J and R
[2008] FamCAFC 61
•9 May 2008
FAMILY COURT OF AUSTRALIA
| J & R | [2008] FamCAFC 61 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – With whom a child spends time – With whom a child lives – Relocation – Parenting issues presented for trial – Parents decided that after the Federal Magistrate had heard some expert evidence the matter would proceed by way of written submissions – Whether a miscarriage of discretion – On appeal the mother challenged the orders in respect of the extension of the time the child spends with the father on weekends and the prevention of her relocating with the child – Argued by the mother on appeal that the Federal Magistrate unduly elevated evidence of a child and adolescent psychiatrist, over all other evidence, which he then inappropriately regarded as untested, and thus wrongly diminished its significance – Whether certain opinions and observations were wrongly given weight as if they were opinions of an expert for the purposes of s 79 Evidence Act 1995 (Cth) – No merits in grounds of appeal – Appeal dismissed |
| Evidence Act 1995 (Cth) s 79 Family Law Act 1975 (Cth), s 60CC, s 117(2A) |
| M & K [2007] FMCAfam 26 Norbis v Norbis (1986) FLC 91‑712 |
| APPELLANT: | MS J |
| RESPONDENT: | MR R |
| APPEAL NUMBER: | EA | 58 | of | 2007 |
| FILE NUMBER: | SYM | 5566 | of | 2006 |
| DATE DELIVERED: | 9 May 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | WARNICK, BOLAND and WATTS JJ |
| HEARING DATE: | 10 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 April 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 181 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr A Jamieson with Ms Conte-Mills |
| SOLICITOR FOR THE APPELLANT: | Zerrin Jamieson |
| ADVOCATE FOR THE RESPONDENT: | In person |
Orders
That the appeal be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym J & R is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 58 of 2007
File Number: SYM 5566 of 2006
| MS J |
Appellant
And
| MR R |
Respondent
REASONS FOR JUDGMENT
When parenting issues, of narrow compass but of potentially wide consequences, presented for trial before Altobelli FM, the parents Ms J and Mr R:
8.…decided that after I heard the evidence of Dr [S], and each counsel had the opportunity to ask her questions, the matter would then proceed by way of submissions only.
What his Honour made of the consequences of this course in his reasons for judgment is at the centre of this, the mother’s appeal. The argument is that the learned Magistrate unduly elevated the evidence of Dr S, a child and adolescent psychiatrist, over all other evidence, which he then inappropriately regarded as untested, and thus wrongly diminished its significance.
There are seven grounds in the mother’s further amended Notice of Appeal. Though we will say something of each of them, the two pressed at hearing were that indicated above, and secondly, that certain opinions and observations of Dr S, which were not matters of specialised knowledge based on expert training, study or experience, were wrongly given weight as if they were opinions of an expert for the purposes of s 79 of the Evidence Act 1995 (Cth).
The Federal Magistrate described the issues that he had been asked to determine as follows:
3.…
a)Should [A] spend time with his father from after school Friday to before school Monday as his father prefers, or should it be through to Sunday evening as his mother prefers?
b)Should [A] spend time with his father every weekend during the school term, as preferred by his father, or should it be every weekend except the last weekend of the month, as preferred by his mother?
c)Should [A]’s mother be restrained from moving with [A] more than one hour’s drive from [the town N] as his father prefers, or should any restraint allow the mother to relocate to the [X] Shire of Sydney, as the mother prefers?
The learned Magistrate decided these issues by ordering:
· that weekend “contact” be from after school Friday to before school Monday;
· but that during the school term, the last weekend of each month be excluded; and
· that neither party relocate the child more than an hour’s drive from the town N, without the written consent of the other party or the approval of the Court.
The mother challenges the orders in respect of the extension of weekend contact to before school on Monday and the prevention of her relocating the child more than an hour’s drive from the town N.
Before Altobelli FM, an Independent Children’s Lawyer appeared for A, who was then six years of age. However, the Independent Children’s Lawyer took no part in the appeal.
An application by the mother to adduce further evidence was not pressed.
In his reasons for judgment, the learned Magistrate noted that the mother conducted her case as a “relocation case”. He referred to authorities and also his own decision in M & K [2007] FMCAfam 26 and incorporated the discussion in that case into his reasons. The grounds of appeal contain no challenges to any discussion of principle or approach that might or ought be taken in relocation cases and therefore we say nothing about what the learned Magistrate said of such matters, in the judgment under appeal or in M & K (supra).
THE GROUNDS OF APPEAL
Ground 1
1.That his Honour’s discretion miscarried in that he erred in principle by misdirecting himself as to the approach he was required to take in evaluating evidence which a party elected not to challenge in cross-examination and in so doing:
1.1diminished the weight that he ought have afforded to the evidence of the Appellant and her fiancé; and,
1.2erred in the balance of his discretion in respect of considering matters raised in Affidavits balanced with the content of the expert’s report.
In addressing the complaint in this ground, it is helpful to consider whether there was conflict between the evidence of Dr S and that in the mother’s case. On more than one occasion we invited Mr Jamieson, counsel for the mother on appeal (and at trial), to indicate any matter of fact upon which Dr S’s evidence was preferred over that of the mother. No examples were given. Thus, while it is clear that the learned Magistrate placed reliance on Dr S’s evidence, including her opinions as to the appropriate parenting arrangements and in this sense those opinions prevailed over the mother’s proposals and arguments in support, Dr S’s evidence about any matter of fact did not compete with the evidence of the mother about any matter of fact.
Passages of his Honour’s reasons to which Mr Jamieson drew attention include:
8.…This meant that whilst all of the evidence was important, even they [the parties] recognised that Dr [S]’s evidence was going to be very important.
22.…the parties chose to conduct the matter on the basis of examining Dr [S] only, and otherwise making submissions based on the evidence, including the untested evidence of the parties and their witnesses. (emphasis added)
25.…Dr [S]’s evidence is the only tried, tested and uncontroverted evidence in this case. I must give it the substantial weight it deserves having regard to this.
26.…The difficulty, of course, is that none of this evidence was tested …
In our view, the learned Magistrate’s observations are not strictly untrue, though they may represent an insufficient recognition of the status of the evidence of each of the parties - not just that of the mother - namely, not so much that that evidence was untested, as that it was uncontested.
However, that omission of express recognition of the uncontested state of each party’s evidence does not necessarily amount to appellable error.
Moreover, the following observation of the Federal Magistrate was unchallenged in this appeal:
23.…I observe that in this case Dr [S]’s report and evidence was tested by each of the parties, but she remained resolute in her recommendations. Insofar as Dr [S]’s report depended on assessments of the parents or other witnesses, each party had the opportunity to, firstly, challenge those assessments and, secondly, to actually call the parents or other witnesses so that the assessments could be found deficient. The parties chose not to.
Mr Jamieson argued that the learned Magistrate’s description of the evidence of the mother, as untested and untried, may have led him to reject her evidence in relation to particular matters. He pointed especially to the mother’s evidence about exactly where she might reside.
While the Federal Magistrate did record details of the mother’s proposals and the advantages she suggested they would bring and did comment that none of that evidence had been tested, he went on to say:
26.… in any event, the mother’s proposal as to where she was going to live in Sydney was in a state of flux. Whilst it was clear she was no longer proposing to move to Sydney’s northern suburbs, it was by no means clear whether she was proposing to move to Sydney’s far south, or […], somewhat further north but still in Sydney’s southern suburbs. This meant I had no clear evidence about where [A] would live, where he would go to school, what his curricular and extra-curricular activities would be etc. Against all of this uncertainty of course, I had the very clear and certain evidence of Dr [S] that [A] needed to reside within an hour of [the town N] for the reasons discussed above.
In our view, the reference to the mother’s evidence on point as untested did not affect Altobelli FM’s treatment of it. The point was really that the evidence remained unclear, not that it was not accepted on its face.
Other points raised by Mr Jamieson might be dealt with briefly. He suggested that it was illogical for the learned Magistrate to, on the one hand, describe the mother’s circumstances with regard to housing, including exact location, as unknown and, on the other hand, the circumstances produced by a restriction on the mother of not moving more than one hour’s drive from [the town N], as certain or known. This was because the mother’s place of residence within such a parameter was also not known nor was the child’s place of school and other such details. We accept the contention in the summary of argument for the mother, that the specifics of housing and schooling were not in issue between the parties. This is consistent with the assertion in ground 4.2, that such matters were not in issue. Accordingly, in our view, the one hour parameter constituted a certain marker as against the uncertain time which would be involved in transfers of the child as per the mother’s proposal and it is to that which the learned Magistrate referred.
Ground 2
2.That his Honour erred in treating observations and opinions of an expert, which were not matters of specialised knowledge based on the expert’s training, study or experience, as if they were to be treated and given weight as if opinions of the expert for the purposes of s.79 Evidence Act.
Passages of Altobelli FM’s judgment to which, in relation to this ground, Mr Jamieson draws attention include:
12.Dr [S] was obviously positive about and supportive of the current shared parenting arrangement, and was concerned about the impact on this of a relocation to Sydney. For example at page 17 she states:
It was clear that in the past an amicable arrangement was in effect and this shows that it can be that way again in the future. This would be ideal for the child’s social and emotional development. I do not believe that with the mother and [Mr N] living in Sydney that the contact arrangements could be easily facilitated and that this would unnecessarily put a strain on the families in keeping contact regular. I therefore would not recommend the mother to move more than an hour from [the town N]. This would facilitate the child to be able to participate in weekend sporting programs even though he was living with his father on the weekend. (emphasis added)
13.Dr [S]’s recommendations were quite clear and forthright in her written report. She states at page 18:
… It would appear unrealistic for contact to be maintained if the child were to be living in Sydney.
…
Later, or elsewhere in his reasons, Altobelli FM described Dr S as being quite resolute in these views.
As to this argument, firstly, we consider that the two paragraphs preceding those just set out in whole or part, provide context to the opinions of Dr S recorded by the Federal Magistrate.
10.Dr [S]’s summary following her evaluation of the relevant persons, is found at page 12 where she states:
The child appears to have a secure attachment to all family members apart from the mother to which he may have an insecure, anxious/ambivalent attachment. This is evidenced by his relative anxiety in her presence and his sensitivity to her mood and comparative role reversal with the child wanting to remedy the mother’s mood. He frequently had to jump up and give her hugs and kisses and appeared edgy. This was in stark contrast to his behaviour with the father and the other family members with whom he was extremely relaxed and secure.
11.In the father’s evidence, he raises concerns about the mother’s past mental health issues. Dr [S]’s opinion about this issue is found at page 17 of her report:
Although the mother has had some mental health issues in the past and has some personality traits this does not make her a completely inadequate parent. There are no grounds to remove the child from her care or change residence to the father’s family. I believe that if residence was to be changed that the child would suffer.
These observations amplify the opinions of Dr S about the likelihood of contact being maintained under adverse conditions.
In any event, a short, but we think, complete answer to this ground is that Dr S stated in her report at page 19 that:
A disclosure, that a particular question or issue falls outside my field of expertise, was not applicable for my Report.
A disclosure that the report may be inaccurate without some qualification and details of any qualification was not applicable for my Report.
A disclosure that my opinion is not a concluded opinion, because further research or data is required or for any other reason was not applicable for my Report.
Moreover, no objection or exception was taken at trial to any observation or opinion that Dr S expressed, upon the grounds that it was other than within her expertise. When discussing Dr S’s views about the matters that he had to decide, Altobelli FM said:
25.I think I should be very careful, indeed very reluctant, to substitute my own views for those of Dr [S] on those central issues of her expert evidence that remain contentious between the parties. Dr [S]’s concerns about how distance and travel time creates difficulties in maintaining the regular pattern of shared parenting for [A] seem to be well-founded and understandable concerns and consistent with the experience of this Court. … The fact is that her report is and remains highly influential in terms of the decision I make in this case. If I were bold enough to substitute my views for hers as to the impact of travel time on [A], and the medium-to-long term sustainability of lengthy travel on the shared care arrangement that exists, why should I accept any part of her evidence including the recommendation that [A] remains living with his mother? Putting aside this hypothetical, Dr [S]’s evidence is the only tried, tested and uncontroverted evidence in this case…
Further, while a lay person might well be able to express or disagree with an opinion about such issues as the “sustainability of lengthy travel on the shared care arrangement”, that does not mean that, behind the doctor’s opinion are not specialised understandings of how people in general, or these parties in particular, are likely to behave in certain circumstances.
In our view, there is no error in the approach taken by the learned Magistrate to Dr S’s opinions.
Ground 3
3.That his Honour’s discretion miscarried in that he failed to take into account relevant facts, namely:
3.1the Appellant’s wishes, her happiness, freedom of movement and any potential impact on her parenting capacity should she be restrained in relation to her place of residence as ordered;
3.2the consequences of her being deprived of the opportunities identified in her evidence;
3.3the locale and consequences of her being restrained from residing more than one hour’s drive away from [the town N];
3.4the evidence of the Appellant that she was prepared to travel and meet halfway, thereby providing an alternative proposal; and,
3.5the balance of convenience arising from the respective proposals of the parties.
Under the heading “To relocate or not?” the learned Magistrate summarised the submissions of Mr Jamieson for the mother, making reference to the disadvantages that would arise if she was restrained as the father sought and to the advantages that she claimed would accrue if she were permitted to move. In following paragraphs the Federal Magistrate addressed factors referred to in s 60CC of the Act.
In the father’s written summary, he said that the mother’s case was not conducted on the basis that her parenting capacity would be diminished in the event that she could not move. Before us, no exception was taken to this statement in the submissions for the mother. In any event, in paragraph 14 of his reasons, the Federal Magistrate said:
14.… Mr Meehan [the Independent Children’s Lawyer] explored with Dr [S] the importance of the mother maintaining her mental health and being stable, something that would be enhanced through her relationship with her fiancé and being able to live happily together where they chose to. Dr [S] acknowledged the importance if [sic] the mother’s mental health and emotional stability, but also stated that whilst there was no certainty that the mother’s relationship will remain stable, there was more certainty in the proposition that if parents remain proximate to each other, the prospects for the well-being of a child are clearly enhanced. …
We are not satisfied that the Federal Magistrate failed to address the matters referred to in paragraphs 3.1, 3.2 and 3.3 of this ground.
As to the matters in 3.4, the learned Magistrate noted, as did Dr S, that a proposal for the parents to meet half way did not mean that the child was not travelling for the full distance between the respective households. The mother’s arguments primarily focused on the consequences for her of the restriction of residing within one hour’s drive of the town N, as against within two hour’s or so drive of the town N. The Federal Magistrate focused very much on the consequences for the child, as he was entitled, if not obliged, to do.
As to “the balance of convenience arising from the respective proposals”, we do not regard it as necessary for a trial Judge, in a case such as presented to the Federal Magistrate here, that “the balance of convenience” be addressed as a “stand-alone” issue. The learned Magistrate considered all relevant matters in the context of the legislative framework.
Ground 4
4.That his Honour’s discretion miscarried in that he took into account irrelevant facts, namely:
4.1in balancing proposals, on occasion confusing the Appellant’s proposal as one to reside in Sydney when it was not;
4.2the absence of evidence of specific proposals as to matters such as the home in which the child would reside and the school at which the child would attend when it was not an issue in the case and the evidence was no more present if the appellant were to move within the region permitted by the order that his Honour did make;
4.3an implicit assumption, unsupported by evidence, that if the order was made restraining the appellant from residing more than one hour from [the town N], that she would not move at all; and,
4.4views of Dr [S] going to matters she regarded as hypothetical, the underlying assertions in [sic] which ought have been regarded as unchallenged facts.
The contention that the learned Magistrate was confused as to the mother’s proposal about her residential location was not orally addressed. We do not see anything in the learned Magistrate’s reasons to support the proposition that he was unaware of the correct details of the mother’s proposal. However, paragraphs said to indicate confusion were referred to in the written summary. Paragraph 26 of the Federal Magistrate’s proposals shows a clear understanding of them. Later references merely to “Sydney” are in our view, clearly shorthand descriptions, to contrast that location with a radius within one hour’s drive from the town N.
As to the contention in paragraph 4.2, we have already expressed our view that the learned Magistrate addressed the uncertainty of details only in the context of the distance between households. As to paragraph 4.3 the argument was that, because there was uncertainty about the details of housing and other arrangements whether the mother resided in Sydney’s south or within one hour’s drive from the town N, as the learned Magistrate referred to the latter proposal as “certain”, he must have assumed that if he ordered the restraint requested by the father, the mother would not move at all. In view of what we have just said, we see no reason to conclude that the Federal Magistrate had implicitly made an assumption that if the order was made restraining the appellant from residing more than one hour from the town N, she would not move at all.
As to the views of Dr S that some proposals were “hypothetical”, we do not see that the Federal Magistrate took that term to mean any more than “uncertain”.
Ground 5
5.That his Honour’s discretionary decision was infected by errors of fact, namely, that:
5.1an assumption that the granting of an order restraining the Appellant from relocating more than one hour from [the town N] would result in her not moving at all; and,
5.2that the Appellant’s proposal was to relocate to Sydney.
These contentions have already been addressed in the discussion of ground 4.
Mr Jamieson did raise in oral submissions another challenge to a factual conclusion in the judgment, namely that in the last sentence, where Altobelli FM said:
She will be permitted to relocate within one hour from [the town N], and that may well provide her with some, if not many, of the benefits that she hoped for in moving to Sydney. (emphasis added)
Mr Jamieson said there was no evidence about the benefits that the mother might take advantage of, if restrained as stated. We reject this challenge. The finding is one reached by way of inference, about the probabilities of benefits, that inference drawn from the nature of the benefits, which the mother said would follow a move to Sydney’s south and the likelihood that “some, if not many” of these benefits could be taken advantage of if the mother resided only an hour’s drive away from her preferred location.
Ground 6
6.That his Honour’s discretionary decision miscarried in that the result embodied in his Honour’s order, so far as it imposed a restriction on relocation of more than an hour’s drive from [the town N], was plainly wrong and manifestly unjust.
In Norbis v Norbis (1986) FLC 91‑712 at 75,178 Brennan J stated:
The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
We do not regard the result to be plainly wrong or manifestly unjust.
Ground 7
7.That his Honour’s discretion miscarried in that the form of his Honour’s order is ambiguous.
The argument here was that the term “within one hour’s drive of [the town N]” was uncertain. Such questions as the time at which and speed at which, the drive might take place, were suggested.
The primary answer to these questions is that no such issues were raised at trial.
Conclusions
We find no merit in any of the grounds. Accordingly, the appeal should be dismissed.
Costs
Though unrepresented at the hearing, the father seeks an order for costs. Although the appeal failed, the financial circumstances of the mother as set out in the material in the appeal book lead us in the exercise of our discretion and having regard to the terms of s 117(2A) of the Family Law Act 1975 (Cth), to make no orders as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 9 May 2008
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