HOWARD & HOWARD
[2017] FamCAFC 43
•24 March 2017
FAMILY COURT OF AUSTRALIA
| HOWARD & HOWARD | [2017] FamCAFC 43 |
| FAMILY LAW – APPEAL – CHILDREN – Relocation – Best interests – Equal time – Children’s cognitive development and the weight given to their views – No appealable error demonstrated – Appeal dismissed – Appellant mother ordered to pay the respondent father’s costs of the appeal. |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 |
| APPELLANT: | Ms Howard |
| RESPONDENT: | Mr Howard |
| INDEPENDENT CHILDREN’S LAWYER: | Murray Lyons Solicitors |
| FILE NUMBER: | CSC | 494 | of | 2015 |
| APPEAL NUMBER: | NA | 42 | of | 2016 |
| DATE DELIVERED: | 24 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 6 March 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 June 2016 |
| LOWER COURT MNC: | [2016] FamCA 455 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Harding |
| SOLICITOR FOR THE APPELLANT: | Sandra Sinclair Lawyers |
COUNSEL FOR THE RESPONDENT: Mr Betts
| SOLICITOR FOR THE RESPONDENT: | Newman Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lawrence |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Murray Lyons Solicitors |
Orders
On the application of the parties, the appeal against Order 14 made by Justice Tree on 8 June 2016 be allowed and the order set aside and in lieu thereof there be the following order:
14. If the mother intends travelling overseas with the children, she shall give the father written notice on or before 1 October each year, and the following arrangements shall apply:
a. In even numbered years:
i. the children will spend time with the father for the first weekend of the Christmas school holidays (from after school on the last day of school in Term 4 until 4.00 pm on the Sunday immediately following) and the last weekend of the Christmas school holidays (from 12 noon on the Friday until before school on the first day of school in Term 1); and
ii. the children will otherwise spend time with the mother for the balance of the school holiday period.
b. In odd numbered years, the children will spend time with the father from after school on the last day of term until 9.00 am on Boxing Day. The children will otherwise spend time with the mother for the balance of the school holiday period.
The appeal otherwise be dismissed.
The appellant mother is to pay the costs of the appeal of the respondent father as agreed or, in default of agreement, as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Howard & Howard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 42 of 2016
File Number: CSC 494 of 2015
| Ms Howard |
Appellant
And
| Mr Howard |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Howard (“the mother”) appeals from parenting orders made by Tree J on 8 June 2016. The mother and Mr Howard (“the father”) have two children, B, who was aged 11 at the time of the orders, and C, aged nine.
The primary judge refused the mother’s application for the children to live with her in the United Kingdom, and orders were made for the children to spend equal time with each parent in Australia. The parties were to have equal shared parental responsibility for them.
The orders provided for the children to spend four nights with the mother, three nights with the father, three nights with the mother and four nights with the father each fortnight for a period of three months after the orders. Thereafter, during school terms, the children were to live with the parties week about.
The primary judge also made an extensive suite of orders dealing with the time the children were to spend with the parties during school holidays and on Christmas Day. It is not necessary to deal with those orders in any detail, as the appeal against those orders has been resolved by the parties. Order 14, which dealt with Christmas school holiday periods, will be set aside and replaced with a new order, which the parties agree will more accurately reflect the primary judge’s intention that the children spend equal periods of school holiday time with each parent over the course of a year, while enabling the mother to take the children to the UK each year. The order is as framed by the parties but slightly amended by us to correct the grammar.
The appeal, to that extent, will therefore be partially allowed on the application of both parties.
The children’s interests at the hearing were represented by an Independent Children’s Lawyer (“ICL”). The ICL appeared at the appeal and opposed it.
The appeal
The agreed order dealt with ground 2 of the Notice of Appeal. Counsel for the mother indicated that grounds 1, 4 and 5 largely depended on success on aspects of ground 3. As counsel did in oral submissions, we shall therefore start with that ground, which was itself split into three topics.
Before doing so, we wish to make some general comments.
The following words of Kirby J in AMS v AIF (1999) 199 CLR 160 apply aptly to this appeal. His Honour said:
150. …an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
(Footnotes omitted)
We consider that the mother takes an overly critical and pernickety approach to the primary judge’s reasons. We are not satisfied that, even if the mother’s complaints were established, they would lead to a finding that there was a material error that warranted the disturbance of the primary judge’s exercise of discretion. The issue would also arise as to whether or a not any such errors would lead to a finding of a substantial injustice that warranted a re-trial: Lane & Nichols (2016) FLC 93-750 at 81,959 – 81,960.
Was the primary judge’s finding that the Family Report writer’s evidence was “that there should be a staged procession to week about time” open on the evidence or against the weight of the evidence? (Ground 3(a))
In order to understand this ground, it is necessary to set out some relevant facts.
At both the time of the preparation of the Family Report and the hearing, the children were spending equal time with each parent. The arrangement was that they would spend two days with one parent, three days with the other and then two days with the first parent in turn, so that they spent seven days with each parent every fortnight.
In his proposed orders the father sought that the children spend equal time with each parent on a week about basis.
The mother advanced two proposals for the time the children were to spend with the father, in the event that both the father and the mother were living in the same country. The first proposal was that if the mother was permitted to relocate the children to the UK and the father also followed to live nearby, the children would spend alternate weekends from Thursday afternoon to Monday morning with the father together with Wednesdays in the off week. The mother proposed the same regime if she was to remain in Australia: that the children would spend time with the father from Thursday after school to the following Monday in one week and overnight on Wednesday the following week. This would see the children spend five nights a fortnight with the father.
On the last day of the hearing the mother changed her position. She then proposed that if both parties were to live in the UK, the children would spend equal time with each parent on the current (2:3:2) regime. On the other hand, if they all remained in Australia, she continued to seek a 9:5 split and not equal time.
The ICL generally supported the father’s position.
Thus, the current arrangement of equal time on a 2:3:2 basis was not supported by anyone, at least insofar as the children remained living in Australia.
The primary judge said:
120.In those circumstances I am satisfied that an order for equal time is in the best interests of the children, and is reasonably practicable. I am therefore satisfied that there should be an order for equal time, as indeed there has been since the parties separated in January 2015.
121.However I am not persuaded that the present regime is satisfactory, in that although it does afford equal time, it involves far too many changeovers. I accept [the family consultant’s] evidence that there should be a staged progression to week about time, and do not accept the father’s proposal that should happen immediately in combination with seven day block time over holidays. There will therefore be an order for the staged progression to week about time between each parent. For three months it will be a 4:3:3:4 fortnightly split, and then move to a 7:7 split.
(Emphasis added)
The mother’s challenge is only to the words that we have emphasised. The mother submitted that the family consultant gave no evidence as to week about time and that this finding was, therefore, erroneous.
The family consultant observed that the children had a preference for spending a greater length of time with the mother but with less frequent changeovers.
As to the present issue, she said:
In regards to the children’s living arrangements in Australia, the writer recommends status quo.
We observe that equal time was the status quo, but how that was to be achieved was not so clear. In her oral evidence the family consultant clearly agreed that the present 2:3:2 arrangement was not satisfactory, as it involved too many changeovers. The following exchange makes this clear:
[MS LAWRENCE:] Okay. Is that amount of time that the girls feel that they’re unable to be away from mum – that two-night period where they can cope with that – is that likely to change as they get older?
[FAMILY CONSULTANT:] That will depend on the messages. Currently it’s reinforced two nights is all they can cope with, and until they can see that they can survive and mum can survive three nights, four nights, five nights, they will be locked in on two nights.
[MS LAWRENCE:] Is this the kind of arrangement where you need to balance the need to minimise the amount of changeovers, but perhaps not deal with the changeovers on a fortnightly basis, or deal with the time on a fortnightly basis; rather deal with it weekly or - - - ?
[FAMILY CONSULTANT:] I had considered looking at other arrangements for the children that would give them consistency. So Monday, Tuesday with one parent; Wednesday, Thursday with a parent; and then alternate the other, and that would reduce the number of changeovers, but the children were quite stuck on, “We can’t be away from mum for that length of time.”
HIS HONOUR: Were they able to articulate a reason for that?
[FAMILY CONSULTANT:] No. I think it’s all part of their lack of maturity, that they’ve got this fixation that it’s two nights.
Thus, the family consultant also agreed that the present arrangement was unsatisfactory. Her recommendation that the status quo remain must be seen in that light and as a recommendation for equal time, but not on the current regime.
The family consultant’s evidence supports the finding already quoted, that the present regime was unsatisfactory but that any change should be staged so that the children would become used to spending more than two nights in a row away from the mother. Of course, under the current regime they were already spending two or three days in a row with the father each week. Any extension to four consecutive nights each fortnight as provided for in the final orders was but a small step.
The family consultant’s evidence was that there should be equal time, there should be fewer changeovers and that any increases in the length of time with the father should be staged. Logically, and inexorably, this leads to week about time.
This, of course, was the father’s proposal.
Even accepting that the family consultant did not, in terms, refer to week about time, a finding that such time was a desirable course was entirely open to the primary judge on the evidence. Each of the parties and the ICL sought a different arrangement to the regime that was then in place. His Honour’s approach was open to him on the evidence and on the state of the various proposals before him.
The mother also submitted that the primary judge’s reasons were inadequate. The extent of the obligation to give reasons is well known: Bennett and Bennett (1991) FLC 92-191. The parties must be able to understand the basis of the decision and the extent to which their arguments have been understood and accepted: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59].
His Honour’s reasons clearly identify why he made that particular order for equal time and this aspect of the challenge is not established.
We are not satisfied of any error or that any error caused the primary judge’s discretion to miscarry.
Was the primary judge’s finding that the Family Report writer was “of the view that the children’s cognitive development was not sufficient in either case to enable them to truly appreciate the consequences of their decisions” not available on the evidence? (Ground 3(b))
The primary judge’s finding, in full, was:
75.It is plain from the Family Report interviews that the children have expressed wishes to relocate to [the UK]. They have some experience of living there, as they have regularly holidayed there since they were young. However it appears as though most of their holidays have been around Christmas, and it is clear that they have never in fact lived in the UK, but only holidayed there.
76.[The family consultant] was of the view that the children’s cognitive development was not sufficient in either case to enable them to truly appreciate the consequences of their decisions. I have already discussed that, when [the family consultant] raised with them the prospect that, when spending time with the father in Australia, they would be precluded from spending time with their mother for perhaps as long as five weeks, they descended into tumultuous tears, indicative of the fact that they had never appreciated what was likely to in fact ensue from relocation.
77.Although the mother opined that the children do indeed understand the implications of their expressed wishes, [the family consultant]’s evidence as to their cognitive development was not challenged.
78.The father, and to a lesser extent [the family consultant], also opined that the children’s expressed wishes are the product of a degree of alignment with the mother. There is some support for that, in that the children perceive that the mother is sad that she is not able to relocate to [the UK], and that they perceive it as unfair that the father has extended family closeby where he is living in Australia, but the mother does not.
The mother challenges the first sentence of [76], submitting that it was not supported by the evidence.
We would immediately observe that the finding is well-supported by the findings in the balance of [76] and [77], which were not challenged on appeal.
In the Family Report, the writer said:
117. Throughout this assessment both children advocated they found being separated from Ms [Howard] for more than two consecutive nights stressful. On the other hand, the children reported such stress was not experienced when separated from Mr [Howard] for the same length of time. The children also reported they could not recall missing him when previously in [the UK]. A child reasoned when on holiday you are busy, less likely to miss a parent. In the context of advocating they wanted to live with their mother in [the UK] and spend time with their father in Australia, the writer posed the question if they are unable to cope with being separated from Ms [Howard] for no more than two consecutive nights and she was in [D Town], how would they cope with being separated from her whilst in Australia for some weeks. At this point the child sobbed; it was evident the reality of what was being advocated had not been previously considered.
…
138.The writer is of the opinion [the children] are yet to develop the cognitive maturity necessary to evaluate the long terms merits of living with one parent or the other. Of note, both children spoke of a preference for spending a greater length of time with Ms [Howard] combined with less frequent changeovers.
139.From the writer’s perspective [the children’s] desire to live with Ms [Howard] in [the UK] could be fuelled by a belief Ms [Howard] will be happier in the UK, a belief it would be fair to live in the same vicinity as the maternal family combined with a desire to experience a different country. Neither child displayed insight into how being physically separated from Mr [Howard] could impact on their relationship with him. The writer is of the opinion [the children] are yet to develop the cognitive ability that would enable them effectively consider and evaluate the long term benefits, short comings or difficulties of relocating with Ms [Howard] to [the UK].
In her oral evidence the family consultant said:
[HIS HONOUR:] When you reality tested the children about that four-week period – I see you’re shaking your head – can you explain the reaction, please?
[FAMILY CONSULTANT:] It was devastating, really devastating. I had tears over it because the children hadn’t even thought.
HIS HONOUR: Not you personally, I’m assuming; it was the children that had the tears?
[FAMILY CONSULTANT:] No, I wasn’t – well, I was moved.
[HIS HONOUR:] Yes?
[FAMILY CONSULTANT:] I – I was moved, I can assure you. When you’ve got a young child in front of you who is crying because they’re struggling with that concept of how will – if you can’t be separated from mum for two nights – that is too stressful – how are you going to cope with mum in [the UK] and you in Australia for 42 nights, is what I put to them, and the tears – it was horrendous. I had to work hard to keep the interview going because I really thought, “Do I end it or not?” but there was more things that I had to explore. It was evident that the children hadn’t even thought about that. You know, if you’re going to hold up an argument – and this is part of their immaturity – if you’re going to hold up an argument that I can’t be separated from mum for more than two days, two nights, you can’t argue you’re going to come to Australia, even for 14 nights. That can’t be held, and the same with the mother’s argument is that she’s saying that the children are missing her after two nights. Well, that doesn’t hold water when you’re going to package them up for an extended period. So – and that’s where I’m saying that the messages are going to be there constantly, that you will be okay – I will be okay. But we shouldn’t be saying that to our children.
…
[HIS HONOUR:] These girls’ view of fairness in relation to an equal split doesn’t translate, though, when they’re talking about the preference of the amount of time they would like to spend with their mum over their dad, though, does it?
[FAMILY CONSULTANT:] No.
[HIS HONOUR:] So had you reality tested them in relation to a fifty-fifty type arrangement?
[FAMILY CONSULTANT:] I had.
[HIS HONOUR:] And am I right in saying they expressed a preference to spend a bit more time with mum than with dad?
[FAMILY CONSULTANT:] They did.
[HIS HONOUR:] And so are you able to say what kind of arrangement the girls were speaking about ‑ ‑ ‑?
[FAMILY CONSULTANT:] Okay.
[HIS HONOUR:] ‑ ‑ ‑ and how reasonable that is?
[FAMILY CONSULTANT:] What the girls are looking at is no more than two nights separation from their mother, because we’re distressed after two nights, but they don’t want frequent changeovers, and I did map out the number of nights in a fortnight and how they could see this happening, and they struggled with those two concepts, and all they could suggest was, “Well, we just spend less time with dad, and therefore – therefore, we would have less changeovers.” So it was about the number of changeovers, and it was about not being separated from mum, but in their little heads they couldn’t grapple their arguments; they weren’t logical.
Notwithstanding this evidence, the mother persisted with the submission that the evidence “is not capable of extension to support the finding that [the family consultant] ‘was of the view that the children’s cognitive development was not sufficient in either case to enable them to truly appreciate the consequences of their decisions’”.
On the contrary, we consider that this evidence entirely supports the primary judge’s finding. First, the children were incapable of realising that a move to the UK, which they preferred, would lead them to spending four to five weeks a year with the father. When they were informed that this was so, they burst into tears at the thought of spending so long a period away from their mother. Secondly, we refer to the passage in the family consultant’s evidence we have quoted at [35] above, in which she recorded that the only way the children could think of to reduce the frequency of changeovers was to reduce the time that they spent with the father. Finally, there is the express evidence of the family consultant that the children “are yet to develop the cognitive ability that would enable them effectively [sic] consider and evaluate the long term benefits, short comings or difficulties of relocating with Ms [Howard] to [the UK]”.
The primary judge’s findings as to the children’s cognitive development and their ability to understand the consequences of their decisions were therefore open to his Honour. There is no merit in this ground.
Was the primary judge’s finding that the mother “apparently concedes it would be in the children’s best interests to spend equal time with the father if they were living in [the UK]” available on the evidence? (Ground (c))
We understand the mother’s submission to be that there was, in reality, little likelihood that she would be permitted to relocate the children to the UK, so her proposal that the children should spend equal time with the father if he also moved to the UK carried little weight and was wrongly taken into account by the primary judge.
We have already set out the history of the various proposed orders. Until the last day of hearing, the mother’s proposal was that if she was permitted to relocate to the UK with the children and the father also relocated, the father would spend Thursday afternoon to Monday morning with the children every second week, together with Wednesdays in the off week. In the event the mother was not permitted to relocate to the UK, she proposed a 9:5 regime. On the last day, the proposal was modified so that if the children and the parties were to live in the UK there would be equal time.
The primary judge said:
93.Up until the final day of trial, it may fairly be said that the mother’s proposals as to the father spending time with the children, whether in Australia or in the UK, were parsimonious. The best illustration of that is that even if the father did relocate to [the UK] and lived within 30 minutes of the children, the mother proposed only that he would spend alternate weekends with the children, together with Wednesday night in the “off week”. Against a background that, post-separation the children have always spent equal time with each parent, the justification for such a dramatic change was not readily apparent in the evidence, and is difficult to discern. [The family consultant] was critical of the mother’s position at that point, in that it provided no incentive whatsoever for the father to relocate.
94.Even though on the final day of trial the mother’s position in that respect changed dramatically, it was still difficult to discern her reasoning behind the proposals. That is because although she proposed, if the father relocated to [the UK], that the present arrangements would continue (ie equal time), if relocation were not permitted, and the mother and children remained in Australia, she only proposed a five/nine split. I confess to having great difficulty in understanding the justification for that difference in position, even accepting that the mother suggested that the equal time arrangement in [the UK] might only be “short term.”
…
112.Both the father and the Independent Children's Lawyer contend that it would be in each child’s best interests to spend equal time with each of the parents, but the mother’s position is inconsistent. She apparently concedes it would be in the children’s best interests to spend equal time with the father if they were living in [the UK], but does not concede it if they were living in Australia. I have already adverted to the difficulty in understanding the reasons for the mother’s differing positions in this respect.
In support of her submission the mother relied upon the following passage in his Honour’s reasons:
90.On the other hand, the father did not run a negative case which asserted it was not reasonably practicable for him to relocate. For instance he did not call any evidence as to the absence of employment opportunities in [Town I]. It may fairly be said that the mother ran her case on the assumption that the father would not relocate in any event, and indeed the father’s case was to that effect.
91.Given the state of the evidence, I am not satisfied either that it is reasonably practicable for the father to relocate, or that it is not reasonably practicable for him to do so. The evidence is neutral. That said, I am satisfied that indeed the father would not relocate, even if the mother were permitted to relocate with the children. Whilst ordinarily this may be a major focus of a trial, this case is unusual in that the mother accepted that the father would not relocate, or was at least highly unlikely to. To an extent therefore, I am absolved from further inquiry by the concession.
Thus, the mother submitted that the father moving to live in the UK was, in reality, “off the table” and that the mother’s proposal for equal time in the UK was of no moment.
In effect, the mother asks this Court to infer that her proposal was not genuine and that therefore the primary judge was wrong to be perplexed about it.
That was not, however, the mother’s position before the primary judge. The mother did not suggest, either in evidence or in submissions, that her proposal was not genuine or was not one to which anything other than full weight should be given.
Therefore, it is impossible to see how his Honour erred in the passages quoted earlier.
It must be remembered that the parties’ parenting proposals form a framework in which the parenting proceedings take place. Each proposal is an offer to the other party of an acceptable parenting arrangement. It is implicit in such proposals that the mother considers them to serve the best interests of the children, because they are an invitation to the Court to make these orders.
The suggestion that orders should be proposed for tactical reasons, such as to make a party appear more reasonable than they really are, is to be highly deprecated.
There is also a logical difficulty in this submission. The above is a portion of his Honour’s reasons for refusing the relocation to the UK. The mother did not know that outcome when she proposed the orders for equal time if the children were to live there. Indeed, a significant issue, if not the primary issue, in the proceedings was the question of relocation. The mother’s proposals as to time must be seen as part of her firmly prosecuted case that the children should live with her in the UK.
Two further matters need to be noted. The first is that had the mother indicated to the primary judge that part of her proposed parenting orders was not genuine, his Honour would have been entitled to take that into account, particularly in relation to a consideration of the mother’s approach to maintaining the children’s relationship with the father.
Secondly, it is likely that had the primary judge permitted the mother to move to the UK with the children, orders for equal time would have been made in accordance with the mother’s proposed orders. Whilst his Honour found, on the evidence before him, that the father would not relocate to the UK, the father may have later changed his mind. The mother could not exclude that possibility.
In short, the mother proposed orders for equal time if the children were to live in the UK and she now cannot escape the consequences that flow from her proposal.
There is no merit in this ground.
Grounds 1, 4 and 5
Counsel for the mother accepted that ground 1 only arose for consideration if ground 3(b) was established.
Ground 4 was said to be a further expression of grounds 3(a), 3(b) and 3(c), such that if those grounds were not successful, ground 4 would fall away.
Ground 5 only arose if grounds 3(a), 3(b) and 3(c) were established.
There is therefore no merit in these grounds and the balance of the appeal will be dismissed.
Costs
The father sought an order for the payment of his costs if the appeal was unsuccessful. The ICL did not seek any order as to costs.
The parties agreed on a minor change to Order 14 made by the primary judge. The reference in that order to the first and last week of the Christmas school holidays was changed to a reference to the first and last weekend so as to better reflect his Honour’s intention. Otherwise, the appeal was wholly unsuccessful.
We take into account the nature of the appeal and our general observations made in [8] – [10] above.
We accept that neither party is in a strong financial position. Neither has any assets of significance or a significant income. The mother appears to be in a particularly limited financial position. However, impecuniosity is not, of itself, a bar to a costs order, otherwise impecunious litigants would be free to run meritless appeals without risk: Lenova & Lenova (Costs) [2011] FamCAFC 141.
Taking into account the lack of success of the appeal and its nature, the appropriate order is that the mother pay the father’s costs of the appeal, to be assessed if they cannot be agreed.
I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace & Aldridge JJ) delivered on 24 March 2017.
Associate:
Date: 24 March 2017
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