Grella & Jamieson
[2017] FamCAFC 21
•20 February 2017
FAMILY COURT OF AUSTRALIA
| GRELLA & JAMIESON | [2017] FamCAFC 21 |
| FAMILY LAW – APPEAL – CHILDREN – where the mother sought to relocate with the nearly five year old child to Europe – where the trial judge did not permit the relocation – where the mother appeals those orders – where the mother contends that the trial judge wrongly elevated the consideration of s 60CC(2)(a) and the benefit to the child of having a meaningful relationship with both parents – where it is contended that the trial judge failed to decide issues of fact her Honour was obliged to decide – where it is contended that her Honour made errors of fact material to the ultimate determination – where no error demonstrated – appeal dismissed. |
| Family Law Act 1975 (Cth) |
Family Law Rules 2004 (Cth)
| A v J (1995) FLC 92-619 Banks & Banks (2015) FLC 93-637 CDJ v VAJ (1998) 197 CLR 172 De Winter and De Winter (1979) FLC 90-605 Goode and Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378 M & M (1988) 166 CLR 69 McCall & Clark (2009) FLC 93-405 U v U (2002) 211 CLR 238 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 |
| APPELLANT: | Ms Grella |
| RESPONDENT: | Mr Jamieson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | LEC | 126 | of | 2012 |
| APPEAL NUMBER: | NA | 31 | of | 2016 |
| DATE DELIVERED: | 20 February 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, May & Kent JJ |
| HEARING DATE: | 8 November 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 April 2016 |
| LOWER COURT MNC: | [2016] FamCA 280 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway |
| SOLICITOR FOR THE APPELLANT: | Crane Paskins Law |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Mason |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The appeal be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grella & Jamieson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA31 of 2016
File Number: LEC126 of 2012
| Ms Grella |
Appellant
And
| Mr Jamieson |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 22 April 2016 Hogan J made parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the infant child, B who was born in 2011 and was four years and eight months of age as at trial.
This appeal from those orders primarily focuses upon the trial judge’s determination not to permit the child’s mother, Ms Grella, to permanently relocate the place of residence of the child from Australia to live with the mother in Europe.
The mother’s appeal from that determination is supported by the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the child’s interests in the proceedings. The ICL had at trial supported the mother’s proposal to relocate the child to live with her in Europe.
The appeal is opposed by the child’s father, Mr Jamieson. The father represented himself on appeal, as he did at trial. The father has no relevant legal experience or training. The trial judge recorded that the father “struggles with literacy” (reasons at [85]).
The father did not file and serve a summary of argument in respect of the appeal in accordance with the requirements of r 22.22 of the Family Law Rules 2004 (Cth) either as to timing or content. However, at the hearing of the appeal on 8 November 2016 the father was permitted, with the consent of the other legally represented parties, to tender to the Court a document entitled “Summary of Argument”. In several respects that document advances matters of further evidence, rather than argument. To the extent that this document contains further evidence it is, given the consent of the other parties to our receipt of it, received as further evidence pursuant to s 93A(2) of the Act. It was confirmed with the other parties at the hearing that it should be so treated.
Relevantly, the subject document revealed (paragraph 3) that the father was continuing to live and work in Sydney (as he was doing at the time of trial in March 2016) and thus had, since the trial, been travelling from Sydney to Queensland Region C (where the mother and child live) on a fortnightly basis for the child to spend time with him as ordered.
The mother had proposed at trial, as an alternative in the event the Court determined that her primary proposal of relocating the child to Europe was not to be permitted, that she relocate the child to live with her in Melbourne. Whilst the trial judge rejected that alternative proposal, the trial judge’s discussion of that topic (reasons at [136] to [144]) included, at [142] this:
142.Of course, if [the child’s] parents themselves later agree that such a move is in [the child’s] best interest, they can implement any future agreement: for example, orders can easily be made by consent to ensure [the child] has the ongoing opportunity to spend regular and frequent physical time with her father in such an event.
Given that the father’s further evidence confirmed that the father had continued to live and work in Sydney, as he was doing at the time of trial, at the hearing we invited the parties to consider a variation of the subject orders by consent to permit the mother to relocate the child to Melbourne pending, and without prejudice to any party concerning, the determination of this appeal. Thus we made, on 8 November 2016, orders with the consent of all parties to such variations of the subject orders as to permit the mother to relocate the child to live with her in Melbourne, pending the determination of this appeal.
Central issues on appeal
A central contention of the mother on appeal, which permeates many of the grounds of appeal is, in summary, that the trial judge elevated and gave overwhelming emphasis to s 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents in determining that the mother not be permitted to relocate the child to Europe. It is contended that in so focusing upon the child’s relationship with the father that other s 60CC considerations were not afforded appropriate weight and/or resulted in the trial judge failing to make factual findings relevant to such considerations; and as such constituted errors of law on the part of the trial judge.
An associated contention is, in summary, that because of the overwhelming focus upon the “meaningful relationship” consideration, the trial judge failed to give proper consideration to a number of other material matters resonating with one or more of the s 60CC considerations, namely, the father’s history of reckless behaviour, anti-social behaviour and his criminal record; the father’s drug use and non-compliance with Court ordered drug testing; and the father’s historical lack of involvement in the child’s life. It is contended that the trial judge erred in failing to make findings about factual issues relevant to one or more of these considerations.
Before we later deal more specifically with each of the mother’s grounds of appeal (and those of them supported by the ICL) we observe that, in overview, the mother’s central challenges on appeal give rise to the following
inter-related considerations or questions:
a)What were the actual issues joined by the parties which fell for determination by the trial judge – conversely, what matters relevant to the parenting orders made were not in dispute?
b)In that context:
i)did the trial judge place such undue emphasis upon the question of the benefit to the child of having a meaningful relationship with the father (s 60CC(2)(a)) that it is apparent an error has been made in exercising the discretion in the manner described in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513?
(Grounds 2, 4 and 5)
ii)did the trial judge fail to decide issues of fact her Honour was obliged to decide such that this failure demonstrates appellable error constituted by the trial judge failing to have regard to, or give sufficient weight to, material considerations?
(Grounds 6 and 7)
iii)did the trial judge make erroneous findings of fact and, if so, is it shown that such errors were material to the ultimate determination? (De Winter and De Winter (1979) FLC 90-605).
(Grounds 3, 6 and 7)
Ground 1 states a bare conclusion so lacking in particulars or specificity that the actual error or errors purportedly asserted cannot be discerned. As such it is not a proper ground of appeal and does not require further discussion.
What were the issues joined at trial – what was, and what was not, in issue relevant to the determination of the parenting orders?
Critically, there was no issue at trial as to the child remaining in the primary care of the mother. This was not a case where the mother’s proposed international relocation of a child was met with a father’s response including a proposal that the child live with the father. In this case consideration by the trial judge of the s 60CC considerations to determine the child’s best interests necessarily proceeded from the starting point that it was not in issue that the child should live with the mother.
It is also of critical importance to note that it was not in issue at trial that the child should have a future relationship with the father. The mother did not advance a case for orders that the child spend no time or not communicate with her father.
The issue joined before her Honour was whether such orders for time and communication as might be availed for this young child if she moved to Europe were in her best interests or, rather, whether her best interests required time and communication of the duration, nature and extent as could be availed if she lived in Australia.
It is also important to point out that it was not part of the trial judge’s task to ascertain whether the father had been proved to be a “bad father” (whatever that might connote), nor was it for her Honour to decide if the father had “reformed”. Her Honour’s task was to balance the competing relevant considerations and decide the orders which that balance favoured (see, analogously, M & M (1988) 166 CLR 69).
In that respect it is well settled by authority that any parent enjoys the right of freedom of mobility to live wherever the parent chooses to live. However, that right must defer to the expressed paramount consideration, the welfare of the child, if that were to be adversely affected by a movement of a parent (see, for example, U v U (2002) 211 CLR 238 at [89] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed).
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition. In U v U (supra) Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) said (at [90]):
90.…The appellant’s submission is that the trial judge gave too much weight to the child’s short term welfare, and commensurately too little to her long term welfare, and that the Full Court erred in failing so to hold. That is, as the respondent submits, no more than a complaint about the weight which the trial judge attached to admittedly relevant considerations. Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one…
(Emphasis added)
In CDJ v VAJ (1998) 197 CLR 172 the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows (p. 218 - 219):
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. 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.
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…
Factual history
The parties commenced cohabitation in either late 2008 or late 2009 and separated finally in early December 2011. The child was born in 2011 and was only about five months of age at the time of the parties’ separation. The child has always lived primarily with her mother (reasons at [1] and [2]).
The mother was born in Europe in 1984 and was thus about 32 years of age at trial. In about 1998, when she was about 14 years of age, the mother came to Australia with her mother to live and has lived here ever since. The mother completed her secondary education here; completed an undergraduate degree via a local university and as at trial was likewise undertaking a Master’s Degree. Aside from what is described as “ad hoc promotional work” the mother was, as at trial, reliant upon government benefits to support herself and the child (reasons at [81]).
We note that whilst the mother had no onus to demonstrate compelling reasons for her proposal to relocate the child, the trial judge’s consideration of her proposal, including as to her evidence as to employment opportunities for her in Europe, was necessarily considered in the context of the mother having lived (and undertaken education) in Australia for most of her life, and for all of her adult life.
The father was born in New South Wales in 1980 and was thus about 36 years of age as at trial. He had an “intermittent” history of employment as a tradesman but for “large parts of his adult life” had not been in paid employment and had been in receipt of government benefits (reasons at [85]).
The father has a longstanding history of illicit drug use including the use of methamphetamine (reasons at [47], [48] and [88]). The mother has an admitted history of illicit drug use on an “opportunistic” basis. Whilst the father asserted at trial that the mother historically used drugs on a greater frequency than she admitted to, it was not in issue that the mother had ceased her use of illicit drugs upon her pregnancy with the child (reasons at [49], [71] and [88]).
The father has an admitted history of anti-social behaviours some of which have seen him convicted of criminal offences historically (exhibits and reasons at [10], [16], [23], [25], [40], [56], and [58] to [61]).
On 12 January 2012, soon after the parties’ final separation, an event occurred in the mother’s home whereby the father “smashed her computer and punched a hole in the wall at some time during the night” (reasons at [58]). The father’s admission of that conduct together with a similar episode of property damage in about June 2010 (reasons at [50]) led to the trial judge’s conclusion that the presumption in s 61DA of the Act (presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child) did not apply by reason of that conduct constituting family violence (s 61DA(2)) (reasons at [119]).
Whilst more will be discussed about this later in these reasons, following separation the time the child spent with the father was intermittent and generally for short (two hour) periods supervised at a contact centre. Unsupervised time of three hours duration on alternate Saturdays commenced on 7 November 2015 and, save for the period between 3 December 2015 and 13 January 2016 when the mother and the child were spending time in Europe, continued on that basis up until trial (reasons at [15] to [32]).
In early 2014 the father commenced a relationship with Ms F and they commenced cohabitating in August 2014. Ms F’s son from a previous relationship lives with them. Importantly, in October 2015 this relationship produced a daughter, a half-sibling of the subject child (reasons at [68]). As at trial the father and his family unit were living temporarily in Sydney staying with Ms F’s family, the father having commenced work in Sydney in February 2016 (reasons at [85] and [86]). The further evidence admitted via the father’s document earlier referred to reveals that those circumstances have continued since.
Axiomatically, in this case the trial judge’s consideration and determination of this child’s best interests in accordance with s 60CC, in the context that the child would live with the mother, had to predominate consideration of the child’s future relationship with the father, and importantly also with her
half-sibling, if the mother’s proposed international relocation were permitted.
For all of the criticisms of the father as a person and as a parent advanced at trial (and re-visited in this appeal), it needs to be emphasised that on the mother’s own proposals and evidence she herself recognised at trial that it was in the child’s best interests to have and to continue to have a relationship with the father. The mother’s position in this respect was not merely tactical or token. At [6] and [7] of the reasons the trial judge records that whilst the mother had previously proposed that the father’s time, either in Australia or Europe, be supervised the mother “…now accepts that [the child] has enjoyed and benefitted [sic] from her relatively recent opportunities to spend unsupervised time with her father”. At [29] is recorded the finding that the mother reported as to the commencement of the child spending unsupervised time with the father in November 2015 that it “went well”. At [45] is recorded as to the mother “…[d]uring her cross-examination, she accepted [the child] had enjoyed the limited unsupervised time which has occurred to date and that there was nothing in her presentation on returning to suggest she was unhappy and/or reticent to see her father again”.
At [79] is reference to what the mother told the family consultant, Ms H, as follows:
…The mother said that [the child] enjoyed seeing her father and speaking with him on the telephone – she believed the telephone calls were positive for [the child] and her father’s relationship because it brought him into her life.
(Footnote omitted)
The caveat the mother advanced in her case at trial as to the child’s future relationship with the father is reflected in the trial judge’s summary of the mother’s position appearing at [6] and [7] of the reasons as follows:
6.The mother previously proposed that [the child’s] time with her father should be supervised because of his history of illicit drug use, his criminal convictions and instability and her concerns about the impact of the same on his capacity to care safely for [the child]. That is, she initially proposed that the father’s future time with [the child], in either Australia or [Europe], occur on a supervised basis.
7.However, she now accepts that [the child] has enjoyed and benefitted [sic] from her relatively recent opportunities to spend unsupervised time with her father. She now seems to accept that [the child’s] safety is not compromised by spending three hours unsupervised with her father. She maintains her concerns about safety if the time is increased beyond about six hours duration. She also says overnight time should not be considered until the father has demonstrated he can refrain from engaging in anti-social activities for at least two years and has shown himself to be stable for the same period of time.
It was not in issue at trial, as it was a matter of fact not in dispute, that there had been significant gaps over the period since the parties’ final separation in the father spending regular time with the child. Moreover, it was not in issue at trial, given the father’s admissions and acceptance of these matters as fact, that the father’s history included a longstanding history of drug abuse; and of
anti-social behaviours some of which have resulted in the father being convicted of criminal offences.
That is, these matters or ultimate factual conclusions were not in dispute. The issue which fell for consideration by the trial judge was the relevance of past behaviours in predicting the future and, consequently, the impact upon relevant s 60CC considerations.
The father’s case at trial in this respect and, as it was relevant to the mother’s proposal to relocate the child, was summarised by the trial judge in these terms at [10] and [11]:
10.The father advances that [the child] will be deprived of the opportunity to develop a meaningful relationship with him and her younger half-sibling, (who was born in October 2015) because the tyranny of distance associated with a move to [Europe] will prevent regular and frequent face-to-face interaction between them. Whilst he accepts he has a history of illicit drug use and certain anti‑social behaviours - which have seen him convicted of criminal offences in the past - he suggests he has matured, settled down and no longer consumes illicit substances.
11.His case is that he has developed the parenting skills and personal capacities necessary to ensure [the child] will not be at an unacceptable risk of harm if her time with him continues to be unsupervised. He also advances, in essence, that while the relationship [the child] has with him has developed to the stage where she would suffer loss if deprived of the ongoing opportunity to continue to spend actual physical time with him on a regular and frequent basis, it is not at the stage where it could withstand absences of the duration which will necessarily occur if she moves to live in [Europe].
It is relevant to the mother’s complaints on appeal, particularly in ground 7 as to the asserted failures of the trial judge to make necessary findings of fact on some disputed issues concerning the father’s conduct, to emphasise that the trial judge did not make a positive finding that the father had established his case that he had in fact put those concerning aspects of his historical conduct permanently behind him. To the contrary, the trial judge ultimately expressed a concern about whether that was so. At [36] to [40], in the context of addressing a “meaningful relationship” within the meaning of the Act, the trial judge recorded:
36.An affirmative finding about this consideration does not depend simply on there being a lack of danger of physical or psychological harm to [the child] arising from time and/or communication with her father. Rather, I must determine whether, in fact, there is a benefit to [the child] of a meaningful relationship with both parents.
37.The two authors of the Family Reports prepared to assist the Court expressed significant reservations about whether there is a benefit to [the child] of a meaningful relationship with her father. In May 2013, Ms [G] opined that “the court would need to be satisfied that [the father] is functioning well psychologically; that he has fully reformed his criminal lifestyle and that he has fully reformed his longstanding drug taking habits before others could consider that this child would not be at an unreasonable risk with her father on an unsupervised basis.” She then noted he did not have a history of being able to manage himself adequately, and had lived a largely itinerant life in which he had not been employed or adequately self-responsible.
38.Ms [G] also noted that, if the mother’s account of his behaviour was accepted, he had previously demonstrated poor impulse control, had behaved in a domestically violent manner and, by virtue of these behaviours, was likely to render [the child] vulnerable to witnessing criminal activities and/or physical abuse.
39.This view was, at least initially, echoed by Ms [H] who, in early 2015, considered that the father’s “current trajectory may indicate a life path which offers few positive reasons to actively promote the development of a meaningful relationship between [the child] and her father”.
40.The father’s past behaviours certainly establish that he has previously struggled with substance abuse and has exhibited certain anti-social behaviours.
(Footnotes omitted)
In the course of addressing in some detail (in [44] to [80] of the reasons) the second of the two primary considerations in s 60CC(2)(b) – the need to protect the child from harm – the trial judge recorded the following:
44.The mother appeared to report to Ms [G] that she did not believe the father would intentionally place [the child] at risk but that he had done so by driving with her at excessive speeds and because he was unable to control his abusive behaviour.
45.As noted, the mother’s initial contention that [the child’s] time with her father should be supervised arose in the context of her concerns [the child] may be exposed to her father’s unstable lifestyle, drug use, criminal behaviour and family violence. During her
cross-examination, she accepted [the child] had enjoyed the limited unsupervised time which has occurred to date and that there was nothing in her presentation on returning to suggest she was unhappy and/or reticent to see her father again.
46.Whatever the father’s past behaviours, there is no evidence to suggest that he has exposed [the child] to drugs or criminal behaviour of any kind or to family violence during their relatively recent and relatively short periods of unsupervised time together.
47.The father has a longstanding history of drug use. He told Ms [G] in 2013 that he first used marijuana when he was 16 years old. He said he stopped using it completely after [the child] was born because he thought he would have to undertake urine analysis testing to see her. He admitted using methamphetamine regularly during his relationship with [the child’s] mother and I accept as likely that, on occasions, his use was “heavy” as the mother suggests.
…
71.It is trite to say that it is unacceptable that [the child] should ever be exposed by either parent to an environment in which any adult is using, or under the influence of, illicit substances. Given the fact that both have previously consumed these substances, both will be restrained from consuming any illicit substance during any time [the child] is in their care and both will be required to remove her from any environs in which any other person is using illicit substances.
(Footnotes omitted)
Again, at [74] on the topic of the child’s attachments the trial judge recorded:
74.When Ms [G] saw [the child] in May 2013 she was nearly two years of age. She was spending one hour per week with her father at a Contact Centre. She walked happily toward her father at the commencement of the observations and responded to his requests for a kiss. His interactions with her were age appropriate. Ms [G] considered he clearly loved her dearly. He sought affection from [the child] throughout their time together – she responded, rather than displaying such affection spontaneously. Ms [G] thought he missed her behavioural cue at the end of the interviews (namely, that she was showing she wanted to be with her mother) and sought more from her despite her indications that this was not what she wanted.
(Footnotes omitted)
Further, in the course of addressing the father’s parenting capacity; attitude to the child and the responsibilities of parenthood (at [85] to [100]) the trial judge recorded at [87]:
87.Ms [G] interviewed the father in May 2013 for the purpose of preparing a Family Report. She considered that the father does not have a history of being able to manage himself adequately: having lived a largely itinerant lifestyle in which he has not been employed or been adequately self-responsible. Ms [G] also considered that the norm by which the father measured his behaviour was lower in terms of what is acceptable than what others might have.
(Footnotes omitted)
In the course of discussing many other concerning aspects of the father’s conduct, for example at [92] that the father had returned a positive test for the presence of methamphetamine on 9 March 2015, the trial judge recorded this with respect to the opinions of the family consultant, Ms H:
95.Ms [H] interviewed the parents in January 2015. She prepared the second Family Report. The father told her of his extensive history of drug use (which included speed, cocaine, ecstasy and marijuana) but contended he had not taken any drugs since he was released from prison in August 2014. While he sought to place reliance upon regular drug tests as part of his parole conditions, he also accepted that he had previously cheated on urine drug screens to achieve clean results.
…
100.Ms [H] noted that, while it was “encouraging” that the father was, on his report, living a drug and crime free lifestyle, there remained “substantial concerns” about his ability to maintain this lifestyle, given the longstanding and persistent nature of these problems. I certainly share in these concerns.
(Footnotes omitted)
These references, which by no means are exhaustive, demonstrate that the father’s historical conduct loomed large in the trial judge’s reasoning concerning various of the relevant s 60CC considerations.
Importantly, the conclusion recorded at [100] of the reasons demonstrates that the trial judge was not persuaded that the father had necessarily overcome, permanently, the relevant concerning aspects of his historical conduct. Rather, as will be further discussed, the trial judge had regard to both the positive developments in the relationship between the child and her father allied with the father making progress in overcoming or moving past his poor choices in the past.
Grounds of appeal
Ground 1
We have already, for the reasons earlier discussed, disposed of ground 1.
Grounds 2, 4 and 5
Grounds 2, 4 and 5 contain the mother’s various challenges directed to the trial judge’s consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)) and, more specifically, with the father. They are conveniently dealt with together as they are likewise addressed in the mother’s summary of argument.
Some preliminary points ought be made. First, consistent with what we have already said about the issues joined at trial, we note that in his final submissions at trial, counsel for the mother acknowledged the need for there to be focus upon the child’s future relationship with her father if her international relocation was now to be permitted. As counsel somewhat colourfully put it (and counsel for the mother is incorrectly identified in this part of the transcript) “...[s]o that understandably in this case the focus has been on the impact of [sic] a person living on the other side of Planet Earth from their child and how that will impact on their relationship. And it obviously will impact on their relationship”. (Emphasis added) (Transcript, 23 March 2016, p. 127, l. 16 – 19).
Second, the trial judge did not focus only upon the child’s future relationship with the father if her relocation were permitted. Based upon the expert evidence of Ms H, which the trial judge obviously accepted, the trial judge attached significance to the impact upon the child’s future relationship with “her baby half-sister” (reasons at [114]). At [116] the trial judge found:
116.I also accept Ms [H’s] evidence to the effect that, for children, sibling relationships are very important because, usually, they provide for people an unconditional sense of love and support. They also have a greater possibility of outlasting parental relationships. If she moved to live in [Europe] now, [the child] would not have any real chance to develop a relationship with her half-sister.
Third, it is clear from the reasons read as a whole that the trial judge was appropriately mindful, correctly in our view, of the child’s very young age and her international relocation taking place now rather than, for example, at some future time. The trial judge’s reasons (at [124] to [135]) specifically addressing the mother’s proposed relocation conclude with this:
135.Consequently, I do not think it is in [the child’s] best interests to move to live in [Europe] at this time in her life. Of course, that situation may change in the future: for example, if she is older and her relationship with her father has reached a stage where it can withstand the impact of significant absences or, if her father fails, for whatever reason, to continue to spend regular and frequent time with her over an extended period of time.
(Emphasis added)
Finally, but of critical importance, is to note the trial judge’s findings at [101] to [116] as to the likely effect upon the child’s relationship with the father and her half-sibling if her international relocation at this stage of her development occurred.
In summary, the net effect of those findings are that the child would probably have no future relationship with either her half-sibling or her father. Whilst those findings need to be read as a whole within the reasons for judgment, the trial judge made specific reference to the expert’s evidence as to the potential effect upon the child of the loss of a relationship with the father as follows:
115.Given Ms [H’s] evidence that children tend to have better outcomes across all domains if they are able to have strong, healthy and positive relationships with both of their parents, I consider there is a very real possibility that, if she relocates to live in [Europe] at this time in her life, [the child] will be unable to develop these relationships and consequently, may suffer adverse consequences into the future.
Ground 2 as expressed contains a complaint that the trial judge erred in her interpretation and application of s 60CC(2)(a) – the benefit of the child of having a meaningful relationship with both of the child’s parents. As can be seen from paragraph 11 of the appellant’s outline of submissions that particular complaint is abandoned.
The remaining part of ground 2, as with grounds 3 and 5 (in part) contains the assertion that the trial judge predominated, wrongly, the question of the benefit to the child of a meaningful relationship with her father in the determination made.
We have already addressed why it was necessary, given the actual issues joined between the parties at trial (and importantly what was not in issue) for there to be particular focus on this s 60CC primary consideration. We have also, with reference to the trial judge’s findings concerning the expert evidence, sought to demonstrate that the child’s future relationship with her half-sister was also an important consideration addressed by the trial judge.
The trial judge’s reasons must be reviewed as a whole in assessing the complaint that the trial judge predominated, wrongly, this consideration. In our judgment that review, summarised below, reveals there is no substance in this complaint. In Goode and Goode (2006) FLC 93-286 the Full Court, in discussing the then recent amendments to Part VII of the Act observed (at 80,901) “…there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…”
Having identified, correctly, the issues at [1] to [3] the trial judge stated the parties’ competing proposals (at [4] to [11]). At [12] to [14] the trial judge dealt with, and rejected, the mother’s contention that the father’s motivation in the proceedings was to disrupt or control the mother’s life rather than him having the opportunity to continue to develop a relationship with his daughter. The trial judge found (at [13]) that the father was motivated by a genuine desire to develop a meaningful relationship with his daughter and, importantly, for the child to develop a meaningful relationship with his family unit, and particularly, the child’s half-sibling.
The trial judge had the advantage of not only seeing and hearing the father give oral evidence at trial but also, because he represented himself at trial, his conduct throughout the trial. The trial judge’s finding was consistent with the observations of the expert family report writers to which her Honour also referred.
At [15] to [32] the trial judge dealt in some detail with the history of the child’s time spent with the father.
In dealing with the applicable principles at [33] and [34] the trial judge said at [34] (with footnoted references to s 60CA and s 65AA of the Act and the Full Court decision in Banks & Banks (2015) FLC 93-637):
34.In deciding whether to make a parenting order, I must regard [the child’s] best interests as the paramount consideration. Whilst the matters to be considered in determining those parenting orders which are in [the child’s] best interests are set out in s 60CC of the Act, it is unnecessary for each prescribed consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.
(Footnotes omitted)
That is an undoubtedly correct statement of principle. We reiterate what we have earlier observed about the trial judge’s determination of the child’s best interests and her consideration of the s 60CC considerations being necessarily driven by the actual issues joined between the parties and, conversely, what was not in dispute.
As earlier noted, the trial judge moved to address the topic of “meaningful relationship” at [35] to [43] of the reasons. Importantly in the circumstances of this case, the trial judge correctly identified at [35], with reference to the Full Court’s decision in McCall & Clark (2009) FLC 93-405, that the preferred interpretation of this consideration is the “prospective approach” as discussed in that case. The circumstances of this case to which we refer in particular in this context include:
·The child’s very young age;
·That the child had commenced spending unsupervised time with the father from November 2015 and by the reports of all concerned (including those of the mother as earlier discussed), that had been a positive experience for the child;
·That whilst the father had not established that he had left behind him altogether those concerning features of his past lifestyle and historical conduct, there was a body of evidence (for example his relationship with Ms F and the birth of their child and the absence of evidence of recent anti-social conduct) of positive prospects of that occurring;
·The undisputed expert evidence earlier referred to of the benefits to the child if she were able to have “strong, healthy and positive relationships” with both of her parents (and her half-sister) and the potential adverse consequences for the child if she did not have that opportunity.
As we have already observed, within each of the topics of “meaningful relationship” and the immediately following topic discussing the second primary consideration in s 60CC(2) (reasons at [44] to [71]) much attention was paid by the trial judge to the father’s historical conduct. Likewise that occurred when the trial judge addressed the father’s parenting capacity, again in some detail, at [85] to [100] of the reasons.
In addition to addressing the child’s attachment to her mother (there was no issue joined about the mother being the child’s primary attachment figure) and the mother’s parenting capacity (there was no issue joined about the child continuing to live primarily with the mother), the trial judge discussed, considered and made findings about both the potential benefits to the child if relocation were permitted, as well as the potential effects upon the mother if her proposal to relocate were refused (at [83], [118] to [135], and [156] to [160]). Likewise the trial judge considered the mother’s alternative proposal that she be permitted to relocate to live with the child in Melbourne (at [136] to [146]).
At [118] to [123] the trial judge addressed the issue joined between the parties as to the allocation of parental responsibility, and her Honour determined to allocate sole parental responsibility to the mother.
We are not persuaded that the trial judge was in error as asserted constituted by placing undue emphasis upon the s 60CC(2)(a) consideration – the benefit to the child of having a meaningful relationship with both parents. We are satisfied that it was within the trial judge’s legitimate exercise of discretion to deal with this consideration in the manner in which she did.
The ICL’s summary of argument in support of these grounds, concerning this aspect, proceeds on the foundation that the trial judge made findings that the child had already established a “meaningful relationship” with the father. From that foundation the ICL submits on appeal that the trial judge’s further findings that such a relationship “cannot be maintained and developed if the child spends a month a year physical time with her father plus bi-weekly visual Skype communications with him” are internally inconsistent.
The ICL did not submit at trial that the trial judge should find that the child already had a “meaningful relationship” with the father. That aside, we reject the ICL’s foundation for the above submission, that is, that the trial judge’s findings were “in other words … that the child does already have a ‘meaningful relationship’ with her father”. Nowhere within the ICL’s selective references to only four paragraphs of the trial judge’s reasons ([41] to [43] and [81]) is such a finding recorded. Moreover, those references are selective in omitting reference to other unchallenged findings of the trial judge on the topic of the strength of the child-father relationship plainly pointing to it being less than a fully established one (for example, at [13], [104] – “…their relationship has only just started to encompass the opportunities made possible by spending time together away from the Contact Centre”; at [107] – “[t]heir relationship is, I consider, still very much in a relatively embryonic state in that it is still developing and strengthening”).
As the trial judge observed (at [35]) the Act does not define the term “meaningful relationship”. As earlier discussed, the trial judge relied upon the Full Court’s decision in McCall & Clark (supra) and adopted the “prospective approach” as described and endorsed by that Full Court. What the trial judge had to consider was the child’s level of cognitive development at her age, the nature of the current child-father relationship and whether or not that relationship could be sustained and developed (the trial judge having found this would be of benefit to the child) if the child were now to be relocated internationally. This the trial judge did including by reliance upon the expert evidence of the family report writer, Ms H. Having reviewed the oral evidence of Ms H at trial, we reject the ICL’s submission that the trial judge was in error “in finding that the relationship is not now strong enough to be maintained and to continue to develop if the child moves to [Europe]” as being “not available on the evidence of the sole expert” (a reference to Ms H).
At trial it was in fact the ICL’s then counsel who had the following exchanges with Ms H:
MR ANDREW: Can I ask you about [the child’s] relationship with her father and how that would be maintained if there was a relocation to [Europe] and whether that really would maintain a meaningful relationship given that the proposals are for [the child] to see her father for a four week/28 day period once a year and for provision for communication on Skype?‑‑‑Yes.
How that would practically maintain a meaningful relationship?‑‑‑Yes. And certainly that’s the biggest question here. At [the child’s] age it would be very difficult for – for anyone to say that that would be sufficient for her to – to continue to develop, never mind just maintain the relationship with her father. Obviously as children grow older they are much better at being able to maintain established relationships with people and need less – less frequent, I suppose, contact with people to enable that. At [the child’s] age, certainly I think it would be very difficult for that to happen. I think it would be difficult to maintain a relationship if it was strong already. I think it would be even more difficult to continue to develop a relationship that perhaps wasn’t already very strong.
Does that imply then that the [sic] maintaining that part of it, maintaining of the relationship, that it will, if I say fall; that it will decline?‑‑‑Certainly there would be a greater risk of that the younger the age of the child, yes. So I would think that [the child] is still very young to think that we could predict with any certainty that she would be able to maintain that relationship. So I think the risk of that relationship declining is greater the younger the age of the child.
(Transcript, 23 March 2016, p. 97, l. 11 – 33)
By reference to that same passage of evidence of Ms H quoted above, and her oral evidence at trial overall (transcript, 23 March 2016, p. 92 – 108) we find no substance in the further submissions of the ICL that the trial judge’s findings at [103] and [105], to the effect that the child-father relationship would not sustain the child’s international relocation now, were not open on the evidence of Ms H. Those findings were plainly open on the expert evidence and were fortified by the trial judge’s further findings as to the parties’ financial capacity to actually sustain yearly international travel and associated costs for monthly periods.
In this context the ICL’s further submissions concerning the evidence of Ms H as to the efficacy of Skype communication grossly misstate the evidence Ms H gave at trial. The ICL’s submission is:
…IT IS SUBMITTED that Ms [H] did not say Skype communication between [the child] and the Father would become “a chore” rather than perhaps a delight. The comments were made in regards to the strength of the relationship involved…
That submission is referenced to part of the transcript of Ms H’s oral evidence at trial. However, that reference is, again, incomplete and in any event does not support the submission. The following extract from the transcript reveals that Ms H did in fact refer to maintaining regular contact possibly becoming a “chore”:
Given what you saw of [the child] and her relationship with her father in September of 2015, and the information that I’ve provided to you in relation to the time between [the child] and her father since then, are you able to tell us where on that continuum [the child] would be now?‑‑‑I – I recall that [the child] had excellent communication skills really for her age, so certainly I thought that her communication was wonderful. It was difficult for me to keep her on track at times in terms of an interview, but certainly she was happy and able to talk to me about a range of other things. I don’t know how that would equate to her ability to maintain a Skype or telephone communication with her father. She certainly had an active imagination, all of the wonderful things we would hope for for a child of her age. I think that her communication skills were probably greater than I would have expected for a child of her age, and so that would be a benefit. But the level of the relationship probably at – at the time that I saw it wouldn’t have been strong enough for her to perhaps be able to maintain that just via telephone calls and Skype.
HER HONOUR: And what about develop it?‑‑‑I’m sorry, your Honour?
What about develop it, because I note your answers are restricted to her being able to maintain the relationship, and I had thought you drew a distinction earlier between maintaining and developing?‑‑‑Yes.
So in relation to her opportunity and/or capacity to develop a relationship, is it the same? Should I read to maintain and develop or is the development even less likely because of her age and the starting point of the nature of the relationship between herself and her father when you saw them and assessed it in September of last year?‑‑‑Yes. Yes. Certainly I understand what you mean and, yes, I would expect it would be even more difficult for a child of that age to develop a relationship, as opposed to just maintain one. And I think that it’s not really an easy means by which anybody would develop a relationship and – and a very young child even less so.
MR ANDREW: To develop or progress the relationship to a stage where it could be maintained or developed, what sort of time and over what sort of period would you be looking at in these circumstances?‑‑‑It’s probably difficult to answer that with any concrete kind of timeframes. It really depends, I suppose, on the types of experiences the child has with her father. So at her age, certainly the amount of time is still important, but it’s also about having a lot of different experiences in the care of her father as well as the amount of time. So certainly at her age she still isn’t good at being able to hold people in mind during a period of absence. Developmentally, we wouldn’t expect children of that age to have – to have great skills in that area. The older kids get, the better they are at being able to tolerate longer periods of absence. Again, I suppose it comes down to the strength of that relationship, because that will ultimately form as well the basis for this child’s motivation and desire to maintain that relationship as well. So if this is a person that’s important to her, she will be looking forward to those conversations, much more engaged in those conversations and much more likely, you know, for that to be a positive interaction for her and for that relationship to be maintained, as opposed to a starting point where perhaps the relationship is a little weaker and maintaining regular contact might become a little bit more of a chore, perhaps a little less enjoyable for the child, so there’s a lot, I think, of variables that – that come into play there, her age, her developmental stage and certainly the strength of the relationship.
(Transcript, 23 March 2016, p. 98, l. 1 – 47, p. 99, l. 1 – 3)
We find no merit in these grounds.
Before leaving these grounds, we note that on the topic of Skype communication the further evidence admitted on appeal includes this:
8.[The mother] has not complied with the court orders on many occasions and on these grounds should not be given preferential treatment anyway. For example, the scheduled Skype calls between myself and [the child] have not been available in months…
As earlier noted that evidence was admitted by consent and there was no demur to it. Whilst there was no exposition as to why Skype communication had “not been available in months” it would seem to be that despite the trial judge’s order (Order 16) requiring each parent to facilitate the child communicating with the other by telephone or Skype communication on no less than two occasions every week, that has not in fact occurred even in circumstances where the mother and child remain living in Australia.
Grounds 3 and 5
Ground 3 contends that the trial judge “erred by placing undue weight on observations made of the child with the father at the Contact Centre, in making the finding (reasons at [41] and [42]) that the father ‘appears to have developed parenting skills’ and there was a benefit to the child in developing a meaningful relationship with the father.”
The second component of this challenge is answered by reiterating what we have already said, including that it was not the mother’s case at trial that there was no benefit to the child in developing a meaningful relationship with her father. Much of the preceding discussion addressing grounds 2, 4 and 5 is relevant to this topic, but by way of summary:
a)As already noted, the mother did not propose, on either of her alternative proposed orders, that it was in the child’s best interests for an order to be made that the child have no time or communication with the father. To the contrary, the mother sought orders (on her relocation proposal) to facilitate the child spending time with the father over four-weekly periods in each year alternatively between Australia and Europe, as well as twice-weekly telephone or Skype communication; and on her alternative proposal of her relocation to Melbourne with the child the mother proposed that the child spend weekly time with the father. In addition, on either proposal, a range of orders were proposed by the mother, for example about exchanges of information, to facilitate the father’s involvement in the child’s life;
b)As at trial (in March 2016) the child had been spending regular (fortnightly) periods of unsupervised time with the father since November 2015, and the evidence included the mother’s own positive observations of the success of that;
c)The trial judge made a number of findings, beyond those recorded at [41] and [42] of the reasons, as to the child-father relationship to which we earlier have referred which obviously informed those specific findings.
As to the challenge to the trial judge’s reliance upon the observations made by contact centre staff in 2015 (relevant records were admitted as Exhibit 1 at trial) the mother’s outline of submissions correctly observes that these were not included in the appeal books. The outline foreshadows that the mother would seek to have copies available on the hearing of the appeal. In the event, these were not advanced before us on the hearing and counsel appearing for the mother on appeal (who was not the mother’s counsel at trial who also prepared the outline) did not address us as to how, or in what respects, it was contended that the subject records did not support the trial judge’s finding.
We find no merit in ground 3.
As the mother’s summary of argument proceeds, ground 5, beyond those aspects of it which we have already dealt with, is relied upon in conjunction with grounds 6 and 7 now to be dealt with containing the challenges asserting errors as to the findings made, or not made, by the trial judge.
Grounds 6 and 7
Grounds 6 and 7 are necessarily dealt with together as ground 6 is not, as it is expressed, a proper ground of appeal as it states a broad conclusion and references the complaints in ground 7 for the efficacy of that conclusion. Ground 6 is thus superfluous in terms of not being a “stand alone” ground as the actual errors asserted are agitated within ground 7.
Ground 7 is divided into 14 sub-grounds which in turn contain multiple complaints of asserted error on the part of the trial judge.
Before dealing with the specific complaints asserted within ground 7, it is to be noted that many of them can be seen to constitute no more than challenges as to the weight given by the trial judge to relevant considerations. The principles applied by an appellate court on appeal to weight challenges to a discretionary judgment are well known and need not be restated here.
A number of the complaints within ground 7 (and the general complaint in ground 6) are directed to asserted failures of the trial judge to make findings on factual issues. However, appellable error is not necessarily demonstrated by pointing to a factual issue at trial about which the trial judge did not make a specific finding. Authorities, albeit mainly directed to addressing the topic of adequacy of reasons, emphasise this point. In A v J (1995) FLC 92-619 the Full Court reviewed numerous authorities on the topic of the adequacy of reasons and observed (at 82, 232 – 82, 233):
It is important to guard against too zealous an application of the requirement to give reasons, particularly in circumstances where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to a finding of a material or an ultimate fact: see Soulemezis per Mahoney JA.
In that case McHugh JA said at 280:-
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.
(Referring to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247)
The Full Court in A v J (supra) made the following reference to Mahoney JA’s statement in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378 referring to the duty of a judge to state reasons (at 82, 233):
However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing.
In Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, Gleeson CJ, McHugh and Gummow JJ said at 1610:
62.…The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Turning then to the complaints agitated in ground 7, we find no substance in the complaint (in sub-ground 7A) that the trial judge wrongly set out the father’s proposal at [9] of the reasons. When what the trial judge recorded at [9] is read with [137], where the trial judge specifically records that the father would accept the mother and child moving “anywhere in Australia rather than to [Europe] … provided she has the opportunity to spend time with him every alternate weekend or thereabouts” there was no error on the part of the trial judge. The father’s amended response filed on 5 August 2015 setting out the orders he sought included an order “[t]hat the child is to live with the Mother in [Region C], Australia”. That had been the father’s proposal when he was interviewed by family consultant Ms G for the purpose of her family report prepared in 2013. It remained the father’s proposal when he was interviewed on 27 January 2015 by family consultant Ms H for the purpose of her report dated 13 February 2015. It was in the further family report process of Ms H for her report dated 8 October 2015 that the father expressed a willingness to consent to the mother relocating within Australia.
Against that background the trial judge was at some pains at the outset of the trial to clarify with the father (who we repeat was self-represented) as to the orders he sought (transcript, 22 March 2016, p. 16, l. 40 – p. 18). The trial judge was bound to consider the practical realities for these parties, financially and otherwise, of the likely effect of orders made on either party’s proposal. This the trial judge did. Moreover, as the High Court emphasised in U v U (supra) the trial judge was not in any event bound by the parties’ proposals in determining what orders were in the child’s best interests.
In relation to sub-ground 7B the first point to be noted is that the sub-ground misstates the father’s case which was summarised by the trial judge at [11] in these terms:
11.His case is that he has developed the parenting skills and personal capacities necessary to ensure [the child] will not be at an unacceptable risk of harm if her time with him continues to be unsupervised. He also advances, in essence, that while the relationship [the child] has with him has developed to the stage where she would suffer loss if deprived of the ongoing opportunity to continue to spend actual physical time with him on a regular and frequent basis, it is not at the stage where it could withstand absences of the duration which will necessarily occur if she moves to live in [Europe].
The trial judge found that the father had developed some parenting skills and as we have already observed that finding was open to her Honour. As also earlier emphasised the trial judge, focusing upon the father’s history, discussed at length (including by reference to the expert evidence) and expressed at [100] agreement with Ms H’s “substantial concerns” about the father’s ability to maintain a “drug and crime free lifestyle” despite it being “encouraging” that the father was, on his own report, maintaining a drug and crime free lifestyle. Notably, at [96] to [99] of the reasons the trial judge referred to the father’s partner, Ms F’s evidence, with apparent acceptance, that Ms F would not tolerate drug use and at [99] that both Ms F and the father had denied the presence of any risk factors in their home.
As earlier noted, reiterating that the issue joined was not with whom the child should live, but the question of the child’s time with the father, the trial judge dealt with the risk assessment required by s 60CC(2)(b) at length at [44] to [71] in reaching the conclusion that the child would not be at an unacceptable risk of harm in continuing to spend unsupervised time with the father.
When the reasons for judgment are read as a whole (including what we have referred to at [100]) it is tolerably clear that the trial judge did not embrace the father’s case that he would in future certainly maintain a drug and crime free lifestyle. Indeed the trial judge’s specific finding was that there remained “significant concerns” about that prospect, but that on the evidence the child would not be at an unacceptable risk of continuing to spend unsupervised time with the father. Plainly, the trial judge balanced the competing considerations in reaching the conclusions her Honour did in exercising her discretion as to the parenting orders ultimately to be made. Given that sub-ground 7B proceeds on an incorrect premise, as identified above, and contends that the trial judge failed to make a finding about the father’s case in this respect, which her Honour clearly did, it is unnecessary to discuss each of the particulars of fact agitated in support of it in the mother’s outline. We find no substance in
sub-ground 7B.
The balance of the multiple sub-grounds of ground 7 contain, in the main, either complaints about the weight the trial judge gave to some factors; or constitute complaints about failures to make findings of fact leading to a finding of a material or ultimate fact.
The trial judge was plainly mindful of the father’s history of drug use and
anti-social behaviours sometimes leading to criminal offences and convictions. The ultimate finding the trial judge made was that “significant concerns” pertained to the question of the prospect of the father maintaining a drug and crime free lifestyle. That being the trial judge’s finding of a material or an ultimate fact, the expressed determination of further historical factual issues in support of it as is contended to have been necessary in a number of the
sub-grounds of ground 7, was in fact unnecessary.
Likewise, the trial judge made findings to which we have already referred, of significant gaps in the father maintaining regular involvement in the child’s life historically. The reference in the mother’s outline of argument solely to [16] of the reasons in support of an argument that the trial judge was in error as to the extent of these gaps, and in such a way to characterise that as the limit of the trial judge’s treatment of this issue, is plainly wrong (see, for example, reasons at [17], [19] to [26] inclusive – at [23] is the finding that the father “failed to attend” a scheduled visit on 14 February 2014 and that contact did not resume thereafter until 14 December 2014). We are not persuaded that the trial judge, having made the fundamental or ultimate finding concerning this issue, that is, that there had been significant gaps, made any material error at all either as to the periods or gaps in the child-father relationship or the reasons for them. The trial judge attributed these gaps almost wholly to failures of the father in one form or another, save only in respect of a period when the contact centre was apparently unavailable (August to December 2014) and a period when the mother and child were overseas.
We have already made reference to the trial judge’s determination (reasons at [12] to [14]) as to the father’s motivation in the proceedings and the mother’s case in that respect. We have also earlier referred to the trial judge’s advantage of observing the father, not only in giving evidence, but throughout the trial. It was open to the trial judge to reach the conclusions expressed and we find no substance in sub-ground 7C challenging them.
The challenges in sub-grounds 7D and 7E have already been addressed in our earlier discussion concerning the ultimate findings the trial judge made concerning both a period or periods when, historically, the father failed to maintain regular time with the child and his relevant past history more generally. Each of the topics agitated in support of sub-ground 7E can be seen to have been referred to by the trial judge in the reasons. That is, it is not the case that the reasons demonstrate a failure by the trial judge to have regard to a material consideration when the trial judge’s ultimate findings or conclusions on the father’s history to which we have earlier referred, are considered. We have earlier made reference to authority for the proposition that the trial judge was not bound to decide every factual issue raised on the path to the trial judge making ultimate or material findings upon a topic. Moreover, it was within the judicial discretion of the trial judge to determine the weight to be given to matters of fact and the material considerations. No appellable error is demonstrated by either of these sub-grounds.
The balance of the challenges contained within sub-grounds 7F to 7N (inclusive) are no more than challenges as to weight. Our review of them, together with the reasons and the record, does not persuade us that the trial judge was plainly wrong in the exercise of the judicial discretion.
When the reasons for judgment are read as a whole, it is clear that the trial judge gave significant emphasis to the child’s very young age and her consequent capacity to develop and maintain relationships, not only with her father, but also with her half-sister if she were to be relocated internationally “at this stage” or “at this time”. It is readily apparent that the trial judge was not eliminating the prospect of the child-father and child-sibling relationships sustaining the impact of the child’s international relocation at some later stage. Nor was the trial judge eliminating the prospect of the matter being reconsidered should the father, for any reason, again fail to maintain regular time with and involvement with the child over an extended period of time (reasons at [135]). The trial judge accepted that there were benefits to the child of relocation to Europe (reasons at [133]) but weighed those as against the competing considerations. The trial judge did not, as we have sought to emphasise, accept the father’s case that he has certainly put behind him his history of drug use and anti-social behaviours. In the end it can be seen that the trial judge considered, taking into account the expert evidence concerning the relevant relationships and the potential benefits to the child of them, that it was in the best interests of the child that she have at least the opportunity to develop and have a meaningful relationship with the father and with her half-sister. On the trial judge’s findings (reasons at [101] to [117]) which were open to her Honour on the evidence, that was unlikely to occur if the child were now to be relocated internationally.
It is, as we have sought to emphasise, not the test of appellable error to observe that another judge or judges on the same evidence might well have reached opposite conclusions to those of the trial judge in terms of the parenting orders to be made in the best interests of this child.
The father’s further evidence admitted on appeal confirms that the father has maintained employment and, importantly, has regularly attended the Region C area from his temporary base in Sydney on a fortnightly basis to spend time with the child, as ordered by the trial judge. As at the hearing of this appeal, the child had been spending regular unsupervised time with the father for about 12 months and on the increased frequency provided for in Order 6 of the trial judge’s orders. There was no issue raised with respect to the father’s evidence that this had been successful.
We have already dealt with almost all of the submissions of the ICL on appeal. The ICL did not file any separate notice of appeal to that of the mother. Some of the ICL’s submissions in support of the mother’s appeal are said to be directed to “the global appeal point in Ground 1 of the Notice of Appeal”. For the reasons earlier given we have rejected ground 1 as not constituting a proper ground of appeal. However, we will engage with the balance of the submissions of the ICL in purported support of that ground to the extent that we have not already dealt with them.
We reject the submission that there was no evidentiary basis for the trial judge’s findings at [124] to [128] as to the “[Europe] Option” (as it is described in the ICL’s submission) being put into effect. There was ample evidentiary support for what was quintessentially a prediction about the future given the father’s past history of intermittent work at best; the father’s new demands of supporting Ms F and their recently born child; and the quality of the evidence in the mother’s case as to her proposed future in Europe not actually demonstrating her likely financial security/capacity. Moreover, this submission is something of an exercise in selectively addressing only one aspect of the trial judge’s findings in their entirety as to the mother’s proposals which are set out at [124] to [144] of the reasons. We have earlier made reference to the trial judge’s finding, based on the evidence of the expert Ms H, as to the unlikelihood of Skype communication being successful in achieving maintenance of a meaningful relationship between annual visits, even if annual visits actually occurred.
We reject the further submission of the ICL that the trial judge was in error in not eliciting at trial from the father “his alternate proposal if the child were permitted to move to [Europe]”. The ICL was a party and participated at trial. Counsel for the ICL cross-examined the father at trial. If the ICL considered that something of moment could have been elicited from the father at trial about this, the ICL had that opportunity. Notably, the ICL’s submissions on this point do not extend to identifying what, of any relevance, could possibly have been elicited from the father and for ourselves we are quite unable to identify, even by way of speculation, anything of significance that could have emerged.
The submissions of the ICL overall do not vest any of the mother’s grounds of appeal with any matter of substance we have not otherwise already dealt with.
In terms of the inter-related considerations or questions we identified at the outset as being those raised by the challenges on appeal, we are not persuaded:
a)That the trial judge, in the exercise of the judicial discretion involved in making parenting orders for the future placed undue emphasis upon consideration of the benefit to the child of having a meaningful relationship with the father such as to constitute appellable error;
b)That the trial judge failed to decide issues of fact it was necessary to decide;
c)Of any material errors of fact on the part of the trial judge.
Conclusion and orders
As we find no merit in any of the grounds of appeal, the appeal will be dismissed.
As the father represented himself throughout the appeal process, he did not incur any legal costs and there is no basis otherwise for any order as to costs to be made.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Kent JJ) delivered on 20 February 2017.
Associate:
Date: 20 February 2017
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