Hamady & Mansour
[2022] FedCFamC1A 1
•11 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hamady & Mansour [2022] FedCFamC1A 1
Appeal from: Hamady & Mansour [2021] FCCA 79 Appeal number(s): EAA 13 of 2021 File number(s): PAC 3308 of 2019 Judgment of: AUSTIN, BAUMANN & WILLIAMS JJ Date of judgment: 11 February 2022 Catchwords: FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the primary judge made orders permitting the mother to relocate the child’s residence following an initial regime of time with the father – Substantial and significant time – Whether the primary judge erred by failing to consider whether the orders were in the child’s best interests and reasonably practicable – Where the assertion is demonstrably wrong – Where the father contended that finding the orders were reasonably practicable was not open – Where evidence that did not tip the balance in his favour does not mean the evidence was not given sufficient weight – Findings open on the evidence – Decision of the primary judge not plainly wrong – No error of fact or law established – Adequate reasons – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 61DA, 65DAA, 79 Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 47 Date of hearing: 13 October 2021 Place: Heard in Sydney (via video link), delivered in Newcastle Counsel for the Appellant: Mr Todd Solicitor for the Appellant: Jackson & Associates The Respondent: No appearance by or on behalf of the Respondent Counsel for the Independent Children’s Lawyer: Mr Williams Solicitor for the Independent Children’s Lawyer: Sarah Bevan Family Lawyers ORDERS
EAA 13 of 2021
PAC 3308 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HAMADY
Appellant
AND: MS MANSOUR
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AUSTIN, BAUMANN & WILLIAMS JJ
DATE OF ORDER:
11 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamady & Mansour has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, BAUMANN & WILLIAMS JJ:
By an (Amended) Notice of Appeal filed 22 March 2021, the father appeals from Orders made on 27 January 2021 by a Judge of the Federal Circuit Court of Australia (as it was then known) in respect of the parents’ only child, X (now aged three years) (“the child”). Whilst the parenting Orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) were the subject of the appeal, Orders were made at the same time under s 79 of the Act, providing for the father to pay a sum of money to the mother, are not challenged.
Some context to the appeal assists in understanding our view that the appeal must be dismissed.
BACKGROUND
The parents’ relationship began in January 2018 and they separated in June 2019 when the child was four months old. After separation the mother moved to Melbourne with the child, however as a result of an interim parenting judgment by the same primary judge, the mother was ordered on 10 January 2020 to return the child to Sydney, which she did. The mother, however, maintained her proposal that the child should be permitted to reside in Melbourne with her, which at all times has been opposed by the father. It has been agreed that the child will live with the mother, however the father said that should occur in Sydney.
This dispute was the subject of the trial before the primary judge in October 2020, resulting in the reasons for judgment delivered 27 January 2021 (“the said Reasons”). Apart from the evidence of the parents and the maternal grandmother, evidence by a Family Consultant in a Family Report dated 13 July 2020, was also before the primary judge. Due to COVID-19 restrictions, no observations of the child with either parent were possible by the Family Consultant.
The Orders under appeal effectively permitted the mother to relocate the child’s residence to Melbourne after 30 June 2022 (when the child would have reached almost three and a half years of age) with an initial regime of time with the father of three days a week from 7.00am to 4.00pm (Order 7(a)). From 1 July 2022, the child’s time with the father is to progress to overnight time, each alternate weekend (10.00am Saturday to 5.00pm Sunday) with a three night period during the first week of each Victorian school holidays and special days (Order 7(b)).
Changeovers after the permitted relocation were to take place at Tullamarine Airport, unless otherwise agreed (Order 9(b)).
Until 30 June 2022, the mother could elect to suspend the child’s time with the father for two 14 day periods on written notice (Order 10). Communication by electronic means post-relocation once a week with the father was also ordered (Order 11).
THE PREMISE FOR THE DECISION
The dispute over the allocation of parental responsibility for the child was resolved by the primary judge finding the parties should have equal shared parental responsibility (at [107]–[109]), for which order the father and the Independent Children’s Lawyer (“the ICL”) had advocated (at [15]–[16]). The mother did not cross-appeal from that order.
The order for the parties to have equal shared parental responsibility engaged s 65DAA of the Act. Since neither party nor the ICL proposed that the child should live with the father for “equal time” (s 65DAA(1)), the focus of attention moved to whether orders should be made for the child to spend “substantial and significant time” with the father (s 65DAA(2)).
Two questions therefore arose: would orders for the child to indefinitely spend substantial and significant time with the father be in the child’s best interests (s 65DAA(2)(c)) and would such orders be reasonably practicable (ss 65DAA(2)(d) and 65DAA(5))?
The primary judge ultimately found it was too early to tell whether the more expansive orders of the type proposed by the father would be in the child’s best interests, saying:
115.For the same reasons, significant and substantial time will not be ordered, as it is too early to determine whether such order would be in [the child’s] best interest.
The orders upon which the primary judge eventually settled still provided for the child to spend substantial and significant time with the father before her relocation with the mother to Melbourne, though afterwards their interaction would be confined to alternate weekends and some contiguous days in school holidays. The primary judge was satisfied those arrangements were in the child’s best interests and were reasonably practicable (at [120]).
Many factors inclined the primary judge to that conclusion.
The mother was deeply unhappy living in Sydney, where she was financially dependent upon the father (at [5], [22]–[25], [45], [51], [63], [66], [73]–[74] and [84]). She strongly desired to move back to Melbourne, from where she had originally come and where she would be much happier living with or near to her family (at [28], [37]–[38], [49], [93]–[94] and [100]).
The primary judge found the child would benefit from having a meaningful relationship with the father (at [92]), but their relationship at that time was at a formative stage and still developing (at [90] and [99]). The preclusion of the mother’s relocation with the child to Melbourne for 18 months was designed to enable the child’s relationship with the father to consolidate (at [104], [110]–[111] and [117]).
The primary judge acknowledged the father’s arguments about inter-state travel being onerous and then impeded by pandemic restrictions (at [97]–[98]), but found the father could either relocate to Melbourne himself without adversely affecting his business interests (at [18]–[21], [36], [43], [51], [69], [73] and [95]–[96]) or travel between Sydney and Melbourne with relative ease (at [50], [73], [98] and [119]).
The father contended the appealed orders were beset by errors of principle, a material mistake of fact, and discretionary errors.
GROUNDS 1 AND 2
These grounds assert the primary judge “erred in principle”, first by failing to consider the two separate limbs of s 65DAA(2) of the Act (Ground 1), and secondly, by isolating the issue of the mother’s relocation with the child from the broader statutory considerations (Ground 2).
Ground 1 is demonstrably wrong because there was no “failure” to consider the two separate questions of whether orders for the child to spend substantial and significant time with the father were in her best interests and reasonably practicable to implement.
The primary judge expressly found it was too early to tell from the evidence whether the orders proposed by the father would be in the child’s best interests (at [114]–[115]). His Honour found it would be in the child’s best interests and reasonably practicable for her to spend substantial and significant time with the father for the next 18 months while their relationship consolidated but, at least inferentially, it was not reasonably practicable for that regime to continue long-term due to the considerations motivating the mother’s desire to live with the child in Melbourne. While the father understandably disagreed with the decision, there was no failure by the primary judge to engage with the conditions prescribed by s 65DAA of the Act, so Ground 1 must fail.
On the express terms of Ground 2, the failure to succeed on Ground 1 would end any argument available to the appellant, however during oral submissions the appellant, in effect, sought to amend the ground of appeal by removal of the words “as a consequence of the error contended for in paragraph 1” and with the consent of the ICL the amendment was permitted.
As then argued, Ground 2 was inter-dependent with Ground 1 and it too must be rejected. The primary judge correctly referred to binding authority which firmly establishes the principle that questions of relocation are integral to the exercise of discretion under Pt VII of the Act and ought not be considered as a discrete issue (at [121]). His Honour specifically referred to MRR v GR (2010) 240 CLR 461, in which the High Court of Australia made plain (at [13]–[16]) how ss 60CC, 61DA and 65DAA of the Act intersect in cases where one party wishes to relocate a child’s residence to a geographically distant place at the possible expense of the quality of the child’s relationship with the other party.
Here, the child’s potential relocation to Melbourne was not given isolated consideration. It was common ground she would continue to live with the mother, but whether that would be in Melbourne or Sydney was central to the judgment. The father did not posit an alternative case for the child’s residence with him. The primary judge explored the aspects of the evidence which bore upon the reasonable practicability of the mother being forced to live in Sydney so the child could spend the extensive amount of time with the father for which he hoped. The child’s best interests were the paramount consideration, but whether the child should spend substantial and significant time with the father in the manner he envisaged was also influenced by the reasonable practicability of such orders. The individual interests of the parties were relevant to the outcome, though they would yield to any contrary interest of the child (U v U (2002) 211 CLR 238 at 262 and 285–286; AMS v AIF (1999) 199 CLR 160 at 223–224 and 231–232).
The orders made by the primary judge held the mother in Sydney for 18 months, when she had wanted to depart for Melbourne without delay, and made provision for the child to spend more time with the father than the mother proposed during that initial period until she turned three years of age. The primary judge found such orders were both in the child’s best interests and reasonably practicable to implement (at [120]).
The order in which the findings are set out in the said Reasons do not amount to a separation of issues. Confronted with the stark competing proposals – particularly after the child turned three years of age – the Reasons for Judgment read holistically and, in our view, adequately canvassed the evidence which militated in favour of the relocation and against relocation. The primary judge found it was in the best interests of the child to delay relocation to permit the further consolidation of the child’s relationship with the father, which could easily occur with the child living in Sydney with the mother until June 2022.
GROUNDS 3 AND 4
While Ground 3 contended for an error of principle, these two grounds were really complaints about factual and discretionary error. The father contended it was not open for the primary judge to be satisfied the appealed orders are “reasonably practicable” (Ground 3) and in reaching that conclusion he alleged the primary judge failed to have regard for or give sufficient weight to certain aspects of the evidence (Ground 4).
In support of these grounds, the father emphasised: the evidence given by the Family Consultant, the travel demands placed upon him by the orders, the effect of the orders upon the child’s relationships with him and other members of the paternal family, and the mother’s ability to financially sustain herself if living in Sydney.
In the Family Report, compiled in July 2020, the Family Consultant tentatively recommended that the child should live in Sydney so as to “support her relationship” with the father, though that provisional view must be contextualised. The Family Consultant also expressly referred in the Family Report to the prospect of the child moving with the mother to live in Victoria and, in cross-examination, readily agreed the child might “sail through all this without any particular difficulties” if she lives in Melbourne and the father remains in Sydney.
The primary judge said this in the reasons for judgment about the overall effect of the Family Consultant’s evidence:
59.In forming her opinions the consultant was entirely dependent on reports from each parent and she concluded within those limitations:
•[The child] was meeting her developmental milestones
•[The child] had established a relationship with each of her parents, but her primary relationship was with her mother
•continuing to live with her mother would likely enable [the child’s] health and secure relationships and support her development
•[The child] has spent consistent time with her father since the interim orders were made in July 2019 and this will if maintained assist [the child] in maintaining a meaningful relationship with her father
60.She was clear when cross examined that for [the child] to be able to continue to maintain a relationship with her father depends on the time she can spend with him.
61. [The family consultant] recommended:
•[The child] live with her mother
•[The child] spend at least 2 days per week with her father
•That the mother have sole parental responsibility
The orders made by the primary judge accorded with the tenor of the Family Consultant’s evidence – at least for the following 18 months, by which time it was expected the child’s relationship with the father would be better consolidated and the child more resilient to change. The Family Consultant’s evidence was directed to the interests of a child, not even yet two years of age, so it is readily understandable how her evidence was unlikely to bind the primary judge’s exercise of discretion for the entire remainder of the child’s minority.
The father complained of the “practicality and feasibility” of the travel requirements imposed upon him by the appealed orders, asserting they were unduly onerous. Of course, his regular travel to Melbourne to spend time with the child during school terms would be onerous, but the mother complained of the unreasonable burden she would bear if forced to indefinitely live with the child in Sydney. There was no easy solution. The considerations which influenced the primary judge to conclude the best solution was for the mother and child to live in Melbourne have already been addressed. By comparison, the father had the flexibility of self-employment by undertaking building developments (at [19]), he was developing other business interests in Brisbane which he could primarily manage from inter-state (at [20], [43] and [95]–[96]), and his income-earning capacity far exceeded the mother’s (at [51]). It followed that he was open to inter-state travel, likely had the financial capacity to afford it, and was not impeded from doing so by any regular employment commitments.
It is to be remembered that the primary judge was also required to consider competing property applications, and when he found as he did, that the father should retain 88 per cent of the pool of $1,433,384 (at [77]) and at the time of the hearing, the father’s current income was superior to that of the mother (who was in receipt of Centrelink payments), a conclusion that the father was in a superior financial position was well open on the evidence.
The father was critical of the primary judge’s conclusion that the mother could likely find paid employment in Melbourne (at [94]) and the implication she was unlikely to do so in Sydney, where she was in receipt of a parenting welfare payment (at [51]). The criticism is rejected because it ignores the reality of the mother’s primary responsibility for the child, not yet of school age, which responsibility she could not easily share with the father in Sydney but could relatively easily share with maternal family members in Melbourne. The maternal grandmother confirmed she could and would accommodate the mother and child in Melbourne (at [49]).
The father did not usefully elaborate the point about the child’s residence with the mother in Melbourne causing impingement of her relationships with him and members of the extended paternal family. It is enough to observe how the primary judge accepted the child would benefit from a meaningful relationship with him (at [87] and [92]), which relationship was still developing and will continue to do so quickly (at [90]), and after the elapse of 18 months their relationship will likely be strong enough to withstand less frequent interaction (at [110]).
It follows the primary judge was cognisant of and did not overlook the evidence which the father sought to emphasise. That such evidence did not tip the balance in his favour does not mean the evidence was not given sufficient weight. The orders made by the primary judge were reasonably open on the evidence and these grounds fail.
GROUND 5
This ground contains two components. First it is alleged the primary judge “erred in fact” by concluding the mother’s psychological state would improve if she could return to Melbourne, thereby enhancing her parenting capacity. Secondly, it was contended the primary judge gave excessive weight to the mother’s self-serving evidence on that point.
The primary judge said this in the reasons for judgment:
37.The mother says she is lonely, unhappy and feels unsupported living in Sydney.
38.The mother desperately wants to move with [the child] to Melbourne to live in her parents’ home, and by [the child’s] 5th birthday find part time work in her field of qualification.
…
93.It is submitted the mother’s parenting of [the child] would be enhanced by her moving to Melbourne and being “a happier parent”.
94.I accept the mother would be happier in Melbourne, there is little evidence, other than the mother’s own self-assessment about the impact of this upon her parenting. What is clear is she would have significantly more family support in Melbourne in parenting [the child] than is available to her in Sydney, given her “jaundiced” view of the extended paternal family and her estrangement as a consequence from them. This support together with the mother’s “happiness” will significantly benefit the parenting of [the child] and this will cause better development opportunities for [the child]. It will enable the mother to obtain employment and have family carers for [the child] before and after school.
…
100.There is no question that the mother is a now capable and child focussed parent. Her capacities will increase when she moves to Melbourne.
As can be seen, the primary judge was conscious that the evidence about the mother’s projected happiness living in Melbourne rather than in Sydney was entirely her “self-assessment”. But, contrary to the father’s implied submission, such evidence was not necessarily deprived of probative force merely because it was “self-serving”.
His Honour also had before him evidence relied upon by the mother, not the subject of objection or cross-examination, from the mother’s treating psychologist forming annexure “U” of the mother’s trial affidavit. The two reports dated 14 October 2019 and 8 September 2020 provide a diagnosis of mental health condition with high to severe levels of anxiety and stress and where, since her initial assessment “there appears to have been no improvement in her mental health condition. Rather, her levels of anxiety and depression appear to have increased in severity.”
The treating psychologist described as “Clinical Impressions” that:
Based on the assessment and consultations with [the mother], it appears that her anxiety and depression has been triggered by separation from her family and friends in Melbourne. This has been heightened by pressures of being a single mum in a state she is not familiar with. Her depression and anxiety has been heightened by her lack of support in Sydney and also separation from her family and friends who reside in Melbourne. The negative long term effects of living under such circumstances will increase with time and effect [the mother’s] parenting which will inevitably also effect [the child’s] wellbeing, welfare and safety.
(Mother’s affidavit filed 14 September 2020, Annexure “U”, p.3)
In any event, the mother’s evidence tended to be borne out by the views of the Family Consultant, who said this in the Family Report:
20.[The mother] reported that she has been diagnosed with a mental health condition by her treating psychologist around September 2019. …
…
37.[The mother] said that she would be distraught if Orders were made for [the child] to live in Sydney. She said that cannot imagine how she could cope, stating it is “so impractical” and she feels as though she is in “survival mode”. …
…
50.[The mother] reported that she has been diagnosed with a mental health condition arising from high levels of stress and anxiety caused by the parents’ separation and being socially isolated. [The mother] said that she commenced counselling with [her treating psychologist], in September 2019 to assist with stress management. [The mother] said that she tried to maintain a positive approach to life and engage in activities that support her positive mental health such as focusing on physical activity and remaining connected to her social support network. [The mother] said that she has not attended any counselling with [her treating psychologist] during the course of 2020. …
…
70.[The mother] has reported being diagnosed with a mental health condition as the result of the parents’ separation and feelings of isolation due to reported limited social support in her local area. Given the significant stressors associated with the breakdown of the parents’ relationship, the parents subsequent separation, and, the demands on [the mother] in caring for [the child] during early infancy, it would not be unusual for a parent in a similar situation to experience stress and anxiety and possibly develop a mental health condition. It would appear that [the mother] has been able to identify changes in her mental health state, access professional support and to implement strategies to assist her with managing stress and anxiety…[it does not seem] that [the mother’s] parenting capacity is currently impaired [by] her mental health condition.
…
72.[The mother] has identified concerns that her mental health state may be more significantly impacted if Orders are made for [the child] to live in Sydney. [The mother] spoke about the difficulties in caring for [the child], mostly alone, without the support of her family. If Orders are made for [the child] to live in Sydney, [the mother] stated that it would be her proposal that [the child] live with her. It may be that [the mother] would benefit from additional supports to manage such an arrangement, as it is likely to increase her mental health symptoms, at least in the short term. If [the mother] experiences a significant increase in symptoms of depression, anxiety and heightened levels of stress, and she does not appropriately manage these symptoms, then it is possible that this will have an adverse impact on [the child’s] wellbeing.
…
81.One of the key issues in this matter appears to whether the long distance support afforded to [the mother] by the maternal family is sufficient to support her in maintaining herself and [the child] in Sydney. It may be that [the mother] experiences an increased sense of isolation as she has reported a limited social base, and, in comparison to [the father] who has been able to rely on his family for support, has no family support close by. There may be some benefit to [the child] if [the mother] is able to move to Victoria, as based on [the mother’s] account, she has positive and established relationships and she would be provided with practical and emotional support in her parenting of [the child]. This may result in an improvement in [the mother’s] emotional wellbeing and limit the possibility of exacerbating any symptoms of depression and/or anxiety. …
(Family Report dated 13 July 2020)
(Emphasis added)
During the appeal hearing, the father’s counsel was impelled to concede the available evidence supported the finding made that the mother would be happier living in Melbourne, but he maintained the evidence did not support the extended finding that her “parenting of [the child] would be enhanced”. The submission is rejected. There was no factual error. The finding about the likely enhancement of the mother’s parenting capacity was an inference fairly drawn in the circumstances of this case from the underlying facts about her unhappiness in Sydney, her firm desire to live in Melbourne, her fragile emotional state, and the greater emotional and financial support she would receive in Melbourne. Those considerations were not dispositive but, quite unexceptionally, were influential.
This ground fails because there was no factual or discretionary error.
GROUND 6
This ground asserts the appealed orders encapsulate a result which is “manifestly unjust”, which contention is rejected in the face of the father’s concession that this ground must fail if all other grounds fail.
COSTS
Despite clear directions made by the appeals registrar on 8 July 2021, neither the appellant nor the ICL complied with Order 8, to file and serve no later than seven days prior to the first day of the appeal sittings, an itemised Schedule of Costs. The appeal having been dismissed, the only other party participating in the appeal, the ICL, did seek an order for costs.
The ICL required leave to seek costs quantified at $12,460.78 because of the non-compliance. However, it is important that carefully crafted orders made by the appeals registrar are complied with, and in the circumstances of this case, we are not persuaded leave to seek an order for costs should be granted to the ICL.
Accordingly, there will be no order for costs of the appeal.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Baumann and Williams. Associate:
Dated: 11 February 2022
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