Cording & Cording
[2022] FedCFamC1A 51
•8 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cording & Cording [2022] FedCFamC1A 51
Appeal from: Cording & Cording [2021] FedCFamC2F 86 Appeal number(s): NAA 37 of 2021 File number(s): NCC 3498 of 2018 Judgment of: ALDRIDGE J Date of judgment: 8 April 2022 Catchwords: FAMILY LAW – APPEAL – Appeal against orders refusing the mother’s relocation application – Whether it was reasonably practicable for the mother to remain living in the local area – Challenges to findings of fact – Error of law – Findings of fact made where no evidence to support it – Findings were not open on the evidence – Error established – Appeal allowed – Orders set aside – Matter remitted for rehearing – Father to pay the mother’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 65DAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
De Winter and De Winter (1979) FLC 90-605
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
The Hon Sir Frank Kitto KBE, “Why Write Judgments?” (1992) 66 Australian Law Journal 787
Number of paragraphs: 52 Date of hearing: 10 February 2022 Place: Sydney (via video link) Counsel for the Appellant: Mr Cummings SC Solicitor for the Appellant: Mills Oakley Counsel for the Respondent: Mr Guyder Solicitor for the Respondent: Lindeman Lawyers ORDERS
NAA 37 of 2021
NCC 3498 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CORDING
Appellant
AND: MR CORDING
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made by the primary judge on 15 September 2021 are set aside on and from the first date the matter is before the Federal Circuit and Family Court of Australia (Division 2).
3.The matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing before a judge other than the primary judge.
4.The respondent is to pay the appellant’s costs fixed in the sum of $25,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cording & Cording has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Ms Cording (“the mother”) and Mr Cording (“the father”) have two children who were born in 2014 and 2016.
On 15 September 2021, a judge of the Federal Circuit and Family Court of Australia (Division 2) ordered that the parties were to have equal shared parental responsibility for the children, who were to live with them on a week about basis. The mother’s application for the children to move with her to live at Town X in Queensland was refused, with the result that they would remain living on the New South Wales mid North Coast (“mid North Coast”).
The three grounds of appeal that were pressed (Ground 2 was abandoned) deal only with the rejection of the mother’s contention that it was not reasonably practicable for her, financially, to remain living on the mid North Coast and that she has a “degree of support” in that area (at [197] and [201]).
The parties separated in May 2018. At that time, they were living in Town Y. After a serious incident involving the father on 15 September 2018, the mother suspended his time with the children.
The mother moved to Town W located in the mid North Coast region and was followed by the father, who moved there in order to be closer to the children. He also changed jobs for that purpose. Eventually, the children started spending supervised time with the father.
Consent orders were made on 25 March 2019, which provided for the parties to have equal shared parental responsibility for the children, who were to live with the mother. The children were to spend increasing time with the father culminating in alternating weekends and Thursday nights.
At some stage, between July 2019 and November 2019, the mother moved with the children to Town Z, also located in the mid North Coast region, which is where the maternal grandparents live.
The mother entered into a new relationship in late 2018 with Mr P. In July 2019, he moved to reside at Town X (at [187]). The relationship continues and the mother wishes to move to Town X with the children to live with Mr P. As I have said, her application to do so was refused.
The mother is currently studying to qualify as a professional and at the time of the hearing, was 12–18 months away from graduating.
THE APPEAL
The mother submits that one of the critical issues for determination in the proceedings was how she could cope, both emotionally and financially, if she could not move to Town X. Her case was that she would receive emotional support from and, importantly, be able to live with Mr P instead of being required to rent premises on the mid North Coast. It was put that the father’s proposal for shared care of the children on the mid North Coast was not practicable (s 65DAA Family Law Act 1975 (Cth)).
The primary judge noted at [184] that one of the issues before him was whether it was reasonably practicable for the mother to continue to live in the local area.
His Honour recorded:
185.The mother contends that it is not reasonably practicable because she says that she does not have any real support from her parents, both of whom she says are ill and were hospitalised for a period in 2019, which is fundamentally what led to her deciding that she had to leave the area.
186.This is a little curious because, at the Court event on 26 November 2019, the mother had said that she had no intention of relocating from [Town Z] in the foreseeable future. But that very same year she says her parents have been desperately unwell.
187.I do not make an adverse finding about the mother’s credibility on this. I merely observe that it seems to me that there has been some chopping and changing in the mother’s evidence and perhaps some uncertainty. The fact of the matter is that [Mr P] had already left to go to [Town X] in July 2019, some four months before that Court event. He and the mother have never, in fact, lived together.
The primary judge found that the mother was receiving Centrelink benefits, that being a sole parent pension, rent assistance and study allowance of $650–$700 per week and child support of $69 per week (at [188]).
His Honour continued:
189.The mother has one to one and a half years of study to go. She has experienced some internet issues where she has stayed. She says she has no support because she does not really rely on her parents to support her. [Mr P] has been paying for her car registration. She also said she had borrowed significant moneys from him.
At [191], a finding was made that there was available accommodation in the Town W/Town H area in the mid North Coast at the same rent currently being paid by the mother at her short term rental. This would, however, increase travel time to Town X, a trip taken fortnightly, by almost an hour.
After finding that if the mother moved to Town X, she could move into Mr P’s home, his Honour said:
194.But the fact is that the mother is dependent entirely on Centrelink benefits until she gets a job, until she graduates in 12 months to 18 months’ time. If she lives at the [Town Z] area, she is on Centrelink. If she lives at [Town X], she is on Centrelink. I do not say that to be disparaging of her. She is a student. I understand that. The point though is that she is entirely dependent on [Mr P] to support her.
This lead to the following conclusions:
197.I accept that there are financial benefits to the mother, potentially, in living at [Town X]. No question about that. I do not, however, consider, financially, that it would not be “reasonably practicable” for her to remain living in this area. I do not consider that her parents are so incapable of supporting her that she does not have, at least, some basic level of support.
198.I do not question that the mother has financial difficulty. She received a property settlement of some $55,000 from the father. I do not know where that money has gone. It seems, by inference, from the mother’s evidence, that the money is spent but I simply do not have any clear evidence about that.
…
200.Do I think that it would be tough for the mother to live at [Town Z]? Yes. The question is not whether it is tough but whether it is “reasonably practicable” in terms of s 65DAA(5)(e).
201.The mother has spent a significant amount of her life living in that area. I consider that she has a degree of support - not as much as she might have from [Mr P] - but that is not the same as saying that it is not reasonably practicable, albeit difficult, to stay.
(Emphasis in original)
The first impugned finding is that “I do not consider that her parents are so incapable of supporting her that she does not have, at least, some basic level of support” (at [197]).
The mother’s unchallenged evidence was that her parents were in poor health and both were extremely ill in late 2019. The Family Report writer recorded in the report of 24 October 2020 that it appeared that the mother had provided significant care to her parents, but nonetheless, had a poor relationship with them.
It emerged in the course of submissions that the mother and the children had lived briefly with the maternal grandparents at Christmas, due to damage to the house where she was living. The mother sought to explain that was, essentially, emergency accommodation. However, on objection by counsel for the father, the primary judge did not permit the mother to continue, saying he could not base a decision on something that was not the subject of evidence (Transcript 14 September 2021, p.276 line 46 to p.277 line 3).
In her affidavit filed on 23 July 2021, the mother said:
n.My personal circumstances have changed from November, 2019. My parents have both unexpectedly fallen ill and nearly died. Both my parents were hospitalised, and they were my only support in [Town Z]. I spent a lot of time caring for my parents and the children have been around a lot of hospitals, etc which I want to remove them from. My parents are supportive of my wish to relocate as our relationship was never close to begin with. Having no support in [Town Z] is taking a significant toll on my own emotional and mental health which ultimately affects how I study and parent. I am not happy continuing to live in [Town Z] and the children know we are all happy and have support in Queensland however I have not told them of my wish to relocate.
(Affidavit of the mother filed on 23 July 2021, paragraph 21(n))
That evidence was not challenged in cross-examination. The mother said that the grandparents had not provided affidavits “[b]ecause they’re medically not well enough, and I know they’re mentally not well enough to write an affidavit” (Transcript 14 September 2021, p.116 lines 35–36).
Thus, there was no evidence upon which the primary judge could find that the maternal grandparents could or would provide some basic level of support.
It is not at all clear what his Honour considered that support would entail. There is no evidence that identifies any support and the primary judge does not say. Something might be able to be gleaned from the transcript where the following exchange took place:
HIS HONOUR: You describe them as being in pretty poor health and you’ve said that in your material but it might be that if it was easier for you, you would be living with them now, rather than staying in short-term accommodation. I might think maybe there is something in that and they – and that if you’ve got to support them, maybe that’s a bit more – they’re a bit less helpful than they might like to be. But I mean, you don’t have to - - -
[THE MOTHER]: Your Honour, we – sorry.
HIS HONOUR: - - - have perfect circumstances. They’ve just got to be reasonably practicable. Sometimes parents have to put up with tough decisions as well, you know.
[THE MOTHER]: Yes, your Honour.
(Transcript 14 September 2021, p. 277 lines 21–44)
The mother did not concede that she could stay at the maternal grandparents’ home with the children, let alone for any significant period of time. Counsel for the father could not point to any evidence to that effect.
It follows that there was no basis on which his Honour could find that the maternal grandparents are capable of providing some level of support. If regard was had to the evidence about the emergency accommodation, leaving aside the mother’s comments, which his Honour said he could not take into account, the highest that could be said in respect of support available to the mother would be the availability of some very short term accommodation, which would be of no assistance.
A further difficulty is in understanding what was meant by the phrases “are so incapable” and “basic level of support” (at [197]). It was not further identified.
The father submitted that his Honour was talking of non-financial support and referred to the mother’s move to Town Z and her evidence that she had to “go to support where [she] thought [she] had support” (Transcript 13 September 2021, p.53 lines 18–19). That statement was preceded by the words “[i]t was about me not having any money” and it can easily be inferred that the support discussed was financial (Transcript 13 September 2021, p.53 line 19).
I do not accept the submission that [185] and [186] were findings as to non-financial support.
Finally, [197] occurs in the midst of a discussion as to the mother’s financial means.
Taking all this together, [197] can only be seen as a finding that the mother had such a level of support from her parents that, taken with other matters, it was reasonably practicable for her to live in the mid North Coast. The evidence does not permit a finding of such support from the parents.
I shall return to this issue shortly.
The second challenged finding is that the mother has a degree of support in Town Z to the extent that it could not be said that it was not reasonably practicable for the mother to remain there. His Honour said:
197.…I do not, however, consider, financially, that it would not be “reasonably practicable” for her to remain living in this area. …
…
201.The mother has spent a significant amount of her life living in that area. I consider that she has a degree of support – not as much as she might have from [Mr P] – but that is not the same as saying that it is not reasonably practicable, albeit difficult, to stay.
(Emphasis in original)
The use of the double negative, used in many of his Honour’s findings, tends to undermine their clarity. However, what I understand the primary judge to be saying was that the support that the mother would receive in Town Z was sufficient for orders providing that she and the children remain there, to be reasonably practicable.
Again, it is said that this finding is not available on the evidence.
The mother’s unchallenged evidence was that, at the time of the hearing, she had no furniture and no money for a bond. She had been living in a short term holiday rental but could no longer afford to do so as the rent was being raised to ordinary commercial levels. She said that she borrowed the initial rent, paid in advance of $6,140, until she moved to a week to week arrangement at $350 per week which was about to increase to $375–$400 per week (Transcript 13 September 2021, p.55 line 23 to p.58 line 23).
The primary judge referred to the possibility of renting new premises and said:
191.She was asked questions about the availability of other accommodation in the [Town W] region or in [Town H]. She was asked about a two bedroom unit at [Town W] advertised for rent at $360 per week or a two bedroom apparently “luxury villa” at [Town H], being advertised for rent at $395 per week. She did not cavil with those figures. Her simple point is that she does not want to live in those places because she says that she has no support.
The mother’s point was, however, that she could not afford this, reiterating that she had no furniture and could not afford a bond. It is true, as his Honour noted, the mother had received $55,000 as a property settlement and there was no evidence as to where it had gone. An inference was drawn that it had been spent and a finding was made that the mother had financial difficulty (at [198]). The primary judge noted that the mother was receiving $650–$700 per week in government benefits (at [188]). Mr P was paying for her car registration (at [189]).
His Honour continued:
199.The mother said that she would not be able to afford a bond. I struggle to accept that evidence in circumstances where she was able to afford a $6,000 payment to get into the accommodation she is in now. Her partner says that he will continue to pursue the relationship with her if they cannot live together.
It is difficult to reconcile that finding with the unchallenged evidence that this sum had been borrowed from friends (Transcript 14 September 2019, p.264 lines 22–24).
The primary judge did not identify what support the mother had that would make it “tough” to live in the local area but “reasonably practicable” (at [200]). It is true, as the father submitted, that the mother did not set out her financial position in any detail at all, but it is clear, as his Honour accepted, she was in real financial difficulty.
The support from the maternal grandparents was clearly a key factor in coming to that determination. That was a finding that was not available on the evidence.
It is an error of law to make a finding of fact where there is no evidence to support it (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390).
However, not every error leads to a retrial. In De Winter and De Winter (1979) FLC 90-605 at 78,092, after referring the House v The King (1936) 55 CLR 499, the High Court said:
It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded on a mistake of fact should be upheld simply because the order was well within the range of discretion of the primary judge.
…
The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did effect the conclusion, the result may be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
I also take into account that appellate courts avoid an overly critical, or pernickety analysis of reasons (AMS v AIF (1999) 199 CLR 160 per Kirby J). That is particularly so in the case of ex tempore reasons where a certain latitude is extended. Here, commendably in a difficult matter, his Honour’s reasons were delivered the day after the hearing concluded. However, “[q]uickness of decision is no substitute for thoroughness in consideration and the utmost care in the formulation of reasons” (The Hon Sir Frank Kitto KBE, “Why Write Judgments?” (1992) 66 Australian Law Journal 787, 791).
The question then, is whether the finding as to the mother’s financial support was necessary and important, as the mother submitted, or whether the incorrect finding was immaterial and had no effect upon the outcome, as the father submitted.
The making of an equal time arrangement was predicated upon the finding that such an arrangement was reasonably practicable. That was the subject of considerable discussion at [184]–[202]. That alone suggests the topic was important. It comes at a significant place in the judgment, just before the ultimate conclusion. It informed the refusal of the relocation application.
I am satisfied that the finding as to support influenced the ultimate decision. It cannot be said, in such a closely contested matter, that the result was so plainly correct that the outcome should stand notwithstanding the error. It follows that Ground 1 and Ground 3 have been established. Given the determination that the finding at [197] was erroneously made, it is not necessary to deal with Ground 4, which also challenges it.
The appeal must be allowed and the matter remitted for rehearing. The orders will be set aside on and from the next date the matter is before the Court so that appropriate interim orders can be considered.
COSTS
It was the father’s case before the primary judge that “her parents have supported her and can continue to support her” (Transcript 14 September 2021, p.263 lines 18–19). Whilst the basis of the father’s submission differed in some ways from the findings that were ultimately made, he unsuccessfully contended that no errors were made or alternatively, were immaterial. It is appropriate that the father pay at least some proportion of the mother’s costs.
The mother’s amended schedule of costs claims a total of $40,281.56. Although it is expressed to be in compliance with Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), it appears to claim every fee incurred by the mother in relation to the appeal including the costs of her solicitor reviewing the Appeal Book, reading the transcript and including the costs of preparing the schedule itself.
Doing the best I can, there will be an order that the father pay the mother’s costs fixed in the sum of $25,000.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 8 April 2022
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