JARRETT & JARRETT
[2015] FamCAFC 126
•26 June 2015
FAMILY COURT OF AUSTRALIA
| JARRETT & JARRETT | [2015] FamCAFC 126 |
| FAMILY LAW – APPEAL – CHILDREN – FINAL PARENTING ORDERS – RELOCATION – Where the parties live in Queensland with the child – Where the mother wants to move to Western Australia – Where the mother previously removed the child without the father’s consent – Where the primary judge considered the possible loss of the relationship between the father and the child, influence of maternal grandmother, expense of travel and the mother’s mental health – Where a delay in the delivery of reasons did not disturb the current parenting arrangements – Where the allegation of bias was not made out – Where it was argued the judge erred in refusing an adjournment, but the order refusing the adjournment was not appealed – Where the primary judge had appropriate regard to material from the Western Australian proceedings – Where the primary judge had proper regard to s 65DAA of the Family Law Act 1975 (Cth) and MRR v GR (2010) 240 CLR 461 – Where orders were made regarding the mother’s mental health – Where such orders supported an informal arrangement already in existence between the parties and were in the child’s best interests – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the mother was wholly unsuccessful and the Independent Children’s Lawyer should be awarded costs – Where the mother should pay the costs of the Independent Children’s Lawyer at a fixed sum. |
| Family Law Act 1975 (Cth) – ss 60B, 60CC, 65DAA, 117 |
| MRR v GR (2010) 240 CLR 461 Rollings v Rollings (2009) 230 FLR 396 |
| APPELLANT: | Ms Jarrett |
| RESPONDENT: | Mr Jarrett |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray Family Lawyer |
| FILE NUMBER: | NA | 59 | of | 2014 |
| APPEAL NUMBER: | CSC | 385 | of | 2013 |
| DATE DELIVERED: | 26 June 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray and Forrest JJ |
| HEARING DATE: | 25 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 September 2014 |
| LOWER COURT MNC: | [2014] FCCA 2183 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page QC |
| SOLICITOR FOR THE APPELLANT: | Preston Law |
| SOLICITOR FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER: | Susan Gray Family Lawyer |
Orders
The appeal is dismissed.
The appellant mother pay the costs of the Independent Children’s Lawyer of and incidental to this appeal, fixed in the sum of $3,549.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarrett & Jarrett 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 BRISBANE |
Appeal Number: NA 59 of 2014
File Number: CSC 385 of 2013
| Ms Jarrett |
Appellant
And
| Mr Jarrett |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
May and Forrest JJ
By way of Amended Notice of Appeal filed 11 March 2015, Ms Jarrett (“the mother”) appeals against final parenting orders made on 24 September 2014 by Judge Willis.
The orders concern the living arrangements for the child born in 2007, the child of the mother and Mr Jarrett (“the father”). The orders provided that the parents are to have equal shared parental responsibility and the child live with the parents in North Queensland on a week about basis. The arrangements were expressed as conditional upon the stability of the mother’s mental health.
The mother wishes to return to Perth with the child. She intends to initially live with her family, and then seek independent accommodation for herself and the child.
In making these Orders, the primary judge had regard to a number of factors as carrying significant weight, should the mother and child relocate to Perth:
a)The possible loss of the relationship between the father and the child;
b)The influence of the maternal grandmother;
c)The expense of travel from North Queensland to Perth;
d)The mental health of the mother; and
e)The fact the child was doing well in the current arrangements in North Queensland.
Judge Willis made orders continuing the existing arrangements for the child, that is, to be on a shared parenting arrangement on a week about basis.
It is argued in this appeal that the primary judge failed:
a)To afford the mother an opportunity to address the evidence in chief of the father;
b)To have proper regard to the evidence and findings of the Family Court of Western Australia (“the FCWA”) in an earlier matter between the parties;
c)To engage with statutory conditions necessary to make such orders and failed to give adequate reasons for her decision; and
d)To consider the evidence and reasons of the mother in relocating to Western Australia.
The father and the Independent Children’s Lawyer (“the ICL”) oppose the appeal and seek to maintain the original orders of Judge Willis made 24 September 2014.
The mother seeks that all orders of Judge Willis be set aside, although it is apparent that the primary challenge is to Judge Willis’ decision not to permit the mother to relocate the child to Perth.
There are 31 Orders in total, which provide for the living arrangements for the child, parental responsibility, and arrangements for school holidays, Christmas, Easter, special days, Birthdays, changeovers, communication and a number of further conditions. It is convenient to set out those orders of particular relevance to this appeal:
Conditions
(2)The parenting orders for the child … as set out in these Orders, including all her living arrangements and parental responsibility will be subject to the conditions set out at Order 16 herein.
Parental Responsibility
(3)Each of the parties have equal shared parental responsibility for major long term decisions relating to the child of the relationship…
(4)The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility…
(5)Notwithstanding Order 3 herein the mother shall be responsible for the daily care, welfare and development of the child, when the child is living with her and the father shall be responsible for the daily care, welfare and development of the child, when the child is living with him.
Living Arrangements
(6)The child will live with the father and mother in [North Queensland] on a week about basis with handover to occur at the conclusion of school each alternate Friday at the child’s school.
…
Conditions that apply to the [sic] all of the Parenting Orders herein including the child’s living arrangements and Parental Responsibility Order
(16)All parenting Orders referred to herein are subject to the following conditions:
(a) The mother being psychiatrically well.
(b)In the event the mother becomes unwell with symptoms of mental health conditions including Bi-polar or Depression or the mother is admitted to hospital, she is to forthwith inform the father.
(c)In the event the mother becomes unwell with Bi-polar symptoms or Depression or other mental health symptoms, the order for equal shared parental responsibility will be suspended and the father will have sole parental responsibility for the period of the mother’s illness.
(d)In the event the mother becomes unwell with mental health symptoms as described, the Order for the child to live equal time with the mother, holiday time with the mother or have special days with the mother as set out in these Orders, will be suspended and the child is to be forthwith delivered up to the father and remain living with the father, until the mother has evidence of her recovery and mental health wellness. If this occurs when the mother is out of [North Queensland] on a holiday, the father is entitled to be able to speak with the child on a daily basis, with privacy and without interference from any other person. The father is authorised to make arrangements for the return of the child to the father’s care, without delay.
(e)The mother is to provide a short report from her treating mental health professional confirming that she is well enough to resume making long term decisions about the child and spending equal time with her, at the conclusion of her period of illness.
(f)The mother attending upon a counsellor in person, to engage in Counselling regarding the dynamic of her ongoing relationship with her mother, and the mother’s desire to live and parent independently. The mother is to attend for regular periods as can be organised and afforded by the mother.
Changeovers
(17)All changeovers (other than those which are to occur to and from school as set out in these Orders) will occur at a place mutually agreed, and failing agreement at the mother’s residence with the father being responsible for collecting the child at the beginning of the father’s time with the child and the mother being responsible for collecting the child from the father’s home at the conclusion of the father’s time with the child NOTING THAT the mother is to attend to handing over the child personally (not through an agent) and she is to ensure that [the maternal grandmother] and [the de facto partner] do not attend at or near the point of handovers which occur directly between the mother and father.
Background
The parties and the child have lived in North Queensland since approximately 2010, and previously lived in Western Australia.
It is useful to briefly consider the history of this matter, as this will explain the various parenting arrangements the child has experienced and the significance of the final orders.
The parties commenced a relationship in 2003 and married in 2006. The child was born in 2007. They lived in various locations in Western Australia until October 2010, when they then moved to Queensland. In 2013, the child commenced her prep year at a primary school in North Queensland.
The Mental Health of the Mother
It is uncontroversial that the mother suffers from a mental illness. There are recorded periods of hospitalisation and psychotic episodes in at least February 2004, October 2007 and May 2009. The parties separated and reconciled several times.
The father and the maternal grandmother have a difficult relationship. To some extent, it is clear that at times the maternal grandmother and the mother have also had their own difficulties, as is evident in the application made by the maternal grandmother on 21 October 2010 for leave to intervene in proceedings in the FCWA and an application for a recovery order for the child from both the mother and father.
An early example of these difficulties was when the mother became unwell in February 2004. In the reasons of the primary judge, it was recorded that the mother was admitted to a clinic in Perth. During this time, the father was told by the maternal grandmother that the mother did not want to see him and not to visit the clinic. The maternal grandmother removed items from the apartment the mother and father shared. The parties reconciled in October that year and resumed living together.
In October 2007 the mother became unwell again and was admitted, with the child, to a mother/baby unit in hospital for treatment. The father obtained temporary work nearby, so he was able to see the mother and child every day. The father says the mother and child left him, without warning in March 2008, while they were living together in Town G, and went to Perth for a period of about two weeks. After a period of time with the maternal grandmother, where the father had limited contact with the mother, the mother returned to live in Town G with the father. It was noted:
14.…The father described his inability to speak with [the mother] as something that has happened from time to time when the mother goes to stay with [the maternal grandmother] and her de facto…
Also in March 2008, the father was accused of sexually interfering with the child. It was later revealed to be a false allegation by the mother, under the influence of her sister (at [15]).
In May 2009 the mother had a psychotic episode and was admitted to hospital in Town G. The father took over the full time care of the child, enrolled her in day care near his work and visited the mother with the child each day. In June 2009, the maternal grandmother, and her family, arrived unannounced at the hospital. In a meeting with the mother’s doctor, the father was told the mother would be coming home as previously arranged and was advised to go home and wait for her. When the mother did not arrive, he contacted the hospital who advised the mother had left with the maternal grandmother. The mother and maternal grandmother had also collected the child from day care without his consent. The father was unable, or had great difficulty, speaking with the mother and child.
After this incident, in July 2009 the father commenced an application for recovery of the child. The matter was transferred to the FCWA. The documents generated in those proceedings assumed some importance in the trial and this appeal, reference will be made to these documents as the “Perth file”.
There were a number of interim hearings in the FCWA, but, ultimately, final orders were agreed by consent in April 2010, which relevantly provided that:
1. The child … live with the respondent mother.
1a. The parents have equal shared parental responsibility for [the child].
2. The applicant father spend time with the child as follows:
(a)each alternate week from 3pm Thursday until 3pm Sunday, to commence 15 April 2010;
…
6.The father to have reasonable communication with the child by telephone/web cam.
…
11a.In the event either parent becomes ill and is hospitalised the other parent is to be notified forthwith.
For the Perth proceedings, a Family Report was prepared by Dr W. This Family Report, and the reasons of Magistrate Andrews, were annexed to the father’s affidavit filed 23 January 2014 before Judge Willis.
After the Perth proceedings, the parties again reconciled and in October 2010 moved to Queensland, the mother first living with the paternal grandmother, and the father joining them some weeks later. The maternal grandmother sought to intervene on 21 October 2010 in the parenting litigation between the mother and father, and applied for a recovery order to have the child returned to her care in Perth.
In November 2010, when the parents were still together and living with the child in the paternal grandmother’s home, the maternal grandmother and her de facto partner arrived without notice and asked for the mother to get into the car with the child. The father asked them to leave.
The mother has engaged with mental health professionals during her time in North Queensland, but has had no hospital admissions. She experienced one period of being unwell, but this was managed with the assistance of the father.
Recent History
The events that led to parenting proceedings before Judge Willis occurred in July 2013. The parties were living together in North Queensland. The mother and the child ostensibly went on a holiday to Perth to visit the maternal grandmother and her family. The mother, while staying in Perth, informed the father that the relationship was at an end and that she and the child would not be returning home to North Queensland and would instead start a new life in Perth. The mother enrolled the child in a school in Perth.
On 16 July 2013, the father, who has been self-represented throughout, filed an Initiating Application in the Federal Circuit Court, seeking interim and final parenting orders. On an interim basis, the father sought a Recovery Order be issued for the child to be returned from Western Australia to live with the father in North Queensland and spend time with the mother.
The mother filed a response on 5 August 2013. On a final basis, the mother asked that she have sole parental responsibility and the child live with her in Perth. It was proposed that the child would communicate with the father on certain conditions and visit him during certain periods, including school holidays.
On 1 August 2013, Judge Willis made orders for the child to communicate with the father via the telephone and restrained the mother from relocating, other than to return to North Queensland.
On 9 August 2013, Judge Willis made interim orders that the child be returned immediately to North Queensland and that the father and mother have a week about living arrangement with the child. The mother did not return the child.
On 21 August 2013, the mother filed a stay application. The stay was dismissed by Judge Willis on 13 September 2013 and further orders were made for the mother to comply with the orders to return the child to North Queensland. According to the reasons of Judge Willis, the mother did not comply with the orders, under instruction from the maternal grandmother and family, who “discouraged her” [5]. The mother and the child have, since the making of those orders, on 14 September 2013 returned to North Queensland and commenced a week about parenting arrangement.
The Adjournment Application
Upon application of the father, Judge Willis made orders on 6 November 2013 for the trial to be listed for hearing on 30 January 2014. The relevant directions were as follows:
1.That the application be listed for two days hearing on 30 January 2014 and 31 January 2014 at 10:00am in the Federal Circuit Court of Australia at [North Queensland].
2.That the [father] file and serve any affidavits of evidence in chief or other witnesses’ affidavits of evidence in chief to be relied upon no less than 28 days prior to the date set for hearing NOTING THAT there is to be one affidavit by the [father] which should be compilation of all relevant previous affidavit evidence and any further or updating evidence.
3.That the [mother] file and serve any affidavits of evidence in chief or other witnesses’ affidavits of evidence in chief to be relied upon no less than 18 days prior to the date set for hearing NOTING THAT there is to be one affidavit by the [mother] [sic] which should be a compilation of all relevant previous affidavit evidence and any further or updating evidence.
4.That the Independent Children’s Lawyer file any affidavits or reports no less than 18 days prior to the date set for hearing.
5.That each party file and serve on each other party 3 days prior to the date set for hearing, a case outline setting out:
a)the final orders sought;
b)a chronology;
c)a list of documents intended to be relied upon at trial; and
d)statement of evidence which they say supports the principles contained in section 60CC.
…
7.No party has leave to rely upon any material filed outside the time provided within these directions other than with leave of the Court and the Registry is not to accept any documents for filing without leave of the Court.
(original emphasis)
The mother filed an Application in a Case on 28 January 2014, seeking an adjournment of the trial. In dismissing that application, Judge Willis also ordered the costs of and incidental to the delay of the final hearing proceedings be reserved.
Although there is no appeal from the refusal to grant the adjournment, it was argued that the effect of such refusal led to procedural unfairness in the trial. It is necessary to record some of the events related to the adjournment application.
It appears that the basis for the adjournment application was that the mother wanted to include evidence from her family because she felt that the Family Report and Psychiatric Report did not show “the abuse…that has come from [the father]…” (at [3] of the adjournment reasons). Judge Willis noted:
17.The issues that the mother wanted to have dealt with by these witnesses were domination, financial abuse, belittling, threatening, coercive behaviour, manipulation, isolation, bullying and brainwashing, and interestingly, the continuing vendetta against her mother. In light of the procedural history in this matter and the hard-fought interim application involving the mother’s unilateral relocation from [North Queensland] to Perth which I heard on 8 August 2013 and delivered reasons on the 9 August 2013 which I refer to, I am puzzled as to why the mother considered only after receiving the family report and psychiatrist’s report that she now needed to get evidence from her family.
The Family Report of Mr O and the Psychiatric Report of Dr K, arranged by the ICL, were received by the mother on 19 December 2013.
It is also significant that Judge Willis recorded the following in her reasons for refusing the adjournment application, as these issues are raised again in the grounds of this appeal:
18.This matter has occupied my list since August 2013 when it was listed as an “urgent” recovery order on 1st August 2013 and then listed after a child inclusive conference for an interim hearing regarding interim relocation on 8 August 2013. Reasons were delivered on 9 August 2013. I note that after making orders for the mother to return forthwith, the mother did not return for another month. The mother filed an appeal. The mother filed a stay application on 21st August listed for hearing on 12 September 2013 and reasons were given on 13 September 2013. When the stay application was heard, the child had not yet been returned. The orders of 13 September 2013 provided for a Recovery Order to issue if the mother and the child did not return to [North Queensland] pursuant to the Orders. A reading of the interim decision shows clearly that the mother’s case for years has in large part been her reference to alleged controlling violence, conflict between the father and her family, and other matters referred to by her in her current affidavit.
19.I should add that when doing this interim hearing urgently in August 2013, great lengths were gone to by the Court to get the historical material from Perth sent over to [North Queensland], as the parties had separated before and each made submissions and narrative in their affidavits about the saga that they had been through before in the State Court in Western Australia when the mother had on a previous occasion relocated without notice, as will be seen in the interim decision. During that earlier litigation in Western Australia, I was informed by both parties that a Family report and other reports were prepared, an Independent Children’s Lawyer was appointed and assessments were made.
20.What is abundantly clear in the interim judgment I gave and the mother’s material at the interim hearing and in the past proceedings, and in the Family Reports and other reports and the previous decision of a State Magistrate, which is still being quoted to me, is that there is and was and continues to be significant conflict between the maternal family and the father, and that the mother has made allegations of the kind that she now refers to in her affidavit to support the adjournment application, before. I referred in the interim decision to difficulties between the parties which were subsequently resolved between just the mother and father, and the mother then making allegations that her own mother was controlling of her and making her life difficult, including but not limited to her mother seeking a recovery order back then for the child when the mother returned to the father and they re-united.
21.All of that was known by all of the parties. For the mother to now suggest as she does that she has only just realised she needs to get this evidence is quite astounding and, frankly, implausible…
(emphasis added)
The mother also argued that the stress of the litigation caused her mental health to deteriorate, however she failed to tender credible evidence to support this claim.
A matter of particular significance is that the mother had failed to comply with directions – the mother failed to file affidavits in her own case as required.
The Primary Judge’s Reasons for Judgment
Judge Willis gave thorough and detailed reasons, comprising 70 pages, for the final orders. She recorded in some detail the difficult history of the parties, including a close analysis of the past mental health issues of the mother.
In identifying the law to be applied, Judge Willis set out the framework for parenting disputes, where the best interests of the child are the paramount consideration, found in s 60B and 60CC of the Family Law Act 1975 (Cth) (“the Act”) (at [54]). Regard was also had to s 65DAA and the decision of the High Court in MRR v GR (2010) 240 CLR 461 (“MRR v GR”).
A considerable portion of the judgment was dedicated to the views and proposals of the father, mother, maternal grandmother, paternal grandmother, the family report writer and the psychiatrist (at [44] – [157]).
Findings – The Mother
The mother sought orders allowing her to return to Perth with the child, proposing she would initially live with the maternal grandmother and ultimately hoped to afford a place of her own. The mother referred to her family support base, employment prospects and availability of mental health practitioners in support of her application (at [44]). As to the time the child would spend with the father, the mother offered 10 days during school holidays and four weeks at Christmas. Further, she said she would fund two return economy flights for the child to visit North Queensland and would pay her own costs of travel to accompany the child on those occasions.
The mother also offered a secondary proposal in the event her primary proposal was not accepted. The mother proposed she and the child would live in North Queensland and the child would live with the mother from 9.00 am Monday in the first week until Thursday before school in the second week, and thereafter with the father until 9.00 am the following Monday (at [46]).
The mother described the father “as controlling, dominating, someone who had financially abused her, someone who had committed acts of family violence against her and who had isolated her” (at [102]).
The primary judge noted that despite everything, the mother appeared fond of the father and they had again established a good working relationship since she returned to North Queensland with the child (at [104]).
In relation to the mental illness, the mother was aware of when she was becoming unwell and approached the father for support during those times (at [112]). One example provided demonstrates their relationship in this regard:
113.In relation to this latest episode of the mother feeling unwell prior to the trial, the mother gave evidence that the father was manipulating her. When asked to explain, the mother gave evidence that when the father heard she was unwell, he offered for her to either go to the hospital or come and stay with him. The mother chose to stay with him. I saw nothing manipulative or controlling about that, it seemed very sensible advice. Later in her evidence the mother admitted that it was sensible advice, that it was the right thing for the father to do and that she took up that offer, she was pleased to see the child and it was good that she stayed with the father. The mother said having done so, she felt much better. She slept alone in the father’s bed for a period and then went into her own bed. Between the mother and the father, the early signs of the mother being unwell were managed with the support of the father.
After addressing the mother’s reasons for moving to Perth, the primary judge found she was settled in North Queensland. The mother told the psychiatrist she had friends there and there was evidence of her being active in the community (at [114]).
As to the relationship between the mother and the maternal grandmother, the primary judge remarked:
117.In terms of the mother’s relationship with her own mother I note that the Family Report stated that the influence of [the maternal grandmother] on the mother is an important topic for “comprehensive therapeutic intervention.” I am not satisfied at this point in time that the mother has the ability to assert her own independence and the best interests of [the child] given the dynamic of this relationship.
118.When she is not under the influence of her mother and maternal family, I consider the mother has a lot to offer [the child] now and in the future.
Findings – The maternal grandmother
The primary judge found the maternal grandmother to be an unimpressive witness (at [120]), describing her as “evasive”. The primary judge found the maternal grandmother was “pivotal” in convincing the mother not to comply with orders of the court (at [121]). Further, the judge stated:
123.Generally, whilst I accept that [the maternal grandmother] is a loving mother and grandmother, I have significant reservations about her interference and interventions into the family unit of the mother, the father and [the child]. I do not accept that she has been able to contain what seems to be her long held negativity and animosity towards the father. Nor do I accept that she has managed to conceal her strongly held negative views of the father and his mother, from [the child]. Under cross examination, she was, again, silent and at a loss to explain why it was that [the child] said that she had heard [the maternal grandmother] talking and saying bad things about granny (meaning the paternal grandmother) and daddy. There was simply no explanation offered.
Mr O noted in cross-examination that the court would need to be concerned about the maternal grandmother’s potential to negatively influence the mother.
The conclusions of the primary judge about the maternal grandmother will be discussed in further detail, under Ground 7 below.
Findings – Father
The father opposed any relocation of the child. Judge Willis recorded:
48.The father is opposed to the mother’s proposed relocation of [the child]. The father is deeply concerned that if the mother and child live in Perth, his relationship with his daughter will be totally undermined by the negative influence towards him of the maternal grandmother over the mother and [the child]. He seeks orders that if [sic] mother remains living in Perth, that the child live primarily with him and spend time with the mother for seven day blocks throughout the school holidays, a ten day block during Christmas and if she is in the [North Queensland] region, she can spend time without restriction to include significant and special days. These times include restrictions as seen in his orders sought 14, 15, 16 and 17 excluding members of the mother’s family as specified including the maternal grandmother until they can confirm they have attended approved court counselling, and these orders would be subject to review by the Court in 18 months’ time, otherwise, until such certificates are obtained, the relatives have supervised time.
In the event the mother was to live in North Queensland, the father sought an order to continue the equal time arrangement of week on week off. The ICL similarly opposed the mother’s relocation.
Judge Willis paid particular attention to the allegations of abuse of the mother and maternal grandmother by the father. She found there was a “distinct lack of facts” to make out these claims (at [61]) and dismissed the alleged examples of such abuse raised by the mother, including accusations the father:
a)was being financially abusive when he obtained a credit card in the mother’s name to support the whole family and also where he consolidated their debts into a single repayment (at [62] [63]);
b)was interfering with the mother’s treatment of her mental health issues when he researched her medication online and suggested a consultation with another doctor for a second opinion (at [64] – [65]); and
c)was isolating the mother from her family when he was offered a job promotion in Town G and North Queensland and despite the mother regularly seeing her family throughout these moves (at [66] – [73]).
The history of the animosity between the father and maternal grandmother was discussed (at [74] – [94]). These include events previously discussed in these reasons, when the mother had a psychotic episode in June 2009.
Judge Willis preferred the evidence of the father and found he managed all of the mother’s psychotic episodes well, assisted the mother in managing her mental health issues and always looked after the child both when he was with the mother, and during her unwell periods. The primary judge was satisfied that he had been falsely accused of the abusive behaviour (at [95]), and accepted the views of Mr O that the father is not the person as described by the mother or maternal grandmother (at [97]).
The Expert Evidence
Family Report writer, Mr O
The Family Report writer, Mr O provided a report (dated 19 December 2013), and also gave oral evidence. The primary judge paid particular attention to his recommendations and conclusions, which are not the focus of this appeal. Suffice to say he did not support the mother’s relocation to Perth and described such a move as “fatal to the father and child relationship surviving” (at [131]).
Specifically, the significant conclusions of Mr O were the following:
a)As to the maternal grandmother, he found her comments “…appeared to inform a stance that minimised the value of the child’s relationship with her Father” ;
b)The father presented as “genuinely concerned for the Mother’s welfare”;
c)Both the father and mother demonstrated “motivation and capacity for reasonable co-parenting” and had shown little concern for the other’s capacity to parent; and
d)There was consensus on the part of the mother and father that the maternal grandmother should have less involvement in their lives.
As a consequence of these findings, Mr O made the following recommendations:
161.Furthermore, [the child] appears to have settled reasonably well in the current care arrangements; and which status appears to be supported by the Mother and “to continue 2014”.
162.The writer particularly notes that neither parent expressed any motivation for involvement in a trial in this matter; and in fact maintained that given time and opportunity, sustainable Consent Orders may be able to be negotiated between them in [the child’s] best interests.
163.Therefore, and on balance, the writer raises concerns regarding the value and capacity of final decision in this matter at this time; and would consider a subsequent review…to inform the nature of Final Orders if such were not able to be negotiated between the parents.
It should be noted, that although Mr O expected the matter would be resolved, the mother persisted with her application to allow her to return to Perth with the child. We will refer later at greater length to the arguments of counsel in this appeal including that the judge should not have made final orders in view of [163] of Mr O’s recommendations. For the moment, we will simply observe that neither party asked the judge to take this course.
It is also worth noting that it would appear that Mr O had regard to the report of Dr W, prepared for the Perth proceedings in 2009. Specifically:
149.The writer notes that parental accounts and subsequent review of briefing materials provided; but especially considering a previous Family Report completed by a Dr [W] on 23 September 2009 in Western Australia; inform a significantly unstable parental relationship history to date.
Mr O had access to some materials from the Perth file, through the affidavit of the father filed 6 August 2013. Mr O also had regard to a number of affidavits of the mother, which not only annexed material from the Perth file but also contained detailed information about the alleged abuse by the father.
Report of Dr K
Dr K is a psychiatrist; he interviewed the mother and father and prepared a report at the request of the ICL. Dr K found it was clear the mother suffered from a mental illness, but when well he had no reservations about her ability to satisfactorily care for the child (at [145]). However, when she is unwell, in his opinion she would need backup care arrangements for the child. Dr K remarked in his report:
However, the problem I have from the point of view of a psychiatrist in regard to this matter is that because of her condition we cannot guarantee there will not be periods where she will have difficulty caring for the child appropriately, and may need hospitalisation, etc. So, that means there is some uncertainty about her ability to care for the child indefinitely on a full-time basis.
As to the father, his adult ADHD was recorded and discussed, the father was found to be managing it well. The primary judge remarked:
148.In terms of the father Dr [K] did not consider the father needed any psychiatric treatment and noted that the father expressed the view that when the mother is well she is an excellent mother and he does not have any concerns about her mothering from that point of view. However the father held a concern that there is a risk of the mother having further episodes and the fact that he sees her as being co-dependent on her mother. The father said he was not angry with the mother and he was not absolutely convinced that their relationship was finally finished.
Dr K came to the following conclusions regarding the mental health of both parents, and the appropriate arrangements for the child:
I suppose the question here becomes whether the court feels it is appropriate under the circumstances for the child to live with the father and have visits with the mother at weekends. I do not think I can come to a clear decision on that but I am aware of the fact that alternate weeks can create problems for a child, especially as they get older. However, the child really needs to maintain contact with both parents and I am quite sure that both parents have a lot to offer this child.
…
I do not see this child as likely to come to physical or psychological abuse. The only question, I suppose, is the stability of the parenting provided by the mother, in view of the fact that she may well have further episodes of depression.
…
I also got the impression that each parent is supportive of the child maintaining good relationships with the other.
I also got the impression that neither parent is unduly hostile toward the other.
Perhaps then these two people are capable of negotiating a resolution.
Conclusions of the primary judge
Judge Willis first considered the views of the child in accordance with s 60CC(3)(a) of the Act. She considered that appropriate weight must be given to the views of a six year old.
The child spoke positively to Mr O of her prep year at primary school in North Queensland, and of her teachers and friends. In assessing the views the child expressed about Perth, North Queensland and her parents’ relationship, the primary judge found that the child has a good bond with each parent and is also aware of the difficulties in the relationship between the father and maternal grandmother (at [158] – [164]).
The primary judge considered the relationships of the child as required by s 60CC(3)(b). The child was found to have strong relationships with each parent, and her maternal grandmother and extended family (at [165] – [166]).
The extent to which each parent has taken, or failed to take the opportunity to participate in decisions, spend time and communicate with or about the child was assessed under s 60CC(3)(c). Neither parent failed to spend time or communicate with the child. However, it was recorded that it is the mother who has at times excluded the father from parental decisions involving the child:
170.…such as changing the child’s place of residence from Queensland to Western Australia, changing the child’s schooling from [North Queensland] to a suburb of Perth and changing entirely the living arrangements.
The primary judge found (per s 60CC(3)(ca)) that each parent fulfilled their parental obligations, and the father in particular works to support the family, including taking appropriate actions to consolidate debt and manage their finances (at [171] – [172]).
In assessing the competing proposals of the parents, the primary judge considered the likely effect on the child’s circumstances per s 60CC(3)(d), and the practical difficulty and expense of the parties proposal per s 60CC(3)(e). It was noted that the mother’s proposal would introduce significant changes and cause a major separation between the child and her father.
It was also noted that such proposal would create costly regular travel and impose considerable financial expense on both parties. The mother conceded she alone could not afford to pay for two return flights a year for the child and her accompanying fare (at [191]). The father’s evidence that the cost of return trips for him to visit the child in Perth would be approximately $3,000 (at [193]).
The primary judge recorded with some concern that if the child were to live in Perth, she and the mother would be under the influence of the maternal grandmother. Significantly:
184.The other aspect to the mother being the primary carer and living in Perth is a very hostile and critical attitude that the maternal grandmother holds towards the father. The Family Report Writer has identified that the likely outcome of the mother and child’s ongoing exposure to the maternal grandmother will ultimately undermine the child’s relationship with the father…
The father’s proposal would allow the child’s current arrangements to continue and, most importantly, allow a meaningful relationship to continue with both parents. It was concluded that none of the disadvantages identified with the mother’s proposal exist in the father’s proposal:
198.The mother’s proposal is therefore flawed to the extent that the mother cannot pay for the trips she proposes to pay for, the father is not in a position to fund all of the travel he is to fund, the time is insufficient in any event. As well, the time proposed by the mother for the child to spend with the father during holiday blocks is not able to occur given the father’s annual leave of 4 weeks per year. I accept that this is likely. These are all significant factors in the court’s determination.
Therefore, the primary judge found significant advantages in the father’s proposal, and ultimately made orders that the child was to live in North Queensland on a week about basis with both parents (at [189]). In making this finding, the primary judge said:
261.I have considered the competing proposals of the mother and father and it is evident that I have significant reservations about the mother’s proposals to live in Perth with [the child] and for her to spend time with the father as proposed. I accept the evidence of Mr [O] that in the long term, [the child’s] relationship with the father is likely to suffer. This is in part due to the insufficiency of the physical time that is proposed and the non-sustainability of the proposals to nurture and enable an ongoing meaningful relationship between [the child] and her father. The Court is not satisfied that the mother’s proposals for herself to travel to [North Queensland] on two holidays per year are financially sustainable nor is the court satisfied that the father can travel to Perth every other school holiday to spend time with [the child], paying not only for his travel costs but also accommodation, food and a hire car on each holiday to Perth. These proposals are financially impracticable and the court has no confidence that even the time proposed by the mother will occur. This, together with the father’s inability to pay for his proposed travel to Perth, will be fatal to the relationship between [the child] and her father.
262.In terms of the mother being the primary carer in Perth, there are significant issues involved in this proposal which are adverse to the best interests of [the child]. The animosity and lack of respect shown by [the maternal grandmother] toward the father in his role as [the child’s] father represent a powerful force. The mother has shown that as recently as July 2013 she will succumb to that powerful influence. There has been no softening in the critical views held by [the maternal grandmother] toward the father and at the time of the Family Report interviews and her appearance in Court, she maintained those views. The court is satisfied that the maternal grandmother is not able to contain her derogatory views of the father from exposure to [the child]. The mother’s evidence is that [the maternal grandmother] wants to have a lot to do with the child. For the reasons expressed throughout this judgment the court is not satisfied that the child’s relationship with the father will survive in the long term in the event that the mother and [the child] live in Perth.
Grounds of Appeal
The mother relied on an Amended Notice of Appeal filed 11 March 2015 containing seven grounds of appeal:
1.That the trial judge erred in failing to provide to the parties in her reasons given seven months after the conclusion of the hearing the extent to which preliminary views expressed by the trial judge as to merits of the application by the mother that the child live with her in Western Australia affected the determinations of the trial judge as to the facts and matters in issue.
2.That the trial judge erred in that having dismissed the appellant’s application to adjourn the trial she:
(a)Failed to take into account at all the fact that the directions made by her the effect of which were to require the appellant as respondent to the proceedings to give her evidence in chief viva voce, the appellant was not given any proper ability to consider the evidence in chief of the respondent and to properly ensure that she had addressed all the relevant issues;
(b)Failed to take into account all the fact that she restricted the appellant’s evidence to facts occurring only after August 2013 when no such restriction was imposed on the respondent;
(c)Failed to take into account the statements made by the appellant having read the reports of the psychiatrist and report writer and having seen the affidavit evidence of the respondent had not properly estimated the issues raised which issues she wished to address;
(d)Failed to take into account at all the wishes of the appellant to avoid a trial and seek to settle the parenting issues consistent with the recommendations of the report writer;
(e)Failed to take into account at all the fact that there existed medial evidence tendered before her which recorded an opinion that the appellant was suffering from a medical condition which affected her ability to consider properly the evidence which she was called upon to give;
(f)Failed to consider at all the fact that by reason of directions made by her the appellant was unable to properly test the evidence of the respondent in cross examination;
3.That the trial judge erred in failing to have any or any proper regard to the findings of the Family Court of Western Australia and orders made by that Court as to the violence perpetrated by the respondent on the appellant and as to the abuse of alcohol by the respondent and as to the controlling nature of the respondent’s relationship with the appellant and as to the appellant’s mental health history.
4.That the trial judge erred in failing to have proper regard to the provisions of section 65DAA of the Family Law Act in that the trial judge failed to have any or any proper regard to the practicability of an equal shared time spent by the child with the parents and failed to give any or any adequate reasons that the orders made were in the best interests of the child.
5.[Not pressed]
6.That the trial judge erred in that she failed to consider adequately the evidence as to the appellant’s reasons to relocate to Western Australia and made a finding that the appellant was settled in [North Queensland] in the absence of any evidence supporting such finding.
7.That in making the orders contained in paragraphs 16 and 17 the trial judge erred in that such orders were made in the absence of any evidence supporting the extent of such orders or were otherwise not in the best interests of the child.
Underpinning many of the grounds of appeal is the use the judge made of the Perth file, arguing it had been “selective” and without proper opportunity for the mother to give evidence. It is not controversial that the Perth file contains a series of documents from the proceedings commenced in Perth in July 2009, which include affidavits of both parties, an expert report of Dr W, the reasons of Magistrate Andrews and various subpoenas issued to the mother’s mental health practitioners. It is not clear whether the file included the documents subpoenaed.
In the proceedings before the primary judge on 8 August 2013:
HER HONOUR: Yes. I think I’ve got – did we get the file from Western Australia?
…
HER HONOUR: I can have a look. Do you want to just hand me the file? I’ve got the file here. I might just have a look while everyone is here as I did see – I take it your client had some different solicitors at that point?
…
HER HONOUR: All right. Is everyone happy for me to look at this file to work out what I can work out about what’s happened?
It is not correct, as asserted by Queen’s counsel for the mother in the appeal, that the primary judge said she had “read” the file before her. At the trial there was no apparent use of the Perth file, other than the father annexing to his trial affidavit the following documents:
a)Interim Orders 12 August 2009;
b)Family Report prepared by Dr W 23 September 2009;
c)Reasons for Judgment of Magistrate Andrews;
d)A list of the documents on the Perth file;
e)Consent Orders 14 April 2010;
f)Affidavit of the maternal grandmother filed 21 October 2010 (as part of the leave to intervene proceedings);
g)Affidavit of the maternal grandmother filed 27 October 2010 (as part of the leave to intervene proceedings); and
h)Affidavit of the mother filed 5 November 2010 (in response to the leave to intervene proceedings).
Upon application of the mother, the Appeal Registrar made procedural orders on 16 March 2015 that the mother be permitted to photocopy documents contained in the Perth file and compile this as a bundle for a supplementary appeal book. The supplementary appeal book was compiled, and the mother’s written submissions assert that it contains evidence of the following factors:
a)The mental health of the mother and father;
b)The alleged dominating and controlling behaviour of the father towards the mother;
c)The violence perpetrated by the father towards the mother;
d)The nature and extent of the support provided by the mother’s family;
e)The attitude of the father towards the mother’s family;
f)The extent to which the appellant relied upon her family in Western Australia.
During the hearing of the appeal, we were otherwise not taken to those documents.
In addition, as mentioned already, it is complained that the judge wrongly refused the application to adjourn. This complaint forms a large component of the mother’s summary of argument. Counsel for the mother submitted that while there was no appeal from the refusal to adjourn at that time, the primary judge, in her process of reasoning and conclusions, simply ignored the position this created the mother. Counsel agreed with us when it was suggested that the arguments in relation to the failure to adjourn went to a more general procedural fairness argument.
Ground 1
In Ground 1 of this Appeal the mother argued that the delay in providing reasons for judgment and also the preliminary views expressed by the primary judge as to the merits of the application affected the determinations of facts and evidence.
Dealing first with the issue of delay, the mother concedes that a delay in delivery of reasons is not an error of law. Rather, she argues:
2.…in this case the considerable delay places attention on not only the basis upon which the adjournment was refused, but also places a greater scrutiny upon the basis upon which findings were made which ultimately lead to the dismissal of the [mother’s] application and the parenting orders that were made. Rollings v Rollings [2009] FamCAFC 87.
…
18.The delay of 8 months in the delivery of reasons might in a property case not be significant. But this matter was a parenting matter alone and was an application that the child live with the mother in Perth. The judge herself considered it with priority. It is probably a matter of record that the protocol adopted by the Queensland Law Society and the Family Court where a significant delay was occasioned, was in this case implemented and the judgment was delivered very soon after. This factor itself requires close scrutiny needed to findings required under Part VII of the Family Law Act that was made clear in Rollings v Rollings (supra).
(original emphasis)
Counsel for the mother was unable to refer us to a specific paragraph or section of the Rollings v Rollings (2009) 230 FLR 396 to assist this argument. That case concerned property settlement orders pursuant to s 79 of the Act, where there was ultimately a delay in publishing reasons of some 19 months.
It is important to note that, in that case, the Full Court found the Federal Magistrate (as he was at that time) to have made a number of errors pertaining to the facts and evidence of the case. It was for those reasons that they remitted the matter for rehearing. The Full Court, in regard to delay, did remark at [157], “These errors are more acute when considered in the context of the unexplained and unaccountable delay.” They noted that the delay in that case was unexplained and nothing in the reasons justified such a delay – they did not find it to be a complex case.
Apart from reference to Rollings, very little was submitted by the mother to support this argument. The mother argued that as it was a parenting matter, the delay of eight months was not reasonable. The ICL submitted that it was simply “not extensive”. It is of course ideal that matters involving children are dealt with in a timely manner.
Further, the mother raised that “the protocol” adopted by the Queensland Law Society and the Family Court where there is a delay, was implemented in this case and a judgment delivered soon after. There is no substance to this complaint. For example, there was no connection made between errors of finding of fact (which was not contended there were), credit findings or other parts of the decision, with delay.
As the evidence demonstrates, despite the wishes of the mother to return to Perth, the current parenting arrangements were working well for the parties, and most importantly, the child. Any delay in a decision saw only that the current arrangement prevailed. This is not a case where one or more parties is stranded or uprooted by the actions of another. The ground of delay is not made out.
Turning to the issue of bias, the mother argues that the primary judge had some form of prejudged views against her. It is contended that this resulted in procedural unfairness. As noted above, many of the arguments raised under this ground could be relevant to the refusal of the adjournment, but there is no appeal from that decision.
The mother raises several examples of the alleged bias demonstrated by the primary judge, including the following statements made by the judge during the interim hearing on 8 August 2013:
HER HONOUR: …
I think the mother’s case seems to be largely about the fact that she says she was in a controlling relationship. And so is that new to you?
HER HONOUR: I want you to go to your counselling, get back into your groove here with your doctor, keep up your medication, and if you’re going to separate fine, that’s your decision. But you do it – you don’t have to go to Perth if you want to separate. The decision to relocate is a very, very difficult matter. They’re the hardest decisions that judges have to make all around the world. So they’re not made easily. So if that’s going to be the case though, that will be the case. I will make all sorts of other orders.
A number of other examples were provided, including statements by the primary judge during the adjournment application that the mother had a “burning desire to return to Perth” and that the maternal grandmother “has been an issue all the time”. The mother argues that these statements amount to the primary judge forming preliminary views about her, and that she was afforded no opportunity to address such views at trial.
The ICL argued in response that many of the statements raised by the mother as examples of prejudice were taken out of context. For example, the ICL records:
6.The exchange between Her Honour and the Father on 8 Aug 2013, concerning an understanding of the mother’s case being “…..largely about the fact that she says she was in a controlling relationship.” … relates to clarifying with the father at the interim hearing the matters and facts upon which the parties agreed or disagreed. Her Honour indicated her intention to undertake this process, in light of the fact that material filed for the interim hearing appeared to be exchanged at the same time and was not strictly in response by either party ... In addition, the accuracy of Her Honour [sic] statement and question appear to be confirmed by the mother’s legal representative during the course of that interim hearing.
(References omitted)
It is clear from the above exchange, and a review of each of the examples referred to by counsel for the mother, that there was no bias exhibited by the primary judge or procedural unfairness. The comments were not evidence of a pre-formed view – the parties had appeared before the primary judge on several occasions since August 2013, the judge was very familiar with the parties and in particular, the mental health of the mother.
There is no merit in this ground.
Ground 2
The mother argues that the primary judge erred in failing to grant her an adjournment, and failed to properly consider the evidence produced by her in support of that application. In discussions with counsel for the mother, the question of relevance to this appeal was raised, as the decision to refuse the adjournment application itself was not appealed. It was put to counsel that only Grounds 2(b) and (f) could have any possibility of being argued. In any event, we allowed submissions as to the totality of Ground 2.
Grounds 2(a), (b) and (f)
The mother complains that she was obliged to give evidence, orally, and asserts she was unable to properly test the evidence of the father. The mother at all times was legally represented. The father has always been a self-represented litigant. The mother was given an opportunity to provide evidence in chief orally – this was only necessary because she had failed to provide her evidence by affidavit as directed.
Further, the ICL submits:
15.The expert evidence at the hearing was provided by Dr [K] and Mr [O]. Each expert filed an Affidavit attaching their respective reports and the referral documents provided by the ICL who had engaged them. It is submitted, both experts had access to the material filed by the parties from the commencement of the matter in 2013 – including the Affidavit of the Mother filed 5 August 2013 to which were attached the family report of Dr [W] dated 23 Sep 2009 and the Reasons for Judgement of Magistrate Andrews of 12 Aug 2009. Unlike Mr [O], Dr[K ] was not required by the mother’s counsel for cross examination. The transcript does not reveal any attempt to put additional parts of the WA file to the experts or any other witness…
(References omitted)
The mother also argued that directions of the primary judge restricted her from adducing further evidence of the events before August 2013 before the court. There was a large volume of material before the primary judge leading up to August 2013. It is clear upon reading the transcripts that the mother was afforded an opportunity to give further evidence:
HER HONOUR: Okay. So at some point, Madam Associate, I will ask you to do a copy of that. All right. Now at some point, Mr Victoire, are you going to ask to lead some short updating evidence?
MR VICTOIRE: Yes, your Honour.
HER HONOUR: Yes. Well, I think that would be appropriate for the mother to just update things from where we are. She hasn’t got any material at all in and you can have a listen to what she has to say and then you can – you will be given the same opportunity to give any evidence-in-chief about what the mother has said. Not just be cross-examined about it, but I allow you a bit of latitude to just say you’ve been here, going to this school, blah, blah. Just factually updating things. Then the mother can be asked about it and you can – when you get in the box, you can say, “Okay, well, what I say about that is XYZ.” All right?
And if there’s anything you hear that takes you by surprise and it causes any delay, I either won’t allow it or listen to any applications about – I’m not inviting you to spring a whole lot of things. I’m just trying to give you an opportunity to bring the court up to date since the material filed, seeing as you have not had – not taken any comply [sic] with the directions, so that I have any serious matters updated. I expect that if anything significantly serious had been happening, there would have been discussions between the parties. There would have been maybe letters or something like that. Okay. So I think that the father is the applicant, isn’t he?
HER HONOUR: Okay. Good. All right. So we will start. So Mr Victoire, are you making an application to get some short updating evidence from your client?
MR VICTOIRE: Yes, your Honour. I apply for some updating evidence from the mother.
Counsel argued that the August 2013 affidavits filed by the mother were in the context of enforcement orders, and therefore did not capture all the issues to be addressed at trial. It is clear there is nothing to suggest upon reading the transcript that counsel asked to lead anything other than updating evidence. There was no protest or application by counsel to lead evidence of earlier events. Further, a review of the mother’s August 2013 affidavits reveal that she did in fact address the allegations of violence and abuse.
It is also not correct to suggest that the father had no restriction imposed upon him. The father was not invited to lead any updated evidence, except for some financial information which he provided.
In addition, it is not correct that the primary judge indicated that the mother, in her oral evidence, would be restricted.
It was argued that the mother was unable to properly test the evidence of the husband in cross-examination. Counsel said very little in support of this ground.
Ground 2(c)
The adjournment application was made the day of the trial, 30 January 2014. A reading of the ex tempore reasons for judgment, and of the transcript, reveal that the primary judge had read all of the relevant material related to that application and had in fact prepared for the final hearing by reading the material available at that time.
It would appear that a major argument raised then, and on appeal, is the mother wanted to file further material to demonstrate the “controlling behaviour” of the father. She argued that this material is required as she did not realise the Family Report and Psychiatric Report would not properly canvass those issues.
The timeline of events and conduct of the mother do not support this argument. While the father did file his submissions late, the expert reports were released on 19 December 2013. There was ample opportunity for the mother to file further material. It was submitted correctly by the ICL that in any event, the father’s affidavit did not raise any new or controversial material. Counsel for the mother was unable to point to what further material would have assisted her case.
Ground 2(d)
The mother also complains that the primary judge failed to take into account her wish to settle the parenting issues. The steps taken by the mother in this regard are acknowledged and well documented. In refusing the adjournment, the primary judge recorded that the mother had instructed her counsel to negotiate consent arrangements. This is not an excuse for failing to prepare and file appropriate material – it was the mother who decided to proceed with the trial and is the person wishing to relocate. In light of this, the primary judge said:
34.Mr Victoire of Counsel has submitted that if the trial proceeded today, words to the effect “If you don’t give us this adjournment, the mother would be prejudiced as she does not have updating material and the Court would not be aware of the most recent issues”. There is something astounding about this submission in light of all the circumstances. Mr Victoire also has, candidly, had to agree that any prejudice on the part of the mother has been at her own creation. So having created such an alleged prejudice by her own conduct, the mother seeks to rely on it to attempt to make, what I regard as, an in terrorem style submission, “Here is a threat to the court. If you do not do what we want, there will be all sorts of problems”.
Ground 2(e)
The mother also raised that the primary judge failed to give proper weight to her medical evidence that she was not well enough to proceed with the trial. Again, to the contrary, the reasons for refusing the adjournment discuss this at some length (at [8] – [15]). The mother had telephone consultations with her clinical psychologist in Perth on 14 January 2014 and 22 January 2014, and a letter from that psychologist notes that the mother’s mood had deteriorated since 7 November 2013. The primary judge correctly recognised that this letter carries little weight:
11.The author of the email is a clinical psychologist, not a psychiatrist. It’s dated Thursday, 23 January 2014. The ICL also makes submissions regarding the dates of the mother having telephone consultations - and I note that those dates are not unimportant of the 14th and 22nd . The telephone consultations have happened during the period when the mother ought to have by then filed her material pursuant to the trial directions issued on 6 November 2013. The mother has completely failed to file any material at all. This is a matter which I will return to.
…
14.I also note that the psychologist suggests that there has been a change in mental status since 7 November 2013, after which time I note there appear to be no further telephone appointments until 14 January 2014. The reference is made to the mother’s stress appearing to be as a result of ongoing stress and uncertainty she’s experiencing with reference to the relocation dispute of both her and her daughter ... The psychologist for the mother hastily adds that this stress does not affect her ability to be a competent parent. One would have thought that bringing uncertainty to an end would be advantageous to the mother’s health.
The ICL also submits that the concern about the mother’s capacity to give instructions was actually abandoned during the course of submissions, and to suggest she was well enough to provide instructions to settle but not well enough to proceed with the trial is inconsistent.
There is no merit in any part of ground 2.
Ground 3
This ground of appeal argues that the trial judge erred in failing to have any or any proper regard to the findings of the FCWA, and the orders made by that court as to the violence and alcohol abuse of the father, his controlling nature and also the mother’s mental health history. This ground of appeal, in essence, revolves around the use (or alleged failure to use) of the Perth file by the primary judge. It is asserted by the mother that if sufficient weight had been afforded to this material, then the primary judge would have made findings in favour of her allegations.
It is submitted by the ICL, and apparent upon a reading of the reasons, that the primary judge did have regard to and appropriately considered parts of the Perth file. Counsel for the mother argued that the primary judge erred at [95] of the reasons, as the evidence from the Perth file was before her and she should have found that the father was abusive and controlling. Counsel argued that the primary judge never made appropriate reference to the weight or findings she would give to the Perth file, and therefore did not consider all of the evidence.
The reasons of Magistrate Andrews are discussed in the judgment (at [90] – [91]). It was put to counsel during the Appeal hearing that the primary judge is not bound by the reasons of Magistrate Andrews, and while it may be appropriate to have regard to those reasons, it was quite correct for the primary judge to determine the issues on the facts and evidence before her at that time.
Further, when we enquired during the appeal hearing, where in the transcript had counsel for the mother asked the primary judge to give material in the Perth file appropriate weight, counsel was unable to do so. It was instead suggested that the primary judge had a duty to consider all of the evidence before her, and to allocate weight to that evidence accordingly.
As identified earlier in these reasons, the following statement of the primary judge during the 8 August 2013 hearing was relied upon by counsel for the mother as evidence she had “read” the file:
HER HONOUR: All right. Is everyone happy for me to look at this file to work out what I can work out about what’s happened?
The Perth file was never put before the judge during the trial. We understand the judge’s remark to merely be an indication that she would read some material to understand the history of the matter. The primary judge never indicated she had or would read the whole file. The only material from that file placed before the judge at trial was that annexed by the father to his affidavit.
Nevertheless, it is apparent throughout the reasons that the primary judge did have regard to allegations of violence and controlling behaviour and it was entirely within the judge’s discretion, based on the evidence before her to reject the mother’s claims.
This ground of appeal is not made out.
Ground 4
The mother argues that the primary judge erred by failing to have proper regard to the provisions of s 65DAA, and in particular did not have regard to the practicability of equal shared time and failed to give any reasons to justify the orders being in the best interests of the child. Such failure, it is argued, constitutes an error of law.
It is not disputed that the primary judge set out the correct approach to consider reasonable practicability, which includes an assessment of s 65DAA(1) and (2), with regard to the case of MRR v GR.
It is evident from the judgment that the primary judge devoted considerable attention and discussion to the issue of practicability (sometimes referred to as practicality in the reasons). While they may not have been set out underneath a heading “s65DAA” or “practicability” – it is clear the principles of that section and the spirit of MRR v GR was addressed at length in other areas of the judgment.
At [158] the primary judge considers the views of the child as required by s 60CC(3)(a). In doing so, it is clear there is an assessment of the practicability of shared parenting arrangements and the impact it would have, or a change to it might have, on the child. From [158] up to [170], the primary judge assesses s 60CC(3)(b) – (ca) and finds the child has a good relationship with both parents, each parent generally communicates well with the child (although it is the mother who has at times excluded the father) and that each parent has fulfilled their obligations to maintain the child. Any deficiency in these areas of course, would speak to issues arising as to practicability. Therefore, the reasons demonstrate that it was only the mother who as at times failed in her obligations with respect to communication.
At [173] onwards there is, again, a very clear assessment of practicability. It is found that the proposed relocation to Perth would introduce significant changes. It would upset the current parenting arrangement which had proven to be very successful for the child. The primary judge also found:
174.The move to Perth is a move of significant distance and introduces costly regular travel and considerable financial expense by each of the parties. Given the evidence of the father’s income and outgoings, accommodation, hire car, cost of living and the cost of the proposed travel, I am satisfied he is not in a position to fund 2 trips (or more) to Perth as proposed by the mother. Similarly, noting the mother’s current income and even allowing for her proposed return to the workforce and her hope to secure her own accommodation in Perth, I have no confidence that the mother’s proposal for herself and [the child] to travel to [North Queensland] twice a year is financially viable or sustainable. For weeks on end, the most that [the child] will be able to enjoy with her father is Skype or other electronic contact. The child’s physical contact with the father will be greatly diminished.
175.The mother’s proposals involved an interstate move with a change in the education from Queensland to Western Australia. [The child] has been attending school in [North Queensland] since the commencement of her schooling (except for the 2 ½ month period in Perth). It is clear from the report of Dr [K] that each of the parties believes she is happily settled into [a primary school] in [North Queensland]. [The child] will lose those friendships. The mother says that she will live with her own mother for a period and then she is hoping to get her own accommodation. If the mother cannot achieve her independence from her mother, her staying and living with her mother may continue indefinitely. The mother has previously explained how her attempts to move out from her mother and obtain housing for herself and [the child] were discouraged by her mother and family.
176.[The child] will be living in Western Australia as opposed to tropical far North Queensland where she has been for the last three years. She will have a change of home, environment, neighbourhood, city and State.
A further portion of the reasons (at [177] – [182]) considers a consequence of the relocation would be an increased involvement of the maternal grandmother in the child’s life:
182.Despite that fairly clear message, the maternal grandmother is still asserting, in 2014 that the move of the father and the mother to Queensland was as a result of a deliberate act on the part of the father and designed to get the mother and [the child] away from their family in Perth. [The maternal grandmother] described the father as an “abusive and controlling husband” who has “so much influence on the mother.” She accused the father of controlling the mother and affecting the mother’s levels of anxiety and accused him of being “cold and not family orientated.” [The maternal grandmother] also said, “I have concerns that [the child] is being isolated, and that her father has taken her away from her family.” Mr [O] was of the view “that [the maternal grandmother] impressed as an individual who has historically had a significant influence with the parent’s relationship, and certainly during periods of separation; however, the nature of her comments appeared to inform a stand that minimised the value of the child’s relationship with her father; concurrent with an extremely overprotective stand in respect of the mother.”
The primary judge considered the practicability of the mother’s proposal in light of her mental health. It was noted that having regard to the evidence of Dr K, the primary judge had concerns that there would be times when the mother could be unable to care for the child, she will need a backup. Although it is argued this “backup” could be the maternal grandmother, concerns were also held about the negative views of the maternal grandmother towards the father.
In the most explicit terms, the primary judge set out the issues relating to practicability of the mother’s proposal:
186.The Court accepts the views of the Report Writer that:
a) in the long term given the vast distance introduced by the mothers proposals;
b)the lack of physical time to be spent between [the child] and the father proposed by the mother;
c)the lack of ability financially for the mother to even sustain the inadequate periods proposed by her; and
d)the similar lack of financial capacity on the part of the father to travel to Perth and secure his own accommodation, car hire and other costs for the time that he is to remain there to spend time with [the child] will all likely result in the diminution of the strong relationship that the child has with the father.
187.In the long term as the Report Writer suggests, the mother’s proposals are not conducive to sustaining an ongoing relationship between the child and the father. The Court is of the view that the child’s current relationship with the father will likely fall away as the contact proposed is unsustainable and in any event either way it is insufficient, given all of the circumstances, to nurture and retain a meaningful relationship between the child and father in the future.
188.The father’s proposal in the event the mother lives in [North Queensland] involves [the child] spending week on/week off with each parent. I am satisfied the impact of this arrangement will be that [the child] will enjoy and continue to enjoy in the long term a meaningful relationship with each parent. The relationship will involve physical contact between the child and each parent each week as opposed to only the school holiday periods for set days. [The child] will benefit from the ability to spend regular physical time with each of her loving parents on this proposal.
The primary judge considered the practical difficulty and expense of the mother’s proposal. It is clear that with the mother’s limited financial resources, the significant distance between Perth and North Queensland and the fact there is no direct flight for the child to take between the locations – there are practical difficulties with the mother’s proposal (at [190] – [198]). While the father does have the financial capacity to fly to see the child in Perth, there is no doubt he would still incur significant costs in doing so. The primary judge remarked “This financial restraint together with the mother’s inability to pay for her proposed visits to [North Queensland] would seem to me to be fatal to the mother’s proposal…” (at [194]).
When asked what evidence the primary judge may have overlooked in determining this issue, counsel for the mother was unable to take us to any part of the evidence relevant in this respect. It was suggested to counsel by Thackray J, that [220] of the reasons demonstrates that the judge made positive findings, on the evidence, of the parties’ ability to facilitate an equal time arrangement in the event the mother lives in North Queensland. We repeat here what the primary judge said:
220.On the father’s proposal it is proposed that the parties have equal time in [North Queensland]. I am satisfied that the parties have the ability to communicate sufficiently to enable an arrangement of this kind to be implemented. Dr [K] has observed that the parties have a reasonable degree of communication. It seems to me that they have an ability to communicate well when they are left to conduct their lives without any interference, whether they are together or living apart as they have been doing in [North Queensland] since the interim orders were made. I’m also satisfied that there is a residue of goodwill between the mother and father and even affection. The mother has stated in her material that she still loves the father and she thinks he is an excellent father. The father considers the mother is an excellent mother other than when she is unwell. Each of the mother and father expressed to Dr [K] their joint delight at how well [the child] is doing at school. I consider all of these issues point to the parties being able to communicate sufficiently well to facilitate an equal time arrangement in [North Queensland].
There is no merit in this ground of appeal.
Ground 6
The mother argues that the primary judge failed to adequately consider the evidence and her reasons for relocating to Perth.
The first limb of her argument is there was no evidence that the mother was “settled” in North Queensland, and disputes the following paragraph of the primary judge:
114.The history of their living together in [North Queensland] shows that they were both settled in the community. I do not accept that the mother did not have any friends. The mother told Dr [K] she had friends. There is evidence of her being active in the community doing volunteer work and there is no evidence to suggest that somehow the mother has been isolated in [North Queensland] living without any friends. She has been actively raising [the child] and taking on multiple roles of mother, volunteer worker and wife.
The mother also argued that a key reason for her relocation is the relationship she has with her mental health practitioner in Perth. The mother disputes the finding of the primary judge that she could continue to use local mental health practitioners in North Queensland instead (at [156]).
As previously identified in these reasons, the primary judge had significant regard to and a clear understanding of the mother’s concerns and reasons for moving to Perth.
The mother, in her interview with Dr K, admitted that she did indeed have friends in North Queensland, and he records her statements to that effect. There is indeed no evidence of isolation either, as the mother was involved with the community and had regular contact with her own family. Further, it is clear that regardless of her relationship with the father, the evidence demonstrates that the mother had lived in North Queensland since at least 2010 and had ample opportunity to build relationships and involve herself in that community.
Turning to her relationship with her mental health practitioner in Perth, it is appreciated that the importance of such a relationship should not be underestimated. However, as identified by the ICL, there is evidence that the mother has engaged with mental health experts in North Queensland. While the mother may prefer one practitioner over another, there was nothing to suggest she could not receive adequate care and support in North Queensland.
The mother took no steps at the trial to demonstrate why the Perth practitioner could be regarded as her only treating professional. She did not put anything into evidence from the practitioner, nor did she make them available for cross-examination in order to demonstrate why someone else would not be appropriate.
It is clear that the primary judge had proper regard to the evidence and reasons put before her, and, as there was no evidence to the contrary, the primary judge was entitled to find that the mother could be treated appropriately by mental health practitioners in North Queensland.
There is no merit in this ground of appeal.
Ground 7
The mother contends that Orders 16 and 17 were made in the absence of any evidence and were not in the best interests of the child.
In written and oral submissions, the ICL confirmed that a copy of the draft orders was provided to the mother and father. These draft orders contained the now Order 16 and Order 17 in their entirety. Counsel for the mother failed to make submissions or raise any objection to these proposed orders and they were therefore adopted in full by the primary judge.
Order 16 provides that all parenting orders are subject to the mother being psychiatrically well. It then proscribes certain conditions in the event she becomes unwell, which includes notifying the father, suspending the parenting orders and allowing the father to have sole parental responsibility during that period. When the mother recovers, she must attain a short report from her mental health professional confirming she is well enough to resume making long term decisions. The Order also requires the mother attend counselling to assist her manage the dynamic of the relationship she has with her own mother.
The ICL submits that Order 16 (and Order 17) arose from the evidence of Dr K (at [141] – [155]). His evidence was not challenged by the mother and therefore his report was accepted untested.
It was clear that Dr K, and the primary judge, held concerns for the care of the child when the mother became unwell. Order 16 in effect, provided a formal mechanism for an arrangement that had already been implemented by the mother and father throughout their relationship. In May 2009, the father took over the sole care of the child while the mother was in hospital. Again, in late December 2013 through to January 2014, the mother approached the father for assistance when she was feeling unwell. The mother admitted that she in fact accepted his offer to stay with him and the “early signs of the mother being unwell were managed with the support of the father” (at [113]).
In light of the mother having notice of the proposed orders from the ICL, the untested evidence of Dr K and the evidence of such an arrangement working on an informal basis, it is clear that Order 16 was made on appropriate evidence and in the best interests of the child. Allegations that the father might not return the child, on the production of a report proving the mother is well again, are unfounded. In the entirety of this matter, it is only the mother who has left with the child without notice or consent of the father.
Order 17 restrains the maternal grandmother and her de facto partner from attending any handover of the child. It is clear there is substantial evidence supporting such order – the interference of the maternal grandmother, her de facto partner and extended family is well documented:
a)The father was prevented from seeing the mother by mother’s family when she became unwell in February 2004 (at [8]);
b)The father asked the maternal grandmother to leave when an incident occurred with the mother breastfeeding the child (at [13]);
c)The mother’s family falsely accused the father of sexually interfering with the child in 2008 (at [15]);
d)The maternal grandmother and family left the hospital with the mother and child without notice or consent of the father in June 2009 (at [19]);
e)During the FCWA proceedings in 2009, handovers became increasingly aggressive between the father and the mother’s family and the father ultimately successfully applied for an apprehended violence order against the de facto partner (at [22]);
f)The maternal grandmother applied for leave to intervene in the FCWA proceedings, seeking a recovery order for the child to return to Perth in October 2010 (at [26]);
g)In November 2010, the maternal grandmother and her de facto partner arrived unexpectedly and requested the mother and child to get into their car (at [27]); and
h)During the trial and now this appeal, when the mother left for a holiday it was only once staying with the maternal grandmother did she text the father to tell him the relationship was over.
The influence of the maternal grandmother (and to some extent, her de facto partner) on the mother, father and the child is well documented throughout the Family Report, Dr K’s report and the reasons of the primary judge. It was entirely appropriate that Orders 16 and 17 were made in these circumstances. Further, it is more than clear why the primary judge made orders for the mother to attend counselling so she could manage the dynamic of her relationship with the maternal grandmother.
This ground is not made out.
Costs
At the conclusion of the hearing of the appeal, we asked for submissions in relation to costs.
The father did not ask for costs, he represents himself.
The ICL asked for costs on the basis that the mother would be wholly unsuccessful in the appeal, that part of the basis for the grounds of the appeal was of her own making, that is, the failure to file material as required by the court. The ICL provided an estimate to the court of $3,549.
Counsel for the mother submitted that if the appeal is dismissed, each party should pay their own costs as the mother had no capacity to pay a cost order.
Section 117(1) of the Act provides that subject to s 117(2) and other provisions, each party shall bear their own costs. Section 117(2) provides that if the court is of the opinion that there are circumstances justifying an order for costs the court may make such an order. Section 117(2A) provides that in making such an order for costs, the court shall have regard to a number of listed factors.
We note the mother was represented by Queen’s counsel on appeal, instructed by a solicitor. Having regard to the s 117(2A) factors, including that the appeal was without merit and the mother’s financial circumstances, an order for costs should be made.
It was most helpful to have the appearance of the ICL, a private solicitor who briefed counsel. This was necessary. The mother should pay the costs of the ICL fixed in the sum of $3,549 as requested.
Thackray j
For these reasons, I agree with May and Forrest JJ that the appeal should be dismissed.
Ground 1 – Expression of preliminary views
Ground 1 is difficult to comprehend. In any event, it proceeds on an assumption that the trial judge expressed preliminary views concerning some (unidentified) aspect of the proceedings. However, nothing advanced by the mother suggests that her Honour did any more during the interlocutory stages than acknowledge some matters that were common ground and confirm that she had correctly understood the parties’ respective positions.
The only time the trial judge might be seen to have expressed a “preliminary view” was when she granted an interim injunction restraining the mother’s relatives from attending the handovers. Given the background described in the reasons of May and Forrest JJ, that injunction was a sensible precaution, and did not indicate that the trial judge had formed a view in relation to the substantive issue. Furthermore, the mother’s counsel did not at any time complain or seek to have the trial judge disqualified.
The argument advanced relating to the delay in delivery of judgment strayed well beyond the terms of the complaint in Ground 1. In any event, there was no suggestion in the mother’s argument that the trial judge misapprehended the case put to her by either party or made any errors of fact as a result of the delay. On the contrary, her Honour’s reasons were comprehensive and demonstrated a thorough understanding of all of the issues and evidence.
Ground 2 – Procedural fairness
Although there was no appeal against the decision to refuse an adjournment of the trial, the various complaints advanced under Ground 2 appeared to be directed to that decision, notwithstanding the attempt made by senior counsel for the mother to relate the complaints to the substantive parenting issue.
Many of the complaints proceed on the basis of an assertion that the trial judge made directions or imposed restrictions which her Honour simply did not make or impose. It is important to reiterate that the mother was represented, and that her counsel did not object to the way in which the trial was conducted (after the application for an adjournment was dismissed).
The mother had ample opportunity to prepare her case for trial, and should have considered herself fortunate to be permitted to participate in the proceedings at all given her failure to comply with procedural orders.
Ground 3 – Findings and orders made in another court
Senior counsel for the mother asserted that the trial judge had said she had read the entire file from the proceedings between the parties in the Family Court of Western Australia. However, counsel was unable to take us to any part of the record to support this proposition.
The closest her Honour came to saying anything like this was during an interlocutory hearing when she said she would, with the agreement of the parties, “look at this file to work out what I can work out about what’s happened” (transcript, 9 August 2014, p 30). Nothing thereafter said by her Honour suggested she would take into account any material on the file, save for documents annexed to the father’s affidavit.
In my view, her Honour would have erred had she taken into account any evidence appearing on the Family Court of Western Australia file (save for that attached to the father’s affidavit) without giving notice to the parties of her intention to do so.
Furthermore, it is a ludicrous to suggest that the trial judge would have placed any weight on “findings” made in the earlier proceedings in circumstances where the so-called “findings” were made at an interim hearing, and only on the basis of affidavit evidence and some documents produced under subpoena.
Ground 4 – Practicability of an equal shared care arrangement
The trial judge made a specific finding at [224] that:
I am therefore satisfied that it is both in the child’s best interest and reasonably practicable for her to spend equal time with each party in the event the mother lives in [North Queensland].
This finding was well supported by the discussion in the preceding paragraphs, and in particular [220], which has been recited in full by May and Forrest JJ.
The proposition that the trial judge failed to have any regard to the practicability of an equal time arrangement is therefore entirely fallacious. The associated proposition that her Honour failed to give adequate reasons as to why the orders were in the best interests of the child is equally devoid of merit, since her Honour gave detailed and cogent reasons.
Ground 6 – Finding the mother was settled in North Queensland
I agree with the reasons of May and Forrest JJ in concluding this ground lacks any merit.
Ground 7 – Conditions imposed on shared care arrangement
I accept that the conditions in Order 16 might be seen as introducing an element of uncertainty in the parenting regime, and could therefore potentially lead to disputation. However, the conditions need to be understood in the context of the parties’ proven ability to manage the care arrangements for the child on those occasions when the mother was unwell.
There was nothing in the evidence to indicate that the father would take advantage of the conditions, for example by changing the child’s school or removing her from North Queensland whilst the mother was unwell (as was suggested on behalf of the mother). Furthermore, any disagreement between the parties as to the state of the mother’s mental health could be simply and expeditiously resolved by the mechanism set out in Order 16(e).
Accordingly, I consider the terms of Order 16 were an entirely proper exercise of her Honour’s discretion.
Nothing advanced by senior counsel for the mother supported the claim that there was no evidence to justify the making of Order 17 (relating to handovers) or that the order was not in the best interests of the child.
Costs
None of the complaints advanced in this appeal were properly arguable.
I therefore agree with May and Forrest JJ that the mother should pay the Independent Children’s Lawyer’s costs (the quantum not being disputed).
I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 26 June 2015.
Associate:
Date: 26 June 2015
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