HEATON & HEATON
[2015] FamCAFC 61
•24 April 2015
FAMILY COURT OF AUSTRALIA
| HEATON & HEATON | [2015] FamCAFC 61 |
| FAMILY LAW – APPEAL – FURTHER AMENDED NOTICE OF APPEAL – CHILDREN –Where the primary judge had the requisite power to make the parenting orders under s 65DAA(5) of the Family Law Act 1975 (Cth) – Where the primary judge considered the jurisdictional facts and found the proposed orders were in the children’s best interests and were reasonably practicable per MRR v GR (2010) 240 CLR 416 –Whether the primary judge made orders that satisfy the requirements for substantial and significant time as required by s 65DAA(3) – Whether the primary judge considered all of the available options and gave adequate reasons for the orders – Whether the primary judge erred in fact and law in making orders for the children to relocate with the mother – Where it was argued the primary judge ignored some evidence – Where each case turns on its own particular facts and circumstances per Eddington and Eddington (No 2) (2007) FLC 93-349 – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAA(3)(a)(i) and (ii), 65DAA(5), 117(1), 117(2), 117(2A) |
| Eddington and Eddington (No 2) (2007) FLC 93-349 G & C [2006] FamCA 994 Gronow v Gronow (1979) 144 CLR 513 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 U v U (2002) 211 CLR 283 |
| APPELLANT: | Mr Heaton |
| RESPONDENT: | Ms Heaton |
| FILE NUMBER: | NCC | 1835 | of | 2010 |
| APPEAL NUMBER: | EA | 130 | of | 2014 |
| DATE DELIVERED: | 24 April 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace & Le Poer Trench JJ |
| HEARING DATE: | 19 March 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 September 2014 |
| LOWER COURT MNC: | [2014] FamCA 761 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Graham |
| SOLICITOR FOR THE RESPONDENT: | Tony Cox Lawyers & Conveyancers |
Orders
The appeal is dismissed.
The appellant father pay the costs of the respondent mother of and incidental to this appeal, such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Heaton & Heaton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 130 of 2014
File Number: NCC 1835 of 2010
| Mr Heaton |
Appellant
And
| Ms Heaton |
Respondent
REASONS FOR JUDGMENT
Mr Heaton (“the father”) appeals against final parenting orders made on 5 September 2014 by Hannam J. The orders concern the parties’ two children, E born in 2004 and J who was born in 2005 (“the children”).
It was argued in this appeal that the primary judge had failed to properly engage with the statutory conditions necessary to make such orders and failed to give adequate reasons for her decision.
The orders the subject of this appeal provided:
(2)The parents are to have equal shared parental responsibility for the children and are to confer with each other as to decisions concerning the long term care, welfare and development of the children, including but not limited to, their education, religious and cultural upbringing, health, name and any further proposed changes that make it significantly more difficult for the children to spend time with a parent.
(3)The children are to live with the Applicant mother.
(4)The children are to spend time with and communicate with the father as follows:
(a)During the school term on two weekends, being at the end of week three and week eight from 6.00 pm Friday until 4.00 pm Sunday with the mother to deliver the children to and collect the children from the McDonalds Family Restaurant at [Town H], at the commencement and cessation of each such period.
(b)At any time in [Town P] that the father is able to facilitate, provided the father gives to the mother fourteen (14) days’ notice of the intention to exercise such time.
(c)For one half of each New South Wales Gazetted school term holiday period at the conclusion of term 1, term 2 and term 4 as agreed or failing agreement the first half in odd numbered years and the second half in even numbered years.
(d)For all of the New South Wales Gazetted school holidays for the period at the conclusion of term 3.
(e) For the purposes of time in holidays under (c) and (d), changeover is to occur at the McDonalds Family Restaurant at [Town H].
(f)The father is to have liberal telephone communication with the children as agreed between the parties.
(g)At other times by mutual agreement.
The respondent, Ms Heaton (“the mother”) resisted the appeal and sought to maintain the original orders.
After the making of the orders, the children moved to reside in Town P with the mother. For some time previously, the children lived in a “week about” equal time arrangement in Sydney with their father caring for them in the family home. In the other week, the mother travelled from Town P and cared for the children in a serviced apartment near the family home.
It is useful to briefly consider the litigious history of this matter as this will explain the various parenting arrangements the children have experienced and the significance for the children of the final orders.
History
The parties met in 1997 in Town P and were married in 2000. After the marriage, the parties moved to Sydney. In or around October 2009, the parties separated but lived under the same roof. They remained living in those circumstances for almost three years. The mother continued to be the primary carer for the children as she had during the marriage.
In July 2010, the mother filed an Initiating Application.
In about March 2011 the mother commenced a relationship with Mr T who lives in Town P. He is now her partner.
In July 2011, the hearing of the first trial in these proceedings commenced and was adjourned part-heard to December 2011. During the period of the adjournment the children were cared for in their home and the parents moved in and out on a weekly basis to care for them in an arrangement known as a “nesting order”. The hearing continued in December 2011 and was then adjourned for judgment.
Final orders were made on 23 March 2012 in respect of both parenting and property proceedings. As a result of these orders, the mother moved out of the family home in July 2012. The orders provided that the parents had equal shared parental responsibility, and if the mother lived within a 15km radius of the school, the children were to live with their mother and father each alternate week.
In the week with their father the children lived in the former matrimonial home and when with their mother in a serviced apartment sufficiently proximate to their family home so they could attend school. The mother otherwise lived in Town P.
The mother appealed against the parenting orders and on 23 August 2012 the appeal was allowed. The matter was remitted for rehearing in the Federal Circuit Court, but was subsequently transferred to the Family Court.
Following the appeal, the “week about” equal shared parenting arrangement continued until the re-hearing.
The primary judge made orders on 5 September 2014 for equal shared parental responsibility for the children, with the children to live with the mother in Town P and the father would remain living in Sydney.
On 24 October 2014, the father filed an application in an appeal for the expedition of the hearing of the appeal. On 21 November 2014, Ryan J expedited the appeal.
the primary judge’s reasons for judgment
The primary judge commenced the reasons with a consideration of the “competing proposals” of the parents. It was acknowledged that each of the parents wished to continue equal shared parental responsibility for the children [25].
A central issue for the judge was the importance of maintaining a meaningful relationship between the children and both parents.
The mother proposed the children relocate to Town P to live with her and spend time with the father during the school term in both Town P and Sydney, and also any time the father is able to travel to Town P [28]. The mother indicated that in the event the children were not permitted to relocate to Town P, she would move to live in Sydney [29].
The father proposed the mother should be restricted from relocating to any place outside the children’s present schools’ catchment area and that the “week-about” arrangement in Sydney with him and the mother continue [30].
The primary judge considered the framework for dealing with parenting issues by reference to s 60B of the Family Law Act 1975 (Cth) (“the Act”).
A considerable portion of the judgment [37]-[98] worked through the requirements in s 60CA and s 60CC in order to determine the best interests of the children.
The primary judge commenced the examination of these sections by determining whether the children would have the benefit of a meaningful relationship with both of their parents under each of the proposed orders. After analysing the authorities of McCall & Clark (2009) FLC 93-405 and G & C [2006] FamCA 994, the primary judge concluded there was no doubt that a meaningful or significant relationship with each of the parents would continue to advantage the children.
The judge was mindful that the Family Consultant did report that under the mother’s proposal there was a risk the children’s relationship with the father could be compromised, “…particularly if [the father] were to lose touch with the day to day details…”. The Family Consultant balanced this view and reported that in this case, “…separation from either parent is less critical…as long as both parents support their relationships with the other parent and recognise them as important (which these parents seem to do).”
At [42]-[47] the primary judge considered the evidence of the parties. It was found that the father was heavily involved in the children’s day-to-day lives and had a flexible job that allowed him to make up his work hours in his “off” week. The father was unable to demonstrate under cross-examination any reason that would prevent him from being able to regularly travel to Town P [43]-[45]. Significantly, the mother had already demonstrated over the past two years that it is possible for a parent to live in a different location to the children but parent them successfully.
Consequently, the primary judge found:
49.In this case, although it may be that there will be some diminution of the quality of the relationship between the father and the children should they relocate to [the Mid North Coast], having regard to the particular proposal, the father’s capacity to travel regularly to [Town P] and participate in a range of the children’s activities and these children’s personal attributes and experience, as outlined above, I am of the view that a meaningful relationship between the father and the children will continue to be maintained in these circumstances.
The primary judge having found there was no suggestion of abuse, neglect or family violence [52], went on to consider the children’s views.
The Family Report noted that each child was alive to the preferences of the mother and father respectively [55]. Each child spoke positively of spending time in Town P and of living in Sydney and neither child was opposed to living in Town P [56].
Both children expressed views about the “week about” arrangement, with the child E describing it as the most difficult aspect about her parents’ separation:
46.…and the current week about arrangement is being a part of two households and having to repeatedly adjust to the different pattern of care each parent provides. [The child E] said that the constant moving back and forth between two households sometime [sic] leaves her feeling like she has “no home”. Nevertheless, whilst saying that she does not like the constant “moving”, [E] also said that the current arrangement is good because she gets to see and spend time with both parents, equally. In this regard whilst [E] is “very very very very very sick of it” (“it” being the week about arrangement) she things that the parenting arrangement should stay the way it is…
The child J expressed that it would feel “…‘good, actually great’ were the Judge to leave things the way that they are now” when describing the current week about arrangement. J also expressed some discontent, “…saying that he often feels like he is in a washing machine going “forward [and] back, forward [and] back”. J suggested two consecutive weeks with each parent might help him to cope better.”
Despite the father arguing that no significant weight should be attached to the children’s views about negative aspects of equal shared care, the primary judge found:
61.In my view, the most informative aspect of the children’s views in this matter is their description of their subjective experience of one of the proposals, that of equal shared care between two households. Having regard to the children’s ages and obvious intelligence the expressions of their experiences are likely to be reliable. Despite her negative expression of the arrangement [E] nonetheless felt that the parenting arrangement should stay the way it is, whereas [J] suggested that two consecutive weeks with each parent might help him cope better. In other words, although the children still expressed support for a shared care regime, they did not resile from the criticisms about it.
62.… I attach significant weight to the views expressed by the children about their experience of this parenting arrangement. I also attach some weight to their views about each of the parent’s proposals, but in light of the evidence of the Family Consultant that these children are attempting to broker a peace between the parents as they do not wish to be disloyal or make either of them unhappy, I attach less weight to this aspect of their views.
The primary judge found each of the children have a secure and well-developed relationship with each of their parents and extended maternal and paternal families, and Mr T who is the mother’s partner [63].
The primary judge then examined the willingness and ability of each parent to foster a close and continuing relationship between the children and the other parent.
The view of the Family Consultant was that despite “…the tension between them as was at times palpable...they both demonstrated the ability to contain themselves and remain focused on the children.”
The primary judge found that both parents showed an ability and willingness to support the continued relationship the children have with each parent [68]. As to the mother, the primary judge remarked:
67.The mother has, initially through her own choice and later as a result of court orders, endured an arrangement which she regards as less than ideal from her personal perspective for almost five years. Despite her personal unhappiness there is no evidence to suggest that she has sought to undermine the orders in place and through these arrangements the children have been able to have a continuing and close relationship with both parents and both have been involved in the children’s every day care. The change to the mother’s proposal in the course of the hearing so that the father can be involved in the care of the children whenever he is able to travel to [Town P] demonstrates in my view, a continued commitment to supporting the relationship between the children and the father.
The judge then considered the likely effect of any change in the children’s circumstances, noting that this consideration was the most salient of the best interest considerations in the matter [70]. The father argued strongly that his proposal amounted to the least change for the children, however, the primary judge considered the overall context of the proposed orders in assessing such changes.
The primary judge returned to the mother’s situation: she had been unhappy with the equal shared care arrangement for many years. For a period of at least two years, the mother travelled to Sydney each alternate week to care for the children in what was, no doubt, a significant impost on her ability to lead a normal life.
The mother indicated that if it was ordered the children were to remain in Sydney, she would move there. The mother had investigated buying a home in areas located in greater western Sydney. However, the mother has no family support in Sydney and indicated she would be unable to afford to buy any property in the inner-western area, where the children at the time went to school.
The primary judge concluded that any order which effectively required the mother to reside in Sydney, including the father’s equal time proposal, could also amount to a significant change for the children and may be detrimental to them:
76.…If the mother cannot afford to rent or buy a home within reasonable proximity to their current home, they may be required to change schools and would lose the essential advantage of such an arrangement. If the mother were able to find accommodation near [Suburb C], she would be most likely required to find full-time employment for financial reasons. If this involved her working outside of school hours she would not be available to care for the children during that time. As the mother has no extended family available to assist she may be required to obtain formal care which would not only be an added expense, but the children would lose the advantage of their mother caring for them.
(emphasis added)
It was acknowledged by the primary judge that the proposed orders of the mother would involve a great deal of change for the children; requiring them to move cities, change schools and form part of a newly blended family with the mother’s partner and his child [78]. Further, it would undoubtedly result in the children experiencing sadness and loss with the reduction in time with their father [80].
These issues were balanced with the advantages of orders resulting in one home for the children thus eliminating the negative aspect of constant change in housing and different patterns of care each week. Further, the move allowed the mother greater financial freedom and enables her to be actively present and involved in all of the children’s school and after school activities – something she possibly could not afford to do if required to move to Sydney [79].
The primary judge remarked, no doubt based on the opinion of the writer of the Family Report, that the success of any arrangement will be dependent upon the adults’ behaviour [81]-[82].
The judge considered the practical difficulty or significant expense in spending time with and communicating with the other parent. The mother suggested the parents should share some of the expense associated with the children’s time with their father [84]. Although the father had not explored the cost of regular travel to Town P, it was not suggested on his behalf that he was impeded on the basis of expense or practical difficulty [85]. Conversely, the mother raised real issues of the expense for her of living in Sydney [86].
The primary judge reviewed the capacity of each of the parents and any other person to provide for the needs of the children. She found that both parents have demonstrated great capacity to provide for the children’s needs to date and have remained focused on their needs in difficult circumstances [87].
The primary judge came to the considerations under s 61DA of the Act and found that an order for equal shared parental responsibility would be made.
The judge rejected the father’s alternate proposal that the children live with him if an order for equal shared care arrangement was not made. Under the week about arrangement, the father made up his working hours in the alternate weeks when the children were not in his care, and said that he had, in the past relied on his family to assist with the children when his work commitments required it and he would need to do so in the future [90].
The father argued that his proposed orders, namely that the children spend week about with each parent, were in the children’s best interests and were reasonably practicable. The mother’s position was that such an order is not in the children’s best interests or reasonably practicable [101]. The judge returned to the children’s views of the shared parenting arrangement, noting the Court had actual evidence about the children’s subjective experience of an arrangement under consideration and that significant weight should be attached to their description of that experience [105].
The primary judge remarked:
107.I accept the submission made on behalf of the mother that the circumstances in which the equal time arrangement came about were such that they were imposed upon the mother in particular, rather than chosen by the parents due to the agreed advantages of such an arrangement. The circumstances in which the equal time arrangement came about included the initial decision the parents made to continue to jointly parent the children in the former family home while separated, and was followed by the “nesting order” made by the Court during the adjournment of the last proceedings. Ultimately the equal time arrangement that was ordered following the first proceedings continued, even though the mother was successful in her appeal and a re-hearing of the parenting proceedings was ordered.
108.I am of the view that although the combined qualities of the parents has resulted in well-adjusted children who have a strong and loving relationship with each of them, this is attributable to each of the parents having played an active and committed role in the care of the children, rather than to the actual form of the parenting arrangement itself. When particular regard is given to the actual experience of the children under this form of parenting arrangement I cannot conclude that an order for the children to spend equal time with each of their parents is in the best interests of these children.
Having concluded that equal time was not in the children’s best interests, the primary judge went on to consider if it would be in the children’s best interests to spend substantial and significant time with each of the parents.
The judge considered the history of the children’s care experiences, the nature of the relationship with each of the parents and the children’s views of equal parenting arrangements and found it was in their best interests to spend substantial and significant time with each of their parents [111].
The primary judge found that the disadvantages associated with an equal time parenting arrangement would not arise where the children live with one parent and spend substantial and significant time with the other. The mother’s proposed orders were the only orders that provided for this arrangement [112]. Relevantly, the judge found:
113.In this case, the proposal of the mother for the children to live with her in [Town P] and for their father to spend time with them in [Town P] and Sydney during term time and for more than half of the school holidays is the only order proposed by the parents that provides for this arrangement. It is not proposed under this scenario that the children spend time with their father on a consistent particular non-weekend day. However, given the flexibility the father has in his working arrangements, and the mother’s proposal that the children spend time with their father whenever he is able to visit [the Mid North Coast], combined with the father’s clear desire to attend the extra-curricular activities in which the children will be no doubt involved, the mother’s proposal will allow for an arrangement that fits within the definition of “substantial and significant time”.
It is of significance that the father made no submissions that the mother’s proposal would not be reasonably practicable [114]. In any event, the judge made her own assessment that they were reasonably practicable.
At [115]-[118] the primary judge went on to consider other alternatives that could give effect to the children living with one parent and spending substantial and significant time with the other, such as:
·the children live with the father in Sydney and spend substantial and significant time with the mother; or
·the children live with the mother in Sydney and spend substantial and significant time with the father.
It was found the father did not have the capacity to have the children live with him full-time and to care for them without significant input from his family members [116].
The mother had previously submitted that she could reside in Sydney if required to do so [117], so the children could reside with her and spend substantial and significant time with the father. The judge remarked that the mother’s opposition was “…so entrenched that she did not put forth sufficient evidence…” for the judge “to conclude either of the scenarios was not reasonably practicable”. Therefore, the primary judge found that both of the alternatives would be reasonably practical [118].
In the appeal, for the father, particular attention was paid to her Honour’s conclusions in the judgment and we will set those conclusions out in full:
119.The children in this matter have found themselves the subject of orders that they have had to live with, but which are not entirely satisfactory. Although the equal shared care arrangement was able to be managed due to the cooperation between the parents, it is not an arrangement that was arrived at by consensus but rather evolved in circumstances not necessarily of the parents’ choosing over a number of years. It is tempting to conclude that despite their differences, due to the level of cooperation between the parents, the children have managed well as a result of this arrangement and it, therefore, should continue. However, the Court must craft orders that allow for the best interests of the children to be met having regard to all of the relevant best interest considerations.
120.In this matter the primary consideration of the children receiving the benefit of a meaningful relationship with both of their parents is of great significance. The nature of the relationship the children share with their parents and other family members, their views about the time they wish to spend with each of their parents and their experience of the shared care arrangement, together with the likely effect of a change in circumstances upon them are all important additional considerations.
121.For the reasons given, I am of the view that orders that provide for the children to live with one parent and spend substantial and significant time with the other will most appropriately meet their best interests… Although I accept the opinion of the Family Consultant that any of the proposed suite of orders will have some impact upon the children in my view there are greater advantages and fewer disadvantages for these children under the orders proposed by the mother than as proposed by the father or as arising from the circumstances.
grounds of appeal
The father relied on a Further Amended Notice of Appeal filed 13 March 2015 containing four grounds of appeal:
1.The Court below erred in making order 4 as to the time the children are to spend with and communicate with the father in that such orders do not give effect to the intention of the Court, expressed at various places (including paragraph 111) that it was in the best interest [sic] of the children to spend substantial and significant time with each of their parents.
2.That her Honour erred in failing to properly consider all of the available options available in the best interests of the children
(a constructive failure to exercise jurisdiction) and erred by failing to provide adequate reasons in an appellate sense for the orders made.3.Her Honour erred in the exercise of discretion and made a number of errors of fact and law (including a lack of reasons) in permitting the mother to relocate the residence of the children to [Town P].
4.That the Court below lacked the power to make the parenting orders it did as there was not any or any proper consideration of s 65DAA(5) and the jurisdictional facts required were not found to have existed.
It is convenient to commence the discussion with ground four of the appeal. If the lack of jurisdiction argument succeeds it would render it unnecessary to consider any other grounds.
Ground 4 – That the Court lacked the power to make the parenting orders
The father argued that the court lacked the power to make the parenting orders, as there was not any or any proper consideration of s 65DAA(5) of the Act and the jurisdictional facts required were not found to have existed.
It was argued that lengthy submissions were made on behalf of the father at trial “…as to the difficulty confronting the Court in finding the jurisdictional facts necessary to found an order for substantial and significant time…[and] no treatment of those matters can be found in the judgment” as required by MRR v GR (2010) 240 CLR 461 (“MRR v GR”) (Father’s written submissions 22 December 2014, [50]-[51]).
Section 65DAA(5) of the Act provides:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In MRR v GR, the High Court held that the power to make an order pursuant to s 65DAA(1) was conditioned on a finding that the proposed order is in the child’s best interests and that to make such an order is reasonably practicable.
It was contended that her Honour did not make the findings of fact necessary to enable her to make the order as to the children spending substantial and significant time with the father.
We have already looked at those parts of the reasons where the primary judge found that it was in the best interests of the children for them to spend substantial and significant time with each of their parents [111]-[118].
In analysing the practicability of such orders, the judge said:
114.It has not been submitted that the mother’s proposal would not be reasonably practicable. Although the father had not given much thought to the details of the mother’s proposal and attempted under cross-examination to suggest that the uncertainty of events would make it difficult to plan several months ahead, he was unable to give details of this difficulty and his employer said that nature of the job allowed for the father to plan well. Ultimately it was not submitted on his behalf that the proposal was not reasonably practicable. As stated, the father earns a good income and has no other obligations or commitments which interfere with his flexibility to make himself available to travel to [Town P] regularly…
Section 65DAA(5)(a) provides that in determining whether orders are practicable, the Court must have regard to how far apart the parents live from each other. It is clear from reading her Honour’s reasons that she considered the issue of the distance between the parties’ residences in coming to her determination. Her Honour outlined in the course of her reasons the different modes of transport available to the father to visit the children, namely, flying to Town P or driving. Her Honour also found that it was not suggested that the father was impeded from regularly travelling to Town P on the basis of expense or practical difficulty [85]. It must also be remembered that both parties and each of the children well knew the distance between Town P and Sydney. The children had been travelling to and from Town P with their mother at least for school holidays for a number of years.
With regard to the parents’ current and future capacity to implement an arrangement for the children to spend substantial and significant time with each of the parents (s 65DAA(5)(b)), the primary judge took into account the evidence of the parties co-parenting to date, including the period when the mother resided in Town P every second week while the father remained living in Sydney with the children.
The evidence of the parties regarding their mutual co-operation in respect of the parenting arrangements at the time of the rehearing and in the preceding years was directly relevant to her Honour’s consideration of the parties’ current and future capacity to implement a substantial and significant time arrangement and to communicate with each other and resolve difficulties in implementing the arrangement (s 65DAA(5)(c)). It was entirely open to the primary judge to find that this evidence indicated that the parties would be able to continue to demonstrate these capacities in the future.
Section 65DAA(5)(d) requires the Court to consider the impact that the arrangement would have on the children. The impact of the mother’s proposal, and indeed the father’s proposal, was expressly considered by the primary judge. Her Honour emphasised, at [69], [77], [81] and [82], that the impact of the orders will largely be dependent on the parties’ behaviour.
It is therefore clear that the jurisdictional facts necessary to make the orders were established. There is no substance to this ground.
Ground 1 – That the orders for substantial and significant time do not give effect to the intention of the Court
Counsel for the father argued that the primary judge erred in that the terms of order 4 as to the time the children are to spend and communicate with the father, do not give effect to the intention expressed in the reasons. That is, they do not constitute substantial and significant time.
Counsel for the father contended that the orders neither meet the literal requirements of s 65DAA(3); the purpose and intent of the legislation, nor the intention of the primary judge as reflected in her reasons.
At [111] the primary judge concluded that, having regard to the history of the children’s care experience, the nature of their relationship with each of the parents, coupled with the views of the children, it was in their best interests to spend substantial and significant time with each of the parents.
The definition of “substantial and significant” time is set out in s 65DAA(3) of the Act, which provides:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Central to the determination of this ground is whether the effect of the orders would allow the children to spend time with the father on weekends, weekdays and holidays and enable him to be involved in the children’s daily routine and also on special occasions and events.
In our view her Honour’s order meets both the literal and practical requirements of s 65DAA(3):
·Orders 4(a) and (c) provide for the children to spend time with the father on days that fall on weekends and holidays and therefore satisfies s 65DAA(3)(a)(i);
·Order 4(a) provides for time on Fridays during school terms, thereby satisfying s 65DAA(3)(a)(ii);
·Orders 4(b) and 4(g) further facilitate the literal and practical requirement of s 65DAA(3)(a)(ii), by permitting the father any further time he can facilitate and with agreement of the mother;
·Order 4 in totality allows the father to be involved in the daily routine of the children and Order 4(f) specifically invites the day to day involvement of the father; and
·While Order 4(d) may not technically match the current schooling arrangements of the children, it is clear both parties consented to the arrangement they spend time with the father during the school holidays.
Counsel for the father correctly argued that the “…legislative requirements are conjunctive” and relied upon the authority of Eddington and Eddington (No 2) (2007) FLC 93-349 (“Eddington (No 2)”). It is necessary to consider this statement in context of the full paragraph in which it appeared in that judgment:
66.Although we have reached our conclusion that the trial Judge’s orders do not provide for the children to spend substantial and significant time with the appellant initially by reference to the substance of the orders, it ought not to be thought that our conclusion is solely thus driven. Clearly, the amount of time which children spend with a parent potentially impacts upon the quality or significance of that time. In our view, the time which the children would spend with the appellant pursuant to the trial Judge’s orders, the duration of such periods and the frequency at which they would occur are likely to impact adversely upon the significance of the time which the children would spend with the appellant. There is thus a nexus between the substance and the significance of the time which the children would spend with the appellant. Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that the case turns on its own particular facts and circumstances, and the reality that the roster of the appellant in this case has particular impacts upon what may constitute substantial and significant time spent with the appellant.
(emphasis added)
The particular facts of this case were that the father enjoyed flexible working arrangements, earned a significant income and gave no reason why he would not be able to regularly travel to Town P [43]-[45]. Nor was he impeded on the basis of expense or practical difficulty [85].
Thus the facts in this particular case suggest the father could enjoy substantial and significant time with the children under her Honour’s orders. Further, the mother had already demonstrated over the past two years that it is possible for a parent to live in a different location to the children but parent them successfully.
The onus is on the parents to facilitate the time with the children according to the orders, and her Honour was correct to find the father would reasonably be able to do so. As noted by the primary judge, the success of the proposed orders will depend on how the adults behave [69] and concluded that both parents demonstrated an ability to remain focused on the children and a willingness to support the continued relationship the children have with each parent [68].
It is particularly submitted in respect of the orders that while the orders specifically provide for the father to spend time with the children on weekends and holidays, the only non-weekend day that is expressly referred to in the orders is that the father may spend time with the children from 6.00 pm on Friday when he collects them for weekend time during school term. There is also no specific provision in the orders for the father to spend time with the children on occasions and events that are of special significance to him or the children. However, the orders do provide that the father may facilitate “any time” with the children in Town P as long as he provides two weeks’ notice to the mother and importantly this is not otherwise dependent on the mother giving permission.
At [43], the primary judge acknowledged that the father was “heavily involved” in the children’s day to day lives and found at [49], that there may be some diminution of the quality of his relationship with the children should they relocate with the mother to Town P. However, the primary judge also set out her conclusion, based upon the cross examination of the father, that there was no reason which would prevent the father from regularly travelling to Town P given his income and the flexibility of his work arrangements.
The judge found that in the circumstances of the case, and given the demonstrated capacity of the parties to cooperatively and effectively co-parent even whilst they were residing in different locations, the father could continue his involvement in their daily activities even if the children were to relocate to Town P.
In light of the findings regarding the reasonable practicability of the father travelling to Town P on a regular basis, the Family Consultant’s evidence regarding the cognitive capacity of the children to independently maintain important memories and significant relationships from a distance, and the history of co-parenting cooperation between the parties; the practical effect of the orders was to allow the father to spend substantial and significant time with the children and to remain involved in their daily lives, should he choose to do so.
The Full Court confirmed at [52] of Eddington (No 2) that the ambit of the trial judge’s discretion in making orders pursuant to s 65DAA(3) is “undoubtedly broad”. While there may have been other options open to the primary judge in the present case, the orders made do constitute orders for substantial and significant time given the particular circumstances outlined above.
The issues identified above formed part of a reasoned and methodical assessment by the primary judge of all relevant matters in developing orders that would be in the bests interests of the children and to achieve substantial and significant time for each parent.
The ground of appeal is without merit.
Ground 2 – that her Honour erred in failing to properly consider all of the available options available in the best interests of the children (a constructive failure to exercise jurisdiction) and erred by failing to provide adequate reasons in an appellate sense for the orders made.
By Ground 2 of the appeal the father argued that the primary judge failed to properly consider the option that the mother live in the Sydney region and the children either live with the parties on a week about basis or they live primarily with the mother and spend substantial and significant time with the father.
In support of this argument the father focused on the part of her Honour’s reasons headed “Conclusion” and contends that in the paragraphs under that heading, her Honour failed to provide reasons why the proposals for which the father contended were not accepted.
It was contended by counsel for the father that there are fundamental errors within the judgment:
·First, such an error of omission constitutes a constructive failure to exercise jurisdiction – U v U (2002) 211 CLR 238 (Father’s written submissions [22]);
·Secondly, the conclusion section of the judgment does not sufficiently reveal the reasoning process such that the litigants are unable to discern the pathway by which the result arrived at – Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (Father’s written submissions [23]-[28]); and
·Just what the primary judge considered as the competing proposals was unclear and there was no indication of why the mother’s proposal was preferred (Father’s written submissions [30]).
It is abundantly clear that the primary judge gave sufficient reasons for the orders made. In a judgment spanning some 122 paragraphs, the primary judge provided a methodical and logical assessment of not only competing proposals as between the mother and father, but also of other alternatives [115]-[118].
Paragraphs [100]-[110] contain the most significant analysis of these alternatives, where the primary judge draws conclusions about which one is actually in the bests interests of the children. The primary judge found that:
108.I am of the view that although the combined qualities of the parents has resulted in well-adjusted children who have a strong and loving relationship with each of them, this is attributable to each of the parents having played an active and committed role in the care of the children, rather than to the actual form of the parenting arrangement itself. When particular regard is given to the actual experience of the children under this form of parenting arrangement I cannot conclude that an order for the children to spend equal time with each of their parents is in the best interests of these children.
There is no substance to this challenge. To focus only on the paragraphs under the heading “Conclusion” is artificial. A reading of her Honour’s reasons as a whole amply illustrates why she determined that the best interests of the children were not served by the mother moving to live in Sydney and they either spend week about with her and the father or live with the mother and spend substantial and significant time with the father. In addition to the paragraphs referred to above, we have in the course of the consideration of the appeal, referred to her Honour’s findings which, taken together reveal her reasoning process to her final conclusion. It is unnecessary to repeat them here.
The ground of appeal is without merit.
Ground 3 – Her Honour erred in the exercise of discretion and made errors of fact and law (including a lack of reasons) in permitting the mother to relocate the residence of the children to Town P.
In Ground 3, the father contends that her Honour failed to consider or give proper consideration to a number of matters which, it is said, were important to a determination of the issues before her and thus render her Honour’s findings unsafe. This ground was described by counsel as a challenge to the exercise by the judge of her discretion.
It is first contended that her Honour failed to take into account the Family Consultant’s “ranking” of the various options presented in the case. Further it was said that her Honour failed to give any consideration to the Family Consultant’s evidence that the children wanted their parents to live close together and her evidence about whether there might be a shift in the “power imbalance” between the parties if relocation was ordered. In elucidation of this point later in the submissions on the ground, reference was made to the father’s submissions that if the mother and children lived in Town P, she would be parenting the children without reference to the father and the mother would, in effect, hold the power of the relationship to the detriment of the father. In this regard too it was asserted that her Honour failed to give sufficient weight to those submissions.
It must first be observed that her Honour is not required to accept the evidence of the Family Consultant, even where that evidence is unchallenged (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705).
In this case, her Honour took account of the opinions expressed by the report writer as part of the evidentiary matrix in the case. A primary judge is not required in giving reasons to resolve each and every conflict in the evidence (see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385). That, for example, her Honour failed to mention the speculation engaged in by the Family Consultant as to a possible “shift” in the power balance between the parties, does not speak of error.
It was also argued that her Honour “ignored” the mother’s evidence that there were areas in Sydney in which she could afford to house herself and that it was possible for Mr T, the mother’s partner, to relocate himself to Sydney if the mother was so required and he would thus supplement with his financial resources those of the mother. As part of this argument, it was also mentioned that the parties had intended the child E to attend a private Catholic girls school in Sydney for high school, another matter not referred to by the primary judge.
To the extent that the ground contends that her Honour “ignored” this evidence, we reject it.
In assessing the option of the mother living in Sydney, the primary judge devoted considerable discussion as to the practicality of such an order [76]:
·it was unlikely the mother could afford to live in the inner-western area (where the current family is located);
·she would be required to find full-time employment and a risk existed she would not always be available to care for the children outside of school hours, resulting in two parents working full-time; and
·she had no extended family to assist her in providing care for the children.
It is clear that the primary judge did not “ignore” evidence that the mother could afford suburbs near greater western Sydney, or that a possibility existed for the mother and new partner to live in Sydney. At [72]-[75] her Honour addressed these issues, noting that if the mother were to live in Sydney she would then be financially worse off and would not have the benefit of the family network. While Mr T indicated he could also live in Sydney, it is not his preferred option and he had his own work and family commitments in Town P.
In essence, these arguments devolve to a challenge to the weight or importance attributed to that part of the evidence before her. The assessment of the weight to be attached to the evidence is a matter for the exercise of the primary judge and the bar to appellate intervention is set high. In this case, the father has not established the necessary error, that her Honour’s conclusions were not open to her or were “plainly wrong” (see Gronow v Gronow (1979) 144 CLR 513).
The father further contends there was no analysis of the distance between the parties and the time it would take to travel between Sydney and Town P and the effect of that travel on the children or on the father’s capacity to maintain meaningful relationships with the children at a distance. Given the evidence before her, it could not be suggested that her Honour was unmindful that the parties lived a distance apart. However, there was a paucity of evidence put before her on this issue on behalf of the father. At [85] her Honour noted that the father had not researched the options for regular travel and ultimately it was not suggested he was impeded in regularly travelling to Town P on the basis of expense or practical difficulty.
None of the challenges raised in ground 3 is made out. There is no substance to the ground.
The appeal should be dismissed.
costs
At the conclusion of the hearing of the appeal we asked for submissions in relation to costs. Counsel for the mother argued that if the appeal is dismissed, a costs order should be made against the father. The father acknowledged that in the event that the appeal was dismissed, then he would have difficulty resisting an order for costs.
Section 117(1) of the Act provides that subject to s 117(2) and other provisions, each party shall bear his or her own costs. Section 117(2) provides that if the court is of the opinion that there are circumstances justifying an order for costs the court may make such an order. Section 117(2A) provides that in making such an order for costs, the court should have regard to various factors.
The matters relevant to the issue of costs in this case and to which s 117(2A) refers are that we intend to dismiss the appeal so that the father’s appeal has been wholly unsuccessful and the financial position of the parties. Counsel for the father submitted that there were a number of matters we should consider. The financial circumstances of the father have changed since trial, he is now unemployed. The father currently lives in the family home which is worth approximately $1.2 million and has a mortgage of $500,000.
The mother has no income. Her partner owns a home with a mortgage of approximately $300,000. The mother previously received child support, however these payments have ceased with the father’s change in employment. The mother is not in receipt of legal aid.
We have found no merit in the appeal, the father may be income poor at the moment but otherwise has the capacity to meet an order for costs. In all the circumstances the father should pay the mother’s costs.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 24 Aril 2015.
Associate:
Date: 24 April 2015
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