GILMOUR & LENNON
[2015] FamCAFC 166
•27 August 2015
FAMILY COURT OF AUSTRALIA
| GILMOUR & LENNON | [2015] FamCAFC 166 |
| FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Where the orders appealed are interim –Where the mother relocated to the Central Coast with the child without the father’s consent – Whether the trial judge erred in finding that the relocation created a sufficient risk of deterioration of the child’s relationship with the father – Whether the trial judge failed to consider the practical difficulties in ordering the mother to return to the place of original residence with the child – Whether the trial judge failed to give weight to matters such as the father’s contribution to the financial support of the child – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 60CC |
CDJ v VAJ (1998) 197 CLR 172
Coulton v Holcombe (1986) 162 CLR 1
Goode and Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513
Morgan & Miles (2007) FLC 93-343
Sampson & Hartnett (No 10) (2007) FLC 93-350
University of Wollongong v Metwally (No 2) (1985) 60 ALR 68
| APPELLANT: | Ms Gilmour |
| RESPONDENT: | Mr Lennon |
| FILE NUMBER: | PAC | 1622 | of | 2007 |
| APPEAL NUMBER: | EA | 20 | of | 2015 |
| DATE DELIVERED: | 27 August 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 25 June 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 January 2015 |
| LOWER COURT MNC: | [2015] FCCA 266 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Dart |
| SOLICITOR FOR THE APPELLANT: | Campbell Paton & Taylor |
| COUNSEL FOR THE RESPONDENT: | Mr Morley |
| SOLICITOR FOR THE RESPONDENT: | Glenn R Walters & Co |
Orders
Leave is granted to the appellant to add a ground of appeal as follows:
Ground 3A: His Honour erred by making an order imposing an obligation upon the appellant to relocate in the absence of compelling or exceptional circumstances.
The Application in an Appeal filed on 4 June 2015 is dismissed.
The Appeal is dismissed.
The mother is to pay the father’s costs of the appeal as agreed and in default of agreement as assessed. The costs are to be paid within 28 days of agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilmour & Lennon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 20 of 2015
File Number: PAC 1622 of 2007
| Ms Gilmour |
Appellant
And
| Mr Lennon |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Gilmour (“the mother”) appeals from an interim order made by Judge Dunkley on 29 January 2015. His Honour ordered the mother to return the child, born in 2003, to a place bounded by Town A, Town B and Town C in western New South Wales. This order had been sought by the child’s father, Mr Lennon (“the father”) in response to the mother and the child moving to Town D on the Central Coast of New South Wales in December 2014.
The parties had a short relationship from 2001 to 2005. After separation they then litigated the parenting orders for the child for some time.
On 8 July 2008 the proceedings were resolved and final parenting orders were made by consent. The orders provided for the parties to have equal shared parental responsibility for the child and for the child to live with her mother. The child was to spend time with her father during school terms each alternate weekend from 6:30 pm Friday to 5:00 pm Sunday, or Monday if a long weekend was involved. She was also to spend half of the school holidays with the father. A number of other ancillary orders were made.
Since separation the child and the mother have lived at Town F which is near Town C in western New South Wales. The father lives at Town A which is near Town E. Changeover occurred at Town B which was approximately half way between the parties’ residences. The father said it was 63.5 kilometres from his home to the changeover point in Town B.
Importantly, from the time the orders were made in 2008 until mid-2014, the parties to the proceedings had implemented the parenting orders in a responsible and considered manner.
In 2007 the mother re-partnered.
The child went to school in Town F, completing primary school in 2014. The parties had apparently planned for her to attend a high school in Town C in 2015.
In mid-2014 the mother and her new partner, Mr X, decided to move to the Central Coast of New South Wales to be closer to their families, for better work opportunities for both of them and for what the mother said were increased educational opportunities for herself and the child.
On 15 July 2014 the mother informed the father of her proposed move to the Central Coast saying she would provide details of schooling in due course. She proposed that the existing parenting orders be varied so that the child would spend every third or fourth weekend with the father instead of every second weekend. The place of changeover was suggested to be Town G which is approximately half way between Town A and the Central Coast.
The father did not agree.
On 7 August 2014 the mother wrote a more detailed letter to the father setting out her reasons for the move and proposing that the child spend every second weekend and extensive time during the school holidays with the father. She also asked the father to assist with the selection of a new school.
On 15 August 2014 the mother again wrote to the father identifying the school she had chosen for the child but again asking for him to approve its selection or to become involved in the selection of an alternative.
Again, the father declined to agree to the move or become involved in the selection of schools.
Further extensive correspondence ensued between the parties, and then between the parties’ lawyers, until 19 December 2014 when the mother’s lawyers informed the father’s lawyers that the mother and the child would be moving to Town D on the Central Coast on 20 December 2014. They also informed the father’s lawyers that the child had been enrolled in a new school and that the existing orders would be complied with until 27 January 2015. The mother did not foreshadow bringing any application to the court to vary those orders.
On 22 December 2014 the father filed an Initiating Application seeking the return of the child to Town F and an interim order restraining the mother from changing the child’s residence without the written consent of the father.
On 16 January 2015 the mother filed a response seeking interim orders that the child spend the fourth and eighth weekend of each school term with the father with extensive time during the school holidays, including all of the April and September holidays. It is implicit in these proposed orders that the mother and the child would remain living in Town D. As I have said, the mother moved there on 20 December 2014.
On 25 February 2015 the trial judge stayed the operation of the orders made by him pending the determination of this appeal. Consequently the child remains living in Town D.
The matter has been fixed for a final hearing on 30 November 2015 in Town E.
The Trial Judge’s Reasons
After referring to the 2008 orders and identifying the facts as set out above, the trial judge noted that if the orders sought by the mother were made, then the number of nights that the child would spend with her father would decrease from 83 to 71 in 2015. His Honour also noted that, if the relocation was permitted, the current travel time for the child when changing residence would increase by some two hours each way.
His Honour referred to Goode and Goode (2006) FLC 93-286 and Morgan & Miles (2007) FLC 93-343 and the approach to relocations identified in those cases. His Honour then turned to consider the provisions of the Family Law Act 1975 (Cth) (“the Act”). His Honour found that there was nothing that would rebut the presumption in favour of equal shared parental responsibility. There was a finding that the parents had demonstrated a functional capacity to communicate with each other about the needs of the child and to implement parenting orders. Thus the child’s best interests would be met by the parties continuing to exercise equal shared parental responsibility.
The trial judge found that since the making of the orders in 2008 the child’s relationship with her father had significantly improved so that she now happily spent long periods of time living with him, enjoying rural life on his farm and participating in horse riding and other events with him. He also found that the child had important relationships with the mother and the mother’s new partner, Mr X. The trial judge found if the child was to live in Town D there would be a significant change in her circumstances because of the reduction in the frequency she saw her father and also the number of days she spent with her father. He concluded at [53]:
… Overall there will be a significant reduction in the amount of time that she would spend with her father, which has the possibility of affecting the important relationship that they have with each other.
The trial judge considered that there was no evidence that enabled him to determine the child’s views on the move to the Central Coast. His Honour then noted that the mother had acted unilaterally in moving the child’s residence despite the known opposition of the father. His Honour said that no expert evidence was available to him and that the case was not likely to get a final hearing date until late 2015. He concluded at [58]:
There is not an insignificant risk that if [the child] is allowed to continue to reside at [Town D], that her relationship with her father would deteriorate. I cannot at this stage of the proceedings conclude that her relationship with her father would be unaffected. I am uncertain. It is not clear because there is, as yet, no expert evidence. She will certainly spend less time with him if the orders sought by the mother are made. The effect of that is likely to change their relationship. It is possible it will be a less meaningful relationship. It will limit the father’s capacity to be as frequently involved with her. Given [the child’s] age, sex, and stage of development, it may be that that is important for her. A move to [Town D] increases the practical difficulty and expense of the father being able to spend time with her. The travel time is longer. It is likely, therefore, that the travel time would be more expensive. It maybe the travel becomes viewed by [the child] as onerous.
The trial judge found that the mother owned a house in Town D and therefore had the financial capacity to return to Town F.
The trial judge then returned again to the decision of the mother saying that it “demonstrates to my mind that she does not place, as highly as she might, importance upon the time that [the child] has been able, for a long period of time, to enjoy with the father”. His Honour concluded at [68] – [70]:
68.Relocation cases, as I have said, are simply parenting cases, but are the types of cases that usually result in final hearings. Both of these parents could not be described other than good highly functioning, caring, loving parents. Those type of cases are the most difficult types of cases to determine. Those type of cases are usually determined as a result of small differences, often arising as a result of the expert evidence, of which there is none yet.
69.To permit, at this point in time, on an interim basis, the relocation of [the child] runs the risk that she will suffer a deterioration in the relationship with her father and not be able to maintain as meaningful a relationship with him as she currently enjoys. Such an outcome should not be made, in my view, on the limited evidence that is currently available to me.
70.Whilst ordering [the child] back may result in some practical difficulties in the obtaining of housing for [the child] and her mother and [Mr X], a period of time of some 30 days in which to do so is more likely to overcome those difficulties and make the order for her to return to live in the area specified in the father’s minute of order more reasonably practical.
Grounds of Appeal
This appeal is being heard by a single judge pursuant to a direction of the Chief Justice made pursuant to s 94AAA(3) of the Act on 24 March 2015.
Before considering the grounds of appeal it is useful to identify the approach taken to appeals from parenting orders and to appeals which challenge the weight given to particular factors. In Gronow v Gronow (1979) 144 CLR 513 at p 519 Stephen J said:
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. 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 or law or mistake of factors 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.
In CDJ v VAJ (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ said at [151] – [152]:
151.… the views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
152.The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.
Thus error is not established simply by persuading an appellate judge that he or she would have come to a different conclusion had they been the trial judge.
The appellant argued the grounds in groups and it is convenient to deal with the grounds in that way.
Ground 1 – His Honour erred in concluding in that the mother should return the place of residence of the child, born in 2003, to a place bounded by [Town A], [Town B] and [Town C] NSW, by reason of that:
Ground 1.1 – His Honour erred in finding that the relocation of the child to [Town D] NSW created a sufficient risk of the child suffering a deterioration in the relationship with her father and not being able to maintain as meaningful a relationship with him as she currently enjoyed, such to Order the child’s residence be in an area bounded by [Town A], [Town B] and [Town C] New South Wales;
Ground 1.2 – Alternatively, His Honour gave undue weight to the potential risk that the child would suffer a deterioration in the relationship with her father and not be able to maintain as meaningful a relationship with him as she currently enjoyed;
Ground 1.5 – His Honour erred in finding that the reduction of the time the child would spend with her father following the move to [Town D] was a significant change in circumstances when the reduction time is 14%; and
Ground 1.6 – His Honour erred in finding that a 14% reduction in the time that the child would spend with her father following the move to [Town D] New South Wales would cause a deterioration in the relationship with her father and/or lessen the meaningful relationship the child had with her father, such that the residence of the child ought be bounded by [Town A], [Town B] and [Town C].
These grounds articulate, in slightly different ways, the complaint of the mother that the trial judge gave too much weight to his finding that if the child remained living in Town D, “there will be a significant reduction in the frequency and extent of the time that she can spend with her father”.
As has been seen, the trial judge accepted the position that the orders proposed by the mother would see the number of nights that the child spend with the father reduce from 83 to 71 per year, or by approximately 14 per cent. Importantly, however, the frequency of weekend time decreased from every second weekend to every fourth weekend. It was submitted by the mother that the child was now 12 years of age, had an established relationship with the father and that, therefore, this reduction of time would be of little effect.
Finally, it was submitted that the trial judge could not find that a reduction in the number of days the child was to spend with the father from 83 to 71 was a “significant reduction” in the amount of time she was to spend with her father. Inherent in this submission is that it was an error for the trial judge to use that finding to determine that the reduction in time carried the risk that the child’s relationship with her father would deteriorate. It is important not to be drawn into a semantic debate about the meaning and extent of what is a significant reduction in time.
The relationship between the father and the child had been built up, over time, as a result of the regular time the child was spending with him. The trial judge specifically noted that he did not yet have any expert evidence that would enable him to determine the impact of any relocation on that relationship. There was, therefore, no evidence which would support a finding that the change in the time the child spent with the father would have no adverse effect. No error can be attributed to the trial judge for not making that finding.
The mother’s proposed orders, however, effected a reduction in the time that the child was to spend with her father. When coupled with the decrease in frequency of weekend time, which the trial judge considered to be important, it was open to the trial judge to find that the reduction was significant and that there was a concern that this could lead to a deterioration in their relationship. As there was no evidence as to whether this maybe so, the trial judge decided to avoid any such possible risk and maintain the previous arrangement for the time being. It was not an error to do so.
The mother submitted that the child happily spends time with the father pursuant to the present orders which require her to travel for that purpose so that increased travel would be of little moment. This was especially so given that the mother was to remain the primary carer and the parent with whom the child was to live in any event.
Under the mother’s proposed orders, as the trial judge noted, the travel time would be longer and more expensive. That is undoubtedly true. The mother’s evidence was that the current travelling time from Town F to Town A is one hour and 30 minutes. The travelling time from Town D to Town A is three hours and 28 minutes. Even for a child accustomed to travel it was a factor the trial judge was entitled to take into account.
The trial judge took each of these matters into account. Whilst it is true that different judges may have weighed these matters differently, that does not of itself establish error. The mother’s submissions do not compel a different finding. These grounds have not been established.
Ground 1.3 – His Honour failed to properly take into account the practical difficulties in directing the respondent mother return to the place of residence of the child to a place bounded by [Town A], [Town B] and [Town C] New South Wales.
The mother submits that, at [28]:
The trial judge did not, however, undertake a close analysis of the Plaintiff’s capacity to provide for the practicalities in the area proposed by the Orders. In particular, there was no consideration by his Honour in the Reasons for Judgment of the capacity of the Appellant to provide for the financial needs of [the child] under the proposed orders, a consideration which takes on a greater significance in circumstances where the Defendant does not provide financial support for the day to day care of [the child].
It is trite, but pertinent, to observe that the trial judge could only act on the evidence that was before him. The evidence before the trial judge was that the mother had been employed at Town F as a casual contractor, sometimes working five days per week and sometimes not working for a fortnight. She hoped there were better work opportunities in the Town D area. Importantly, the evidence as to the practicality or impracticality, of returning to Town F consisted solely of the mother’s evidence that, at [44]:
We sold our home in [Town F] and on 4 December 2014 [Mr X] and I exchanged contracts our new home at [Town D]. That purchase was settled on 8th January 2015.
The trial judge relied upon that evidence to find that the mother had a financial resource in the house at Town D “that she might use to finance a home in the area proposed by the father. Until recently she owned a home in that area”. It can be inferred that there would be difficulty and expense in selling the house at Town D.
The trial judge found that there may be some practical difficulties in the mother obtaining housing for herself, the child and Mr X. He allowed her 30 days to address those difficulties.
That was a finding that was open to the trial judge on the evidence.
It was submitted that his Honour made an error in finding that the mother’s partner would be returning to live with the child and the mother. It was submitted that the court would not assume that Mr X would be returning to the Town F area with the child and the mother and thus continuing to support them. It was also submitted that the trial judge failed to take into account what might be a possible extended separation of the child from Mr X.
The evidence did not directly refer to the mother’s partner returning or not returning to Town A if the orders sought by the father were made, although this could be inferred from the whole of the evidence. To the extent it was an error, however, the error was not material to the overall determination of the matter.
Further, the findings made by the trial judge in relation to the mother and the child were well open to him on the limited evidence adduced by the parties.
This ground does not succeed.
Ground 3A - His Honour erred by making an order imposing an obligation upon the appellant to relocate in the absence of compelling or exceptional circumstances.
The mother made an oral application to amend the Notice of Appeal to insert this ground. Leave was granted.
As was correctly accepted by counsel for the father, the orders made by the trial judge, in effect, require the mother to relocate herself with the child. This is because the orders that remained in place from 2008 provided for the child to live with her. Neither party had suggested any change to that. There was no suggestion by the mother that if the child’s place of residence was altered she would not move with the child.
In those circumstances, the mother submitted that to justify an order that required her to relocate, the trial judge had to find a compelling or exceptional circumstance. In doing so the mother relied upon Sampson & Hartnett (No 10) (2007) FLC 93-350, Bryant CJ and Warnick J at [57] – [58] and [75].
Sampson & Hartnett was a case involving a final relocation order. In this case an interim order was sought.
The majority in Sampson & Hartnett also noted at [74] that:
As preface to this discussion, we make the following observations. A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving. In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
The order in this case was sought at an early stage in the proceedings when the evidence was limited. The order required the return of the child to the location where the child and the mother had been living for many years. The trial judge had dealt with the practical difficulties of the mother’s return to Town A as discussed above.
The trial judge did not deal specifically with this point as it had not been raised before him. It is difficult, therefore, to be critical of him for not conducting a close analysis of the parties’ capacity to provide for the practicalities upon a return of the child.
The evidence, such as it was, enabled an inference to be drawn, as indeed appears in fact to have been drawn, that a period of 30 days would allow the mother to deal with the practicalities of the move. That involves a clear finding that the practicalities of life would be met on return.
This ground is not established.
Ground 1.4 – His Honour gave no or insufficient weight to the father’s failure to make any financial contribution to the care and maintenance of the child.
The mother submitted that the trial judge erred by placing little or no weight on the fact that the responsibility for the financial support of the child fell almost exclusively on the mother.
The evidence was that the father had contributed towards the costs of the child’s primary school education and that the child support assessment was nil. There was no evidence that indicated the level of support that the father was capable of providing. There was no evidence as to how the needs of the child or the capacity of the father to provide support would alter as a result of the change in the residence of the child. Apart from evidence that the mother otherwise financially supported the child, there was no evidence as to the cost or her capacity to do so. In those circumstances it is not surprising that the trial judge afforded this factor little weight.
This ground is not established.
Ground 1.7 – His honour failed to all gave [sic] insufficient regard to the best interests of the child; and
Ground 1.8 – His Honour gave too much weight to the increased travel time as a result of the child living in [Town D].
Ground 1.7 is the vehicle for the submission that the trial judge placed a disproportionate amount of weight on the potential risk that the mother’s proposal would have on the relationship between the child and the father. It was submitted that adequate weight was not given to other relevant s 60CC considerations. This submission clearly raises again the issue of weight. As has been pointed out earlier that is a very difficult task on which to succeed.
It is true that no consideration was given by the trial judge to the fact that the child would be moving to a new school in any event (moving from primary school to high school), so that even if she remained in the same area she would likely be moving to a school without her friends and that even on return, the child may not be living in precisely the same area as she had been living previously. As the trial judge pointed out on more than one occasion in his reasons, the proceedings were at an early stage before him. He did not have the benefit of a family report. His Honour said at [57]:
There is as yet no expert evidence available to me to enable me to determine the effect on the relocation upon [the child] or what impact it will have upon her relationship with her father.
It is not surprising then that his Honour did not specifically refer to the matters complained of because it is far from clear whether a proper examination of those considerations would support or count against the orders sought.
It was submitted that the relocation ordered by the trial judge would require a further change in school for the child as she was now settled in a high school on the Central Coast. It would be undesirable, it was said, for that schooling to be interrupted by a return to the Town F area, possibly for only a short time. The answer depends upon the final hearing.
It is impossible to say that the findings made by the trial judge were not open to him on the evidence that was before him. It follows therefore that the appeal will be dismissed.
Application to Adduce Further Evidence
By an Application in an Appeal the mother seeks to adduce evidence that in April 2015 she commenced a training course in Town H. She is paid $1946 per fortnight for that training. It was submitted that this evidence shows that the decision below was erroneous because it establishes that the mother had work in the Town D area which she needed to fulfil her obligation to support the child and that the orders would deprive her of that employment opportunity.
In CDJ v VAJ the court said at [111] and [113]:
111. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
113.In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
This evidence is likely to be relevant at a final hearing and at any hearing to vary the existing orders. It does not of itself establish that the trial judge’s decision was erroneous. It would simply be another factor that the trial judge would need to weigh into the general consideration. It would not, of itself, compel a different outcome. The application to adduce further evidence is accordingly dismissed.
Costs
The mother accepted that if the appeal was not successful she should pay the father’s costs of the appeal. In all of the circumstances that was an appropriate concession and that order will be made.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Aldridge J delivered on 27 August 2015.
Associate:
Date: 27 August 2015
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