Hulce and Chorley (No 2)
[2020] FamCAFC 201
•13 August 2020
FAMILY COURT OF AUSTRALIA
| HULCE & CHORLEY (NO. 2) | [2020] FamCAFC 201 |
| FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Family violence – Where the primary judge ordered that the children could remain living with the mother in Victoria after she relocated with them without the father’s consent – Where the father’s time with the children pursuant to the orders is impacted by travel restrictions associated with the COVID‑19 pandemic – Where reasons of the primary judge given in short form pursuant to s 69ZL of the Family Law Act 1975 (Cth) – Consideration of s 60CC factors in interim proceedings – No error established – Where the appeal lacks utility given the proximity of final hearing – Appeal dismissed – Mother’s application for costs dismissed. |
| Evidence Act 1995 (Cth) s 144 Family Law Rules 2004 (Cth) |
| Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v the King (1936) 55 CLR 499; [1936] HCA 40 Nasparus & Frankham [2018] FamCAFC 190 Reece & Reece [2011] FamCAFC 24 Tobey & Rezek and Ors [2011] FamCAFC 86 Yabon & Tabano [2020] FamCAFC 22 |
| APPELLANT: | Mr Hulce |
| RESPONDENT: | Ms Chorley |
| FILE NUMBER: | SYC | 1539 | of | 2020 |
| APPEAL NUMBER: | EAA | 79 | of | 2020 |
| DATE DELIVERED: | 13 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 10 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 May 2020 |
| LOWER COURT MNC: | [2020] FCCA 1568 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Kennedy |
| SOLICITOR FOR THE APPELLANT: | Doolan Callaghan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | BJT Legal |
Orders
The father’s Application in and Appeal filed 22 July 2020 to adduce further evidence be allowed in part.
The appeal be dismissed.
The mother’s application for costs be dismissed.
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 Hulce & Chorley (No. 2) 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 79 of 2020
File Number: SYC 1539 of 2020
| Mr Hulce |
Appellant
And
| Ms Chorley |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 29 July 2020, Mr Hulce (“the father”) appeals various interim parenting orders made on 18 May 2020. The father and Mr Chorley (“the mother”) are the parents of Y, born in 2012 and Z, born in 2013 (“the children”). In January 2020 the mother left the father and, taking the children with her, moved from Sydney to C Town in Victoria. She chose that location because this is where her extended family live. The mother rightly anticipated that the father would not agree to the children living so far away and the parties were quickly in dispute about the children’s living arrangements. When it became clear that the mother refused to return the children to Sydney, the father commenced proceedings in the Federal Circuit Court of Australia for the children’s return and related orders. He proposed that the children live with him, or live with the mother (equal time with him), if she was willing to return.
The father’s application failed and interim orders were made which provided the children live with the mother (Order 5) and “be permitted to live in Victoria” (Order 6). The father appeals against those and a number of related orders. The mother seeks to uphold the decision of the primary judge.
In accordance with s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) the Chief Justice directed that the appeal be determined by a single judge.
An application filed by the father on 22 July 2020 to adduce further evidence in the appeal must also be considered. The application was presented to establish error as to the mother’s prosects of obtaining employment in Sydney and the effect of NSW COVID-19 border control restrictions. As to the latter there was no disagreement and the evidence is received without objection.
Background
So as to provide context to the appeal, a brief factual background is required.
The parties lived together from 2010 until January 2020 when they separated on a final basis. Throughout, they lived on the northern suburbs of Sydney.
It appears to be common ground that following the birth of the older child, both parties were able to work from home. They own and operate a business. Again, it would appear uncontroversial that the father was primarily responsible for day‑to‑day business operations and that the mother had a lesser but still active role in its operations. The demands of the business are such that it cannot be operated from Victoria and thus the father cannot relocate.
There is a dispute concerning the father’s role in the children’s care. It is the mother’s evidence that she was primarily responsible for their day‑to‑day care and that the father’s time was largely taken up with the business. The father contends that he has always been involved in every aspect of the children’s lives and he was able to manage his work commitments around the children’s school hours. This begs the question of the care arrangements before the children commenced school and provides a foundation for his Honour’s preliminary view that the mother has been the children’s primary carer.
The mother deposes to the father verbally and emotionally abusing her from 2012 onwards. She gives evidence of him belittling her, not allowing her to speak, controlling her financially and making it difficult to visit her family in Victoria. The father agrees that he and the mother argued from time to time, according to him mostly about money. It would seem that the family’s finances have never been terribly comfortable and the parties often disagreed about what they could or could not afford.
According to the mother, the parties’ relationship deteriorated in 2019 and it is in 2019 that the father’s abusive behaviour became physical. The mother describes the situation thus:
Once or twice a month, if I tried to escape [the father] yelling at me, or leave the house during one of his rants, he would block doorways and force me to stay in the room. He would puff his chest out and push me back and if I tried to get past him, he would block my path. I would then have to sit in the room and listen to him rant as above. If I did escape out of the house, he would chase me to the car or use his key to lock the car.
(Mother’s affidavit filed 8 April 2020, paragraph 22(k))
According to the mother, the situation in the home continued to deteriorate. What is probably the most serious incident of family violence about which the mother gave evidence took place on 12 December 2019. The mother’s evidence is:
… [A]round 8.15am on this date, we had a dispute prior to [the older child’s] appointment to see a Behavioural Optometrist. I had filled in a form answering questions about [that child’s] history as he has found it difficult to learn to read. [The father] was leaning on the kitchen bench, changing the answers on the form. I said, “don’t do that, you can have your own opinion, I will print you out your own form to fill in.” I grabbed the sheet back and turned to get away. He grabbed me and put his arm around my neck and held me tight with one arm while he put the other around my neck in a headlock. His arm was pushing into my throat and I said in a slow and muffled voice “[father’s name].” Our children were right in front of me watching with confused and frightened faces. He finally let go. It was time to go to school. He ran outside barefoot and jumped in the car and said “I’m coming to the appointment, you want [the child] to get glasses.” We went to school in the car together. He made me cancel the appointment. I jumped out of the car with the kids at school to avoid being alone with him. He drove off. After trying to do some chores in the morning, I rang my mother in tears and said that I had to escape him.
(Mother’s affidavit filed 8 April 2020, paragraph 22(p)) (As per the original)
This is when the mother decided to separate. She sought advice from various family violence support services to develop an exit strategy from the relationship with the children.
Of the incident on 12 December 2019, the father said:
On 12 December 2019 [the mother] told me that she had an appointment with the doctor to check on [the older child’s] eyes. She handed me a form she had been filling out and I asked her why she hadn't shown it to me earlier but she didn't answer. I sat down to read it and told her that I didn't agree with some of what she had included on the form and started to make a change to one answer. [The mother] yelled at me saying that I couldn’t change it and that she had to leave for the doctor. [The mother] put the form in her bag and went to push me out of the way. I began to fall but she started spinning around crazily which caused my arm to be across her chest. I tried to hold her to calm her down but she wouldn't let me. I was shocked and didn't know what to do and concerned that the children were watching so said that I would just go with them to the doctor and read it on the way but she said no. We then left together to drop the boys to school as it was too late to go to the doctor.
(Father’s affidavit filed 6 March 2020, paragraph 43(b)) (As per the original)
In early January 2020 the parties executed a lease on a home at Suburb E with an occupation date of 17 January 2020.
While on a family holiday at the paternal grandfather’s home, the mother told the father she was taking the children for a drive but failed to return. The mother drove to Sydney and that evening she told the father that she needed some time away to consider their future. The mother and children then went onto C Town where her family lives.
On 28 January 2020, the mother filed an application against the father for an intervention order in the Magistrates’ Court in Victoria. An ex parte interim order was made against the father for the protection of the mother and the children which required that he not “commit family violence against [them]” and restrained him from approaching the mother and the children, the mother’s parents’ home and the children’s school other than pursuant to an order or with the mother’s written consent. The proceedings were adjourned to 19 February 2020.
It would seem that on the same day, the mother withdrew $15,000 (making a total of $17,000 withdrawn) from the family business. There is an issue about whether these funds were held on behalf of a client, but even if they were not, the business had limited reserves and the father borrowed funds from his father to address the situation.
By then, the father had obtained legal advice and his solicitors wrote to the mother requesting that she return the children and informed her that the father did not agree that the children attend school in Victoria.
On 19 February 2020, the intervention order application was adjourned and the ex parte orders were continued.
On 6 March 2020, the father commenced proceedings in the Federal Circuit Court of Australia. His application was returnable on 11 March 2020 and on that day, both parties participated with legal representation. By agreement, interim orders were made for the father to spend time with the children in Town H on 18 March 2020; when the intervention order application was listed for hearing and on three weekends in Sydney through April to May 2020 when the father’s application for interim parenting orders was listed for hearing (on 15 May 2020). Orders were also made for telephone contact between the children and the father and for a Child Inclusive Conference on 17 April 2020.
However, the COVID-19 pandemic escalated and it was agreed that the children would not be able to travel to Sydney to see the father.
The intervention order proceedings were resolved by agreement on 18 March 2020 on the father’s undertaking, given without admissions, that he would not contact the mother other than in relation to matters concerning the children.
The children spent time with the father at a caravan park in Town F, Victoria, from 1–5 April 2020. The father also had time with the children in Victoria from 17– 20 April 2020 and 7–12 May 2020.
The parenting proceedings were heard on 15 May 2020 and judgment was given on 18 May 2020.
The father appealed against certain orders on 15 June 2020 and on 24 July 2020, on his application, an order was made expediting the appeal. In the meantime, the proceedings were given trial dates in a Court Circuit.
The reasons for judgment
The primary judge noted the circumscribed nature of an interim hearing undertaken without cross‑examination and, by reference to oft cited authorities acknowledged the constraints on fact finding where the fact in issue is contentious (Eaby & Speelman (2015) FLC 93-654). The orders would be “a temporary but necessary measure” [13] and were not designed to address the best interests of the children long term [41]–[42].
Having accurately summarised the parties’ proposals, including the mother’s alternate position that she would, if required, return to Sydney with the children [8], the primary judge was unable to determine whether the father had been physically violent to the mother, as she had alleged. However, there was evidence given by witnesses independent of the parties of the father’s “very aggressive and threatening communication style when he is upset or frustrated” [18]. This is a reference to the father’s dealing with the children’s school in Victoria [16] and, to a degree, observations made by the family consultant [14]. These independent observations tended to support the mother’s concerns about the father [20].
His Honour then turned to the mother’s application for spousal maintenance as resolution of that question “impacts substantially on parenting” [24]. It was accepted that the mother, whose income was social welfare payments, established that she was unable to support herself. The question to be answered was whether the father had the capacity to pay spousal maintenance. The mother was unable to establish that he could and the father successfully resisted the application, which was dismissed.
The primary judge then analysed the mother’s financial circumstances in order to determine whether she was able to afford to live independently in Sydney. Wherever the mother lived, as a person re‑entering the labour market, at the moment, her prospects of securing paid employment on the “open labour market” were poor [35], [38]. Judicial notice was taken of widespread job losses unfolding because of COVID-19 shut downs and the millions of people attached to their employers by the Federal Government’s JobKeeper program. As to the latter, employers who had accepted JobKeeper payments were obliged to give priority for work to their current employees. Although, in Victoria, the mother had some prospects of employment in a family business, the reality was, that wherever the mother lived, there is a “fair chance” that she would be living on social welfare benefits “for a long time” [37].
Even with a generous offer of financial assistance made by the paternal grandmother, housing costs in Sydney were beyond the mother’s reach. On the other hand, the mother had secured accommodation at C Town at $300 per week, which she could afford. This provided the children with a degree of certainty which, for the time being, Sydney did not [36] and [38].
The primary judge continued:
39.In those circumstances, I then come to consider the fact that it seems to me the mother cannot move, and the father cannot move because of his business. So then the question is are the children’s best interests served by living with the father and having the benefit of the paternal family in Sydney and seeing the mother on an infrequent basis, noting, that the possibility of a shared care arrangement is made impractical and I give no more consideration to it because of what I have found about the geographic locations, or are they better off living with the mother and spending time with the father.
40.I also note that in Sydney they would have the benefit of a school they know, although at the moment the school is out, but they are starting to go back. It is a finely-balanced matter, in my mind, and I have had to consider it carefully.
Against this background, his Honour concluded that it was in the best interests of the children, for the time being, to “stay with their primary carer, who is the mother, and spend time with the father” [41].
The grounds of appeal
It needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v the King (1936) 55 CLR 499 (“House”). A different view by an appellate court only as to matters of weight by no means justifies a reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513).
It is important to remember that the reasons for judgment were given ex tempore on the next sitting day following the hearing. Appellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked (Akston & Boyle (2010) FLC 93-436 at [28]). Such an approach is appropriate in this appeal.
Furthermore, s 69ZL of the Act permits the reasons for judgment given for an interim parenting order to be in short form, which the primary judge did [1].
The father presented four grounds of appeal which, stated broadly, assert that the primary judge erred:
·in failing to consider all relevant aspects of s 60CC of the Act (Ground 1);
·by placing too much weight on the mother’s allegations of family violence (Ground 2);
·in finding that it was not in the best interests of the children to return to Sydney due to the uncertainty over where they will reside (Ground 3); and
·in taking judicial notice of employment, accommodation, the effects of COVID-19 and costs of returning to Sydney (Ground 4).
Utility in the appeal
The parenting proceedings have now been listed for trial in the week commencing 12 October 2020; some two months hence. A Family Report has been ordered for which the interviews are scheduled in the first week of September 2020. In these circumstances, the mother contends there is limited utility in the appeal and the appeal should be dismissed. Speaking of appeals prosecuted from interim orders shortly before a final hearing, in Reece & Reece [2011] FamCAFC 24 (“Reece”), Strickland J said:
108.This case highlights the difficulties associated with appeals from interim parenting orders where a final hearing has been listed to commence within a relatively short time frame. At the hearing I specifically raised with counsel the apparent futility of this appeal given the time frame and the listing of the final hearing, however, counsel still wished to proceed with the appeal.
109.Thus given that the final hearing is to commence on 15 March 2011, I consider it to be of no utility to allow the appeal. Accordingly, despite my conclusions that it has been established that the Federal Magistrate erred, the appeal will be dismissed.
In Reece, the final hearing was listed for hearing some four months after the appeal. There are numerous other instances where the proximity of the final hearing resulted in the dismissal of an appeal by reason of an absence of practical utility; for example Tobey & Rezek and Ors [2011] FamCAFC 86 (two months); Nasparus & Frankham [2018] FamCAFC 190 (one month); Yabon & Tabano [2020] FamCAFC 22 (two months).
On behalf of the father it was submitted that the Court could not be confident that the final hearing would proceed. Counsel for the father said final hearings in the Federal Circuit Court were usually over listed with, at least two or three final hearings listed simultaneously. There was thus a serious risk that the hearing in October 2020 would not proceed. Counsel for the mother did not disagree with the notion that the final hearing may be but one of a number of hearings listed at the same time, but emphasised that the mother would do whatever she could to ensure that the hearing proceeded.
It is accepted that there is no guarantee that the final hearing will proceed as listed; however, this case has all the indicia of one that will be afforded priority over others. For example:
·there are allegations of family violence;
·the children were moved interstate by one parent against the wishes of the other;
·state borders are effectively closed and these children are being denied face‑to‑face contact with a parent with whom they enjoy a meaningful relationship;
·there will be current evidence from a family consultant; and
·all parties are ready to proceed.
It is difficult to think of a more compelling case for a priority trial and it is appropriate to proceed on the basis that the hearing will proceed as listed.
The trial will enable serious issues central to the determination of the best interests of the children to be resolved. Only at trial, will the disputed facts concerning, for example, family violence, the extent of the father’s involvement in the children’s day-to-day care, the mother’s ability to obtain paid work and the nature of the children’s living arrangements in Sydney, be determined. Without the testing of disputed facts, such disputes cannot be satisfactorily resolved in an interim hearing. Thus, even if error is established, it would not be appropriate to commence a further interim hearing as to the children’s living arrangements for the short period between now and the final hearing.
Plainly, it is in the best interests of the children that such a decision is made on a firm factual foundation and with long term rather than short term considerations in mind. Rightly or wrongly, the children have been in Victoria for seven months. They are not at risk and their situation is sufficiently stable that the Court would not impose the instability inherent in having them returned to the northern suburbs for a matter of weeks prior to trial. After all, the mother does not presently have accommodation in Sydney and current COVID-19 health orders would require the mother and children to go into isolation for 14 days. The practicalities and best interests of the children all weigh against requiring a significant change to the children’s living arrangements for a matter of weeks and there being any utility in the appeal.
Section 60CC considerations
Ground 1, which is the primary ground of appeal, asserts that the primary judge failed to consider all relevant s 60CC factors. Section 60CC provides a suite of factors as to how a court determines what is in a child’s best interests. The father lists nine factors, which it is submitted required consideration but were not, or were not considered sufficiently. Counsel for the father summarised the position thus:
4.The parties each raised many issues going to the childrens' [sic] relationships with the parents and others, participation in decision making, spending time with the children, communicating with the children, fulfilling parental obligations, effect on changes in their circumstances, practical difficulty and expense, parental capacity and attitude to parenting.
5.It is submitted that his Honour erred in not considering all relevant s 60CC factors.
(Father’s Summary of Argument filed 29 July 2020, p. 6) (Emphasis in the original)
The theme developed was that the primary judge failed to consider the effect on the children of being denied the benefits of their good relationships with the father and a change from living where they had always lived, to a new location some 11 hours away by road. It was common ground, and as reflected in the Child Dispute Memorandum, that the children love each of their parents. The parties agreed that the children miss the father, at times “they enjoy spending time with him- there are aspects to their life in Sydney that they miss [including their friends and soccer teams] and aspects to their life in [C Town] they enjoy” (father’s Case Outline Document filed 13 May 2020, p.4, referring to the Child Dispute Memorandum dated 17 April 2020 at paragraph 20). Counsel argued that the father established his substantial role in the children’s lives, the children’s strong connections to their paternal family, they were settled in their schools and community, all of which had been taken from them and in relation to which the losses for the children were profound. These were all weighty factors which the primary judge was required to weigh in the balance along with the factors set to favour the mother’s proposals, but which it is submitted the primary judge did not do.
The primary judge rightly placed significant weight on questions of practicality [23] so as to ascertain whether it was reasonably feasible for the mother to return to Sydney in the short term. The point being, that if she could not, the issues in the case were narrowed to a choice between the children residing in Sydney with the father or in Victoria with the mother. There is no issue that once that determination was made, contact along the lines ordered was the maximum that was reasonably practicable.
Having decided against the mother in her application for spousal maintenance, the primary judge determined that the mother could not move in the short term [39] and, although “there would be significant benefits for the children in having access to having everyone and live in the same city” [37] presently that option was not available. I agree with the submission for the mother that upon that determination, the various factors, which the father says the primary judge overlooked, became irrelevant. No amount of discussion about the benefits to the children of colocation with the father, the losses for them if they were not and the advantages of an equal time arrangement could have influenced the outcome unless the primary judge was satisfied that the mother was able to return to a satisfactory living arrangement.
However, in fairness to the trial reasons, it is not accepted that the primary judge failed to consider the strength of the children’s ties to the father, the paternal family and their school and lives in Sydney. Regard need only be had to [37], [39] and [40] to establish the point. His Honour’s discussion and findings on the point are brief but sufficient. All the more so when s 69ZL and the assumptions made in favour of an ex tempore judgment are taken into account.
As the primary judge mentioned, in Banks & Banks (2015) FLC 93-637 at [50] (“Banks”), the Full Court explained that where findings made in relation to some s 60CC factors will be determinative of the child’s best interests on an interim basis, it is unnecessary to address the remainder. It would have been an exercise in futility to explore issues predicated on the assumption that the mother could return with the children when his Honour was satisfied that presently she could not. The primary judge was not obliged to explore hypotheticals and doing so would have been a “sterile and unnecessary exercise” (Banks [50]) which Banks established he need not engage.
Furthermore, merely because the mother said that rather than lose the children she would return to Sydney, did not mean that she could afford to do it or that the primary judge was obliged to proceed on the basis that, in Sydney, she would be able to establish an appropriate standard of living for her and the children. It was appropriate that the primary judge consider the practicability of her alternate proposal and determine whether it could in fact be achieved.
This ground has not been established.
Family violence
By Ground 2 the father asserts that the primary judge gave too much weight to the mother’s evidence concerning family violence. In effect, the father complains that the primary judge discussed this issue at some length (which he did) and in a finely balanced matter, it was the evidence of family violence which wrongly tipped the case in favour of the children remaining in Victoria. This submission cannot be reconciled with the submission made in support of Ground 4 that the decision is based on the finding that the mother could not presently afford to live in Sydney. In any event, weight challenges are notoriously difficult, even more so when the challenge does not accurately reflect the trial reasons, which Ground 2 does not.
The primary judge accurately recorded that the mother does not suggest that the children would be unsafe with the father or that he poses an unacceptable risk to them [22]. His Honour was satisfied there was no question that the children would not be well cared for in either Sydney (with the father) or Victoria (with the mother) but that the children should live with the mother because she has been their primary carer [41]. The submission that by the mother that family violence issues did not tip this finely balanced case in her favour is correct.
Ground 2 has not been made out.
A return order should have been made
In its terms, Ground 3 asserts that the primary judge erred in finding that it was not in the children’s best interests to return to Sydney due to uncertainty over where they will ultimately be living, in circumstances where the mother created that uncertainty. Furthermore that no consideration was given as to the length of time that the matter would take for a final hearing. No oral argument was addressed to this challenge and the written Summary of Argument on the point is:
9.If the Appeal is successful and the mother is ordered to return the children to Sydney then it is submitted that the Federal Circuit in Sydney has no capacity to hear and determine a parenting case for a considerable time. The most ambitious estimate to reach a final judgment would be 18 months to two years from now.
10.This is a matter which should have been considered under s 60CC (2)(m).
(Father’s Summary of Argument filed 29 July 2020, p.7 – p.8) (As per the original)
Although it is not entirely apparent how these submissions support House error, in circumstances where the matter is listed for a final hearing in two months, the assertion of error requires an hypothesis inconsistent with the facts.
Ground 3 has not been established.
Judicial notice
The gravamen of Ground 4 is that the primary judge erred in taking judicial notice of employment, accommodation, the effects of COVID-19 and the costs of moving from Victoria to Sydney. Section 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides that judicial notice may be taken about knowledge that is not reasonably open to question, in accordance with the provisions. No issue is taken with the application of the provision and neither the ground nor submissions made in support of it articulate the manner in which the primary judge erred.
Taken as its highest, there is a suggestion that the conclusion that a sizable portion of $15,000 which the father’s mother offered to give the mother should she return to Sydney, would be used on relocation costs [36] offended s 144 of the Evidence Act. The submission mischaracterises drawing an inference with taking judicial notice. But more to the point, the primary judge was concerned that this one off, generous offer, would run out [36]. His Honour said:
36.… I do not think it is appropriate to make an order based upon the fact that there might be this money which could be used to subsidise rent, even if it is six or twelve months, and then the [mother] has to come back here and say, the subsidy has run out and she has moved back, and now she is going to have to move somewhere else again.
37.I think that is not in the children’s best interests to have that uncertainty over where they will end up, although I know there is not much certainty now…
It follows that even if the finding as to removal costs was unavailable, his Honour’s concerns about the limited and finite nature of the offer would stand. In other words, the error would be immaterial and insufficient to establish a basis for appellate intervention.
Otherwise, the father seeks to adduce further evidence in support of this ground of three offers of employment he has secured for the mother. These job offers are attached to the father’s affidavit filed 22 July 2020 and arise from approaches he made to a number of work associates. All three offer employment of between 15 and 30 hours per week at $30 per hour. The prospective employers variously indicate that the position “may be suitable” (Annexure H-3 to the father’s affidavit filed 22 July 2020), “it could suit you well” (Annexure H- 4) and “would suit you well” (Annexure H-5). Two of the three offers would require the mother to commence by the end of August 2020 and although the third is not so specific, of the three job offers, it is the least committed.
Counsel for the mother opposed this evidence being admitted on the basis that it is controversial, could not establish error and would not have produced a different result CDJ v VAJ (1998) 197 CLR 172 at [111]. The point being that before an order was made that the mother return with the children, the court would want to be unambiguously satisfied that the positions were available, ongoing and acceptable to the mother. And that this could only be done by the putative employers giving evidence, including under cross-examination. I agree.
Given the proximity of the final hearing, it would not be in the interests of the administration of justice, the parties or the children for a further interim hearing to occur. This further evidence will not be admitted.
Conclusion and Costs
The father has failed to establish error and the appeal will be dismissed. In those circumstances, the mother seeks her costs of approximately $14,000 on the basis that the father has been wholly unsuccessful, which, it is submitted amounts to both justifying circumstances and supports the order itself.
Although the father’s lack of success weighs in favour of an adverse order for costs, this appeal raised significant issues about the welfare of young children who were removed interstate without the father’s consent or an order. The issues arising from the mother’s actions were properly placed before the Court below and this Court. The father has been put to considerable expense to address the situation that has now transpired and, on balance, it is not reasonable to add to his financial burden by requiring that he pays the mother’s costs. Rather, it is appropriate that the primary position under s 117 of the Act prevails and each party pays their own costs.
The mother’s application for costs will be dismissed.
I certify that the preceding sixty‑six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 13 August 2020.
Associate:
Date: 13 August 2020
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