Fairfield & Hoffman
[2021] FamCAFC 151
•19 August 2021
FAMILY COURT OF AUSTRALIA
Fairfield & Hoffman [2021] FamCAFC 151
Appeal from: Hoffman & Fairfield [2020] FamCA 193 Appeal number(s): EAA 45 of 2020 File number(s): SYC 962 of 2016 Judgment of: AINSLIE-WALLACE, RYAN & ALDRIDGE JJ Date of judgment: 19 August 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – International relocation refused – Duration of time with the other parent – Adequacy of reasons – Reasons quell controversies – Appellant and ICL bound by the conduct of their case at trial – Application of Pt 15.5 of the Family Law Rules 2004 (Cth) to psychiatric report – Relevant considerations – Attribution of weight –Whether findings in relation to family violence adequate – Appellant and ICL did not seek findings with greater particularity than those made – Failure to consider single expert opinion as to time – Appeal allowed in part – Orders regarding the child’s time with the father during school term be remitted for rehearing – Interim orders made for the child’s time with the father in accordance with the opinion of the single expert – Orders amended by consent – Costs certificates issued for the appeal and rehearing. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 62B, 65DA, 69ZN
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Family Law Rules 2004 (Cth) Pt 15.5, rr 15.41, 15.42
Cases cited: Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232
Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
A v A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751
Baghti & Baghti and Ors [2015] FamCAFC 71
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Chapman v Palmer (1978) FLC 90-510; [1978] FamCA 86
Flanagan v Handcock (2001) FLC 93-074; [2000] FamCA 150
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
House v The King (1936) 55 CLR 499; [1936] HCA 40
Mellick & Mellick [2014] FamCAFC 236
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135
Sahrawi & Hadrami (2018) FLC 93–857 ; [2018] FamCAFC 170
U v U (2002) 211 CLR 238; [2002] HCA 36
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Appeal Division Number of paragraphs: 84 Date of hearing: 30 March 2021 Place: Sydney The Appellant: In person Counsel for the Respondent: Mr Dura Solicitor for the Respondent: Horton Rhodes Legal Counsel for the Independent Children's Lawyer: Ms Ward Solicitor for the Independent Children's Lawyer: Delaney Lawyers ORDERS
EAA 45 of 2020
SYC 962 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS FAIRFIELD
Appellant
AND: MR HOFFMAN
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ
DATE OF ORDER:
19 AUGUST 2021
THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.Order 5.2 of the orders dated 19 March 2020 be set aside.
3.The question of the child’s time with the father during school term be remitted for rehearing before a judge other than the primary judge.
4.Other than as provided for above, the appeal be dismissed.
5.Pending further order, that X, born in 2014 (“the child”), in addition to the time provided for in Order 5.1 and Order 5.3 of the orders dated 19 March 2020, spend time with the father from the conclusion of school on Friday until the commencement of school on Monday in week 2.
6.There be no order as to costs.
7.The Court grants to the mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 mother in respect of the costs incurred by the mother in relation to this appeal.
8.The Court grants to the father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 father in respect of the costs incurred by the father in relation to this appeal.
9.The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
10.The Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 each party and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party and the Independent Children’s Lawyer in relation to the rehearing of these proceedings.
BY CONSENT, THE COURT ORDERS THAT:
11.Order 1 of the orders dated 19 March 2020 is varied by adding at its commencement “Excluding Order 2 of the orders dated 23 September 2019” so that Order 1 becomes “Excluding Order 2 of the orders dated 23 September 2019, all existing parenting orders in relation to X, born in 2014 are discharged.”
12.Order 9 of the orders dated 19 March 2020 is varied by deleting the words “is at liberty to travel” and inserting immediately after the words “the mother” the words “is permitted to travel with the child”.
IT IS NOTED THAT:
A.By reason of the amendment referred to in Order 12 (above), Order 9 of the orders dated 19 March 2020 provides:
(a)The mother is permitted to travel with the child outside the Commonwealth of Australia for a total of four weeks per calendar year on the following conditions:
(i)provision of no less than 30 days written notice except in the case of an emergency
(ii)provision of copies of return airline tickets, an itinerary, accommodation details and travel insurance certificate
(iii)travel to non-Hague Convention countries is not permitted without the written consent of the father.
B.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fairfield & Hoffman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, RYAN & ALDRIDGE JJ:
INTRODUCTION
On 19 March 2020, parenting orders were made pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to the parties’ daughter, X (“the child”). The effect of the orders was to confer Mr Hoffman (“the father”) and Ms Fairfield (“the mother”) with equal shared parental responsibility for the child, for the child to live with the mother and to spend regular and increasing amounts of time with the father. As to the child’s time with the father during school term, this culminated in the child spending time with him five nights each fortnight in two periods of four nights and one night respectively (Order 5). This arrangement commenced in Term 3 2020 and roughly coincided with the child turning six years of age. From the commencement of the school year in 2021, school holidays were effectively divided equally between the parents.
The mother sought orders which would enable her to take the child to live in the United Kingdom. Her relocation application was not granted and an order was made which enabled her to travel abroad for up to four weeks annually (Order 9). The father may do so as well, albeit it is not until 2024 that he can travel with the child abroad for a consecutive four week period (Order 10). Otherwise, the orders provide logistics which are designed to address potential difficulties arising from the poor parental relationship.
The child was 17 months of age when the parties separated. By agreement, she lived with the mother and spent time with the father. Over time, the amount of time the child spent with the father increased and by the time of trial, the child spent time with the father two nights in each fortnight and one day each week. Lest it be thought that these arrangements were easily agreed, nothing could be further from the truth and the parties have needed an array of therapists to help them design their parenting arrangements. Indeed, the father commenced proceedings in relation to the child five days after the parties stopped living together. Since then, the parties have been in constant dispute, particularly in relation to the amount of time that the child should spend with the father. Basically the father pressed for more time with the child than the mother believed was developmentally appropriate for the child and for longer periods than she thought he could manage without him becoming frustrated and possibly angry.
By late 2017, the mother sought orders which would enable her to relocate with the child, which the father opposed. Whether it be in Australia or the United Kingdom, there was no dispute that the child would continue to live with the mother. Even if the child moved to the United Kingdom, the father, who was born and worked in Australia, would not follow. If the mother was not able to take the child to live in the United Kingdom, she would stay in Australia. Thus, the central controversy was whether it would be in the best interests of the child for her to leave Australia where she had always lived and to establish her permanent residence in the United Kingdom. In order to answer that question, the issues raised in the case required consideration of the impact on the mother if her desire to take the child to live in the United Kingdom was thwarted and, if the child moved to the United Kingdom, whether she would be able to enjoy and maintain a meaningful relationship with the father and the potential impact on him.
It is helpful to note at this juncture that both parties carry some vulnerabilities and receive ongoing psychiatric care. The mother has an adjustment disorder attributed to her dealings with the father and presently takes anti-depressant medication. The primary judge accepted that the mother’s mental health would benefit if she returned to live in the United Kingdom and where the mother believed she would no longer require medication. On the other hand, the father’s treating psychiatrist gave evidence that the father also has an adjustment disorder with mild narcissistic traits, but not a personality disorder, and he could be perceived as narcissistic and controlling. However, if the child moved to live in the United Kingdom, the father’s mental health would be adversely affected and there was a real risk that he would develop severe depression. As to the child, she was loved, attached to both her parents and doing well. Fortunately, there were no signs of her being affected by her parents’ poor relationship.
The primary judge was satisfied that the mother’s proposal for relocation was not in the best interests of the child and, contrary to the mother’s position that the child should have four nights per fortnight with the father, and his proposal that he should have six, five nights was in the best interests of the child. The primary judge explained the conclusions in the following terms:
69. Mr F gave clear and cogent evidence that the father would be at real risk of severe depression in the event of a relocation. In my view it is reasonable to infer that his parenting capacity would be compromised if he developed such a degree of depression. In that event, both distance and his mental health would compromise the child's opportunity for a meaningful relationship with her father.
70.On the basis of the evidence of Dr H, I consider it likely that the mother would seek appropriate professional assistance and support if she and the child remain in Australia. I take into account the evidence of Dr H that the mother possesses “mature psychological defences” and in the past “has made sensible lifestyle choices”. The mother gave evidence that she would increase her hours of employment if she remains in Australia. I regard that plan as evidence of the personality strengths which Dr H identified in the mother.
…
73. I agree with counsel for the ICL that “there are upsides and downsides to both outcomes” of these proceedings. It seems to me that the outcome which offers to the child the best prospects of a meaningful relationship with each of her parents is that she remains in Australia.
74. I appreciate that the mother probably will not function optimally on that scenario, at least until she puts in place appropriate professional and personal support mechanisms. I accept that evidence of Dr H as to her personality strengths and “mature psychological defences”. It seems to me to be more probable than not that the mother will adapt to an ongoing life in Australia with the child. On the other hand, the evidence indicated that the father would not be likely to adjust to a relocation and continue to fulfil his role as a supportive parent to the child.
From these passages it will be apparent that an Independent Children’s Lawyer (“ICL”) was appointed to represent the child’s interests and subject to one matter, that the ICL did not favour one outcome over the other. The ICL supported an order that the parties have equal shared parental responsibility for the child (contra the mother’s proposal that she have sole parental responsibility).
By Notice of Appeal filed on 16 April 2020, the mother appeals the orders in their entirety and, if the appeal is allowed, she seeks a remitted rehearing. However, there is agreement that a number of errors in the orders should be addressed and amendments will be made to Orders 2 and 9 accordingly.
Subject to the agreed amendments, the father opposes the appeal and seeks that the orders be upheld.
The ICL submits that the appeal should be allowed, the orders be set aside and the proceedings remitted for rehearing. The ICL’s position on the appeal is tidily summarised as follows:
22)It is submitted that the primary judge has failed to provide adequate reasons for the orders made. Whilst the orders themselves are made within jurisdiction (subject to the apparent oversight in the drafting of Order 9) and are not so illogical as to demonstrate that discretion has miscarried, neither this Honourable Court nor the parties themselves can properly understand:
a)what factual findings have actually been made; and
b) how those findings have then been factored into the reasoning process of the primary judge.
(ICL’s Summary of Argument filed 26 February 2021, p.4)
So that it is clear, the ICL did not appeal from the orders and one of the pivotal issues in the appeal is whether the grounds of appeal presented by the mother raise the issues which concern the ICL. If they were not raised, a question arises as to the extent to which the ICL should be permitted to impugn the judgment absent an appeal. Related to this is the approach adopted by the ICL at trial and, the effect of the ICL not submitting in favour of the orders which the mother says the primary judge erred in failing to make.
BACKGROUND FACTS
The parties met in July 2012 and formed a relationship not long thereafter. They differed about when they commenced living together and when their relationship ended. Those differences were not resolved however there was no dispute that the parties were living together at least from November 2013 and, even if they had already separated under one roof, they ceased to cohabit in February 2016 when the mother and the child left.
The mother was born in the United Kingdom in 1976 and at the time of trial was 43 years of age. The mother moved to Australia in February 2010 and she was granted permanent residence in December 2013. The mother is an allied health worker and at the time of trial, she worked two days per week, which she planned to increase.
The father was born in 1970 in Australia and at the time of trial was 49 years of age. He is a health professional who works in private practice and the public sector.
With the father’s agreement, following the parties’ separation the mother has taken the child to the United Kingdom in July/August 2016, December 2018/January 2019 and July/August 2019. On each occasion the father made a small contribution to the travel costs.
An order was made appointing Dr C (“the single expert”) as a single expert to investigate and report upon various matters concerning the child and the parties. The single expert is a psychiatrist. Relevantly, he interviewed the parties and the child (together with observation sessions) in late April 2018. In his report dated 16 May 2018, the single expert recommended:
154.Unless the Court determines that [the child] has been exposed to abusive parenting by the father as alleged by the mother, I respectfully recommend to the Court the following:
1. Joint shared parental responsibility.
2.For [the child] to remain in her mother's primary care with the gradual increase in [the child’s] time in her father's care to enable significant and substantive contact. This could be achieved by six-monthly increments in overnight contact from the age of four. This will enable [the child] to enjoy every second weekend in her father's care with handovers on Friday afternoon after school, with return to school on Monday morning and a mid-week night in the father's care on the off week with half the school holidays by the time she is aged seven.
3.I support the current intervention with Mr M. It should be recognised that this is a slow process, which will require an ongoing commitment from both parents. This will support [the child’s] evolving relationship with her father and the mother's capacity to allow [the child] to spend increasing periods of time in her father's care.
4.Attendance at a single general practitioner who will provide ongoing recommendations for any further psychological and medical care.
5.Both parents should make an undertaking to the Court to not denigrate the other parent. They should undertake not to drink to excess or use substances of abuse whilst [the child] is in their care. They should undertake not to utilize corporal punishment in their parenting.
6.Both parents should continue their attendance for psychological and psychiatric intervention as per the instruction of their treating therapist and psychiatrist.
The single expert was cross-examined at some length but at the conclusion of his evidence, his opinions and recommendations had not changed.
The proceedings were listed for trial in July 2019 but the case was not ready and the hearing was vacated. It was then listed for hearing to commence in late September 2019. However, the mother failed to file her trial affidavit and that hearing too was vacated. The case went to trial in late November 2019 over five days. All parties, including the ICL, were represented by counsel, in the mother’s case through the pro bono scheme operated by the NSW Bar Association.
After the evidence was closed, the mother agreed to increase the child’s time with the father and for contact during the forthcoming Christmas holidays. Interim orders were made on 22 November 2019 per their agreement. By those orders, the child would spend time with the father as follows:
1. from 11.00 am on 25 December 2019 until 11.00 am on 28 December 2019
2. from 10.00 am on 24 January 2020 until 10.00 am on 27 January 2020
3. from 4.30 pm on 31 December 2019 until 6.30 pm on 1 January 2020
4. from 5.00 pm on 3 January 2020 until 9.00 am on 6 January 2020
5.between 6 January 2020 and the commencement of the school term, from 3.30 pm on Tuesday until 6.00 pm on Wednesday in week 1 and from 9.00 am until 6.00 pm on Wednesday and from 5.00 pm Friday until 9.00 am Monday in week 2
6.from the commencement of the school term, from Tuesday afternoon until Wednesday morning in week 1 and from Friday afternoon until Monday morning in week 2.
The primary judge was satisfied that the parties have a dysfunctional co-parenting relationship [39]. In accordance with the evidence given by the single expert, the parental relationship involved a prominent approach-avoidance couple dynamic which highlighted the incompatibility of the parents’ personality styles.
The mother gave evidence that the father had been violent towards her and he engaged in “abusive parenting” [16]. The primary judge said that the mother’s evidence of his violence included shouting, verbal abuse, derogatory comments and throwing objects at her, which the father largely denied. She gave evidence that the father shouted at the child, which was also denied. Over the father’s objection, three audio recordings made in 2015 and 2016, and were received into evidence which established that the father had directed obscene and abusive language at the mother [27]. However, these incidents occurred in close proximity to the parties’ final separation and in a situation of heightened stress. The primary judge was not willing to assume that this reflected the parties’ current style of interaction [28].
The primary judge was satisfied that the child was not at risk of physical or psychological harm while in the care of either party or that she needed to be protected from exposure to family violence [38]. Furthermore, the primary judge was satisfied that each of the parties is devoted to the child [58] and that the child enjoyed “positive and loving connections with each of her parents” [42]. Indeed, the child’s interactions with each of her parents were “delightful” as described by the single expert [42]. The single expert’s opinion that the easy interaction he observed between the child and each of her parents was inconsistent with the father’s allegation that the mother was excessively anxious in her parenting, and did not support the mother’s assertion that the child has been exposed to angry and neglectful parenting from the father [37] was accepted.
THE ICL’S CASE AT TRIAL
The somewhat unusual position adopted in the appeal by the ICL makes it necessary to record their stance in closing addresses. For just as a party is bound by their conduct of a case at trial, so is the ICL. Of course, there are exceptions to the general proposition that a party, or an ICL, cannot raise a matter on appeal that was not raised in the court below, but this case is not concerned with the exceptions (Metwally v University of Wollongong (1985) 60 ALR 68; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447).
Counsel who then appeared for the ICL made the following closing address:
[COUNSEL FOR THE ICL]: …Your Honour, the independent children’s lawyer and I are at severe quandary about just what we could submit to your Honour as being the most satisfactory outcome for this child. It’s, of course, the major problem is, does the court enable [the child] to travel to the UK and live in County O, or does she stay here and, therefore, the mother stay here as well because both have upsides, and both have downsides, but for different people.
Of course, if the mother is allowed to relocate to, what your Honour could take traditional (sic) notice of is a very beautiful part of the world, she would be much happier and, ergo, [the child] would be much happier. The downside of that, of course, is that the father will be very much unhappier. And it’s not just the father, of course, that’s of concern, but we can’t disregard [the single expert’s] evidence yesterday, that there will be some loss of the father/daughter relationship. And the relationship may well change from being one of father/daughter to being one of being distant and very friendly uncle.
But, of course, [the father] has access to financial – to a financial position where he could quite easily and, compared with his income, quite cheaply fly to the UK whenever he wished, within a parameter of a maximum number of times per year, of course, but they would be normally restricted by his necessary work commitments to probably two, maybe three, a year. And it shouldn’t be a big hindrance to him to have to travel. He travels to Japan for regular skiing trips. And the mother has given evidence that she had no objection to the father taking [the child] to Paris, or to France, or presumably, to places in Europe where skiing is freely – not freely – but where it is available. And he could spend, no doubt, depending on your Honour’s ruling, a suitable amount of time for him to restore, hopefully, the father/daughter relationship.
Now, the other difficulty that we have is, of course, whether one or both parents share in the parental responsibility for [the child]. If the court rules that [the child] can relocate to the United Kingdom, then it would be, I think, obvious that it is the mother who should have sole parental responsibility. If she has to remain in Australia, then, unless one has a crystal ball, one can’t see what the future of these two people trying to agree on something when, I suppose, the reality is that they would not agree on anything even if they had the same view. But the primary considerations that one has to take into account as being important in these people’s lives is there is no mention of any religious difference. And it seems, at least for the present time, that – and the near future, that schooling has ceased to be a problem, although one can perhaps sniff the future fires of contention with the father wanting to change the child’s school to P School in Suburb R, which of course, is very convenient for him working in T Street and living in Suburb U – or Suburb S – than it is for the mother, who lives at Suburb W.
But one has to be concerned about giving one party, either the mother or the father, sole parental responsibility because of the possibility of misuse of that power. And it might well be that these parties, even if they don’t speak to each other, and one would suggest that one way to avoid them coming into contact with each other is for pick up on a Thursday or a Friday, if – of course if [the child] is staying in Sydney, from the school and drop her back at school and, therefore, obviating any need for the parents to come together. And this couple isn’t the only warring couple whose children go to private schools, and private schools are quite used to coping with any difficulties that might arise from things like parent/teacher night, or awards nights or that sort of thing, which is a regular event at private schools. And one of the parties, well, it would be the father, presumably, should not be excluded from these events in his daughter’s life by the fact that he and his ex-wife can’t agree on anything, and don’t like each other.
And it’s patently obvious, from the evidence that’s been before the court, both in the affidavits of the mother and her witnesses, the ones particularly who weren’t called to give evidence, but their affidavits were admitted without objection, give a better picture, along with the tape recordings – or the recordings – that we have of conversations between the two. The witnesses and the tapes and the evidence from the affidavits of the mother give a picture which is far different than it seems the one that they used to put on when they were out and about, where they could put on a front – as it’s called – to make people believe that theirs was a happy relationship, but when the father became frustrated, he became denigrating and shouting and swearing, and not being very pleasant company at all. And the mother, whether it’s because of that, or because she can see it going on for the next 20 years, or because of some problem that she had in her childhood with her father who, it would seem, was distant from the rest of the family, well, it’s impossible to know. But whatever the diagnosis is, it’s not a psychiatric disorder, but it will certainly, hopefully, disappear if she’s allowed to – and [the child], to relocate to the United Kingdom.
I wish, your Honour, that we could offer your Honour a better opinion, that is, one that was more solid, but not having the ability to look into the future, this – there is no answer. There isn’t – we could pick an answer, but whether that is the right answer for these people, of course, is anyone’s guess. But unless your Honour would like me to address you on any particular issue, that’s where the independent children’s lawyer stands.
HER HONOUR: Okay…
(Transcript 15 November 2019, p.258 line 38 to p.260 line 27) (As per the original)
It can be seen that the ICL was concerned about the parties’ inability to communicate in relation to the child but foresaw few issues which would suggest that an order for equal shared parental responsibility would be impractical. Furthermore, the ICL was concerned about the power imbalance that would arise if an order was made that the mother have sole parental responsibility for the child. If the mother was able to take the child to live in the United Kingdom, the practical reality of the child’s life would mean that such an order would be appropriate.
However, the decision as to relocation was so finely balanced that the ICL was unable to articulate a preferred outcome. The inference being that the primary judge could appropriately exercise discretion either way. Although the mother would be happier and her mental health improved if she was able to return to the United Kingdom, the costs to the child would be significant vis-à-vis the damage to her relationship with the father. In this setting, the father’s happiness would suffer. However, he could afford to travel to the United Kingdom reasonably often and the child’s relationship with him could hopefully be restored. Nothing was said about the evidence given by the single expert recommending against relocation, including why that opinion might be rejected.
The ICL considered that the evidence established that the father had been demeaning towards the mother and shouted and swore at her. However, the primary judge could not be satisfied that this is why the mother wants to return to the United Kingdom. Notably the primary judge was not invited to make findings as to physical violence and nothing was said about the frequency of the child’s time with the father. For example, the father’s proposal for contact if the child moved to the United Kingdom was not adopted. If the child continued to live in Australia, the ICL had nothing to say about the different proposals as to time. The inference being that without resolving any of the factual controversies, the primary judge could appropriately exercise discretion in favour of either proposal. Nothing was said about the approach that should be taken to the single expert’s evidence, in particular the recommendation that during school term the child have no more than four nights a fortnight with the father.
THE GROUNDS OF APPEAL
It needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House”). A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519). The authorities with respect to adequacy of reasons are well known and settled (Bennett and Bennett (1991) FLC 92-191). The question as to adequacy depends upon the circumstance of the case. However, a judge’s reasons will be inadequate if this Court is unable to discern from those reasons the foundation for the ultimate decision or if it appears that justice has not been seen to be done.
Other than in one respect, no challenge is made to the statement of the principles by which the decision was reached, and it is to the application of those principles and asserted errors of fact that the appeal is addressed.
The mother presented 14 grounds of appeal which were refined in her Summary of Argument filed on 27 November 2020. This distilled the challenges raised against the orders to assertions that the primary judge erred:
·by excluding most of the report of Dr H, in the attribution of weight to those portions of Dr H’s report that were admitted and giving inadequate reasons in relation thereto (originally Grounds 1, 2 and 3, now Ground 1);
·in giving little or no weight to evidence by Ms G and Ms J (who were not cross- examined) and evidence by the mother in relation to family violence (originally Ground 4, now Ground 2);
·in giving insufficient weight to the impact on the mother’s mental health of her being unable to relocate with the child to the United Kingdom and the effect this would have on the mother’s parenting capacity (Grounds 5 and 6);
·in failing to properly consider the father’s previous offending behaviour towards women (Ground 7);
·in failing to properly consider the mother’s right to decide where she lives and the effect on her being denied that right (Grounds 8 and 9);
·in failing to give adequate reasons for orders as to the child’s time with the father in excess of the recommendations by the single expert witness (Ground 10);
·in giving inadequate reasons for refusing the mother’s application to add her surname to the child’s surname (Ground 11);
·through giving excessive weight to the father’s opposition to the orders, such that it amounts to an improper exercise of discretion (Ground 12);
·in making orders which are confusing and failing to address matters, for example in failing to make any orders for the September and December 2020 school holidays (Ground 13); and
·in discharging orders as to financial support for the child and not making alternate orders (Ground 14).
As already indicated, the complaints about the omissions in the orders and the confusion identified by Grounds 13 and 14 were resolved by agreement and those grounds need not be considered further.
The mother’s therapist (Ground 1)
Dr H is a psychiatrist. After the parties separated, they retained Dr H to assist them with their co-parenting relationship, parenting and negotiating parenting arrangements. Between April 2016 and February 2017, Dr H saw the parties together and separately and the child with each of them before the father terminated his involvement. Nevertheless, the mother continued therapy with Dr H which was designed to assist her with parenting and her co-parenting relationship with the father. The mother saw Dr H monthly and generally alone. Dr H saw the child on a few occasions with the focus of those consultations being on the child’s wellbeing and to assist Dr H in his ongoing therapeutic work with the mother.
Dr H viewed the mother as his patient and explained:
I have not taken on the role of [the mother’s] treating psychiatrist in terms of her own mental health, nor has [the mother] asked me to do so. [The mother] has continued to consult with her own treating general practitioner and psychiatrist, in that regard. We have discussed how parenting, coparenting and the past and current relationship with [the father] impact the mother's mental health and wellbeing, and also the importance of the mother maintaining her mental health and wellbeing in order to fulfil her parenting and coparenting roles in an effective and enduring way. We have discussed strategies to address such issues.
(Report of Dr H filed 8 October 2019, paragraph 10)
In response to a written request from the mother (dated 24 September 2019), Dr H provided a report which answered the questions from the mother. That report was attached to an affidavit by Dr H which was filed in the mother’s case on 8 October 2019. However, the father objected to the report being received into evidence, most particularly because it offended Pt 15.5 of the Family Law Rules 2004 (Cth).
The purpose of Pt 15.5 is found in r 15.42, which explains that the rationale for the Part is:
…
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
However, Pt 15.5 is not an absolute embargo on calling evidence other than through a single expert or by leave, and r 15.41 identifies circumstances in which the restrictions on calling expert evidence arising from this Part do not apply. According to the father, none of the exceptions listed in r 15.41 applied and thus the mother required leave to adduce evidence from Dr H. The ICL agreed that the report did not come within the exceptions in r 15.41. Counsel for the mother did not challenge the application of Pt 15.5 or identify how Dr H’s evidence was protected by one of the exceptions. Rather, the submissions by the mother were to the effect that as these were parenting proceedings, it was better for the Court to have all relevant information “no matter how flawed that evidence was” (Transcript 11 November 2019, p.6 lines 18–19). Furthermore, because the single expert received Dr H’s report and adopted portions of it, it would be better to have Dr H give his firsthand account of his consultations with the mother (Transcript 11 November 2019, p.6 lines 3–19).
The primary judge ruled in favour of the father as follows:
23. Dr H stated in his report:
10.I have not taken on the role of [the mother’s] treating psychiatrist in terms of her own mental health, nor has [the mother] asked me to do so. [The mother] has continued to consult with her own treating general practitioner and psychiatrist, in that regard ...
24. In my view, this statement alone was sufficient to place the evidence of Dr H beyond the scope of material permissible pursuant to Rule 15.41. It was abundantly clear from the body of the report that the opinions expressed by Dr H well exceeded the range permitted by Rule 15.41. For example, Dr H expressed a view as to “the benefits of the proposed relocation to the United Kingdom”.
25. For these reasons I admitted into evidence only paragraphs 141, 142, 143 and 144 of the report of Dr H. These paragraphs appeared under the heading “clinical observations of [the mother’s] personality functioning” and contained no reference to any material obtained by Dr H during therapy sessions which included the father.
In terms of the application of r 15.41, the mother contends that the primary judge erred by failing to appreciate that Dr H worked on psychological interventions and as such he is a treating psychiatrist. This is consistent with Dr H’s evidence as to the nature of his work with the mother and also the single expert’s opinion cited at [48] of the trial reasons. Although we agree that the primary judge should have concluded accordingly, this is not the end of the matter and the question to be answered is whether as a treating medical practitioner, Dr H’s evidence went beyond the scope permitted by r 15.41(1)(a).
Rule 15.41(1)(a) provides:
(1) This Part (other than rule 15.55) does not apply to any of the following:
(a)evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i)the results of an examination, investigation or observation made;
(ii)a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;
In this respect, we agree with the primary judge that Dr H’s report went beyond the scope of this exception, particularly in relation to his view of the father’s conduct towards the mother. Furthermore, the fact that Dr H had previously been jointly retained in seemingly confidential arrangements was properly taken into account as a reason why the report should be excluded. This is sufficient to reject the mother’s contention that the trial reasons on this issue were inadequate.
But even if the primary judge erred in the application of Pt 15.5 we do not understand how Dr H’s evidence might possibly have affected the outcome. This is because the mother gave evidence about her dealings with the father and, the single expert’s opinion about the effect of relocation on the mother and the nature of the parental relationship accorded with the opinion by Dr H. In this regard, the primary judge accepted the single expert’s evidence that:
39.Regrettably, the child has been exposed to a dysfunctional co-parenting relationship, which [the single expert] described in the following terms:
129.Both their first couple therapist, Ms K, and the current therapist, Mr M, identified a prominent approach-avoidance couple dynamic. It was thus probable that this had been intractable, despite assertive therapeutic intervention for the parents individually and as a couple. This was most concerning. The intransigence of this dynamic highlighted the incompatibility between the parents' personality styles. Dr H's detailed correspondence highlighted the longstanding adversarial nature of the parental interaction, which had been further exacerbated by the current adversarial Family Court proceedings. This had fuelled the mother's desire to return to the UK, which in turn amplified the father's anxiety that he would be excluded from his much-loved daughter's life. When the mother minimised his role, he responded in a defensive and critical manner which in turn amplified her reactivity as she perceived him to be angry and controlling. The father magnified the importance of his engagement in shared activities, such as swimming, given the emotional deprivation experienced as a child.
…
48. [The single expert] expressed these opinions in his report:
131.The importance of [the child’s] relationship with both her parents was clearly identified in this assessment. Dr H had previously opined that the mother's mental health would improve in the context of her proposed relocation to the UK. I concur with this view. She readily identified the longstanding conflictual nature of her relationship with the father as the source of ongoing stress. She had the opportunity to source social support from family and longstanding friendships in the UK. Despite assertive psychological and psychiatric intervention, the stress associated with remaining in Australia against her wishes was likely to persist. Dr H had considered that this would impact upon [the child] psychological and emotional development. Although this may be the case, [the child] was currently progressing well and had been protected from her mother's emotional vulnerability and the chronic parental conflict. The proposed relocation to the UK would necessarily result in the breakdown of the close and loving relationship which [the child] shared with her father. This would be a source of distress and may impact on her subsequent emotional and personality development. There is no doubt that the father would be acutely distressed by the breakdown of this loving relationship. His early developmental exposure to separation and loss rendered him vulnerable to adjustment issues.
132.Thus, the proposed relocation was likely to improve the mother's mental health and diminish that of her father. [The child] was identified to be competent and resilient child who was likely to cope with the disruption of relocating to the UK. She was likely to have her developmental needs adequately met by her mother and her social network in the UK. That said, the loss of her father's role in her life would remain a significant loss into the future.
To the extent that the mother complains that the admitted paragraphs needed to be considered in the context of the entire report, a forensic decision was taken that even with the balance of the report having been rejected she relied on those remaining paragraphs. In other words, these paragraphs were received into evidence at her behest. In this respect, the mother is bound by the conduct of her case and cannot complain about that course now.
These challenges have not been established.
Family Violence (Grounds 2 and 7)
One of the central controversies in the trial was the mother’s contention that the father was a perpetrator of family violence and the effect this had and the potential to have on her and the child. For example, relocation would protect her from his continued hostility and abuse which might result in her being able to cease antidepressant medication and alleviate the stress she lived under through her close dealings with him. However, the risk was not sufficiently serious that the child should not have unsupervised time with the father and, as mentioned earlier, it was at a level where the mother said frequent overnight time, including longer periods during school holidays, was appropriate and beneficial to the child. As the mother explained in the appeal, her proposals offered a nuanced response to the child’s need for an ongoing relationship with her father taking into account the risks arising from his propensity to frustrated and aggressive behaviour.
The mother’s affidavit evidence on this topic was comprehensive (see paragraphs 83-171 of the mother’s affidavit filed 18 September 2019) albeit a deal of the behaviour that concerned her (for example his philandering) could not be viewed as violence. On the other hand, the father made a blanket denial of having ever verbally abused or shouted at the mother, of controlling her or that on 27 December 2015 he slapped her across the shoulder while she was holding the child (father’s affidavit filed 21 August 2019, paragraphs 209, 210, 217). He admitted that in 1997 he was charged with common assault and trespass and that he scaled a drainpipe and entered a former partner’s home carrying a knife. The father said of this that his actions were stupid and caused distress [17]. Counsel for the ICL cross-examined the father in relation to the audio recordings of him using aggressive and abusive language towards the mother, including in the child’s presence. With obvious reluctance, the father eventually said his actions were inappropriate but should be evaluated as arising from the stress of a failing relationship.
In addition to her evidence, the mother called evidence from Ms G, who was a former live in au pair and Ms J, who lived with the parties for a few months. Both gave evidence of seeing and hearing the father scream at the mother, of him using demeaning and belittling language towards her and each gave examples of him using coercion to control her. They were not cross- examined. Counsel for the mother did not ask the father any questions arising from their evidence although, counsel for the ICL who cross-examined next, did. Under cross- examination by counsel for the ICL, the father rejected much of this evidence and minimised the effect of what he conceded. Unsurprisingly, the witness’s evidence was accepted.
However, because the events about which they gave evidence occurred towards the end of the parties’ relationship, the primary judge did not consider that these matters were of ongoing relevance [64]. Nor, was this unchallenged evidence taken into account in the evaluation of the reliability of the mother’s evidence as to the father’s behaviour towards her and the child and her capacity to deal with him.
According to the mother, this had the effect of the primary judge misapplying s 60CC(2)(b) and s 60CC(2A) of the Act through the failure to give greater weight to the need to protect the child from psychological harm from being exposed or subjected to family violence than was given to the benefit to the child of having a meaningful relationship with, relevantly the father. As the challenge suggests, it was the importance to the child of being able to continue to enjoy her meaningful relationship with the father that drove the outcome of the relocation application and the extent of the child’s time with him. The ICL agrees with the mother and says the primary judge failed to make relevant findings, including why some of the evidence relied on by the mother was rejected – either by way of a failure to refer to the evidence or to address the mother’s argument about the way in which the evidence demonstrated the ongoing impact of family violence. This is said to be a failure to give adequate reasons, but we think the better view is that, if established, it is a failure to take into account relevant considerations in the House sense.
Turning then to the trial reasons, in relation to the questions around family violence it is apparent that the primary judge was concerned to understand how evidence of past family violence informed the assessment of future family violence, including the risk of verbally abusive behaviour towards the mother and child. In order to make that prediction, the primary judge was particularly interested in the situation that existed in 2019 and looked for evidence in the mother’s case of more recent (post 2016) violent or abusive behaviour from the father. None was identified.
Because of the seriousness of this issue, we took considerable time with the mother to have her identify evidence concerning the father’s behaviour which post-dated that of the two witnesses and demonstrated his current style of communication. We were taken to evidence that on 6 December 2017 the child returned from time with the father very irritable and told the mother that he shouted at her. Otherwise the mother relied on a large bundle of emails and text messages which she ultimately agreed were not tendered into evidence. As counsel for the ICL pointed out, there was very little evidence (we were given none and have been unable to identify any for ourselves) as to the father behaving in a demeaning or abusive manner towards the mother or child in more recent times; which we understood to mean in 2017, 2018 or 2019.
A high level summary of the mother’s evidence concerning family violence was undertaken at [16]. Notwithstanding the father’s denials, the audio recordings provided some corroboration for the mother’s evidence. The father’s assault and trespass against a former partner was identified [17]. The primary judge continued and was satisfied that the father used obscene and abusive language in the audio recordings [27], had behaved in an arrogant and demeaning manner towards the mother on occasions [60]–[62] and that at least in relation to the father’s text messages of 12 November 2016, his regret may well have been tactical [63]. In other words, it was not genuine and was expressed to dispel the support this evidence might lend to the mother’s case. The two witnesses’ evidence was referenced at [64] but contextualised as related to the end of the parties’ relationship. Although not expressly stated as such, this would seem to acknowledge evidence by the single expert of the father’s sense of entitlement which leads to frustration and can lead to outbursts of anger, particularly at times of “additional stress” [53].
The primary judge made numerous references to the effect of the father’s behaviour towards the mother and, for example, incorporated information from the mother’s therapist about the mother’s account of the father’s constant criticism and undermining behaviour [55]. Also that the mother regarded the long standing conflictual nature of her relationship with the father as a source of ongoing stress [48].
Although we agree with the ICL that these, what might be termed high level findings of the evidence concerning family violence, lack the specificity that is generally necessary, we do not agree that in this case the lack of detailed findings sounds in error. This is because the reasons provide more detail than either the mother or the ICL asked of the primary judge. The task of a judge in the position of the primary judge is to quell relevant factual controversies. Not every factual dispute must be resolved (Baghti & Baghti and Ors [2015] FamCAFC 71 at [63]–[64]) and in this respect the trial reasons will respond to the case presented at the end of a trial. For it is at this stage that issues will have been clarified and something that might have been regarded as relevant and/or controversial at the start of the trial might have been neutralised and faded into insignificance by the end. Closing addresses are where pivotal issues of fact and law are highlighted and the findings sought are identified.
The ICL’s submissions have already been set out and it is apparent that the primary judge was not asked to make any findings about family violence, either as to the facts or the mother’s evidence of what she termed the father’s parental abuse.
Counsel for the mother provided written closing submissions and, although the opportunity was given for these to be supplemented by oral addresses, including in response to those made by the father and ICL, nothing further was said. The mother submitted that the primary judge would accept her evidence of “abusive parenting”, the evidence given by the two witnesses and find that the audio recordings showed the father behaving in a manner that was dismissive and demeaning and which took place in the presence of the child. Nothing was said about the slap in 2015, probably because the father was not questioned about it, and the primary judge was not asked to make findings with any greater degree of specificity than was done.
Considered in the light of the closing addresses it can be seen that the trial reasons respond to the identified issues in greater detail than the ICL suggested was required and in relation to family violence, consistent with the case put by the mother. Before us, the ICL was concerned that the primary judge said nothing about the slap and failed to say how the incident in 1997 was factored into the decision. Although we agree with the ICL that these matters were not taken into account as supporting the mother’s case of parental abuse and the effect on her well- being, the plain answer is that no-one submitted that findings to this effect should be made.
Finally, it needs to be understood that the mother’s evidence concerning the father’s behaviour towards her and the child, including the audio tapes and the two witnesses was examined by the single expert whose opinion that the father did not present a risk to the child was accepted. As to the effect of the father’s behaviour on the mother, that too was accepted but both the single expert and the primary judge were of the view that this was not at such a level that her parenting was affected and that she had the strength of personality and assistance to cope with its adverse effects.
It is important that the violence and abuse of which the mother and her witnesses gave evidence was not at the upper level of seriousness and in the circumstances of how the case was run (including that the findings accord with the expert evidence), the approach taken by the primary judge was adequate. The effect of this is that the submission that s 60CC(2)(b) and s 60CC(2A) were misapplied should be rejected. However, we think it is appropriate to acknowledge that if the case concerned abuse and violence higher in the scale of seriousness, it would be incumbent on a trial judge to engage s 69ZN of the Act and require more targeted and detailed submissions in relation to that issue than the mother and ICL proffered in this case and having done so, to make detailed findings as to the facts and their significance (Amador & Amador (2009) 43 Fam LR 268 at 95-96; Sahrawi & Hadrami (2018) FLC 93–857).
Ground 2 has not been made out. Given that Ground 7 is concerned with the failure to take the incident in 1997 into account against the father, for the reasons we have given on this issue under the rubric of Ground 2 that challenge must also fail.
The mother’s health and her right to live where she wants (Grounds 5, 6, 8 and 9)
The mother understands that she has the right to live and work where she likes. Cases such as AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 establish that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live. As this Court said in Adamson & Adamson (2014) FLC 93–622 (“Adamson”):
65. …The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
66.These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
No-one involved in this case doubted the mother’s freedom of movement which is so well understood it did not require comment. No doubt this explains why there is no discussion of these principles in the trial reasons. Nor is anything said which might suggest that the primary judge thought otherwise and the reasons for judgment proceed on the shared understanding that the mother was entitled to move to the United Kingdom and whether or not she did was her choice. Whether or not the child moved was to be determined with the child’s best interests as the paramount consideration and in accordance with Pt VII of the Act. In support of this unremarkable proposition, the primary judge cited MRR v GR (2010) 240 CLR 461. Thus, although we agree with the mother’s submission that the primary judge did not discuss the mother’s freedom of movement, for the mother to establish error it was necessary to establish that the primary judge acted inconsistently with this principle. This did not happen.
In support of the balance of these grounds, the mother submitted that the primary judge:
·gave little weight to the mother’s emotional and psychological wellbeing and therefore that of the child if relocation was refused;
·failed to consider the mother’s mental health diagnosis or prognosis; and
·failed to consider the mother’s lack of support in Australia and the general quality of her life if she stayed with the child (mother’s Summary of Argument filed 27 November 2020, paragraphs 4.1–4.3).
Contrary to the mother’s submissions and, as has already been amply demonstrated, the evidence concerning the mother’s mental health diagnosis and prognosis was heavily referenced in the trial reasons. Moreover, the expert evidence about the benefits for the mother’s mental health if she returned to the United Kingdom was accepted, as was the impact on the mother’s health (prognosis) if she remained living in Australia. Through the single expert, the primary judge acknowledged the opinion given by Ms L, who is a clinical psychologist and the mother’s therapist, as to the mother’s struggle to cope with the father’s criticisms and undermining behaviour and the mother’s difficult financial circumstances [55].
Reference has already been made to Dr H’s opinion which was accepted by the single expert and in turn adopted by the primary judge [48]. This includes an acknowledgement of the family and social supports which the mother had available in the United Kingdom. Simply put, the mother’s case as to the benefits for her in returning to the United Kingdom was well recognised in the trial reasons. So too was the prospect that the stress for the mother if she remained in Australia might adversely impact her parenting capacity and thus the child’s psychological and emotional development. However, no challenge is made to the single expert’s opinion as to the child’s functioning, that the child was progressing well and there was no evidence that the child had been affected by the “chronic parental conflict” [48] (citing the report of the single expert at paragraph 131).
As to the potential impact on the child living with the mother in this situation, the primary judge accepted the single expert’s evidence:
48. [The single expert] expressed these opinions in his report:
…
132.Thus, the proposed relocation was likely to improve the mother's mental health and diminish that of her father. [The child] was identified to be competent and resilient child who was likely to cope with the disruption of relocating to the UK. She was likely to have her developmental needs adequately met by her mother and her social network in the UK. That said, the loss of her father's role in her life would remain a significant loss into the future.
Furthermore, both the single expert and Dr H commented favourably on the mother’s coping mechanisms and her willingness and ability to access support (in Australia). As noted in the trial reasons, the single expert agreed with Dr H’s opinion:
57.[The single expert] here referred to the four paragraphs of the report of Dr H which survived objection on behalf of the father. Dr H reported as follows:
141.I have observed [the mother] to have strong personality functioning. I have outlined above [the mother’s] demonstrated strong reflective functioning, self/other boundaries, maintenance of parenting and occupational roles, and adaptive coping during very trying circumstances in recent years.
142. [The mother] uses mature psychological defences such as sublimation, suppression, anticipation, altruism and humour. I have not observed her to make recurrent use of immature defences such as externalising, projecting, splitting or idealising/devaluing. Where [the mother] is tempted towards a more immature response, she shows an ironic awareness of the same, and mostly corrects herself, as in the example above where she is tempted to say "no" to [the father] in a context where he has done the same to her in the past.
...
144. Whilst our focus in therapy has been in the domain of parenting, I observe that in other domains of functioning, [the mother] has considered and has made sensible lifestyle choices in keeping with her own values and circumstances. Examples in recent years her decision to change workplaces/work arrangements, and her decision to move [the child’s] day care close to home so that she could utilise the same more flexibly. I observe that where [the mother] has had vulnerabilities, she has sought professional assistance, for example in domains such as her depression and ADHD, and appears to have made good use of that professional assistance.
We have already set out the primary judge’s conclusion at [70] (above at [6]) where reference is again made to this evidence and the mother’s plan to increase her hours of employment and improve her personal circumstances if she remains in Australia. The mother’s contention that these matters were overlooked or given insufficient weight, cannot be sustained. It is unarguable that they were weighed heavily in favour of relocation but, ultimately, were outweighed by other relevant and compelling factors.
Although the issue does not arise from the grounds of appeal, it is appropriate to address the mother’s submission that the primary judge should have crafted a set of arrangements which would have allowed the child to live in the United Kingdom and spend more time with the father than the mother proposed would occur. Returning to Adamson at [67], the mother’s proposition engages the following principle:
67.Consequently, whilst the Court is not bound by the proposals advanced by parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon best interests. As Callinan J observed in AMS v AIF (cited with approval by Gummow and Callinan JJ in U v U (with whom Gleeson CJ, McHugh and Hayne JJ agreed)):
It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.
(Footnote omitted)
Thus, while it was open to the primary judge to adopt the father’s evidence about the amount of contact he might be able to have if the child lived in the United Kingdom, it would have been quite wrong to treat this alternate proposal as the relief sought by him. Moreover, it was open to the mother to adopt the father’s evidence and advance her relocation application on the basis that the child would spend time with him four times annually. But this did not happen. Having herself rejected this possibility the mother cannot complain on appeal that the primary judge should have adopted it (Mellick & Mellick [2014] FamCAFC 236).
These grounds have not been established.
The father’s opposition to relocation (Ground 12)
By Ground 12, the mother contends that the primary judge gave excessive weight to the father’s opposition to the order such that it amounts to an improper exercise of discretion. Nothing was said in support of this challenge and it need not be discussed at length. Suffice to say the primary judge was required to engage with the alternate proposals and the evidence called in the father’s case as to why relocation would not be in the best interests of the child (A v A: Relocation Approach (2000) FLC 93-035). Simply put, it was the effect on the child on granting or refusing relocation which was the ultimate determinate.
This challenge has not been made out.
The child’s time with the father (Ground 10)
The single expert’s recommendation as to the child’s time with the father during school term is set out at the commencement of these reasons. To recap, it was his opinion that the child should not have more than four nights each fortnight with the father. Essentially the single expert explained that for more extensive shared care to work from the child’s perspective, it was necessary for her parents to be able to show respectful communication, trust, good will and the capacity for effective problem solving, which was not the case. The father sought to have six nights per fortnight commencing in Term 3 2020, whereas the mother proposed orders in accordance with the single expert’s opinion. It may be that the primary judge overlooked this aspect of the evidence and, there is no mention of it in the trial reasons. Having agreed that the child should have substantial and significant time with the father, the controversy as to time was dealt with as follows:
78.In terms of arrangements for the child to spend time with the father, I am not bound by the proposals of either party. Accordingly, I will make orders which appear to me to best to serve the interests of the child
The mother contends that these reasons are inadequate. The ICL adopts the mother’s submission. The father avoided this assertion and simply said that it was open to the primary judge to make these orders. Although he attempted to demonstrate that the single expert had embraced this as a possible outcome, when taken to the trial transcript, it was conceded that he had not.
Consistent with authority, it is not suggested that the primary judge was bound by the evidence and opinion given by the single expert (Hall and Hall (1979) FLC 90-713). As to the approach to expert opinion, it is as set out in Muldoon & Carlyle (2012) FLC 93-513 at [104]:
It is not in doubt that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight. Departure from it in such circumstances requires careful consideration; however the ultimate decision must be that of the trial judge: Friscioni & Friscioni [2010] FamCAFC 108; Hall and Hall (1979) FLC 90-713 at 78,819; D & P [2006] FamCA 170; Andrew & Delaine [2009] FamCAFC 182, and Hannigan & Sorraw [2010] FamCAFC 257 at [136].
The effect of this, is that if the primary judge determined that for whatever reason the single expert’s evidence should not be accepted, it was necessary to explain why not. Alternatively, to show that it was accepted but to explain why other more pressing aspects of the child’s welfare pointed to a different outcome. The somewhat laissez-faire approach adopted in closing addresses, particularly by the ICL, did not enable the primary judge to, as the ICL put it, merely choose the mid-point between the different proposals. Consideration of the expert evidence was required and some, albeit brief, explanation given for what was, after all, an order that would continue for many years.
This ground has been established.
The child’s surname (Ground 11)
In mid-2019, the mother asked the father to agree to change the child’s surname by adding her surname. Thus, the child would be have a hyphenated surname which recognised both her parents. The primary judge declined to order a hyphenated surname and noted that the request was made five years after the child was born and named. Without expressly saying so, it can be seen that the primary judge was mindful of the regard generally given to potential confusion and embarrassment that might arise if a child is required to change their name (Flanagan v Handcock (2001) FLC 93-074; Chapman v Palmer (1978) FLC 90-510). The primary judge continued:
77.… The child has now commenced her formal education and, presumably, was enrolled with the name which appears on her birth certificate. It may well be confusing for her, if her name suddenly is changed within her school community and friendship group.
These reasons are succinct but adequate. They are founded on factors relevant to the child and stand above the wishes of the parents. Other than to question the decision, the mother did not identify a proper basis for appellate intervention. This was a quintessential exercise of discretion and it has not been demonstrated that the decision was plainly wrong.
This ground has not been established.
CONCLUSION AND COSTS
Other than in relation to the child’s time with the father during school term, the mother has failed to establish error. Thus the appeal will be allowed in part and the controversial aspect of the orders concerning time during school term will be set aside. Other than the orders that are to be made by consent, the appeal against the remaining orders will be dismissed.
In closing addresses, the parties were invited to give brief submissions as to what should happen if the school term orders were set aside. It was common ground that interim orders should be made to at least provide a platform for the child’s ongoing contact with the father and to minimise the prospect of further disagreement pending the remitted rehearing. The father pressed for interim orders identical to those set aside. Although the mother agreed that this could be done, we are not satisfied that this was a considered decision, given, as it was, quickly and in the final moments of a complex hearing.
It is understood that the child has spent time with the father, five nights in each fortnight, in accordance with the orders. However, we do not have evidence about the operation of the orders and do not know whether they have worked well or created difficulties. The better course is therefore for there to be interim orders consistent with the expert evidence and the question of an additional night to be considered at first instance and with more recent evidence than is available to us.
Each of the parties has achieved a measure of success and an order for costs would not be appropriate. However, the conditions for the issue of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) are established and the parties and ICL will be granted certificates for the appeal and the remitted rehearing.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Ryan & Aldridge. Associate:
Dated: 19 August 2021
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