Clapton & Sprenger
[2007] FamCA 1184
•17 September 2007
FAMILY COURT OF AUSTRALIA
| CLAPTON & SPRENGER | [2007] FamCA 1184 |
| FAMILY LAW – APPEAL AGAINST DECISION OF FEDERAL MAGISTRATE – CHILDREN – RELOCATION – Whether the trial Judge erred in allowing the Mother to relocate to Rockhampton with the child - Best interests of the child – Appeal dismissed – Each party to pay their own costs of the appeal. Family Law Act 1975 |
| AMS v AIF (1999) FLC 92-852 |
| APPELLANT: | MR CLAPTON |
| RESPONDENT: | MS SPRENGER |
| INDEPENDENT CHILDREN’S LAWYER: | CARTER NAUGHTON RICE |
| FILE NUMBER: | BRM | 1958 | of | 2003 |
| APPEAL NUMBER: | NA | 90 | of | 2006 |
| DATE DELIVERED: | 17 September 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 27 April 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 October 2006 |
| LOWER COURT MNC: | [2006] FMCAfam 472 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Laurie |
| SOLICITOR FOR THE RESPONDENT: | Simmonds Crowley & Galvin Solicitors |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Linklater-Steel |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Carter Naughton Rice |
Orders
That the appeal against the orders of Federal Magistrate Slack made on 17 October 2006 be dismissed.
That the appellant pay the costs of the respondent and the Independent Children’s Representative for the appearances of 9 March 2007 and 24 April 2007 and the costs of the Independent Children’s Representative of the appeal to be assessed.
That each party pay their own costs of the appeal.
IT IS NOTED THAT IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Clapton and Sprenger.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 90 of 2006
File Number: BRM 1958 of 2003
| MR CLAPTON |
Appellant
And
| MS SPRENGER |
Respondent
REASONS FOR JUDGMENT
In an amended Notice of Appeal filed on 25 January 2007, Mr Clapton appeals against orders made on 17 October 2006 by Federal Magistrate Slack. In particular he appeals from the orders allowing the mother to continue to reside in Rockhampton, allowing the father time with the child, born … March 2003, on alternate weeks if he lives within 30 kilometres of the mother (Wednesday – Monday), or for one week in the months outside school holidays until November 2007 and then during school term while the father is in Rockhampton. Orders were also made for holidays, the child’s birthday, Fathers Day and telephone contact. The father does not appeal against the order for equal shared parental responsibility.
I mention at this introductory stage that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under section 94AAA(3) of the Family Law Act 1975 (“the Act”).
The Notice of Appeal was originally filed on 14 November 2006 and directions were made by Warnick J on 15 December 2006. The requirements of the directions were the subject of a dispute and the mother’s lawyers filed an Application in a Case on 5 March 2007. On 9 March 2007 orders were made as follows:
1.That the appellant obtain and provide copies of the whole of the transcript of the evidence before Federal Magistrate Slack at the hearing of the proceedings which culminated in the orders of 17 October 2006, by serving those parts of the transcript that he has not provided to the respondent and the Independent Children’s Lawyer and a copy of the whole transcript to the Appeals Registrar at Brisbane by 4:00pm on 6 April 2007.
2.That the appellant file an application to adduce further evidence on the appeal together with an affidavit containing any evidence upon which the appellant wishes to rely by 4:00pm on 6 April 2007.
Other orders were made which need not be reproduced here.
A further Application in a Case was filed by the solicitors for the mother on 16 April 2007.
On 24 April 2007 orders were made providing for the exchange of written submissions from the mother and the Independent Children’s Lawyer. In the case of each of these directions hearings costs were reserved.
Judgment
The relevant orders from which the father appeals and to which it is necessary to refer in the reasons are as follows:
5.That except as otherwise ordered and on the condition that the Mother continues to reside in Rockhampton in the State of Queensland, the child is to live with the Mother.
Time with the other parent
6.That the child is to spend time with (and/or live) and/or to communicate with the Father as agreed between the parents and if they fail to agree then as follows:
(a)In the event that the Father resides within 30 kilometres of the Mother, then each alternate week from 5.00pm Wednesday until 9.00am Monday, to continue fortnightly thereafter, until the commencement of any school holiday period.
(b)In the event that the father does not reside within 30 kilometres of the residence of the mother, then:
(i)for one week in each of November 2006, February, March, May, June, August, September, and November 2007 as agreed between the parties and failing agreement then the week commencing on the first Saturday of each of the nominated months.
(ii)Thereafter at such other times during the School term that the father is in Rockhampton provided that such contact shall occur in Rockhampton.
(c)Order (6)(a) shall be suspended for the weekends during any Queensland gazetted school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.
(d)For one half of all gazetted Queensland school holiday periods being:
(i)the first half of the Easter, June/July, September/October and Christmas school holidays in even numbered years; and
(ii)the second half of the Easter, June/July, September/October and Christmas school holidays in odd numbered years.
(e) The school holiday time shall commence:
(i)if the Father’s time falls in the first half of the holidays from 3.00pm on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(ii)if the Father’s time falls in the second half of the holidays from 9.00am on the day calculated to represent half of the holidays and contact shall end at 5.00pm on the Sunday before the school term commences.
(f)For the purposes of these orders, school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 5.00pm on the day before the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights then the Father shall retain the additional night.
Specific time for the father
(g) on the birthday of the child:
(i)if a school day and the child is at School from after School until 6pm provided that the father collects and returns him to his mother;
(ii)if a non-school day, from 11am until 4pm provided that the father shall collect him from and return him to the residence of the mother;
(h)on Father’s Day (if a non-contact weekend), from 9.00am to 5.00pm with the father to collect and return him to his mother;
Communications with the child
(i)on the telephone at such times as the child reasonably requests but otherwise each between 6:30pm and 7:00pm on each Tuesday and in relation to such communication the Mother shall:
(i)ensure that the child is available to receive the telephone call;
(ii)arrange for the child to telephone the Father on the following night if for any unforeseen circumstance the child misses the telephone call from the Father;
(iii)ensure that the child has privacy during the conversation.
Collection and Delivery
(7)Except as otherwise provided, the child shall be delivered by the Mother or her nominee to the Father or his nominee at the commencement of his time with the child at the residence of the Father. Provided that in the event that the father resides more then 30 kilometres from the mother, then the father or mother may nominate the closest airport as the changeover point and the other parent shall arrange to deliver or collect the child from the airport.
(8)Except as otherwise provided, the child shall be returned by the Father or his nominee to the Mother or her nominee at the conclusion of his time with the child at the residence of the Mother.
(9)That each parent shall deliver and return the child’s clothing, school supplies and belongings and the child’s clothing shall be returned in a clean condition.
Specific time for the Mother
(10)That in the event that the child is in the care of the Father on Mother’s Day, the birthday of the child or Christmas Day, then the Father shall return the child to the Mother:
(a) from 9.00am until 5pm on Mother’s Day with the mother to collect and return the child;
(b)on the birthday of the child to allow the Mother to spend time with the child on the same terms as the Father under the terms of these orders with the mother to collect and return the child.
…
(14)That the process to be used for resolving disputes about the terms or operation of these orders shall be as follows:
(a)They shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made.
(b)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(c)In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three practitioners and advise in writing details of their fees, experience and availability.
(d)The Father shall choose one of the listed practitioners within seven days of receipt of the list.
(e)If the Father fails to choose then the Mother may choose.
(15)That before an application is made to a Court for a variation of these orders, to take into account the changing needs of the child, each party is to take the steps referred to above.
(16)That the Mother is restrained and an injunction is made restraining the Mother from relocating the residence of the child from Rockhampton in the State of Queensland without the consent of the Father or order of the Court.
Generally the recording of the history of the matter by the trial Judge was uncontroversial and not the subject of the appeal. The background facts included that the parties commenced a relationship in December 1999 and separated in September 2002, so they separated prior to the birth of the child on … March 2003. In November 2002 the mother commenced a relationship with her husband, Mr Sprenger.
At the time of trial the child was three years and seven months.
After the parties separated the mother moved to Rockhampton and lived with her parents. Contact between the child and the father commenced in October 2003 as a result of orders made by the Federal Magistrates Court.
During 2004 the father moved to Rockhampton where he lived for most of that year having regular contact with the child. On 2 August 2004 orders were made by consent that the child live with the mother and the father in an equal time shared arrangement month about. This order was made after the mother had moved to Brisbane with her husband. The orders provided that she was responsible for delivering the child to the father in Rockhampton. The father lived there until October 2004 when he then moved to Sydney. The month to month arrangement in relation to the care of the child continued until orders were made on 13 May 2005 which put in place the week about arrangement. This was possible because at that time both parents resided in Brisbane.
On 23 September 2005 after a contested hearing Slack FM changed those arrangements by ordering that the child live with the mother and spend time with the father, at least, each alternate week from 5.30pm Wednesday until 5.30pm Sunday. After those orders were made the mother moved to Rockhampton. She said it was on 30 October 2005. The father said it was earlier. The date is of some importance but in any event it was found that the mother moved without the father’s knowledge or consent.
The father appealed and brought an application for a stay. On 13 December 2005 the Federal Magistrate ordered that the mother deliver the child to the father and that the child be separately represented. An order for contact was made between 20 December 2005 and 30 January 2006. The mother filed an amended response and affidavit in effect asking that she be able to relocate to Rockhampton and to vary the orders previously made asking that the child spend one week per month with his father.
The mother’s circumstances at the time of trial were that she was living in Rockhampton with her husband and their children, the child B, born … March 2004 and the child H, born … February 2006. The Federal Magistrate understood that she had an arrangement with her mother to pay reduced rent, saying of this “In effect, her mother subsidises her accommodation expenses”. Since the commencement of 2006 the mother has been enrolled at [a Central Queensland university] and is undertaking a science degree. Her husband does not currently work “principally because he has a lower back problem with compressed discs which will require some surgery”. Mr Sprenger looks after the children when the mother is not available.
Mr Clapton continues to reside with his mother at a place West of Brisbane. He operates a retail business. It was the mother’s case that she intended continuing to reside in Rockhampton and would like to send the child to [a private school in Rockhampton]. The father’s proposal as recorded by the trial Judge was that he wanted the child to live with him and will have the assistance of his mother.
At the time of trial the father was having contact with the child in accordance with the 23 September 2005 orders, with the mother or her husband driving the child from Rockhampton. It was acknowledged by all the parties that such an arrangement could not continue “The travel is not only expensive but it is emotionally draining on all concerned particularly the child” (para 40).
The judgment was arranged under a number of headings particularly by reference to the legislation, especially s.60CC. First the trial Judge correctly identified the “Primary Considerations” as encapsulated in s.60CC(2) as follows:
55.The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
56.In summary my findings in relation to these considerations are that:
(a)It is in the interests and of benefit to the child to have a meaningful relationship with both of his parents which involves him spending regular time with each of his parents.
(b)There is no need to protect the child from physical and psychological harm from being subjected to, or exposed to abuse neglect or family violence. There is however a risk to the child’s emotional health and well-being from being exposed to the ongoing conflict between his parents.
Reasons were provided for those conclusions:
58.The parents agree that the child should spend at least substantial time with each of his parents. The dispute is about the extent of the time he spends in each household and in which locality he should live. The father argues that that arrangement should be equal time and that the mother should live in Brisbane with the child. The mother argues that the child should spend time with each parent as set out in the orders made in September 2005 (from Wednesday until Sunday in each alternate week and for half of School holidays with his father and otherwise with her) and that can best be achieved by the father moving to Rockhampton.
59.Neither party suggests that the child is at risk in the care of the other and for much of his life the child has spent significant time with each of his parents.
60.The conflict between the parents has been continuous and the parties have been in litigation since the birth of the child. There has been ongoing conflict over the child. For example, the parties were only recently able to settle the name of the child, he having been called different names in each household from the time of his birth until he was nearly 3 years. The parties have no capacity to communicate in a respectful way. They accuse each other of aggression and abusive behaviour at changeovers. They have been unable to cooperatively parent. To date the child has not shown any outward signs of being affected by the ongoing conflict but he is reaching an age where he will be more conscious of the bitter conflict between his parents and it is likely that he will suffer emotional harm if the conflict continues as it has done to date.
Moving then to the Additional Considerations (s.60CC(3)) and under the heading “The child’s relationship with any significant persons” the trial Judge said, referring to the expert report:
68.In her subsequent report, [the Family Report writer] maintained her opinion that the child has “developed strong attachments to members of each household” (paragraph 50 of report dated 27 February 2006). I accept and agree with that opinion.
…
70.[The Family Report writer] says (para 100 of her last report) (and I accept) that the child would suffer considerable loss if he were removed from the mother’s household.
Properly he then moved to the heading “Parenting and discharge of parenting responsibilities” and said of that:
76.To my mind, the father’s concerns about the level of stability that the mother offers, are of greater significance. The mother has had a number of changes of household.
77.In my judgment of 25 September 2005, I accepted that the changes of the household had largely been due to circumstances beyond her control. The evidence presented in this hearing though would indicate that during 2005 when the mother and Mr [Sprenger] rented the property [North of Brisbane], they had difficulty paying their rent and there were problems in the presentation of the house at the expiry of their lease.
78.In the hearing of this matter in September 2005, the mother informed me that she intended to reside [North of Brisbane] at the conclusion of the hearing. Within a short time after the last hearing the mother relocated to Rockhampton without the father’s knowledge or consent due to her difficulties in obtaining appropriate housing.
79.Although the mother now gives evidence that it was always her intention to return to Rockhampton to live, she did not indicate to the Court in September 2005 that that was her longer term plan.
80.At the moment the mother occupies premises at the rear of her mother’s home. The home is owned by her mother and she in effect, subsidises the rent.
81.The mother’s lack of candour about her housing difficulties in 2005 and the continuing difficulties with respect to housing after September 2005 do raise concerns about the mother’s ability to provide longer term stability for the child. It is also difficult to assess reliability of the mother’s evidence about her future intentions.
82.It does seem though that she currently has the significant benefit of housing provided by her mother at a relatively low cost which has the added benefit of regular and ongoing support from her mother.
83.The father’s arrangements have largely remained unchanged. He continues to reside with his mother.
84.The mother does not raise specific concerns about his ability to care for the child.
A real difficulty in this case is the capacity of the parents to promote the relationship of the child with the other parent. There was an issue that the true motivation for the mother moving to Rockhampton was to avoid the father’s contact with the child however his Honour found:
89… Her decision was, I consider, largely motivated by her difficulties with housing but I accept that it was also, in part, to distance herself from the conflict with the father.
Having discussed a number of matters related to the legislation which are not necessary to repeat for the purpose of this appeal the trial Judge then noted that there are a number of other additional considerations:
97.It is in the child’s interests to spend time with each of his parents on a regular basis but for that to happen they need to reside in the same locality.
98. The child has a close and loving attachment with both of his parents and a close attachment to his siblings.
99.He has appropriate attachments to the mother’s husband and to extended family members on both sides particularly his maternal and paternal grandmothers.
100.Both of his parents have been active and engaged in his care and each has the capacity to provide for his ongoing needs.
…
102.He is likely to suffer considerable loss if he is removed from his mother’s household
103.Unfortunately his parents have a highly conflicted relationship and they have no capacity to communicate. They are unable to communicate respectfully about parenting issues. For example they have not been able to communicate about toilet training and issues concerning the use of a dummy. They do not trust each other. The conflict is likely to have an adverse impact on the development of their son as he gets older.
As required by the authorities the trial Judge carefully considered the proposals of each of the parties and the submissions of the Independent Children’s Lawyer. Reference was made to the Family Report including as follows:
107.[The Family Report Writer] (paragraph 97 of her final report) says:
“I consider it preferable for the parents to reside in the same city so that [the child] can spend time with both. At [the child’s] age, he will benefit from spending time frequently with his father, rather than just in school holidays as his mother and step-father propose.”
108.She also said (paragraph 98 of her final report):
“If the parents were to live in the same city, then I would again recommend that [the child] lives primarily with his mother and step-father and half-siblings and spend time with his father, ie, two overnights per week”.
109. If I accept that it is in the child’s best interests to have regular and ongoing contact with each of his parents, then the issue is how that can be best achieved because it must mean that the parents must live in the same city or town.
110.The father indicated in the course of these proceedings that, although it would not be his preferred choice, that in the interests of his son, he would consider relocating to Rockhampton.
111.His concern (genuinely held) is that there is a real likelihood that the mother will again relocate. Such a move would have significant implications in relation to the father’s business. His evidence was, and I accept, that it is unlikely that he would be able to establish a similar business in Rockhampton and he would move away from his family support.
112.The mother’s case is that if she is to be the predominant carer of the child and if she is to provide the maximum opportunity for him then it is in his interests that she remain in Rockhampton where she has the support of her mother; subsidised housing; and, the capacity to pursue her own studies with a view to improving the family’s lifestyle in the longer term.
113.The Independent Child lawyer submitted that orders should be in place that would require the mother to return to Brisbane and that the orders made in September continue.
In this case there was limited concern about the capacity of each parent to care for the child and the child’s relationship with them. However, the level of conflict between them was a matter that clearly concerned the trial Judge:
115.The level of conflict between the parties is such that they have very limited capacity to communicate. To date, because of the child’s age and his level of maturity, he has not been significantly affected by the ongoing conflict (particularly at changeovers). I am not currently persuaded that it is in the best interests of the child to rebut the presumption of equal shared parental responsibility but if the lack of communication and cooperation continues to remain at its current levels or escalates, then there may come a time when one of the parents will need to be given sole parental responsibility in relation to this child. As I indicated, that point has not been reached and I propose to proceed on the basis of the presumption and also make an order that the parents have equal shared responsibility for the child.
Having decided to make an order that the parents have equal shared parental responsibility the trial Judge correctly observed that he was required by s.65DAA to consider whether to make orders that the child shall spend equal time or substantial or significant time with each parent. There then followed a very lengthy discussion of the evidence and the position of each of the parties. His Honour noted that the Independent Children’s Lawyer did not submit that an equal shared care arrangement would be appropriate. Ultimately the trial Judge decided that it was in the best interests of the child to make orders for regular and substantial time with each of the parents:
126.For the same reasons that I gave on 23 September 2005, I am not persuaded that a week about arrangement is appropriate. The reasons that I gave then are as valid today as they were then. It is important for him to continue to develop his sibling relationship and he now has a brother. He identifies closely with his sister and he is likely to have a similarly strong bond with his brother. The child identifies himself as being predominantly part of his mother’s household. The parties are not able to functionally co-parent. For example, they have not been able to have any sensible discussion about how to manage his toilet training.
…
128.I accept that it is in his best interests to have substantial time with his father. My orders of 23 September 2005 provided for him to have substantial time. [The Family Report writer] and the mother suggest that the time be two days in each week and while I acknowledge the benefits of having weekly contact with his father, my concern about that is that it involves more frequent transitions between his parents and the greater prospect of him being exposed to conflict between his parents.
129.The existing arrangement has, on the face of it, worked. There would not appear to be significant issues emerging from the transition between the households.
130.Thus I conclude that the arrangement that has been in place since my orders were made in September 2005 are the most appropriate arrangements and orders should reflect those arrangements provided that the parents live in the same locality.
131.The issue then is how those arrangements can best be implemented. For those orders to have affect, either the mother would need to return to Brisbane or the father would need to live in Rockhampton.
The question then as his Honour correctly observed was how those arrangements could be implemented, in particular either the mother would need to return to Brisbane or the father would need to live in Rockhampton. The trial Judge then set out, very carefully commencing at paragraph 132, the arguments of the father and in particular the Independent Children’s Lawyer as to why the mother should return to Brisbane followed by her response. Commencing at paragraph 136 the trial Judge provided his conclusions:
136.However, I have come to the conclusion that it continues to be in the child’s interest that he be predominantly cared for by his mother and in the light of that decision, it is important and crucial to his interests that the mother be able to provide stability, not only in the sense of housing, but in all other aspects of her circumstances.
137.If I were to put in place orders that caused her to return to Brisbane, then it seems to me that she would be faced with the same housing difficulties that caused her to move to Rockhampton in the first place.
138.At the moment she has stable accommodation. It is subsidised accommodation and she has the ongoing support of her mother. That support includes financial as well as emotional support.
139.To put in place orders that would require her to return to Brisbane means that she must find housing and accommodation for a family of five people. I accept that she had financial difficulties in Brisbane exacerbated by her husband’s employment problems. It does not seem likely that he will return to full time employment and his capacity to provide financial support for the family in Brisbane or otherwise is limited. I am prepared to accept that the mother’s motivation to move to Rockhampton largely came as a result of her housing and financial difficulties and to that extent I am satisfied that the circumstances are sufficient to warrant a review of the arrangements for the child.
140.Whilst I have expressed concerns about the mother’s attitude and the reliability of some of her evidence, nevertheless, I am bound to make orders that I consider are in the best interests of the child.
141.The father has a strong commitment to his son and I do consider that, despite his disappointment with the decision and his distrust of the mother, he will relocate himself to Rockhampton so that he can take up the opportunity of spending regular time caring for his son.
142.I appreciate and accept that it may have consequences for the operation of the father’s business. He may though, be able to fashion a way that he continues to operate his business. He will still have available to him accommodation with his mother in Brisbane.
143.It would not be appropriate, however, for the mother to move herself again from Rockhampton in the way that she moved from Brisbane. Whilst I accept that her current move may have been motivated by a housing crisis, a further move would give significant weight to the father’s concerns about her mobility and ability to provide stability. If the father is to take the costly step of again moving to be near his son, it would not be appropriate for the mother to simply shift again without his consent. It is also not appropriate that she take action in the future without the father’s knowledge or consent and in that regard, I propose to make her residence of the child conditional upon her residing in Rockhampton and that a restraining order be in place to prevent her from moving from Rockhampton without the father’s acknowledge [sic] or consent.
Grounds of Appeal
The attachment to the Amended Notice of Appeal contains matters which are said to be grounds of appeal together with submissions. There is some numbering of these grounds and to that extent they will be followed in that order together with the submissions that were made by the father. It is useful at the outset to repeat what was said by the appellant prior to referring to the grounds of appeal(AB p.5)
This appeal is based upon the premise that Federal Magistrate Slack has made an excessive numbers of errors of law and false findings of fact, as well as deviating from proper procedure and legal principle. It is based upon the premise that Federal Magistrate Slack has, as he has personally claimed to have done in writing in his reasons for judgment, and verbally as shown in the transcripts of the proceedings, based his orders primarily on communication that passed between that father and the mothers solicitor; […], and furthermore placed this communication above concerns such as the best interests, living circumstances and health of the child, Australian Law and proper legal process and principle.
The Grounds of Appeal as set out in the attachment to the Amended Notice of Appeal filed 25 January 2007 are as follows:
Ground 1. This appeal is in part based on the fact that Federal Magistrate Slack made intentionally false findings of fact to justify his orders, and obfuscate the lack of proper basis for his orders
Ground 2. Federal Magistrate Slack has deviated from proper procedure in the proceedings.
Ground 3. It is without proper legal basis or precedent.
Grounds 4 and 5. The orders are impossible to comply without compromising the best interests of the child in that they require the father to terminate his employment (found to be the child’s only means of financial support by Federal Magistrate Slack in his reasons for judgment) and relocate to Rockhampton, within close proximity to the mother (the parents living in close proximity found to be a source of parental conflict by Federal Magistrate Slack in his reasons for judgment). They also necessitate direct contact between the parties (found to be a cause of conflict by Federal Magistrate Slack in his reasons for judgment) and abolish the existing paternal familial bounds found to exist by Federal Magistrate Slack in his reasons for judgment.
Ground 6. That the order set an unacceptable precedent in openly acknowledging and accepting the intentional deception of the court as a viable and valid way to act in the Federal Magistrates Court.
Ground 7. In regard to the issue of improper weight placed upon the considerations Federal Magistrate Slack is bound to consider, I will rely upon the Family Law Act and it’s contents, and upon the reasons for judgment in this case…
Ground 8. In proving that Federal Magistrate Slack has applied an explicitly discriminatory set of double standards, I will rely upon the reasons of judgment as submitted by Federal Magistrate Slack, and his comments therein.
Submissions of the appellant
At the commencement of the appeal hearing the appellant tendered a report of Dr M which he conceded was not placed before the trial Judge but was referred to by the report writer in the Family Report. The report of Dr M was marked Exhibit 1. The appellant also asked that an affidavit of a psychologist Dr C filed on 26 July 2004 be included in the documents to be relied upon.
At the outset the father submitted that the Federal Magistrate should have ordered that the child live with the mother in Brisbane and in failing to do so could not have considered his best interests. In his submissions considerable emphasis was placed on the submissions of the Independent Children’s Lawyer to the trial Judge. To that end it is appropriate that some reference be made to those submissions as they are contained in the transcript of the second day of the trial commencing at page 100. I would mention at this point that only part of the transcript was first provided by the father, who subsequently provided the remainder of the transcript of the second day.
It is correct that Mr Linklater-Steele, counsel for the Independent Children’s Lawyer submitted that from 3 January 2007 the child should reside with the mother in Brisbane. It was further submitted that the father’s time with the child be from Wednesday to Monday or Thursday to Monday. It was submitted that this is not a relocation matter even though the proposed order was that the mother return to Brisbane. It was correctly submitted at transcript p.101 l.30 that:
MR LINKLATER STEELE: The evidence establishes, in my submission, that really the mother, for whatever reason, elected unilaterally to remove the child to Rockhampton. If one considers the lines of authority of relocation cases, she is not required under those cases to put forward a valid reason for proposing a relocation, but she does, in my submission, have to discharge, under the new regime, a – an onus upon her to abide by the existing arrangements put in place by a Court order, and particularly considering the primary and secondary considerations.
Reference was made to s.60CC(4) being “the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent”. It was submitted that it was the responsibility of the mother to facilitate contact and that “…the steps taken by her which might be justified from a subjective point of view of herself, don’t fulfil the responsibilities that she was required to discharge in providing for that contact which the Court had already determined was in the child’s best interest”. (T/script p.101 l.47) Further it was submitted (T/script p.102 l.5)
MR LINKLATER-STEELE: It would appear clear that the mother’s suggestions that she was forced to leave because of rental circumstances are not made out. It would appear that at best the mother’s evidence is that because of her determination that certain deficiencies in the property were of such significance she had to leave an environment which she suggests was the only one that she financially could afford at that time.
It was emphasised that because the matter was decided so shortly before the mother left for Rockhampton, she had an obligation to inform the father and to inform the Court to seek the Court’s permission before she left. It was submitted at the trial that great weight should be given to the fact that the mother decided to move unilaterally and that there was (T/script p.103 l.30):
MR LINKLATER-STEELE: …a significant concern about her ability to facilitate contact in a remote fashion, that is from Rockhampton will she, in essence, follow through with existing obligations.
Apart from the accommodation provided by her mother the other reason given for the move to Rockhampton was to study. Mr Linklater-Steele submitted at p.104 of the transcript:
MR LINKLATER- STEELE: …that is the course of study that she has been undertaking can be completed in a similar fashion; that the evidence was that she didn’t make any attempt to even try and gain entry to that course in Brisbane; her evidence, unchallenged, that she was, in fact, able to achieve a mark which will allow her to do so.
Having made those criticisms of the mother Mr Linklater-Steele also referred to the fact that the father had not discharged his responsibilities in terms of child support (T/script p.106 l.33):
MR LINKLATER-STEELE: …He has made no effort to support the mother at all, and in any remunerative sense, over a significant period of time. His evidence at its highest was that he had purchased some toys.
The trial Judge correctly reminded counsel that the father for a considerable period of time had been caring for the child in alternate weeks and it could be said that each of them had been supporting the child equally up until September of 2005.
In oral submissions the appellant referred to a decision of Fogarty J, In the Marriage of Burke (1992) 112 FLR 250 and in particular where it was said at page 259:
“It is important to bear in mind that the s.75(2) factors are gender neutral, that is, they apply equally to men and women”
Ultimately Mr Linklater-Steele submitted as follows (T/script p.108 l.28):
MR LINKLATER-STEELE: I suppose, the factor that tips the matter in favour of the order that the children’s representative proposes, is that it would be an order which would be more likely than not to limit the prospective further litigation of this matter, in that if it is, as the father professes, his desire to have that level of contact with his sone, that he doesn’t really have those concerns about parenting, it’s more likely than not making an order in the terms as suggested would bring a greater degree of certainty in terms of the cessation of hostilities and further application, than awaiting the potential outcome of the father moving, appealing and the other – that’s one of the factors that your Honour, in my submission, would take into consideration.
Without attempting to deal with every proposition and argument of the appellant, it can be seen that the appellant is considerably aggrieved by the mother’s actions. It remains the appellant’s position that the mother could undertake a university course in Brisbane and that accommodation would be available to her particularly if she received financial support from her mother.
In his written submissions the appellant makes a personal attack on the Federal Magistrate asserting under the heading “Reasons” that:
“…All other factors put forward by the Federal Magistrate are fabricated by him personally, and not reflected in the evidence put before him, all factors that might make the case ‘complex and difficult’ therefore, being extant solely in the fantasies of Federal Magistrate Slack.”
In relation to the attack on the findings of fact the first point made was that the Federal Magistrate was wrong in finding that Mr Sprenger ceased work due to a back injury. The transcript (p.55) reveals the evidence that Mr Sprenger was currently unable to work because of back problems and that he had been advised that he required an operation. He explained that he had not left his previous employment due to his back but rather due to a dissatisfaction with the working conditions. It is apparent that he is able to attend to various household tasks in looking after the children.
The next factual finding about which there is complaint is found in paragraph 36 and 37 of the judgment where his Honour found that the mother proposed to continue to reside in Rockhampton and that she had enrolled the child at [a private school in Rockhampton]. The father complains that this is a finding that the mother expects to live in Rockhampton permanently whereas there was no evidence that the family would reside anywhere in particular.
Is it correct, reading the transcript that neither the mother nor her husband said that they intended to permanently reside in Rockhampton to the exclusion of any other place. However, the inference that is suggested by the father be drawn from paragraph 36 and 37 that they will reside in Rockhampton permanently cannot be drawn. The Federal Magistrate said that the enrolling of the child at [a private school in Rockhampton] “…indicates that she intends to reside in Rockhampton permanently”. In any event his Honour made an order which required her to remain in Rockhampton should she have residence of the child.
In paragraph 60 and paragraph 89 the trial Judge referred to the conflict between the parents. It was submitted on behalf of the father that the evidence was to the contrary. Certainly, in the evidence of Mr Sprenger (the mother’s husband) when asked whether it was a motivating reason to go to Rockhampton that they were having difficulties with the father his response to that was “No” and when asked whether the father was annoying he said “A lot of people are” (t/script p.59). The father then referred to the evidence in relation to his opinion of Mr Sprenger in light of paragraph 65 of the judgment where the trial Judge said:
65.The evidence suggests that he has an appropriate relationship with Mr [Sprenger] and the father does not raise any specific concerns about Mr [Sprenger] as a carer although he does have concerns about Mr [Sprenger’s] aggressive attitude toward him.
It was submitted that the Federal Magistrate mistook the facts in relation to the possibilities of the mother obtaining housing in Brisbane and her studying at a Brisbane university. It is correct that the Independent Children’s Lawyer’s counsel asked her about both these matters. The transcript reveals that their financial circumstances would have made rental at many places in Brisbane quite difficult. In relation to her ability to study in Brisbane it was conceded by the mother that she could take the course externally and that there are similar degrees which can be found at Brisbane universities.
A number of the other arguments on behalf of the appellant can be described as directed to matters of weight. For example, it was submitted that the trial Judge placed insufficient weight on the relationships of the child with his extended family in Brisbane. In my view, his Honour clearly appreciated the relationships that the child has with all the members of his family although it might reasonably be observed that based on the evidence of [the Family Report writer] he was particularly concerned about the relationship of the child with his brother and sister in the mother’s household. This was quite proper.
In the oral submissions the appellant stated that the move to Rockhampton would involve the termination of his business. He submitted that there is a much larger business of the same type already trading in Rockhampton which would be impossible for him to compete against and that this factor would have a negative influence on his ability to care for, financially support and provide accommodation for the child. The obvious difficulty with this submission is that he currently does not provide financial support for the child apart from when he is caring for the child. In addition, the effect on the father’s business was a matter taken into account by the trial Judge.
The appellant submitted that at trial the mother said that upon the completion of her university studies they could move “pretty much anywhere” (t/script p.28 l.20). Again, the orders made restrict the mother’s movement.
Submissions of Independent Child Lawyer
The Independent Children’s Lawyer submitted that the Court would reject any application to receive any further evidence. Reference was made to s.93A(2) of the Family Law Act 1975 (Cth) and CDJ & VAJ (1998) 197 CLR 172 in particular at paragraph 109:
109.One consideration in construing s.93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where the evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
This issue needs little attention because despite being given an opportunity the father never filed an application or affidavit.
The Independent Children’s Lawyer does not support the appeal of the father for a range of reasons including that the Grounds of Appeal as articulated by the father are not proper grounds. Further, it was submitted it cannot be demonstrated that his Honours’ orders were not made in the best interests of the child or that in the exercise of his discretion his Honour fell into error as is required to be demonstrated. Reference was made to the well known paragraphs in House v The King (1936) 55 CLR 499 at p.504 & 505 and Gronow v Gronow (1979) 144 CLR 513 particularly at p.519-20.
In attempting to deal with the allegation that the Federal Magistrate made false findings, attention was drawn to the fact that no issue of bias was raised in the course of the trial by the father nor was there any argument at the time that the Federal Magistrate was biased. It was otherwise submitted that the challenged findings of fact as perceived by the appellant have been misunderstood by him. It was submitted that where there was evidence which created a need for a finding his Honour did so and the conclusions were open to him on the evidence. This included the lack of communication between the parties and reference was made to the opinion of [the Family Report writer]. It was emphasised that the contents of the report of [the Family Report writer] was not criticised or attacked at the trial by the father.
In relation to the argument that the orders are unable to be complied with because the father intends to remain living in Brisbane, reference was made to the evidence of the father. This first appears in the transcript of 14 August 2006 at p.36 where it was quite clear that the father said that he would have no choice should the child remain living in Rockhampton but for him to go to Rockhampton. The father also said that he would appeal from the decision and do whatever he could to avoid having to move to Rockhampton. Further statements to this effect were made by the father and appear at p.46 and p.54 of the transcript. The learned Federal Magistrate was entitled to conclude that the father would move to Rockhampton should the child remain in that place.
In oral submissions reference was made to the father’s lack of financial support of the child and in particular his evidence contained in the transcript at p.53 where the father conceded that he currently pays no child support. Counsel asked:
MR LINKLATER-STEELE: And is that because you orchestrate your affairs such that your expenses equal your income therefore you don’t have any surplus?
THE FATHER REPLIED: An intelligent person would. Part of those expenses are the child’s toys and clothing which I get from [overseas], dirt cheap so he gets heaps of stuff. The food and everything is well supported – no problems supporting him.
SUBMISSIONS OF RESPONDENT
In the written submissions on behalf of the respondent in p.11 para 5 it is said:
5. In summary, the Appeal is misconceived, lacks particularity, is offensive and contemptuous of the Court, and no error of law has been identified by the Father in his Amended Notice of Appeal or Summary of Argument.
In view of the decision made in relation to the appeal it is not necessary to add to those submissions.
Appellate Principles
It is appropriate at this stage to identify the principles governing an appeal such as this from a discretionary judgment. The law in this respect is not in doubt.
In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J describes the appropriate level of restraint that an appellate court should exercise in respect of discretionary matters as follows:
There is a strong presumption in favour of the correctness of the decision appealed from and that that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.
It was clearly enunciated in House v The King (1936) (supra) at 504-505 that:
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 Gronow v Gronow (supra) Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing the discretionary decision consistent with these principles. If there is then, unless the result is plainly right notwithstanding an appellable error, per Gibbs J (as he then was) in De Winter v De Winter (1979) FLC 90-605 at 78,091, I am obliged to allow the appeal, set the orders aside and, if possible, substitute my own decision after considering the matter afresh, as was explained by Kirby J in AMS v AIF (1999) FLC 92-852, who said at 86-043:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
As the appeal included challenges to the findings of fact reference to De Winter & De Winter (supra) is important.
The appellant argues that the trial Judge made a number of factual errors and that this caused the decision to be incorrect. The first question is whether there was an error and if so was the error material. Then, whether the error affected the conclusion. If so, the question then becomes whether the result is so “plainly right” that the decision can be allowed to stand.
In analysing the factual error in De Winter & De Winter (supra) Gibbs J expressed the position ultimately to be this at p. 78,092:
I regard the question whether the errors formed a determining factor in the result in the present case is by no means easy of solution. … His final decision depended upon that opinion. And although that decision was open, it was not inevitable.… As I have said, however, the members of the Full Court, apart from Evatt CJ., were content to take the view that the decision of the learned primary judge was within the range of his discretion. I have already said that I agree with that view, but it does not alter the fact that the discretion was exercised on a wrong basis.
For those reasons I have reached the conclusion that the order of the learned primary judge should not be allowed to stand, and that there should be a re-hearing of the respondent’s application. I would allow the appeal.
Further Aickin J said at 78,099:
I have had the advantage of reading the reasons for judgment prepared by Gibbs J. with which I am in complete agreement. I would add only the comment that the Full Court of the Family Court failed to advert to the significance that the unsupportable finding of fraudulent misrepresentation must have had on the trial judge’s view as to the appellant’s credibility. It was not sufficient to say, as they did, that the issue in respect of which that finding was made was of minimal relevance and that the document the signature of which the trial judge found to have been procured by fraudulent misrepresentation did not have any real significance in the overall decision. This merely diverts attention from the effect of a finding not merely erroneous but not supported by the evidence.
Conclusions
The essential findings leading to the decision have already been reproduced in this judgment.
Whilst at first sight it may appear to be inconsistent with the evidence or an error when his Honour said that he intended to make orders that would provide the father with substantial time that was dependent on the evidence to which I have already referred that the father would, albeit unwillingly, go to Rockhampton. Had the father’s evidence been different in that respect his Honour’s task may have been an entirely different one. It cannot be said on the evidence that the findings were incorrect or not open to the trial Judge.
Despite the assertions of the appellant it cannot be said that there was an error of fact material to the judgment. This leaves only a question of whether there was some error in the exercise of discretion.
While acknowledging that these cases are particularly complex the appellant in this case has failed to demonstrate that there was any error in the exercise of discretion. I would entirely agree with the opinion expressed by Warnick J in B & B [2006] FamCA 1207, where he said:
1.In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
2.However described, the nature of the judicial exercise required is such that even well crafted reasons for the orders (which more often than not permit relocation, at least within Australia) often seem unconvincing, formulaic, at times even as if there is a subtext. Unsurprisingly, in this context, many a losing litigant is perplexed. Many appeals are generated.
3.In the trial out of which this appeal arises, the case against relocation was powerful. However, the reasons of Slack FM permitting relocation are thorough and well-organised. Yet, in my view, at least to the reader used to an unadulterated application of the “best interests” principle, a degree of discomfort with the result remains. The major question in this appeal is whether that discomfort is merely due to the state of the law, albeit correctly applied, or whether appellable error has occurred.
Further, I would add it must be obvious that the father would have been greatly aggrieved in this case by the mother’s unilateral decision to return to Rockhampton. In this, she may have been deceitful. However, that does not lead to a result that the mother and child must return to Brisbane. The question revolves around the child’s interests not the parents’ behaviour.
The fundamental principle is now set out in s.60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
It is recognised by the High Court, there must also be considered the right of freedom of mobility. In U & U (2002) 211 CLR 238 at para 89 this consideration was explained:
89.There are two answers to the appellant's argument. The first is that whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent. The second answer is that the primary judge did weigh up and treat as a relevant, important consideration, the appellant's wish to return to India.
Clearly these various principles are difficult to reconcile, however in this case there was no error of law by the trial Judge nor any error in the exercise of his discretion such that the appeal could be allowed.
Costs
It was necessary for there to be two applications heard by me prior to the hearing of the appeal in relation to the preparation of the appeal book and the submissions. In each case it was necessary to make orders. The appellant resisted providing the whole transcript. As it emerged, it was necessary to have the whole of the transcript because the parts that were not included were the evidence and cross examination of Mr Sprenger to which reference has been made in this judgment. On the second occasion it was necessary to make further directions. It is appropriate therefore that the appellant pay the costs of the respondent and the Independent Children’s Lawyer for the appearances on 9 March 2007 and 4 April 2007.
However, in my view the costs of the appeal otherwise fall into a different category. The provisions of s.117 of the Act include that there must be circumstances that justify making an order for costs. In this case, the financial circumstances of each of the parties is poor. The appeal is brought by the father consequent upon the mother’s unilateral move to Rockhampton very soon after a trial and orders had been made. In my view there are no reasons to justify an order that the appellant pay the costs of the respondent.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 17 September 2007
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