on Friday in the alternate week;
(iii)such additional or alternative times as agreed; and
(b)with his mother at all other times.
(7)From the commencement of the third school term in 2014, provided the mother lives within 60km of the father’s home, the child shall live on a week about basis with each parent with handover to occur after school on Fridays unless otherwise agreed.
(8)In the event the mother remains living more than 60km from the father’s home, the arrangements during school term shall remain in accordance with order (5) above.
The balance of the orders included provision for shared school holidays and arrangements on other significant days.
The grounds of appeal
Only three grounds of appeal were ultimately pressed in the written summary of argument of Counsel for the mother. We will consider those grounds in the form in which they are contained in that document rather than in the further amended notice of appeal on which the mother relied at the hearing of the appeal (although we note that there is no difference in substance between the grounds as contained in both documents).
The questions asked of the mother by the Federal Magistrate during cross-examination
The last of the three grounds pursued can be disposed of shortly. It asserted that the Federal Magistrate exhibited bias towards the mother “by virtue of the nature and extent of questions her Honour posed [the mother] during [the father’s] cross-examination of [the mother]”.
In the mother’s written summary of argument it was said that in making oral submissions to this Court, Counsel for the mother would identify by reference to the transcript those parts of the cross-examination of the mother where it was submitted that the Federal Magistrate had exceeded the guidelines established by authority for the intervention of a judicial officer in the process of cross-examination. However, Counsel who appeared for the mother (apparently at short notice) at the hearing before us was unable to supply us with any transcript references which would support the complaint, and thus the ground could not be pressed.
Adequacy of consideration by the Federal Magistrate of certain s 60CC matters
The first of the three grounds pursued asserted that her Honour:
… failed to give any, or any proper, consideration to the best interests of the child in accordance with the primary and additional considerations of section 60CC of the Family Law Act 1975, and specifically:
(a)failed to properly consider or give appropriate weight to the likely effect of any separation of the child from the mother on a primary caregiver basis, as ordered by the Federal Magistrate pursuant to section 60CC(3)(d)(i) and (i) (sic); and
(b)failed to properly consider or give appropriate weight to family violence by the father towards the mother pursuant to section 60CC(3)(j).
When considering the s 60CC(3) matters, her Honour set out the full statutory text of each of those matters (other than the matters in sub-paragraphs (g) and (h) which she considered not to be relevant), and then discussed the matter in question at appropriate length, and made the necessary findings. Her discussion and findings in relation to sub-paragraph (d) were as follows:
(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;
107.Given the distance between the homes, the child cannot continue to spend time each week with each parent. [J] is due to start four year kindergarten next year and school the following year. Both will need to occur either on the Gold Coast or the [S area].
108.If [J] lives primarily with his mother he is likely to suffer emotional distress at the reduction in time with his father. I am concerned as a result of all of the evidence and, in particular, the evidence of Mr [M], that the mother may say inappropriate things to the child to make him feel better and to justify the reduction in time. Mr [M] warned of the risks to the child from such behaviour. The result may well be a diminution in the quality of his relationship with his father. That would be a significant loss to the child.
109.If the child lived primarily with his father he is also likely to suffer emotional distress at the reduction in time with his mother. The father however is likely to continue to promote a positive view of the mother to the child and to take positive steps to preserve that relationship, understanding the importance of it to [J]’s well-being.
110.The best outcome, of course, would be for both parties to live within sufficient proximity that [J] can continue to enjoy spending time with both of them each week.
Given her Honour’s express recognition in paragraph 109 of her reasons that the child would be “likely to suffer emotional distress” if his time with his mother was reduced, and then her prediction that the father would be likely to take positive steps to preserve the child’s relationship with the mother because of his understanding of the importance of that relationship to the child’s well-being, it cannot, in our opinion, be validly asserted that her Honour failed to properly consider, or to give appropriate weight to, the likely effect of any separation of the child from his mother.
Counsel for the mother suggested in his oral submissions that this ground was also directed to an alleged failure on her Honour’s part to consider the effect on the child of separation from his maternal grandparents (although this extended complaint is not readily apparent in the ground as drafted).
It is true that her Honour did not make any reference to the effect on the child of separation from his maternal grandparents. However, it will be recalled that later in her reasons in the context of her ultimate conclusion, when her Honour canvassed the possibility of the mother returning to the S area, she recognised in paragraph 120 of her reasons that close proximity to the mother’s family would not be “replaceable”. However, she went on to say:
… Although this is very important to the mother and has benefits for the child, those relationships can still be maintained at reasonable level through regular visits by the mother and child from the [S area].
Given this recognition of the possibility of a maintenance of the relationship between the child and his mother’s family, we would not be disposed to interfere with her Honour’s decision on account of her failure to refer to the effect on the child of separation from the maternal grandparents in her consideration of s 60CC(3)(d).
Therefore, to the extent that the first ground is directed to her Honour’s consideration of the matters in s 60CC(3)(d), it cannot be sustained.
The second complaint raised by the ground is directed to the matter of family violence as referred to in s 60CC(3)(j), being “any family violence involving the child or a member of the child's family”. In relation to this matter, her Honour said:
114.Although the mother alleged family violence on the part of the father, I was not persuaded on the evidence that any such violence occurred. This is not a matter which has any bearing on my determination, except insofar as it reflects on the credibility of the mother.
Thus it will be seen that her Honour was not persuaded on the evidence that family violence had occurred. That finding of fact is not challenged, and thus the complaint that the matter of family violence was not given appropriate weight cannot be sustained.
The finding in relation to the practicability of the mother relocating from the Gold Coast to the town of C
The second ground of appeal pursued asserts that her Honour:
(a)made findings in relation to the physical and social geography of the [S area, town of C and town of F] that were factually wrong; and
(b)failed to consider the practicability (in terms of the difficulties facing the mother and child at the time) of relocating from the Gold Coast to the [town of C].
It was argued in support of this ground that while the father had sought orders which would require the child’s residence with the mother to be 150km from the former family home at C, her Honour had made much more restrictive orders which required that the mother and child should live within 60km of the father’s present home at R, and that in so doing her Honour had not considered the practical effect of the significant difficulties associated with the mother attempting to relocate to within 60km of the father’s place of residence. Also in support of this ground, the mother sought, and was permitted to rely on further evidence concerning the whereabouts of the towns in question (including maps of the relevant areas).
The father was sensibly prepared to concede both in his written summary of argument and in his oral submissions to us that the distance of 60km from his residence, which is stipulated in her Honour’s orders, ought be changed to 80km as this would permit the mother to live in the town of X where, according to the father, there would be the opportunity of affordable accommodation and employment in areas in which the mother now works.
It is clear from paragraph 122 of her Honour’s reasons (set out at paragraph 18 above) that her reasons for concluding that “for a fully or substantially shared arrangement to work, the parties will need to live within about 60km or one hour’s drive of each other” related to the length of the time that a young child is likely to be able to cope with being driven to, and from, kindergarten or school to the home of the parent with whom he is living in any particular days or weeks. The practical common sense of that view cannot be seriously challenged.
The difficulty is, however, that it seems that at no point during the hearing did her Honour put to the parties the possibility of a 60km distance, and thus both parties, particularly the mother, were denied the opportunity to explain to her Honour the practical difficulties for the mother if she was to be restricted to living within 60km of the father’s home. These are difficulties which the father was prepared to acknowledge before us.
It is on this basis that we are prepared to allow the appeal and to vary her Honour’s orders to provide for a shared care arrangement in the event that the mother is prepared to move to within 80km of the town of R. The distance is to be calculated from the town of R rather than in terms of distance from “the father’s home” (as the orders currently provide) in order to avoid the mother being placed in a position whereby she would have to move again if the father moved (which was a matter also raised on behalf of the mother and accepted by the father).
We appreciate that the amendments which we propose to make to the Federal Magistrate’s orders are unlikely to satisfy the mother. It was clearly her position, both at trial and before us, that she should be able to remain living on the Gold Coast with the child. If she wishes to remain living on the Gold Coast she may certainly do so, but in those circumstances the child will live with his father as her Honour determined. That determination was, in our view, entirely correct having regard to the evidence before her, particularly that of the expert, Mr M and has not been successfully challenged before us.
Given that her Honour made an order that the parties have equal shared parental responsibility for the child (as appears to have been sought by the parties, or at least not opposed by either of them), it was incumbent on her (under s 65DAA(1) and (2) of the Act) to consider whether she should make an order for the child to spend equal time, or if not equal time, then substantial and significant time with each parent.
However, her Honour could only make an order either for equal time or for substantial and significant time, if it was reasonably practicable, or feasible, to do so (MRR v GR (2010) 240 CLR 461). It was obviously not practicable to make either type of order if the mother remained living on the Gold Coast and the father at R. It was clearly her Honour’s view (expressed in paragraph 122 of her reasons) that such an order would only be practicable if the parents lived within 60km of each other’s homes because of considerations relating to the transport of the child to and from school. Thus, her Honour made her orders for, to use her words, “a fully or substantially shared arrangement” conditional on the parents living within 60 km of each other. If the mother was not able to fulfil that condition, the child was to live primarily with the father.
The mother’s case on appeal also contained complaints about her Honour’s understanding of the geography of the area north of Brisbane in which the mother had lived and the father still lives. As we indicated during the hearing of the appeal, we do not consider that references to the names of relatively large areas such as “the S area” or “the C area” are particularly helpful. Rather what is important in a case such as this, are the precise towns where the parties are living or propose to live, and the distance between those towns, and the opportunities available to the parents and to the child in those towns. Our perusal of the evidence before her Honour and of the submissions to her about these matters indicates that her Honour was not given much assistance in this regard. However, such matters have been clarified at least to some extent on appeal, particularly by the father’s concessions.
As we have indicated, we are prepared to allow the appeal to the limited extent first to extend the distance her Honour imposed on the proximity of the mother to the father’s residence, and secondly to ensure that the mother would not have to move if the father moved his residence from the town of R. Given the father’s recognition of the practical difficulties for the mother in terms of housing and employment under her Honour’s orders, we will re-exercise the discretion to amend the distance to 80km (to be calculated from the town of R, rather than from the father’s residence). Any further distance would clearly not be practicable once the child starts school.
The balance of the further evidence sought to be adduced by the mother
In addition to the further evidence which the mother was permitted to adduce concerning the whereabouts of relevant towns, she also sought that we receive further evidence regarding the lack of housing and employment opportunities in the towns of R, C and nearby T. It was not necessary for us to receive that material having regard to the father’s concessions that there would be limited housing and employment opportunities for the mother within a 60km radius of the town of R and that that radius should be extended to include the larger town of X.
The mother had also sought to put before us an affidavit from a psychologist, Dr H, concerning the mother’s attendance at counselling sessions since the trial. As that matter was not an issue in the appeal, we were also not prepared to receive this evidence.
For these reasons the mother’s application to adduce further evidence was dismissed at the hearing before us except in so far as is mentioned in paragraph 34 of these reasons.
Conclusion
As we indicated above, the appeal is to be allowed to the limited extent only of varying the orders which specify the distance between the parent’s residences from 60km to 80km (from the town of R) before an equal or substantially shared living arrangement can operate for this child.
Costs of the appeal
Given that the appeal has succeeded on the basis of her Honour’s failure to give either party the opportunity to comment on her imposition of a 60km restriction on the mother’s place of residence from that of the father, we consider that there should be no order for costs made in relation to this appeal but that a costs certificate should be granted to the mother. The father told us that he had incurred no legal costs and so we cannot grant him a certificate.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Forrest JJ) delivered on 17 August 2012.
Associate:
Date: 17 August 2012
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