Champness & Hanson
[2009] FamCAFC 96
•3 June 2009
FAMILY COURT OF AUSTRALIA
| CHAMPNESS & HANSON | [2009] FamCAFC 96 |
| FAMILY LAW - APPEAL – RELOCATION – Where the mother had been allowed to relocate with the children to Ireland – Where the mother had previously returned to Australia following Hague Convention proceedings FAMILY LAW - CHILDREN – With whom a child spends time – Whether the trial Judge erred in making orders for indefinite supervised contact – Whether the trial Judge should have incorporated a “review mechanism” to remove the supervision requirement in the future – review mechanism not necessary – The father could meet the Rice v Asplund test by showing changed circumstances – Logistical difficulties involved in incorporating a “review mechanism” FAMILY LAW - CHILDREN – Best interests of the child – Whether primary considerations in s 60CC(2) have priority over additional considerations in s 60CC(3) FAMILY LAW - CHILDREN – “Meaningful relationship” – Matter for the Court not expert witness to decide – Findings of family violence FAMILY LAW - CHILDREN – Equal shared parental responsibility – s 61DA – Whether the trial Judge erred in failing to apply the presumption of equal shared parental responsibility – findings of family violence – Open to the trial Judge to find the presumption does not apply FAMILY LAW - COURTS AND JUDGES – Whether the trial Judge misled counsel by making preliminary remarks – Where the trial Judge had qualified his preliminary remarks – Where the relevant evidence was not excluded – Whether the trial Judge placed improper pressure on the father to withdraw his application for shared care FAMILY LAW - EVIDENCE – Court Expert – Whether the manner in which the trial Judge asked questions of the Court Expert displayed bias – Whether the trial Judge had assumed the role of advocate – Where the father had made no complaint about the questions put to the Court Expert at the time the questions were asked FAMILY LAW - APPEAL – Dismissed – no basis for appeal |
| Family Law Act 1975 (Cth) |
| Carpenter and Lunn (2008) FLC 93-377 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513 H v K [2001] FamCA 687 House v The King (1936) 55 CLR 499 Marsden & Winch (No. 3) [2007] FamCA 1364 Moose & Moose (2008) FLC 93-375 Re C and J (1996) FLC 92-697 Rice v Asplund (1979) FLC 90-725 RG v JR [2006] FamCA 293 Smith & Smith (1994) FLC 92-488 SS Hontestroom v SS Sagaporack [1927] AC 37 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 Stiffle & Stiffle (1988) FLC 91-977 |
| APPELLANT: | Mr Champness |
| RESPONDENT: | Ms Hanson |
| INDEPENDENT CHILDREN’S LAWYER: | Rebecca Reed |
| FILE NUMBER: | ADF | 226 | of | 2005 |
| APPEAL NUMBER: | SA | 59 | of | 2008 |
| DATE DELIVERED: | 3 June 2009 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, O'Ryan and Benjamin JJ |
| HEARING DATE: | 2 March 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 June 2008 |
| LOWER COURT MNC: | [2008] FamCA 538 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Heffernan |
| SOLICITOR FOR THE APPELLANT: | Heffernan & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Mellows |
| SOLICITOR FOR THE RESPONDENT: | Graeme D Hemsley |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Hurley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
That the father’s appeal against the orders of the Honourable Justice Burr made on 30 June 2008 be dismissed.
That there be no orders as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Champness and Hanson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 59 of 2008
File Number: ADF 226 of 2005
| Mr Champness |
Appellant
And
| Ms Hanson |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Champness (“the father”) has appealed against orders made by Burr J in June 2008 allowing Ms Hanson (“the mother”) to take the two young children of their relationship to live in Ireland.
The orders provided for the father to spend supervised time with the children after they take up residence in Ireland, as well as pending their departure, which his Honour decided should be delayed until December 2008.
Background
The following background information is now uncontroversial.
The mother was born in Ireland and was aged 40 years at the time of judgment.
The father was born in Queensland and was aged 43 years at the time of judgment.
The mother came to Australia for a holiday in 1999. Soon thereafter she met the father and they commenced travelling together around Australia.
In 2000 the parties worked together in Europe, but the mother became pregnant and they returned to Australia in October 2000.
The parties lived in South Australia until the birth of their first child, [E], in 2001. Thereafter they spent time in New South Wales, before taking up residence again in South Australia in 2002.
In late 2002 the mother took [E] to Ireland to visit her mother before returning to Australia in early 2003.
The mother became pregnant again and the parties’ second child, [O], was born in 2003.
The mother left the father in 2005, taking the two children with her. She lived in a safe house for about two weeks before the parties resumed cohabitation.
In 2005 the mother’s father died in Ireland. The mother wanted to take both children to visit her family, but the father refused to sign the passport application for [O]. The mother therefore went to Ireland with only [E], returning to Australia in mid-2005.
In 2005, without the father’s knowledge or consent, the mother left Australia for Ireland with both children. The father commenced Hague Convention proceedings in early 2006 and the mother agreed to return with the children in late 2006. As an agreed condition of her return, the mother took up residence in Sydney, where she and the children were still living at the date of trial.
A family report was prepared in April 2007 concerning time to be spent by the father with the children. Due to the concerns of the report writer about the children coming face to face with the father, the children were not seen with the father.
In April 2007 the father made an interim application to spend time with the children. The application was dismissed and an expedited hearing ordered.
A further family report was prepared in December 2007. On this occasion the children were seen with the father. This was the first time the father had seen the children in two years.
On 18 December 2007, after publication of the report, Burr J made an order for the father to spend supervised time with the children on two occasions prior to trial. These visits occurred at a children’s contact service in Sydney.
The matter proceeded to trial over five days at the beginning of 2008. At the conclusion of the hearing, the trial Judge made orders allowing the father to spend time with the children at the contact service on two occasions each calendar month, pending delivery of judgment.
His Honour subsequently determined he should receive further evidence concerning the outcome of the visits before delivering judgment. Further evidence was provided at a hearing in mid-2008. His Honour then published his reasons and made the orders which are the subject of this appeal.
The trial Judge’s reasons
The trial Judge commenced his reasons by providing background information and noting the orders sought. The father had proposed there be equal shared parental responsibility; the mother return to live in Adelaide; and both parents spend equal time with the children. The mother proposed the children live with her and she be permitted to relocate to Ireland. If she was not successful in that application, she proposed she remain in Sydney with the children.
His Honour next referred to the evidence called by the parties and the evidence of [the court expert], the expert psychologist who prepared the two reports concerning the family. In these reasons we will refer to [the court expert] as “the Court Expert”.
His Honour found the father was a “poor witness” who had not been forthright; had prevaricated and avoided answering questions. He noted that despite warnings, the father had “spent a good deal of his time during his evidence talking over the top of Counsel and the Bench”. On the other hand, his Honour found the mother had given her evidence in a “forthright, straightforward but, at times emotional manner”. His Honour said he had no difficulty in preferring her evidence where there was conflict.
His Honour next discussed the relevant law, both before and after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006. There is no challenge to his Honour’s statement of the law.
His Honour decided the evidence would be best discussed within the context of consideration of the relevant factors in the Family Law Act 1975 (“the Act”) and emphasised that his decision would be made having regard to the best interests of the children as the paramount consideration.
His Honour first referred to the primary consideration in s 60CC(2)(a), namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
His Honour said some guidance could be found in the legislation as to what constituted a “meaningful relationship” and referred to the objects and principles outlined in Part VII of the Act and in particular s 60B(1)(a), which provides that one of the objects of the legislation is to ensure “children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
His Honour also recorded that the first three of the principles found in s 60B(2) are most relevant in determining what constitutes a “meaningful relationship”, namely:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
His Honour then observed:
47.Whether or not a “meaningful relationship” can be enjoyed by the father and [E] and [O] in the event that I permit the mother’s relocation with the two children to Ireland, or in the alternative Sydney in the State of New South Wales, will depend to a large degree upon the quality of the existing relationships, the willingness of the parties to maintain that relationship and whether different forms of time spent by the father with his two children and different forms of communication can adequately ensure the maintenance of that relationship. I examine those issues in greater detail when considering the additional considerations set out below.
His Honour then turned to the second primary consideration, namely that contained in s 60CC(2)(b), which concerns “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
His Honour said this issue “looms large within the determination of these proceedings”. He went on to find the mother had been the victim of violence at the hands of the father and had “for many years suffered his controlling and oppressive behaviour”. His Honour went on to give examples.
His Honour then observed that whilst the mother’s evidence about the father’s violent and controlling behaviour was in itself “compelling”, it was also “corroborated in many respects”. His Honour referred to various aspects of the evidence, including documentary evidence, which he found to be corroborative of the mother’s allegations.
His Honour accepted some of the violence had been witnessed by the children. He noted the Court Expert had recorded in her first report that [E] had said, “I didn’t really see anything, but I only saw one thing, when Dad threw my bike at Mum”. The Court Expert went on to record that [E] had discussed “a memory of her father throwing coffee at a mirror and cupboard door” as being “something that she heard and saw”.
His Honour found the children themselves had at times been “the victims”. He recorded that [E] had told the Court Expert that when her father was home he used to “get me to do work” and “hit me with a wooden handle thing”.
His Honour also went on to discuss corroborative evidence given by the mother’s sister and the sister’s former boyfriend (both of whom had spent some weeks living with the family in 2003), as well as evidence of the father’s former wife. He noted the testimony of the former wife, which had been given by telephone from Sweden, was evidence “of significant violence, possessiveness and jealousy that she experienced at the hands of the father …” His Honour went on to detail the various allegations of the former wife, including having been knocked unconscious, struck regularly, threatened with a knife and having her finger broken by the father.
His Honour found the former wife “would appear to have no ulterior motive or agenda in agreeing voluntarily so many years later to give evidence on behalf of the mother in these proceedings, a woman she does not know and has never met”. His Honour also observed that the former wife had not been challenged in her evidence that the father had telephoned her and threatened to “do something” to the mother if she gave evidence. His Honour found “entirely implausible” the father’s evidence of what had been said during that conversation. His Honour also recorded the father did not challenge the evidence of the former wife concerning his violence.
His Honour went on to discuss the “additional considerations” in s 60CC(3). In dealing first with the views of the children, his Honour recorded various matters contained in the report of the Court Expert. He noted that when first asked about seeing her father in a supervised setting, [E] had said she would feel “alright” but then said she did not want to see her father, but was unable to give any reasons. He also noted that when speaking with the Court Expert, [E] had described her mother, her brother and herself as being “like a triangle” and said they all did not want to see the father. When the Court Expert asked [E] if anything worried her about seeing the father, she responded she worried about her father “fighting me” and when the expert asked why she answered, “I get puzzled about that in my head”, before going on to discuss a memory of her father throwing coffee at the mirror and cupboard door.
His Honour also observed that the Court Expert said in her second report that prior to an impending visit the children had felt “good” about seeing their father and neither showed any signs of anxiety. Following the meeting with the father, the expert recorded [E] had said it had been “good” seeing him; that [O] had enjoyed the visit; and both children had said there was nothing about the visit which had made them feel uncomfortable.
His Honour also noted the Court Expert had recorded that [E] had spoken positively about her life in Sydney, but indicated a preference for living in Ireland, where she reported she had many friends, liked the school and had family including cousins living nearby.
His Honour observed that having read the second report of the Court Expert, he had decided to allow the father to spend supervised time with the children at a children’s contact service.
His Honour next noted the content of a report from the Contact Service where the children had seen the father on 11 and 12 January 2008. He found on the first visit there had been “considerable anxiety evident in the father and the children demonstrated some understandable initial reluctance but then became a little more at ease as the period progressed” and the visit had concluded “with an awkward period of shaking hands”.
On the visit on the following day, the children had “more readily engaged in play activities with the father but that it ended poorly with neither child agreeing to shake the father’s hand”.
His Honour recorded that after the five days of trial, the father had spent eight supervised periods with the children between February and May 2008. His Honour found the reports from the Contact Service concerning these visits showed “a noticeable improvement in the children’s reactions to their time spent with their father, although there were some appalling examples of conduct by the father which again highlighted his lack of a child focused approach and general shortcomings as a parent”.
Although the sessions with the father were reported as having been enjoyed by the children, his Honour found the reports also indicated “the father found great difficulty in responding to the children’s (particularly [O]’s) need for physical contact and affection”. The reports indicated it was not until the last session that the father had hugged and kissed the children “goodbye”. Nevertheless his Honour found overall the evidence indicated “a developing and increasingly comfortable relationship between the children and their father”.
In dealing with s 60CC(3)(b) (the nature of the children’s relationships with various people), his Honour found the mother was “clearly the most important person in the children’s lives” and he went on to make favourable findings concerning the nature of her relationship with the children and her parenting capacity.
His Honour found the father’s relationship with the children to be “very much more problematic”. He accepted it was, in part, not the father’s fault he did not enjoy a closer relationship with the children (because of the mother’s unilateral action in removing the children). Nevertheless, his Honour found the father had “also brought a good deal of that situation upon himself” and his “violence, intimidation and psychological and emotional abuse” had “played a far more significant role in the deterioration of the father’s relationship with his children, than any other event or events”.
His Honour next recorded that the reports from the Court Expert and the Contact Service “suggest that a meaningful relationship between the father and his children will take some time to develop fully” and this would “require a far greater input from the father and far greater insight into the effect of his conduct upon the children and their needs rather than his own, to enable the children to engage in more meaningful relationships with him”.
His Honour noted again the evidence showing the father’s “extreme difficulty, and at times inability, to relate to the children in an appropriate child focused manner”, albeit he went on to find as the supervised visits progressed the father was “slowly learning to respond more affectionately and in a more child focused way…” In these circumstances, his Honour found “a sound and sustainable relationship between the children and their father is well on the way to being established and that it can be consolidated and enhanced over the next few months and maintained subsequently by various forms of communication and some physical contact”.
His Honour nevertheless found that the more recent reports from the Contact Service indicated “just how much the father still has to learn about proper parenting”. His Honour made mention in particular of the visit on 18 March 2008 during which the father was recorded as instructing the children to “tell your Mum you want to live in Adelaide, give her a hard time and tell her”. His Honour also described the father’s bad language on a later visit as being “atrocious”.
His Honour recorded the Court Expert’s view that only supervised time between the father and children could be “supported presently” and the father would need to “demonstrate a clearer understanding of the impact of his violent and controlling behaviour and of appropriate standards of parenting before the Court should consider discharging the requirement for supervision”.
His Honour then went on to describe the mother’s “significant extended family relationships” in Ireland. Whilst the mother had only one relative in Sydney (an aged aunt), she had six siblings and her own mother in Ireland. During the nine months the children had spent in Ireland they had been in close contact with the extended family and had lived with their grandmother. His Honour concluded the children enjoyed a “close relationship” with the mother’s extended family.
His Honour described the absence of contact between the father and his extended family. In particular, the father’s mother and sister, who live in Queensland, had never seen the children, and the father had not seen either of them for nine years. His Honour found it was the mother who had been the parent who supported the relationship (such as it was) between the children and the father’s family and expressed his satisfaction the mother would continue to “promote those relationships again in the future”. He recorded the mother’s proposal that in the event she was permitted to relocate to Ireland, the children would spend some time with the father’s mother and sister in Queensland.
His Honour next considered s 60CC(3)(c) which relates to the willingness and ability of the parents to facilitate a close relationship between the children and the other parent. His Honour described this factor as being a “significant issue” because if he could not be satisfied about the mother’s willingness and ability to facilitate relationships between the children and the father “then it may well be the death knell of her application for relocation to Ireland”.
In dealing with this topic, his Honour observed there was “much history to suggest that the mother has fallen well short of her obligations and responsibilities in this regard”. He went on to describe her actions in removing the children from Australia and then taking up residence in Sydney, rather than Adelaide, on her return. His Honour found whilst the mother had been wrong to remove the children from Australia, it was the father’s behaviour that had contributed to her departure.
His Honour went on to consider the mother’s proposals about the way in which the children would be able to maintain a relationship with the father in the event they moved to Ireland. This would include two occasions of personal contact each year, as well as communication by electronic and other means.
Although accepting as valid the mother’s explanation for not wishing the father to have anything other than supervised time, his Honour described aspects of the mother’s behaviour as indicating a willingness on her behalf to facilitate a close relationship with the children and their father “in safe circumstances”. Included in the matters on which his Honour relied was the willingness the mother had previously demonstrated in encouraging the children’s relationships with the father’s extended family.
In dealing with s 60CC(3)(d) (the likely effect of any changes in the child’s circumstances), his Honour found the effect of a relocation to Ireland would be beneficial for the children. He found the accommodation and physical and emotional support available to the mother in Ireland significantly outweighed that available in Australia. He noted the absence of any offer of support for the mother from the father’s extended family and found the father’s own conduct had “been destructive of the mother’s and children’s emotional stability and of the children’s relationship with him”. In a statement which is of considerable importance to one aspect of this appeal, his Honour found (at paragraph 98):
whilst [the children’s relationship with the father is] now being rebuilt through a process of supervised visits, I am satisfied on the evidence that it would likely be some time yet before it was appropriate that he had regular unsupervised time with them.
His Honour went on to say (at paragraph 99):
Whilst it would be inappropriate and improper for the mother to profit from her illegal actions in removing the children from Australia in December 2005, it is the children’s best interests which must provide the focus for the Court’s attention.
His Honour referred to the time the children spent in Ireland, becoming “very familiar with their surrounds in Ireland, their extended maternal family members, and in [E]’s case, her school in Ireland”. His Honour made reference to a report from the school [E] had attended, which spoke in “glowing terms” of her assimilation into the school and her progress.
His Honour next observed the only person of any significance from whom the children would be separated in the event of a relocation would be the father. He found in circumstances where that relationship would be improved over the next few months and maintained by various means thereafter, any change in the children’s circumstances as a result of moving to Ireland would be beneficial rather than detrimental.
In dealing with s 60CC(3)(e) (the practical difficulty and expense associated with the children spending time with each parent), his Honour noted the forms of communication proposed, “namely cards, letters, email, telephone calls, webcam and the like” appeared to be easily affordable to the mother, who could expect to receive “substantial support and assistance” from her family. His Honour said “those forms of communication can be very effective in maintaining relationships between parents and children”.
His Honour recorded although the father was “presently a man of limited means”, he had acknowledged “he could afford to make arrangements to see his children”.
His Honour also found the mother’s immediate family in Ireland, who all resided within a 10 mile radius, would support each other “in whatever way it is needed, including financial”. He recorded the mother’s mother had an eight room home on her farm; the mother had been offered the opportunity to build on the land; and one of the mother’s brothers, who was a builder, had offered his assistance in this regard, as well as offering her employment. He noted the mother’s family had also offered to pay half the costs of air travel on two occasions each year to enable the father and the children to maintain their relationship. He expressed his satisfaction they could afford to do so “and in fact contribute a little more”. In summary, his Honour found the difficulty and expense of maintaining contact between father and children was not “an issue which would inhibit the mother’s relocation with the children to Ireland”.
His Honour next dealt with ss 60CC(3)(f) and (i), which concerned the capacity of each parent to care for the children’s needs and the attitudes of the parents to the children and to the responsibilities of parenthood.
Having noted the father acknowledged the mother was “an excellent parent”, his Honour said the “father’s capacity in many relevant areas of parenting … is a different question entirely”. He went on to refer again to the father’s violent behaviour, some of which had been witnessed by the children who “were themselves the subjects of the father’s emotionally demanding ways”. He found the father’s conduct over a lengthy period reflected “poorly on his capacity to recognise his children’s emotional needs and their heavy dependency upon their mother as their primary attachment figure and principal carer”.
Although the evidence from the Contact Service indicated the father was “in the throes” of repairing his relationship with the children, his Honour was satisfied it would be “some time before the father is appropriately equipped emotionally to cater for his children’s needs”. Nevertheless, the evidence concerning the interaction between the children and the father at the Contact Service, and in the presence of the Court Expert, indicated the father was “an important person in the children’s lives and it will be important to maintain their relationship with him whatever the outcome of these proceedings”.
In dealing with s 60CC(3)(g) (the maturity, sex, lifestyle and background of the children), his Honour noted the children’s Irish heritage.
The next consideration mentioned by his Honour was s 60CC(3)(l) (orders least likely to lead to further proceedings). His Honour found this was of little relevance. He nevertheless expressed confidence the mother would abide by any orders and found she now recognised the importance of maintaining the relationship between the father and the children, provided it was in a safe environment.
In considering s 60CC(4) (the extent to which each parent has fulfilled their responsibilities as a parent), his Honour referred to his earlier findings and also noted the father had done little to maintain the children, having paid only the minimum amount of child support. His Honour, having set out the definition of “major long term issues”, then commented that if the mother relocated to Ireland, it would be “a particular challenge to the parties to conceive ways in which the father’s participation in making decisions about major long‑term issues in relation to the children could be facilitated should he retain that capacity”.
His Honour then turned to consider s 61DA, which requires the Court to apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility”.
Having noted the father had sought equal shared parental responsibility and the mother had not sought any order for parental responsibility, his Honour expressed his satisfaction that “the presumption should not stand” and that the mother should have sole parental responsibility. His Honour indicated the reason why the presumption should not apply related to his findings concerning violence. He also noted that “in all respects, bar her flight to Ireland with the children, the mother has demonstrated a vastly superior parental capacity than has the father” and she had “attended to all of the children’s relevant needs, often in the face of appalling conduct by the father”.
His Honour accordingly found it was unnecessary to consider s 65DAA, because it only had application where parents were to share parental responsibility. His Honour went on to say, however, that even had he come to a different view in relation to parental responsibility, the evidence did not support an arrangement where the children would spend equal time with each parent as this would not be in their best interests. Furthermore, he noted that by the conclusion of the trial this had been recognised by the father, who had instructed his counsel to abandon the application for shared care.
His Honour then set out the factors in support of the relocation to Ireland, the factors against the relocation and the factors concerning “a relocation to Sydney”.
The factors mentioned in supporting a relocation to Ireland were:
·The mother having been born in Ireland and having spent her first 31 years living there.
·The children being “part Irish” and having experienced life in Ireland where they had extended family and where they could explore their Irish culture and enjoy their extended family.
·The significant financial support available to the mother in Ireland where she had been offered a home and a job.
·The mother being far more secure emotionally when removed by a significant distance from a violent and controlling former partner (it being noted the mother’s emotional security was essential for her to fully discharge her parental responsibilities, she being the “single most important person” in the children’s lives).
·The children not being exposed to the possibility of witnessing further violence by their father towards their mother and suffering his controlling behaviour.
·The “all embracing extended family in Ireland” being a “far cry” from their experience in Australia where they had been isolated by their father’s conduct in Adelaide and where in Sydney they had few friends and only one aged relative.
·The father being able to maintain regular communication with the children and with the father’s relationship with the children being “supported by twice yearly physical contact”.
·The mother’s acceptance of the importance of a relationship between the children and the father.
·The children would not suffer the loss of any present relationship with extended family members on the father’s side.
·As [O] had not commenced his primary schooling, there would be no disruption to his academic progress.
·[E] had already experienced schooling in Ireland and would “readily make the adjustment again”.
·The relocation had been supported by the Independent Children's Lawyer who considered it “clearly best represents the children’s interests”.
·A move to Ireland “recognises the mother’s right to freedom of movement”.
The list of factors against the relocation to Ireland was much shorter:
·The children would see less of the father who had been seeing them each month at the Contact Service in Sydney.
·The cost of physical contact would be much greater than if the children remained in Australia.
·“The children’s re‑emerging relationship with their father was likely to take longer than if they remained resident in Australia”.
·[E] would have to change schools.
·The children had been born in Australia and had spent all of their lives in Australia, except for the 9 months they had spent in Ireland.
His Honour said he did not intend to devote much attention to the mother’s “fall back position”, namely the relocation to Sydney, since he had determined she ought to be allowed to relocate to Ireland. His Honour determined that analysis of the factors for and against relocation to Ireland suggested it far better represented the children’s interests. In this regard, his Honour found “the mother’s close and extended family support in Ireland is a critical factor bearing favourably upon the children’s future well‑being”.
His Honour found although it would be easier for the father to have more regular physical contact with the children if they remained in Sydney, “in most other areas, his relationship with the children can be just as easily facilitated by other means” whether they lived in Ireland or Sydney.
His Honour noted the father’s clear preference to remain living in Adelaide rather than moving to Sydney, where he had no extended family or friends. His Honour concluded this part of his discussion by observing that by the conclusion of the trial, counsel for the father was no longer pressing for an order for the mother’s return from Sydney to Adelaide.
His Honour recorded that the case had been a “difficult one to determine”, but again expressed satisfaction the children’s best interests would be served by moving to Ireland. He described the advantages to them as being “numerous and significant”. He reiterated many of the factors he had already discussed, but he included in this part of his discussion the opinion of the Court Expert that “where children have experienced a conflicted and unstable environment, they would be well served by being able to experience stable family support”.
His Honour once again expressed the view that the children’s relationship with the father could be “further developed over the next few months [at the Contact Service] and then sustained and maintained despite their move to Ireland”. In this regard, his Honour found “history has demonstrated that a close and constant relationship with their father has not been necessary for the children in order to progress their relationship with him” and he was confident the proposed physical contact and other forms of communication would “enhance and sustain the relationship between the children and their father”.
He noted this was a view also expressed by the Court Expert. He recorded the Court Expert’s evidence to the effect that “the father’s relationship with the children could still be meaningful in circumstances where they saw him on two occasions per annum provided it was supported by other regular forms of communication”. He noted it had been the evidence of the Court Expert “that a meaningful relationship can exist without involvement in the daily lives of the children”.
His Honour went on to conclude the most appropriate time for the relocation would be December 2008. This would allow [E] to complete the school year but “more importantly” would allow the supervised visits to continue in order to “develop the relationship between the children and their father to its fullest extent before they relocate”.
His Honour noted the delay in departure would also afford an opportunity for some supervised visits away from the Contact Service and would allow the father to spend part of the Christmas holidays with the children before their departure. It would also afford an opportunity for the children to “get to know” their paternal grandmother and aunt.
His Honour then noted the mother’s proposal she would take the children to the home of either the paternal grandmother or the paternal aunt to settle them in prior to spending time with the father. He also noted the delay in the mother’s departure to Ireland had been endorsed by the Court Expert and would allow the mother time to make necessary arrangements for the move.
His Honour concluded his lengthy judgment by saying, “In short, refusing the mother’s application to relocate with the children to Ireland would not meet the children’s needs nor satisfy their best interests”.
The trial Judge’s orders
In accordance with his reasons, the trial Judge made the following orders.
1.That the children [E] CHAMPNESS (“[E]”) born … 2001 and [O] CHAMPNESS (“[O]”) born … 2003 live with the mother.
2.That the mother have sole parental responsibility for the said children.
3.That the mother be permitted to relocate with the said children to Ireland as and from 22 December 2008.
4.That the father spend time with the said children as follows:-
(a) During school terms and until 19 December 2008, on up to two [2] occasions per calendar month, with the intention that the first such occasions be on Friday 1 August 2008 and Saturday 2 August 2008 UPON CONDITION that:-
(i)any such Friday time is outside of school hours;
(ii)all such time or times and dates near thereto are as advised by the […] Children’s Contact Service (“CCS”) [in New South Wales]; and
(iii)all such time is to be conducted at and supervised by the said CCS.
(b) During the following New South Wales school holiday periods:-
(i)in September / October 2008, from 10.00 am until 5.00 pm on three [3] consecutive days on dates to be agreed between the mother and the father, or in default of agreement, on 2, 3 and 4 October 2008;
(ii)in December 2008, from 10.00 am until 5.00 pm on five [5] consecutive days on dates to be agreed between the mother and the father, or in default of agreement, on 15, 16, 17, 18 and 19 December 2008
UPON CONDITION that:-
(iii)all such times spent by the father with the said children be supervised at all times by either or both of the said children’s paternal grandmother or paternal aunt;
(iv)all handovers be conducted between the mother and either or both of the paternal grandmother or paternal aunt to the exclusion of the father at the accommodation of the mother, with such address to be advised by the mother by telephone and confirmed in writing to the paternal grandmother and the paternal aunt at least fourteen [14] days before each period;
(v)the mother secure accommodation at or near [regional centre] in the State of Queensland from at least 1 October 2008, or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to 4 October 2008 or the last day of such time to be spent by the father with the children if agreed otherwise and from 15 December 2008, or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to 19 December 2008 or the last day of such time to be spent by the father with the children if agreed otherwise;
(vi)either or both of the paternal grandmother and paternal aunt attend at the mother’s accommodation in or near [Queensland regional centre] at 10.00 am on 1 October 2008 or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to enable the mother to introduce the children to the paternal grandmother and/or the paternal aunt and to the intent and purpose that the mother, the children and either or both of the paternal grandmother and the paternal aunt spend the day together to a time no later than 5.00 pm;
(vii)either or both of the paternal grandmother and paternal aunt attend at the mother’s accommodation in or near [Queensland regional centre] at 9.00 am on 15 December 2008 or the day before the first day of such time to be spent by the father with the children if agreed otherwise, to enable the children to become reacquainted with the paternal grandmother and/or the paternal aunt for an hour prior to the commencement of the father’s period of time to be spent with the children;
(viii)the parties share equally the cost of all return air fares for the mother and the said children, to be effected by the father paying same at first instance and the mother then reimbursing the father for one-half thereof by no later than the last day of the father’s time to be spent with the children on each occasion; and
(ix)at least 14 days prior to travel the father inform the mother in writing of the flight bookings that he has made for each holiday period of time he is to spend with the said children.
(c) As and from 22 December 2008 or the mother’s relocation with the children to Ireland, whichever is the later:-
(i)on two [2] occasions in 2009 / 2010 for a period of two [2] consecutive weeks on each occasion to be given and taken in either Ireland or Australia at the discretion of the father and at locations as are agreed between the parties, and in default of agreement as to dates, then as follows:-
A.during the July / August Irish school holidays;
B.during the December / January Irish school holidays but commencing no earlier than 28 December even if same results in the children missing some schooling in January.
(ii)on two [2] occasions in 2011 and each calendar year thereafter for a period of three [3] consecutive weeks on each occasion to be given and taken in either Ireland or Australia at the discretion of the father and at locations as are agreed between the parties, and in default of agreement as to dates, then as follows:-
A.during the July / August Irish school holidays;
B.during the December / January Irish school holidays but commencing no earlier than 28 December even if same results in the children missing some schooling in January.
UPON CONDITION that:-
(iii)if given and taken in Australia:-
A.the children be accompanied on the return flights by the mother to the exclusion of the father;
B.all such times spent by the father with the said children be supervised by either or both of the said children’s paternal grandmother or paternal aunt and that the children stay overnight with either or both of the paternal grandmother or paternal aunt;
C.all handovers be conducted at the accommodation of the mother with such address to be advised by the mother by telephone and confirmed in writing to the paternal grandmother and the paternal aunt, with handover at the commencement to be effected at 10.00 am and handover at the conclusion to be effected at 5.00 pm provided that at the mother’s discretion there is no requirement for her to remain at such accommodation between handovers;
D.the mother pay the cost of all air fares for the mother and the said children for the first three [3] of every four [4] occasions and the father pay same for the fourth [4th] of every four [4] occasions;
E.at least twenty-eight [28] days prior to travel the mother inform the father, the paternal grandmother and the paternal aunt in writing of the flight bookings made on the occasions she is to pay the air fares;
F.at least twenty-eight [28] days prior to travel the father inform the mother in writing of the flight bookings made on the occasions he is to pay the air fares.
(iv)if given and taken in Ireland:-
A.all such times spent by the father with the said children be supervised by a person(s) acceptable to the mother and the father and in default of agreement, then by a person(s) nominated by the mother and being a person(s) other than a member of the mother’s family;
B.the mother pay the cost of all return air fares for the father;
C.at least twenty-eight [28] days prior to travel the mother inform the father by telephone and confirmed in writing of the flight bookings made.
5.That as and from 22 December 2008 or the mother’s relocation with the said children to Ireland, whichever is the later, the mother do ensure that the said children communicate with the father at the cost of the mother as follows:-
(a) by letter at least once every two [2] months;
(b) by email communication at least once per fortnight;
(c) by telephone, webcam or skype communication at least once per fortnight at a time to be agreed between the parties or in default of agreement, at 8.00 am (Ireland time) on the Thursday of each week;
(d) by providing the father with a video / DVD recording of the said children at least once every six months.
6.That the mother do mail or otherwise provide to the father at the cost of the mother and within fourteen days of receipt of same by her, copies of all school reports and school photographs in relation to the said children and do keep the father informed of any medical emergency or serious medical condition affecting the said children.
7.That the mother do:-
(a) prior to her relocation to Ireland with the said children, keep the father informed at all times of a mailing address for the said children; and
(b) after her relocation to Ireland with the said children, keep the father informed at all times of a mailing and residential address for the said children and a telephone number.
8.The father be restrained and an injunction is hereby granted restraining him from:-
(a) spending any time with the said children except as specified in these Orders or as is otherwise agreed in writing between the parties;
(b) approaching the mother, harassing, abusing, assaulting, intimidating or threatening the mother or being within 500 metres of any premises occupied by the mother and the said children from time to time;
(c) discussing any aspect of his relationship with the mother, these proceedings or the Orders made in these proceedings with the said children or within the earshot of the said children and from permitting any other person to do so.
9.That the Independent Children’s Lawyer do:-
(a) within fourteen [14] days of the date hereof inform the paternal grandmother and the paternal aunt of the Orders made in these proceedings;
(b) within fourteen [14] days of the date hereof provide to the paternal grandmother and the paternal aunt a copy of the Legal Services Commission pamphlet on the role and responsibilities of supervisors of time spent by parents with children;
(c) within fourteen [14] days of the date hereof provide to [the court expert] a copy of these Orders and Reasons for Judgment; and
(d) within twenty one [21] days of the date hereof forward a copy of these Orders and Reasons for Judgment to the paternal grandmother and the paternal aunt.
10.That within twenty eight [28] days of the date hereof, the father enrol in and advise the Independent Children’s Lawyer in writing of his enrolment in the Kids Are First programme conducted by Anglicare and do complete such programme.
11.That upon compliance with paragraph 9 of these Orders and upon receipt of the advice from the father as ordered in paragraph 10 hereof, the appointment of the Independent Children’s Lawyer be discharged.
12.That all applications be removed from the pending list.
The Grounds of Appeal
The father’s amended Notice of Appeal asserted a variety of errors on the part of the learned trial Judge. The grounds of appeal were as follows [the typographical and grammatical errors are in the original]:
That his Honour-
1-failed to give proper attention to provisions of the Family Law Act 1975 in particular -
a)the primary consideration of the benefit of the children of having a meaningful relationship with both of the children's parents - section 60CC(2)(a),
b)in not applying the presumption and granting equal shared parental responsibility of the said children to the father - section 61 DA
c)In finding it would be in the best interests of the children by allowing the mother and children to relocate to Ireland, and not giving sufficient or adequate consideration to the total evidence relating to the assessment of additional considerations or relating these findings to the primary considerations, the objects and principles under the Family Law Act 1975 directed to the involvement of both parents in their children’s lives in a meaningful way.
d)In misunderstanding and failing to give sufficient or adequate consideration to the father’s proposal for the mother and children to remain in Sydney until the youngest child reached the age of 12 years.
e)in finding that the mother would facilitate and encourage a close and continuing relationship between the said children and father -sect 66CC [3] [d]
2-Erred in primary finding of facts or conclusion of facts of a secondary nature namely -
a)Errors in finding there was violence and controlling behaviour by the father at all or to such extent and nature that these issues played a significant role in the determination of these proceedings.
b)Error in failing to give appropriate weight to […] Kindergarten report of the child [E] being a well adjusted happy child immediately prior to the mother taking them overseas without the father's consent.
c)Error in finding the father was a poor witness on the basis of his manner of answering questions, that he was not forthright, prevaricated and avoided answering direct questions when he was nervous, over anxious but still polite and respectful to the Court and Counsel
d)Error in finding the evidence of [the father’s former wife] was not challenged in respect of her allegations of violence by the father and having no ulterior motive or agenda in agreeing to give evidence
e)Error in making statements to and misleading Counsel for the father early in the trial that he considered a lot of the evidence in the trial depositions to be ancient history and was not something he was concerned with and then [as in the case of the father’s former wife’s evidence] placing considerable weight on this evidence in his judgement.
f)Error in reaching findings adverse to the father on supervised periods with his children in Sydney when the context was explained to him and he appeared to accept the same.
g)Error in not placing significant and appropriate weight on the evidence of the father to support and provide for the mother and the children, to compromise with the mother on her return to Australia after Hague proceedings, to his concession the mother was a good mother to the children and not oppose the mother and children remaining in Sydney rather than returning to Adelaide.
h)Error in failing to give any or sufficient weight to the evidence of the appellants mother [Mrs J] and sister [Ms Champness] along with that of Mr [P] as to the general conduct of the father in the past and the mother, father and children in Adelaide prior to the mother taking the children overseas.
i)His Honour failed to weigh adequately and/or placed undue weight on the evidence of [the court expert], and erred in asking questions of her in a manner that praised the mother and condemned the father and suggested the answers he was seeking. These matters leading to failure of discretion and a failure to properly evaluate the benefit to the children on meaningful relationship with both parents.
j)Error in putting questions to [the court expert] the psychologist of leading nature and the father's Counsel which resulted in the placing of improper pressure on the father to with draw his application for shared care
k)Error in not including in his order the option to the father of an additional contact period each year of 2 consecutive weeks in Ireland with the mother paying the airfare from 2010 on, and making all contact periods by the father with the children from 2010 on unsupervised.
l)Error in finding the mother’s ability to move about freely was restricted by the father.
By leave, the father was permitted to rely upon the following additional ground:
Asserted error in making orders for indefinite time relating to supervision regarding the father’s contact periods with the children.
Appellate principles
The circumstances in which an appellate Court can legitimately interfere with a discretionary judgment are well known. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Ground 1 – failure to give proper attention to the legislation
This ground contained five complaints that the trial Judge had failed “to give proper attention to provisions of the Family Law Act 1975”. Each of these is discussed under the sub-headings below.
Ground 1(a) The benefit of a meaningful relationship – s 60CC(2)(a)
By this ground it was asserted his Honour had failed to give proper attention to s 60CC(2)(a). This is one of the two “primary considerations” to be taken into account in determining the best interests of children, namely the benefit to them of having a meaningful relationship with both parents.
Father’s submissions concerning Ground 1(a)
Counsel for the father submitted “face to face contact and time … are the important factors to foster a meaningful relationship”. He asserted this was “even more so in this case where the children are young, have been spirited off to Ireland and the mother refuses the father any time at all with the children when she is forced to return to Australia”. Counsel acknowledged the evidence showed the father’s relationship with the children “although supervised is progressing well”, but added that supervised time was “a far cry from being a meaningful relationship”.
Counsel for the father submitted the relationship would only become “meaningful” if the children remained in Australia “so as to provide more regular face to face contact and interaction”. Counsel conceded this submission was contrary to the Court Expert’s evidence that a meaningful relationship could be sustained if the children relocated to Ireland. However, counsel criticised the manner in which he said the trial Judge led the Court Expert to express this opinion. This complaint is the subject of a specific ground of appeal and we will consider it later.
Counsel for the father submitted it was:
an inescapable reality that relocating the children … will very significantly compromise their relationship with their father such that it will never develop to a meaningful relationship and will eventually cease to exist at all. It will prevent the establishment of a level of intimate interaction that can only be borne from regular, persistent and frequent contact and interaction.
Counsel went on to submit it was implicit in the evidence of the Court Expert that it was not possible to sustain such an intimate interaction when the parents were living vast distances apart, especially in light of the mother’s past resistance to the father spending time with the children.
Counsel for the father referred to cases where the Court had refused applications for an international relocation, including another case determined by Burr J. He referred also to Professor Patrick Parkinson’s article “Relocation in an Era of Shared Parental Responsibility” which analysed a number of relocation cases. Professor Parkinson had concluded that “the overall pattern of reported decisions is that a majority of domestic relocation cases are allowed…[whereas] the position is different in regard to international relocations where it is very unlikely that relocation will be allowed”.
Counsel for the father submitted the primary considerations in s 60CC(2) are “above additional considerations” – i.e. those considerations contained in s 60CC(3). He acknowledged one of the two primary considerations in s 60CC(2) related to the protection of children from physical or psychological harm but submitted there was little risk of such harm and “the prospect of children witnessing violence to their mother is practically non‑existent”.
Submissions of mother and ICL concerning Ground 1(a)
The mother and the Independent Children’s Lawyer resisted the appeal and submitted there was no merit in this or any of the other grounds of appeal.
Counsel for the mother submitted “there is no specific legislative requirement that matters under s 60CC… be determined in any priority”. It was submitted his Honour had carried out an appropriate evaluation of the s 60CC factors and had concluded “the issue of violence was extremely important”. It was also submitted there was ample evidence to support his Honour’s findings in relation to violence.
Counsel for the Independent Children’s Lawyer submitted the father had failed to identify how or why the trial Judge had failed to have regard or sufficient regard to the provisions of s 60CC(2)(a) and observed that the father’s counsel appeared to “complain about issues that arose in the course of the trial without in any way relating his complaint to the ground of appeal”. It was further submitted the father’s counsel had not put to the Court Expert at trial the proposition that a meaningful relationship between the father and the children could develop only if they remained in Australia.
Discussion of Ground 1(a)
It is convenient to address first the father’s submission that the primary considerations in s 60CC(2) are “above additional considerations”.
It is true the primary considerations are “above” the additional considerations in the sense they appear first in s 60CC. However, we do not accept the premise inherent in the submission of counsel for the father that the primary considerations will always outweigh the additional considerations.
We concur with the view expressed by Warnick and Thackray JJ in Marsden & Winch (No. 3) [2007] FamCA 1364 concerning the relationship between the primary and additional considerations. In that matter their Honours said:
77.The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
78.It follows that we reject the premise inherent in the husband’s submission that his Honour was obliged to indicate “what factor or factors combined to displace the primary consideration contained in section 60CC(2)(a)”. Firstly, that submission ignores the fact that there is a second primary consideration which his Honour was also obliged to take into account. Furthermore, it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [the child’s] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.)
It will be apparent from the summary we have provided that the trial Judge was acutely conscious of the importance of both of the primary considerations. In paragraphs 45 and 46 he discussed the legislative framework and went on to say (at paragraph 47):
whether or not a “meaningful relationship” can be enjoyed by the father and [E] and [O] in the event [of a relocation] will depend to a large degree upon the quality of the existing relationships, the willingness of the parties to maintain that relationship and whether different forms of time spent by the father with his two children and different forms of communication can adequately ensure the maintenance of that relationship.
His Honour accepted the evidence of the Court Expert that it would take “some time” for a meaningful relationship between father and children to “develop fully”. He also accepted her evidence that the development of a meaningful relationship would require “a far greater input from the father and far greater insight into the effect of his conduct upon the children and their needs rather than his own”. He also recorded, and apparently accepted, the evidence of the Court Expert that:
the father’s relationship with the children could still be meaningful in circumstances where they saw him on two occasions per annum provided it was supported by other regular forms of communication [and] that a meaningful relationship can exist without involvement in the daily lives of the children.
Although his Honour did find there was evidence of an improving relationship between the father and the children, it must be recognised this was measured against a low benchmark, since the father had not spent any time with the children for two years from 2005 to 2007 and thereafter had only a few supervised visits.
His Honour considered the relationship between father and children, such as it was, could be further improved by continuing the regular supervised visits until December 2008, when the children would take up residence in Ireland. Thereafter, he considered the relationship could be sustained by face to face visits of two weeks duration each year (to be funded predominantly by the mother), along with regular communication by letter, telephone and various electronic means as described in the orders replicated above.
We consider all of these findings were open to his Honour. Furthermore, they need to be assessed in the context of his Honour having found an overwhelming number of factors favouring the relocation to Ireland. In such circumstances we are not persuaded his Honour failed to give proper attention to s 60CC(2)(a) and we conclude there is no merit in this ground.
We have not overlooked the submissions made by counsel for the father concerning outcomes in other international relocation matters. However, we find reliance on outcomes in earlier cases to be of very little value in determining matters at appellate level. No two cases are ever the same and, even if they were, it is the very essence of judicial discretion:
that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere. (per Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345).
Ground 1(b) Presumption of equal shared parental responsibility – s 61DA
By this ground it was asserted his Honour erred in failing to apply the presumption of equal shared parental responsibility contained in s 61DA.
The presumption does not apply if there are reasonable grounds to believe a parent has engaged in “family violence” within the meaning of the Act. It was common ground the father’s conduct, as found by his Honour, constituted “family violence”. Accordingly, in the event the challenge to his Honour’s findings fails, this challenge must also fail.
For the reasons we give later, his Honour’s findings in relation to violence were open to him. That being so, the presumption had no application.
In any event, s 61DA(4) provides that even if the presumption does apply, it may be rebutted by evidence which satisfies the Court it would not be in the best interests of the children for the parents to share parental responsibility. His Honour so determined. In coming to this decision he found (at paragraph 119):
in all respects, bar her flight to Ireland with the children, the mother has demonstrated a vastly superior parental capacity than has the father… she has attended to all of the children’s relevant needs, often in the face of appalling conduct by the father.
Given the absence of any challenges to these findings (save for the violence challenge discussed later) we are not satisfied his Honour erred in determining the mother should have sole parental responsibility.
Ground 1(c) Failure to consider evidence and relate findings concerning additional considerations to the primary considerations
By this ground it was asserted his Honour:
failed to give proper attention to provisions of the Family Law Act 1975 …in finding it would be in the best interests of the children by allowing the mother and children to relocate to Ireland, and not giving sufficient or adequate consideration to the total evidence relating to the assessment of additional considerations or relating these findings to the primary considerations, the objects and principles under the Family Law Act 1975 directed to the meaningful involvement of both parents in their children’s lives in a meaningful way.
Counsel for the father submitted “the main thrust of this ground is set out in ground 1 [semble ground 1(a)] relating to the benefit of the children having a meaningful relationship with both parents”. We have already found there is no merit in that complaint.
It was somewhat difficult to determine precisely what was otherwise intended to be conveyed by this ground. In his oral submissions, counsel for the father repeatedly submitted his Honour erred in failing to “relate back” his findings concerning the additional considerations to the primary considerations; however, he never successfully articulated what he meant. He did, however, seek support from the article by Professor Parkinson to which we have earlier referred. Although he was unable to direct us to the relevant passage, we apprehend counsel may have had in mind the proposition in Professor Parkinson’s article that it is important in relocation cases for the Court to explain the relationship between the primary considerations and the additional considerations in s 60CC.
We were not directed to any submissions made to his Honour concerning the relationship between the primary and additional considerations. The only submission made to us on this point was that the primary considerations are “above additional considerations”, which is a proposition we have already rejected. Otherwise, in addressing this ground, counsel for the father merely trawled over his Honour’s findings about the additional considerations, finding fault with some; suggesting insufficient weight had been placed on others; and positing alternative findings that might have been made.
Given the absence of any attempt to relate these matters to the ground as drafted, we consider it unnecessary to say more than that we are satisfied his Honour gave proper consideration to the evidence and did not place any more or less weight on the primary and additional considerations than was warranted.
Ground 1(d) – failure to understand and give consideration to father’s proposal
By this ground it was asserted the trial Judge “erred in misunderstanding and failing to give sufficient or adequate consideration to the father’s proposal for the mother and children to remain in Sydney until the youngest child attained the age of 12 years”.
It was submitted his Honour had mistakenly considered the father’s proposal was to have “shared time” with the children “pretty well straightaway”, whereas “the father’s application was for contact gradually progressing from supervised, to unsupervised, to significant time with the option of shared care at the appropriate time”.
It was further submitted “the father said in his evidence if it meant building a close relationship with his children he would relocate to Sydney and have the relationship progress there with the availability of more contact time”. This was said to be a “thoughtful, sensible and balanced application” and was “the fall back position of the mother and the preferred option of the father”.
The first point to be made is that the orders formally sought by the father were those contained in his Amended Application filed 9 August 2007. That document contains no proposal for a gradual progression in the father’s time with the children. We have, however, noted from our own examination of the transcript that counsel for the father alluded in his opening address to the father’s time with the children increasing over time. The following is the relevant passage (Transcript of proceedings 4 February 2008, page 19):
MR HEFFERNAN: ….All right, now, as your Honour has heard the application for the father is for the children to return to Adelaide and for his time with the children to progress from supervised time through to equal time. His fall-back position…is that if that’s not granted he would seek that the mother be ordered to stay in Sydney, that his supervised periods continue and that they progress to substantial time with the children in Sydney.
Now, the substantial time, your Honour, would encompass I expect, what we normally see as contact periods; that is, alternate weekends and the days during the week and telephone contact and those sorts of things.
HIS HONOUR: Sorry, and you did say in Sydney so are you proposing that he would move to live Sydney or are you saying that he would spend the occasional weekend and some school holiday time in Sydney?
MR HEFFERNAN: Yes, the latter is his intention, your Honour. He sees that he has to stay in Adelaide for purposes of his work.
HIS HONOUR: Indeed, well, that’s what I read in the affidavit. He would stay in Adelaide?
MR HEFFERNAN: Yes
HIS HONOUR: Thank you.
It will be seen the father’s case was opened on the express basis that the father had to stay in Adelaide. We were not given any transcript references to indicate the father had ever said in his evidence he was prepared to relocate to Sydney. The only reference provided by counsel for the father was to counsel’s own submissions in addresses. The relevant passage is replicated below (Transcript of proceedings 8 February 2008, page 450):
MR HEFFERNAN: I’ll come to concluding it now but, as I’ve said, your Honour, we have put the middle position. I think shared care, of course – I mean, my client doesn’t want to abandon that, but the most realistic thing for him is to a substantial and significant time after a gradual process.
HIS HONOUR: He is abandoning it, then. And realistically, if you’re promoting Sydney, how is it going to be week and weekabout? They’re going to spend one week of school in Sydney and one week in Adelaide?
MR HEFFERNAN: No. It would only happen, your Honour, if he went to Sydney. That’s the only possible basis.
HIS HONOUR: That’s not the evidence before me now. Realistically, he should just abandon his application, shouldn’t he?
MR HEFFERNAN: Yes, we’re quite happy to do that, your Honour.
HIS HONOUR: All right.
There was no appeal against his Honour’s finding that the father’s evidence was that his “clear preference” was to remain living in Adelaide and not move to Sydney. Accordingly, it would have been unsafe for his Honour to have proceeded on any basis other than that the father would be remaining in Adelaide. Given the father abandoned his application for the mother to return to Adelaide, the most the father could have hoped for would be to see the children on “the occasional weekend and some holiday time”.
We are not persuaded his Honour misunderstood the father’s proposals and accordingly find no merit in this ground.
Ground 1(e) – mother’s willingness to facilitate relationship between father and children
This ground was directed to the finding that the mother would facilitate and encourage a close relationship between the children and the father. As drafted, the error was said to be the trial Judge’s “failure to give proper attention” to the provisions of the Act, but in reality it is a “stand alone” ground which challenges the basis on which his Honour arrived at this finding.
Counsel for the father referred to the mother’s conduct in taking the children to Ireland without the father’s consent, which ultimately resulted in the father not seeing the children for two years. It was asserted the mother made “endless exaggerated and false complaints about [the father’s] alleged behaviour and refused him time because she perceived that was her best chance to be able to relocate to Ireland”. It was also submitted the mother’s cooperation with the supervised contact arrangement was “something she could hardly [have] avoided and…does not earn the support His Honour provides to her for doing this”.
We accept the submission of counsel for the mother that the trial Judge properly considered this issue. His Honour acknowledged this was a “significant issue” and said if he could not be satisfied about the mother’s willingness/ability to facilitate relationships between the children and the father “then it may well be the death knell of her application for relocation to Ireland”. He also accepted there was “much history to suggest that the mother has fallen well short of her obligations and responsibilities” in facilitating such relationships and he recited the evidence about her actions which led to the children not seeing their father for two years.
Importantly, his Honour found that while the mother had been wrong to remove the children from Australia, it was the father’s behaviour that had contributed to her departure. He found the mother would abide by any orders he might make and expressly found the mother now recognised the importance of maintaining the relationship between the father and the children.
These were all findings open to his Honour and there is no basis on which we could interfere with them.
Ground 2(a) – father’s violence
By this ground it was asserted his Honour erred in finding “there was violence and controlling behaviour by the father at all or to such extent and nature that these issues played a significant role in the determination of these proceedings”.
Counsel for the father made a variety of submissions concerning the absence or quality of corroborative evidence to support the mother’s allegations. He submitted that “the Court should …require fair degree of certainty that these things occurred and were not sort of posturing and low level threats and dramas often seen and experienced with most couples going through the vicissitudes of life and living together”. Counsel also made reference to s 140 of the Evidence Act 1995 and the test in Briginshaw v Briginshaw (1938) 60 CLR 336.
This ground can be dealt with shortly. The trial Judge had the significant benefit of seeing and hearing the evidence of the parties. He found the evidence of the mother concerning the father’s violent and controlling behaviour to be “compelling”. His reliance on other evidence was merely by way of corroboration of that “compelling” evidence.
In Fox v Percy (2003) 214 CLR 118 at [23] Gleeson CJ, Gummow and Kirby JJ said appellate courts:
must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial Judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial Judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Nothing to which we have been referred persuades us it would be appropriate to interfere with the trial Judge’s findings concerning the father’s violence and controlling behaviour.
Counsel for the father concluded his Honour “has misdirected himself as to his proper role by entering the arena and assuming the role of the [mother’s] and children’s advocate which error was an error of law, denial of procedural fairness and/or natural justice”.
Counsel for the mother submitted in response that it was appropriate for the trial Judge “to draw from [the Court Expert], and have regard to her views on the matter, when considering the nature of the father’s relationship with the children”, and further submitted “there is no ground of bias as such alleged in the grounds of appeal, nor any reason to think that the primary Judge displayed apparent bias or procedural unfairness” when asking questions of the Court Expert.
Furthermore, counsel for the mother drew attention to the fact that no objection had been taken at trial to his Honour’s questions. It was submitted the questions asked of the Court Expert were “quite reasonable ones on the evidence, and designed to test her views on the extent to which the father was child focussed, and as to whether the relationship could be further developed”.
Counsel for the Independent Children's Lawyer also noted no objection was taken to his Honour’s conduct during the course of the hearing and there was no appeal on the basis of bias. She submitted it was not the role of the trial Judge to put the father’s position fairly to the Court Expert, that being the role of counsel for the father. If indeed the trial Judge had not fairly put the father’s case to the Court Expert, it was the obligation of counsel for the father to take objection at the time.
Counsel for the Independent Children's Lawyer also submitted that the propositions advanced by the father’s counsel on this ground were not based on the evidence and that counsel for the father had misquoted the evidence of the Court Expert.
We accept the appropriate time for the father to have complained about the accuracy or fairness of questions put by the trial Judge was at the time of trial rather than on appeal. Failure on the part of counsel to take objection at the time would ordinarily be fatal to an appeal based on such a complaint. As Fogarty and Joske JJ said in Stiffle & Stiffle (1988) FLC 91-977 at 77,072, “this is because in ordinary circumstances a party is not entitled to let such a matter go unchallenged, complete his or her case, and then, if the final result is adverse, challenge those orders on appeal”. Although we acknowledge this may not be an inflexible rule, we see no reason to depart from it in the present case. (See the discussion in Smith & Smith (1994) FLC 92-488.)
Nor do we consider his Honour exceeded his role by asking questions of the Court Expert. Although it would seem these proceedings were not conducted pursuant to the less adversarial processes now prescribed by Division 12A of Part VII, his Honour was entitled to seek clarification from an expert witness of matters he considered to be relevant.
We accept many of his Honour’s interventions were framed in such a way as would indicate he had formed a favourable view of the mother and a less than favourable view of the father. However, as his Honour pointed out, by the stage the Court Expert was giving evidence, he had heard four days of evidence (Transcript of proceedings 7 February 2008, page 314). No doubt, given the findings his Honour ultimately made, he had by then formed a far better impression of the mother than the father and his views were evident in at least some of his comments. However, as his Honour said (Transcript of proceedings 7 February 2008, pages 314 – 315):
I mean, I’m a Judge, I can be blunt. Every one else has to tippy‑toe through the evidence, but what other evidence I’ve heard and what you’ve said in your reports, to a degree, and what these reports all indicate is that the father is quite unrealistically optimistic and believes that he can bound right back into the children’s lives and they’re not going to suffer a thing, or he is simply completely unattuned to their needs and concentrating only on his own needs to re‑establish a relationship with his children. That’s what it is, isn’t it?
The expert witness replied “yes, I agree with both of those possibilities”.
It should also be observed that the Court Expert had been examined at some length by the Independent Children's Lawyer before there was any intervention by his Honour (Transcript of proceedings 7 February 2008, pages 301 to 313). In the course of giving this evidence, without any prompting or intervention from his Honour at all, the Court Expert had said, amongst other things:
· If the Court found there had been domestic violence, “I would be recommending a particularly cautious approach to the children re‑establishing a relationship with their father … I would only be supportive of supervised contact until the father could demonstrate an understanding of the risks that the children were exposed to, and that he had taken steps to address any potential contributing factors to his behaviour”. [Transcript of proceedings 7 February 2008, page 304]
· “If there were reasonable suspicion that the domestic violence had occurred, or your strong suspicion that that had occurred, I wouldn’t necessarily see that it was in the children’s best interests to be returned to Adelaide for a number of reasons … I wouldn’t necessarily see that they would need to return to Adelaide to have face to face contact, but perhaps that could happen in Sydney or potentially in Ireland” [Transcript of proceedings 7 February 2008, page 305]
· In the event there was a finding of domestic violence as alleged, “I believe that there would be advantages to the children with the mother relocating to Ireland in those circumstances … Obviously people would recognise that having social and community and family supports around can impact on our parenting in a positive way”. [Transcript of proceedings 7 February 2008, page 306]
In light of this testimony, it could not be suggested it was his Honour who led the expert to give evidence that there were advantages to the children associated with a move to Ireland. However, the main thrust of the father’s complaint concerned the circumstances in which the Court Expert came to give her evidence that the father’s relationship with the children could still be “meaningful” if they relocated to Ireland and saw him only twice a year.
The first and very important observation we would make about this complaint is that the expression “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a “meaningful relationship”.
Furthermore, examination of the relevant part of the transcript, which we will set out below, demonstrates his Honour did not lead the witness in the manner suggested (Transcript of proceedings 7 February 2008, pages 347 to 348):
HIS HONOUR: Can I just jump in there for a second. As has been identified, the legislation imposes a number of quite onerous tasks on me. It’s a long path to a result with the new legislation. One of them of course, clearly in a relocation, particularly internationally, is whether or not the person wishing to go so far away – here [the mother] wanting to go to Ireland - is capable of supporting a meaningful relationship between the father and the children from such a distance, and just the fact of whether or not a meaningful relationship can be sustained because of such distance. You may say, “I can’t answer this, your Honour,” and I won’t hold any grudges, but how, in circumstances of [the mother] living in Ireland with these two children, and with your experience of their contact with the father, could a meaningful relationship be sustained? I should explain also – and I know it’s becoming a very long question – but the evidence is that [the mother’s] family would support financially a maximum of two visits per annum of either she and the children to Australia; her proposal is leave them with the father’s mother in [Queensland]. On a daily basis she supervises time between the father and the children; or he can come over to Ireland one of those two trips. So twice a year is the proposal. Father’s case is largely built around the fact that he hasn’t got a bean to his name and so he couldn’t contribute anything to this. So I think we’re entitled to assume there would be a maximum of two personal visits per annum between the father and his children. Could a meaningful relationship between the father and the children be sustained on such a basis, given the present nature of the relationship?---That would be my concern in that the relationship at this point is not a strong relationship, and I don’t see that two visits a year and email or computer or phone contact will significantly strengthen – upgrade it to a more meaningful, unless that existed prior.
Or even maintain it at its present level?---It may be able to maintain it, and that would depend on Ms [Hanson] and the family’s ability to facilitate and promote that to the children.
And this was leading up to my next question, because it was something that I’ve loosely suggested and made clear to the parties that it’s an option I seriously need to consider, and that is that if I was of the view that on all of the bases that the law tells me are appropriate, that [the mother] ought to be able to relocate with the children to Ireland, whether or not it should be now or later, and I indicated that if might be that – and I’m worried about maintaining reasonable relationships, given such distance, when they’ve had three personal contacts with him so far in very artificial circumstances – whether or not if I allow her to go it ought not to be for a period of time?---I think – my opinion would be what are the costs and what are the advantages. If the contact with their father settles and he continues to improve his ability to make that meaningful and enjoyable experience then that would lead to the stronger relationship, and that would perhaps be easier to maintain, then the limited relationship that currently exists – so perhaps it would be an option of sort of seeing out the year with some fairly regular contact.
So perhaps finish the school year?---Yes. And then looking at a move at that time.
It will be noted that his Honour made quite clear there was no need at all for the Court Expert to answer his question as to whether a “meaningful relationship” could be sustained in the circumstances he described. Furthermore, there is nothing in the way in which his Honour framed his questions which would indicate he was leading the witness to express one view or another. If anything, his Honour’s opening questions might be interpreted as suggesting he himself thought it would be difficult for the father to have a “meaningful relationship” with the children on the basis of “a maximum of two personal visits per annum”.
Finally, we should record that counsel for the father (no doubt inadvertently) misquoted part of the transcript set out above when he submitted “his Honour then poses the question about delay until finish of school year … [the Court Expert’s] answer is guarded – ‘option of sorts’”.
It will be seen from the transcript above that the answer actually given by the Court Expert was, “so perhaps it would be an option of sort of seeing out the year with some fairly regular contact” (emphasis added). This is very different from saying it was “an option of sorts”. In our view it is clear the words “of sort” forms part of the colloquial phrase “sort of seeing out the year”.
We find no substance in this ground of appeal.
Ground 2(j) – improper pressure placed on father
By this ground it was asserted his Honour erred in “placing of improper pressure on the father to with draw [sic] his application for shared care”.
This ground can also be disposed of shortly. It was for the father and his advisers to decide whether to withdraw his application. We have already set out the passage of the transcript where the application was withdrawn. It is to be noted counsel for the father indicated he and his client were “quite happy” to withdraw the application (Transcript of proceedings 8 February 2008, page 450).
There is no substance in this ground of appeal.
Ground 2(k) – additional contact period and requiring supervised contact
By this ground it was asserted his Honour erred in not giving the father the option to spend an additional period of two weeks each year with the children in Ireland from 2010, with the mother paying the airfares. It was also asserted his Honour erred in not making all contact periods from 2010 onwards unsupervised.
Counsel for the Independent Children's Lawyer asserted no such order had been sought by the father at the trial. This was not denied by the father’s counsel and is therefore, in our view, fatal to the father’s complaint.
Counsel for the father nevertheless submitted if the appeal was unsuccessful the father would seek an order giving him the option of an additional period of two weeks in Ireland each year. We could make such an order only in the event we were to re-exercise his Honour’s discretion, which plainly we cannot do in the absence of error being established.
The written submission in support of the second element of this appeal (relating to contact becoming unsupervised from 2010) reads as follows:
Also supervision on the progress made from the contact periods observed and commented on would after another 12 months be ready to progress to being unsupervised.
We have difficulty in comprehending what is meant by this submission. We will, however, address the complaint regarding the indefinite nature of the order for supervision when dealing with the final ground of appeal.
Ground 2(l) – restrictions on mother’s movement
By this ground it was asserted his Honour erred in finding the mother’s ability to move about freely (before separation) had been restricted by the father.
Counsel for the father submitted his Honour’s finding was “unsustainable due to the weight of the evidence”. He referred, for example, to the regular time the mother spent each week at the local kindergarten.
There is no substance in this ground. His Honour did not find the mother was never allowed outside the home. He did, however, find the father:
was highly suspicious of her activities outside of the home and even imposed rigid time limits and transport arrangements on her school and shopping trips. He became angry if she was late or delayed leaving because she was chatting to another parent.
These findings of fact and other associated findings in paragraph 48 of his Honour’s reasons were not the subject of any challenge.
Additional ground –order for supervision of time to continue indefinitely
The father was granted leave to rely upon an additional ground which asserted his Honour erred in making orders for “indefinite time relating to supervision”.
The orders made by the trial Judge provided for all of the father’s time with the children in Australia to be supervised by either the father’s mother or sister. Any time spent with the children in Ireland is to be supervised by a person acceptable to both the mother and the father, but in the absence of agreement, the mother can nominate the supervisor - provided it is not a member of her family. There was no provision for the father’s time to become unsupervised at any time in the future and no provision was made for the father to make application to vary or discharge the requirement for supervision.
In support of this ground, counsel for the father referred to the decision of the Full Court in Moose & Moose (2008) FLC 93-375, but otherwise did not advance any considered argument concerning how it was his Honour erred in making the orders he did.
We assume counsel for the father intended to rely upon the observations made by May J and Boland J in Moose & Moose concerning the unsatisfactory nature of orders for indefinite supervised contact.
May J said:
10. In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother's emotional reaction to the children seeing their father which was consistent with the evidence (T/s p 135) his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future as suggested by the family consultant.
Boland J said:
119. The undesirability of, and the practical difficulties associated with long term supervision in a children's contact centre are referred to in the Guideline for Family Law Courts and Children's Contact Services January 2007... In Fitzpatrick & Fitzpatrick (2005) FLC ¶93-227, May J, having found that the evidence in the case "objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...", then referred to the difficulty associated with long term supervised contact and said "the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children's best interests". Her Honour then explained "[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored". (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC ¶93-235, (2005) 34 Fam LR 129 at paragraph 114).
Given the paucity of submissions we do not consider it is appropriate to undertake an extensive consideration of the authorities relating to orders for indefinite supervision. It is sufficient to say a number of authorities highlight the difficulties associated with such orders, especially when the supervision is to be provided by a children’s contact service, see for example RG v JR [2006] FamCA 293 and H v K [2001] FamCA 687. On the other hand, the Full Court has accepted it is within the proper exercise of a trial judge’s discretion to make such an order, see for example Carpenter and Lunn (2008) FLC 93-377 at [291].
However, as Fogarty and May JJ said in Re C and J (1996) FLC 92-697 at 83,341-342:
The Court is given a wide range of powers in relation to children…Ultimately the determinant is the best interests of the child. That discretion should not be circumscribed by absolute rules which appear to exclude one of the otherwise available possibilities. In addition, access orders are never “final”. No doubt his Honour was fully aware of that and intended by that comment to indicate that there must be a practical end to litigation and that he was determining the matter at that point for the foreseeable future. But access orders need to be moulded to the particular circumstances of the case and it may be unavoidable in a particular case to make orders for a limited period of time or orders which provide a graduated process and the potential for review depending upon developments. This is especially so in a case of this sort.
…
The Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option.
In the present matter, the trial Judge had the evidence of the Court Expert that only supervised time between the father and children could be “supported presently” and the father would need to “demonstrate a clearer understanding of the impact of his violent and controlling behaviour and of appropriate standards of parenting before the Court should consider discharging the requirement for supervision”. Although he did not say so expressly, his Honour clearly accepted that evidence and found “it would be likely to be some time yet before it was appropriate that [the father] had regular unsupervised time…”.
There was no appeal against the order for supervision as such, nor any complaint made concerning the logistical difficulties that would presumably be associated with the father having to spend time with the children in Queensland rather than in South Australia. Indeed, the father’s counsel opened his case on the basis that the father’s time with the children should be supervised. Although counsel for the father did propose that the requirement for supervision be removed at some stage, we were not directed to any proposal as to when this should occur or what event should trigger the change.
We nevertheless acknowledge that the Full Court has expressed concern about the absence of some kind of review mechanism when orders are made for long-term supervised contact. Part of the concern, expressed in cases such as H v K [2001] FamCA 687, is that the parties are left with “no mechanism for moving forward” and that the parent seeking to remove the supervision requirement will have difficulty in meeting the “changed circumstances” test in Rice v Asplund (1979) FLC 90-725.
We do not accept the Rice v Asplund test would prevent the father from seeking to discharge the supervision requirement. The basis of the order was the acceptance by his Honour that the father would need to “demonstrate a clearer understanding of the impact of his violent and controlling behaviour and of appropriate standards of parenting before the Court should consider discharging the requirement for supervision”. Accordingly, should the father bring an application supported by plausible evidence suggesting he had addressed these issues, we have difficulty in seeing how Rice v Asplund could prevent him having his application heard.
We should also record that any review process built into the orders in this case would have been fraught with difficulty. The mother would be living in Ireland. The father would be living in South Australia. The children would be returning to Australia for holidays; however, they would not be coming back to South Australia, where the litigation had been conducted and the Court Expert was located. Before imposing any “review mechanism”, the trial Judge would have needed well considered submissions from counsel about the logistical difficulties involved.
Although we were not referred to it, there was an exchange between the trial Judge and counsel for the Independent Children’s Lawyer about a review of the supervised contact arrangements. During the course of her closing address, counsel for the Independent Children's Lawyer said that although she was proposing a review, it was “not as to whether it should still be supervised but as to how it is all going with the children” (emphasis added). (Transcript of proceedings 8 February 2008, page 415)
In the interchange that followed, his Honour expressed reservations about such a review. Part of his concern related to the lack of “finality” in the orders. However, his Honour also said (Transcript of proceedings 8 February 2008, pages 416 to 417):
But what’s the point of a review if – who do they review to? Where does the review go?...What if the review’s bad?…I guess I’ll be disqualified and some other poor judge will get that if they come back again, but I see that it’s been fraught with difficulty.
Counsel for the father, who gave his final address after his Honour mentioned these concerns, offered no suggestions as to how the logistics of a “review” might be managed.
Although it would have been open to his Honour to have built in a “review mechanism”, we are not satisfied he erred in failing to do so.
Conclusion and costs
There being no substance in any of the grounds relied upon by the father, we propose dismissing the appeal.
Counsel for the mother conceded in the event the appeal failed there was little prospect of recovering any costs against the father and accordingly sought no order for costs.
Counsel for the Independent Children’s Lawyer sought an order for costs in the event the appeal was dismissed.
Counsel for the father opposed the application for costs. He submitted the father’s financial position was poor; that he had been in receipt of legal aid for the appeal; and was required to expend substantial amounts in seeing the children.
Although the father’s appeal has been entirely unsuccessful, we do not intend to make any order for costs. We primarily take into account the fact that the trial Judge found the father is a man of limited means and will be required to meet considerable expense in spending time with his children.
I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 3 June 2009
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