Gaffney & Gaffney
[2012] FamCAFC 140
•31 August 2012
FAMILY COURT OF AUSTRALIA
| GAFFNEY & GAFFNEY | [2012] FamCAFC 140 |
| FAMILY LAW ─ APPEAL ─ CHILDREN ─ Relocation. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Gronow v Gronow (1979) 144 CLR 513 HG v The Queen (1999) 197 CLR 414 House v The King (1936) 55 CLR 499 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McGregor & McGregor [2012] FamCAFC 69 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 |
| APPELLANT: | Mr Gaffney |
| RESPONDENT: | Ms Gaffney |
| FILE NUMBER: | NCC | 1385 | of | 2011 |
| APPEAL NUMBER: | EA | 49 | of | 2012 |
| DATE DELIVERED: | 31 August 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace and Rees JJ |
| HEARING DATE: | 24 July 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 March 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 258 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Tregilgas |
| SOLICITOR FOR THE APPELLANT: | Byrnes & Cox Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Boyle |
| SOLICITOR FOR THE RESPONDENT: | MCW Lawyers |
Orders
That the appeal be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal as agreed by the parties and, failing such agreement, as assessed on a party-party basis by a registrar of the Family Court of Australia.
That the time for the payment of such costs be deferred until the determination of the property proceedings between the parties.
That such costs be deducted from the appellant father’s share of the property settlement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gaffney & Gaffney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 49 of 2012
File Number: NCC 1385 of 2011
| Mr Gaffney |
Appellant
And
| Ms Gaffney |
Respondent
REASONS FOR JUDGMENT
Mr Gaffney (“the father”) by Amended Notice of Appeal filed 24 July 2012 appeals against parenting orders made by Federal Magistrate Foster on 23 March 2012. The orders relate to the two children, C born in 2004 and N born in 2007, of his relationship with Ms Gaffney (“the mother”).
His Honour ordered that the father and the mother have equal shared parental responsibility for the two children; they live with the mother and she be permitted to relocate to Sydney with the children. His Honour made orders for the children to spend time with the father.
Some background is necessary to give context to the matters contended in the appeal.
The parties began to live together in about 2001, married in 2006 and separated in 2010. There are pending property settlement proceedings between the parties.
It was uncontentious that throughout the whole of the relationship and indeed throughout the whole of his adult life, the father was a daily user of cannabis. The mother asserted, and his Honour found, that the father smoked cannabis each day after work and in the evening, and that he prepared the drug in the house sometimes in the presence of the children. He started smoking the drug from the morning on weekends. The father stopped using cannabis on separation. In cross examination it was revealed, for the first time, that after he stopped using cannabis he developed depression for which his general practitioner prescribed anti-depressants that he was still taking at the time of the hearing.
After they married both the mother and father worked. Shortly before the birth of C, the mother stopped work and spent the next 12 months at home on maternity leave. The mother then returned to work at a government agency where she had worked since leaving school. Again, shortly before N’s birth, the mother took maternity leave to care for him.
In about February 2007 the parties moved to a small coastal community near Port Macquarie. The mother obtained work there at the same government agency in about May 2007. Although the father was not then in employment, while the mother worked, the children were in day care each Friday and the father’s mother cared for the children on the other days. In about October 2007 the father obtained full time employment and has remained in full time employment since then.
In early 2008 the care arrangements for the children changed with their being in day care on Wednesday and Friday. The paternal grandmother cared for them on the other week days. When the elder child began kindergarten, the mother took her in the morning and would collect her, or the grandmother would meet the little girl at the bus in the afternoon. At about this time the younger child began attending day care three days each week. The grandmother cared for him on the other days. The father would care for the children for an hour or so each day after he returned from work and before the mother arrived home.
After the separation of the parties in September 2010, the mother initially moved to Sydney. After the father moved back into the marital home (having moved briefly in with his mother), the mother rented a house not far from the home. Despite the mother’s opposition, the parties put in place a week about caring regime for the children which continued until July 2011.
In July 2011 the mother returned to live in Sydney. The circumstances of her move to Sydney are relevant to matters raised in the appeal.
Before her move and after separation, the mother continued in her full time work and the grandmother continued to assist in caring for the children. In late November 2010 the mother was informed that the grandmother would no longer be looking after the children in the week in which they lived with her. As a result it was necessary for the mother to pay for child care five days a week for the younger child. She continued to pay those fees and the older child’s school fees for the weeks in which the children were living with father. The father made no financial contribution to these expenses.
From early 2011 the mother determined to move back to live in Sydney and made an application for a transfer of her employment. That application was successful and she proposed to move with the children to Sydney. This was opposed by the father.
The mother was advised by her then solicitors that she would be able to move to Sydney with the children.
The mother secured a transfer of her employment in Sydney and resigned from her position in the Port Macquarie area.
On 28 July 2011 the parties consented to interim orders which continued the shared parenting arrangement previously in place so long as the mother lived in the same area as the father. Those orders however provided that when she moved to Sydney the children would remain living with the father.
After those orders were made, the mother made enquiries about resuming her former employment but was told that there were no full time or part time positions available in the Port Macquarie area, and only the prospect of some casual employment. She could not afford to remain in the Port Macquarie area without employment and she moved to Sydney.
Orders were made in August 2011 that provided for the children to live with the father and for the mother to spend time with them on weekends and school holidays.
At the hearing before his Honour the husband’s position was that he would remain living in the Port Macquarie area and would not move to Sydney. The mother, similarly, indicated that she would not move back to live in Port Macquarie. The parties had agreed on a regime of time to be spent between the children and the parent with whom they were not living. Accordingly, the only issue for his Honour was with whom the children were to live.
The Federal Magistrate’s Reasons for Judgment
After noting the background to the present dispute, his Honour found that after separation when the mother moved back to Sydney, the father remained “significantly dependent on his mother for assistance with the children’s daily lives”. He noted that she arrived at the father’s house each day at 6.30 am to prepare and take the elder child to school and the younger to day care. If the younger child is not in day care, the grandmother cares for him during the day. She collects them after school and day care (see [73]).
His Honour was critical of the father for failing to foster the children’s relationship with the mother through telephone contact and by facilitating arrangements for them to spend time with her (see [74] and [75]).
His Honour noted:
78. The father agrees that the children have been distressed since the mother’s move, that they sleep in his bed and really miss her. He agrees that he was aware of the youngest child communicating to his day care carer that he misses his mum. Yet he did nothing to facilitate the child calling the mother. The father made little effort to have the eldest child properly counselled as recommended in the Family report (FR) notwithstanding that he agrees that the child may well benefit from same.
His Honour found that the children have a significant relationship with the grandmother through her involvement in their daily lives. However, he found that the circumstances in which she withdrew her assistance to the mother in the weeks in which the children were in her care was “a manipulative move by the father and his mother to disadvantage the mother in what were already difficult circumstances for her” (see [88]).
His Honour noted that while the grandmother conceded that the children miss their mother, she also agreed that she had made no attempt to have them phone her to speak to her. He found the reason she gave for failing to do so “disingenuous”.
As part of the evidence before the court, a report was obtained from a Family Consultant. His conclusions are particularly relevant to the appeal.
Considering the report, his Honour said:
105. The family consultant opines that it would appear that the best decision that the mother could make with regards to the children would be that she relocates back… in order that she can have a consistent and significant relationship with the children. In the absence of issues of violence or child protection her decision, he says, to relocate to Sydney was a poor one, placing her own needs over those of the children.
His Honour considered the authorities concerning relocation of children in some detail. No challenge was made to the correctness of his Honour’s summary of the cases or principles established in them.
His Honour then turned to a consideration of s 60CC(3) and discussed the evidence in the matter by reference to the various matters set out in the section.
In considering the relationship of the children with the parents, his Honour found that the children have a strong relationship with each parent and said:
132. …Although by reason of her historical primary care of the children during cohabitation in the context of the husband’s ongoing drug use there is little doubt that the children are emotionally more attached to the mother who represents to them their primary carer.
He accepted that the children had a “more temporal attachment to the father by reason of the circumstances following the mother’s relocation to Sydney” (see [133]). He also acknowledged the significance of the grandmother’s relationship with them.
As to the willingness of each parent to facilitate and encourage a close and continuing relationship with the children, his Honour observed that the father agreed that the mother values his relationship with the children and his Honour found she had facilitated it appropriately.
The Federal Magistrate found:
137. On the other hand the court finds the father’s willingness and ability in relation to same to be problematic. He manipulated the mother’s removal from the family home, imposed on her a shared care arrangements (sic) that was inappropriate in the context of the children’s developing relationship with the parties notwithstanding her opposition, procured with his mother the cessation of her assistance to the mother in relation to child care in circumstances where he clearly was aware that such a change disadvantaged the children emotionally and disadvantaged the mother financially and in terms of her isolation in the Port Macquarie area.
He further found the father lacked insight into the children’s needs in their relationship with the mother and had been inflexible about contact arrangements.
When considering the likely effect on the children of any changes to their circumstances, his Honour found that they were physically settled in the Port Macquarie area and that both were attending school. He observed that they were settled in the matrimonial home but noted that their long term occupation of that property was problematic as the parties had pending property settlement proceedings.
He said, as to the care of the children:
142. The father in effect has care arrangements that are dependent significantly upon the continuing health and ability of his mother to provide significant assistance. The children are well settled in the circumstances of her assistance.
His Honour concluded:
145. The effect of the father’s proposal is that the children will continue to be separated from their mother with whom they have a more significant emotional attachment particularly the eldest child. The continuation of this circumstance is for the eldest child problematic.
146. If relocated to Sydney they would miss their father in the context of him being, with the assistance of his mother, their primary carer for the last six months.
His Honour turned to a consideration of the capacity of each parent to provide for the needs of the children. He acknowledged the criticism of the mother’s decision to relocate to Sydney in the face of the father’s opposition. His Honour concluded:
151.…Otherwise as the children’s primary carer historically and the parent to whom the children seem to be more emotionally attached she has the appropriate capacity to provide for the needs of the children including their emotional and intellectual needs.
Turning to the father, his Honour assessed his capacity in this regard against what his Honour found to be his “manipulation of the circumstances that ultimately led to the mother’s relocation to Sydney”. His Honour noted:
152. … He could have facilitated the mother and the children continuing to reside in the matrimonial home, he could have facilitated a more staged withdrawal of his mother’s assistance to the mother with childcare. He imposed upon the mother a shared care arrangement that she clearly saw as inappropriate for the children. Following the mother’s relocation to Sydney he has demonstrated little insight in regard to the children’s emotional need to be able to have ready contact with their mother in circumstances where he was well aware that both children were missing their mother. Subsequent to separation the mother continued to primarily attend to the children’s schooling needs until her move to Sydney.
After finding that the father’s sudden cessation of his long term drug use and his being prescribed antidepressant medication was problematic, his Honour said:
154. The father’s ongoing capacity is dependent on the significant assistance of his mother, who is aged 67. Her ability to continue such level of care and assistance into the future is unknown.
The Appeal
The appellant challenges his Honour’s decision in six grounds of appeal.
Ground 1: The learned Federal Magistrate failed to consider, or in the alternative, properly consider the impact on the children by a change in their existing living arrangements.
It was submitted that his Honour failed to give proper regard to the impact on the children of leaving the Port Macquarie area to move to Sydney. It was contended by the appellant that the children were settled in that area, had friends and relatives there and were both attending a nearby school.
It was argued that while his Honour noted that the children would miss their father he did not analyse the effects on the children of being removed from their school, the area in which they had grown up, and their friends and relatives in that area. Nor, it was asserted, did his Honour consider the likely effects on the children of having to attend a new school in Sydney.
This omission, it was argued, was particularly acute in light of the Family Consultant’s unequivocal opinion that the children should not relocate from the Port Macquarie area.
Since the appellant relied significantly on the report of the Family Consultant, it is appropriate to set out some passages from the report and the Consultant’s evidence.
Family Consultant’s Report
The Consultant, whose qualifications include a degree in Social Work, interviewed the parties and the paternal grandmother. He was unable to interview the older child because of the level of her distress. He gave evidence in the proceedings and was cross examined.
In his report the Consultant set out the matters discussed in the interviews with the relevant parties. Under the heading “Evaluation” he said:
47. It is fair to say that the decision that both parents made with regards to the children’s care arrangements following their separation was not in the children’s best interests given their ages and respective developmental needs. Exacerbating this arrangement which appears to have existed for approximately ten months up until July of this year, has been the mother’s decision to relocate to Sydney.
48. Clearly, the absence of any child protection concerns for the children spending time with their father, and the absence of any family violence history within the parents’ relationship are factors which cannot support the mother’s relocation to Sydney with the subject children. Further to this, the mother had a long term established career with [a government agency], and was employed in a managerial capacity… Whilst it is the mother’s view that she had no extended support following the parents’ separation, the reality is that the mother could have made alternative care arrangements for the children, although not optimum, at least would have minimised the loss of the children given what they are experiencing currently.
49. The Family Consultant has drawn the conclusion that prior to the parents’ separation that in all likelihood the mother was the most significant carer of the subject children, but also important is the integral care which the paternal grandmother has provided for both children, but in particular [N] since he was several months of age. This remains a significant relationship for both subject children.
…
51. It is also the view of the Family Consultant that if the mother made a decision to return to the… Port Macquarie area, that she should in fact be the children’s primary carer, and that it is premature for the children to return to an equal time living arrangement. Despite this, the father should maintain a significant role with the children, but in the absence of the mother relocating back from Sydney, then it is the view of the Family Consultant that the children should remain living in the primary care of the father.
The report concluded by recommending that the children live with the father in the Port Macquarie area if the mother did not return to live there.
In her questions of the Consultant about the importance of stability of children, counsel for the mother suggested and the Consultant agreed that:
Ms Boyle: And that stability is provided by many things?---Yes
Familiar carers being one of them?---Yes
Significant people being another?---Yes
And that with respect to that would you agree it’s more about those aspects of care, that is, care being provided by a primary carer, for example, as opposed to a physical location where something takes place?---That is particularly significant when children are younger. It’s a developmental issue as children tend to get older and the peer group becomes more significant, the experience of young adolescents find shifting around a very difficult situation. That tends to destabilise them.
Sure. But we are talking about [N] and [K] (sic)?---Yes, yes. Yes, without doubt.
And at their ages it’s more about, I would suggest, the significance of a primary carer than it is about a physical location, at their ages. Would you agree with that?---Well, in their situation and separated parents it’s if there is no reason not to have a relationship with both parents, that is the similar significant issue about their stability.
In answer to questions from counsel for the father, the Consultant was asked to comment further on the mother’s relocation to Sydney. The Consultant said:
Yes. I traditionally view relocations as needing some kind of validity with regards to the children’s needs and, really, there are two critical factors where I often support relocation and they will be a history of family violence issues, which was absent in this scenario, and any issue of possible child protection concerns and children being with another parent. So given the absence of those two things, I didn’t support that and I think that the mother, also having that knowledge of what I’ve just outlined, that’s why I think her decision reflects poorly upon her in terms of her pursuing a new relationship.
We first observe that the circumstances in which the Consultant said that relocation would only have “validity” is of course contrary to the law and jurisprudence of this Court. While it is not reasonable to expect professional witnesses engaged to give opinions about children to be expert in the law, we also are of the view that it is not reasonable for such persons to provide within the reports, their own opinions about the merits of relocation cases generally.
It was neither the role of the Consultant, nor his area of expertise and in this case operated a great mischief. His opinion, which in our view permeated his report and viva voce evidence, led him to the somewhat remarkable conclusion that although the mother was the preferred carer of the children and would be the more appropriate carer of the children, she would only be able to perform that role if she lived in a particular geographical area. This conclusion and the dependent recommendation while not followed by his Honour, in no small part generated this appeal. That is regrettable.
In McGregor & McGregor [2011] FamCAFC 1029 the Full Court considered the role and function of an expert. The Court there said at [81] and following:
81. Furthermore, an expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based and the opinion in question so that it is possible for the court to determine whether the opinion is “wholly or substantially based on specialised knowledge based on training, study or experience” per Gleeson CJ in HG v R (1999) 197 CLR 414, 427.
82. In addition, not only should the facts on which the opinion is based be identified, the reasoning process leading to the formation of the opinion must be exposed so as to demonstrate that the opinion is based on particular specialised knowledge (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”) at [85] per Heydon JA. The Full Court of the Federal Court has held that many of the matters referred to by Heydon JA in Makita “involve questions of degree, requiring the exercise of judgment” and in trials by judge alone they should commonly be regarded as going to matters of weight rather than admissibility (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [16] and [87]; see also Carpenter & Lunn (2008) FLC 93-377; Noetel & Quealey (2005) FLC 93-230).
In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA (as he then was) referred to HG v The Queen (1999) 197 CLR 414 at [39] to [44] where Gleeson CJ said:
44. This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture “opinions” (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted…
Although Division 12A provides that aspects of the Evidence Act do not apply to matters involving children, that does not in our opinion alter what we regard to be a fundamental principle about expert opinion which is that the expression of opinion must meet the criteria to which we have just referred.
The opinion of the Consultant was but one piece of evidence to be considered by his Honour in determining the ultimate issue before him. The opinion was neither conclusive nor determinative of the issue. That he did not follow it was entirely a matter for his Honour in exercising his discretion.
A reading of his Honour’s reasons for decision demonstrates that his Honour was well aware that the mother’s proposal would remove the children from the home and area with which they were familiar and from the daily care provided by the father and the paternal grandmother. It is equally clear that his Honour took this matter into account along with all of the other considerations pertinent to his determination. We accept the submission of counsel for the mother that no particular aspect of s 60CC(3) ranks with greater importance than others. How his Honour took those matters into account and what weight he accorded them was an exercise of his discretion.
The law governing an appeal from a discretionary judgment is well settled. In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said at pages 504 to 505:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
It is not enough to argue that another judge or even this Full Court may have come to a different decision on the same facts. The appellant must show, as articulated per Stephen J in Gronow v Gronow (1979) 144 CLR 513 at page 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion...
No error has been established by this ground of appeal.
Ground 2: The learned Federal Magistrate failed to consider, or in the alternative, properly consider the impact on the children of their relationship with the paternal grandmother as a consequence of their relocation.
It was argued that the Federal Magistrate failed to give proper consideration to the extensive time that the grandmother had spent with the children after the parties moved to the Port Macquarie area and, it was observed that the evidence of the grandmother about the extent of her involvement with and care of the children was not disputed.
His Honour accepted that the children have a “significant relationship with the paternal grandmother” (see [134]).
The Consultant accepted that the proposed time that the father would spend with the children were the mother to have them living with her in Sydney provided an opportunity that could sustain the paternal grandmother’s relationship with the children if she was to spend time with them at the same time as the father.
It seems to us that his Honour, in assessing the various factors involved in the decision about where these children were to live, took into account the relationship with the grandmother as the extracts from his judgment and the evidence of the Consultant demonstrate.
However, in the balance, along with the relationship with the grandmother, his Honour had to weigh the undisputed evidence that both children were strongly missing their mother, particularly the elder who, according to his Honour:
130. …is in fragile emotional circumstances requiring therapeutic intervention.
Further, his Honour found that the continued separation of C from her mother is “problematic” for her (see [145]).
Finally, his Honour said:
147. However to their credit the parties have reached agreement in relation to the non resident parent’s time with the children which would see the non-resident parent having significant time with the children throughout the year and their relationship with the paternal grandmother continuing.
We find no error in the exercise of his Honour’s discretion.
Ground 3: The learned Federal Magistrate made factual errors.
In the written argument it was asserted that his Honour made a factual error where he said:
154. The father’s ongoing capacity is dependant on the significant assistance of his mother, who is aged 67. Her ability to continue such level of care and assistance into the future is unknown.
It was said that this was an error because the grandmother’s unchallenged evidence as appears in her affidavit was that she was in “good health” and had “no other obligation which would restrict (her) from helping (the applicant)”.
The learned Federal Magistrate found:
155. Overall the court assesses the father’s capacity in this regard as problematic.
The appellant argued that this conclusion was based on his Honour’s finding about the paternal grandmother’s continuing ability to assist at [154].
The Federal Magistrate’s conclusion that the father’s capacity to care for the children was “problematic” was reached after his Honour considered a number of factors commencing at [151] including the father’s manipulation of the mother’s circumstances, a manipulation that, in his Honour’s words, “ultimately led to the mother’s relocation to Sydney” including the withdrawal of his mother’s assistance to the mother with childcare. His Honour expressed concern at the father’s insight into the children’s emotional needs in circumstances when he conceded that both missed their mother (see [152]). The father’s sudden cessation of his long term drug abuse and its impact on his ability to function was clearly of concern to his Honour as was the paucity of medical information about the father’s depression and its management in assessing the father’s ability to care for the children (see [153]).
We reject the submission that his Honour’s conclusion that the father’s capacity to care for the children was problematic rested solely or substantially on his conclusion about the grandmother’s continuing care. His Honour’s careful analysis of the evidence about the father’s capacity in the past well justified his conclusion and the matters to which he refers were clearly matters of significance.
Secondly, it is to be observed that it was the grandmother herself who said that she stopped caring for the children when they were in the mother’s care (prior to the mother’s move to Sydney) because she said:
I made a decision at that time that I was finding it very difficult to continue to do that… But at that stage, I needed to just cease it, for a while at least.
In the light of that evidence, his Honour’s finding was entirely open to him.
We find no substance in this ground of appeal.
Ground 4: The learned Federal Magistrate failed to have proper regard to the recommendations of the family report writer.
As we have indicated, the Consultant made a recommendation not followed by his Honour.
It was submitted that while his Honour was not bound to follow the recommendations of the Consultant he was obliged to give clear reasons for not doing so.
His Honour considered the report and the Consultant’s recommendations at [97] and following and said:
174. The court has carefully considered the evidence and considerations set out above. The court considers it to be in the best interests of the children to reside with the mother.
175. The court is conscious of the fact that this decision is different from that proposed by the Family Reporter. However the Family Reporter was of the view that the mother was clearly the preferred primary carer subject to her availability in the Port Macquarie area. He conceded that the child [C] was unable to be interviewed due to her distress and was clearly missing her mother to the extent that therapeutic intervention was recommended.
176. The Family Reporter further expressed reservations as to the father’s depression and the lack of frankness between the father and his medical practitioner as to the father’s long term abuse of cannabis in the circumstances of its impact on his psychological health.
177. The mother is not disentitled as primary carer simply because of geographical considerations. In the event that orders can be fashioned to accommodate the geographical problem and facilitate the father’s ongoing relationship with the children then they should be in the care of the parent that is clearly the preferred primary care giver.
These paragraphs when read with the reasons as a whole demonstrate clearly that his Honour’s concern was properly with the emotional needs of the children and who best could provide for them. His Honour’s analysis of the evidence including the opinions of the Consultant and the conclusions he reached based on that analysis are unimpeachable. Given what we have said earlier about the validity of the Consultant’s comments that fell well outside his professed expertise, for his Honour to have followed his opinion may well have led him into appealable error.
Ground 5: The learned Federal Magistrate failed to properly apply the applicable principles in “relocation cases”.
No challenge was made to the correctness of the principles to which his Honour referred in the reasons, rather in the written argument it was submitted that his Honour failed to follow those principles.
As with other of the appeal grounds, the argument proceeds from a basis of misapprehension. It is asserted that his Honour “determined the matter by making a finding that the Respondent had been the primary care giver to the children prior to her relocation and as a consequence the children should relocate to Sydney with her”.
This assumption is incorrect as a reading of his Honour’s reasons makes plain. His Honour was rightly concerned with the emotional needs of the children and determined that the mother, having been primary carer and the children’s main emotional attachment in the past should continue that role.
His Honour also determined that their emotional needs were not being met in the care of the father because of his lack of insight and the other problems to which his Honour adverted in the reasons and which, clearly gave rise to considerable concern.The underlying assumption being incorrect, we consider that the balance of the argument directed to this ground falls away. We find no force in it.
Ground 6: The learned Federal Magistrate failed to objectively assess the evidence and, as such, made findings adverse to the appellant which were not open to the learned Federal Magistrate on the evidence.
It appears that the matters argued under this ground fall into two categories; first, findings made adverse to the father and secondly his Honour failed to make adverse findings about the mother when, it seems, the appellant argues such adverse findings ought to have been made.
In particular, it was argued that his Honour’s findings that the father’s capacity to care for the children was “problematic” was an example of his Honour “having determined who the primary carer of the children had been he (wrongly) “worked backwards” looking for reasons to justify a relocation”. It was further submitted that in so doing, his Honour made a number of findings adverse to the father without basis.
We do not agree with the description of his Honour’s reasoning process in the determination of the issue of where and with whom the children would live, nor do we agree with the submission that his Honour “worked backwards”. The foundational basis for this ground of appeal is fallacious.
Turning to the asserted incorrect findings, it was argued that his Honour’s criticisms of the father made when analysing the willingness of each parent to facilitate a close relationship with the children and the other parent were “of a minor nature compared to (sic) the significant actions of the respondent mother in deciding to relocate without any consultation with the appellant father”.
The thrust of the submission is that his Honour did not give sufficient weight to the mother’s conduct in relocating and, conversely gave inordinate weight to the father’s conduct.
Fact finding including the weight or complexion to be put on found facts are matters quintessentially within the discretion of the trial judge.
Challenges to fact finding and matters of weight can only succeed if it is demonstrated that the trial Judge mistook the facts or ignored essential facts.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment his Honour said (at page 619):
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
To the extent that this ground involves a challenge to weight attributed by the Federal Magistrate to facts found, the judgment of Stephen J in Gronow, a decision of the High Court, is relevant. His Honour there said at page 519:
…While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
The appellant has not demonstrated any matters which would amount to appealable error in this or any of the other grounds.
The appeal will be dismissed.
Costs
As is customary, we invited submissions from the parties as to the costs of the appeal. The appellant rightly conceded that if the appeal failed he could not resist an order for costs. It was however submitted that if a costs order is to be made, its satisfaction should abide the conclusion whether by settlement or order of the property proceedings between the parties. That is a proper order to make.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 31 August 2012.
Associate:
Date: 31 August 2012
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