Denham & Newsham
[2021] FamCAFC 141
•6 August 2021
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 2018APPEAL 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.
IT IS NOTED THAT:
A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Denham & Newsham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ:
INTRODUCTION
On 23 April 2020, parenting orders were made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to the parties’ son, X (“the child”). The effect of those orders was to confer Mr Denham (“the father”) and Ms Newsham (“the mother”) with equal shared parental responsibility for the child, for the child to live with the mother and relevantly, she was restrained until March 2022 from taking the child to live in Belgium (Order 4). After that date the mother could take the child to live in Belgium (Order 3). Otherwise the orders provide for the child to spend time with the father while the child lives in Australia and for a different regime upon the child moving to Belgium.
When these orders were made the child was three and a half years of age. By agreement, he lived with the mother and he enjoyed good relationships with each of his parents. Whether it be in Australia or Belgium, there was no dispute that the child would continue to live with the mother. Even if the child moved to Belgium, the father, who was born, raised and worked in Australia, would not follow. If the mother was not able to take the child to live in Belgium, she would stay in Australia; she had applied for permanent residency and was confident it would be granted. Thus, the central controversy was whether it would be in the best interests of the child for him to leave Australia where he had always lived and to establish his permanent residence in Belgium. In order to answer that question, the issues raised in the case required consideration of the potential impact on the mother’s parenting if her desire to return to Belgium was thwarted and, if the child moved to Belgium, whether he would be able to enjoy and maintain a meaningful relationship with the father.
The primary judge was satisfied that the mother’s proposal was in the best interests of the child and that if the child lived in Belgium, provided the child spent time with the father as the mother proposed, he would be able to maintain a meaningful relationship with the father from Australia. The primary judge explained this conclusion thus:
91.In my view, the child’s best interests will be met by him being able to live with the mother and, if she elects to do so, for the child to live with her in Belgium. A key factor in my decision is the impact on the mother, both emotional and financial, if she is unable to relocate, but coupled with that, is my satisfaction that the child will be able to maintain a meaningful relationship with the father should the mother relocate. It is to the mother’s credit that she now proposes to delay her departure to enable more time for the father and child relationship to develop. The next two years will enable the relationship to further strengthen and enhance the prospects of the child adjusting to extended periods of separation but, should the mother’s application for permanent residency fail and should she be required to leave Australia earlier than expected, the child’s best interests will nevertheless be served by remaining with the mother. As already noted, it is not in contention that the child should live primarily with the mother.
By Notice of Appeal filed on 20 May 2020, the father appeals the orders in their entirety. This includes those orders that were made by consent, and orders, for example, as to equal shared parental responsibility made on his application. Given that the father proposed that some of these orders be remade, it is apparent that the Notice of Appeal overstates the scope of the appeal. Senior counsel who appeared for the father agreed this was the case and abandoned the challenge made to Orders 2 and 29–35. In reality, the father challenges the order as to relocation and, for so long as the child lives in Australia, the amount of time they have together. In the event the father does not succeed on his appeal against the relocation order, no challenge is made to the orders for time with the child between Belgium and Australia.
An Application in an Appeal filed by the father on 25 March 2021 to adduce further evidence in the appeal must also be considered. In support of this application, the father relied on his affidavit of the same date (excluding paragraphs 24–44). Those latter paragraphs address matters which would only become relevant if error was established, and it was appropriate to re-exercise rather than remit the proceedings for rehearing. Although the father initially proposed re-exercise, in opening addresses senior counsel for the father informed us that the father wanted the proceedings remitted for rehearing by a judge other than the primary judge. The balance of the affidavit concerned the COVID-19 pandemic and restrictions on international travel imposed by Australia and Belgium.
By her Response to an Application in an Appeal filed on 9 April 2021, the mother opposed the father’s application to adduce further evidence. The mother said in her affidavit filed in support of her response that she did not agree with everything in the father’s affidavit, however, she elected to not take issue with the facts and matters upon which he relied. The mother agrees that if error is established the proceedings should be remitted.
The application to adduce further evidence engages s 93A(2) of the Act, which gives this Court a discretion to receive on appeal, further evidence upon questions of fact. The purpose of the further evidence here is to demonstrate that the orders under appeal are erroneous and to secure a rehearing. For the evidence to be admitted, the father must demonstrate that the further evidence is likely to produce a different result, and secondly, that it is in the best interests of the child to have a new hearing (CDJ v VAJ (1998) 197 CLR 172). For the reasons which follow, at the commencement of the hearing of the appeal, the father’s further evidence was admitted.
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; and
ii) 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.
The mother was then 35 years of age. She was born in Belgium and, having completed an undergraduate degree there, she moved to Country G. Since then, the mother has lived and worked in the Country F, Country H and Country J. Following this, the mother returned to Belgium for one year and, in July 2013, she came to Australia where she planned to remain for about 12 months.
When the mother lived in Country H and Country J, she returned to Belgium every two to three months. After the mother arrived in Australia, she returned to Belgium annually and, twice on two occasions. With the father’s agreement, the child has been to Belgium and holidayed with the mother in Asia.
The mother and child live in accommodation she rents in Suburb E in Sydney. She works full time as a professional with an international firm and anticipates that she will be able to transfer her employment to Belgium. While the mother is at work, the child attends day care which costs $1,340 per fortnight. It was agreed that in lieu of child support, and in accordance with the 2018 orders, the father would reimburse the mother for half the day care fees. However, his payments have been irregular and at the commencement of the trial, about $7,000 was outstanding. The father paid $4,000 during the trial.
The father’s parents live in Queensland and the mother’s parents live in Belgium. The mother has re-partnered albeit she and her partner do not cohabit. The mother’s partner moved to Australia in 2014 and, if she moved to Belgium, her partner will join her.
An order was made on 18 October 2019 for the appointment of a single expert. Dr Q, who is a psychologist was duly appointed. In her report dated 31 January 2020, the single expert recommended:
159.It is recommended that the parties work on improving their communication so they can more effectively share parental responsibility. They would be advised to consider engaging a therapist who specializes in family law to explore more effective and child focused communication strategies and also to deal with unresolved issues including setting appropriate post-separation boundaries, especially for [the father].
160.It is recommended that [the mother] continues to live in Sydney and if any relocation is considered, that it occurs when [the child] is much older.
161. It is recommended that [the child] continues to live with mother.
162. It is recommended that [the child] spend time on a weekly basis with his father. It is recommended that the time [the child] spends with his father on Saturdays be extended to the full day. In terms of [the child’s] time being extended to overnight time, it is recommended that [the father] have premises that can suitably accommodate [the child] even though that may not necessarily be congruent with [the mother’s] expectations.
163. It is recommended that any Orders made for [the child] spending time with [the father] be contingent on [the father] being present to provide responsible care for [the child]. If this is the case, is recommended that overnight time commence by the time [the child] is 4 years old. It is recommended that the time [the child] spends with his father be increased incrementally to the point where he spends overnight time on alternate weekends with [the father]. It is recommended that this begin with Saturday evening and then progress to include Friday evening. Ultimately, Sunday evening also would be recommended providing [the father] can provide responsible care for [the child] on Sundays. It is recommended that, in the alternate week, [the child] spends at least one afternoon with his father and if [the father] has suitable accommodation that be extended to overnight once [the child] commences school.
164. It is recommended that, special occasions and school holidays be shared between the parties. The parties may need to be cognizant of the fact that, as their extended families do not live in Sydney, that may impact on the arrangements that are made for special occasions such as Christmas and Easter. It may also mean that longer periods are granted, for example to [the mother], to travel to Belgium for the midyear break or over the Christmas period to be with her family.
165. It is recommended that the parties use the My Family Wizard communication app.
166.It is recommended that there be no denigration of significant others or any discussions pertaining to the adult dispute with [the child].
167.It is recommended that the parties and [the mother’s partner] attend a Circle of Security parenting course.
(Family Report dated 31 January 2020, pp. 70–71)
THE GROUNDS OF APPEAL
Before considering the grounds in detail, it needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
No challenge is made to the statement of the principles by which the decision was reached, and it is to the application of those principles and asserted errors of fact that the appeal is addressed. As the primary judge said of the application of Part VII of the Act to a relocation case:
25.A parenting case involving relocation is just another parenting case. There are no special tests that apply. For instance the mother does not have to establish a compelling reason for wishing to relocate. Nor is the enquiry one that is directed to whether or not the mother should be ‘permitted’ to relocate. The best interests of the children remain the paramount though not the sole consideration. Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.
(Footnotes omitted)
The father presented seven grounds of appeal, some of which the mother rightly criticised as lacking the particularity needed to disclose and establish error. However, the grounds were refined somewhat in the father’s Summary of Argument filed on 30 October 2020 and, as the mother’s Summary of Argument filed on 10 December 2020 demonstrates, she understood the challenges raised against the judgment. As this appeal raised serious issues about the welfare of a child and it was not procedurally unfair to the mother to permit the father to rely on the refined grounds, the appeal proceeded accordingly. This distilled the challenges raised against the orders to assertions that the primary judge erred:
·by failing to take into account material facts and as to the attribution of weight, such that the result is against the evidence (Ground 1, 2, 3(ii) and 4);
·by giving insufficient consideration to evidence by the single expert (Dr Q) and inadequate reasons (Ground 3); and
·by making erroneous findings of fact (Grounds 5, 6 and 7).
Nonetheless there is considerable overlap within these groups and the grounds of appeal are best considered by the topic (or fact) to which the challenges are raised. In effect, to adopt the approach taken in oral addresses.
The Single Expert
Grounds 1, 2 and 3 overlap in relation to the approach taken to evidence by the single expert. Because of the significance of this evidence, it is convenient to deal with these issues first and conjointly. By way of background, the single expert was appointed to investigate and report on matters within her expertise and relevant to the dispute. As to relevance, the primary judge settled the significant issues for determination, of which there were a number to which the single expert evidence related. In particular [23]:
·the nature of the father’s relationship with the child and his capacity to provide overnight time and significant and substantial time with the child;
·the likely effect on the child of being separated from the father; and
·the likely impact on the mother on her remaining in Australia contrary to her wishes.
By reference to evidence given by the single expert, the mother conceded that the child and the father have a loving relationship and the primary judge was satisfied that this relationship was “secure and loving” and “[t]he child was observed to be delighted to see the father and their interaction was noted to be warm and affectionate” [53]. So much is uncontroversial in the appeal.
The foci of the challenges made in relation to the evidence given by the single expert concerns the effect on the child of being separated from the father and whether the mother’s proposal would enable the child to have a meaningful relationship with the father. In relation to these issues the primary judge said:
59. If the child relocates he will lose the opportunity for weekly physical contact with the father and the father will not be able to be involved in school or sporting activities that parents would normally attend. However, what the Act requires the Court to consider is the benefit to the child of having a meaningful relationship with both parents not an optimal relationship. The mother’s proposal would enable the child to spend time with the father during three extended periods each year and an additional extended period each other year as well as engage each week by electronic video means. If the father travels to Belgium at other times, e.g. as a result of his occupation, I am confident the mother would agree to additional time given her propensity to do so in the past.
60. The child already has a secure attachment to the father and he will be 5 ½ by the time the mother proposes to relocate. While the opportunities for physical interaction will be severely reduced, I am satisfied that the proposal of the mother for the child and father to spend time together and communicate at other times will enable the child to maintain a meaningful relationship with the father.
(Footnotes omitted)
Having recommended against relocation, the single expert expressed the opinion that if relocation was to be considered in the future, “it occurs when [the child] is much older” (Family Report dated 31 January 2020, paragraph 160). The single expert explained:
Any actions which sever a child’s regular contact with the parent or interrupt the continuity of care provided by a parent are unwise and stand to have a detrimental effect on the strength of a child’s attachment relationships. For a child of [the child’s] age whose attachment relationships have been through the formative stage, it is extremely important that those relationships he has formed with both parents consolidate. A parental relocation internationally especially for a child of the age of [the child] poses a very real risk to the parent/child relationships fracturing even when the parents’ intentions and those of significant others are otherwise. This can have harmful effects on the psychological wellbeing of a child who may come to egocentrically believe that it is their fault that they do not have both parents in their lives or they may find themselves fantasizing about the absent parent.
(Family Report dated 31 January 2020, paragraph 124)
Furthermore, she gave evidence that the child was too young to sustain significant separations from his father (Family Report dated 31 January 2020, paragraph 144) and that:
…significant and lengthy separations of young children and their parents often result in once trusted figures being approached by children warily and anxiously. It is not uncommon for children in such situations to either respond indifferently or with inconsolable distress on reunion...
(Family Report dated 31 January 2020, paragraph 157)
The single expert continued:
Should [the mother] relocate with [the child], the loss for [the child] from not spending time on a regular basis with his father and his paternal extended family is likely to have enormous impact on those relationships. Potentially, the relationships with [the father] and his family would be watered down and could result in them slowly drifting out of his life. Already, [the mother] considers [the child’s] relationship with his father as being similar to that of a “favourite uncle” and one could speculate that there would be little likelihood of [the father] becoming any more than a distant relative to [the child] should he live in Belgium.
(Family Report dated 31 January 2020, paragraph 145)
The single expert was cross-examined and, gave evidence that for children, “their idea of time is very different to an adult’s concept of time” (Transcript 12 February 2020, p.185 lines 2-3). This prompted questions about a child’s capacity to form memories and the age at which a child might be expected to sustain memories and connection to an absent parent. The single expert gave evidence that:
[COUNSEL FOR THE MOTHER]: So there needs to be more frequency so the child can build up that relationship and the memory of the absent parent, if I can use that phrase? ---
[SINGLE EXPERT]: Absolutely, bearing in mind developmentally that you know, a week for a child is a very different experience than a week for an adult, yes.
HER HONOUR: Doctor, the ability of a child to hold that sort of build up and retain the memory of the absent parent I assume increases as the child gets older?---
[SINGLE EXPERT]: Absolutely, yes.
HER HONOUR: So that a child of three may have difficulty with that but a child of five may be better at doing that. Would I be right in assuming that?---
[SINGLE EXPERT]: Well, I think certainly that that is the case, and you know, it’s probably more into the latency phase of a child’s life when they are 8 or 9 that they start to really be able to kind of have memories that can sustain. I guess one of the reasons why, you know, for very young children up until school age, we do recommend weekly – time weekly, so that, you know, a parent doesn’t get lost in a child’s world.
[COUNSEL FOR THE MOTHER]: So what you’re really talking about is the development of what we know as being the attachment theory and secondary attachments to people like the father or grandparents, and even teachers in some respects; correct?---
[SINGLE EXPERT]: Well, yes. And attachment is dependent on – on regular, healthy - - -
[COUNSEL FOR THE MOTHER]: Time, yes?---
[SINGLE EXPERT]:- - - interaction, yes.
[COUNSEL FOR THE MOTHER]: And so what you’re talking about is, sometimes it’s controversial, but usually, by about four, a child is usually ready to start spending overnight time with the father in this particular case. You would agree with that proposition?---
[SINGLE EXPERT]: Well, I think that there are some – some criteria that I may have kind of spelt out in the report.
[COUNSEL FOR THE MOTHER]: You started to, yes?---
[SINGLE EXPERT]: Yes. That you develop – from the time a child is three or four onwards, depending on how developmentally mature a child is. But they’re to do with language, they’re to do with – with children being able to self-soothe…
(Transcript 12 February 2020, p.185 lines 5–36)
This is powerful evidence which weighed against relocation and, if relocation was contemplated, that it should not take place before the child was eight or nine years of age. If it did there was a very real risk that the child’s relationship with the father would fracture. It is the father’s contention that the primary judge failed to take this evidence into account. In the alternative, that it was given insufficient weight and the orders made are contrary to this evidence.
As recorded above, the primary judge said of the single expert’s opinion against relocation that the single expert focussed on the child retaining an optimal rather than meaningful relationship with the father [89]. However, the legislation speaks of a “meaningful rather than optimal relationship” and, although aspects of the evidence given by the single expert assumed some prominence, the primary judge observed that she was not bound by it (Hall and Hall (1979) FLC 90-713).
In an obvious reference to the single expert’s evidence concerning a child’s development of memory, the primary judge said:
78.The child is very young at this stage and will only just have commenced formal schooling by the time the mother proposes to relocate to Belgium. I do not expect that the changes in the child’s life are likely to be so significant between now and March 2022 that they are impossible to anticipate. It is not in dispute that the child currently has a close and secure attachment to the father. However, while he has met his developmental milestones as described by the family report writer, his ability to retain his memory of the father during significant interruptions will be enhanced by a further period of two years of regular and frequent time together.
It can be seen that by this statement, the primary judge accepted the single expert’s opinion that relocation should not take place until the child was older and had acquired the developmental capacity to cope with significant gaps between face-to-face contact with the father. In this respect the approach adopted is consistent with Muldoon & Carlyle (2012) FLC 93-513 (“Muldoon”), namely:
104. It is not in doubt that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight. Departure from it in such circumstances requires careful consideration; however the ultimate decision must be that of the trial judge: Friscioni & Friscioni [2010] FamCAFC 108; Hall and Hall (1979) FLC 90-713 at 78,819; D & P [2006] FamCA 170; Andrew & Delaine [2009] FamCAFC 182, and Hannigan & Sorraw [2010] FamCAFC 257 at [136].
However, the single expert went further than to simply recommend that relocation not take place immediately and did not give evidence that the child would develop the memory capacity to sustain significant gaps of contact if there was an additional two years of regular contact with the father before relocation. Her evidence was to the effect that he would not and if the relocation proceeded before the child developed that capacity there was a real risk that the child’s relationship with the father would fracture and thus relocation should not be considered before the child was eight or nine years of age. This evidence was of prime importance to the father’s case. Even if it was not, it was of signal importance to the central question and had to be considered. Thus as Muldoon makes plain, if the primary judge determined that for whatever reason this evidence should not be accepted, it was necessary to explain why not. Alternatively, to show that it was accepted but to explain why other more pressing aspects of the child’s welfare meant that notwithstanding the damage which would be wrought to the child’s relationship with the father, relocation was in the child’s best interests. This did not occur and the challenges raised by Grounds 1, 2 and 3(ii) against the approach taken to the single expert evidence have been established.
Practicalities of contact
Grounds 1 and 2 also concern findings as to the father’s ability to afford the costs of contact in Belgium and when the child visits Australia. The primary judge was satisfied that if the child’s departure for Belgium took place when he was five and a half years of age, the mother’s proposal for contact between the child and the father would enable the child to maintain a meaningful relationship with the father [60]. The mother’s proposal being that the father have three periods per year in Belgium (after the child turned six) during the Belgium summer, autumn and Easter school holidays and in Australia each alternate Christmas holiday for two weeks. Some changes would be made when the child turned 13 but the essential frequency and duration for contact would continue. Because the father’s work had seen him taken to Europe in 2014, 2015, 2017 and 2018, the primary judge contemplated that he may be able to spend more time with the child in Belgium than the mother formally proposed but which she would accommodate.
It is convenient to note at this juncture that although the father seeks to challenge findings as to the mother’s support for the child’s relationship with the father, the unarguable facts are that she had cooperated with the father and even though the child was a baby when the parties separated he had a lovely relationship with the father. This was to both parents credit and the finding was compelled by the evidence.
In any event, the mother proposed and she was ordered to pay for her and the child to travel to Australia and half the father’s return airfares to Belgium thrice annually. The primary judge found that the mother could afford to do so [62] as could the father [63]. It is accepted that the finding that the mother earned $125,000 per annum is wrong and her income was some $178,000. Furthermore, the mother’s financial circumstances living in Australia were somewhat superior to those described in the trial reasons and she was in well paid and secure employment. However, for this error to be relevant it needed to be material and it was not established that it was.
There is no suggestion in the trial reasons that the primary judge was satisfied the child could have a meaningful relationship with the father if their face-to-face contact was anything less than what was ordered. No doubt, it was well understood, that a finding to that effect would have been inconsistent with the expert evidence. Be that as it may, the father asserts that the finding as to his capacity to meet the costs involved in this amount of travel is contrary to the evidence. As we will now explain, when the consequences for him from having to close his business to travel to Europe are taken into account, the evidence points in the opposite direction to the findings.
Including a two to three hour stopover in the Middle East, the flight between Sydney and Belgium is about 25 hours. During the Australian summer, when the mother and child would come to Australia, airfares range from $2,000 to $2,500 return [61]. There was no evidence as to the cost of flights on the occasions the father would travel to Belgium and it seems that the trial proceeded on the basis that the cost of airfares during the Australian summer would apply across the board.
The orders anticipate that in Belgium the child would spend time with the father over a four week period in the summer school holidays, for one week during the autumn school holidays and two weeks at Easter. When the trips to Australia are taken into account, this equated to the father spending seven weeks of contact with the child in Belgium in odd numbered years and nine weeks between Australia and Belgium in even numbered years. The father does not have family or connections in Belgium and it was understood that in Belgium he would require rental accommodation for him and the child, the costs of which were his responsibility.
The father is a self-employed craftsman. He is a sole trader who works alone and operates from rented premises at Suburb C in Northern Sydney. The mother agreed with the proposition that if the father did not work, he would not be paid and his goodwill and client base would diminish. When major events take place he is at his busiest and his busiest times are late December and mid-January. These periods of intense activity have already interfered with the father’s capacity to spend time with the child and the mother accepted that if the father did not work during the lead up to what is the biggest event of the year, his business would suffer. As these busiest times coincided with the child’s biannual trips to Australia, this meant either that the father would have to not work on the event or significantly curtail his time with the child.
The father lives above his work premises and the primary judge agreed with the mother that his living arrangements were unsuitable for the child to stay overnight. For example, the father sleeps on a blow up mattress, he does not have a separate kitchen and there is machinery everywhere. Since 2018, provided the father had separate accommodation which was satisfactory for the child to stay overnight, he could do so. Senior counsel for the mother described the father’s living arrangements as being a life style choice. Even if it was, it was not a high earning lifestyle. However, the father’s desire to have the child overnight is well documented and if the solution of him renting separate living quarters could be easily afforded, it might be inferred he would have done so. However, he had not and consideration of his financial circumstances pointed towards him not being able to afford it.
By reference to the father’s Financial Statement filed on 10 January 2020, he disclosed a personal taxable income of $78,000 [5]. He disclosed personal weekly expenses of $400 (which did not include electricity or other day-to-day expenses). Nevertheless, the primary judge did not accept the father’s evidence that his income only exceeded expenses by $20 per week. His evidence that his cash flow was either “feast or famine” was accepted and it was accepted that the flow of his income was unreliable [66]. It was common ground that the cost of living in Sydney is high [67] and, as has already been mentioned, the father had fallen behind in reimbursing the mother for his share of the day care costs. Otherwise, there was no evidence the father had savings and his evidence was that he did not. He owned a boat which he valued at $10,000 and his business. Through the business the father owned equipment and stock, the combined value of which he thought was $150,000, albeit he did not believe he would achieve that amount through a quick sale. In any event, as these were his tools of trade, he could not sell his tools to fund international travel and maintain his business.
In order to establish the point that the father’s financial position was at best modest and he could not be relied on to pay child support, the father was cross-examined about his ambition that the child attends one of Sydney’s more expensive private schools. He ultimately agreed with the proposition advanced for the mother that he could not afford the school fees. Of course, the cross-examination was undertaken assuming his current income and did not factor in the financial effects of him closing the business for a minimum of seven weeks each year to visit the child in Belgium and, in alternate years during his busiest period. The cross-examination is set out below:
[COUNSEL FOR THE MOTHER]: And that appears in your affidavit at which paragraph sir?--- .....
Sir just very briefly can I close off one topic. I note you didn’t answer the last question, but it’s a matter for submissions. Sir, you’ve made a representation that you can afford for [the child] to go to R School, do you remember making that representation back in October 2019?---
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: That’s just not possible sir, on your evidence about your financial position, is it?---
[THE FATHER]: That ..... I’ve got three very influential customers that donate quite a lot of money to that school and - - -
[COUNSEL FOR THE MOTHER]: And you think they can get [the child] into that school do you?---
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: Is that a realistic proposition you’re putting to her Honour?---
[THE FATHER]: It was a suggestion that I made to [the mother].
[COUNSEL FOR THE MOTHER]: You would know sir that the fees for R School for a grade six student is about $20,000, slightly under?---
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: You can’t afford that can you?---
[THE FATHER]: At this current state, no.
[COUNSEL FOR THE MOTHER]: And in fact for Year 12 it’s about $26,000?---
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: And that’s just the tuition fees, that has nothing to do with any other costings that students might add?---
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: You couldn’t possibly in year 2020 afford those type of fees could you?---
[THE FATHER]: That’s speculation isn’t it?
[COUNSEL FOR THE MOTHER]: No. Sir, you financial position does not enable you to send this child to R School?---
[THE FATHER]: At this current time?
[COUNSEL FOR THE MOTHER]: Yes?---
[THE FATHER]: At this current time no. But you’re talking at ten years in the future.
(Transcript 10 February 2020, p.91 line 24 to p.92 line 10)
These matters were highly relevant to the father’s capacity to meet the costs of spending time with the child at the frequency and for the duration ordered. Given the serious consequences for the child’s relationship with the father if this level of contact was unaffordable, the evidence as to the father’s financial circumstances demanded close analysis. We agree with the submission by the mother that the father’s evidence as to his financial circumstances in some respects lacked detail. Although this might have enabled the primary judge to say that a conclusion could not be reached as to the entirety of the father’s financial circumstances and thus his capacity to afford his share of the costs of contact, in the face of the other evidence, the identified gap in his evidence did not permit the findings made at [63]. Furthermore, before those findings were made, the financial consequences of the father having to close his business for the time he was abroad and when the child visited at Christmas had to be considered.
The effect of these matters is that the primary judge failed to take into account relevant considerations in relation to the father’s capacity to spend time with the child and the conclusion that the child would spend time with the father as provided for in the orders was made on an incomplete consideration of the evidence and cannot stand. This aspect of Grounds 1 and 2 has also been established.
Restrictions on international travel
Turning now to the further evidence, this comprises various documents issued by the Australian Department of Home Affairs concerning border restrictions imposed by Australia in response to the pandemic and similar documents issued by Belgium. This evidence established that Australian citizens (the father and the child) and permanent residents are prohibited from leaving Australia unless they are given permission. The list of circumstances which might secure permission does not obviously identify travelling to spend time with a child who lives abroad. The only category which might apply is for travel on compassionate or humanitarian grounds. On the assumption (which is not made) that the father obtained permission to travel as often as the orders provide, on return he must quarantine at a designated facility in his port of arrival for 14 days. The cost of quarantine would be his responsibility. Thus, the father would be unable to work for an additional six weeks annually.
The Australian government advises against travel to Belgium and Belgium has prohibited non-essential travel for persons whose primary residence is located in another country. This ban applies to the father and requires consideration of the types of travel that are regarded as essential. The list includes travel for compelling family reasons and it is inferred that provided the father satisfied health requirements, he may be given permission to enter Belgium. However, as the documents issued by both countries demonstrate, the situation is fluid and the conditions are subject to change. Depending on the state of the pandemic, relevantly, in Australia, on arrival in Belgium the father might be required to quarantine.
Furthermore, assuming that the mother and child were given permission to enter Australia they must quarantine on arrival for two weeks.
Returning to the documents issued by the Australian Department of Home Affairs, these record that the availability of regular air travel should not be assumed and, in effect, that flights have reduced.
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)
However, the orders provide that until the child is six, he spend time with the father:
·each Wednesday from 2.00 pm until 6.00 pm (of from after school);
·each Saturday from 9.00 am to 6.00 pm (for not less than three months);
·assuming that the father has obtained suitable accommodation (as defined by Order 18):
(a)for six months, each alternate weekend from 9.00 am Saturday to 9.00 am Sunday and;
(b)thereafter, each alternate weekend from 9.00 am Saturday until 6.00 pm Sunday.
Alternate weekend contact would increase again upon the child attaining six years and it is not until the child turns 13 years of age, that he would have more than five consecutive days during school holidays with the father. In fashioning these orders, the primary judge was satisfied that substantial and significant time would be in the child’s best interests [92].
As to those arrangements, the primary judge said:
93.…I have had regard to the various provisions of each party’s proposed orders and ultimately fashioned detailed orders incorporating parts from each party’s proposals which I consider to be in the best interests of the child. Neither party made submissions, of any substantial kind, about the benefits or detriments of adopting any particular provision in their respective proposed orders (other than as related to the significant issues for determination in this case).
Detailed submissions were made to the primary judge about the different orders proposed while the child lived in Australia. However, when the primary judge heard that counsel had not yet conferred in relation to their clients’ proposals and were not in a position to provide a document which analysed the differences, the submissions were foreclosed. Counsel were directed to provide that document, which may or may not have been done. Either way, we do not have it and the trial did not resume so as to take further submissions on the point. It is not clear why this did not happen and no criticism is made of the primary judge for the situation which unfolded. However, on the face of the trial record provided on the appeal, the confluence of events appears to have deprived the father of the opportunity to complete his submissions on the point and those that were made being overlooked.
CONCLUSION AS TO TIME IN AUSTRALIA
Given that the orders are structured quite differently from the orders which the father placed before the Court and do not go as far as the single expert recommended, the effect of the father being unable to complete his submissions is apparent. This appears to have directly affected the trial reasons and possibly explains why these matters were not dealt with. Whatever the reason, they needed to be. Ground 3(iii) is made out.
Before us, it was agreed that in the event the father was successful in this challenge, the orders as to time would be set aside and, be remade as interim orders. Thus, there would be a platform for ongoing contact between the child and the father and, the Court could reconsider those interim arrangements in advance of the remitted rehearing. We will order accordingly, albeit with some modification taking into account that the orders operate in stages and some will have passed.
COSTS AND OTHER GROUNDS
Because there is to be a rehearing, we do not propose to discuss the balance of the challenges made concerning the effect on the mother of her inability to take the child to live in Belgium. True it is that her financial circumstances were misstated but her genuine desire to return to her family and life in Belgium cannot be seriously doubted and the primary judge’s findings to the effect that the mother would be saddened if she could not return were undoubtedly open. As to how these matters should be evaluated and weighed along with those factors relevant to the best interests of the child should be dealt with at the rehearing and without further comment by this Court.
Although we sought submissions as to costs of the appeal in order to save the parties the trouble and expense of addressing this issue later, the father sought the opportunity to address costs following publication of our reasons for judgment. Reluctantly we agreed and directions will be made for written submissions on a reasonably tight timetable.
As we indicated at the hearing, assuming there was not an order for costs, we were minded to grant costs certificates for the appeal and any rehearing. Our views have not changed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie- Wallace, Ryan & Aldridge. Associate:
Dated: 6 August 2021
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