FORBES & BARLOW
[2011] FamCAFC 76
•7 April 2011
FAMILY COURT OF AUSTRALIA
| FORBES & BARLOW | [2011] FamCAFC 76 |
| FAMILY LAW - APPEAL – CHILDREN – relocation – adequacy of reasons – whether the Federal Magistrate failed to provide adequate reasons for an order that the child spend specified time with the father on a weekday – where the mother and father lived some distance apart – whether the Federal Magistrate failed to provide adequate reasons for an order requiring the mother to relocate to within 20 kilometres of the father’s residence upon the child turning three – whether the Federal Magistrate failed to consider whether the orders were reasonably practicable – merit found in cross appeal – cross appeal allowed – orders appealed against set aside – matter remitted for re-hearing. FAMILY LAW - APPEAL – COSTS OF APPEAL – costs certificates – where the cross appeal was allowed on a question of law – costs certificates awarded to both parties pursuant to the Federal Proceedings Costs Act 1981 (Cth) in respect of the cross appeal and the re-hearing. |
| Family Law Act 1975 (Cth) s 65DAA Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 & 9 |
| Bennett and Bennett (1991) FLC 92-191 MRR v GR (2010) 240 CLR 461 |
| CROSS APPELLANT: | Ms Forbes |
| RESPONDENT: | Mr Barlow |
| FILE NUMBER: | BRC | 11228 | of | 2008 |
| APPEAL NUMBER: | NA | 67 | of | 2009 |
| DATE DELIVERED: | 7 April 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Strickland and Ainslie-Wallace JJ |
| HEARING DATE: | 28 September 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 31 July 2009 (date of orders) 5 February 2010 (date reasons delivered) |
| LOWER COURT MNC: | [2009] FMCAfam 1455 |
REPRESENTATION
| COUNSEL FOR THE CROSS APPELLANT: | Mr Baston |
| SOLICITOR FOR THE CROSS APPELLANT: | John McDonald Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Brasch |
| SOLICITOR FOR THE RESPONDENT: | Evans & Co Family Lawyers |
Orders
The cross appeal be allowed.
Orders 4 and 5 made by Federal Magistrate Wilson on 31 July 2009 be set aside.
The proceedings be remitted for hearing before a Federal Magistrate of the Federal Magistrates Court at Brisbane, with a request for an expedited hearing.
There be no order for costs.
The Court grants to the cross appellant mother a costs certificate pursuant to 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 cross appellant mother in respect of the costs incurred by her in relation to the cross appeal.
The Court grants to the respondent father a costs certificate pursuant to 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 respondent father in respect of the costs incurred by him in relation to the cross appeal.
The Court grants to each party a costs certificate pursuant to 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 in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the re-hearing of the application.
IT IS NOTED that publication of this judgment under the pseudonym Forbes & Barlow is approved 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: NA 67 of 2009
File Number: BRC 11228 of 2008
| Ms Forbes |
Cross Appellant
And
| Mr Barlow |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Cross Appeal filed on 28 August 2009 the cross appellant mother appeals against certain of the parenting orders made by Federal Magistrate Wilson on 31 July 2009 with respect to the parties’ child J born in May 2008.
The orders made by the Federal Magistrate were as follows:
(1)That the parties equally share the parental responsibility for the child [J] born … May 2008.
(2)That each party shall have the responsibility for the day to day care, welfare and development of [J] while he is in that party’s care.
(3)That, unless the parties otherwise agree, [J] will live with his mother.
(4)That, unless the parties otherwise agree, [J] shall spend time and communicate with his father as follows:
(a)Until [J] turns 3 years of age:
(i)In each alternate week, commencing on 6 August 2009, from Thursday afternoon at 4:30 pm until Sunday afternoon at 5:00 pm;
(ii)In each alternate week, commencing on 1 August 2009, on Saturday from 12 noon until 4 pm;
(iii)In the same week as falls pursuant to order (ii) hereof:
A.If the father is working, from 4pm – 6pm on Wednesday;
B.If the father is not working, from 1pm – 6pm on Wednesday.
(iv)At any other time, on the Sunshine Coast, for a period of not more than four (4) hours, on the father giving the mother not less than three days written notice (as to which SMS text shall be sufficient compliance) of his intention to exercise such time.
(b)From no later than [J]’s third birthday, the mother shall relocate so as to live within a radius of 20 kms of the father’s residence, and [J] shall spend time with the father:
(i)In each alternate week from Thursday afternoon at 4:00 pm until Sunday afternoon at 6:00 pm;
(ii)In each other week, from Thursday afternoon at 4:00 pm until Friday afternoon at 6:00 pm
(5)That for the purposes of Order 4, changeover shall be effected, unless the parties otherwise agree:
(a)In the case of the time spent pursuant to Order 4(a)(i) hereof at the Service Centre, [N]
(b)In the case of the time spent pursuant to Order 4(a)(ii) hereof at [M] Street Station
(c)In the case of the time spent pursuant to Order 4(a)(iii) hereof at McDonald’s Restaurant at [O];
(d)In the case of the time spent pursuant to Order 4(a)(iv) hereof at the Mother’s residence
(e)In the case of the time spent pursuant to Order 4(b) hereof at the residence of the parent who then has the care of [J].
(6)That, unless the parties otherwise agree, in each year for the weekend in which Mother’s Day or the mother’s birthday falls, notwithstanding earlier orders, [J] shall spend that weekend with the mother.
(7)That, unless the parties otherwise agree, in each year for the weekend in which Father’s Day or the father’s birthday falls, notwithstanding earlier orders, [J] shall spend that weekend with the father in accordance with either Order 4(a)(i) or Order 4(b)(i) hereof.
(8)That, unless the parties otherwise agree Order 4 hereof will be suspended during the period 24 – 27 December each year and unless the parties otherwise agree, [J] shall spend time:
(a)In odd numbered years until [J] turns 3 years of age, with the father for the whole of that period;
(b)In even numbered years until [J] turns 3 years of age, with the mother for the whole of that period;
(c)Thereafter, in odd numbered years with the father from 4.00pm on 24 December until 4.00pm on 25 December;
(d)With the father in even numbered years2010 [sic] from 4.00pm on 25 December until 10.00am on 27 December;
(e)With the mother in odd numbered years from 4.00pm on 25 December until 10.00am on 27 December; and
(f)With the mother in even numbered years from 4.00pm on 24 December until 4.00pm on 25 December.
(9)Each parent shall keep the other informed as to their residential address, landline telephone number, email address (if any) and emergency mobile telephone number and advise the other of any change to those details within forty-eight (48) hours of any change occurring.
(10)That each party irrevocably authorises any person or institution including but not limited to health care professionals, teachers, sporting and recreational organisations and educational establishments to release any and all information either verbally or in writing as reasonably requested by either of the parents in respect of [J].
(11)That in the event that [J] requires medical or hospital treatment, the parent then caring for [J] will immediately inform the other parent.
(12)In the event that [J] is prescribed any medication each parent must advise the other of the name of the medication, its purpose and the appropriate dosage. For the purpose of this order notification should be given either in writing or email to the other parent.
(13)Neither party will denigrate the other to [J] or in the presence or hearing of [J] nor shall either party allow or be complicit in allowing any third party to denigrate either of the parents in the presence or hearing of [J].
The mother only appeals orders 4 and 5.
Factual Background
At the time of the hearing before the Federal Magistrate the father was aged 25 years and the mother was aged 22 years.
At the time the parties commenced their relationship, both were living on the Gold Coast. The mother fell pregnant very early in the parties’ relationship. After learning she was pregnant the mother moved in with the father, who lived with his grandfather.
The parties’ child J was born in May 2008.
In November/December 2008 each of the mother’s parents was offered work on the Sunshine Coast and, as a result, they and the other members of the mother’s family moved to live there. Her parents bought a house at A.
Meanwhile there were tensions and disagreements associated with the living arrangements of the parties and they separated in December 2008.
On 11 December 2008 the father brought an urgent application for orders restraining the mother from moving the child from the Gold Coast or, in the alternative, if the mother had moved away from the Gold Coast, an order that she return to the Gold Coast.
The father sought final orders that the parties share equal parental responsibility for the child and, if the mother was living on the Gold Coast, that they share equal time with the child. In the event that the mother was not living on the Gold Coast, the father proposed that the child live with him and that the child spend time with the mother.
The mother’s Response sought orders that the child live with her and proposed a regime of time that the child would spend with the father that increased as the child became older.
On 15 December 2008 the parties participated in dispute resolution and reached an agreement for the child to spend time with them on a week about basis.
In January 2009, without the consent of the father, the mother moved with the child to the Sunshine Coast to live in a flat rented in her sister’s name. She remains living there. She does not have a car or a driver’s licence, although she has a learner’s permit. She does not work and she is in receipt of government benefits. Her parents and her siblings all live nearby.
On 27 February 2009 interim orders were made providing for the parties to have equal shared parental responsibility for the child and for the father to spend time with the child from 5:00pm Friday afternoon until 5:00pm Sunday afternoon each alternate weekend and from 5:00pm Saturday until 5:00pm Sunday on the intervening weekend.
The final hearing came before Federal Magistrate Wilson on 22 and 23 June 2009. His Honour made final orders on 31 July 2009 and delivered his reasons for judgment on 5 February 2010.
The father filed a Notice of Appeal following the making of the final orders, which he subsequently discontinued.
The mother filed a Notice of Cross Appeal on 28 August 2009.
The reasons for judgment of the Federal Magistrate
His Honour found that both parties proposed the child would live with the mother and the amount of time spent by him with the father would depend on his age. Each party had nominated three years of age as being a “milestone” at which a change in arrangements could appropriately occur.
The Federal Magistrate recorded that the case gave rise to a number of “interconnecting” considerations, namely, what time was appropriate for a child of J’s age, whether it was compatible for such a care regime for the parents to remain living where they do, and whether if the parents living in geographically separate locations impacted on a more desirable care regime for the child, either parent should be “forced” to relocate.
Both parents proposed an order for equal shared parental responsibility. His Honour was satisfied that this was in the child’s best interests and recorded that an order would be made accordingly.
His Honour found that the mother moved to the Sunshine Coast for the support of her family and noted that although she had lived on the Gold Coast before separation, she had lived with her parents or the father. The mother was receiving government benefits. His Honour accepted that the mother required the support of her family and said:
44.… I accept that having her mother and sister close by to provide whatever assistance is required is of comfort to the mother.
Mr M, the author of a family report that was before his Honour, suggested in that report that any benefit received by the mother from living near her parents could be available to her no matter where she lived. His Honour, however, said:
50.… I accept, that she draws comfort from the support offered to her by her mother and siblings. There would be intangible benefits associated with the mother living in close proximity to her mother particularly at a time when [J] is still very young.
His Honour found that the mother did not have the financial resources to obtain accommodation on the Gold Coast by herself.
His Honour had before him evidence from the family consultant, Mr M, and Dr I, a clinical and developmental psychologist with expertise in child development. His Honour found that there were shortcomings with respect to the evidence of both of these experts, but after analysis, his Honour preferred the evidence of the psychologist and found that it was not “presently” in the child’s best interests to spend equal time with each of his parents.
His Honour noted that both parties believed that the child should have a meaningful relationship with each of them and that he should spend time with the father. The issue though was “how that could be facilitated and what length of time with the father was appropriate”.
Based on the evidence of the psychologist, his Honour found that while it was in the child’s interests to spend time with the father, it would not be in his best interests to spend more than three nights per fortnight with the father until the child turned three years of age.
In considering the time to be spent with the father, his Honour noted that because of the child’s age, there were no restrictions on the days on which the child could spend with the father, other than the father’s work commitments. His Honour found that “because substantial and significant time is a flexible concept, and can be adapted as the child grows older it is in [J]’s best interests to spend substantial and significant time with his father”.
Turning to the issue of reasonable practicability, his Honour found the parents have the capacity to implement arrangements for the child to spend substantial and significant time with the father, before turning to consider the “obvious impediment”, namely, where the parents reside.
His Honour referred to authorities with respect to relocation, in particular B & B [2006] FamCA 1207, Morgan and Miles (2007) FLC 93-343, Taylor and Barker (2007) FLC 93-345, Sampson and Hartnett (No. 10) (2007) FLC 93-350, Pender & Hayward [2007] FamCA 1526 and P & P [2006] FMCAfam 518. His Honour noted at the time of the reasons the High Court had not delivered their judgment in MRR v GR (2010) 240 CLR 461. His Honour considered though that that case could be distinguished in any event on the basis that the parties in the case at bar only lived a few hundred kilometres apart which could be commuted relatively easily.
His Honour referred to D and SV (2003) FLC 93-137 in which his Honour said relocation was allowed where the distance involved was minor. His Honour, however, preferred the reasoning of Boland J in Morgan and Miles, namely, that mere mathematics of distance was not determinative, that it is the effect the move is likely to have on the child and his relationship with his father that must be considered.
His Honour then found as follows:
100.I am satisfied that the mother had sound reasons for wishing to travel to the Sunshine Coast so that she had subsidised accommodation and the support of her family. However, my conclusion that [J] should spend substantial and significant time with his father means that once [J] starts formal schooling the parents need to live sufficiently close to each other to enable there to be stability in [J]’s formal schooling arrangements. This is not a case where I consider that it would be in [J]’s best interests to spend alternate weekend time with his father.
101.I consider that it is unreasonable to expect the father to move to live at the Sunshine Coast for the reasons I have already stated. The mother has previously lived at the Gold Coast, has friends there and in fact travels there from time to time. Provided there is sufficient lead in time is allowed I am satisfied that the mother will be able to make arrangements to live at the Gold Coast. I do not consider that she should have to do so before [J] turns three years of age because, until then the amount of time that [J] is spending with his father and the frequency of such time can be accommodated in the parties’ current living arrangements.
102.However, I consider that the mother will eventually have to relocate to live at the Gold Coast. That will enable the care arrangements with [J], and the time that he spends with his father, to progress. The advantage to the mother in delaying her relocation back to the Gold Coast is that it will allow her a sufficient period of time to make whatever arrangements are necessary for that to occur, and allow her to find appropriate accommodation and make whatever financial arrangements are necessary without being pressured to do so within a limited time frame.
His Honour proposed that the child spend three nights per fortnight with the father and see his father twice in the week he is not spending overnight time with him. His Honour then proceeded to discuss the practicalities of implementing that time. Once the child turned three, overnight time was to occur in both weeks.
Grounds of appeal
The Notice of Cross Appeal filed on 28 August 2009 contained only the following ground of appeal:
1.The Orders made by the learned presiding Federal Magistrate do not take into account the best interests of the child [J] born … May 2008.
With leave, that Notice of Cross Appeal was amended at the hearing of the appeal to include two further grounds, namely:
2.The trial judge [sic] did not give any or any adequate reasons for making Orders: -
(a)(4)(a)(ii);
(b)(4)(a)(iii); and
(c)(4)(b).
3.In making Orders: -
(a)(4)(a)(ii);
(b)(4)(a)(iii); and
(c)(4)(b)
the trial judge [sic] failed to consider that it was practicable to make the orders that he proposed.
The mother thus essentially has three complaints:
1.The Federal Magistrate did not take into account the child’s best interests.
2.The Federal Magistrate did not give adequate reasons for the relevant orders.
3.The Federal Magistrate did not consider whether the relevant orders were reasonably practicable.
Orders sought
The mother seeks the following orders in the Notice of Cross Appeal:
1.That Orders (4)(a)(iii) and 5(c) be discharged and removed from the Orders made on 31st July 2009
2.That the requirement of Order 4(b) of the 31st July 2009 Orders that the mother be required to relocate to live within a radius of 20kM of the father’s residence be discharged and that Order 4(b)(ii) be amended to read “In each other week , from Thursday afternoon at 04:00pm until Saturday afternoon at 04:00pm”
3.That Order 5(e) of the 31st July 2009 Orders be amended to read “In the case of the time spent pursuant to Order 4(b) hereof at the Service Centre [N]”
4.That an Order (5A) be inserted “That the mother shall not, unless otherwise agreed by the parties, relocate any further away from the father’s residence than she presently resides in the [A] region of the Sunshine Coast.”
The father seeks that the cross appeal be dismissed and that the arrangements put in place by the Federal Magistrate continue.
Discussion
Ground 1
This ground was not in fact pursued at the hearing of the appeal. There was no reference to it at all in the written submissions presented on behalf of the mother, and in his oral submissions counsel for the mother effectively confined his argument to grounds 2 and 3.
Ground 2
Although it was suggested that the Federal Magistrate did not give any adequate reasons in making order (4)(a)(ii), this challenge was not pursued. Again there is no reference to this in the written outline of submissions presented on behalf of the mother, and it was not addressed in the oral submissions of counsel for the mother during the hearing.
In relation to order (4)(a)(iii), the mother conceded that there had been discussion during the trial about the father spending time with the child one afternoon in each week, but argued that any such arrangement was intended to be an interim measure only and not intended to be a final order. The mother says that the Federal Magistrate gave no reasons for his decision to order this time to occur on a final basis.
The father’s submission was that an order whereby the child spent time with the father in the week in which overnight time was not being spent was consistent with the Federal Magistrate’s acceptance of the evidence of the psychologist and had been clearly raised during argument in the trial.
During discussion with counsel his Honour intimated that he would deliver judgment in two week’s time and said that, “assuming that the father doesn’t immediately return to work …” he would be prepared to make an order that there be at least one day during each week in which the father could spend time with the child “one perhaps at the Sunshine Coast and one at the Gold Coast” (Transcript, 23 June 2009, p 84 at 29). The father, through his counsel, sought that order and indicated that Wednesday in each week would be the most convenient day.
It seems clear that the discussion was predicated on the father not being employed. His Honour said, “[t]hat will fall in a heap if the father goes back to work …” (Transcript, 23 June 2009, p 84 at 44). Having noted that, his Honour indicated that the proposed arrangement could continue until the father returned to work.
The mother’s counsel was asked whether the mother had any objections to the proposal of this time occurring week about on the Gold Coast and Sunshine Coast, with the Gold Coast handover being facilitated at O train station. The mother’s counsel said that the time to travel from A to O by public transport would take about three to five hours each way and requested that until judgment was delivered each of those periods of time take place on the Sunshine Coast. The Federal Magistrate then suggested that he order that every second period of time take place in the city (Brisbane) and the mother’s counsel suggested that each contact take place in the city. His Honour then made orders consistent with that discussion.
It is clear from the context of this discussion that the order for time on a Wednesday was to be pending the delivery of judgment.
It was not disputed that the mother had no driver’s licence or car and had been reliant on members of her family to drive her to the nominated handover point.
The capacity of the mother to facilitate a final order for the child to spend time with the father each Wednesday where the child was to be handed over at M Street Station (in Brisbane) was not raised with the mother or either counsel during the hearing.
There is no explanation in his Honour’s reasons for judgment for the inclusion of this interim arrangement in the final orders or any discussion of the relative practicalities for effecting the handover in Brisbane.
Thus we find that this ground is made out in relation to order (4)(a)(iii).
Turning then to order (4)(b), namely, that when the child turns three the mother must relocate from the Sunshine Coast and take up residence within a 20 kilometre radius of the father’s residence.
Although it is reasonably clear that his Honour intended by this order to require the mother to move to the Gold Coast, the effect of the order would require the mother to live within a 20 kilometre radius of the father wherever he chose to live from time to time. Clearly this is not what his Honour intended.
However, the thrust of the appeal in this respect is that nowhere in the judgment does the Federal Magistrate give adequate reasons for the order requiring the mother to move when the child turns three.
The mother argued that neither party had sought an order that any relocation be deferred. It was not addressed in cross-examination or in submissions, and nor did his Honour raise it with the parties during the course of the hearing. We observe that during submissions to us, counsel for the mother indicated that this was not a “natural justice” point, but that rather it was being raised in the context of lack of adequate reasons and/or a failure to consider whether it was practicable to make the order.
His Honour found that the mother’s move to the Sunshine Coast was made for valid reasons, to be closer to the support and assistance of her parents and family, and accepted that the mother drew considerable support from them. His Honour found, at paragraph 50, that there “would be intangible benefits associated with the mother living in close proximity to her mother particularly at a time when [J] is still very young.”
The Federal Magistrate listed what he described as “key facts”, none of which were in dispute. They included that the mother was then living in a unit rented by her sister, her parents lived nearby, the mother was unemployed, and the mother was in receipt of government benefits. It was further accepted by his Honour that there was some difficulty for the mother in securing rented accommodation in her own name. His Honour found that the mother would have difficulty meeting the cost of accommodation for herself on the Gold Coast. Although the father had offered financial assistance to the mother in accommodating herself, his Honour found that this was untenable because when the offer was made, it was intended to be during the hearing of the matter, and since then the father had become unemployed and had no capacity to assist the mother with rental expenses.
In considering the respective residences of the parties, his Honour gave reasons why, in his view, it was “unreasonable” for the father to be required to move closer to the mother and the child. For example, his Honour said this:
70.… I accept that the father’s work makes it unrealistic to expect him to relocate to the Sunshine Coast. There are strong ties with the Gold Coast both vocationally and socially. His family live there, he plays sport in teams based there, he works there and has spent his life there.
His Honour then came to the view that it was the mother who should move closer to the father’s location. His Honour said this:
102. However, I consider that the mother will eventually have to relocate to live at the Gold Coast. That will enable the care arrangements with [J], and the time that he spends with his father to progress. The advantage to the mother in delaying her relocation back to the Gold Coast is that it will allow her a sufficient period of time to make whatever arrangements are necessary for that to occur, and allow her to find appropriate accommodation without being pressured to do so within the limited time frame.
The mother argued that nowhere in his Honour’s judgment can be found the reasons for his stated conclusion. Although his Honour analysed the circumstances of the father in determining that it was “unreasonable” to expect the father to move, the Federal Magistrate failed to do the same when determining that it was the mother who should have to move.
The father contended that a reading of the judgment as a whole indicated the Federal Magistrate’s chain of reasoning and the reason to defer the mother’s ordered relocation was consistent with the expert evidence about the developmental milestone of three years as being an appropriate time to increase the amount of time the child could spend away from his mother. However, that still does not explain why his Honour concluded that it was the mother who should move, particularly given his Honour’s findings as to the mother’s personal circumstances.
There is an obligation upon a judicial officer to provide adequate reasons for the decision reached. The law with respect to the need to provide adequate reasons is also well settled. In Bennett and Bennett (1991) FLC 92-191, the Full Court outlined the test at 78,267:
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge’s discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
We suggest that in a case where the order made was not one in the contemplation of the parties during the trial, the obligation of the judicial officer to fully expose the reasoning process is the more acute (leaving aside, of course, procedural fairness considerations).
We are of the view that his Honour failed to give sufficient reasons for making order 4(b) and thus this ground of appeal is established in relation to this order.
Ground 3
Since the High Court’s decision in MRR v GR it is beyond doubt that where, as here, there is to be an order for equal shared parental responsibility and a court is considering whether a child should spend substantial and significant time with a parent, the court is obliged to consider both whether the proposed regime is in the child’s best interests and whether it is reasonably practicable. Indeed, that is the plain meaning of s 65DAA(2) of the Family Law Act 1975 (Cth) (“the Act”).
His Honour’s decision in this case was made before the High Court delivered its decision in MRR v GR. Nevertheless, the necessity of considering what is reasonably practicable in this context has always been a relevant and necessary consideration in making orders in relation to children, and his Honour was clearly aware of that. In a number of places in the reasons for judgment his Honour referred to the concept of reasonable practicability.
At paragraph 17 of the reasons his Honour said:
In turn, the concept of reasonable practicality [sic] is given some content by s.65DAA(5) of the Act. One of the matters that the court must have regard to is how far the parents live from each other.
Further, at paragraphs 78 and 79, his Honour said this:
78.I turn then to the issue of reasonable practicality [sic]. In my view, the evidence demonstrates that the parties do have the capacity to implement an arrangement for the child spending substantial and significant time with the father. They have the capacity to communicate with each other and resolve difficulties that might arise … I am satisfied that once [J] reaches the age of three years, and particularly as he grows older, an arrangement whereby he spends substantial and significant time with his father would be in his best interests and would not have a adverse impact on him.
79.That then requires me to consider the most obvious impediment to [J] spending more time with his father, particularly as he grows older, which is the current residences of the parties.
His Honour then referred to a number of authorities and continued at paragraph 100:
I am satisfied that the mother had sound reasons for wishing to travel to the Sunshine Coast so that she had subsidised accommodation and the support of her family. However, my conclusion that [J] should spend substantial and significant time with his father means that once [J] starts formal schooling the parents need to live sufficiently close to each other to enable there to be stability in [J]’s formal schooling arrangements. This is not a case where I consider that it would be in [J]’s best interests to spend alternate weekend time with his father.
His Honour then held that it would be unreasonable to require the father to move closer to where the mother was living and determined that, provided the mother had sufficient time in which to make preparations, she must move to live within a 20 kilometre radius of the father.
The mother argued that although his Honour made several references to what was reasonably practicable, he did not analyse what that would mean in this case or expose and assess the competing cases of the parties, and in particular the mother. We observe that the complaint is that in making orders (4)(a)(ii) and (4)(a)(iii), the Federal Magistrate failed to consider whether it was practicable to make those orders, but clearly the most significant issue in this regard was in relation to order (4)(b). Thus it was argued by the mother that his Honour did not examine or analyse the impact on the mother of moving to the Gold Coast or indeed the effect of deferral of the order for relocation, nor indicate how, by deferring its operation, that would provide a mechanism by which the mother could make appropriate arrangements to comply with the order. Further, it was argued that the Federal Magistrate did not consider whether he could provide for substantial and significant time with the father while the mother remained on the Sunshine Coast.
The father argued that to defer an order that the mother relocate was consistent with the arguments advanced by the parties in the trial and the expert evidence preferred by the Federal Magistrate. It was said that both parties nominated the child’s third year as a point of reference to the child’s development in their competing cases, and this was also consistent with the evidence of the psychologist, whose evidence the Federal Magistrate accepted when she said that a change in arrangements for the child could appropriately be considered at that age. Of course though, this argument does not address why it should be that the mother should be the one to relocate.
In any event, it was argued that when the reasons are considered in totality, and with particular regard to his Honour’s consideration of what is reasonably practicable, that exposes his reasoning process and demonstrates that his Honour did consider this issue in coming to the orders that he made.
However, in our view, although the Federal Magistrate did refer to a consideration of reasonable practicability several times in his judgment, he did not embark on any analysis of the facts and competing positions of the parties, and in particular the position of the mother to determine the issue. Whether or not a proposed regime of time between a parent and child is reasonably practicable calls into consideration many factors as identified, for example, in s 65DAA(5) of the Act, but not the least of which is a consideration of the facilitation of the proposed regime. We find force in the mother’s argument that nowhere does his Honour consider or expose his reasons why it was that he found that an order for the child to spend substantial and significant time with the father was reasonably practicable provided the mother was required to relocate at a time in the future. As the High Court said in MRR v GR at 467, albeit in the context of s 65DAA(1) and s 65DAA(1)(b), but equally applicable to s 65DAA(2) and s 65DAA(2)(d):
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. … Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Thus we find merit in this ground of appeal.
Conclusion
The cross appeal should be allowed and orders 4 and 5 made by the Federal Magistrate should be set aside.
Both counsel agreed that in the event that the cross appeal was allowed, the only appropriate order was to remit the proceedings for re-hearing.
Whilst the effect of remitting the proceedings may very well mean delay and expense to the parties, where, as here, the mother has successfully argued a failure by the Federal Magistrate to provide adequate reasons for his decision, this Court is not in a position to re-exercise the discretion. However, given the nature of the issues in dispute we propose to request that this matter be given an expedited hearing.
Costs
In the event that the cross appeal was allowed both counsel submitted that there should be no order for costs but they each made an application for certificates under the Federal Proceedings (Costs) Act 1981 (Cth). We agree that there should be no order for costs and in the circumstances of the cross appeal being allowed on a question of law, each party should have certificates under the said Act both in respect of the cross appeal and the re-hearing.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Ainslie-Wallace JJ) delivered on 7 April 2011.
Legal Associate:
Date: 7 April 2011
0
4
2