Denham & Newsham

Case [2021] FamCAFC 141

FAMILY COURT OF AUSTRALIA

Denham & Newsham [2021] FamCAFC 141

Appeal from: Denham & Newsham [2020] FamCA 271
Appeal number(s): EAA 61 of 2020
File number(s): SYC 5428 of 2018
Judgment of: AINSLIE-WALLACE, RYAN & ALDRIDGE JJ
Date of judgment: 6 August 2021
Catchwords: FAMILY LAW – APPEAL – RELOCATION – Appeal against orders permitting the mother to relocate the child to Europe – Failure to take into account material facts – Attribution of weight – Consideration of evidence by the single expert – Practicalities of contact – Restrictions on travel – Further evidence admitted in relation to international border restrictions and COVID-19 response – Where the judgment proceeds assuming freedom of movement across borders – Further evidence undermined the findings to the effect that the child and the father would maintain regular face to face contact and a meaningful relationship if the child relocated – Appeal allowed – Remitted for rehearing – Interim orders made pending the rehearing – Submissions as to costs to be made.
Legislation: Family Law Act 1975 (Cth) Pt VII, s 93A(2)
Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Hall and Hall (1979) FLC 90-713; [1979] FamCA 73

House v The King (1936) 55 CLR 499; [1936] HCA 40

Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135
Division: Appeal Division
Number of paragraphs: 63
Date of hearing: 13 April 2021
Place: Sydney
Counsel for the Appellant: Ms Gillies SC
Solicitor for the Appellant: P Williams & Company Lawyers
Counsel for the Respondent: Mr Lethbridge SC with Mr Ford
Solicitor for the Respondent: Nolan Lawyers

ORDERS

EAA 61 of 2020
SYC 5428 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR DENHAM

Appellant
AND:

MS NEWSHAM

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, RYAN & ALDRIDGE JJ

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:

1.The application to adduce further evidence in the appeal be allowed.

2.The appeal be allowed.

3.Orders 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 16, 17, 20, 21, 22, 23, 24, 25 dated 23 April 2020 be set aside.

4.That the proceedings be remitted for rehearing before a judge other than the primary judge.

5.Pending further order, that X born in 2016 (“the child”) spends time with the father as follows:

Until the child attains the age of six (6) years

(a)Each Wednesday from 2.00 pm (or the conclusion of school if applicable) until 6.00 pm; and

(b)Until the father obtains suitable accommodation (see Order 18 of the orders dated 23 April 2020) each Saturday from 9.00 am to 6.00 pm;

(c) Upon the father obtaining suitable accommodation (and subject to Order 18 of the orders dated 23 April 2020):

(i)For a period of six months, each alternate weekend from 9.00 am Saturday to 9.00 am Sunday (this Order does not operate if the father has already spent time with the child in accordance with Order 6(c)…

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AGLC
Denham & Newsham [2021] FamCAFC 141
Case
[2021] FamCAFC 141
Decision Date

CaseChat Overview and Summary

The appeal before the court involved the relocation of a child from Australia to Belgium, with the father contesting the decision permitting the mother to relocate. The Family Court of Australia, in its appellate jurisdiction, was tasked with reviewing the primary judge's decision. The legal issues before the court encompassed whether the primary judge had correctly assessed the material facts, attributed appropriate weight to the evidence, and whether the proposed arrangements for the child's contact with the father were feasible and in the child's best interest.

The court found that the primary judge failed to adequately consider the full implications of the expert evidence and the post-trial developments, particularly the COVID-19 pandemic, which introduced significant barriers to international travel. The primary judge's assumptions about the feasibility of the father travelling to Belgium were undermined by the new evidence, which highlighted the practical difficulties and costs associated with such travel. The court concluded that the primary judge's failure to address these issues properly led to an unsustainable conclusion regarding the child's best interests. Consequently, the relocation order was set aside, and the matter was remitted for rehearing by a different judge.

Pending the rehearing, the court issued interim orders for the child's time with the father, which differed from the previous arrangements. The court also stipulated that submissions regarding costs should be made within a specified timeframe, with responses to be filed accordingly.

Orders

Orders of the court

EAA 61 of 2020

SYC 5428 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR DENHAM

Appellant

AND:

MS NEWSHAM

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, RYAN & ALDRIDGE JJ

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:

1. The application to adduce further evidence in the appeal be allowed.

2. The appeal be allowed.

3. Orders 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 16, 17, 20, 21, 22, 23, 24, 25 dated 23 April 2020 be set aside.

4. That the proceedings be remitted for rehearing before a judge other than the primary judge.

5. Pending further order, that X born in 2016 (“the child”) spends time with the father as follows:

Until the child attains the age of six (6) years

(a) Each Wednesday from 2.00 pm (or the conclusion of school if applicable) until 6.00 pm; and

(b) Until the father obtains suitable accommodation (see Order 18 of the orders dated 23 April 2020) each Saturday from 9.00 am to 6.00 pm;

(c) Upon the father obtaining suitable accommodation (and subject to Order 18 of the orders dated 23 April 2020):

(i) For a period of six months, each alternate weekend from 9.00 am Saturday to 9.00 am Sunday (this Order does not operate if the father has already spent time with the child in accordance with Order 6(c) of the orders under appeal and in which case time in accordance with Order 5(c)(ii) of these orders commences forthwith);

(ii) Thereafter, each alternate weekend from 9.00am Saturday until 6.00pm Sunday.

(d) For the purposes of changeover, and unless otherwise agreed between the parents in writing, the father shall be responsible for collecting the child from day care or school or the mother’s residence (as applicable) at the beginning of his time with the child and returning the child to the mother’s residence at the end of his time with the child.

Upon the child attaining the age of six (6) years

(a) Each Wednesday from the conclusion of school (or 3.00 pm) until 6.00 pm;

(b) Each alternate weekend from the conclusion of school (or 3.00pm) on Friday until 6.00 pm on Sunday, subject to paragraph 18 of the trial reasons;

(c) During the Autumn school holiday period and subject to Order 18 of the orders dated 23 April 2020, commencing at 9.00 am on Monday in the second week of the school holiday period until 5.00 pm on Wednesday that same week;

(d) During the Spring school holiday period and subject to Order 18 of the orders dated 23 April 2020, commencing at 9.00 am on Monday in the first week of the school holiday period until 5.00 pm on Friday that same week;

(e) During the Summer school holiday period and subject to Order 18 of the orders dated 23 April 2020:

(i) Week 2: from 9.00 am on Monday until 5.00 pm on Friday;

(ii) Week 4: from 9.00 am on Monday until 5.00 pm on Friday.

(f) For the purposes of changeover, and unless otherwise agreed between the parents in writing, the father shall be responsible for collecting the child from school or the mother’s residence (as applicable) at the beginning of his time with the child and returning the child to the mother’s residence at the end of his time with the child.

6. Any application for costs is to be made within seven (7) days of these orders by filing written submissions of no more than five pages with the Appeals Registrar via email to …@familycourt.gov.au and serving a copy at the same time on the other party.

7. Any response to an application for costs is to be filed and served within seven (7) days of service of the submissions referred to in Order 6 and otherwise in accordance with the process described in that order.

Background

Background to the litigation

At the time of the trial, the COVID-19 pandemic had not commenced and no one contemplated the health disaster that would unfold. There was no restriction on Australian citizens’ ability to freely travel between Australia and, relevantly, Belgium. Both these country’s borders were open and the trial proceeded on the understanding that the parties and child would be able to move freely between them. There can be no doubt that the relocation order is underpinned by the finding that the father would be able to travel to Belgium at least three times each year for contact [61], possibly on additional occasions while in Europe for work [64] and, that the child would return to Australia during the Australian summer each alternate year [61]. Because these developments post-date the trial, self-evidently, when the logistics for these arrangements were considered, there was no discussion of pandemic related impediments for travel. The restrictions to travel and related expenses contained in the further evidence not only point strongly towards a different outcome but notwithstanding the strains and expense inherent in a re-trial, support that course as in the best interests of the child.BACKGROUND FACTS The parties commenced their relationship in early 2014. Each of them lived in Sydney and in about September 2014 they moved in together. X was born in 2016. Shortly after he was born, the mother’s parents and her sister came from Belgium and stayed with the parties for about three months. This was a difficult time during which the father spent much of his time at his work place. After a number of brief separations, the parties finally separated in April 2017. By agreement, the child who was then eight months old, lived with the mother and had regular time with the father. The father became concerned that the mother planned to take the child to Belgium to live and he commenced parenting proceedings to ensure that the child continued to live in Australia and to formalise the arrangements for his time with the child. Interim orders were made in 2018 and 2019 which enabled the child to spend time with the father as follows:a)Each Wednesday from 3.00 pm until 5.30 pm and each Saturday from 9.00 am until 12.30 pm;b) From 1 March 2019 until 1 May 2019, in addition to each Wednesday and Saturday (as set out above) for a full day from 9:00 am until 6.00 pm on a Saturday every third week with a view to transition into overnight stays subject to:i) The father having his own accommodation and the mother being provided a copy of the lease; andii) The father having suitable sleeping arrangements for the child which the mother will inspect. Notwithstanding that the father did not satisfy the conditions concerning his accommodation, he spent ten full days with the child, but not overnight. At the time of trial, the child was spending time with him each Wednesday and Saturday. At the time of trial, the father was 35 years of age. He hails from Queensland and moved to Sydney in 2002.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Had this evidence been placed before the primary judge, it compelled a finding that the mother’s proposals for the child’s time with the father could not be assured and that any prediction for face-to-face contact between the child and the father if the child lived in Belgium would be no more than mere speculation. In other words, the Court could not be satisfied as to when, how and with what frequency the child and the father might see each other. This in turn undermined the findings to the effect that the child and the father would maintain a meaningful relationship if the child moved to Belgium in 2022.CONCLUSION AS TO RELOCATION The conclusion that it was in the best interests of the child to relocate was a comparative conclusion made after weighing the merits and contraindications for it. An evaluation of the merits of a conclusion of preference ultimately depends on the reasons on which it rests. The failure to address the full effect of the evidence given by the single expert as discussed above and to then explain why it was or was not accepted and, to then weigh it along with other significant matters is an error in fact finding, the process of reasoning and renders the ultimate conclusion unsustainable. The same must be said about the approach taken to the father’s ability to afford the costs of spending time with the child provided for in the orders. That point is reinforced by the further evidence, which in and of itself requires that the appeal be allowed and a rehearing ordered. The consequence of this is that the relocation order must be set aside and the relocation issue be remitted for rehearing by another judge.Time in Australia By Ground 3(iii) it is asserted that the primary judge erred in relation to the orders as to the child’s time in Australia which gave the child less time with the father than the interim orders in operation at the time of trial. However, the ground and submissions made by the father failed to take into account that the father did not ask for orders as per the interim orders. Exhibit 13 of the trial exhibits, is a Minute of Order sought by the father in the event relocation was permitted and pending the child’s departure. The Minute proposes a different regime for time depending on the child’s age and distinguishes between the arrangements before the child turns five year years of age and thereafter. Because the child would shortly turn five, the focus of submissions was on the arrangement from when he is five years of age. In these circumstances, the father proposed:… b. Upon turning five years of age:i. Each Monday and Wednesday from 3pm (or the conclusion of school if applicable) to 7pm.ii. Each weekend, alternating as follows:A.Week 1: from 8am to 1pm on Saturday.B. Week 2: From 3pm (or the conclusion of school if applicable) on Friday to 9am (or before school) on Monday.iii. For a period of five nights, commencing at 9am on New Year's Day 2022, and a further seven nights commencing on 20 January 2022.iv. At other times as may be agreed between the parties. (Minute of Order tendered by the father on 11 February 2020)

Ratio Decidendi

Legal Principle Established

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