Eastling & Pariser
[2024] FedCFamC1A 239
•12 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Eastling & Pariser [2024] FedCFamC1A 239
Appeal from: Eastling & Pariser [2024] FedCFamC2F 815 Appeal number(s): NAA 193 of 2024 File number(s): DGC 2043 of 2022 Judgment of: CHRISTIE J Date of judgment: 12 December 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Primary judge made orders permitting respondent to change children’s state of residence – Where appellant argues primary judge applied wrong test to determine relocation application – Where appellant asserts that primary judge erred in admitting opinion evidence from the respondent’s treating psychiatrist – Where appellant argues primary judge failed to accord procedural fairness to appellant by making adverse findings without warning – Primary judge appropriately considered potential adverse impacts on the children – Opinion evidence of a treater is not subject to the same limitations as evidence of an adversarial expert – Primary judge entitled to make the findings available on the evidence without seeking submissions – No denial of procedural fairness found – No grounds of appeal challenging orders established – Appellant to pay respondent’s costs on party/party basis – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, s 60CA and s 60CC(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.01(1)(a), 7.01(1)(a)(i), 7.01(1)(a)(ii) and 7.01(1)(a)(iii)
Cases cited: Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Lister & Lister (2014) 52 Fam LR 174; [2014] FamCA 606
Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533; [1940] HCA 2
Rycroft & Hamlett [2018] FamCAFC 212
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 33 Date of hearing: 26 November 2024 Place: Sydney Counsel for the Appellant: Mr Smith Solicitor for the Appellant: TFA Legal Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Clancy and Triado Family Lawyers ORDERS
NAA 193 of 2024
DGC 2043 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR EASTLING
Appellant
AND: MS PARISER
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.Appeal NAA 193 of 2024 is dismissed.
2.The appellant pay the respondent’s costs of the appeal in the fixed sum of $16,000 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eastling & Pariser has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal against final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2). For the reasons which follow, the appeal will be dismissed.
THE TRIAL
The proceedings related to three children, twins aged 10 and an older child aged almost 14 at the time of trial.
The existing parenting orders provided that the children live with the respondent mother and spend time with the appellant father three nights per fortnight during term time.
At the hearing before the primary judge, the appellant’s primary position was that the children ultimately live in an equal time arrangement which would have necessitated the respondent remaining in the same city. The respondent sought orders permitting relocation of the children’s residence and that the children live predominantly with her.
The respondent and her new partner had purchased property in another state and the respondent sought to join her partner and reside on that that property.
In the context of making orders which permitted the relocation, the primary judge made the following findings which are not challenged on appeal:
[115]I am satisfied that the father has perpetrated family violence against the mother. I am satisfied that on some occasions the father has perpetrated family violence against the children in the form of physical force and verbal abuse and that on other occasions the children have been exposed to family violence by witnessing the father’s violent and threatening conduct to the mother.
[116]Neither party suggests that unsupervised time with the other party represents an unacceptable risk of harm to the children. However, my findings as to family violence support the opinions expressed by Dr [T] and Ms [R] about the aetiology of the mother’s PTSD. It is also possible that the vulnerabilities of [X] and [Z] may have been caused or exacerbated by their exposure to family violence although the evidence does not support a finding in that regard. The father’s conduct and his lack of insight into its effect on the children is relevant to his understanding of their emotional and psychological needs. It is relevant also to my decision as to the manner in which decisions about major long-term issues for the children should be decided.
…
[130]I am satisfied that [X] and [Z] like their schools and would prefer not to leave them. I am satisfied also that all three children wish to remain living primarily with the mother. I attach weight to those views and the other views expressed by the children.
…
[149]The father’s unrelenting hostility towards the mother, his suspicion about her motives in the context of proposals for the children, and his view that he needs to compensate for what he considers to be the deficiencies in her parenting of the children, all present problems in terms of his capacity to support the children’s relationship with the mother. They are also difficult to reconcile with his willingness for the children to live in her primary care for the seven years that have elapsed since separation.
…
[156]… On balance, I consider that the mother’s capacity to parent the children is greater than that of the father.
…
[162]Inevitably, if the children live in Queensland and the father remains in Melbourne, their relationship would lack the richness that comes from living in the same city, more frequent interactions and the father’s greater ability to be involved in their educational, sporting and social activities. However, I accept the evidence of Ms [P] that with adequate face to face visits, and video calls between those visits, the children’s relationship with the father can be supported in a manner which may not be optimal but will enable the parental bond to be maintained.
In discussing the law which was to be applied, the primary judge made the following observations:
[173] The mother does not need to establish compelling reasons for her wish to relocate (AMS v AIF [1999] HCA 26; U v U [2002] HCA 36; Asher & Wilkinson [2020] FamCAFC 44). Equally, there is no onus on the father to demonstrate reasons as to why she should not relocate. Instead, it is my task “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” (Malcolm & Monroe and Anor [2011] FamCAFC 16 at [83]).
…
[175] … [The appellant’s] approach runs the risk of obscuring the question I must consider, namely whether the mother’s proposed relocation would so adversely affect the welfare of the children that their best interests should prevail over her preferences. The needs of the children are the paramount but not the only consideration to which I must have regard:
Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children. 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.
…
(Footnote omitted)
The primary judge also said:
[183] Considered holistically, I am not satisfied that the relocation would have such an adverse impact on the children’s wellbeing that the mother’s wish to move should be subjugated to the paramount consideration of their best interests.
THE APPEAL
It is uncontroversial that an application to change the place where children live is a parenting application to which the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) apply, and in particular, s 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The parties to the litigation at trial and on appeal agreed that the principles enunciated by the High Court in U v U (2002) 211 CLR 238 were applicable in this case. At [89], Gummow and Callinan JJ said:
…whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.
And likewise, from the judgment of Kirby J:
[176]It is now recognised as self‑evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act (s 60B(2)(a) and (b)). If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
(Footnote omitted)
Ground 1
1.The learned Trial Judge applied the wrong test when determining that the children should relocate with the Respondent mother to rural Queensland.
PARTICULARS
a. The Trial Judge decided the issue of the relocation as follows in paragraph [183] of her reasons:
“Considered holistically, I am not satisfied that the relocation would have such an adverse impact on the children’s wellbeing that the mother’s wish to move should be subjugated to the paramount consideration of their best interests”
b. The Trial Judge was instead required to make a determination as to which parenting orders were in the children’s best interests, taking into account a variety of factors, including the Respondent mother’s right to live where she chooses.
(Appellant’s Notice of Appeal filed 24 July 2024)
It should first be observed that there is no test which applies to the adjudication of a parenting case in which one of the parties proposes a change in the children’s place of residence. The considerations which are set out in s 60CC(2) of the Act inform the determination of what orders will be in the best interests of the children.
The jurisprudence establishes principles or guidelines which derive from decisions that have applied the statutory considerations. The principles and guidelines inform the exercise of a broad statutory-based discretion.
The appellant relies on a reading of [183] of the primary judge’s reasons for judgment which seeks to separate it from the reasons as a whole. That paragraph provides:
[183]Considered holistically, I am not satisfied that the relocation would have such an adverse impact on the children’s wellbeing that the mother’s wish to move should be subjugated to the paramount consideration of their best interests.
The paragraph the subject of the ground, while inelegantly expressed, enunciates the primary judge’s conclusion that the best interests of the children will be served by the mother’s proposal – the primary judge having considered potential adverse impacts.
That paragraph is the culmination of the consideration by the primary judge of all relevant considerations which inform the ultimate determination which of the available proposals would best meet the needs of the subject children. In this case, they included consideration of evidence relating to family violence ([82]–[118]); the views of the children ([119]–[130); the developmental, psychological, emotional and cultural needs of the children ([131]–[140]); the parents’ capacity to provide for the children’s developmental, psychological, emotional and cultural needs ([141]–[156]); the benefit to the children of relationships with the mother, father and their respective families ([157]–[164]); and the value to the children of living arrangements which provide support to the mother ([176] and [180]).
The appellant has not demonstrated error.
Ground 2
2.The learned Trial Judge erred in law by admitting into evidence the opinion evidence of the Respondent mother’s treating psychiatrist Dr [T] on the basis that the report fell within the exception provided by rule 7.01(1)(a) of the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021.
PARTICULARS
a. Rule 7.01(1)(a) provides that evidence of a treating medical practitioner is subject to the exception of 7.01(1) if the evidence only relates to any or all of 7(1)(a)(i),(ii) and (iii).
b. The report of Dr [T] contained opinion evidence that went beyond the matters specified in 7(1)(a)(i),(ii) and (iii) in that it opined on the relative benefits to the Respondent mother’s mental health of relocating to Queensland with the children compared to remaining in Melbourne.
c. Therefore, the evidence was admitted in error.
(Emphasis in original, Appellant’s Notice of Appeal filed 24 July 2024)
At trial, the respondent filed and sought to rely upon a report by her psychologist Dr T. The appellant objected to receipt of the report in its entirety but drew specific attention to answers 4 and 5 of the report (at Appeal Book, pp.220–221) as failing to comply with the requirements of r 7.01(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The receipt of evidence (or the rejection of evidence) alone is not a basis for appellate intervention. Even if the appellant were to persuade me that the primary judge was in error in allowing the evidence, the appellant must also demonstrate that the admission influenced the judgment: Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 at 554, 563 and Balenzuela v De Gail (1959) 101 CLR 226 at 235–236.
The report of Dr T addressed (in accordance with r 7.01(1)(a)(i) and (ii) of the Rules):
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended ...
The gravamen of the appellant’s complaint was that the material which appeared in answers 4 and 5 included opinion which was not “limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis”: r 7.01(1)(a)(iii) of the Rules.
It follows that the appellant could not have had a legitimate objection to answers 1–3 of Dr T’s report. In answer 4, the treating psychologist expressed an opinion about prognosis if the court made orders as sought by the respondent, and in answer 5, about prognosis if the court made orders as sought by the appellant.
The appellant submitted that the treating psychologist was not at liberty to offer a prognosis in those two scenarios. The submission was to the effect that the treating psychologist was only at liberty to offer an opinion in respect of prognosis in the context of how the existing or recommended treatment might impact on prognosis (without taking into account matters external to the treatment such as living arrangements, parenting arrangements, access to supports etc). In support of that construction, counsel for the appellant submitted that Part 7.1 of the Rules functions to limit expert evidence and provides a framework for consideration of the inclusion or exclusion of evidence with a focus on the receipt of single expert evidence. I accept that Part 7.1 is designed to limit expert evidence to that which is necessary to determine the case. However, I do not accept that it was designed to limit receipt of evidence from treating practitioners as that would run contrary to the principle that relevant evidence is admissible evidence. I accept that r 7.01(1) places limits on the parameters of evidence from a treating expert, but I consider that the evidence in this case was within the parameters and the argument for its exclusion adopted too narrow a reading of the Rule.
To the extent that the appellant placed reliance upon the decision in Lister & Lister (2014) 52 Fam LR 174 (“Lister”), such reliance was misplaced. Lister was concerned about the operation of the “permission rule” to limit reliance upon adversarial expert witness opinion evidence. It is not appropriate to conflate the opinion evidence of a treater with the evidence of an adversarial expert. An adversarial expert is engaged by a party in the context of litigation, a treater has a professional relationship with the party (or child) which exists independently of the litigation. While I accept that the nature of the treatment relationship may result in the treater having views which appear partisan, they are not governed by or bound by the Rules which relate to the adducing of adversarial expert evidence.
Even if I am incorrect in the conclusion which I have drawn about the interpretation of r 7.01(1), I am far from persuaded that the evidence in answers 4 and 5 influenced the judgment such as to produce error. Dr T did not offer an opinion about what orders would be in the best interests of the children but an opinion of the likely prognosis for the mother in two different scenarios both of which were in contemplation by the primary judge. The respondent gave significant lay evidence about the matters which underpin the opinion in answers 4 and 5 of Dr T’s report – which evidence was accepted by the primary judge. It follows that I do not accept this ground has merit.
Ground 3
3.The learned Trial Judge failed to accord the Appellant father procedural fairness by making a finding that the parenting orders that he sought were motivated in part by retaliation to the Respondent wife’s application to relocate to Queensland.
PARTICULARS
a. The finding is found in paragraph 212 of the Trial Judge’s reasons.
b. The allegation was not put to the Appellant father in cross-examination.
c. The allegation was not a part of the Respondent mother’s case.
d. The Trial Judge gave no warning that she was considering making such a finding.
(Appellant’s Notice of Appeal filed 24 July 2024)
The observations of the primary judge at [21] arise squarely from the following uncontroversial chronology:
(a)The parties separated on 5 July 2017;
(b)On 28 November 2017, the parenting plan for the three children provided that they lived with their mother and spent one night a week with their father;
(c)On 6 February 2018, the parenting plan provided the children live with the mother and spend four nights a fortnight with the father;
(d)In 2020, the parenting plan provided the children live with the mother and spend three nights a fortnight with the father;
(e)On 30 June 2022, the father made an application for parenting orders seeking that the children live with the mother and spend four nights a fortnight with the father;
(f)On 5 June 2023, the mother’s amended response sought orders permitting her to change the children’s place of residence; and
(g)The father’s amended application of 17 April 2024 sought an equal time arrangement.
If the primary judge had used the word “in part as a response to” as opposed to “in part by retaliation to” then the paragraph at [212] could attract no attention. For this reason, it is important to determine whether the use of the phrase “in part by retaliation to” is indicative of error on the part of the primary judge.
I do not consider that it was improper for the primary judge to take into consideration the underlying reasons why each party was seeking the parenting orders sought. The conclusion reached by the primary judge was little more than a determination that the father, in response to the mother’s request that the children move, sought orders which had not previously been sought by him, motivated “in part” as a response to the mother’s own application.
The ground is framed in a manner to suggest that the primary judge was obliged to foreshadow her finding. I reject that submission. The primary judge was entitled to make all findings available to her on the evidence without heralding them or seeking submissions about them.
The appellant characterises this ground as being, in effect, a denial of procedural fairness. The caselaw the appellant draws upon to support the submission is primarily concerned with a primary judge reaching conclusions about an allegation which was not the subject of submission by the parties. I do not accept that the primary judge’s comment was not in keeping with the uncontroversial chronology and the submission made in the respondent’s case, including, that the father had not always exercised the time available to him under the orders and that his work commitments meant that 50/50 would be “a stretch”. The description of the father’s relief as in part retaliatory to the mother’s relief is not in the same character as the matters which underpin the cases cited: Rycroft & Hamlett [2018] FamCAFC 212 at [20] and Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 388.
The ground has not been established.
COSTS
The appeal has been dismissed. The respondent submitted that in the event that the appeal was dismissed the usual rule would be displaced by the appellant having been wholly unsuccessful, and in those circumstances, sought an order for costs on a party/party basis. The parties have filed costs schedules as provided by the Rules. They have a mutual interest in finality of litigation which can be achieved by fixing costs and I propose to do so.
I accept there are justifying circumstances permitting the making of an order and having regard to the Schedule of Costs sought, I propose to order costs in a fixed sum of $16,000 payable within 28 days.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 12 December 2024
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