Edgar & Strofield
[2016] FamCAFC 93
•7 June 2016
FAMILY COURT OF AUSTRALIA
| EDGAR & STROFIELD | [2016] FamCAFC 93 |
| FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Whether the trial judge erred in placing undue emphasis upon the issue of relocation in determining interim parenting orders – Where the parties had been separated for six years – Where the mother was the primary carer of the children – Where the mother moved 88 kilometres away with the children – Where it was ordered on an interim basis that there be a progression to shared care or for the children to reside with the father if the mother did not return – Where the trial judge was concerned with unilateral decision to relocate – Where the mother moved for employment and family health – Where the children had a primary attachment to the mother and relationships with their step-brother and maternal grandmother – Where an application to stay the orders was made – Where the findings recorded in the Reasons for Judgment in the stay application demonstrated an error of the trial judge in determining the interim orders – Where the appeal was allowed. FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether appropriate to grant leave for the mother to adduce further evidence on appeal – Where the evidence comprised of further affidavits and the Reasons for Judgment of the stay application – Whether the appellant satisfied the criteria to adduce further evidence as per CDJ v VAJ (1998) 197 CLR 172 – Where it was held the evidence did not satisfy the criteria – Where the application to adduce further evidence was dismissed. FAMILY LAW – COSTS – Where appropriate to grant each party costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). |
| Family Law Act 1975 (Cth) s 60CC Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9 |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Ms Edgar |
| RESPONDENT: | Mr Strofield |
| FILE NUMBER: | TVC | 1017 | of | 2015 |
| APPEAL NUMBER: | NA | 1 | of | 2016 |
| DATE DELIVERED: | 7 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Murphy & Kent JJ |
| HEARING DATE: | 7 June 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 25 November 2015 4 February 2016 |
| LOWER COURT MNC: | [2015] FCCA 3545 [2016] FCCA 694 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Honchin |
| SOLICITOR FOR THE APPELLANT: | Purcell Taylor Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hibble |
| SOLICITOR FOR THE RESPONDENT: | KLP Family Law |
Orders
IT IS ORDERED:
The Application in an Appeal filed on 20 April 2016 be dismissed.
The appeal be allowed.
The Orders made by Judge Coker on 25 November 2015 be set aside.
IT IS ORDERED UNTIL FURTHER ORDER:
That the Appellant Mother and the Respondent Father have equal shared parental responsibility for the major long term issues of the children, including but not limited to:
(a) a child’s education (both current and future);
(b) a child’s religious and cultural upbringing;
(c) a child’s health;
(d) a child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) they shall inform the other parent about the decision to be made;
(b) they shall consult with each other on terms that they agree;
(c) they shall make a genuine effort to come to a joint decision.
That notwithstanding Order (4) herein:
(a) the Appellant Mother shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with her; and
(b) the Respondent Father shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with him.
That the children live with the Appellant Mother in City Y.
That the children spend time with and communicate with the Respondent Father at all reasonable times and in particular each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday or 5.00 pm Thursday should the Friday be a public holiday or pupil free day until 5.00 pm Monday should the Monday be a public holiday or pupil free day.
That unless otherwise agreed in writing between the parties, the children spend one half of all gazetted school holiday periods with each parent as follows:
(a) with the Appellant Mother for the first half of all gazetted school holidays in odd numbered years and with the Respondent Father for the second half of all gazetted school holidays in odd numbered years; and
(b) with the Respondent Father for the first half of all gazetted school holidays in even numbered years and with the Appellant Mother for the second half of all gazetted school holidays in even numbered years.
That both parents have the opportunity to communicate with the children when not in their care at all reasonable times but in particular, unless otherwise agreed in writing, between 6.00 pm and 6.30 pm each Tuesday and Thursday, with the parent not having the children in their care to be responsible for making the calls and the parent having the children in their care to ensure the children are available to take the call in a quiet and private environment.
That the Appellant Mother be responsible for the costs of travel associated with the Respondent Father spending time with the children, including that the Appellant Mother be responsible for facilitating the delivery to and collection of the children from the Respondent Father at the commencement and conclusion of time to be spent by the Respondent Father with the children.
IT IS FURTHER ORDERED:
There be no order as to costs.
That the Court grants to the Appellant Mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.
That the Court grants to the Respondent Father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Father in respect of the costs incurred by the Respondent Father in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Edgar & Strofield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA1 of 2016
File Number: TVC1017 of 2015
| Ms Edgar |
Appellant
And
| Mr Strofield |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
KENT J
The parties are the parents of twin boys born in 2008. The parties separated in April 2009, then ending a relationship which had commenced in 2007. As at separation the twins were only about seven months of age.
From separation and for the next six and a half years until the interim hearing before Judge Coker on 25 November 2015, the children lived in their mother’s primary care living with her, their maternal grandmother and their older
half-sibling H, born in 2003.
Whilst there was some dispute about the period or periods of time the maternal grandmother lived in the same home with the children, there is no doubt that she had played a substantial and significant role in the lives of the children to that point.
From about September 2012, the twins had generally spent alternate weekend periods with the father and his partner from Friday afternoon until Sunday afternoon.
During the June/July 2015 school holiday period, the mother changed her residence from Town X, where she and her family had been living, to City Y. Those places are about 88 kilometres apart and involve a travel time by car of about an hour.
Notwithstanding her change of locality, the mother continued to facilitate the children spending the alternate weekend time with their father on the same basis as had been occurring since September 2012.
In response to the mother’s change of locality, the husband filed an Initiating Application in the Federal Circuit Court on 6 October 2015 seeking not only an injunction requiring the mother to return the children to Town X, but also a number of parenting orders, including orders for shared (week-about) care.
Both parties contended at the interim hearing that an order for equal shared parental responsibility ought be made. The central contentions and issues joined between the parties in the interim hearing of that application before Judge Coker on 18 November 2015 may be summarised as follows:
a)The mother contended:
i)Continued residence of the children in City Y, rather than Town X, would cause no impediment whatsoever to the children continuing to spend the alternate weekend time with their father that they had been spending since September 2012;
ii)That by moving to City Y, the mother had been able to take up employment as a resident nurse/carer, with the financial advantages of that for the children rather than her remaining reliant upon a single parent pension as she had been whilst living in Town X;
iii)That by engaging in employment, the mother’s depressive symptoms and self-esteem had improved;
iv)That by leaving Town X, the maternal grandmother was relieved of the effects of grieving the loss of her partner;
v)That by living in City Y, the mother could more readily access the psychological therapy and support she had been obtaining for her son, H; moreover, that by changing schools for H, a bullying problem that had been exacerbating H’s psychological issues had been relieved;
vi)That the father had previously agreed to her relocating the twins to City Y, and resiled from that agreement only when the parents did not reach full agreement on related issues; that the father’s agitation for the twins to spend increased time with him had commenced only in the face of the mother’s proposed move away from Town X;
vii)That it would not be in the children’s best interests to disrupt their living arrangements and relationships with her; her mother; and their step-brother, H, to each of whom they were attached.
b)The father contended that:
i)If the children remained living in City Y, it would not be possible for them to spend substantial and significant time with him or for a shared care (week-about) arrangement to be implemented;
ii)If the mother also returned to Town X, there ought be a graduated increase in time the children spend with the father over a four month period culminating in a shared care (week-about) arrangement;
iii)The children should return to live in Town X, and if the mother did not return, the children should live with him and spend alternate weekends with the mother from 4.00 pm Friday to 5.00 pm Sunday;
iv)Upon their return to Town X, the children should be enrolled in the B School rather than the A School they had previously attended, as the proposed school was closer to the father’s home;
v)The father had only considered agreeing to the mother relocating to City Y, and did not want to prevent that, if his hours of employment would prevent him from substantially increasing the time he spent with the children;
vi)The father had historically (since September 2012) spent only limited/alternate weekend time with the children, because the mother had dictated that and the father “never wanted to rock the boat” with the mother to dispute the existing care arrangements.
At its core, the mother’s proposal at the interim hearing on 18 November 2015 was that, on an interim basis, it was in the children’s best interests for them to continue to experience the care regime that had been in effect since separation and, specifically, since September 2012, over almost four years prior to the interim hearing. Expressed in the converse, the mother contended that, on an interim basis, it could not be determined to be in the best interests of the children to fundamentally change the operative care arrangements for the children that had long been in existence, and in which she had plainly been the children’s primary carer.
At its core, the father’s proposal was that, on an interim basis, it could be determined that it was in the children’s best interests to fundamentally change their longstanding care arrangements: to equal shared (week-about) care if the mother returned to live in Town X; or primary care with the father if she did not so return.
Judge Coker made orders and delivered Reasons for Judgment on 25 November 2015. His Honour ordered, inter alia, that the children be returned to Town X for the commencement of the first school term in 2016. His Honour adopted the father’s proposed orders that if the mother also returned to live in Town X, there would be graduated increases in time the children spent with the father culminating in an equal shared (week-about) arrangement by the end of four months.
His Honour also adopted the father’s proposal if the mother did not return to Town X, that is, orders for the children to live primarily with the father and spend alternate weekend time with the mother.
His Honour determined that the mother, after a final trial of the issues, may well establish it to be in the children’s best interests that they live in City Y with the mother. However, it can be seen that whilst his Honour considered a final trial of the issues to be necessary to determine that proposal, his Honour considered that a final trial of the issues was unnecessary before the making of interim orders which fundamentally changed the children’s care arrangements to that point.
The parameters to legitimate appellate intervention with respect to a discretionary judgment are well established.[1] Those parameters have a particular focus when the discretionary judgment under appeal is an interim determination pending a final trial. Moreover, as is recognised by the High Court in CDJ v VAJ (1998) 197 CLR 172 (McHugh, Gummow and Callinan JJ) the exercise of discretion in determining parenting orders necessarily involves predictions and assumptions about the future; and perceptions, predictions and even intuition and guesswork can all play a part in the making of a parenting order, with the consequence that there may be a real chance that the order under appeal is not in the best interests of the child or children; but is, nevertheless, the product of a legitimate exercise of discretion.
[1] House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513
However, the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing, and, axiomatically, those disputed issues of fact may be fundamentally important to one or more of the s 60CC (of the Family Law Act 1975 (Cth) (“the Act”)) considerations by which the Court determines what orders are in the best interests of children.
In this appeal, the mother contends that Judge Coker applied wrong principles in reaching his determination (Grounds 1, 2, 3 and 5). The fundamental contention in that respect is that the trial judge’s focus was upon the case as a “relocation case”, so-called, when the real issue before his Honour was the amount of time the father would spend with the children on an interim basis, in the context of the respective proposals of each party and the historical care arrangements.
The mother contends that by focusing upon the case as a “relocation case” the trial judge erred by wrongly placing an onus upon the mother to establish good reasons for her “relocation” and placed too much weight upon the contention that the mother had acted “unilaterally” in relocating the residence of the children.
The mother contends that essentially as a consequence of applying wrong principles, the trial judge erred in each of the following respects:
a)By wrongly placing an onus upon the mother to establish good reason for her relocation from Town X to City Y (Ground 2);
b)By placing too much weight upon the allegation of “unilateral relocation” by the mother (Ground 3);
c)By failing to properly consider the benefits to the mother, and thus the children, of the mother’s employment in City Y and the financial realities for the mother (Grounds 5 and 7);
d)By failing to properly consider the relationships between the children and their older step-brother, H, and the effects of separation (Ground 4);
e)By placing undue weight upon time with the father, as compared to the effects upon the children, in light of the mother’s unsatisfactorily circumstances living in Town X (Ground 8);
f)By failing to properly consider the likely length of time that ordered interim arrangements would subsist, and the prospective effects upon the children if their primary carer and H did not return to Town X in that interim period (Ground 9).
Further grounds, namely, Grounds 6 and 10 were not pursued on the appeal.
By an Application in an Appeal filed on 20 April 2016, the mother seeks leave to adduce further evidence on appeal. That evidence comprises a further affidavit of the mother; an affidavit by the maternal grandmother; and the Reasons for Judgment the trial judge delivered on 4 February 2016 in granting a stay of the interim orders pending the conclusion of this appeal.
The father opposes that application, but in the alternative seeks that if the mother’s application is granted, that he be permitted to adduce further evidence, including a family report dated 17 March 2016, as well as a further affidavit by him which was filed on the stay application.
Counsel for the mother properly acknowledged that the further evidence sought to be adduced was mainly in the nature of further detail rather than further or new evidence, as properly understood. Counsel also acknowledged that the mother had raised the issues the subject of the further evidence before the trial judge. No reason was given for the failure to adduce that evidence in the first instance beyond, as it would seem, failure to address matters of detail in the preparation of the mother’s material in the interim application.
In my view, having regard to the principles upon which further evidence is admitted, as expressed in CDJ v VAJ, the mother does not satisfy any of the criteria for the admission of further evidence, and that application ought be refused.
The Reasons for Judgment in respect of the stay orders were part of the application for further evidence. As it seems to me though, those Reasons for Judgment are properly read before us and it is not necessary to grant an application for further evidence for this Court to receive the Reasons for Judgment in respect of the stay order.
In the course of argument, the Reasons for Judgment given by Judge Coker in granting the stay of the interim orders assumed prominence. At [47] of those Reasons, his Honour made reference to the historical arrangements of the children living in Town X. Having noted that his Honour then said at [48]:
Overriding all that, however, is the obvious need to consider the primary attachment as it is, to the mother…
(emphasis added)
At [49] his Honour proceeds:
If it were simply an issue of the finding being made that the mother had acted unilaterally and she should not have done so, the boys would have been returned. I ordered it not only for that reason but for a number of others, noting in particular, as I did, that one of the primary considerations was that there was an established routine, not just with regard to with whom they lived but with schools and with other activities that they participated in in [Town X], but overarching all of that, and certainly more significantly emphasised now in the stay application, are the attachments that the boys have to their primary carer.
(emphasis added)
His Honour had earlier noted (at [16] of those Reasons) with respect to historical matters in terms of the father’s time with the children the following:
The father may have been lax and I don’t doubt that there have been occasions, perhaps more often than not, where the father has not been as devoted and dedicated to the children as they deserved, but the failings of one party does not justify the failings or behaviours of the other…
In my judgment, his Honour’s finding as to the mother being the primary attachment figure for the children and his description of that being an “overriding” and “overarching” consideration, findings which do not appear in his primary Reasons in making the interim orders, demonstrate an error of application of principle and approach in the determination of the interim orders. In my judgment it is unnecessary to discuss seriatim each of the grounds of appeal beyond noting that those findings fundamentally informed the task his Honour had to perform in determining interim parenting orders at the time and in the circumstances in which the trial judge did so.
As it seems to me, those critical findings and observations in the Reasons for Judgment for the stay order, which do not assume any kind of significance in the primary Judgment, demonstrate that his Honour was there distracted by the issue of “relocation”; rather than focusing upon the competing proposals of the parents in the circumstances as they existed at the time of the interim hearing, in the context of the undisputed history, so far as the appropriate interim care arrangements for the children were concerned.
For these Reasons I am satisfied that his Honour fell into error in making the interim orders that he made and I would order that the appeal be allowed. I would further order that the orders made by his Honour on 25 November 2015 be set aside and I would order that the Application in an Appeal filed on 20 April 2016 be dismissed. I would further make orders, until further order, in terms of paragraphs 3 to 10 of the orders made by Judge Coker on 4 February 2016 and that form of orders would be contained in a formal order issued by the Court. I would further order that there be no order as to costs but that the Court grant cost certificates pursuant to the relevant provisions of the Federal Proceedings (Costs) Act1981 (Cth) to each party in respect of the costs incurred in relation to the appeal. That too would be formalised in a published order of the Court.
MURPHY J
I agree that the Application in an Appeal to adduce further evidence should be dismissed for the reasons given by Justice Kent. I agree that the appeal should be allowed and that Judge Coker’s orders made on 25 November 2015 should be set aside. I agree that each party should bear their own costs of and incidental to the appeal. I also agree that this Court should make orders rather than remitting the matter for rehearing and I agree with the orders proposed as a consequence by Justice Kent. I agree with his Honour’s reasons and have nothing to add to them.
MAY J
I agree with the reasons of Justice Kent in relation to the appeal and also what has just been said by Justice Murphy in relation to the other orders that should be made. The orders then of the Court will be as follows:
IT IS ORDERED:
(1) The Application in an Appeal filed on 20 April 2016 be dismissed.
(2) The appeal be allowed.
(3) The Orders made by Judge Coker on 25 November 2015 be set aside.
IT IS ORDERED UNTIL FURTHER ORDER:
(4)That the Appellant Mother and the Respondent Father have equal shared parental responsibility for the major long term issues of the children, including but not limited to:
(a) a child’s education (both current and future);
(b) a child’s religious and cultural upbringing;
(c) a child’s health;
(d) a child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
(5)That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) they shall inform the other parent about the decision to be made;
(b) they shall consult with each other on terms that they agree;
(c) they shall make a genuine effort to come to a joint decision.
(6) That notwithstanding Order (4) herein:
(a)the Appellant Mother shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with her; and
(b)the Respondent Father shall be responsible for the day-to-day care, welfare and development of the children whilst they are living with or spending time with him.
(7) That the children live with the Appellant Mother in City Y.
(8)That the children spend time with and communicate with the Respondent Father at all reasonable times and in particular each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday or 5.00 pm Thursday should the Friday be a public holiday or pupil free day until 5.00 pm Monday should the Monday be a public holiday or pupil free day.
(9)That unless otherwise agreed in writing between the parties, the children spend one half of all gazetted school holiday periods with each parent as follows:
(a)with the Appellant Mother for the first half of all gazetted school holidays in odd numbered years and with the Respondent Father for the second half of all gazetted school holidays in odd numbered years; and
(b)with the Respondent Father for the first half of all gazetted school holidays in even numbered years and with the Appellant Mother for the second half of all gazetted school holidays in even numbered years.
(10)That both parents have the opportunity to communicate with the children when not in their care at all reasonable times but in particular, unless otherwise agreed in writing, between 6.00 pm and 6.30 pm each Tuesday and Thursday, with the parent not having the children in their care to be responsible for making the calls and the parent having the children in their care to ensure the children are available to take the call in a quiet and private environment.
(11)That the Appellant Mother be responsible for the costs of travel associated with the Respondent Father spending time with the children, including that the Appellant Mother be responsible for facilitating the delivery to and collection of the children from the Respondent Father at the commencement and conclusion of time to be spent by the Respondent Father with the children.
IT IS FURTHER ORDERED:
(12) There be no order as to costs.
(13)That the Court grants to the Appellant Mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.
(14)That the Court grants to the Respondent Father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Father in respect of the costs incurred by the Respondent Father in relation to the appeal.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Murphy & Kent JJ) delivered on 7 June 2016.
Associate:
Date: 10 June 2016
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