Dudney & Lisson
[2021] FamCA 248
•29 April 2021
FAMILY COURT OF AUSTRALIA
Dudney & Lisson [2021] FamCA 248
File number(s): PAC 1895 of 2018 Judgment of: FOSTER J Date of judgment: 29 April 2021 Catchwords: FAMILY LAW – CHILDREN – best Interests – relocation – where application by mother to relocate the child’s primary residence from Sydney to a town on the North Coast of NSW – where orders made by consent for equal shared parental responsibility – where orders made by consent for the child to live with the mother – where parties largely agree on orders if the mother is permitted to relocate or not – where consideration of applicable principles – where consideration of the child’s best interests – where orders made allowing the mother to relocate the child’s residence at the end of the current school year.
FAMILY LAW – PRACTICE AND PROCEDURE – DISQUALIFICATION – where application for disqualification on the basis of apprehended bias – where discussion of applicable principles – where basis for application not made out – where application dismissed
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 65DAA, 65DAA(5) Cases cited: Adamson [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160
Antoun v The Queen (2006) 224 ALR 51
Asher & Wilkinson [2020] FamCAFC 44
B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92-755
Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
D & SV (2003) FLC 93-137
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Franklyn & Franklyn [2019] FamCAFC 256
G & C [2006] FamCA 994
Malcolm & Monroe and Anor (2011) FLC 93-460
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morgan & Miles (2008) 38 Fam LR 275; (2007) FLC 93-343
Reeves & Grinter [2017] FamCAFC 19
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128
Sayer & Radcliffe [2012] FamCAFC 209
Taylor & Barker (2007) 37 Fam LR 461
Number of paragraphs: 169 Date of last submission/s: 29 March 2021 Date of hearing: 20, 21 and 22 January 2021 Place: Parramatta Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Mark Macdiarmid Family Law Specialist Counsel for the Respondent: Mr Schonell SC with him Ms Druitt Solicitor for the Respondent: John R Quinn & Co ORDERS
PAC 1895 of 2018 BETWEEN: MR DUDNEY
Applicant
AND: MS LISSON
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
21 JANUARY 2021 AND 29 APRIL 2021
ORDERS MADE ON 21 JANUARY 2021 THAT:
1.The Application for disqualification is dismissed.
ORDERS MADE ON 29 APRIL 2021 THAT:
BY CONSENT:
2.That the father and the mother each have equal shared parental responsibility for the child X born … 2015 (“the child”).
3.That the child live with the mother.
IT IS FURTHER ORDERED:
4.That the mother be permitted to relocate the child’s residence to B Town area at the conclusion of the 2021 school year.
5.That the child spend time with the father until the commencement of the school year in 2022 as follows:
(a)During school terms from start of term 2, 2021 each alternate weekend from after school on Friday until the start of school on Monday commencing on the second weekend of each term and for the purpose of this order the father will collect the child from school or at 3.00 pm from the mother’s residence if a non-school day at the commencement of time and deliver the child to school or at 9.00 am to the mother’s residence at the conclusion of time if a non-school day.
(b)During school term from after school on Thursday to before school Friday each week.
(c)For periods of five nights as agreed in each school holiday period and failing agreement, for the first five nights commencing from the first day of each gazetted holiday period, with the mother delivering the child to the father’s residence at the commencement of time and the father delivering the child to the mother’s residence at the conclusion of time.
(d)On the Father’s Day weekend from the conclusion of school on the Friday of the Father’s Day weekend until the commencement of school the following Monday.
(e)For a period of not less than three hours on the child’s birthday as agreed in writing or failing agreement from the conclusion of school until 6.15 pm (in the event the child’s birthday falls on a school day) or from 1.00 pm to 4.00 pm in the event the child’s birthday falls on a weekend with non-school changeovers to be at the mother’s residence.
(f)From 12.00 pm on 23 December 2021 until 12.00 pm on 30 December 2021 and from 7 January to 15 January and 21 January to 27 January, with changeover to occur by agreement between the parties but failing agreement the mother shall deliver the child to the father’s residence at the commencement of time and the father shall deliver the child to the mother’s residence at the conclusion of time.
(g)That the child’s time with the father shall be suspended on the Mother’s Day weekend.
(h)At such further time as the parents may from time to time agree between themselves in writing.
6.That the child spend time with the father from the commencement of the 2022 school year as follows:
(a)Each fourth weekend during school terms in Sydney commencing at 7.00 pm on Friday and concluding at 5.00 pm on Sunday on a weekend agreed between the parents and failing agreement commencing on the fourth weekend of each term with changeovers to take place at the father’s home.
(b)Commencing on the second weekend of each school term and then each fourth weekend thereafter in B Town area commencing after school on Friday and concluding at the commencement of school on Monday on a weekend agreed between the parents and failing agreement commencing on the second weekend of each term, and for the purpose of this order the father will collect the child from school at the commencement of time and deliver the child to school at the conclusion of time.
(c)Such other weekends in B Town area upon the father giving the mother four weeks' notice of his intention to spend time with the child to a maximum of one extra weekend per term.
(d)On Father’s Day weekend in accordance with order 6(a).
(e)For a weekend in accordance with order 6(b) on the weekend closest to the child’s birthday in B Town area.
(f)That the father’s time with the child be suspended on the Mother’s Day weekend.
(g)For one half of the Term 1, 2 and 3 school holidays as agreed between the parents and failing agreement the child shall spend time with the father during the first half of the Term 1, 2 and 3 school holidays from 12.00 pm on the first day of the school holidays until 12.00 pm on the midpoint day of the school holidays and changeover shall occur at Sydney Domestic Airport at the commencement of time and at either C Town Airport or D Town Airport at the conclusion of time.
(h)During the Term 4 school holiday period the child spend time with the parents as follows:
(i)Commencing in 2022 and each even ending year thereafter:
A.With the mother from after school on the last day of term until 12.00 pm on 27 December with changeover to occur at Sydney Domestic Airport at the conclusion of time;
B.With the father for a 17 night period from 12.00 pm on 27 December until 12.00 pm on 13 January with changeover to occur at either C Town Airport or D Town Airport at the conclusion of time; and
C.With the mother from 12.00 pm on 13 January until the commencement of school term.
(ii)Commencing in 2023 and each odd ending year thereafter:
A.With the father from 12.00 pm on the first day of the school holidays until 12.00 pm on 27 December with changeover to occur at Sydney Domestic Airport at the commencement of time and at either C Town Airport or D Town Airport at the conclusion of time;
B.With the mother for a 17 night period from 12.00 pm on 27 December until 12.00 pm on 13 January with changeover to occur at Sydney Domestic Airport at the conclusion of time; and
C.With the father from 12.00 pm on 13 January until 12.00 pm on the day before the commencement of school term with changeover to occur at either C Town Airport or D Town Airport at the conclusion of time.
(iii)At such further time as the parents may from time to time agree between themselves in writing.
Collection/return of the child during time spent with father
7.That changeover occur by agreement between the parties, but failing agreement as follows:
(a)That except as otherwise provided by these orders, when the child is spending time with the father in Sydney the mother shall deliver the child to and collect the child from the father’s residence at the commencement and conclusion of the child’s time with the father.
(b)That except as otherwise provided by these orders, when the child is spending time with the father in B Town the mother shall deliver the child to and collect the child from the father at C Town Airport at the commencement and conclusion of the child’s time with the father.
Child’s extra-curricular activities and/or sporting activities
8.That in relation to the child’s extra-curricular activities and/or sporting activities:
(a)The mother shall provide the father with the details of the child’s extra- curricular activities.
(b)The father shall deliver and collect the child to and from any of his curricular activities or sporting activities as agreed upon between the parents when the child is spending time with the father.
(c)That except as agreed between the parents in writing each parent is hereby restrained from enrolling or registering the child in any sporting or extra- curricular activities that would take place or be scheduled to take place when the child would be in the care of the other parent under these orders.
Telephone communication
9.That the father have telephone and FaceTime communication with the child at all reasonable times and that each parent cause the child to telephone the other parent at least twice per week when the child is on holidays with that parent.
Forwarding correspondence/SMS/gifts, etc to the child
10.That the father be at liberty to forward SMS, letters, email, mail and any items to the child and that the mother hand same to the child.
School reports, circulars, etc
11.That the mother and father be at liberty to approach the child’s school to obtain copies of all school reports, circulars and any other document relating to the child’s schooling.
School functions, activities, sporting events, etc
12.That each parent be at liberty to attend the child’s school functions, activities and events that allow for parental attendance including but not limited to concerts, plays, sporting, open days, excursions, fetes, speech nights, assemblies, parent/teacher interviews, canteen duties and social functions.
Telephone number and address where the child will be living
13.That the father and the mother each provide to the other in writing a telephone number and address during periods when the child lives with or spends time with either parent during holiday time at least seven days prior to the holiday time.
Change of residence
14.That in the event that either parent moves from where they live that parent will notify the other two weeks prior to such move of any change of address and telephone numbers where that parent can be reached.
Child’s medical information
15.(a) That each parent inform and keep the other informed at all times of the child’s health and/or health related issues, and in the event that the child is required to undertake a medical procedure, consult with the other as soon as is practicable.
(b)That each parent inform the other in writing as soon as practicable of any specialist medical appointments (but not general medical general practitioner appointments) including appointments with any dentist or other health professional and provide the names, contact telephone numbers and addresses of all treating health care professionals attended by the child.
(c)That each parent provide to the other a copy of any report prepared by any such specialist medical consultant or relevant health professional within seven days of receipt of same.
(d)That in the event that the child is involved in a medical emergency such parent shall notify the other immediately and provide details of the health care professional or medical facility that the child attends.
Non-denigration
16.That neither parent denigrate the other or members of the other’s family to the child or in the presence of the child or at all.
Removal of the child from the Commonwealth of Australia
17.That pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) each parent be at liberty to travel outside of the Commonwealth of Australia with the child during the time that that child is living with or spending time with that parent (or for such other period as agreed between the parents in writing) provided that:
(a)the child is not to be taken outside the Commonwealth of Australia into a country or jurisdiction that is:
(i)not a convention country listed in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986;
(ii)classified by the Department of Foreign Affairs and Trade as “Level 2 – Exercise a high degree of caution” or higher at the date of travel;
(b)the parent intending to travel with the child provides to the other four weeks written notice of his or her intention to travel;
(c)the parent intending to travel with the child provides to the other four weeks prior to such travel a detailed itinerary of the proposed travel (including details of the departure and return dates, destinations, flight numbers, methods of travel and where the child will be staying, emergency contact numbers, copies of documents sufficient to demonstrate that the child and the travelling parent has paid for return tickets, and at least one telephone contact number for the other parent to communicate with the child during the absence); and
(d)the travelling parent will ensure that the child is fully vaccinated for the destination(s) of travel.
Retention of the child’s travel documents
18.(a) That the child’s travel documents shall be held by the mother.
(b)That the mother release the child’s travel documents to the father at least 14 days prior to any travel pursuant to these orders and the father return such travel documents to the mother within 14 days after the travel has concluded.
(c)That in the event that the travel documents of the child has expired, or will expire within six months prior to the proposed date of travel, the mother and the father shall make an application for issue of further Australian travel documents for the child under the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision) and the father and mother shall do all acts and things and sign all documents necessary to ensure that the travel documents are renewed.
BY CONSENT:
The court notes and the parties agree:
19.That where these orders require the parties to evidence their agreement in writing or provide written notice the sending of a SMS or email to the other parent is sufficient to discharge that obligation.
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 Dudney & Lisson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 3 May 2018 the applicant father filed his Initiating Application in this Court seeking parenting orders in relation to the parties’ child X, born in 2015.
In summary, in that application the father sought orders as follows:
(1)that he and the mother have equal shared parental responsibility for the child;
(2)that the child live with the mother;
(3)that the child spend time with the father as agreed or in default of agreement for defined times including weekend and midweek times and school holidays comprising substantial and significant time with the child;
(4)that the mother be restrained from relocating the residence of the child outside a radius of ten kilometres from Suburb E railway station.
The mother, for her part, filed a Response to the father’s Initiating Application. In that Response the mother, in summary, sought parenting orders in relation to the child as follows:
(1)that the parents have equal shared parental responsibility for the child;
(2)that the mother forthwith be permitted to relocate to B Town, New South Wales with the child;
(3)that the child live with the mother;
(4)that the child spend time with the father for various defined periods of time in B Town and in Sydney;
(5)otherwise various specific issues orders relating to exchange of medical information as to the child, liberty of both parents to attend significant occasions relating to the welfare of the child, mutual non-denigration and liberty to travel outside the Commonwealth of Australia with the child.
Subsequent to the commencement of the proceedings and on 6 September 2018 an order was made for the appointment of Dr F as a single expert pursuant to Chapter 15 of the rules, to facilitate a report being made available to assist the Court.
Regrettably, that report was not made available by the appointed expert until August 2019 at which time it was released to the parties. Subsequent to the release of the expert’s report, the parties elected to engage in mediation. The matter was not resolved and on 13 December 2019 trial directions were made to progress the parenting issues to final hearing.
Subsequent to the making of trial directions, the matter was listed for compliance before a Registrar on 26 March 2020. On that date neither party had complied with directions for the filing of their trial affidavits, the matter was further adjourned for a compliance listing to 21 May 2020.
On 25 November 2020 proceedings were listed before the Court for judicial case management. On that date, in summary, it was ordered that the parties’ time for filing their consolidated affidavit of evidence in chief be extended to no later than 23 December 2020 and that the Chapter 15 expert be requested to provide a supplementary report, having regard in the order to the delay and the provision of the primary report.
The updated single expert report was released to the parties on 19 January 2021 and the proceedings were listed for final trial on 20 January 2021.
Subsequent to completion of the hearing and the receipt of written submissions, judgment was reserved on 30 March 2021.
A Preliminary Issue: Disqualification
During the course of the trial, after the conclusion of the father’s oral evidence and during cross examination of the mother by senior counsel for the father, the father’s counsel made an application for the Court to disqualify itself on the ground of apprehended bias.
It must be said that during the course of evidence there had been robust exchanges between the Court and counsel as to issues in the proceedings and arising from oral evidence: such is to be expected where the Court is considering disparate proposals as to the circumstances of a child where a determination is to be made by the Court in the best interest of the child.
The application for disqualification was formulated by counsel for the mother as follows
MS GILLIES:Thank you, your Honour. Your Honour, I’m instructed to make an application that your Honour be disqualified from the further hearing of this matter on the basis
HIS HONOUR: Go ahead.
MS GILLIE I’m sorry, your Honour?
HIS HONOUR: Go ahead.
MS GILLIES:on the basis of an apprehension of bias. Your Honour may recollect that prior to the luncheon adjournment, there was an exchange with me in relation to an aspect of some questions that I was asking the mother, where your Honour invited me and/or indicated that my client could remedy particular concerns that the mother had by offering to pay some money or offering that some money be paid.
At that time, I indicated to your Honour that that well may be something that occurs and your Honour will apprehend that the questions that I asked shortly before the adjournment were directed towards that particular invitation that I had understood your Honour was making to me, and certainly the comment that I had made back to your Honour, about what the state of the evidence might be at the conclusion of the hearing on a particular point or, indeed, my client’s position. Those questions were objected to, and it was at that point that your Honour made the comment, I assume in support of the objection that had been made, that essentially – and my instructor’s note is this:
I have no confidence that he – meaning my client – would pay, in circumstances where he abandoned her when he found out that she was pregnant.
Your Honour will recollect the cross-examination of my client, and whilst that’s an assertion in very broad terms that might have been said to have been made by the mother in her material, it was certainly not a position that was put to my client. Furthermore, as your Honour has indicated at various points in my cross-examination, your Honour was interested in prospective, rather than revisionary, analysis of the parties’ relationship and certainly, on that basis, one wouldn’t have thought, in the absence of the cross-examination, and indeed in the absence of hearing my client’s explanation in relation to that, that it could have formed any part of the analysis or the considerations before your Honour.
The statement itself, we would say, is problematic when you look at the tests that have been expounded in cases like Ebner and Strahan of the Full Court of this particular court, because, of course, as your Honour would be aware, there may be an apprehension of bias where a fair minded lay observer, being appraised of the facts in a particular matter, and having been appraised of the conduct of the proceedings themselves, would apprehend that there may be bias on the part of the judicial officer that’s determining the matter.
This is a discretionary jurisdiction. The comment that your Honour made about having no confidence that my client would adhere to an obligation that he had surrendered himself to, that is, to pay particular amounts of money – if, in fact, ultimately, that’s what I’m instructed if this evidence were to come out – might suggest that your Honour, and in fact I would say would suggest that your Honour has an intrinsically negative view of my client and his honesty, in circumstances where we don’t appreciate that it’s part of the mother’s case that my client is in fact dishonest or in fact that there ought to be any consideration of his honesty that would form the basis of the orders that might be made.
And I say that for this reason, your Honour, because it suggests that he would say that he would do something and not do it. It also suggests that he is the sort of person that would abandon his unborn child and a person he was in a relationship in that time in a financial sense, and it also impacts, we would say, that particular view on his parenting capacity and some of the section 60CC factors that your Honour will be obliged to consider, in that it suggests that your Honour has formed the view that he would negatively impact the household in which the child was to predominantly live, by saying that he would pay particular sums, clearly in the hope that the wife would remain in Sydney, and then not do so.
In a jurisdiction such as this, with a particularly wide discretion, having such an adverse view that has been expressed, we would say, in that comment, is problematic in terms of there being an apprehension that there isn’t a negative view that your Honour has formed. That would also need to be seen in the circumstances as well where your Honour was stridently opposed to me asking questions surrounding circumstances directly after the child’s birth and my client’s introduction to this child, where that was seen by your Honour as being irrelevant, but, in some way it would be relevant that my client, on your Honour’s assessment of the evidence, untested at this point and certainly not put to my client, would have abandoned the mother and the child once he found out she was pregnant.
Would your Honour just excuse me a moment? Your Honour, those would be my submissions.
Senior counsel for the mother responded to the application as follows:
MR SCHONELL: My friend contends that your Honour has formed a view – I think the words were “intrinsically” formed a view – about the husband’s honesty. With the greatest of respect, my friend is misguided and the matters that she refers to don’t support the contentions that she asks – that she identifies.
She has clearly identified the test in Ebner, but there are two elements to it; first, an identification of what it is that might lead your Honour to decide the case other than on its legal and factual merits. And, in my respectful submission, she fails at that hurdle. She hasn’t identified what it is that your Honour has said that would lead your Honour to conclude. Your Honour made reference to a paragraph in my client’s affidavit. True it was that it wasn’t put to the husband, but, likewise, the husband, when he came to give his evidence-in-chief, didn’t deny it. But it nevertheless remains a piece of evidence there that your Honour raises.
Now, it may well be that my friend recalls her client to give some evidence about it, or makes a submission to the – or puts some cross-examination to my client, and your Honour, thereafter, has some more evidence on the topic, but to suggest that that piece of evidence gives rise to a proposition that your Honour would decide the case other than on its merits doesn’t have a foundation. But the second limb is also important, that is, my friend has to articulate the connection between the matter and the feared deviation from the course of deciding the case on its merits and, likewise, that has not been established either.
There has been much cross-examination by my learned friend about matters which are: (a) irrelevant to the issue at heart, and (b) not part of the husband’s case, and whilst my friend might be somewhat frustrated with your Honour quite properly pulling her up, you can’t, in effect, conflate the two propositions as she’s seeking to do. The husband himself says these parties have a good relationship. He adopts almost all of the observations of Dr F about the nature of their relationship, agreeing that it didn’t serve much purpose in trawling over matters in the past and, indeed, your Honour quite properly prevented me from cross-examining on some things.
Division 12A gives your Honour enormous powers to control cross-examination to matters that are relevant and, in my respectful submission, that’s what your Honour has done in this case. There’s no foundation or basis for an application for disqualification. Thank you, your Honour.
In Antoun v The Queen (2006) 224 ALR 51, Kirby J said:
27.… For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms that they consider that a particular submission or course of action is hopeless, a waste of the court's time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.
…
29.A line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern…
The test for determining whether a Judge should disqualify himself or herself on the ground of apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6]).
In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ explained the operation of the principle as follows:
8.… Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation of the course of deciding the case on its merits…
The impugned comment from the Court followed a course of cross-examination of the mother that focused on the financial circumstances of the mother should she be required to reside in Sydney in circumstances where her capital was being depleted by the necessity to maintain two households to comply with interim court orders. Further, the comment arose from the assertion in the mother’s primary affidavit that when the relationship ended with the mother pregnant the father said to her words to the effect of:
“I’m not going to be your sugar daddy and you can’t move into my place. I’ve seen my solicitors and I’ll pay you $400 a month from when the baby is born. The baby will spend three days and three nights a week with me and the rest of the time with you. Don’t even think about fighting me on this.”
Indeed, thereafter, his only support for the mother was by way of child support where the mother had already sold her home in expectation of the parties being together.
The course of evidence in cross examination was as follows:
Right and you tell us in your affidavit you’ve got savings of about $100,000; correct? Yes.
And certainly, in terms of the shareholdings that are shown in that document from BB Valuers’s of 14 December, there has been an increase in the value of your shareholding overall, hasn’t there? Yes. Yes.
Rather than a decrease? Yes.
So in terms of any evidence that you have lived off capital over the last three years as you have elected to run these two households, I’m going to suggest to you that that’s not borne out in the documents that you have produced in the tender bundle, namely this document from BB Valuers’s. Would you agree with that? No.
Right. Well, and again in terms of your suggestion that you’ve lived off capital? Yes.
You would agree with me that you haven’t produced any primary documents, so that is any document that would support, certainly, what you’re saying about having to live off capital; would you agree with that? I don’t know. I just sold my place in 2014 for 1.84 million. I bought this house for 1.175. I put the rest back into shares and then I’ve been – yes, I kept some out in term deposits and I’ve been eating into those.
Okay? So I’ve been paying $70,000 in rent every year in Suburb G.
Right.
HIS HONOUR: That’s after tax? Yes.
MS GILLIES:And going through the figures that you’ve just given us, if your assets were the sale of the $1.84 million that you got for the sale of your home in, I think, 2015 or thereabouts, wasn’t it? 2014.
Beg your pardon. You’ve put 1.175 into the house in B Town? Yes.
So that left you, broadly, with about – let’s call it 730,000? Yes.
You’ve now got about a million dollars in shares? Yes.
And 100,000 in savings? Yes.
So you’ve, in fact, got more than the 1.84 that
HIS HONOUR: Well, Ms Gillies, that supposes she had no other shareholding when she sold her house.
THE WITNESS: I had – yes.
MS GILLIES:Except, your Honour, that that was the evidence that this witness gave that that was her capital, and that’s why I asked the questions in that .....
HIS HONOUR: Well, perhaps you might ask her what other capital she had as at when she sold her house. It’s in her affidavit. It’s in her affidavit.
MS GILLIES:In terms of your assertion that you have been living off capital, I’m going to suggest to you that there have not been documents that have been produced by you that verify that; would you agree with that? I don’t know. I think
And certainly ? the affidavit that I had a share portfolio .....
Thank you? I added to it.
In terms of your assertion that you would like to move out of the Eastern Suburbs ? Yes.
if you are compelled to stay in Sydney ? Yes.
is it the case that you say that you would need to leave the Eastern Suburbs because of financial reasons? Yes, as well as other reasons. Work, as well as support base, as well as a lifestyle where I can afford to have a home with a backyard for X.
You certainly wouldn’t be saying to his Honour though, would you, that a backyard or a size of a house would be more important to X than maintaining as much time and contact as he can possibly have with his dad?
MR SCHONELL: Well, I object to that.
HIS HONOUR: Well, Ms Gillies
MR SCHONELL: I don’t understand the father – unless the father is now seeking to change his case and restrain the mother from leaving the Eastern Suburbs, what’s the possible relevance of that question?
HIS HONOUR: If he wants to keep her in a two-bedroom unit, go ahead, Ms Gillies. But, you know, everybody seems to have been in the position that if she needs to move to Suburb H or the Northern Beaches there’s no issue with that.
MS GILLIES: So is your Honour rejecting the question?
HIS HONOUR: Well, I’m not quite sure what its relevance is. And the comparison is simply unfair to the witness. Because it makes no difference to his time with the child if she moves to Suburb H, he just does a bit more driving.
MS GILLIES:Well, you’ve heard his Honour’s comments in relation to that and you understand, don’t you, that it’s the father’s position that he will continue to live in his home in Suburb J? Yes, but if we do move to the Northern Beaches, it would be much easier for X if he would think about moving closer to us, somewhere like Suburb K.
Okay. Now and is it your position that if you’re in a financial position to stay in the Eastern Suburbs with X, if his Honour took B Town off the table, that you would do that? No.
MR SCHONELL: Well, I object to this. This is not the father’s case. His case has closed, other than for documents. I object.
MS GILLIES:And your Honour, I press it for this reason, because one of the things that your Honour said to me in one of the exchanges that we’ve had is that my client could pay, he could pay some money for certain things to happen. And you asked me, your Honour, just before lunch, whether I was instructed to do that, and I said well, it may well be that I am. And one of the reasons, of course, that I
HIS HONOUR: Well, Ms Gillies, I don’t have much optimism he might do that, because upon learning that she was pregnant, he effectively abandoned the relationship, so his only obligation to this family comprised by the single mother and the child is to pay some child support.
MS GILLIES: Your Honour, could I seek a five-minute adjournment, please?
HIS HONOUR: Sure. And I’m referring to the material in the mother’s affidavit when I say that.
MS GILLIES:Your Honour, that was not put to my client. And where I have sought to ask particular questions that I would say have some relevance around the time that the child was born to the parenting issues and your Honour had indicated that wasn’t going to be helpful to you, so your Honour might be able to understand that my client
HIS HONOUR: Well, it’s not. That’s why I’m saying that this is really not an issue that concerns me because the mother’s clear evidence is that if she has to stay in Sydney, she will move to the Northern Beaches. So it’s more a hypothetical circumstance that doesn’t assist me. I know about her finances, it’s in her affidavit. I don’t know much about your client’s finances, except his income. Not that I need to know for the purposes of these proceedings.
That circumstance is but one of many for the Court to consider in determining the proceedings in the best interests of the child.
It is a matter for the father to demonstrate that the “fair minded lay observer” might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide. As to the characteristics of the hypothetical observer, in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [232] the New South Wales Court of Appeal said:
… [T]he hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
Such a person should not, therefore, be taken to be completely unaware of the way in which cases are brought to trial and tried: (Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [177]).
The father has not demonstrated the “logical connection”. The Court has repeatedly emphasised during the trial that the parties’ history is of little concern and that the Court is to look prospectively to the best interests of the child.
The application for disqualification is dismissed.
Background
The father at the time of trial was 49 years of age and the mother aged 44.
The relationship of the parties was relatively brief in that they did not cohabit together at any time. However, as a consequence of their relationship the child X was born in 2015. At the time of trial X was about five and a half years of age.
At trial the father relied upon the following documents:
(a)his primary consolidated trial affidavit filed 23 December 2020;
(b)his supplementary trial affidavit filed 15 January 2021.
At trial the mother relied upon her primary consolidated trial affidavit filed 22 December 2020.
Otherwise, the Court received into evidence the following primary documents:
(a)the Child Responsive Program Memorandum from a family consultant dated 11 July 2018: Exh “B”.
(b)the initial Chapter 15 Single Expert Report dated 14 August 2019: Exh “C”.
(c)the supplementary Chapter 15 Single Expert Report dated 18 January 2021:Exh “C”.
Primarily the issues for determination were:
(a)Whether the mother could relocate the residence of the child to B Town area on the north coast of NSW.
(b)The time that the child would spend with the father in the event of relocation or the time that the child would spend with the father in the event that relocation was not permitted.
RELOCATION CASES
As to the concept of “relocation” the Full Court said in Asher & Wilkinson [2020] FamCAFC 44:
39.We pause here to observe that the task before the primary judge was to determine what parenting orders were in the child’s best interests. It was not to determine the location in which the mother was “permitted” to live. The use of that phrase in the context that it was used tends to focus on the mother having to justify to the Court where she wishes to live and obtain its approval. The use of that phrase obscures, if not overrides, the mother’s undoubted right to live where she chooses as explained in AMS v AIF (1999) 199 CLR 160 at [92] and [191] and U v U (2002) 211 CLR 238 (“U v U”) at [37], [137] and [176].
Parenting proceedings including relocation cases are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Whilst that is the paramount consideration, it is not the only consideration. In AMS v AIF (1999) 199 CLR 160, his Honour Justice Kirby said:
[144]… a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. …
This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases, such that there may be a perception that they are a unique type of case to be determined differently from others. They are not. The jurisprudence (see B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92-755, Morgan & Miles (2008) 38 Fam LR 275; (2007) FLC 93-343) is clear in that such cases remain to be determined, like all parenting matters, by considering the best interests of the child in the context of the legislative framework.
In Taylor & Barker (2007) 37 Fam LR 461, their Honours Bryant CJ and Finn J said:
[53]… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
Their Honours went on to say:
83.However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.
In Malcolm & Monroe and Anor (2011) FLC 93-460, where the Full Court said:
83.We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.
In AMS v AIF (1999) 199 CLR 160 Kirby J, when speaking of relocation within Australia, said:
192.…the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet the child’s welfare…”
Then in D & SV (2003) FLC 93-137 the Full Court (Nicholson CJ, Kay and Monteith JJ) 54 said:
16.It should be noted that her Honour did not give consideration at all to any alternative contact arrangements that could be made if the children moved to Drysdale. As early as 1976 in Craven v Craven (1976) FLC 90-049… in setting aside an order that restrained a mother from moving her children from Geelong to Queensland, the Full Court said at FLC 75,205…
“Our concern in this case is that his Honour did not give adequate consideration to alternative forms of access which could have been arranged. In our view an order restricting the freedom of movement of the custodial parent should be made only if the welfare of the children clearly indicates that the other parent should have regular weekly access rather than less frequent but longer periods of access. In our view as children grow older there can be advantages in the latter form of access. In this case the children have been in regular contact with their father and we agree that it is desirable in the interests of the children that they maintain their relationship with their father. However, when alternatives are considered, there is no preponderance in favour of weekly access provided that it is practical and reasonable to arrange for less frequent but longer periods of access; e.g. 3 or 4 visits each year of one or two weeks duration.”
The Full Court in Sayer & Radcliffe [2012] FamCAFC 209 drew the various principles together and said as follows:
RELEVANT PRINCIPLES
47.It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles [2007] FamCA 1230; (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011]FamCAFC 196 at paragraph 28).
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
49.The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker [2007] Fam CA 1236; (2007)37Fam LR 461, Morgan and Miles (supra), Adams & Randall (2011) FLC 93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:
oSection 60B – Objects of Part and principles underlying it
oSection 60CA – Child’s best interests paramount consideration in making a parenting order
oSection 60CC – How a court determines what is in a child’s best interests
oConsiderations relevant to relocation include:
•Primary considerations: meaningful relationship with both parents
•Additional considerations:
- nature of child’s relationship with parents and other persons
- extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate
- likely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living
- practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis
- capacity of each parent and any other person to provide for the needs of the child
oSection 61DA – Presumption of equal shared parental responsibility when making parenting orders
oSection 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)
oSubsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:
(a) How far apart parents live
(b)Parents’ current and future capacity to implement an arrangement for equal or substantial and significant time
(c)Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements
(d) Impact arrangements would have on the child
(e) Such other matters the Court considers relevant.
50.The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
51.The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR (2010) 240 CLR 461, an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said (pages 464-465, 467):
6.Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
7.Section 65D(1) provides that the Court [...] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. [...] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case…
8.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
...
15.Section 65DAA (1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA (1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA (1)(b) requires a practical assessment of whether equal time parenting is feasible.
53.There can be no doubt that the decision the Federal Magistrate was required to make was very difficult. All relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children. Clarification and guidance has been provided by decisions of this Court. We refer to the approach outlined in Starr & Duggan[2009] FamCAFC 115 (Boland, Thackray & Watts JJ) where their Honours said:
APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD
33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
34.The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode[2006] FamCAFC 1346; (2006) FLC 93-286.
35.In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
36.The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
37.Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer[2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
Recently in Franklyn & Franklyn [2019] FamCAFC 256 the Full Court observed in relation to the applicable “principles” in the context of relocation. The Full Court said at [27] – [28]:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132] - [136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
Background to the present proceedings
The parties met in November 2013 and their relationship commenced in early March 2014.
Later in September 2014 the parties became engaged to marry. Regrettably, their relationship broke down in January 2015, they never having lived together.
The subject child X is the child of their relationship.
In July 2014 the parties spoke about their future together and having a child and merging their real estate assets to purchase a larger property.
In pursuit of this intention the mother sold her property at R Street, Suburb L in August 2014 for $1.84 million. The property was unencumbered. The proceeds of sale were in part placed on term deposit and, otherwise, used to purchase public company shares.
The parties were interested in purchasing a property at S Street, Suburb J that was listed for auction on 4 September 2014. On the day of the auction the father was absent overseas and the mother attended the auction on their behalf. On the day of the auction the father informed the mother that he did not wish to proceed with the purchase of the S Street property.
Notwithstanding, the parties became engaged in September 2014 and the child was conceived the following month.
At the end of the parties’ relationship in January 2015 the mother was living in rented premises and the father continued to reside in his home. The mother asserts that at this time the father said to her words to the effect of:
“I’m not going to be your sugar daddy and you can’t move into my place. I’ve seen my solicitors and I’ll pay you $400 a month from when the baby is born. The baby will spend three days and three nights a week with me and the rest of the time with you. Don’t even think about fighting me on this.”
Subsequent to the birth of the child in June 2015, the parties attended various sessions of mediation with a view to reaching agreement as to the father’s time with the child. In the period from late May 2016 to January 2020 the child’s time with the father progressed from several hours on several days a week at the mother’s home to by 26 January 2020 when the child was aged four years and seven months to each Tuesday from 9.00 am until 6.00 pm and each alternate Saturday from 8.00 am until 1.00 pm on Sunday.
In May 2018 the mother purchased a home at B Town, New South Wales for $1.175 million. It is common ground that B Town is about 750 kilometres and about eight hours’ drive from Sydney. The mother maintained her rented premises in Suburb G and she and the child were residing thereafter in Sydney during the week and flying to B Town each alternate Thursday evening to Monday afternoon so that she could comply with the then agreement as to the father’s time with the child.
The evidence is not supportive of the contention of the child’s best interests being so adversely affected so as to justify an interference with the mother’s rights and right of freedom of movement. On the contrary, the parties are at odds as to nuances of time that the child, who has a strong relationship with both parents, will spend with the father.
The child has just commenced formal schooling. Orders will be made that facilitate his completion of his first year without interruption.
Otherwise, the parties provided a joint minute of orders sought in the event of relocation or not. They were in substantial agreement as to orders in either event save for the issue of midweek overnight time whilst the mother remains in Sydney. The mother proposed Tuesday to Wednesday, the father Thursday to Friday. The mother’s proposal would see two more changeovers each fortnight. It is preferable to reduce the number of changeovers for a child so young. The father’s proposal would see his alternate weekend be from Thursday after school to Monday before school. Whist a longer period away from his primary carer the time will assist in consolidating the child’s relationship with the father prior to relocation later in the year.
In all of the circumstances it is in the best interests of the child that the mother be permitted to relocate to B Town area at the conclusion of the current school year with orders as to the father’s time substantially as agreed by the parties.
I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 29 April 2021
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