Friscioni & Friscioni
[2010] FamCAFC 108
•17 June 2010
Family Court Of Australia
| FRISCIONI & FRISCIONI | [2010] FamCAFC 108 |
| FAMILY LAW - APPEAL – CHILDREN – RELOCATION – Whether the trial Judge erred in permitting the Mother and child to relocate from [T] to the Czech Republic – Where the child lived with the Mother and spent time with the Father FAMILY LAW - APPEAL – FAMILY REPORT – Where the Family Consultant recommended that the child continue to reside in [T] – Whether the trial Judge erred in rejecting the findings of the Family Consultant – Where the trial Judge had before her a large amount of written and oral evidence and also had the opportunity to observe the parties and various witnesses being cross examined – The principles in Hall and Hall (1979) FLC 90-713 – Where the trial Judge did not reject the Family Consultant’s evidence and gave weight to what the Family Consultant said – Where the trial Judge undertook a very thorough and detailed consideration of the evidence, including from the Family Consultant, and the relevant statutory considerations – No error established FAMILY LAW - APPEAL – FINDINGS OF FACT – Whether the trial Judge erred in finding that the Father engaged in marijuana use – Whether the trial Judge erred by accepting evidence concerning the Father’s alcohol and marijuana use – Whether the trial Judge erred in finding that the education system in [T] was below standard – Whether the trial Judge erred in not considering the Father’s proposed accommodation in [T] – Whether the trial Judge erred by rejecting the Father’s possible relocation to Cairns – No merits in the appeal – Appeal dismissed FAMILY LAW - COSTS – As agreed by the parties within 48 days of the date of these orders and failing such agreement as assessed on a party/party basis |
| Andrew & Delaine [2009] FamCAFC 182 CDJ v VAJ (1998) 197 CLR 172 D & P [2006] FamCA 170 Gronow v Gronow (1979) 144 CLR 513 Hall and Hall (1979) FLC 90-713 House v The King (1936) 55 CLR 499 Re JRL; ex parte CJL (1986) 161 CLR 342 |
| Evidence Act 1995 (Cth) – s 80 Family Law Act 1975 (Cth) – s 60CC, s 61DA, s 65DAA, s 62G Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Friscioni |
| RESPONDENT: | Ms Friscioni |
| FILE NUMBER: | CSC | 445 | of | 2008 |
| APPEAL NUMBER: | NA | 14 | of | 2009 |
| DATE DELIVERED: | 17 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, O’Ryan and Ryan JJ |
| HEARING DATE: | 7 August 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 February 2009 |
| LOWER COURT MNC: | [2009] FamCA 45 |
Representation
| SOLICITOR FOR THE APPELLANT: | Mr C. Stevenson A. Ace Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms N. Wilson |
| SOLICITOR FOR THE RESPONDENT: | O’Reilly Stevens Bovey Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms C. Benson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lehmann Featherstone Lawyers |
Orders
The appeal be dismissed.
The Appellant pay the costs of the Respondent.
The Appellant pay the costs of the Independent Children’s Lawyer.
The costs referred to in orders 2 and 3 hereof be in an amount as agreed by the parties within 48 days of the date of these orders and failing such agreement as assessed on a party/party basis.
IT IS NOTED that publication of this judgment under the pseudonym Friscioni & Friscioni 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 14 of 2009
File Number: CSC 445 of 2008
| MR FRISCIONI |
Appellant
And
| MS FRISCIONI |
Respondent
And
| Independent Children’s Lawyer |
Reasons For Judgment
Introduction
This is an appeal by Mr Friscioni (“the Father”) against final parenting orders made by Moore J on 2 February 2009. The effect of her Honour’s judgment was to allow Ms Friscioni (“the Mother”) to relocate to the Czech Republic with the only child of the marriage.
The child was born in late 1998 and is presently 11 years old. Since the separation of the parents the child has lived primarily with the Mother and has spent time regularly with the Father.
The parents’ cohabitated in T in far north Queensland and the Father still resides there. In the notice of appeal filed 2 March 2009 the orders the Father seeks are for shared parental responsibility, that the Mother not be at liberty to relocate with the child to the Czech Republic and the child continue to live in T.
The trial Judge refused an application by the Father for a stay of the orders pending the appeal. The Father then appealed against the refusal to grant a stay and this appeal was dismissed. We understand that the Mother has now relocated to the Czech Republic with the child. The Father continues to reside in T.
The trial Judge had the benefit of a family report (Exhibit 1) prepared by a Family Consultant. As well, an Independent Children’s Lawyer appeared on behalf of the child at the trial and also before us. The Family Consultant made a recommendation that was consistent with the proposal of the Father, namely, that the child continue to reside in T. The Independent Children’s Lawyer sought orders which supported the proposals of the Mother.
Background
The Father was born in Italy and came to Australia as a young child with his family who settled in Sydney.
As to the Father the trial Judge observed:
17. [The Father] left school early and worked in concreting before getting work in the food industry. He did not complete his qualifications as a chef, but he ran his own restaurant for four years before travelling to various places including to Italy where he has relatives. Over the years he has been [in T] he has not maintained stable employment – he has had about ten different jobs – working as a chef from time to time and he now works part time in the bottle shop at the hotel. At the time the parenting evidence was heard he was studying to complete his secondary education with a view to going on to study … at the [T] campus of … University, but when the hearing resumed recently for the property proceedings he advised he had given up study. He speaks fluent Italian and limited Czech. He loves the life [in T] – ‘casual…laid back…no traffic…no pollution’. He admits to struggling with eastern European culture, particular [sic] some aspects he mentioned specifically, and he regards the cost of living there as expensive. He sees no prospect of himself moving there - apart from his own attachments, he cites the language barrier, his lack of qualifications and his inability to support himself there. Currently he lives in a house shared with his mother and two other men. He has not re-partnered. (italics in original)
The Mother was born in the Czech Republic. The Mother came to Australia in 1997 with a view to staying temporarily while she studied English.
As to the Mother the trial Judge observed:
16. [The Mother] paints a positive picture of a close family background in [L] where regular trips have sustained relationships and her attachment to the Czech culture and traditions. She was educated in the CR to university level, her qualifications apparently being akin to an arts degree, although she has not been able to make use of those qualifications in Australia. From the time [the child] was about two years of age she has had stable full time employment [in T] doing clerical work and during the long stay in [L] she worked teaching English and doing clerical work. She acknowledges that her husband has not been happy in the CR, she recognises that he finds the language difficult, and she is aware he has a different viewpoint about some Czech customs. She became an Australian citizen in 2006. She currently lives with [the child] in temporary accommodation and if she stays she will have the problem of finding accommodation elsewhere [in T]. She has formed a relationship with [Mr H] with whom she has maintained a friendship since they met while at university. He is an engineer by occupation and he lives in [L]. He is divorced and has two children who are regularly in his care. There is no plan for him to relocate to Australia and nor do he and [the Mother] plan to live together should she return to the CR since they both regard the relationship as still in its infancy.
The parties met in Sydney in 1997 while working in the same restaurant. The Mother fell pregnant and as the trial Judge said at [12] the relationship of the parties “took a different turn”.
In May 1998 the parties travelled to L in the Czech Republic and they married there in August 1998. The trial Judge at [12] observed that L “is where the mother is from”.
The child was born on in late 1998. The parties returned to Australia shortly after the birth of the child. The parties then went to live in T. The Father’s mother, who was living there, had arranged employment for him. The parties lived there “for a decade”.
In her reasons the trial Judge observed:
19. The decade they have spent [in T] has not been without challenges from several directions. This includes securing and maintaining stable accommodation which seems to be widely acknowledged as potentially problematic. In their case they have moved six times over the years. The difficulties and expense of finding premises for rent and the shortage of housing [in T] is the subject of evidence from [Ms KT] who worked as a real estate agent there for many years and she still does some lettings and keeps up with what is going on. Another witness, [Ms MS], refers in her evidence to limited job and education opportunities [in T] but also to the constant problem for everyone of getting housing which is scarce and expensive.
The child commenced school in T in 2002 and at the time of the hearing she was attending the local Catholic school. In relation to the child the trial Judge observed at [18]:
[The child] has had some issues about bullying at school but nonetheless she has progressed well and achieved the school’s academic milestones. She speaks Czech fluently [she has some words of Italian] and in 2003 she began distance education in the Czech language provided by authorities in the CR. In the year she lived in [L] during 2006/07 she attended school and did well. This is supported by the evidence of her class teacher which includes a copy of her school report in quite positive terms. [The child] herself describes going to school there as ‘fun’ though she spoke of being teased because she was from Australia – on the other hand, she is also teased about her difference at school [in T]. She continues to undertake studies in the Czech education system through distance education.
In the period that the parties lived in T the Mother and the child returned each year to the Czech Republic for a number of weeks. The Father either accompanied the Mother and the child or joined them for part of the time during the annual visits.
During 2006 and 2007 the Mother and the child lived in L for a year when the Mother worked and the child attended school. The Father accompanied the Mother and the child initially but he returned to T for a few months before again joining them in L. The parties purchased an apartment in L during this time. In her reasons the trial Judge also said:
21. [The Mother] says they had agreed to spend the year of the long stay in the CR and this would be followed by a period when [the child] would alternate her schooling between [T] and [L] each year before the family moved to live in the CR for the duration of [the child]’s secondary schooling there. This was why [the child] did distance education in the Czech system, why she was enrolled at school in [L] before the long stay and why they purchased the apartment in [L]. This has some corroborative support from [Ms TY] who relates the father acknowledging as much and the mother’s evidence about it is accepted. It is recognised here, nonetheless, that this was agreed when the family was intact and that is no longer the case.
While in the Czech Republic the Mother consulted a clinical psychologist, Dr S, about marital difficulties and her desire to raise the child in that country. The Mother saw Dr S alone on two occasions, in October and November 2006, and then again in May 2007 before there were two further consultations, with the Father present, later in May and early June.
In April 2007 there was an incident which the trial Judge observed at [33] gave “some indication of the state of things”. Her Honour said at [33]:
On the mother’s account of it, which is accepted, her parents had been to their apartment for dinner, [the Father] was drinking heavily and after they left he became loud and abusive towards her and towards [the child] for standing up for her. She locked herself and [the child] in a bedroom where [the Father] tried to break in by kicking the door. The police were called and he was taken away in handcuffs although he returned after less than an hour. She says [the child] was distressed by it and had trouble concentrating at school – the fact that [the child] would identify this occasion in her discussion with the reporter 18 months later attests to the accuracy of that. She also says he apologised the next day, admitting he had a problem with jealousy, drinking and controlling his temper and he asked for her assistance. She contacted [Dr S] and [the Father]’s participation in two consultations followed. She says his behaviour improved for a time, he asked for another chance which she agreed to and they returned to Australia in July.
Dr S gave evidence on behalf of the Mother and he was cross-examined by use of telephone conference facility (Transcript, 4 December 2008, pp 93 to 101).
The parties returned to Australia in July 2007. In her reasons the trial Judge said at [35] that, “[a]fter their return to Australia in July, the problems continued”.
In September 2007 the Mother sought a protection order against the Father which was issued on 8 October 2007 for two years.
The trial Judge observed at [35] that the Mother contended that the child “started having nightmares, she was often in the sick room at school with headaches and stomach aches and she started wetting the bed at night”.
On 29 October 2007 there was a further incident which the trial Judge observed at [35] “precipitated their separation”. The trial Judge observed:
35. … For some time, including while they had been in the CR, the father had suspicions that [the Mother] was having an affair, which she denied, but at some point he found a copy of an email message from [Mr H] in the pocket of her jeans suggesting the contrary. The mother describes him as yelling rude insults at her in front of [the child], standing in front of her with his face right up to hers yelling repeatedly that she was a ‘slut’, she tried to calm him down but he would not stop, and she says she felt powerless. Very likely, if [the child]’s account of it later is any indicator, they both slapped each other around the head. She took [the child] and went to the Women’s Shelter.
36. Asked about whether she takes any responsibility for his conduct, bearing in mind that his suspicions about her having an affair were borne out by the fact, the mother agrees finding the email ‘would not have made him happy’, but she maintains that while the long standing friendship with [Mr H] had developed to intimacy before she left the CR in July, there had been no sexual relationship until her recent visit in September. Quite apart from that, she said, [the Father] had always been jealous and suspicious, his behaviour when affected by alcohol or marijuana was unrelated to her relationship with [Mr H], and it did not give him the right anyway to shout such insults right in her face and conduct himself as he had.
The parties separated on 31 October 2007. In her reasons the trial Judge at [26] observed that, “the parties’ relationship was fractured for some time before their separation in October 2007. Each has their own perspective about the underlying problems and this is not a judgment about that but it is necessary to canvass some of the history since it has some bearing on considerations required to be taken into account”.
The trial Judge observed at [14] that after the separation the parties agreed about the child’s arrangements “to a point – she has lived primarily with her mother and has spent time regularly with her father”.
The trial Judge observed at [37] that Ms C said that the Father “approached her after the separation to enlist her help in persuading [the Mother] to return to him, saying he was working on his problems, but at the same time he spoke of [the Mother] in a derogatory manner, calling her a ‘cold communist’, and she thought it was disrespectful of him to tell her about the affair with [Mr H]”.
In or around November 2007, Ms A, a social worker, saw the child for some months. This counselling for the child was arranged by the Mother. The trial Judge at [39] observed that, “[b]edwetting, nightmares and anxiety are all cited as the instigators for the mother arranging counselling”.
In July 2008 the Mother instituted proceedings seeking to relocate with the child to the Czech Republic and at the same time she sought interim orders including an order permitting her to travel with the child to the Czech Republic for a holiday. Interim orders were made by consent on 11 August 2008 providing for the child to live with the Mother and spend two days per week and other times as agreed with the Father.
In August 2008, on referral by a social worker, the Mother consulted Dr GR who is a psychiatrist at the outpatient clinic in T. He later produced a short report and gave brief evidence at the hearing (Transcript, 5 December 2008, pp 126 to 129). The trial Judge said at [47]:
[The Mother] spoke to [Dr GR] of feeling frustrated and powerless and trapped and her desire to return to the CR. He diagnosed Adjustment Disorder with Depressed Mood. He said her major stress is the requirement for her daughter to remain in Australia, given her desire to return to the CR to be closer to her family and supports. He discussed with her the prospect of not being able to do so and he suggested she consider the alternative – develop Plan B, as he put it - but he says she is very fixated and is pinning her hopes on being able to leave. He concluded that if she cannot return to live in the CR with [the child] she will be at risk of developing Major Depression. Distress, powerlessness, and feelings of being trapped are potent precipitants for depression, he says, and while he agreed anti-depressants could be prescribed if necessary he also said good supports are also an important component of treatment.
The trial Judge observed at [15] that the child had spent additional time with the Father after school and the Mother was permitted to travel with the child to the Czech Republic which she did between 2 September and 4 October 2008. On return to Australia the Mother was to lodge the child’s passport with the Court and she did so. The passport was due to expire in February 2009.
The family report is dated 11 November 2008. In the report the Family Consultant made the following recommendations:
92. The writer recommends shared parental responsibility and status quo in regards to living arrangements.
93. Given that during the marriage the family travelled to the Czech Republic on an annual basis, the Court may see merit in [the Father] contributing to the cost of [the child]’s annual travel between [T] and the Czech Republic.
The hearing of the applications for final orders commenced before Moore J on 4 December 2008 and continued on 5 and 12 December 2008 and 12 January 2009.
In her reasons the trial Judge said:
1. This decision is about the future arrangements for the parties’ 10 year old daughter, [the child], and division of their property.
2. The mother wishes to return to live in the Czech Republic [CR] and take [the child] with her. In that event, apart from regular communication with her father by various means, she proposes annual visits for [the child], back to [T] and time with her father when he visits Europe, either in the CR or in Italy where he has family. If orders do not permit this, she has made it clear she will not leave without [the child], and in that event she proposes [the child], remain living primarily with her [in T] and spend time regularly each week with her father. The father wants [the child], to remain living [in T]. If the mother also remains, he proposes a shared care arrangement. If the mother returns to the CR he proposes visits for [the child], to her mother there each year; however, since the mother has ruled this scenario out, that can be put aside. The particulars of the formal orders sought are set out in a schedule to these Reasons.
3. The Independent Children’s Lawyer (ICL) supports the mother’s proposal to relocate and the particulars of the orders proposed are also set out in the schedule.
4. Whatever the decision, it will obviously have significant implications for [the child], directly and indirectly.
On 12 January 2009 the hearing concluded and judgment was reserved. On 2 February 2009 the following final parenting orders were made by the trial Judge:
1. The mother is to have sole parental responsibility for [the child] born [ … ] 1998.
2. The mother is permitted to relocate with the child to the Czech Republic.
3. The child is to live with her mother.
4. The child is to spend time with her father as follows:
a. for a 6 week period in each year,
i.such time to occur in Australia, being [in T] or such other place nominated by the father, unless specifically agreed otherwise between the parents;
ii.such time to coincide with the child's summer holiday;
iii.such time is not to include any travel time to/from Czech Republic;
iv.the mother or a responsible adult nominated by her is to be responsible for delivering the child and collecting her from the Cairns airport or other destination in Australia agreed by the parents; and
v.the costs of travel for the child and an accompanying adult is to be shared equally between the parents.
b. for a period of up to 2 weeks in each year, with such time:
i.to coincide with the child's Christmas holiday period, and
ii.to include Christmas day in each alternate year;
iii.to occur in the Czech Republic or in Italy as nominated by the father by notice in writing no later than two (2) months prior to the commencement of the period;
iv.the father is to be responsible for collecting and returning the child from her mother’s residence in the Czech Republic.
c.for a period of up to 3 weeks on no more than 2 occasions each year in the child's home town in the Czech Republic provided the father:
i.gives the mother at least one (1) month’s notice in writing of his intention to do so; and
ii.ensures the child attends school and any extra curricular activities in which she is enrolled while in his care;
d.during any other time as agreed between the parents.
4. The father may communicate with the child as follows:
a.by telephone, email, webcam, skype, or by ordinary mail at all reasonable times;
b.the mother is to be responsible to initiate one phone or skype or webcam communication to the father each week;
c.the mother is to ensure the child is provided privacy during any communication with her father;
5. The mother to facilitate and encourage all reasonable communication between the child and her paternal grandmother.
6. The mother is have reasonable communication with the child during any time that she is in her father’s care and the father is to facilitate the child contacting her mother at any time she expresses a wish to do so.
7. The mother is to keep the father informed, in a timely manner, of all major decisions made about the child including education, extra curricular activities and health related matters.
8. The mother is to provide the father with copies of all school reports and other documentation relating to the child's progress at school and/or in extra curricular activities.
9. Each parent is to keep the other informed of their address and current contact details including telephone numbers, email addresses, webcam or skype.
10. The father is restrained from drinking alcohol to excess or from being under the influence of alcohol or smoking marijuana while the child is in his care.
On 2 February 2009 an order for settlement of property was also made.
On 2 March 2009 the Father filed the notice of appeal against the parenting orders.
On 10 March 2009 the Father filed an application seeking a stay of the parenting orders. On 17 March 2009 Moore J heard the application by the Father for a stay. The Mother sought the dismissal of the stay application subject to an undertaking she was prepared to give. The Independent Children’s Lawyer also sought that the application be dismissed and that the Mother be permitted to leave for the Czech Republic with the child. Later that day her Honour made the following orders:
1. Subject to the undertaking of the mother to the Court given in these terms:
‘I will be bound over to appear should the Court of Appeal uphold the Appeal filed by the father on the 2nd of March 2009 and served on me on the 10th of March 2009. I will undertake to return [the child] (born [ … ] 1998) as ordered by this Honourable Court’
and subject further to orders 2 and 3 hereof, the application of the father for a stay of the orders made 2 February 2009 as they relate to parental responsibility and to permission for the mother to relocate to the Czech Republic with their daughter [the child] born [ … ] 1998 is dismissed.
2. If the father’s appeal filed 2 March 2009 [or as later amended] is successful and the mother is so required by orders of this Court, she is to return the child to Australia within the time stipulated by those orders.
3. Order 2 of the orders made 2 February 2009, permitting the mother to relocate to the Czech Republic with [the child], is temporarily stayed until 12 noon Monday 23 March 2009 for the purpose of permitting the father to lodge an appeal from these orders no later than 4pm Wednesday 18 March 2009 provided that if the father notifies the mother in writing earlier of his intention not to appeal from these orders then the temporary stay imposed hereby is discharged forthwith.
4. The mother’s application for costs is adjourned to be relisted upon the application of the mother pending the outcome of any appeal by the father from these orders.
Her Honour then delivered reasons for judgment.
On 18 March 2009 the Father filed a notice of appeal against her Honour’s orders made on 17 March 2009. On the same day the stay appeal was listed for hearing on 19 March 2009.
On 19 March 2009 the Full Court made the following orders:
1. The appeal against Order 1 of the orders made by the Honourable Justice Moore on 17 March 2009 is dismissed.
2. The father pay the mother's costs of the stay appeal in the sum of $2,400.00.
3. Order 4 of the orders of the Honourable Justice Jordan made 12 March 2009 placing the name of the child … (a female child) born [ … ] 1998 on the airport watch list at all points international arrivals and departures in Australia for the purpose of preventing removal of the said child from Australia is discharged on and from 12.00 noon, Monday, 23 March 2009.
4. The mother’s application in an appeal filed 18 March 2009 is to be listed before the Honourable Justice Moore for hearing at a time and date to be notified to the parties by the Case Co-ordinator.
5. The father’s application in an appeal filed 19 March 2009 is reserved.
On 19 March 2009 an application was also filed by the Father in which he sought assistance from the Court in relation to the provision of transcripts and other matters.
On 23 March 2009 the Full Court delivered reasons for judgment and in summary did not accept that the trial Judge had erred in the exercise of her discretion in refusing the stay of her orders. As well the Full Court dismissed an application by the Father to adduce further evidence in relation to the stay application.
On 30 March 2009 the Full Court delivered judgment dismissing the application by the Father with regards to the preparation of the appeal books and the provision of the trial transcript.
The Trial Judge’s Reasons For Judgment
The trial Judge dealt with the parenting proceedings in the first 132 paragraphs of her reasons. Her Honour commenced by summarising at [1] to [3] what the parties and the Independent Children’s Lawyer sought as final parenting orders. Her Honour then at [5] and [6] outlined her “Approach” with regards to the relevant sections of the Family Law Act 1975 (Cth) (“the Act”) and cited “case law” which concerned circumstances where one parent’s proposal is “to relocate some distance from where they now live”. Her Honour at [6] summarised what she considered “to be the fundamental principles arising from” the authorities, namely:
· ‘relocation cases’ are parenting cases to which the same provisions of Part VII apply as they do to any other parenting case;
· the child’s best interests is the paramount but not the sole consideration;
· each of the proposals advanced by the parents has to be identified;
· in evaluating the evidence (i) neither parent bears an onus to establish a proposed change or continuation of an existing arrangement will best promote the best interests of a child; (ii) regard must be had to the right of freedom of movement of a parent though that may have to cede to the child’s best interests; and (iii) matters of weight are to be explained;
· the evidence is to be evaluated against the relevant Part VII provisions under the span of the objects and underlying principles in any convenient order, though logic suggests the s 60CC factors would come first before the application or otherwise of the presumption about parental responsibility and the resulting time considerations; however, if the presumption applies the obligation to consider equal time or substantial and significant time is to be undertaken separately initially by looking to the child’s current circumstances before balancing the advantages and disadvantages of either outcome against the advantages and disadvantages that would flow from the proposed relocation.
· the outcome is not confined to the proposals put by the parents but all options to secure the child’s best interests may be considered;
· one option may be the other parent’s willingness or ability to move to be nearer the child after the move; and
· the parent proposing to move does not need to establish compelling reasons to justify the relocation.
From [7] to [11] the trial Judge identified the “Evidence” including the family report. To support the Mother’s case there were 15 witnesses and to support the Father’s case five witnesses. Not all of the witnesses were required for cross-examination. Her Honour at [7] observed that a number of the Mother’s witnesses were friends of hers “but, apart from a passing reference to [Ms N] as ‘partisan’, there is no submission suggesting their evidence was skewed in her favour as a result, and from my point of view those that did give further evidence were all relatively straightforward in their manner and there is no reason to question their veracity”. As to the Father’s witnesses, her Honour observed at [8] that, “[s]imilarly, their evidence did not attract any criticism in submissions and nor is there any reason to reject what they had to say”.
The trial Judge at [9] to [11] referred to the evidence of the Family Consultant and the recommendation that the status quo in regards to living arrangements continue. Her Honour then said at [11] that, “the weight of the evidence points to a different result”.
At [12] to [47] the trial Judge dealt with the “Background” some of which we have already referred to. In the course of dealing with various background matters her Honour dealt with issues such as at [27] to [28] “an issue about the extent of [the parents] involvement in their daughter’s day to day care” and commencing at [29] an issue about “the father’s conduct; more particularly, the adverse affect on his behaviour of excessive use of alcohol, his use of marijuana and his aggressive and abusive behaviour particularly towards the mother”.
Under the heading “Summary of Proposals” at [48] to [59] the trial Judge elaborated on the “competing proposals” and the matters relied upon to support what was sought. Her Honour at [48] to [55] dealt with the proposals of the Mother and at [56] to [59] the proposals of the Father.
The trial Judge at [61] briefly referred to the objects of Pt VII of the Act and the Principles underlying those objects and thereafter proceeded to deal with the relevant statutory considerations.
The trial Judge at [61] and [62] dealt with the primary consideration in s 60CC(2)(a) of the Act, namely, the benefit to the child of having a meaningful relationship with both of the child’s parents. Her Honour said:
61. All of the evidence points in the direction of this child presently having a meaningful relationship with both parents and deriving benefit from that. Despite the difficulties that have accompanied the separation of her parents, this is not surprising since she has had the support and involvement of both over the years of her upbringing, albeit with some disproportion as discussed earlier.
62. For some period each year while in the CR with her mother and for a longer period of four months during the 06/07 long stay, [the child] has regularly spent time away from her father and, while that cannot be said to have diminished her relationship with her father, it has to be recognized that relocating to the CR would result in longer and more sustained absences from her father, giving her much less opportunity to be around him and do the things with him that commonly underlie meaningful relationships than if she were to remain [in T]. This is a significant factor.
The trial Judge at [63] dealt with the primary consideration in s 60CC(2)(b) of the Act, namely, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Her Honour said that the child “has been exposed to aggressive behavior and verbal abuse, as discussed earlier”.
The trial Judge at [64] to [66] dealt with the additional consideration in s 60CC(3)(a) of the Act, namely, any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that are relevant to the weight the court should give to the child’s views. Her Honour said at [66]: “This is not a case where [the child] can be seen as having expressed a view one way or the other and this factor plays no part in the decision. No submission has been made to the contrary”.
The trial Judge at [67] to [76] dealt with the additional consideration in s 60CC(3)(b) of the Act, namely, the nature of the relationship of the child with each of the parents; and other persons including any grandparent or other relative of the child. Her Honour said at [67] that the child “clearly loves both her parents and it is beyond doubt that her most important relationships are with them. The reporter says she rated her parents as being of equal importance. That is not to say, however, that she has the same kind of relationship with each of her parents”.
The trial Judge at [68] said that the Family Consultant’s “assessment that [the child] has a close and loving relationship with her mother is entirely consistent with the evidence as a whole”. Her Honour then at [69] dealt with the relationship of the Father and the child and commenced by observing: “It is also accepted that she has a close and loving relationship with her father”. Her Honour at [70] discussed the effect on the relationship of the Father and the child if the child resided in T and at [71] to [73] if the child resided in the Czech Republic. Importantly, her Honour said:
71. Certainly such arrangements would be put in place in that event. Nonetheless, inevitably a move to the CR would bring about a shift in the ground on which [the child]’s relationship with her father has been built to this point and introduce change to the role her father is able to contribute as a parent in the present circumstances. The impact of this is not to be underestimated. But it can be observed that [the child] is at an age and stage of development where her attachments have been formed, rather than still being in their formative stages, and it is highly unlikely a ‘shift’ would transmute into severance or irreparable damage or anything approximating it at that end of the scale of impact.
72. There is contention about what would be sufficient to sustain their relationship in that event and obviously it is the father’s case that the arrangements proposed would not be adequate for the purpose. Support for that submission is drawn from the family report where, after commenting that [the child] would easily adjust to life in the CR and before noting [the Father] had dismissed the idea of living in Italy as ‘impractical’, the reporter said [paragraph 86]:
‘……On the other hand, [the child] at 10 years of age is reliant on her parents to facilitate her relationship with the other parent. Such reliance would increase if [the child] was geographically separated from a parent. Whilst the parents proposes web-cam, email and telephone calls to supplement [the child]’s limited physical time with the other parent, the writer is of the opinion that such an arrangement is insufficient to sustain [the child]’s present close loving relationship with her parents.’
73. I shall return later to this and other assessments but for now it can be said that the conclusion of insufficiency appears to rest, at least in part, on [the child]’s dependence on her parents [in reality, her mother] facilitating her relationship with her father which, in turn, rests on the view that she would either not do so or not do so adequately. Indeed [the child]’s dependence on her mother to facilitate her communication with her father was something the reporter spoke of to support the proposition that while she did not recommend relocation ‘at this time’, [the child] could relocate to the CR when she is in high school and better able to contact her father without her mother’s active support [paragraph 91]. These are not views I share and nor do they have the support of the submissions of the ICL. (italics in original)
The trial Judge at [74] observed that the child “has a close and affectionate relationship with her paternal grandmother” and said that, “[i]t can also be accepted that a move to the CR would bring about a significant shift in the ground on which this relationship has been founded”. Her Honour at [76] said that the Father has two sisters and concluded that there was “no reason to think that [the child] does not benefit from whatever opportunities there have been to spend time with extended family on her father’s side”.
The trial Judge at [75] dealt with the relationship of the child with members of the maternal family and Mr H. Her Honour observed: “[The child] is obviously part of a close extended family there”. As for Mr H her Honour observed that the child “has not yet established a close relationship with him”.
The trial Judge at [77] to [87] dealt with the additional consideration in s 60CC(3)(c) of the Act, namely, the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. Her Honour commenced by observing:
77. Willingness and ability is a core consideration whenever relocation is proposed and it is one of a number at the heart of this decision, because while any move to the CR would certainly be accompanied by orders for visits and a variety of regular communication, if [the child]’s relationship with her father were not supported at the very least by compliance with court imposed obligations then that relationship would be damaged which would represent a significant loss for [the child] and adversely affect her future well-being. It is important, therefore, that there be sufficient confidence in the mother’s promise to fulfil the commitments imposed and in her ability to do so.
It is not necessary to repeat all of what her Honour said. However, she came to the conclusion at [85] that she was “comfortably satisfied [the Mother] would adhere to any arrangements put in place by orders and she would do what is required to support and sustain [the child]’s relationship with her father”. Her Honour described the Mother as a “devoted and responsible parent, who recognises [that the child] loves her father and he loves her, with a genuine appreciation of [the child]’s interests and the importance for her of maintaining her relationship with her father”.
The trial Judge also dealt with at [86] the Mother’s “ability to fund the travel if the move is permitted” and came to the conclusion that she saw it “as being within her financial reach, all things considered”. Her Honour also took into account that the Father agreed to contribute half of the costs of the fares even if the child is living in the Czech Republic.
The trial Judge also considered the Father’s willingness and ability to facilitate and encourage the child’s relationship with the Mother and without repeating all of what her Honour said at [87], in our view, she had some reservations.
The trial Judge at [88] to [91] dealt with the additional consideration in s 60CC(3)(i) of the Act, namely, the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents. As to the Mother it is clear from what her Honour said at [88] that she was satisfied that the Mother had an appropriate attitude to the child and to the responsibilities of parenthood.
However, as to the Father, although the trial Judge observed at [89] that the child “has also had the benefit of her father’s love and support” and “his role has been important to [the child]’s well being and he has played his part as a committed parent as he has thought fit” and “he has demonstrated a commendable attitude to his responsibilities as a parent”, again, her Honour had some reservations. Her Honour said:
But it will be obvious from what has been said already that there is a downside to this assessment which arises from the history and consequent legitimate concerns about his excessive use of substances and their effect on his behaviour along with other lapses in judgment about parenting matters. Obviously there can hardly be confidence that a parent who is drunk or affected by alcohol or stoned can properly care for a child and nor can they be an effective carer when substances render their behaviour aggressive or combative.
As the structure of her Honour’s judgment recognises there is some overlap between s 60CC(3)(i) and s 60CC(4). The trial Judge at [90] to [91] considered s 60CC(4) of the Act, namely, the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. Her Honour said:
90. [The Mother] has fulfilled her responsibilities as a parent by taking the opportunity to participate in decisions in relation to [the child], to spend time with her and to communicate with her. She has also facilitated the father being involved in decisions, spending time and communicating with [the child]. The shortcoming in emails to the father while in the CR recently does not alter that and nor does the father’s comment that he has had difficulty in arranging to have [the child] with him on weekends. She has fulfilled her obligation to maintain [the child] by meeting her day to day costs when in her care as well as paying for her needs such as her school fees, trips, books and for her activities such as karate and swimming.
91. [The Father] has also fulfilled his responsibilities as a parent by taking the opportunity to participate in decisions related to [the child], he has spent time with her and communicated with her. Without returning to [T] in the weeks between the end of the first part of the hearing and the resumption to take the property evidence, he went to stay with his sister but it is understandable he might want to see and spend time with his family and nothing is made of that here. While he has made some financial contribution to [the child]’s needs since separation, including some clothing and a holiday, the major cost has fallen to her mother. It is said that he will now review his work situation and increase his hours of employment. If this happens no doubt his future support would be set by child support assessments if [the child] were to be living [in T] and if she is not it would assist him pay a share of the travel costs.
The trial Judge at [92] to [94] dealt with the additional consideration in s 60CC(3)(f) of the Act, namely, the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
As to the Father, the trial Judge at [92] referred to what the Family Consultant said at paragraph 89 of the family report that the Father “needs to ‘refrain from excessive alcohol use and abstain from marijuana and be more proactive regarding [the child]’s physical and psychological safety and well being’ and she strongly encouraged [the Father] to get counselling with a view to ceasing marijuana use and reducing his level of alcohol consumption” (italics in original). We note after close consideration of the family report that the Family Consultant made these remarks at paragraph 87 and not at paragraph 89 as suggested by the trial Judge. At [93] her Honour observed that she recognised there had only been limited time for the Father to take on board the recommendation of the Family Consultant and continued:
but there is no indication he has taken any concrete step in that direction to this point despite acknowledging a problem and indicating a preparedness to do something about it. Nonetheless it is hoped [the Father] will address and change this area of his life, particularly since it so undeniably affects his behaviour and the regard of others and because it has brought such unhappiness and he needs to allay legitimate concerns about the quality of the care he provides to [the child].
Her Honour also said at [94]: “None of that is to say he does not have a great deal to offer as a parent or that he is without capacity to provide for many of [the child]’s needs”.
As to the Mother the trial Judge at [94] accepted a submission of the Independent Children’s Lawyer, that the Mother “has a better capacity to care for [the child]” and found that the Mother “is a capable parent who can provide very well for [the child]’s needs including her emotional and intellectual needs. The father concedes it – ‘[Ms Friscioni] is a great mother, slightly strict. I can’t fault her’ – and he makes no criticism of her parenting capacity” (italics in original).
The trial Judge at [95] to [97] dealt with the additional consideration in s 60CC(3)(d) of the Act, namely, the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom she has been living.
The trial Judge said:
95. Obviously there would be a host of changes for [the child] if she was to move to the CR and a more stark contrast in environments could hardly be proposed. The reporter’s assessment that she would easily adjust to life there since she is well positioned to do so academically and linguistically is accepted - not only was she born there, she has spent considerable time there over the years, she is fluent in the language, she is familiar with extended family, and she enjoyed the experience of going to school there.
96. The most profound change for her would be the separation for a long period each year from her father whom she would undoubtedly miss. This applies also to her separation from her paternal grandmother.
97. Of course if she were to remain living [in T], none of these considerations would arise and [the child] would not be separated from either parent, at least only during annual trips back to the CR. But that is not to say a continuation of the current state of things would be without impact for her.
The trial Judge at [98] dealt with the additional consideration in s 60CC(3)(e) of the Act, namely, the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. Her Honour said at [98]: “This is another significant factor. It is common ground there will be practical difficulties and expense if the move to the CR is permitted but what can be said of it has been said elsewhere”.
The trial Judge at [99] to [101] dealt with the additional consideration in s 60CC(3)(g) of the Act, namely, the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant. Her Honour observed at [99] that the child “has a mixed cultural and linguistic heritage”.
The trial Judge at [102] dealt with the additional considerations in s 60CC(3)(j) and (k) of the Act, namely, whether there has been any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family. Her Honour said at [102]: “[The child]’s comments probably are a sound indicator of the unsatisfactory state of things at least at an earlier time. They are reflected in [Ms A]’s report and also in the family report. The protection order against the father for two years is still current until October 2009”.
The trial Judge at [103] to [104] dealt with the additional consideration in s 60CC(3)(l) of the Act, namely, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. It is not necessary to repeat what her Honour said.
The trial Judge at [105] to [111] dealt with the additional consideration in s 60CC(3)(m) of the Act, namely, “any other circumstance”. Her Honour commenced by observing at [105]: “There were submissions that have not yet been addressed and it will be convenient to do so here”. Her Honour referred at [106] to what the Family Consultant said at paragraph 83 of the family report. Her Honour then said:
107. Later, after noting the strong relationship between [the child] and her mother and her undoubted parental capability, she said: ‘On this basis, separating [the child] from her mother is unjustifiable.’ She concluded her assessment by acknowledging the mother’s predicament of being isolated from her family, her culture and her partner, but ‘given the strength of [the child]’s relationship to both parents, relocation at this time is not seen as being in the best interest of the child.’ Questioned about the qualification ‘at this time’, she said relocation to the CR could happen when [the child] is in high school when [in effect] [the child] could contact her father without relying on her mother and there would be time to save money for visits. (italics in original) (emphasis added)
Before proceeding, we observe that from what the trial Judge said at [106] to [107] it could be assumed that the Family Consultant gave evidence at the trial and was cross-examined. This inference is corroborated by references in the transcript of proceedings included in the appeal books (Transcript, 4 December 2008, pp 9 to 10; 12 December 2008, p 13). However, a transcript of the oral evidence of the Family Consultant was not included in the appeal book. We therefore caused an administrative enquiry to be made of the transcription service and understand that the Family Consultant gave oral evidence on 12 December 2008 and was cross-examined. However, we do not have a transcript of that evidence and see no reason why it should now be obtained. No written or oral submissions were made to us in relation to anything the Family Consultant said during her oral examination and thus we conclude that it is irrelevant to the determination of this appeal.
After referring at [108] and [109] to submissions of counsel for the Independent Children’s Lawyer and the Mother, her Honour said:
111. For my part, I agree with the thrust of these submissions; that is to say, in my view the prospect of the mother being ‘overwhelmed’ by the changes involved in the move is overstated; the supports she has there have been underestimated; the more immediate future of the relationship with [Mr H] has been misconstrued; and while there is reference to the mother’s predicament of being isolated from her family and withholding permission to leave ‘may negatively impact’ on her [paragraph 83] insufficient weight has been given to the highly probable negative impact of that result on the mother - and therefore on [the child] - as well as the continuing stress on the mother of being obliged [virtually] to remain living [in T].
Under the heading of “Parental responsibility” the trial Judge dealt with the provisions of s 61DA of the Act and said:
113. Both parents had sought equal shared parental responsibility for the future but the mother adopted the submission for the Independent Children’s Lawyer that this would be impracticable if [the child] is living in the CR. If she is to remain [in T], counsel for the Independent Children’s Lawyer submits there should be equal shared parental responsibility and there is no argument from any quarter about this.
114. I agree it would be impracticable if she is living so far away, which is not to say there should not be consultation about important decisions, but if there is no agreement about it then sole responsibility would give the mother the ultimate decision making responsibility. On the other hand, if she is to remain living [in T], despite the discord and difficulties, I accept the common ground that equal shared parental responsibility would be appropriate.
The trial Judge at [115] to [127] turned to the provisions of s 65DAA of the Act and said at [117] that, “if [the child]’s circumstances were to remain as they are, consideration needs to be given to her having, first, equal time between her parents and, if not, substantial and significant time”. Her Honour, for reasons she gave, found “that equal time should be excluded”. However, her Honour found that “it would be in [the child]’s interests to spend substantial and significant time in her father’s care, although that would be subject to caveats about [the Father] adhering to his responsibilities while [the child] is in his care”. Her Honour then said at [118]: “That outcome has to be balanced against the advantages and disadvantages of [the child] moving to live in the CR”.
The trial Judge at [119] to [122] described the advantages to the child if she continued to live on T and then at [123] to [127] described what she called the “drawbacks”. Under the heading of “Conclusions – orders” her Honour said:
128. Ultimately all of the considerations discussed have to be weighed in the balance and having done so I am satisfied [the child]’s best interests would be served by the mother being permitted to relocate with her to the CR. In my opinion the weight of the advantages for [the child] from permitting the move and the disadvantages of not being permitted to go outweigh the advantages and disadvantages of maintaining the status quo.
129. I am conscious that this decision will probably seem unfair to [the Father] and no doubt be distressing for him, all I can say is that in discharging the obligation to evaluate [the child]’s best interests that is where the weight has fallen for reasons I trust are apparent.
The trial Judge dealt with the “Form of orders” at [130] to [132] and said at [130] that: “The orders proposed by the [Independent Children’s Lawyer] and adopted by the mother are appropriate to those circumstances and will be made with some relatively minor modifications”.
The trial Judge also at [130] to [132] dealt with orders the Mother proposed that related to “restraints upon the father drinking to excess and smoking illegal drugs, making racist remarks, denigrating the mother and permitting others to smoke illegal drugs, drink to excess or denigrate the mother in the presence of the child” and also orders that would oblige the Father “to enrol in an anger management and in a Triple P Parenting Course program and comply with reasonable directions of the program director and provide the mother with certificates of completion”. Her Honour found at [132]: “As for the other restraints proposed, I am prepared to order that he not consume alcohol to excess or smoke marijuana while his daughter is in his care since that has been a continuing grievance by the mother and it may serve to alleviate some of her concerns, but that is as far as I am prepared to go”.
Relevant Principles
This is an appeal against a discretionary judgment in parenting proceedings pursuant to Pt VII of the Act and the principles to be applied are well established and need not be restated: House v The King (1936) 55 CLR 499;
Gronow v Gronow(1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.
We are mindful, though, of what was said by Kirby J in CDJ v VAJ at 230 – 231 in relation to an appeal court disturbing “a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal”.
Grounds Of Appeal
Introduction
In the notice of appeal there are seven grounds of appeal. However, during the hearing before us the solicitor for the Father informed us that ground 2 was “the essence of the appeal and certainly the ground that’s been pressed the hardest” (Transcript, 7 August 2009, p 2). As to the remaining six grounds, the solicitor for the Father said that he was instructed to press those grounds but he did not seek “to take it any further”. Thus, we proceeded on the basis that although grounds 1, 3, 4, 5, 6 and 7 were not abandoned, no oral submissions would be made in relation to those grounds and the Father relied upon what was in his written submissions.
We received extensive written submissions on behalf of the Father, the Mother and the Independent Children’s Lawyer. We do not propose to repeat all of what was said in these submissions. We also do not propose to deal with the grounds of appeal in the order in which they appear in the written submissions.
Ground 2
In ground 2 of the notice of appeal it is contended that the trial Judge erred in her finding of fact in [11], [109] and [111] of her reasons in that her Honour in effect rejected the findings of the Family Consultant. As we have observed in the family report, the Family Consultant recommended that the child continue to reside in T.
As we have observed the trial Judge at [7] to [11] identified the “Evidence” and said:
7. To support the mother’s case there are 15 witnesses, not all of whom were required for cross-examination. A number are friends of hers but, apart from a passing reference to [Ms N] as ‘partisan’, there is no submission suggesting their evidence was skewed in her favour as a result, and from my point of view those that did give further evidence were all relatively straightforward in their manner and there is no reason to question their veracity.
8. The father supported his case with 5 witnesses who were not all required for cross-examination. Similarly, their evidence did not attract any criticism in submissions and nor is there any reason to reject what they had to say.
9. On 28 October 2008 the Registrar made an order for a family report without specifying the particular matters the reporter was to address. The report is wide ranging and includes identification of the issues, the current arrangements, and future proposals, it summarises the interviews and records observations of [the child] with her parents and, via web-cam, with her maternal grandparents and the mother’s partner in the CR, and it records the reporter’s assessments. The report concludes with a recommendation about the outcome; namely, shared parental responsibility ‘and status quo in regards to living arrangements’ along with the observation that the Court may see merit in [the Father] contributing to the cost of [the child]’s annual travel to the CR. (italics in original)
10. Of course the family report process gives reporters a perspective not available to a judge, including the opportunity to speak directly to the child and observe the child interacting with parents and others who are significant to the child’s life, and their assessments are based on the body of learning related to their professional qualifications and experience. But they do not have the advantage of hearing the evidence tested or of observing those involved in a different setting. Nor, usually, is it apparent that they have arrived at the outcome they recommend by taking the path imposed by the Act through the suite of provisions about best interest considerations, parental responsibility and time. Some of the components which underlie the best interest considerations fit well with their expertise and invariably their evidence about that is very important, but the outcome is for the court and while recommendations about it may be helpful in some cases, not the least with settlement discussions, plainly that does not prevail over the court’s responsibility to evaluate all of the evidence, including that given by the reporter, via the structure imposed by the Act and to come to an independent decision about what is best for the child in all the circumstances.
11. In this case the reporter’s evidence has been helpful but in a decision that can have no universal happy result either way, the weight of the evidence points to a different result.
In regards to the additional consideration in s 60CC(2)(m) of the Act her Honour also said at [106], referring to what the Family Consultant said in paragraph 83 of the family report: “At paragraph 83 the reporter acknowledges that [the Mother] is keen to relocate, to return to her family and provide [the child] with an education similar to her own”. Her Honour continued:
107. Later, after noting the strong relationship between [the child] and her mother and her undoubted parental capability, she said: ‘On this basis, separating [the child] from her mother is unjustifiable.’ She concluded her assessment by acknowledging the mother’s predicament of being isolated from her family, her culture and her partner, but ‘given the strength of [the child]’s relationship to both parents, relocation at this time is not seen as being in the best interest of the child.’ Questioned about the qualification ‘at this time’, she said relocation to the CR could happen when [the child] is in high school when [in effect] [the child] could contact her father without relying on her mother and there would be time to save money for visits.
108. Counsel for the ICL submits that the reporter [sic] reference to ‘life stressors’ largely arises from concerns about the relationship with [Mr H] and probably too much emphasis was placed on this given the relationship is in its infancy and neither intends to live together at this stage, nor is the relationship the main factor motivating the mother’s desire to return to the CR. That relates to her desire to provide [the child] with a sound education and opportunities to reach her potential in life, to give her the lifestyle she had when growing up, and to have the family support that is available to her there. This was her position long before the relationship with [Mr H] and it found expression in the agreement with the father, the long stay in the CR and the purchase of the apartment there amongst other things. Also, it is submitted that any stress on the mother by relocating would be lessened by her ongoing connections there, the availability of a close family and friends, and that [the child] would ease into life there ‘seamlessly’.
109. Counsel for the ICL also submits that the reporter did not fully consider the impact on the mother of requiring her to stay living [in T] and the consequent impact on [the child], nor does sufficient account seem to have been taken of [Dr GR]’s diagnosis of Adjustment Disorder or the risk of the mother developing Major Depression. That prognosis is consistent with the mother’s evidence that she is unable to contemplate not being able to return to the CR and if she cannot, it is submitted, she will very likely suffer emotionally to a greater extent than she has already and [the child] will be affected by it.
110. This is echoed in the later submissions of counsel for the mother which identify two factors arising from the reporter’s assessment as operating in the father’s favor but neither deserves to be given any real weight. The first is a risk that the mother may be overwhelmed from a psychological perspective which was conceded to be speculative. The second is that the time and communication proposed would be insufficient to sustain [the child]’s relationship with her father which is undermined by the later proposition that she could relocate when she is in high school.
111. For my part, I agree with the thrust of these submissions; that is to say, in my view the prospect of the mother being ‘overwhelmed’ by the changes involved in the move is overstated; the supports she has there have been underestimated; the more immediate future of the relationship with [Mr H] has been misconstrued; and while there is reference to the mother’s predicament of being isolated from her family and withholding permission to leave ‘may negatively impact’ on her [paragraph 83] insufficient weight has been given to the highly probable negative impact of that result on the mother - and therefore on [the child] - as well as the continuing stress on the mother of being obliged [virtually] to remain living [in T]. (italics in original)
On behalf of the Father reference was made to what the trial Judge said at [10] about the family report process giving the Family Consultant a perspective not available to a judge, including the opportunity to speak directly to the child and observe the child interacting with parents and others who are significant to the child’s life and the qualification that a Family Consultant does not have the advantage of hearing the evidence tested or of observing those involved in a different setting. It was submitted that ordinarily, this might mean that the conclusion of the Family Consultant can be based on factual errors because of this lack of testing which happens at the hearing. However, it was submitted that the comments of her Honour were very relevant because in [7] and [8] she suggested that all of the witnesses gave honest answers. It was submitted that it follows that there can be no grounds for disputing the basis from which the views of the Family Consultant were formed.
On behalf of the Father it was submitted that the trial Judge elected to reject the recommendations of the Family Consultant and the main basis for this rejection is found at [111] where her Honour said that “insufficient weight [had] been given to the highly probable negative impact of that result on the mother - and therefore on [the child] - as well as the continuing stress on the mother of being obliged [virtually] to remain living [in T]”. It was submitted that this is not a valid consideration. It was submitted that her Honour is clear in her reasons that both parents have the ability to fulfil their parental responsibilities and that there was no evidence that the Mother would not be able to fulfil her parental responsibilities if she did not move to the Czech Republic. Further, no similar consideration was given to the effect that a similar move might have on the Father, even though it was noted at [11] that a decision in this matter cannot have a “universal happy result”.
On behalf of the Father it was submitted that in circumstances where the Family Consultant had a perspective that the trial Judge did not have, “where the grounds of the report cannot be criticized, and where the only basis for rejecting the conclusion of the report was the happiness of the mother, which is not a paramount consideration, [the] decision should be reversed”.
During the hearing before us the solicitor for the Father made some brief submissions and we understand that what was being put was that consideration of what the trial Judge said reveals that the “only factor which became relevant [was] the effect on the mother” and in particular her health. It was submitted that the “correct approach that should have been taken by her Honour is the effect on the child and not the effect on the mother”. It was submitted that the “practical effect of [the orders] is that the relationship between the father and the child is going to be greatly deteriorated” (Transcript, 7 August 2009, p 3).
On behalf of the Mother it was submitted that the trial Judge found, after hearing the evidence of the Family Consultant, that such evidence was overstated; underestimated; misconstrued; and insufficient weight “given to the highly probable negative impact of that result (isolated from her family and withholding permission to leave) on the [Mother] and therefore on [the child]”.
During the hearing before us counsel for the Mother also made some brief submissions. It was submitted that the trial Judge took into account a number of matters and “arrived at a view that [did] not turn on simply the evidence accepted or otherwise from the [Family Consultant]” (Transcript, 7 August 2009, p 5).
On behalf of the Independent Children’s Lawyer it was submitted that the trial Judge was not bound to accept the recommendations of the Family Consultant if there were sufficient reasons not to do so.
On behalf of the Independent Children’s Lawyer it was submitted that the trial Judge acknowledged the Family Consultant was able to give a perspective not available to the Court, in having an advantage of observing the interaction of the child with the parents, but on the other hand, further acknowledged that the Family Consultant did not have the benefit of viewing the tested evidence at trial.
On behalf of the Independent Children’s Lawyer it was submitted that the trial Judge’s comments at [7] and [8] “apply to the witnesses who gave evidence for the parties, not the evidence of the parties themselves”. Further, that her Honour’s comments at [10] “relate to the ‘family report process’ and are not limited to the giving of honest evidence in any event, but rather, refer to the evidence which can emerge at a trial, or the observing of the manner in which witnesses and parties present themselves at trial, about which a [Family Consultant] may not be aware”.
Conclusion
In this case the trial Judge had before her a large amount of written and oral evidence and also had the opportunity to observe the parties and various witnesses being cross-examined. The evidence before her Honour included what was in the family report prepared pursuant to s 62G of the Act by a Family Consultant. In the family report the Family Consultant expressed an opinion, as she was entitled to, on the ultimate issue, namely, what proposal would be in the best interests of the child: see s 80 of the Evidence Act 1995 (Cth).
Although the Family Consultant was an expert appointed by the Court to prepare a family report she was not in a privileged position and was required to give her evidence in the ordinary way. As Gibbs CJ observed in Re JRL; ex parte CJL (1986) 161 CLR 342 at 348: “In the performance of this function the court counsellor becomes a potential witness - a court appointed witness who is perhaps in some respects analogous to an expert witness - but is not part of the court”: See also BBT and JMT (1980) FLC 90-809 per Wood J.
In Hall and Hall (1979) FLC 90-713 the Full Court (Evatt CJ, Asche SJ and Hogan J) said at 78,819:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs.A. Marshall, Director of Court Counselling Sydney Registry — “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia”. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
“Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report”.
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:
“It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.”
Similarly, in M. and M.(1978) FLC 90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
“If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial `by report' rather than on the whole of the evidence.”
This Court is in full agreement with the views set out above.
Although the Act has been significantly amended since 1979, what the Full Court said in Hall and Hall remains apposite to the situation before the trial Judge in this case: see also D & P [2006] FamCA 170 (unreported, Finn, Holden & Boland JJ, 22 March 2006) and Andrew & Delaine [2009] FamCAFC 182 (unreported, May, Boland & Strickland JJ, 6 October 2009).
The family report reveals that the Family Consultant was of the view, as recorded at paragraph 18 of the report, that the issues for consideration were the “living arrangements” for the child; the Mother’s “request to relocate with the child” and the Father’s alleged problem with “alcohol and marijuana use”. Thereafter, in the report, the Family Consultant recorded the outcome of her interviews with each of the parents, the child and the paternal grandmother and also her observations. Then at paragraphs 81 to 91 of the report under the heading of “Assessment” the Family Consultant expressed certain opinions. The Family Consultant did not, and she was not required to, deal with the various relevant provisions of the Act such as s 60CC.
In our view, the observations the trial Judge made in [7] and [8] related to the evidence of the lay witnesses which each of the Father and the Mother called to give evidence. What her Honour said at [9] to [11] related to the evidence of the Family Consultant.
Thereafter, what the trial Judge said about the evidence of the Family Consultant did not involve a rejection by her Honour of that evidence. In fact, her Honour said at [11] that the evidence was “helpful” and thus her Honour, in our view, considered and gave weight to what the Family Consultant said. For example, her Honour at [40] to [45] was assisted by what the Family Consultant said at paragraphs 87, 88 and 89 of the report regarding the effect on the child of aspects of the behaviour of the Father and the Father’s use of alcohol and marijuana. Her Honour accepted at [67], [68] and [69] what the Family Consultant said about the relationship of the child with the parents. Her Honour at [72] and [73] referred to what the Family Consultant said at paragraph 86 of the report about the child’s reliance on a parent to facilitate a relationship with the other parent. Her Honour at [92] to [94] dealt with what the Family Consultant said at paragraph 89 of the report about the capability of the Father as a parent. We have already referred to what her Honour said at [106] to [111] and it can be seen that her Honour considered what was in the report. As we have observed, the trial Judge at [115] to [127] weighed up the advantages and disadvantages of the child remaining in T and was mindful of the recommendation of the Family Consultant.
The trial Judge had the responsibility of making a judicial decision on the ultimate issue and in undertaking that task she undertook a very thorough and detailed consideration of the evidence, including from the Family Consultant, and the relevant statutory considerations and reached a conclusion which did not accord with the ultimate opinion of the Family Consultant. The trial Judge was entitled to do what she did. We are of the view that there is no merit in the complaint in ground 2.
Ground 1
In ground 1 it is contended that the findings of fact by the trial Judge in [29] and [42] that the Father “engages in excessive marijuana use is not supported by evidence, and was contradicted in evidence by a negative supervised drug test, a test institute [sic] by the court”.
The trial Judge said:
29 That leads to another issue which is the father’s conduct; more particularly, the adverse affect on his behaviour of excessive use of alcohol, his use of marijuana and his aggressive and abusive behaviour particularly towards the mother.
…
42 That picture of his marijuana use is entirely contrary to the mother’s evidence of his use and her reference to his dealings with his mother and others about it. Having an occasional puff is also inconsistent with the father’s account of his usage at the hearing. Nor is it consistent with Dr [S’s] reference to the counselling sessions being to address his tension and aggression by means other than alcohol and marijuana. As for alcohol, the father said at the hearing that he had recently reduced his drinking from six heavy drinks a day to four, his reasons being that he felt fuzzy in the mornings and it was affecting his progress at the gym. As counsel for the ICL points out, he made no mention of the child - and nor did he mention what others had said about their experiences of his behaviour when affected by alcohol.
…
45 The closing submissions for the father dismiss the issue of alcohol and marijuana as having been ‘whipped up into something’, while the ICL submits there are real concerns about it and that is echoed in the submissions of the mother’s counsel. For my part, the question is certainly not irrelevant to consideration of a child’s best interests and in this case the overwhelming weight of the evidence establishes the father to have a long history of excessive use of alcohol, it does adversely affect his mood, and he does become aggressive and abusive. In saying that reliance is placed not only on the mother’s evidence and that of her witnesses but also the evidence of the father himself and that of the reporter. His conduct has been particularly directed towards his wife, as she described, it has been witnessed by [the child], and there is a consistent thread through the evidence of several witnesses that it has affected their regard for him.
…
84 In this case the weight of the evidence does establish that the criticisms are not without substance and, as I find, the mother’s concerns are justifiably held, including about long standing issues of alcohol and marijuana use and their apparent connection to shortcomings in temperament and important areas of responsibility. Given that finding, the question to be evaluated is whether the criticisms and concerns would be likely to prevail when she is living far away and swamp the pledges she gives here about visits and other support for the relationship in that event.
It was submitted on behalf of the Father that “[the trial Judge] states at Paragraph 84 that the criticisms about alcohol and marijuana use by the mother are justified. This is in contradiction of the results of the supervised medical report. Her honour has not considered this report in her judgment and therefore has placed to [sic] much reliance on the father’s use of marijuana”.
On behalf of the Mother it was submitted that at [29] the trial Judge did not refer to “excessive marijuana use” but to “excessive use of alcohol, his use of marijuana.” It was submitted that the punctuation mark by way of comma indicates that her Honour excluded the word “excessive” in relation to marijuana. So also at [42] her Honour “did not refer to “excessive marijuana use”. Her Honour noted that the Father's “account of his marijuana usage at trial is inconsistent with his reference to ‘having an occasional puff’ as documented by the family report writer”. (italics in original)
It was submitted on behalf of the Mother that the trial Judge referred to the evidence of Dr S that the Father engaged in counselling sessions to address his tension and aggression by means other than alcohol and marijuana.
It was submitted on behalf of the Mother that the trial Judge took into account the evidence of the Family Consultant at paragraph 87 of the family report, namely, that “the writer is of the opinion that [the Father] when responsible for [the child] needs to refrain from excessive alcohol use, abstain from marijuana and be more proactive regarding [the child]’s physical and psychological safety and well being”. At paragraph 45 of the family report, the Family Consultant recorded that the Father admitted "If offered a puff, I accept. I don't seek it out" (italics in original).Reference was also made to what her Honour said at [45] namely:
The closing submissions for the father dismiss the issue of alcohol and marijuana as having been ‘whipped up into something’, while the ICL submits there are real concerns about it and that is echoed in the submissions of the mother’s counsel. For my part, the question is certainly not irrelevant to consideration of a child’s best interests and in this case the overwhelming weight of the evidence establishes the father to have a long history of excessive use of alcohol, it does adversely affect his mood, and he does become aggressive and abusive. In saying that reliance is placed not only on the mother’s evidence and that of her witnesses but also the evidence of the father himself and that of the reporter. His conduct has been particularly directed towards his wife, as she described, it has been witnessed by [the child], and there is a consistent thread through the evidence of several witnesses that it has affected their regard for him. (italics in original)
We observe that what her Honour said about the Father’s use of alcohol and marijuana was consistent with how it was described by the Family Consultant.
In the written submission of the Independent Children’s Lawyer reference was made to what the trial Judge said at [29] and [42] and it was submitted that what her Honour said at [42] was open to her on the evidence, and entirely consistent with it.
It was submitted by the Independent Children’s Lawyer that the trial Judge did not make a finding that the Father’s use of marijuana was “excessive”, and the Father does not disagree that he has used marijuana, although there was a dispute between the parents as to the level of use.
It was submitted by the Independent Children’s Lawyer that the trial Judge discussed the Father’s use of alcohol, an issue the Father did not refer to in his grounds of appeal. It was submitted that her Honour goes on to deal with the issue of alcohol use in the subsequent paragraphs of her reasons, suggesting she was, if anything, more concerned about that issue, a matter which the Father does not challenge.
It was submitted by the Independent Children’s Lawyer that the trial Judge made a further finding at [84] that the Mother's concerns about the Father’s behaviour, including those about his “long standing issues of alcohol and marijuana use and their apparent connection to shortcomings in temperament and important areas of responsibility” were “justifiably held” by the Mother and that this finding was open to her on the evidence given.
We accept the submissions on behalf of the Mother and the Independent Children’s Lawyer and thus reject the complaint in ground 1.
Ground 3
In ground 3 it is contended that the trial Judge erred in law and fact by accepting at [34] the evidence of Dr S concerning the Father’s use of alcohol and marijuana when that evidence was not supported in fact and was given without the permission of the Father in “violation of privilege”. We observe that it was not submitted that objection had been taken before the trial Judge to the admission of the evidence of Dr S because of some claim for privilege.
The trial Judge said:
34 In his later report [Dr S] remarked that the tension between them was intensified by the father being jealous of his wife as well as his long term alcohol and marijuana abuse and their relationship had also deteriorated because of his difficulty adapting to the stay in the CR. [Dr S] says they tried to cure his tension and aggression by means other than alcohol and smoking. He concluded his short report with the opinion that the mother’s return to the CR would be desirable ‘with regard to her psychic health where also her ability to be a good parent for her daughter [the child] would certainly improve.’ He elaborated on some aspects of his report in cross-examination when he explained that his English had not been sufficient to speak with the father directly and the mother had acted as interpreter during their consultations. He confirmed he had never seen the child. In these circumstances it is obvious that the conclusion just noted could not be given any weight here. The relevance of his evidence is more that the father’s alcohol and marijuana use and its impact on his behaviour was an issue in their relationship and the subject of professional consultation before their separation.
…
87 Turning to the father’s willingness and ability to facilitate and encourage the child’s relationship with her mother, this has not received any attention in submissions but there is a good body of evidence to say he does appreciate the importance of that relationship and while he has understandable reservations about the future, he offers no criticism of the mother in her role as a mother. He has supported the child accompanying her mother every year back to the CR and learning her mother’s first language and culture - which adds to their relationship – to which there can be added his offer of financial support for travel, on either outcome. It is regrettable, therefore, that there have been some not insignificant lapses in judgment which were hardly designed to engender in the child a positive outlook towards her mother, such as calling her mother a ‘slut’ and talking of her mother betraying the family and rotting in hell and so on. It is not to condone it to say this sort of behaviour was now some time ago when he believed she was having an affair with another man – the mother justifiably observed that even if she were it does not entitle him to conduct himself as he did – but it can be said on a more positive note that there has been no recent recurrence of this sort of thing. (italics in original)
On behalf of the Father it was submitted that at [34] the trial Judge stated that the conclusion of Dr S was not relevant and that the only conclusion which could be made from this report was that the Father’s marijuana and alcohol use had an impact on the breakdown of the relationship of the Mother and the Father.
On behalf of the Father it was submitted that at [87] the trial Judge made “reference to some bad remarks directed at [the Mother], but there were no allegations that any of this behaviour has always been during fighting during the period of the relationship breakdown and her honour notes at paragraph 87 that there has been no recent reoccurrence of this”. It was submitted that “[s]ince there is no longer a relationship or question of a relationship, it would seem as if such behaviour would not be relevant any longer”.
On behalf of the Father it was submitted that there is no question as to the Father’s parenting skills, or the Mother’s parenting skills and that the entire report of Dr S is therefore irrelevant.
In the submissions of the Mother reference was made to what the trial Judge said at [34] and it was submitted that her Honour notes that Dr S’s evidence in this regard (alcohol and marijuana) was relevant and was an issue before separation. It was submitted that the Mother’s evidence was that the Father’s participation in two consultations with Dr S was as a result of her contacting Dr S after an incident where police were called, and after the Father admitted to the Mother he had a problem with jealousy, drinking and controlling his temper and he asked her for assistance.
On behalf of the Independent Children’s Lawyer it was submitted that at [34] the trial Judge was doing nothing more than summarising the Mother’s evidence and the Report presented by Dr S. It was submitted that her Honour was very clear that she specifically only accepted the evidence to the extent that it lent some support to the Mother’s evidence that the Father’s use of marijuana and alcohol was an issue in their relationship at the time that Dr S saw the parents. It was submitted that no great weight was placed on Dr S’s evidence and the decision to permit the relocation did not rest on this.
We accept the submissions on behalf of the Mother and the Independent Children’s Lawyer and find no basis for the complaint in ground 3 which we reject.
Ground 4
In ground 4 it is contended that the trial Judge erred at [25] “by giving implicit support for a finding that education was below standard [in T] for a non-indigenous student”.
The trial Judge said:
25. These contrary views about the quality or standard of education offered by schools [in T] generally, or by the school [the child] attends now, or by the school she would attend if she were to continue her education there in the future could not be the subject of a finding here. The issue is undoubtedly complex and would require a great deal more information than could be mustered in litigation here and undoubtedly opinions would differ in any event, as they do here. The relevance of it for present purposes is that the mother has an opinion which, it is accepted, is genuinely held, it is not inherently unreasonable and nor is it seen as capricious or advanced for an ulterior motive – after all, she had views about [the child]’s future education long before this litigation because they were a factor in the earlier agreement for her to be educated in the CR.
In the written submissions of the Father it was submitted that:
Her honour formed the view that the mother had formed views about the [T] legal system [sic] (para 35) but no view was formed about whether or not this was a correct or reasonable view. Although this is a consideration, it can be given no more consideration that the views of the father on the [T] education system.
The test is what is in the best interests of the child and not what is the preference of one of the parents. Her honour has also placed to [sic] much weight on the orders precluding the child from studying abroad at an older age, when the other consideration such as the wishes of the child will become far more relevant.
The Independent Children’s Lawyer submitted that the trial Judge very clearly stated that an opinion about the level of education in T could not be the subject of a finding by her Honour and that she simply accepted that the Mother held genuine concerns which were “not inherently unreasonable”, and not “capricious” or “advanced for an ulterior motive”. It was submitted that this was only one of the issues given consideration by her Honour and did not, of itself, lead to the decision to permit the relocation. We agree with these submissions and reject ground 4.
Ground 5
In ground 5 it is contended that the trial Judge erred in finding at [30] that the Father smoked marijuana regularly with his mother and others. Further, that the paternal grandmother gave uncontested sworn evidence in the trial that she had not smoked marijuana in a year; which her Honour failed to note or consider in her judgment.
The trial Judge said:
30. The mother maintains this was his history throughout their marriage. His abuse while drunk was invariably followed by apology accompanied by a gift and the promise not to do it again and he says things while drunk – for example, while in the CR he said if she left him ‘I would shoot you, and then shoot myself’ – that he does not later remember saying. While he has tried to give up drinking alcohol, his resolve does not last long and he has never tried to give up smoking marijuana which he does regularly with his mother and others. It is also her view that the father’s judgment about parental issues is affected when he has been drinking; for example, it came to her attention recently [just before the family report interviews] that he had allowed the child to stay overnight without proper supervision with a 12 year old girl who has ‘the interests of more mature girls’ and when she took this up with him he became abusive and hung up on her. The episode is aired in the family report [paragraph 49] which gives this account of the father’s version: (italics in original)
…
49. Like [the mother], [the father] also spoke of the previous Thursday night. He claimed on leaving the restaurant [the child] requested to sleep at her 12 year old friend’s place. The two girls then entered the hotel where the friend’s mother was working, to seek the mother’s permission. On gaining permission, the two girls left the hotel for the child’s home, a unit adjacent to the hotel. According to [the father], ‘I remained at the hotel, had a couple of drinks and sang karaoke’. He reasoned, ‘[the mother] has allowed [the child] to stay overnight on a school night; it would have happened if together [pre separation]’. In a similar vein, [the father] questions why the mother is reluctant for [the child] to spend time with him when such time coincides with others socialising at his home. He explained, ‘I have people over, I cook a meal, we all drink’. [The father] also emphasised ‘rather than pay my tutors I cook them meals.’(italics in original)
On behalf of the Father it was submitted that there was “no evidence that the grand mother [sic] smoked marijuana and indeed it [sic] the fostering of the child’s relationship with the Paternal Grand mother is in the interests of the child”.
It is sufficient to refer to the submissions on behalf of the Independent Children’s Lawyer, which we accept, that the trial Judge did not make a finding of fact about this issue, or about the allegation of the Mother that the Father regularly smoked marijuana with the paternal grandmother. It was submitted that [30] does no more than summarise the Mother’s evidence about the issue. In any event, it was submitted that the evidence of the paternal grandmother was not to the effect that she did not smoke marijuana, but rather that she had not done so for about a year. It was also submitted that the judgment did not rest on the issue of the grandmother’s alleged use or otherwise of marijuana, nor does this issue factor to any real degree in her Honour’s judgment. We reject ground 5.
Ground 6
In ground 6 it is contended that, “[a]s a result of her incorrect finding of fact as specified in appeal point 5, her Honour in [20] incorrectly exercised her discretion when considering the Mother and the Father sharing [Mr LE]s accommodation”.
This ground of appeal makes no sense. In any event, the trial Judge said:
20 The mother will need to confront the issue of housing availability and affordability if she is to remain [in T]. Her friend, [Ms TY], has offered to have her and the child come and stay with her family when her lease runs out this month, but that could not be seen as satisfactory in the longer term. While the father lives in shared premises which seem to suit him, he has the offer of a three bedroom duplex from his friend and employer, [Mr LE], who confirms this. Though this has been available to him for some months, he has not taken the offer up at this stage. He and [Mr LE] have not discussed rent, but [Mr LE] put it in his evidence between $400 and $450 per week. When he does move it is intended that his mother will move with him to share the rent.
In the written submission of the Father it was simply said: “The proposed accommodation for the child would appear to be adequate but there does not appear to be any consideration given to the adequacy of this arrangement, due to her honour’s decision to relocate the child to the Czech republic”. Although the submission was somewhat unclear, we agree with the Independent Children’s Lawyer that, “[t]he argument from the father appears to be to the effect that Her Honour did not consider the father’s proposed accommodation as adequate for the child”.
On behalf of the Mother it was submitted that at [20] the trial Judge gave a summary of the housing and accommodation options available to the Mother and the Father in T and that, “[n]o discretion has been exercised at paragraph 20 when considering the (grand)MOTHER and [the Father] sharing [Mr LE]’s accommodation”.
The Independent Children’s Lawyer submitted that the trial Judge did no more than summarise the evidence of each of the parties as to their respective intended future accommodation arrangements. It was also submitted that her Honour was not required to further consider the Father’s proposal once she determined that the child would live with her Mother. It was submitted that her Honour gave other reasons as to why the Mother ought to be the primary carer of the child. We accept the submissions of the Mother and the Independent Children’s Lawyer and reject ground 6.
Ground 7
In ground 7 it is contended that the trial Judge erred at [56] when she was dismissive of the Father’s evidence as to his preparedness to relocate to Cairns for the benefit of the child and had no basis of fact in either the evidence or her discretion in finding that the Father saw his future in T which provided a lifestyle he enjoyed.
The trial Judge said:
56. As [the Father] is not proposing change, his proposals can be outlined more briefly. He is steadfast in his opposition to [the child] leaving [T]. This suggests he sees her education, including her secondary education, as being satisfactorily met by the schools [in T] although at the hearing he did not rule out [the child] going to high school in Cairns. But for now he puts forward no concrete plan to move elsewhere at any specified point in the future. It became apparent that earlier in the marriage the parents had discussed living elsewhere and it also became apparent that [the Father] had applied for fly in/fly out employment at a mine site since separation, but there is nothing to say [the Father] sees his future anywhere but [in T] which provides a lifestyle he enjoys.
57. He virtually concedes he does not presently have accommodation that is suited to [the child]’s longer term care because if she is to remain he plans to move to the accommodation [Mr LE] offered some time ago. While the rent has not been discussed he says his mother will also move there and they will share the rent. That is supported by her evidence.
58. At the time the parenting evidence was heard he was working 20 hours a week in the bottle shop, but when the hearing resumed for the property proceedings [Mr ML] [who helped him present his case] said [the Father] had given some thought to his situation and he intends to increase his employment hours and therefore increase his income. His offer to pay half the travel costs, irrespective of where [the child] is living, has already been mentioned.
59. As for [the child]’s arrangements if she is to remain [in T], they are reflected in the orders he seeks and they are set out in the Schedule. He points out that [the child] has lived [in T] since shortly after her birth. Amongst other things, remaining there would give her the benefit of both parents continuing to be involved in her day to day upbringing and she would also be able to maintain her close relationship with her paternal grandmother who has been a significant figure in her life. He is upset at the prospect of [the child] leaving to live in the CR and he certainly does not see the various means of electronic communication as any substitute for time they could spend in each other’s company and nor does he see an annual visit back to Australia as sufficient to sustain their meaningful relationship.
The written submissions of the Father in relation to ground 7 are not entirely clear. There is a paragraph in which it was said: “The fostering of a relationship with both parents is in the paramount interests of the child. In rejecting the fathers [sic] possible relocation to cairns [sic], as a compromise to fulfil all educational and parental requirements for the child, her honours [sic] has failed to take into account the best interests of the child as required”. Further, it was said: “If her honour had used this appropriate test, she would not have rejected the father’s possible relocation to Cairns”. Then it is said that “[h]er honour lists the primary considerations in her judgment” and thereafter submissions are made in relation to what the trial Judge said at [62] and that “[t]he other consideration is the childs [sic] exposure to aggressive and verbal abuse”. Then brief submissions are made in relation to what her Honour said in relation to each of the considerations in s 60CC of the Act.
We observe that in oral submissions to us the solicitor for the Father said that ground 7 also relates to ground 2 (Transcript, 7 August 2009, p 2) however this was not elaborated on.
On behalf of the Mother it was submitted that at pages 4 and 5 of the Father’s submissions additional commentary not referable to any of the seven grounds of appeal is provided in support of the appeal and that this material should not be considered. It was submitted that additional grounds of appeal could not be founded or argued in an outline of argument. The Independent Children’s Lawyer submitted that the written submissions of the Father appear to raise a further ground of appeal, namely, that the trial Judge failed to take into account the best interests of the child as required and that the only factor which was supportive of allowing a relocation order to the Czech Republic was the psychological effect on the Mother.
We accept the submissions on behalf of the Mother and the Independent Children’s Lawyer about the written submissions of the Father and shall deal only with the grounds of appeal as set out in the notice of appeal. We do not propose to consider what is set out on pages 4 and 5 of the written submissions of the Father that is unrelated to the complaint in ground 7. If we are in error in this approach then we agree with what was submitted on behalf of the Independent Children’s Lawyer and reject any of the miscellaneous and unrelated complaints of the Father.
Returning then to ground 7, in the submissions of the Mother reference was made to what the Father said in paragraphs 40 and 41 of his affidavit of 13 November 2008 and what was said by the paternal grandmother in paragraphs 2, 13 and 17 of her affidavit of 13 November 2008. It was submitted on behalf of the Mother that the trial Judge was entitled to conclude that the Father was not prepared to relocate to Cairns and that he saw his future in T which provided a lifestyle he enjoyed. It was submitted that the Father’s evidence was “clear and unambiguous regarding his lack of preparedness to relocate to Cairns for the benefit of [the child]”. It was submitted that the evidence at the hearing was that the Father and his mother would continue to live in T and share accommodation provided by the Father’s employer, if the child were to live with the Father. Thus, her Honour was entitled to conclude that the Father put “forward no concrete plan to move elsewhere at any specified point in the future” and this accorded with the Father’s own evidence (italics in original).
The Independent Children’s Lawyer submitted that the trial Judge was not dismissive of the Father’s “stated willingness to move to Cairns”. Rather, her Honour found, consistent with the evidence given by the Father, that “there is nothing to say [the Father] sees his future anywhere but [in T]”. It was submitted that this finding was “easily supported by the evidence, including that summarized [at [57] and [58]] which summarises the father’s evidence of his intention to increase his current hours of employment and [59] which summarises the father’s proposals for [the child] to remain [in T]”.
The Independent Children’s Lawyer submitted that it was not possible for the trial Judge to conclude that it was in the best interests of the child for the Father to move to Cairns with the child when the evidence of the Father pointed strongly against his intention to do so, and the Father did not provide any evidence of his proposed arrangements should he decide at some future time to do so. It was submitted that the Father’s evidence was to the effect that he was satisfied with the education in T but that if for any reason he changed his view about that, particularly as the child approached high school, he would consider moving to Cairns so that she could attend school there.
The Independent Children’s Lawyer submitted that there was no evidence of proposed accommodation, schooling arrangements, employment for the Father, or general day to day care arrangements put forward and no evidence that he had a concrete plan to move.
The Independent Children’s Lawyer submitted that the Mother’s evidence was to the effect that she had not considered Cairns as an alternative, and likewise, had no plans for accommodation, schooling, employment or day to day care in Cairns.
During the hearing before us it was submitted by counsel for the Independent Children’s Lawyer that during the hearing before the trial Judge on two or three occasions it was made clear that the Father’s proposal was that he would be residing in T and not elsewhere. Our attention was then taken to a part of the transcript which records a discussion between the trial Judge and counsel for the Father during which it was made clear that the Father proposed to remain in T and there was “no plan B” (Transcript, 12 December 2008, p 13).
We accept the submissions of the Mother and the Independent Children’s Lawyer and reject ground 7.
Conclusion
The trial Judge was a very experienced trial Judge who, in our view, identified the relevant evidence and made appropriate findings of fact which were open to her on the evidence. Her Honour then appropriately dealt with all relevant statutory considerations and applied the legislation to the established facts. In our view, in the circumstances of this case, the outcome was within the discretion of her Honour. No appealable error by her Honour has been demonstrated to us and thus we propose to dismiss the appeal.
We appreciate that cases such as this are not only factually and legally complex but usually involve heartfelt emotion for the parties. This is particularly likely to be the case for the unsuccessful party whose child has been permitted to move to the other side of the world. However, notwithstanding the gravity of the issue, indeed perhaps because of it, it is important that a challenge to a trial Judge’s determination is soundly made. Without intending to be overly critical the manner in which this appeal was presented to us is of concern. As seen, it was only ground 2 that was pressed at the hearing before us, however, grounds 1, 3, 4, 5, 6 and 7 were not abandoned. There were written submissions of the Father in relation to grounds 1, 3, 4, 5, 6 and 7. The oral submissions on behalf of the Father only briefly dealt with ground 2 and perhaps a fleeting reference to ground 7. There was also included in the written submissions of the Father a deal of material which did not relate to any of the grounds of appeal. A number of the grounds of appeal that were maintained were, in our view, devoid of merit and should have been abandoned.
In summary, in our view, the manner in which the appeal was presented in the notice of appeal and the written outline of submissions should be discouraged. What the High Court recently said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 about the public interest in case management is relevant to the conduct of appeals as is Chapter 1 of the Family Law Rules 2004 (Cth).
Costs
At the conclusion of the hearing we received submissions in relation to the costs of the appeal. On behalf of the Mother we were informed, and accept, that she is in receipt of a grant of legal aid and that it is the practice of the Legal Aid office to expect that an application for costs would be made and thus an order was sought that the Father pay the Mother’s costs. So also, counsel for the Independent Children’s Lawyer informed us that the Independent Children’s Lawyer was funded through Legal Aid and an order was sought against the unsuccessful party. The Father opposed the applications for costs.
No application was made by any party to put further evidence before us. However, counsel for the Father informed us that the Father’s “financial predicament is not very good” and that he has to pay half of the travelling costs of the child. It was also contended that he had “a valid case to argue”.
In our view, the Father was wholly unsuccessful and in those circumstances the Mother and the Independent Children’s Lawyer have established a justifying circumstance to support an order for costs.
We propose to make an order that the Father pay the costs of the Mother and the Independent Children’s Lawyer of the appeal. We were not provided with an assessment of the costs and therefore the costs will be in an amount as agreed within a limited period of time, or as assessed by a Registrar.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of Thackray, O’Ryan and Ryan JJ
Associate:
Date:17 June 2010
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