Hannan and Hannan
[2008] FamCAFC 37
•2 April 2008
FAMILY COURT OF AUSTRALIA
| HANNAN & HANNAN | [2008] FamCAFC 37 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – Interim orders – CHILDREN – With whom a child lives – Relocation – Whether the Federal Magistrate gave sufficient reasons for his decision – The challenge on appeal is to the cogency of the explanation for the result and to the adequacy of content, namely, whether there has been a failure to address relevant considerations under the legislation – Appeal allowed |
| Family Law Act 1975 (Cth), Part VII, s 60CC |
| F and B [2000] FamCA 676 Smith v Smith (1994) FLC 92-488 |
| APPELLANT: | MS HANNAN |
| RESPONDENT: | MR HANNAN |
| FILE NUMBER: | NA | 11 | of | 2008 |
| APPEAL NUMBER: | TVC | 1371 | of | 2007 |
| DATE DELIVERED: | 2 April 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | WARNICK J |
| HEARING DATE: | 28 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 29 January 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 107 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr T Betts |
| SOLICITOR FOR THE APPELLANT: | Giudes & Elliott |
| COUNSEL FOR THE RESPONDENT: | Mr M Middleton |
| SOLICITOR FOR THE RESPONDENT: | McDonald Leong Lawyers |
Orders
That the appeal be allowed.
That Order 3 of the orders of Federal Magistrate Coker made 29 January 2008 be set aside.
That Order 4 of the orders of Federal Magistrate Coker made 29 January 2008 be varied by the addition of the following further sentence:
This order is interlocutory only in its operation which is confined to the period between 2 April 2008 and the date upon which any further application for interim parenting orders in respect of the children named in the orders of 29 January 2008 comes before a court having jurisdiction under the Family Law Act 1975 (Cth).
IT IS NOTED that publication of this judgment under the pseudonym Hannan & Hannan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA11 of 2008
File Number: TVC 1371 of 2007
| MS HANNAN |
Appellant
And
| MR HANNAN |
Respondent
REASONS FOR JUDGMENT
In late October 2007, Ms Hannan moved from Townsville in North Queensland with the two children of herself and Mr Hannan to [the town X], about one and a quarter hour’s drive south. The parents had separated in August 2006 and for the six months or so leading up to the mother’s move, the father, who lived in Townsville, had been seeing the children on alternate weekends.
Upon learning of the mother’s move, the father filed an application in the Federal Magistrates Court. On hearing the interim application on 29 January 2008, for reasons he gave ex tempore, Federal Magistrate Coker made orders, including the following:
(3)If the Mother is residing in Townsville the children live with each parent for a period of one week commencing with the Father at 3:00pm on Friday 1 February 2008 until 3:00pm on Friday 8 February 2008 and to alternate each week thereafter.
(4)If the Mother is not living in Townsville the children live with the Father from 3:00pm Friday 1 February 2008 and the children spend time with the Mother at all reasonable times as may be agreed and in particular each alternate weekend commencing on Friday 8 February 2008 from after school on Friday until before school on Monday.
The critical question in this, the mother’s appeal against the orders of Coker FM, is whether he gave sufficient reasons for the result. The challenge is both to the cogency of the explanation for the result and to the adequacy of content, namely, whether there has been a failure to address relevant considerations.
As the adequacy of reasons is connected with the nature of the proceedings and more especially the issues joined in them, I will deal with the arguments by addressing:
(a)a summary of the material before the Federal Magistrate;
(b)the Federal Magistrate’s reasons and their adequacy;
If I find appellable error, I will consider what course to then take.
The Notice of Appeal states that all orders are appealed, but the argument has only attacked the orders set out above. The first two orders were for equal shared parental responsibility, about which the parties agreed before Coker FM. Other orders were procedural, for the purpose of advancing the application for final orders to trial.
Mr Middleton, counsel for the father, stated that he relied upon the material filed in support of an application by the mother for a stay of the orders appealed, and that filed in response by the father, but he had no formal application before the Court that it receive further evidence and did not argue why it ought be received. Much of what was contained in the affidavits filed in respect of the stay confirmed what Mr Betts told me of events post 29 January 2008.
I see nothing in the further material which would alter my conclusions.
Mr Middleton also raised a failure of the mother to declare in her material before Coker FM on 29 January 2008, that she had received a property settlement of $42,000.00 in 2007. He argued that thus her reliance on financial circumstances as justification for the relocation was questionable. Without more, I would not so conclude.
(a) Summary of material before Coker FM
Only the parents were deponents to affidavits put before the Federal Magistrate.
The two children of the parties are Shannon, born in April 2000 and Jason, born in August 2002. In his initiating application, the father sought that the children live with him on a week-about basis and, until the mother returned to Townsville and had appropriate accommodation, the children live with him and spend each weekend from 5.00pm Friday to 5.00pm Sunday with the mother.
According to the father’s material, separation occurred on 16 August 2006. In the months following, the father saw the children almost daily on his way home from work and he spent time with them on weekends. The father moved back into the home, though continuing to live separately from the mother, at about Christmas 2006 and remained there until the end of April 2007. After that, he saw the children on alternate weekends.
The parties entered into mediation in the later part of 2007. The father said that during mediation, he was seeking that the children spend equal time with him but that this was not agreed. During that time, the mother informed the father that she wished to relocate to [another town] with the children, but the father did not agree. Nonetheless, as seen, the mother relocated with the children on 29 October 2007 and the father promptly brought an application.
The father said that he was 33 years of age [and was employed]. He had a “new partner” who lived with him. She was four months pregnant with the child of the father.
In 2007, Shannon was in Year 2 at [B] State School. Jason attended day care. The father worked 7.00am to 5.30pm Mondays to Thursdays, 7.30am to 3.30pm Fridays and 7.00am to 1.00pm Saturdays on two weekends a month. He proposed that his partner would care for the children when he was not available. He did say that he would “if necessary…change my employment where I can be home with the children.” The father deposed that the mother’s relocation would result in the children not being able to spend the time with him that he was seeking. However, there was little comment by the father as to what the impediment was to him spending whatever time he wished, though he did mention there would “obviously be some expense relating to travel”. The father also deposed:
The children also have a loving and close relationship with [Ms Hannan] as she has been the children’s primary carer since they were born.
In her response, the mother sought that the children live with her and spend time with the father each alternate weekend, 4.00pm Friday to 4.00pm Sunday, for half of the school holidays and have telephone communication.
The mother’s material disclosed that she was on a pension and received family benefit payments. She had assets of $16,570.00.
The mother said that after the final separation, the father would drop in most afternoons after work to see the children but sometimes the visits were as brief as two minutes. He saw the children nearly every Saturday, during which the family would go out together.
The mother deposed that her move did not affect the agreed time that the father was to spend with the children, namely, alternate weekends and school holiday periods. She described the circumstances which led to her relocation. She was unable to renew the lease she had with the new owners of the former matrimonial home and she had sought rental accommodation, but was unable to find adequate accommodation at a price she could afford. She was also struggling to find “more permanent employment”.
The mother then deposed to “the children’s best interests”. She described how Shannon was in Year 3 at [E] State School, was an above average student and had settled well into her new school. She had made a number of friends there and joined a Brownies Unit. Jason was enrolled in prep-year at [E] State School. He had a slight speech delay and the mother deposed that at [E] State School he would benefit from smaller class sizes and one on one help for his speech delay. The children had been enrolled in private swimming lessons. They spent a lot of time with their cousins, the children of the mother’s brother and his wife.
The mother deposed that since the start of November 2007 she and the father had arranged that he would drive to [the town X] and pick up the children every second Friday afternoon and the mother would collect the children from Townsville every Sunday afternoon. She said she believed that arrangement had been working well.
(b) The adequacy of the Federal Magistrate’s reasons
After stating the parties’ positions, the learned Magistrate referred to the paramountcy of the welfare of the children and to a few sections of Part VII of the Family Law Act 1975 (Cth), but in a rather general and summary way.
He dealt with a stated concern of the mother arising from the father’s heavy smoking and an asthmatic condition suffered by the child Jason and dismissed the matter as of no real concern.
He then said:
13.What then remains of course when one considers the primary considerations is the children's right to a meaningful relationship with both parents. …
The learned Magistrate stated that he was satisfied that the parties’ proposal for equal shared parental responsibility was appropriate and recognised that he must then consider whether equal time with each parent would be in the children’s best interests and, if not appropriate, whether substantial and significant time would be in those interests and was reasonably practicable. He next said:
16.Quite clearly it is in the children's best interests that they should have the opportunity for a meaningful relationship with both of their parents. The mother says that that simply is not able to be properly put into effect because of the fact that she, because of financial considerations, is living in [the town X], a distance of an hour or mores travel away. I am mindful however, as I must be, of the fact that the mother was made clearly aware of the father's objection in relation to relocation.
17.The parties may have attended mediation and been unable to reach agreement, but what is abundantly clearly is that there was a proper course to follow. In fact, the mother was made aware of the fact that there was a proper course to follow. She acknowledges in her own material that she was advised not to make the move and yet subsequently, and it would appear virtually on the day that the move was to occur, notification was given by way of correspondence forwarded from her solicitors to the father, of the fact that the move was to be made.
There is I think in these paragraphs some looseness of expression. The learned Magistrate refers to the mother as saying that the opportunity for a meaningful relationship with both parents was simply not possible. This the mother had not said. As seen, she mentioned that the contact upon which the parties had once agreed was successfully taking place. Though Coker FM said that the mother asserted that a meaningful relationship was not possible, in context of the surrounding discussion, it seems that the Federal Magistrate was really addressing the prospect of equal time with each parent and the mother’s attitude to that. In any event, having so commented, the learned Magistrate turned to focus on the propriety of the mother’s move in the face of the father’s objection. He continued to discuss that in the following paragraphs saying:
18.… She moved precipitously and she moved without the father's knowledge. She explains, in the correspondence that was forwarded, that although she had been actively looking for rental properties in the same price range she is currently renting, she has been unable to find any such property to rent.
19.It goes on. Therefore she has no option but to move to [the town X] where she has the support of family and also the added benefit of lower rental than in Townsville. All of that may be correct, but the greater consideration and the paramount one that is always before this Court is, of course, the children's right to, as is set out in section 60CC(2), a meaningful relationship with the father. (emphasis added)
20.The mother's actions preclude that from occurring. It may be that the father was, for a period of six months or so, only having time with the children on alternate weekends but the past is by no means the determinant of what must happen in the future. The parties were in mediation. They were, at least from the father's perspective, seeking to move toward more liberal time with the children. The law says that that must be the consideration of the Court and there is no basis upon which I would consider that that should not be the appropriate course to follow, in relation to the matter.
Again, there seems to some inaccuracy in the terminology used in these paragraphs (I refer to the highlighted remarks) and a return to focus on the propriety of the mother’s behaviour.
In paragraphs 21 and 22, the learned Magistrate refers to a position struck by the mother, in relation to a swap of a weekend contact, at the request of the father, and again is critical of the mother:
22.The mother cannot have it both ways. She cannot fail to a consent in relation to arrangements with regard to weekends and yet then demand that her wishes, unilaterally made in relation to arrangements with regard to where she should live, should abide. I am not at all satisfied that there was not an alternative arrangement that might possibly have been made. It may not have been the most convenient, but the overriding consideration is the welfare of the children and their right to a meaningful relationship with both parents. The mother's actions preclude that.
At this stage, the learned Magistrate had not considered:
·the history of parenting arrangements;
·whether a meaningful relationship between father and children (as opposed to either equal sharing of care of the children or substantial or significant time with the children by the father) was still available if the children lived in [the town X];
·the practicality of any arrangements proposed by the parties, or open on the evidence, for the father to spend regular (quite possibly, substantial and significant) time with the children, though they remained in [the town X];
·the impact of any possible arrangements on the maintenance of a meaningful relationship or promotion of a meaningful relationship, between the father and the children;
·specific s 60CC factors, such as the relationship between the children and the mother or, the likely effect of change in the children’s circumstances.
Notwithstanding this, he concluded his reasoning in three further paragraphs:
23.I am mindful, obviously, of the other matters set out as additional considerations in section 60CC(3) and, of course, considerations with regard to the move. In particular, of course, the mother has, along with the children for some three months, now been residing in [the small town]. The older of the two children, [Shannon], has attended school and [Jason] is commencing today prep school or the equivalent.
24.The fact is, however, is that the father's objections were known. They were recorded from the very beginning and because of the work load before the Court it was impossible for it to be dealt with more quickly than has now occurred. The mother has acted unilaterally. The consequences of the actions fall upon her and no one else. It was inappropriate in the extreme that she acted in the way that she did. It would be inappropriate in the extreme for the Court to allow the unilateral actions to stand particularly when, in my assessment, there is nothing that would preclude the father from being very significantly and appropriately involved in these children's lives.
25.I intend, for those reasons therefore, to make orders with regard to the children's residence in Townsville. I note the indication is given to the effect that the mother would, notwithstanding difficulties associated with her doing so, return to Townsville. As I indicated, the fact that she may have difficulties returning from [the town X] is as a direct result and solely as a result of the actions taken by the mother contrary, it would appear, contrary to indications and advices given to her.
Again, the focus of these comments is on the inappropriateness of the mother’s actions. While Coker FM refers to the then current arrangements having been in place for three months and there being “nothing that would preclude the father from being very significantly and appropriately included in the children’s lives”, there is no discussion of the weight to be given to these factors, as against other relevant factors, such as those earlier mentioned as absent from the reasons.
It does seem that the learned Magistrate might have thought that the mother would return to Townsville and so, on the orders that he proposed, care of the children would be equally shared. In those circumstances, he may have felt it was unnecessary to say much in support of the order that the children live with the father until the mother’s return. But in the absence of a specific finding that the mother would return, the basis upon which Coker FM proceeded is not clear.
I am mindful that the application was one for interim orders only and the judgment was given ex tempore. Nonetheless, it is essential that each party, particularly the losing party, and the Appeal Court, be able to trace the path of reasoning by which the result was reached. In my view, the apparent primary reason for both the order that if the mother lived in Townsville, care of the children be shared week-about between the parents, and the order that if the mother did not return to Townsville but remained in [the town X], she have contact only each alternate weekend (whereas the father proposed each weekend) is the Federal Magistrate’s view of the improprietry of the mother’s unilateral move to [the town X] in the face of the father’s opposition. Insofar as the argument is that the reasons disclose that the orders were made so that the children would have a meaningful relationship with the father, the answer is that, notwithstanding that a primary consideration is that it is in children’s best interests that they have a meaningful relationship with both parents, if other relevant factors are present, as they were here, they must be considered.
In Smith v Smith (1994) FLC 92-488, the Full Court said (at p 81,084):
…The Court is required, as provided in s. 64(1)(bb), to consider any wishes expressed by the child as therein set out, to have regard to the provisions of s. 64(1)(ba) and to take into account the matters referred to in s.64(1)(bb). In our view, in discharging that obligation, the preferable approach to be adopted is to consider each of the matters referred to in the section separately and having regard to the evidence touching upon each of those matters make findings in relation to them. In the course of this exercise, the trial Judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.
In F and B [2000] FamCA 676, at paragraph 109 the Full Court said:
Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in 68F(2) of the Act, which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant maters arising under s 68F(2).
The behaviour of the mother might readily enough explain an order that, as an interim arrangement, she return to Townsville with the children, though even then, all other considerations relevant to the best interests of the children would require a patent consideration. But it is difficult to see, without a clear connection being forged between the behaviour of the mother and her parenting capacity, how that behaviour of itself explains either the order for equal parental care or the order that the mother have but alternate weekend time with the children if she did not return to Townsville.
In my view, if the path of the learned Magistrate’s reasoning was that which I have described, it is not apparent that Coker FM has properly applied the terms of Part VII of the Act. Essentially, there is no sufficient explanation of why each of orders 3 and 4 is in the children’s best interests.
Thus a proper path of reasoning is not discernible.
Accordingly, in my view appellable error has arisen.
Re-exercise or remission
I am advised by counsel that the children were returned to the father in Townsville in accordance with the orders, but that the mother has remained in [the town X] and sees the children each alternate weekend. Shannon has returned to [B] Primary School in Townsville. I am further advised that a final hearing might take place in August/September this year, possibly later, but very unlikely to be earlier.
Thus, the children were moved at the end of October 2007 and enrolled in new schooling or care arrangements. They moved again at the beginning of February 2008, albeit returned to familiar arrangements. I am very reluctant to embark upon a consideration based on the material that was before the Federal Magistrate, albeit his decision was only two months ago, when that decision might lead to yet a further move, which, in turn, might ultimately be reversed in four months or so. I would want to hear of the children’s adjustment and the mother’s reasons for her decision to stay in [the town X]. If the father’s proposals have been put into effect, his new partner is likely to have been the primary carer for the children especially the younger of them, for the last two months. I would like material from her.
New material might be contentious. While an available course is to give the parties the opportunity to file further material, there are some undesirable aspects of an Appeal Court determining issues of fact at first instance, particularly when the only avenue of appeal from me is by way of application for special leave to the High Court of Australia. An added practical concern in this case is that I would not be in a position to consider any further material until May, by which time another month will have passed.
In the circumstances, I have decided to set aside order 3 of the Federal Magistrate’s orders and to vary order 4 to provide that it be limited in its operation to that of an interlocutory order, operative between the date of my order and the date upon which any further application for interim parenting arrangements in respect of the children comes before a court having jurisdiction under the Family Law Act 1975 (Cth).
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 2 April 2008