HORNER & VOSS
[2015] FamCAFC 99
•15 May 2015
FAMILY COURT OF AUSTRALIA
| HORNER & VOSS | [2015] FamCAFC 99 |
| FAMILY LAW – APPEAL – CHILDREN– PARENTING ORDERS – RELOCATION – Where two of the children ordered to relocate overseas with the mother while the eldest child remained in Australia with the father – Whether proceedings determined the matter on the basis that there was a real possibility the oldest child may relocate –Whether failure to consider the effect of the separation of the siblings and separation from the father – Where it was not put in the court below whether the children’s’ preferences as to relocating or staying would change if they knew the oldest child had decided to stay – Where the appellant was not permitted to raise a new argument on appeal per Metwally vUniversity of Wollongong – Appeal dismissed. FAMILY LAW– CHILDREN COSTS – Where the appellant was wholly unsuccessful – Costs ordered. |
Family Law Act 1975 (Cth): s 60CC
Coulton v Holcombe
(1986) 162 CLR 1
Metwally v University of Wollongong (1985) 60 ALR 68
(2002) 211 CLR 238
(1988) 180 CLR 491
U & U
Water Board v Moustakas
| APPELLANT: | Mr Horner |
| RESPONDENT: | Ms Voss |
| FILE NUMBER: | CAC | 1785 | of | 2012 |
| APPEAL NUMBER: | EA | 37 | of | 2015 |
| DATE DELIVERED: | 15 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ryan & Watts JJ |
| HEARING DATE: | 15 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 February 2015 |
| LOWER COURT MNC: | [2015] FCCA 340 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Smallwood |
| SOLICITOR FOR THE APPELLANT: | Nicholes Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Tonkin |
| SOLICITOR FOR THE RESPONDENT: | Evans Family Lawyers |
Orders
That the appeal be dismissed.
That the appellant pay the respondent’s costs of the appeal within twenty eight (28) days of agreement as to quantum or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Horner & Voss 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 37 of 2015
File Number: CAC 1785 of 2012
| Mr Horner |
Appellant
And
| Ms Voss |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ryan j
This is the judgment of the court.
By Notice of Appeal filed on 17 March 2015, Mr Horner (“the father”) appeals against final parenting orders made by Judge Hughes on 18 February 2015. The orders concern the parties’ three children, X who was born in 1999 and Z and Y, who are twins and who were born in 2004.
The orders permit Ms Voss (“the mother”) to relocate the twins to a country in Asia for three years. During the period the mother and twins live in Asia, the orders provide for them to spend time with the father in Australia during nominated school holidays and at such times in Asia during school term as the parties agree. Because X wanted to remain with the father in Australia, the mother did not pursue an application for him to join her and the twins in Asia. However, consistent with the parties’ agreement that X’s wishes should be given effect to, an order was made which required them to give effect to the child’s views about whether he remained in Australia with the father or joined the mother and twins in Asia.
As her Honour said at [107]:
Like many relocation cases, this is a difficult case to decide because each parent has a perfectly legitimate perspective. …
Counsel for the father in arguing the grounds has said everything that could reasonably be said in support of the challenges he makes to her Honour’s orders but we are not satisfied that error has been demonstrated for the reasons which we will now give.
Brief chronology
So as to give this appeal context, it is useful to set out some key events in chronological order.
The parties began living together in 1995 and subsequently married.
X was born in 1999.
The twins were born in 2004.
From when X was born, the mother was primarily responsible for the children’s care. Other than a brief period when the mother returned to full-time work, from when X was born, she either worked part-time or was on maternity leave; thus making her available to care for the children and manage the household.
The father, who at the time of the hearing before her Honour was aged 62, worked full-time.
With the full support of the father, in December 2011, the mother applied for an overseas posting with her employer. City M was one of the possible posts.
The parties separated on 30 September 2012. After separation, the children remained in the mother’s primary care and initially spent alternate weekends with the father. He resigned from the paid workforce in early 2013 as a consequence of which he became much more available and involved with the children than he had been. Over time the children’s living arrangements changed which essentially involved an increase in the amount of time they spent with the father.
In July 2014, X moved to live with the father where he is settled and happy. During school term, every second weekend and one night each week is spent by X with the mother. Z spends every second weekend with the father from Friday to Sunday plus one night during the week. Y’s routine is the same as Z’s, except on weekends, he remains with the father until Monday. School holidays are shared and most days the father takes the children to school.
The mother’s initial application for an overseas posting failed and in December 2013 she made another application, this time specifically for City M. She informed the father on 2 December 2013 of her application. He informed her he did not agree that she could take the children to City M and but for a brief period during which he said the children could go with her but on condition he lived with them, he has maintained his opposition to the mother’s plans for the children ever since. Self-evidently, the mother’s application for an overseas posting was successful and on 13 January 2014 she informed the father of that fact and invited him to discuss the issue. Those discussions came to nought and thus the parties attended mediation with a community agency. Again, they were unable to reach an agreement and thus, on 29 August 2014, the mother commenced proceedings for orders which would enable her to relocate to City M with the three children for three years from March 2015 until the commencement of term in 2018.
By his Response filed on 26 September 2014, the father sought that the mother’s application be dismissed.
An order was made for the parties and children to attend Ms L, who is a clinical psychologist, and for a report. She interviewed the parties and children on 10 November 2014 and published her report on 24 November 2014. It was her opinion:
None of the children expressed a strong desire to move to [City M] and nor did they have a good understanding of what the lifestyle would be like. [X], although very worried about letting his mother down and causing her distress, expressed anxiety about being away from his father for three years. There is little doubt that he would prefer to stay with his father and is looking for ways to keep everyone happy (e.g. if the twins go with Mum then he can stay here). His change in mind has likely coincided with his more positive living arrangements and there does not appear to be undue influence exerted by his father.
[Z] presents as largely ambivalent. She enjoys her care pattern now and presents as fairly easy-going. She was somewhat preoccupied with friendships/relationships throughout the interview (e.g. talking about bullying, being sad when left out of friendships at school, not having friends in France), reflecting the importance she places on friendships/harmony and some worry about potentially missing this in [City M]. Her reported interests and activities are largely academic and/or able to be enjoyed indoors and she would likely find it the easiest to adapt to the change of lifestyle.
[Y] has quite an unrealistic idea about what life would be like in [City M] and any positive opinions should be discounted because they are not based in fact. The most important factor for [Y] in care arrangements is that he is close to his father (and potentially his brother). Note that this wish is not necessarily shared by [X]. [Y] is a very active child whose positive experiences are often linked to physical activity and he would likely struggle with the lifestyle in [City M].
As stated previously, the children do not present as psychologically unable to manage an international relocation and if the specific situation was different (e.g. [Mr Horner] was accompanying them or the new locality allowed for greater freedoms and a healthy outdoor lifestyle) my comments and opinions may differ.
(Ms L’s report dated 24 November 2014, pp 12-13)
The proceedings were heard on 29 and 30 January 2015 at which both parties were represented by counsel.
The primary judge’s reasons
After her Honour set out the background facts to which reference has already been made, she examined the mother’s evidence about why her three year overseas post would be in the best interests of the children and her attempts to inform and persuade the father to agree to her proposal, indeed that he join them in City M. It was accepted that the mother delayed progression in her own career so as to care for the children and in so doing, she enabled the father to pursue his career freed of significant day to day responsibility for the children. She had long desired to obtain an overseas posting and that opportunity was now available.
The mother gave evidence, which her Honour accepted, about the benefits to her and the children were they to relocate. For the three year period of the posting, the mother would earn approximately an additional $270,000. This would mean that on her return to Australia she and the twins could move closer to where the twins attend school which would make it easier for those children to socialise with their school friends. The mother highlighted that the additional income would enable the children to enjoy a greater range of extra curricular activities and international travel.
Her Honour accepted the mother’s evidence about where the children would attend school in City M and the overall benefits to the children of the opportunity of “cultural immersion” in a different culture. Her Honour explained, at [45]:
…At the British International School of [City M] the children would come into contact with children from a diverse range of cultures, even if they all speak English. The very fact of living in [City M], regardless of whether or not they are driven to various activities, would be a very different cultural experience to living in Canberra which is the point the mother was making.
Her Honour was not concerned that the children would lose French language skills, albeit their proficiency in French may diminish. This potentiality was contrasted with their being afforded the opportunity to learn the local language and continue their French studies in City M if they wished. The children would, in any event, resume French language studies when they returned to Australia. Ultimately, in relation to the benefits of the mother’s proposal, her Honour at [34] noted that the mother:
…provided persuasive reasons why the relocation would be of professional benefit to [the mother] and of financial benefit to the family in addition to the benefits she saw for the development of the children’s life experience.
The primary judge then examined the arrangements which the Australian Government would put in place for the mother and children in City M. The mother would be provided with a three or four bedroom apartment within a five minute walk from her place of employment and she would be able to employ a housekeeper and driver who would be fully vetted by the Australian Embassy. Identified security risks would be addressed by a variety of measures and the children would be able to continue the extra curricular activities they currently enjoy.
The mother’s employer would fund an annual trip for the twins to Australia and two trips annually for X to Asia.
The father’s solitary proposal was that the children remain living in Australia. Pressed to identify what arrangements might be appropriate in the event the twins went to City M, the father was unable to improve on the mother’s proposals about time. He was also pressed about why he could not relocate to City M for the period of the mother’s posting. With a tax free pension of $65,000 per annum and additional income of $23,000 per annum, it is clear
her Honour accepted that the father could afford to rent and live in City M for about the same or slightly less rental and cost of living he incurred in Australia. The father had the financial capacity to regularly spend time with the children in City M.
Her Honour then discussed Ms L’s evidence and, at [74], accepted her opinion that:
…the children did not present with temperaments or personalities that would suggest that they would find change or adjustment more difficult than their peers.
(Ms L’s report, 24 November 2014, p 7)
Although Ms L acknowledged clear benefits to the children of living in City M, she “marginally” recommended that the mother’s application be dismissed.
Her Honour rejected Ms L’s denial that she placed significant weight on security issues and air pollution in coming to a recommendation against relocation. As her Honour explained at [76]:
…two of the three risks which [Ms L] said would outweigh the benefits of the relocation were the significant change in lifestyle and the curtailment of the children’s activities both of which relate to pollution and security issues…
For reasons which she gave, the primary judge found the mother was a very credible witness and although the father was generally credible, aspects of his evidence undermined his credibility. This resulted in her Honour being satisfied the father overstated and misrepresented his claim the mother excluded him from the children’s music lessons and perhaps of greater relevance to the relocation issue, that he had been unwilling to assist her to take advantage of interstate and overseas work opportunities by caring for the children because of his “…genuine desire to spend more time with the children was overridden by his greater desire not to assist the mother” [86].
Having set out the law by which the mother’s application would be determined, the primary judge discussed and analysed those ss 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) considerations relevant to the case.
The children were found to have close, loving and trusting relationships with their parents and are used to being cared for by each of them. There was some strain in the mother’s relationship with X and although he had been initially excited and positive about living in City M, X had changed his mind.
Neither Y nor Z expressed clear views one way or the other about the overseas posting with their stance influenced:
97.…to some extent by their father’s distress and his statement about not seeing them for three years.
Although her Honour was satisfied the twins would likely be content with the City M posting if it was supported by both of their parents, she was satisfied that Y [95] and Z [96] would miss their father and X.
Thus, her Honour gave close attention to the effect on the children of the twins living in City M and the father and X living in Australia. As her Honour explained, at [98]:
…The proposed relocation would certainly cause a separation of the younger children from their father and from their older brother if he does not relocate. There is no doubt that such separation would have an effect on the children as they love their father and their older brother and would miss them. They may at times be emotionally distressed about the separation. [Z] is closest to her mother and likely to manage the separation from her father and [X] better than [Y]. However, both of the younger children have a strong and secure relationship with their mother. They also have a strong and secure relationship with their father and brother and, in my view, the separation is not likely to have any significant long-term deleterious effect on those relationships, especially in light of the proposals by the mother to facilitate regular and substantial contact, both face-to-face and through electronic means. If [X] does not relocate he will no doubt miss his mother and his siblings but, for the same reasons, in my view those relationships will survive the separation.
Thus, her Honour went on to discuss the reality of international travel and the parties’ capacity to have regular contact with and between the children. Although living in different countries would necessarily result in significantly reduced face to face contact, the parties had the financial resources to afford regular international travel for themselves and the children and by using Skype and other similar strategies, the children would be able to regularly communicate and see their other parent.
Otherwise, although it was acknowledged that the parties were each responsible, committed and capable parents, her Honour was satisfied the mother has a greater capacity to provide for the emotional needs of the children and she had:
104. …more consistently place[d] the children’s needs above her own.
Some criticism was directed towards the father for failing to take the opportunity to spend more time with the children because doing so would have been of assistance to the mother and his failure to genuinely engage with the mother in relation to a suite of arrangements that would work for the entire family and enable the City M option to proceed.
In circumstances where the primary judge was satisfied that the mother would actively encourage and facilitate the children’s relationship with the father and, even with them living in City M and him and X in Australia, they would maintain a meaningful relationship with the father, her Honour was satisfied that the mother’s proposal to take the City M posting was consistent with the best interests of the children.
Grounds of appeal
Grounds 7 and 8 were abandoned.
Ground 1 – the Trial Judge erred by adopting the premise that the child [X] may relocate with the mother, when that premise was contrary to the evidence and/or had no evidentiary basis
It is common ground that the parties were in agreement that X’s wishes about relocation would be respected and that at the commencement of the hearing, the mother withdrew her application for an order that X relocate to City M.
The gravamen of ground 1 is that by making Order 6, it must necessarily be inferred that her Honour proceeded to determine the mother’s application on the basis that X may relocate. It was submitted to us there is no evidence to support that possibility as a consequence of which it necessarily follows that her Honour “...did not accept the fact that a separation of siblings would necessarily occur, should relocation be permitted”.
In order to understand the gravamen of this submission, it is necessary to set out Order 6:
The parties shall each take all reasonable steps to implement the wishes of the child [X] born [in] 1999, in relation to him relocating with his mother and siblings or remaining in Australia with his father.
It is immediately apparent that the submission misstates her Honour’s order. It cannot be doubted that the effect of this order is to require the parties to take reasonable steps to give effect to X’s wishes, whether they be to remain in Australia with his father or relocate to City M with his mother. True it is that neither party formally sought an order along the lines of Order 6, however, the solicitor for the father clearly raised the possibility her Honour might do so. Specific reference was made to this possibility during cross-examination of the mother when it was put:
Although it’s agreed that, for the purposes of today, her Honour doesn’t have to make orders about [X] other than perhaps in accordance with his wishes…
(Transcript, 29 January 2015, p 43)
There is no challenge to Order 6 and the challenge as framed goes to the inference to be drawn from the fact that her Honour made the order.
Not only do we reject the contention that the inference is available, we also reject the argument there was no evidence to suggest that X might join the mother and his siblings in Asia. As the mother explained in her evidence, X had already changed his mind once and she thought it was possible that at some stage he might do so again. The evidence given by the father was to similar effect. For example, the father said:
…[X] can change his mind. I mean, we agreed months, and months, and months ago. If [X] again changes his mind, well that’s – you know? He has changed his mind once, and one of the – one of the earlier agreements that [the mother] and I had was that his preference would stand.
(Transcript, 29 January 2015, p 91) (our emphasis)
As can be seen from the father’s evidence he used the word ‘if” to convey the possibility that [X’s] views and situation may change. Where in the passages to which we were taken in argument her Honour used the word ‘if” she did no more than convey the same possibility.
Her Honour was entitled to accept the mother’s evidence and that given by the father on this point, and in so doing she did not elevate a mere possibility to a probability nor, in deciding in favour of the relocation proposal, base her decision on the prospect X might join the mother and the twins in Asia.
It is appropriate to observe that Order 6 is in complete accord with the parties agreement as to how they should deal with X’s views about where he wanted to live.
It follows that ground 1 must fail. Counsel for the father appropriately acknowledged that in the event that the argument raised by ground 1 that we would infer her Honour determined the case on the basis there is a real possibility X would move to live with the mother and his siblings in City M, then the challenges raised by grounds 2 and 5 are commensurably weakened.
As might be anticipated, grounds 2 and 5 are closely connected and may be dealt with together.
Ground 2 – the Trial Judge erred by failing to consider or properly consider the separation of the children from each other, and its relevance to, or effect on, their welfare
Ground 5 – the Trial Judge found that the child [X’s] relationship with his siblings would survive, or “the separation is not likely to have any significant long-term deleterious effect” on that relationship in the absence of evidence to that effect
The focal point of the challenges raised by these grounds is on her Honour’s finding at [98]:
…They also have a strong and secure relationship with their father and brother and, in my view, the separation is not likely to have any significant long-term deleterious effect on those relationships, especially in light of the proposals by the mother to facilitate regular and substantial contact, both face-to-face and through electronic means. If [X] does not relocate he will no doubt miss his mother and his siblings but, for the same reasons, in my view those relationships will survive the separation.
In making these challenges no challenge is made to her Honour’s findings that the twins love their older brother [98] and they have a strong relationship with him [98]. Nor that the mother would facilitate regular and substantial contact between the children [98].
However, in relation to ground 2 counsel for the father submitted that
her Honour’s conclusion at [98] is nonetheless erroneous because there is no evidence to support her finding that the sibling relationships are “secure”. And that her Honour’s conclusion is based on her failure to fully accept that the separation of the siblings was inevitable as a consequence of which she did not properly consider the effect on the children of their being separated. The argument was thus directed to ss 60CC3(b)(ii) and (d)(ii).
As we have already explained in our discussion of ground 1, the central proposition that we would infer her Honour approached her decision on the basis that the children would not be separated cannot be maintained. Apart from the matters to which reference has already been made, it will be recalled that her Honour ordered that the twins relocate with the mother but made no such order in relation to X.
As to the nature of the children’s relationships with each other, a close reading of the transcript of the hearing before her Honour would reveal that no submission was made by counsel then appearing for the father that her Honour would reject the father’s proposition that the children were close and loved one another as they indeed were with him.
On the basis of her Honour’s unchallenged findings, there can be no doubt that she was entitled to reach the conclusion that the children’s relationship with one another and their father was secure.
It also needs to be understood there was not a scintilla of evidence that the twins being separated from their father and older brother for three years but with regular and substantial contact would result in “any significant long-term deleterious effect on those relationships”. The evidence to which we were taken in support of the proposition that there was evidence of long term relationship damage was that Y had begun to express a desire to spend more time with the father and his brother and he was moving to a stage where a positive male role model was good for boys. There was also evidence that the shared outdoor interests he has with his brother and father would be threatened and severely impacted on by his move to City M.
Without more, that evidence does not establish the potential for a significant long term deleterious impact on the relationships between the children and their father and brother, if the twins are permitted to move to City M. There was nothing more.
It is not accepted that her Honour failed to properly consider the effect on the children of being separated from each other. As we have already set out in our overview of her Honour’s reasons for judgment, this issue was considered at [95], [96] and [98] and is the subject of specific findings.
Nothing that was put in support of these grounds demonstrates that her Honour’s findings were not available to her or that the evidence compelled her Honour to make a different, albeit unspecified, finding.
These grounds will fail.
Ground 3 – The Trial Judge failed to consider or properly consider the wishes (views) of each of the children
The focus of this challenge is on her Honour’s findings in relation to the twins’ views. In relation to Y, the central contention is that the evidence established “…he would prefer to stay in Australia”. Support for that contention is said to arise from evidence given by Ms L in her report. However, the submission is based upon a carefully selected portion of the report and does not constitute a fair representation of the evidence on the topic. The foundation for the submission is found in the following paragraph:
In terms of the proposed move, [Y] has a limited understanding of the lifestyle in [City M]. He stated that he would enjoy meeting new people and “going to the beach a lot.” He described a typical day as “staying in bed, Mum drives me to school, Mum picks me up, play in the afternoons. On weekends go to the beach or play outside with my friends.” He thought that he would not enjoy leaving his friends and would miss his father. Asked about skype or other ways of keeping in touch he said, “I don’t like phones, I’d rather talk to him in person.” He also expressed worry about his father’s feelings. [Y] expressed some confusion when outlining pros and cons and suggested that he would “prefer to stay” but this could be because he “doesn’t want to hurt Dad’s feelings.” If he doesn’t go overseas he would “feel sad” because he wouldn’t see his mother. Asked how he would feel if his mother remained here he said “very happy.” Asked how he thought his mother would feel if she stayed here, “disappointed but she gets over things quickly.”
(Ms L’s report, 24 November 2014, p 12)
Her Honour accepted Ms L’s evidence about Y’s “preference” to remain in Australia which she evaluated as being quite different to his having a clear view one way or the other. However, Y’s “preference” could be seen as no more than a “tentative view” in favour of his remaining in Australia, a point which was properly acknowledged by counsel for the father. There can be no doubt that the evidence of the expert was to the effect that Y did not hold a clear desire or preference to remain in Australia.
However, it needs to be understood that when Ms L interviewed Y he was unaware that X would change his mind from being in favour of going to City M to wanting to remain in Australia with the father. On the basis that it was accepted by her Honour that Y idolised his older brother, it is argued that her Honour erred by failing to find that if alerted to X’s change of heart, Y would want to remain in Australia with his brother.
That proposition is easily answered. First, the expert was not asked whether in light of this information her opinion that Y had a “tentative view” in favour of his remaining in Australia had changed. Secondly and even more tellingly, that proposition was not put to her Honour. It follows that by this challenge we are asked to find that her Honour erred by failing to consider a proposition that was not raised in the hearing. Underpinning adjudication of this issue is the proposition that a party is generally bound by the conduct of his or her case. The significance of this on appeal is that it is in only the most exceptional circumstances that a party will be permitted to raise a new argument (particularly in relation to factual matters which are or may be contentious) which was not advanced in the court below (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1; Water Board v Moustakas (1988) 180 CLR 491). In this case, there are no exceptional circumstances.
In our view, there can be no doubt that her Honour was entitled to give Y’s views the weight which was apparently afforded to them and there is no basis upon which we could find she fell into error by failing to give “significant weight” to “tentative views” expressed by that child against relocation or to find that his views had changed.
Otherwise, there were no arguments in relation to her Honour’s treatment of Z’s views and we are satisfied that ground 3 cannot succeed.
Ground 4 – the Trial Judge erred by giving insufficient weight to the evidence of the Family Consultant
The focus of this challenge was on the manner in which her Honour dealt with the weight given to Ms L’s evidence about Y’s views. Nothing more was said in relation to this ground than was raised in relation to ground 3. Weight challenges are notoriously difficult and, as we have already explained, her Honour in fact accepted Ms L’s evidence about the tentative nature of Y’s views.
As to her ultimate opinion against the twins relocating her Honour, at [78], clearly placed weight on Ms L’s evidence:
…that, although it was difficult to predict how the children would cope with the proposed relocation, given the children’s resilience and the mother’s attunement to their needs, it would be reasonable for it to be attempted.
She was entitled to proceed in this manner. Her Honour was not bound to adopt Ms L’s ultimate recommendation and in our view has adequately explained why she did not.
This ground will not succeed.
Ground 6 – the Trial Judge erred at law in that Her Honour placed paramount importance on the career history and wishes of the Respondent mother, rather than paramount importance on the welfare of the children
This ground is that her Honour erred at law in placing paramount importance on the career history and wishes of the mother rather than the paramount importance of the welfare of the children.
In her summary of argument, counsel for the father said at [7.6]:
It is submitted it can be inferred from her Honour’s judgment that the potentially thwarted ambitions and wishes of the respondent constitute the paramount consideration in the exercise of judicial discretion. It is submitted such an approach was contrary to law.
Counsel for the father emphasised what her Honour said at [28] of her reasons, in support of the contention that her Honour elevated the mother’s ambitions and wishes over the best interests of the children. In our view, [28] does no more than set out the history of the mother’s employment and her long held desire to obtain an overseas posting. Her Honour correctly recorded that this offer of an overseas posting was the first opportunity that she had been given to do so.
In her Honour’s conclusion at [110], she discussed the mother’s work history and her deep and long held desire for an overseas posting. She referred to the fact that the father supported an overseas posting when the parties were together in 2011 but the mother was unsuccessful in securing one at that time and “her opportunity has finally come”.
However, in the next paragraph, her Honour said “[i]f the mother’s ambitions and desire for the relocation were inconsistent with the children’s best interests they would have to give way”. There can be no doubt that by these words,
her Honour acknowledged the child’s best interests are the paramount consideration and the mother’s ambitions and desires would have to give way to them if her ambitions and desires were inconsistent with them.
The submission by counsel for the father ignores the finding made by
her Honour about the benefits to the children of the relocation [34]. As we have already mentioned, her Honour found “persuasive reasons” why the relocation would be in the interests of the children, namely:
·professional benefit to the mother;
·financial benefit to the family; and
·development of the children’s life experiences.
In the last paragraph of her reasons, her Honour specifically found the proposed relocation was in the children’s best interests.
Consequently, the submission made that her Honour elevated the mother’s ambitions for overseas appointment over the best interests of the children cannot be sustained and accordingly ground 6 must fail.
Ground 9 – the Trial Judge erred at law in the manner in which she interpreted and applied the principles expounded in U v U (2002) FLC 93-112
This ground asserts that her Honour erred at law in the manner in which she interpreted and applied the principles in U v U (2002) 211 CLR 238.
In counsel for the father’s summary of argument, at [9.2], the argument in support of this ground is articulated thus:
Her Honour appears to emphasise the need not to subordinate the ambitions and wishes of the mother to the wishes of the father, to pursue his life in a place of his choosing. It is respectfully submitted U & U does not properly invite such an approach. A deeper enquiry which necessitates an assessment of all proposals, including both parties’ wishes, whilst preserving the paramount consideration of the welfare of the children, is contemplated.
This ground is heavily based on the last sentence of [111] of her Honour’s reasons which reads:
…Although that is perfectly understandable, at the end of the day his position throughout the proceedings can be viewed as him asking the Court, in the words of Hayne J in U v U, to “subordinate [the mother’s] ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing”.
(emphasis in original)The simple answer to the submission is that the two considerations (best interests) and (ambitions and wishes of the parents) need not be mutually exclusive and, in this case, were not.
It is uncontested that a deeper enquiry is necessary. In U v U, Hayne J and Gaudron J in different ways suggested that a question that should usually be asked in relocation cases is why the stay behind parent cannot go to where the other is moving? Her Honour did not set this proposition and consideration up as the determinative test.
At [55] of her Honour’s reasons, it is recorded that the father could not improve upon the mother’s proposal in the event she was allowed to go to City M with the twins. The father’s position at the trial was that he had no intention of contemplating that he moves to City M nor did he explain why such a relocation was not feasible for him, particularly in circumstances where he had at one stage agreed to go provided he lives with the mother. Her Honour legitimately found the father’s response to that question was wanting.
Her Honour recorded at [79] of her reasons, “Ms L agreed with the obvious proposition that if the relocation goes ahead, the best option for the children would be for the father to also relocate”. The father did not refer to or deal with that evidence.
The importance of whether or not the father had seriously considered relocating to City M or otherwise provided the court with evidence as to why such a move would not be feasible depends upon whether or not the relationship between the twins and the father would be significantly affected by the twins’ move.
Her Honour, at [112], correctly said:
The determining factor in my view is whether or not the proposed relocation would interfere with the children’s right to maintain a meaningful relationship with their father. In my view if the relocation is permitted, the mother can be trusted to actively encourage and facilitate the children’s relationship with their father and to facilitate as much time with him as possible. The arrangements she proposes will enable the children to maintain a meaningful relationship with him….
Her Honour went on to find that the father was not working, had a good income and the freedom to relocate or to travel on a regular basis to spend time with the twins, notwithstanding his obligation to care for their elder brother if he remained in Australia. None of this was under challenge. Her Honour finally noted that even if the father did not take the opportunity to spend time with the twins in the Asia, the mother’s proposals allowed for significant time for them to be with him and to maintain a meaningful relationship with him and their brother.
As the last paragraph in her Honour’s reasons makes clear, her Honour was satisfied overall that the proposed relocation was consistent with the best interests of the children.
Accordingly this ground must fail.
Conclusion and Costs
As was indicated at the outset, this appeal will be dismissed.
Costs were sought by the respondent mother if the appeal was unsuccessful. The father opposed any order for costs but counsel properly conceded that there may be factors under s 117(2A) of the Act which would entitle the court to make an order for costs. As the appeal was wholly unsuccessful, we are satisfied there are justifying circumstances and we propose to order that the father pay the mother’s costs.
I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan & Watts JJ) delivered on 15 May 2015.
Associate:
Date: 1 June 2015
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