Jurchenko & Foster
[2014] FamCAFC 127
FAMILY COURT OF AUSTRALIA
| JURCHENKO & FOSTER | [2014] FamCAFC 127 |
| FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the Magistrate made orders preventing the mother from relocating the child’s residence from Perth to a town in the Pilbara – Whether it is appropriate for a judicial officer to provide a preliminary view before trial – Whether it is necessary for expert evidence to be provided before a judicial officer can make a finding about the likely effect of a relocation – Where the mother said during cross-examination she would remain in Perth if relocation was refused and where the Magistrate erred by proceeding on the basis that this was a proposal – Where the Magistrate erred by focussing on the maintenance of a meaningful relationship with both parents at the expense of a proper consideration of all other relevant factors – Where the Magistrate gave insufficient attention to the impact on the mother’s new family of the relocation being refused – Where the Full Court was satisfied that the Magistrate erred by failing to carry out a proper evaluation of the competing proposals – Appeal allowed – Matter remitted for rehearing – Costs certificates granted to both parties for the appeal and the rehearing |
| Family Law Act 1975 (Cth), ss 60CC, 61DA and 65DAA |
| AMS v AIF (1999) 199 CLR 160 Champness & Hanson (2009) FLC 93-407 D and SV (2003) FLC 93-137 Deiter & Deiter [2011] FamCAFC 82 Gronow v Gronow (1979) 144 CLR 513 Heaton v Heaton (2013) 48 Fam LR 349 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Muldoon & Carlyle (2012) FLC 93-513 Mulvaney & Lane (2009) FLC 93-404 U v U (2002) 211 CLR 238 Yuill v Yuill [1945] 1 All ER 183 |
| APPELLANT: | Ms Jurchenko |
| RESPONDENT: | Mr Foster |
| FILE NUMBER: | PTW | 6320 | of | 2011 |
| APPEAL NUMBER: | WA | 28 | of | 2013 |
| DATE DELIVERED: | 18 July 2014 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, Thackray and Duncanson JJ |
| HEARING DATE: | 3 April 2014 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 14 November 2013 |
| LOWER COURT MNC: | [2013] FCWAM 128 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Farmer |
| SOLICITOR FOR THE APPELLANT: | Terrace Law |
| COUNSEL FOR THE RESPONDENT: | Mr Smith |
| SOLICITOR FOR THE RESPONDENT: | O’Sullivan Davies |
Orders
The appeal be allowed.
The matter is remitted for hearing by the Magistrates Court of Western Australia by a Magistrate other than Acting Magistrate Kaeser.
The orders made by Acting Magistrate Kaeser on 14 November 2013 be set aside, this order to take effect upon the commencement of the rehearing.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jurchenko & Foster 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 PERTH |
Appeal Number: WA 28 of 2013
File Number: PTW 6320 of 2011
| Ms Jurchenko |
Appellant
And
| Mr Foster |
Respondent
REASONS FOR JUDGMENT
Introduction
This appeal concerns future living arrangements for F (“the child”), whose parents separated before she was born in October 2011.
The child’s mother has challenged orders refusing her permission to relocate the child to a town in the Pilbara (“Town D”), where her new husband works on a fly in/fly out basis.
The appeal is opposed by the child’s father, who wants the child to continue living in Perth so that he can spend regular time with her.
Background facts
The child’s parents commenced their short relationship in June 2010. They started cohabiting after the mother told the father she was pregnant in January 2011. They married in April 2011, but separated in August the same year, just two months prior to the child’s birth in October 2011.
The mother was “almost the exclusive caregiver” for the child prior to the trial. The father had spent “relatively little time” with the child and had not spent “a single overnight period” with her. (Reasons [7] and [84])
At the time of trial, the father was entitled to spend six hours with the child each Saturday; three hours each Wednesday; and on special occasions for four hours. In the lead up to the trial, some of the Saturday visits had been extended to eight hours by consent, but the father had not been seeing the child on Wednesdays because his driver’s licence had been suspended.
The father was 26 at the time of trial. He worked in a business operated by his father, but had also undertaken training as a manager.
The mother was 22 at the time of trial. She married her present husband in April 2013 and they now have a child, H, who was born in June 2013.
The mother’s husband works in Town D. He has been working, fly in/fly out, on a 28 days on/28 days off roster. He now has an opportunity to take a permanent position in Town D which would allow him and the mother to live together full-time with the children.
The matter was listed for trial before Acting Magistrate Kaeser in October 2013. On 14 November 2013, his Honour refused the mother’s application and made orders for the father to spend what his Honour found to be “substantial and significant time” with the child in Perth.
His Honour’s “preliminary view”
We propose to make some observations about the Acting Magistrate having taken up a suggestion that he state his “preliminary view” prior to hearing any of the evidence or receiving any submissions. It is appropriate to do so as we were informed that this practice is not uncommon in Western Australia.
At the outset of the trial, counsel for the father said his client would be “more than happy” for the Acting Magistrate to express “a view”, having noted that “your Honour does sometimes express a view”. The Acting Magistrate said he was willing to do so, but only if both parties agreed. Counsel for the mother said he would need to take instructions first. Before counsel did so, his Honour explained what was involved in giving a “preliminary view”, in the course of which he was at pains to point out that his view might change as the matter progressed. Having heard this explanation, counsel for the mother said he had instructions to agree. (Transcript, 2 October 2013, p 3, 4)
The dangers inherent in this practice quickly became evident when the Acting Magistrate expressed two concerns he had about the mother’s case. By way of introduction, his Honour gave a very brief résumé of the evidence as he understood it. In doing so, his Honour clearly accepted as correct a claim made in the father’s trial affidavit about the work roster of the mother’s husband if the relocation was permitted.
The father had asserted in his affidavit that the mother’s husband would still be flying in and out of Town D in the same way he had been flying in and out of Perth - leaving the mother alone in a strange town with two young children for a month at a time (see the father’s trial affidavit at [271] and [280]). His Honour described that arrangement as “the difficulty with that proposal”.
At this point, counsel for the mother interrupted his Honour to explain that he had misunderstood the mother’s evidence, and that her husband would be living in Town D full-time (see the mother’s trial affidavit at [8]). Indeed, it was a key point in the mother’s case that she and her husband and the two children would be able to live together full-time.
The Acting Magistrate accepted what he had just learned about the mother’s case. However, it might be thought the damage had been done, in that his Honour had seemingly formed a view on the basis of acceptance of one party’s evidence, which had yet to be tested. We recognise his Honour had not appreciated that the husband had misinterpreted the mother’s proposal, but it highlights the danger of a judicial officer publicly stating any “view” prior to the cases of both parties having been properly aired.
In any event, having just been corrected about a fundamental plank of the mother’s proposal, his Honour immediately went on to make an observation which, as we will see, ended up being the cornerstone of his ultimate decision:
The other concern that I have is the age of the child. The child is not yet two. And it seems to me that both parties accept that this child should have, and continue to have, a meaningful relationship with both parents. What I see from the papers is that the father says that a meaningful relationship cannot be maintained if the child is in [Town D], given the travel arrangements proposed by the mother.
It seems that the mother’s position is that a meaningful relationship can be maintained in those circumstances. And it seems to me that a significant issue is whether the court agrees that a meaningful relationship can be maintained over such a distance with such a small and young child and given such infrequent visits between a parent and a child.
I may have some difficulty accepting the position that a meaningful relationship can be maintained in those circumstances. And quite frankly, even given the proposed orders of the father, because I think the father’s position is that a meaningful relationship can’t be maintained on the mother’s proposals but can be maintained on the father’s proposals if the child lives with him in Perth. I have some concerns about that position as well.
(Transcript, 2 October 2013, p 5)
At this point, it was the turn of counsel for the father to intervene, effectively arguing the point with the presiding judicial officer about the last portion of the view he had just expressed, as appears from the following exchange:
SMITH, MR: I think given the mother’s secondary position I don’t think that’s a valid proposition to put. In the event that she’s not going to have to – if she’s not able to relocate then she’s going to stay in Perth anyway, so the father’s secondary proposal becomes almost redundant.
HIS HONOUR: Again, preliminary view only. It seems to me that a meaningful relationship can easily be maintained and properly be maintained if the child stays in Perth. I have some concerns about whether that can happen if the child is not in Perth. All right. Any questions? Any queries arising from those comments? All right. We will stand down. I won’t give you a time, just take the time that you need, otherwise we will re-convene when you’re both ready.
(Transcript, 2 October 2013, p 5)
In the context, his Honour was clearly standing the matter down for the parties to engage in settlement discussions on the basis of what he had just said. Given that the first of his “concerns” had turned out to be without foundation, the impression that would inevitably have been created is that his Honour felt that his second “concern” should, of itself, be taken seriously enough to warrant settlement discussions – notwithstanding that the view he had expressed was said to be “preliminary” only.
The fact that those in the courtroom thought his Honour’s “preliminary view” did not auger well for the mother’s case can be seen from the following observations of counsel for the mother after the court resumed:
COLE, MR: Yes, I’ve had the opportunity to discuss the matter with my client, and my client wishes to proceed.
HIS HONOUR: All right. Thank you.
COLE, MR: And as far as I understand the father’s position, the father would be opposed under any circumstances to my client being permitted to relocate regardless of the time that may be offered. So I think that essentially this case will – well, given your Honour’s comments, and of course I appreciate they’re obviously preliminary comments, but it may well be that this case is going to boil down to this notion in terms of how much time the father could have with the child. But I’m not in a position to address you in terms of any altered proposals my client has at present.
I certainly would expect that come the closing address we would be in a position, and I would presume that this matter may well be explored during the cross-examination of my client as well, in terms of that matter. But I certainly indicate that, having regard to your Honour’s comments, that my client has indicated she would be prepared to move in terms of her proposals, in terms of the father spending time. And of course when I’m cross-examining the father I will try and flesh out a bit of information in terms of what possibilities may exist in terms of that.
(Transcript, 2 October 2013, p 6)
We will return later to this foreshadowed response to the “preliminary view”.
A further difficulty with this preliminary statement of a “view” is that it immediately suggested his Honour’s attention was already focussed on the maintenance of a “meaningful relationship” between the child and both parents, with the implication being that any proposal that did not involve the maintenance of such a relationship would be unlikely to find favour.
His Honour’s early focus on this one topic seems to have been informed by his belief that the mother had “accepted” that the child must have a meaningful relationship with the father. Our reading of the record suggests that this belief could only have been reached on the basis of what had been said in the Papers for the Judicial Officer. While it is true it was claimed in the mother’s Papers that her proposals would ensure a meaningful relationship would continue after the relocation, in the same document it was also said that the mother:
· was opposed to orders for “substantial and significant time”;
· accepted that the planned move would impact on the child spending time with the father, but asserted that the father could still maintain “an appropriate relationship with the child” (our emphasis);
· asserted that the father’s “commitment to the child is questionable, especially having regard to his frequent non-adherence to the mid-week contact”.
The Papers for the Judicial Officer did not make clear what the mother (or her advisors) understood to be a “meaningful relationship” or an “appropriate relationship” and, at this early point, her counsel had not been asked what was meant by those terms. The latter could, of course, have meant such relationship as would be “appropriate” where a father had left home before the birth of his child and thereafter had spent “relatively little time” with her, including not “a single overnight period”, while the mother had gone on to establish a new family unit, which included a four-month-old half sibling.
It must be remembered that the Family Law Act 1975 (Cth), (“the Act”) does not obligate a court to ensure a child maintains a meaningful relationship with both parents: Mulvaney & Lane (2009) FLC 93-404 at [89]. Rather, the court must consider the benefit to a child of having such relationships. With respect to his Honour, notwithstanding what was said in the mother’s Papers, we do not consider he was in a position at the outset of the trial to form even a “preliminary” view concerning what benefit there might be to the child having a “meaningful relationship” with the father, or how that benefit ought be weighed with the many other factors the Act requires be taken into account.
This is especially so in a case where the mother had made very serious allegations about the father, which had not been tested. These included that the father had been violent; was a jealous misogynist; was prone to severe mood swings; was a drunk and a former drug dealer; had used a prostitute; had deserted the mother shortly prior to the birth of the child; and had not taken up all opportunities to spend time with the child (because, as it turned out, he had lost his licence as a result of “drink driving” and then driving unlicensed).
We acknowledge that his Honour ultimately rejected most of the mother’s allegations, but what is worthy of note is that he did not mention any of them when expressing his “preliminary view”. His Honour’s failure to mention what, on their face, were matters of some significance had the potential at least to lead the mother to form the view that these issues were unlikely to have any impact on the outcome – and that the proceedings were instead to be directed to maintaining a “meaningful relationship” between the father and child.
It is also noteworthy that the mother’s grounds of appeal now assert that the Acting Magistrate failed to “consider the evidence in a balanced, fair and non-biased manner”. Whatever merit (if any) there might be in that assertion, it must be said that the expression of preliminary views leaves a judicial officer open to complaint that he or she viewed the evidence through the prism of their already formed “view”. In our opinion, this is a real danger no matter what efforts are made to explain that the “view” might change as the trial progresses.
The remarks of Lord Greene M.R. in Yuill v Yuill [1945] 1 All ER 183 at 189, albeit in a different context, are apt to illustrate the point we wish to make concerning the dangers of a judicial officer descending into the arena before hearing all the evidence and considering counsel’s submissions.
A judge who observes the demeanour of the witnesses while they are being examined by counsel has from this detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation.
A further danger with the proffering of a “preliminary view”, especially in “relocation” cases, is that it will encourage a party to abandon their original case and to attempt frantic amendments to meet “concerns” expressed in the “preliminary view”. As we will now see, this is precisely what occurred here.
The competing proposals
The outcomes envisaged by both parties in their proposals, and the way those proposals were amended, assume particular importance in this appeal, given a complaint by the mother concerning the way his Honour allegedly set (but then disregarded) the parameters within which the matter was to be resolved.
The orders sought by the father prior to and at trial
The father’s proposal was for the child to live with the mother and commence spending five nights each fortnight with him starting in 2015. Prior to 2015, he proposed the child spend time with him overnight on Tuesdays and Fridays. The father did not propose any holiday contact until the child started full-time primary school, at which time he proposed she spend half of January with him.
The father put forward an alternative proposal if the mother lived further than 30 kilometres from School C. In that event, he wanted the child to live with him and spend time with the mother for up to four days every month (and additional times when the mother was visiting Perth).
The orders sought by the mother prior to trial
The orders initially sought by the mother, in December 2011, were contained in her response to the father’s application for contact orders. The mother sought an order for the child to live with her, for the parents to have equal shared parental responsibility and for the father to spend time with the child as agreed.
In February 2012, the mother filed an amended response in which she sought only an order that the father’s time with the child be supervised. (The Acting Magistrate, at [11], described this as “an interesting position to adopt”).
In July 2013, the mother filed a Minute in which she sought that she be permitted to relocate the child’s residence to Town D (on the basis that prior to the relocation the father would spend time with the child each Saturday). If the relocation were permitted, the mother proposed to travel to Perth not less than four times each year, for a two week period, to allow the father to spend time with the child. During these trips the mother proposed that:
· until the child turned three, the father would spend time with her for a total of 30 hours per trip, in 10 hour blocks on the weekend;
· after the child turned three, she would have two overnight stays with the father per trip, from Saturday morning until Sunday morning;
· after the child turned six, the father would spend three continuous days with her per trip, from Friday afternoon to Monday afternoon; and
· after the child turned eight, the father would spend one continuous week with her per trip.
The Minute filed in July 2013 also dealt with what would occur if the mother was not permitted to relocate. This involved the father spending time with the child each Saturday until she turned three, when overnight time would be introduced and then holiday time would be introduced when she turned six.
These alternative proposals were repeated in the mother’s Papers for the Judicial Officer filed on 27 September 2013, which was just a matter of days prior to the commencement of the trial on 2 October 2013.
The orders sought by the mother after the “preliminary view”
As earlier recorded, the mother foreshadowed amending her proposal after the Acting Magistrate stated his “preliminary view”. His Honour’s reasons explain how this came about:
13.At the start of the trial before me, both parties requested that I express a preliminary view as to some of the issues raised in the proceedings. Part of that view was that I might have some difficulty with the concept that a meaningful relationship could be maintained between the father and the child, [F], if [the child] lived in [Town D]. I also expressed a similar view that it might be difficult to maintain a meaningful relationship between [the child] and the mother, should the mother live in [Town D], and the father live with [the child] in Perth. It would appear that partly as a result of these comments, the mother’s position again changed on two occasions. On the second day of trial, her Counsel handed up two versions of orders sought. The mother’s position was clear, in that she only relied on the second of those documents, which I have described below as “Version 2”. She also sought to file “Version 1” as it indicated her change in position, and the two minutes were drafted so that one could easily see the change in “Version 1” from the previous Minute filed, and the changes between “Version 1” and “Version 2”.
As we will later explain, the amendment made by the mother came about not only as a result of the expression of the “preliminary view”, but also because of a ruling his Honour had made preventing cross-examination of the father about the possibility of him moving to Town D. “Version 2” was notable in this respect for the fact that, unlike “Version 1”, it contained no proposal for the mother to remain in Perth. The options dealt with in “Version 2” assumed scenarios of the child either coming down from Town D to visit her father in Perth or, alternatively, seeing him in Town D if he also relocated.
In the event that the child relocated to Town D and the father remained living in Perth, “Version 2” also envisaged an increased number of visits with the father, and of longer duration, than had originally been proposed. Until the child turned three, there would be six visits a year, each for a 10 day period, during which time the child would see her father on four different days. The number of visits would then reduce as the child grew older, but the visits would be for increasing periods of time, including overnights. The regime would finally settle down, when the child turned eight, to one visit every school holiday for one week. The proposal also involved the father having telephone and Skype contact with the child no less than twice a week.
Parental responsibility
Before proceeding, we consider it desirable to clarify confusion that emerges from the record relating to parental responsibility, which is an important topic in all parenting proceedings, since the allocation of parental responsibility has consequences for the way in which applications must be determined.
The orders sought in the mother’s Papers for the Judicial Officer did not deal with parental responsibility, but elsewhere in the same document it was said that “the mother alleges family violence but will not oppose the presumption of shared parental responsibility”. Similarly, no mention was made of parental responsibility in the amended orders sought by the mother at trial.
The orders sought in the father’s Papers for the Judicial Officer were also silent on the issue of parental responsibility, but this was explained by the statement at paragraph 89 of that document that an order for equal shared parental responsibility had been made by consent on 21 September 2012. (This proposition was repeated in the father’s Summary of Argument provided in response to the appeal.)
The Acting Magistrate, in his reasons for judgment, said:
105.The Full Court in Goode & Goode … at [56] made it clear that when a parenting order is sought, the starting point is the application of the presumption … that it is in the best interests of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in s 61DA(2) and (4).
Having discussed s 61DA(2) and (4), his Honour went on:
109.In my view, there are no reasonable grounds to believe that a parent (or a person living with a parent) has engaged in abuse or family violence. The presumption clearly applies.
110. The Court is therefore required to consider making an order that the child spend equal time with the parents.
Although his Honour found that the presumption applied, he failed to make an order concerning parental responsibility, and he made no reference to such an order having previously been made. His Honour also did not state the law correctly when he said that because the presumption applied, he was required to consider making an order that the child spend equal time with both parents. What his Honour no doubt intended to say was that he was obliged (by virtue of s 65DAA(1)) to consider making an order for equal time if there was an order for equal shared parental responsibility.
There was no complaint in this appeal concerning his Honour’s treatment of the issue of equal shared parental responsibility, which is understandable if there was, in fact, in place an order for equal shared parental responsibility. In the absence of complaint, we propose to say nothing further on the topic.
The Acting Magistrate’s Reasons
Having set out brief biographical information, the Acting Magistrate described, at [3], what he considered were the two advantages associated with the proposed new roster of the mother’s husband:
(a)He will live at home in [Town D] so he will see his family during his roster (rather than having no contact for 28 days); and
(b)He will be available for more work, he estimates to be up to an extra week during his normal four weeks off; thus improving their financial position.
He went on to say, at [4], that the additional work would have three consequences for the mother’s husband:
(a)He will earn more than he does now;
(b)He will get more hours up and progress his career faster to the next stage; and
(c)He may, in fact, spend less time with his family, as despite seeing them for short periods during his time on, he will work an extra week out of the four that he would normally spend at home.
Having set out the orders sought by the father, his Honour said:
9.There are some points to note about the father’s position:
(a)…
(b)His proposals did not contemplate a situation where [the child] would be living with the mother in [Town D]. The orders that he sought involved the mother remaining in Perth with [the child] living primarily with her, and for the father to have a gradual increase in the amount of time with [the child]. His alternative was that if the mother was to move to [Town D] without [the child], then [the child] should live primarily with him, and spend time with the mother during the holiday periods, and for up to four days every month.
(c)He did not seek orders that provide for any time to be spent between him and [the child] on the basis that [the child] was living in [Town D] with the mother. His Counsel noted in closing that he would be “stuck” with either having his proposals for the mother’s time adopted in reverse, should [the child] be permitted to live in [Town D], or alternatively, the Court could adopt the mother’s proposals if they were living in [Town D].
(d)The father’s position was that the orders that he proposed in that [the child] live primarily with him if the mother was in [Town D], were in [the child]’s bests [sic] interests, and provided for [the child] to maintain a meaningful relationship with her mother. For reasons that will be explained, I reject both of those propositions.
His Honour then traced the history of the mother’s proposals, including the amendment made on the second day of the trial. In commenting on the mother’s earlier Minute filed in July 2013 his Honour observed, at [15.6]:
It should be noted that this document contemplates the mother not being permitted to relocate to [Town D]. It is, of course, the case and both Counsel conceded this point that the Court has no power to order a party to stay in a particular location or to force them to move to a particular location. The power the Court has relates to children, not to the adults who have freedom of movement under the constitution. I will say more about this issue later.
In commenting on the change made to the mother’s proposals by “Version 2”, his Honour said, at [17(b)], that the removal of any proposal for what would occur if the mother was not permitted to relocate was “an acknowledgement by the mother that the Court has no power to order her to stay in Perth”. His Honour continued by saying, “[d]espite this change, the mother still sought orders on the basis that she ‘be permitted to relocate’”.
His Honour then correctly commented
19.The mother’s proposals therefore do not contemplate a situation where she and [the child] remain in living in [sic] Perth. She seeks no orders in the event that was to occur, thus adopting a similar stance to the father.
Importantly, and now controversially, his Honour then went on to say:
20.It would appear (and this matter was discussed with Counsel) that, at the commencement of the trial, the parties presented the Court with two distinct options:
(a)that [the child] live primarily with the mother in [Town D] and spend time with the father during holidays and the like, given that he would continue to live in Perth; or
(b)[the child] live primarily with the father in Perth while the mother lived in [Town D].
21.During the course of cross-examination (to which no objection was raised), the mother’s answers revealed a third option for the Court. If the Court considered the best interests of [the child] demanded she lived primarily with the mother in Perth, and spent time with the father in accordance with a regime that could not be continued if the parties lived such a distance apart, then the mother would not move to [Town D], and would, for the time being, continue to reside in Perth.
His Honour then discussed credibility and made findings about contentious matters. When considering the mother’s evidence his Honour said:
36.In cross-examination, the mother conceded that if the Court was to find that [the child] was not permitted to move to [Town D], she would have to think about her position. She later stated that she would stay in Perth and reconsider her position. The mother then also said that she would stay in Perth, maybe until [the child] was older. If she was to stay in Perth, she would continue to live in her current house, and her husband … would continue to do his fly-in/fly-out work.
At [43] and [49], his Honour found that the father had not given much thought to the practicalities and demands of running a business and caring for a child and would have to rely heavily on his family if the child was in his full-time care.
The Acting Magistrate also stated the relevant legal principles. In particular his Honour adopted authority to the effect that a parent’s right of freedom of mobility must defer to the welfare of the child, if the child’s welfare would be adversely affected by a proposed move. His Honour commented, at [69] that the parties “will make decisions about where they live based on my findings”.
Having set out the objects of Part VII of the Act and the principles underlying them, his Honour turned to consider the “primary considerations” in s 60CC(2). We will say more about his Honour’s discussion when we come to the relevant ground of appeal, it being sufficient here to record what he said at [79]:
79.I was careful during the trial to keep an open mind in relation to whether either party could maintain a meaningful relationship with [the child] if the parties lived in [Town D] and Perth. Nothing in the evidence caused me to reconsider my preliminary view. It is not possible for [the child] to maintain a meaningful relationship with either parent in such circumstances.
Having found there was no need to protect the child from the physical or psychological harm referred to in s 60CC(2)(b), his Honour then discussed the “additional considerations” in s 60CC(3). In doing so, he found at [84] that the mother had been “the primary caregiver (and almost the exclusive caregiver) to [the child] since she was born”, while the father had spent “relatively little time” with her. He further noted that the father conceded “that having [the child] move from the mother’s care to his care would create problems for [the child]”.
His Honour went on to say:
85.I accept that [the child] also has a good bond with the father. It is one that is slowly developing and there needs to be ongoing regular time between the father and [the child] for that bond to be nurtured and for their relationship to continue to improve. Large gaps in visits (as would occur if the parties lived a significant distance apart) would damage that developing relationship. Skype or phone calls are not likely to overcome this problem given [the child’s] tender age.
In considering the likely changes to the child’s circumstances, his Honour said:
88.For [the child] to change from living primarily with the mother to living to [sic] primarily with the father would not be in her best interests. The father conceded that it was not appropriate for [the child] to live with him in his current accommodation. His future accommodation is at best uncertain ...
89.If [the child] moved to [Town D], her relationship with the father would deteriorate. There would be significant gaps between visits (even on the mother’s proposals). It would be difficult to maintain the current bond with the father let alone allow it to develop further. As I have said, phone calls and Skype are not proper substitutes for physical contact with a child of this age.
In considering the practical difficulty and expense of spending time with the child, his Honour said:
90.This is not an issue if the parties lived in the same location.
91.The father does not contemplate living in [Town D] and I accept that there may not be work available for him.
92.The mother does contemplate staying in Perth and can do so, although it is not her preferred option.
93.There would be significant difficulty and expense involved if the parties lived in [Town D] and Perth respectively. Airfares and accommodation would be significant – regardless of who travelled to which location.
94.If [the child] lived in [Town D], the mother proposes to fly with her to Perth initially on at least 6 occasions each year. This means there would be about eight weeks between visits. As [the child] gets older, the mother would travel less often but for a longer period each time. Although her husband’s employer may provide two of these airfares each year, they would still require substantial funds to cover the other airfares.
Having set out the law concerning parental responsibility, his Honour considered the options of equal time and substantial and significant time. This part of the discussion is of considerable importance and we set it out in full:
118.In this case:
(a) Equal time is not in [the child]’s best interests. She has not spent a single overnight period in the father’s care. She has a very close bond with the mother and it would be wholly against her best interests for her primary caregiver to change, especially given her tender age. She had not turned two years of age at the date of the trial before me.
(b) Substantial and significant time is in [the child’s] best interests. This would have to be on the basis that she continues to live primarily with the mother. It would allow for a secure home base with the mother while having ongoing regular time with the father.
119.If the parties were living in [Town D] and Perth respectively, a substantial and significant time arrangement would not be reasonably practicable.
120.The only basis on which a substantial and significant time arrangement could work is if both parties lived in the same location. The father refuses to move to [Town D] (and cannot be criticised for that position). The mother is prepared to continue living in Perth if the Court finds that [the child] best interests lie with staying here.
121.The parties could continue similar arrangements to those they have had in place for the last two years. They have been able to make those arrangements work (for the most part).
122.A substantial and significant time arrangement is therefore reasonably practicable and would have a positive effect on [the child].
His Honour concluded by saying:
123.[The child’s] best interests lie in staying in Perth; living primarily with mother and spending regular time with the father. This arrangement will allow her to maintain her meaningful relationships with both of her parents. The bond with her father will grow; and the bond with her mother will not be adversely affected.
124.I have considered the impact on the mother of staying in Perth. This might have some impact on her relationship with her husband. When they were married however, he was on the same fly-in-fly-out roster. Their child will continue to see her father in large chunks of time when he is not at work.
125.Whilst such a situation may not continue indefinitely, I must assess what is currently best for [the child F], taking into account all the various factors set out above.
126.At the moment, given the evidence before me, [the child] should remain in Perth. I consider the father’s proposed orders generally provide for a gradual increase in [the child’s] time with him that is age appropriate and likely to be beneficial to [the child].
127.The father conceded this given his current accommodation it was not appropriate for [the child] to live there. I accept that regular (but short overnight) stays can occur in that house. I propose to commence overnight stays from 2014. It is appropriate to extend [the child’s] time with the father from 2015 (when she will be three years old).
128.I do not agree with the number of overnight periods proposed. I consider one overnight period per week is appropriate for the time being. The mid-week time should remain as it is for now. Given the father’s extraordinary licence, I do not propose to order time on Wednesdays until his full license is restored. I also consider that four hours on special occasions is appropriate for now and should increase when [the child] is older. As [the child] gets older, she should be spending time with the mother on weekends so the mother does not only get the “school time” and miss out on the “leisure time”.
On the basis of these reasons, orders were made for the father to see the child each week, commencing 1 January 2014, from 5.00 pm Friday to 4.00 pm Saturday and for three hours on Wednesdays (after the father regains his licence). From 1 January 2015, the orders allow contact overnight each Tuesday and two nights each alternate weekend. There were also orders for visits on special occasions, but no holiday time until the child commences full time primary school, when the orders provided for her to spend half of each January with the father.
The Grounds of Appeal
The Grounds of Appeal were lengthy (extending to some five pages in the Notice of Appeal filed on 11 December 2013).
During the course of her oral submissions, counsel for the mother was granted leave to add a further complaint to the existing 10 grounds. The application for leave to amend was not opposed, and as the new ground encapsulates one of the primary arguments we propose to discuss it first.
The additional ground – the options considered by the Magistrate
In the course of her submissions before us, counsel for the mother was critical of the Acting Magistrate for having effectively required the mother to remain living in Perth with the child in circumstances where his Honour had supposedly made clear during the trial that he had to choose between the only options presented (i.e. the child living with the mother in Town D or with the father in Perth).
When we pointed out to counsel for the mother that none of the grounds of appeal appeared to raise this issue, counsel sought and obtained leave to add as a further ground the following complaint (the infelicity of expression can be forgiven as counsel formulated the ground “on the run”):
The manner in which the learned trial Magistrate structured the course of the trial and consequently his reasoning led him to fall into error.
In considering this complaint, it will be recalled that at all times up until the commencement of the second day of trial, the mother had before the court a “fall-back” proposal which involved her continuing to reside in Perth if her relocation application was unsuccessful. However, when “Version 2” emerged on the second day of the trial, the mother’s case presented just two options, both of which involved the child residing in Town D with her.
Notwithstanding these were accepted as her formal proposals, the Acting Magistrate found that the mother had said in cross-examination that she would remain in Perth if she was not permitted to take the child to Town D, thereby becoming the “third option for the Court” mentioned at [21] of his Honour’s reasons, which became the foundation for his ultimate order.
Counsel for the mother complained about this approach in the following terms:
Having behaved as a good mother and said, ‘Well, I’m not going to leave my child if that’s what it comes to,’ she’s then stuck with that in the sense that his Honour, during the closing submissions, clarifies that her having said that, means he now has another option open to him to consider as being a viable option. (Appeal Transcript, 3 April 2014, p 6)
Counsel for the mother took us to the transcript to explain how the Magistrate had purported to set the parameters within which the dispute would be determined. It will be necessary to refer to the transcript at length in order to describe how the trial unfolded and the reasons for the mother’s complaint.
Objection during initial cross-examination of the father
On the first day of the trial, the following exchange occurred when Mr Smith, counsel for the father, objected when Mr Cole, counsel for the mother, began to question the father about his ability to obtain work in Town D.
SMITH, MR: Your Honour, I’ve already stated if it’s going to whether or not this witness is going to relocate to [Town D] it’s not part of anybody’s proposal that that would be the case. So I don’t understand the relevance of it.
HIS HONOUR: Do you accept that the court is not bound by the proposals of the parties, though?
SMITH, MR: You’re not bound but I don’t understand the point when there’s no suggestion by anybody and no evidence before the court as to anything to do with my client having to relocate and whether there’s any employability or any roles for him up there. And it’s not part of the wife’s material saying that if he goes then X, Y, Z will follow. It’s not part of the case that we’ve had to answer.
HIS HONOUR: Mr Cole, that point appears to be an important issue and that is whether it’s part of the case. Certainly in relocation issues there are usually one of three different options: child relocates; child stays where they are; or the other parent relocates.
COLE, MR: Yes.
HIS HONOUR: Now, that doesn’t seem to have been canvassed by either party in terms of the father relocating to [Town D].
COLE, MR: Well it’s not – well, again, it seems to me it’s an option that is available to the court in terms of the evidence that comes out. It’s difficult in terms of, if my friend is suggesting that therefore we need to put in orders seeking that one option is that the father relocate.
SMITH, MR: I’m suggesting that the respondent should have presented evidence as to employability and/or options if there was positions in [Town D].
COLE, MR: That’s ‑ ‑ ‑
SMITH, MR: Which then could have been answered. It’s not fair that – it’s a thought bubble for my friend who is in the witness box now putting material which could have been answered and responded to.
COLE, MR: It’s rather difficult, I would suggest, with respect, that my client could be presenting that evidence at all. And in the sense that my client knows nothing about these matters. The notion that my client could present that evidence, it seems to me it’s entirely appropriate that I’m entitled to question him about his ability to obtain employment at various locations. And I’m stuck with his answers I accept that.
HIS HONOUR: But it’s not part of your client’s case that the father relocate to [Town D]; correct? It’s either, ‘[The child] and I move to [Town D] or I will stay in Perth.’ That’s her case. Correct?
COLE, MR: Well, we don’t seek orders otherwise, your Honour.
HIS HONOUR: No.
COLE, MR: That’s ‑ ‑
HIS HONOUR: And it’s not part of the father’s case that he relocate.
COLE, MR: I understand that. Obviously I could at the commencement at the hearing, now, say that we seek to amend her application and that’s now the third possibility.
HIS HONOUR: And we [are] back at the same steps that we were at before.
COLE, MR: Yes. Well ‑ ‑ ‑
HIS HONOUR: If you are granted leave to amend your application then there will have to be something filed before we proceed any further. Your client can’t just chop and change as she goes along.
COLE, MR: Well, I think, having regard to the preliminary view, I think, your Honour, is that it is appropriate that she does have that opportunity. And ‑ ‑ ‑
HIS HONOUR: Well, then I will consider standing the matter down till a minute can be typed. I would have thought that there might be some discussions had outside the court if there is to be some further proposals for more extensive time between the father and the child, in the event that the relocation is permitted. That might lead to some discussions.
COLE, MR: Yes. Well, I have briefly ‑ ‑ ‑
HIS HONOUR: But if not your client needs - - -
COLE, MR: Sorry, your Honour. I have briefly discussed the matter with my friend and as I addressed you on that point it doesn’t appear that, regardless of what time is being offered, the father is opposed to a relocation. So that issue won’t make any difference in terms of it. In relation to – I would have no problems with the notion that we can therefore amend the orders that we are seeking and I can arrange to provide that to the court. But I ‑ ‑ ‑
HIS HONOUR: But Mr Cole, you’ve already told the court that your client doesn’t wish to amend now. Your client is moving forward ‑ ‑ ‑
COLE, MR: Yes.
HIS HONOUR: ‑ ‑ ‑ on the basis of the proposals set out in her papers.
COLE, MR: Yes. And I understand that point, your Honour. I’m now ‑ ‑ ‑
HIS HONOUR: So is she variegating on that issue now and wants to seek leave to amend?
COLE, MR: No, no. I’m raising the issue in relation to amending the orders that we’re seeking to deal with the further option; that the father could therefore relocate to [Town D].
HIS HONOUR: What power does the court have to order the father to relocate to [Town D]?
COLE, MR: The court doesn’t have – well, I think that the court does have the decision. The court can say that if the father – the court can make the decision that the mother be permitted to relocate. The court can make the decision that it is open to the father to relocate in arriving at its reasons for decision. I’m not suggesting that the court has the power to order the father to relocate. But we can put ‑ ‑ ‑
HIS HONOUR: So what amendment would be sought to the orders?
COLE, MR: Well, the amendment that would be sought in relation to it would simply be to say that as an alternative that the mother’s proposals would be that if she is permitted to relocate the father could spend time with the child in [Town D] for whatever my client’s instructions are in relation to the matter. If the father decides he doesn’t want to relocate to [Town D] that his choice, but it doesn’t stop your Honour making a decision that potentially may require that.
HIS HONOUR: And, Mr Smith, the father’s case is clear, is it not? He’s not moving to [Town D]?
SMITH, MR: That’s correct, your Honour. And as your Honour quite rightly points out that this court doesn’t have the power to order that he does.
HIS HONOUR: All right. In the circumstances of this case I will make it clear to the parties. The case is proceeding on the basis of the documents filed; on the basis of the orders sought by each of the parties. I am not permitting any further amendment to the orders that will talk about the time to be spent in [Town D] on a presumption that the father might move to [Town D]. His case is clear; he’s not moving to [Town D]; it’s all or nothing proposition.
Now, in terms of the further questioning I do not intend to allow any further questions that relate to the father’s ability or otherwise in moving to [Town D]. It’s a dead issue; he’s not moving. Let’s proceed.
COLE, MR: I think in relation to your ruling, your Honour, it seems to me you’ve effectively, not having heard all of the evidence, you’re working on the basis that simply because the father refuses to move, that you’re working on the basis that that therefore binds you in terms of the options that are open to this court.
HIS HONOUR: I’m not suggesting that at all. I will still consider other options.
COLE, MR: But if you hear the ‑ ‑ ‑
HIS HONOUR: But I will give the parties and I will give counsel notice if I intend to consider options about time being spent in [Town D].
COLE, MR: But if ‑ ‑ ‑
HIS HONOUR: At the moment, though, I’m limiting myself to the orders that are sought by the parties.
COLE, MR: Yes. Well, then I would seek, in relation to that matter, your Honour, well, we will seek the matter be stood down. And I will amend – and I’m just simply raising with your Honour the point that if your Honour’s ruling then is that I’m not permitted to ask any questions in relation to the matter – in relation to the aspect of his being able to relocate to [Town D], then it seems to me, effectively, the court is ruling it out as an option, because there will be no evidence before this court.
(Transcript, 2 October 2013, pp 15 – 19)
Having then heard submissions from counsel for the father, his Honour said:
HIS HONOUR: All right. Mr Cole, I stand by my ruling. There will be no further cross-examination on the issue of the father moving to [Town D]. It may well be that, at the conclusion of the evidence, I consider that it might be appropriate to put in place orders for time to be spent in [Town D] if the relocation is permitted. It doesn’t involve the father moving to [Town D]. It’s clearly not part of his case and I have no power to order him to do so. Now, having said that, do you wish to proceed with your client’s application as currently stated or do you wish some time to present a further minute of proposed orders?
(Transcript, 2 October 2013, p 20)
Given later developments in the trial, it is unnecessary to discuss this ruling in detail, although the prior exchange is arguably revealing in that it might be seen as demonstrating some willingness on the part of the Acting Magistrate to accept as given the father’s stated intention not to move to Town D.
We should, however, note that in U v U (2002) 211 CLR 238, Hayne J, with the concurrence of Gleeson CJ and McHugh J, said:
175.When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India.
(emphasis added)
Similarly, in U v U, Gaudron J said:
35.Where, as in the present case, the paramount consideration is the child's best interests, it is not always appropriate that the issues be explored and the evidence revealed strictly in accordance with the adversarial procedures that apply in party-party litigation. That being so, it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility … seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not.
The fact neither party had a formal proposal dealing with the time the father would spend with the child if he decided to relocate should not have prevented the mother’s counsel being permitted to cross-examine him about why he could not move. In our view, until such time as the father showed some willingness to move it might appear somewhat futile for the mother to propose a contact regime based on him being resident in Town D. It might also reasonably be thought that there would appear to be little, if any, reason why the father’s time with the child in such circumstances would be any different to the times each party was proposing if the mother stayed in Perth.
The amendment to the mother’s application
Faced now not only with his Honour’s “preliminary view”, but also with his veto against asking questions about why the father could not move to Town D, counsel for the mother asked for time to present a further minute. The matter was then stood over to the next day, when the mother’s counsel provided “Version 2”, which contemplated the father moving to Town D.
On being presented with “Version 2”, his Honour immediately observed it contained no provision for what was to occur if the relocation was refused, to which counsel for the mother responded by correctly pointing out that the father’s case similarly contained no proposal for what was to occur if the relocation was allowed. (Transcript, 3 October 2013, p 2)
In any event, Versions 1 and 2 were both “accepted for filing”, which appears to have been treated as a grant of leave for the mother to amend her proposals in terms of “Version 2”. The following exchange then ensued:
COLE, MR: I think that before the father comes in, in light of the amendment, your Honour - of course, you ruled that I wasn't permitted to ask him any further questions about his proposings [sic], whether he would be allowed to relocate to [Town D]. And I would like your Honour to revisit that ruling.
HIS HONOUR: Mr Smith, any objection in light of the changed circumstances of the order sought?
SMITH, MR: The one question he can ask is: are they intending on relocating to [Town D]? And the answer is no, well, that's the end of it.
HIS HONOUR: I don't accept that. I will consider it when the questions arise. So let's get the father in the witness box and let's push on, shall we.
(Transcript, 3 October 2013, p 4)
We observe that his Honour’s approach here is perfectly consistent with the dicta from U v U which we recited earlier.
The objection during the further cross-examination of the father
The father was then recalled. During his cross-examination, counsel for the mother returned to the possibility of the father also moving to Town D (Transcript, 3 October 2013, p 72 et seq). After a number of questions were asked, counsel for the father once again objected in the following terms:
SMITH, MR: Your Honour, I’m actually a bit concerned about this line of questioning. It’s not my client’s proposal. He says he is not going to [Town D] to live. That is not part of what he is putting before the court. And the authorities are very, very clear in terms of not drawing any adverse inference from either of the parties as to their proposal and suggesting that somehow he is not a good parent or there’s some reason why, ‘Why wouldn’t you go up there?’
You’re not entitled to draw any adverse inferences. He said his proposal is, ‘I live in Perth,’ and he is to be judged upon the proposal that he puts forward is what’s in the best interest of the child whilst living in Perth. The mother is, ‘I’m going to go to [Town D].’ What’s the proposal there, and what’s in the best interest, and they’re two competing proposals. What we have here though is the mother saying, ‘If I’m not allowed to go to [Town D] I will stay in Perth.’ She’s the one that’s got the alternative. There’s no alternative that the father has presented, and ‑ ‑ ‑
HIS HONOUR: At one stage I was going to clarify that with Mr Cole as to whether that was still the mother’s position.
COLE, MR: It is the mother’s position. She’s not b
[We observe that the above response from Mr Cole appeared not only incomplete but also inconsistent with what he had stated at the commencement of the second day of the trial. We have therefore checked the original audio recording of the proceedings. Although the relevant portion of the tape recording is indistinct, it appears what Mr Cole actually said was “It isn’t the mother’s position” – which would be borne out by the following question and answers.]
HIS HONOUR: It is?
COLE, MR: It isn’t.
HIS HONOUR: It isn’t.
COLE, MR: Her position before this court is that she wants to go to [Town D]. There is no proposal that’s put forward before the court in terms of the orders ‑ ‑ ‑
HIS HONOUR: For her to stay here.
COLE, MR: ‑ ‑ ‑ for her to stay.
HIS HONOUR: And that’s what I thought was the case.
SMITH, MR: So her position is now that if you make an order that she can’t relocate that she will go.
HIS HONOUR: I can’t make an order that she not relocate.
SMITH, MR: My point – the child is not allowed to relocate.
HIS HONOUR: It seems to me – let me try and make it clear. It seems to me that I only have ‑ ‑ ‑
SMITH, MR: Two proposals.
HIS HONOUR: Two proposals.
SMITH, MR: That’s right.
HIS HONOUR: Where is the child to live? If the child is to live in [Town D] then the child is to live with the mother. If the child is to live in Perth then the child lives with the father.
SMITH, MR: Father. That’s right.
HIS HONOUR: Mr Cole, you agree, they’re effectively the only proposals that are put to the court.
COLE, MR: It obviously doesn’t bind you, your Honour, but those are the only proposals that are put before this court.
(emphasis added) (Transcript, 3 October 2013, pp 73 - 75)
There was then argument between counsel as to whether his Honour was in fact bound by the proposals, with counsel for the father submitting that his Honour was bound, and stating that “our cross-examination and our preparation is going to be based upon two competing proposals, not a third”. The exchange then continued:
SMITH, MR: … Your position is that you are confined; there will be issues regarding the various proposals the parties put, not as to where they live, but that you will be able to make your own decisions as to whether there’s sufficient amount of time that the parties have proposed as to the handovers and when it’s going to occur and things of that nature, but you can’t make any – you can’t say at the end of this trial, say, ‘Well, irrespective of the parties proposals I am going to suggest that the mother has to stay in Perth.’ She’s saying, ‘I’m not staying in Perth. I am going irrespective.’ She either is saying that or she isn’t. She can’t – there’s no halfway.
HIS HONOUR: Mr Cole, I agree with that proposition. I agree that the court is bound by the general proposals of the parties. Certainly, there can be some tinkering, and if I intend to depart from some of the orders sought by the parties, of course, I will give notice to counsel and seek submissions and/or evidence on it, but the crux of it comes down to those two distinct proposals: either the child lives with the mother in [Town D] if her case is that she will not remain in Perth, or the child lives with the father in Perth, because his evidence is that he won’t go to [Town D].
So they are the two proposals that I am bound by, subject to the tinkering that I mentioned. I’m not about to put in place or consider putting in place an order that the child remain in Perth and live primarily with the mother, as an example, because that’s not proposed, that’s not her case, and it’s not part of – well, it’s one of the options presented by the father, but I have no power to restrict the mother to live in Perth and I have no power to force the father to live in [Town D].
COLE, MR: Well, I think it’s – well, I hear your ruling, your Honour. I don’t agree with it, but I know that’s your ruling.
HIS HONOUR: Then that’s something that you might take up at another time depending on the outcome of the proceedings.
(emphasis added) (Transcript, 3 October 2013, pp 75-76)
The cross-examination of the mother – the emergence of the “third option”
It must be appreciated that, at this point, the mother had not given evidence. When she was called on the following day, counsel for the father immediately challenged her about her intentions if she was not permitted to relocate to Town D with the child. This seems strongly at odds with his previous assertion that “our cross-examination and our preparation is going to be based upon two competing proposals, not a third”, but we note that no objection was taken by counsel for the mother.
The mother’s responses to this line of questioning are of utmost importance in this appeal, since his Honour’s decision can be seen as hinging on the “third option” which he found was revealed by her responses. In considering the following extract it will be noted that English is not the mother’s first language.
SMITH, MR: Ms [Jurchenko], do you understand what your proposal is that you presently have before the court?‑‑‑Yes.
Could you explain what your proposal is regarding the care of [the child]?‑‑‑Well, my proposal is that I’m off to [Town D] with [the child], and six times a year, from the age of two, she will be coming and seeing her father.
Yes. And in the event that his Honour decides that [the child] is not allowed to go to [Town D], what are you going to do?‑‑‑I will reapply to court until we’re going to [Town D].
Beg your pardon?‑‑‑I will reapply to court until we’re going to [Town D] because I have my mind set – set on [Town D], and that’s where her future is (indistinct)
So you said you would reapply to – so if his Honour says that [the child] can’t go ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ you will reapply to the court?‑‑‑Yes, that’s correct.
For what?‑‑‑Well, to see – to amend – to see if we can go to [Town D].
But Ms [Jurchenko], don’t you understand that’s what we’re here for today?‑‑‑I understand that.
These three days are here for that. His Honour will make a decision, one way or another, whether [the child] can go or cannot go?‑‑‑I understand.
In the event that he orders that [the child] can’t go to [Town D] ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ you will stay and reapply; is that what you’re saying?‑‑‑Well, I guess I will have to think about then, once it has happened. So right now, I can’t talk about it.
No. No. Ms [Jurchenko], sorry. You can’t think about it then. You have to think about it now. That’s what you’re here for?‑‑‑Okay. What – what I came here ‑ ‑ ‑
COLE, MR: Well, I think, with respect, you can’t say that she can’t think about it. It’s open to her to say that. If that’s what she wants to say, she can.
HIS HONOUR: Mr Smith (indistinct) that.
SMITH, MR: I’m happy for that. So you haven’t made up your mind yet as to what you’re going to do?‑‑‑Well, basically, what I’m thinking is to go to [Town D] and provide – well, because there’s courier [semble career] for my husband. That’s where it is. It’s the best for my husband and myself and for my children as well. So first I’m thinking of my daughters, for their education in the future, and if I go to [Town D], that’s what we will provide for.
Right. So his Honour, at the end of these proceedings – that could be this afternoon, and I think it could be this afternoon – says, “I’m not convinced that it’s in [the child’s] best interests that she goes to live in [Town D] with you.” What are you then going to do?‑‑‑Well, I will stay here and think about it, what can be done, until we go to [Town D].
So you will stay in Perth ‑ ‑ ‑?‑‑‑Yes, and ‑ ‑ ‑
‑ ‑ ‑ and reconsider your position?‑‑‑Yes. Well ‑ ‑ ‑
But you heard your counsel yesterday ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ say that you were going to go anyway. That wasn’t your position?‑‑‑What do you mean? Could you repeat the question, please.
Your counsel indicated to the court that you didn’t have – you weren’t going to stay. Irrespective, you were going to go to [Town D]?‑‑‑Well, I – I can’t just leave my kids in here, if you understand. I will stay here until we get an application, until maybe in the future. [The child] will be a bit older, and maybe the court will let us go to [Town D], but I’m not going to leave my kids in here.
So in essence, your position in, then, to be absolutely clear, that if his Honour is of the view that if his Honour is of a view that it’s not in [the child’s] best interests to go to [Town D] with you, you will stay in Perth?‑‑‑Until – yes. Yes.
Until what?‑‑‑Until I will reconsider and – yes. Okay. I will – I will think about it then, what’s going to happen, but at the moment, yes, I will stay in Perth.
Right. And you will stay in Perth and live in the house that you’re living in?‑‑‑Yes.
So nothing will change?‑‑‑Well, that’s what I’m saying. I will have to think about it then.
Well, I’m asking you now, what do you think you will do? You will stay in the house that you’re in ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ I presume?‑‑‑Yes.
That your husband will continue to do the fly-in fly-outs to [Town D]?‑‑‑Yes, which is not the best for us, but yes.
All right. Well, that’s – and so he will continue to fly-in fly-out, as he does?‑‑‑Yes.
So 28 days on, 28 days off?‑‑‑Well, I guess so.
Well, is it or isn’t it?‑‑‑Well, it is 28 days on, 28 days off
So you don’t perceive any change to that in the event that you stay in Perth?‑‑‑Well, that’s what I’m saying. That’s – that’s – where my position is right now is I’m staying in Perth, and we already have our plans. We already have our minds set on the [Town D], but if we come out of this court and it will be the answer, no, I have to stay in Perth, well, then I will have to think something about it. Maybe I will come to [the father] and talk about it. Maybe he will reconsider himself about it.
No. No. That’s what we’re here for, Ms [Jurchenko]. You will – what would you then offer, then, if you say that – his Honour says you’re not allowed to go, you say that, ‘I will then speak to [the father] about it, and he might change his mind,’ what would you offer him to help him ‑ ‑ ‑
(emphasis added) (Transcript, 4 October 2013, pp 9 – 11)
After an objection was then taken by counsel for the mother, the following exchange occurred (in the absence of the mother):
HIS HONOUR: Yes, Mr Cole.
COLE, MR: I think, in a nutshell, your Honour, the position would be – is that your Honour will hand down a decision. Your Honour will presumably hand down a decision that contains reasons one way or another in terms of what your decision is. It seems to me the substance of what my client is attempting to say is that she will consider whatever decisions – if your Honour rules that the child is not to be removed from the Perth metropolitan area, she will consider what are the reasons for that.
It seems to me she has talked about an application. Well, presumably, during re-examination, I could inquire as to what she understands by that, but that may well be an appeal. I don’t know. But it seems to me she’s entitled to think in terms of your Honour will hand down a decision, and when a decision is handed down, she can obviously consider what is contained there. She has indicated that one possibility is she can talk to [the father] about it. Now, whether that’s realistic in terms of it, we don’t know. It obviously depends in terms of the decision that your Honour is handing down in terms of the reasons.
(Transcript, 4 October 2013, p 12)
After hearing submissions about whether the father’s counsel should be permitted to ask the mother what proposals she would put to the father to change his mind if the relocation was refused, his Honour ruled against the objection of counsel for the mother, saying in the process:
HIS HONOUR: No. It is agreed – in fact, the second, or the first amended version of the minute, handed up the same day as the second version of the minute, provides precisely for that, so she had a position. She has relied upon a minute of proposed orders. I would have thought it’s an entirely reasonable question. The minute that is now superseded by version 2 provided for, if the respondent mother not be permitted to relocate to [Town D], having the father spend time with the child on various different occasions, so it’s entirely ‑ ‑ ‑
COLE, MR: I understand that, but the point was in terms of – is that if she was not permitted to go, was the question – is, well, what proposals would you put to the father. That’s not about what’s in her minute.
HIS HONOUR: Let’s change it in terms of proposals or orders might be sort [sic] – there might be some clarification of some confusion about offers versus orders, so let’s deal with it on that basis, because it’s a personal [semble, perfectly] reasonable question.
(Transcript, 4 October 2013, p 13)
The cross-examination of the mother then resumed. In answer to further questions about what proposals the mother would put to the father to get him to change his mind if relocation was refused, the mother essentially repeated the contact proposals she had made in “Version 2”. She stated that she would travel to Perth six times each year, “or a little bit more, maybe seven times”. She added that she thought her proposals were quite reasonable because she was proposing more visits than the father had proposed for her if the child were to live with him and the mother relocated to Town D. (Transcript, 4 October 2013, pp 13 – 14)
As counsel for the father was not making much progress in this line of questioning, the Acting Magistrate then intervened:
HIS HONOUR: Can I perhaps just jump in – sorry, Mr Smith – can I jump in and check something. Ms [Jurchenko], you’re aware that your counsel handed up two amended minutes of orders sought at the start of this trial; do you recall that?‑‑‑Yes, that’s correct.
One was the amended minute of orders sought. The next one was a further amended minute of orders sought?‑‑‑That’s correct, yes.
In the first version, there was a section that said:
If the respondent mother not be permitted to relocate to [Town D] –
and various other examples:
…then the father spend time with the child –
in certain frequencies and on certain days. Do you recall that document?‑‑‑Yes, that’s correct.
Do you want to have a chance to look at that document now, to refresh your memory?‑‑‑Yes.
I can show you my copy?‑‑‑Perhaps I misunderstood the question, because my understanding was that if I’m going to – what would I make [the father] – what proposal will I give to him to concede I’m going to [Town D] (indistinct)
That’s where I think there might be some confusion. I want to clear up this aspect. If at the end of these proceedings the overall result is that [the child] stays in Perth and you stay in Perth ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ then, are you then suggesting that she continue to live with you?‑‑‑Yes?
And are you then suggesting that the court should consider putting in place orders that you’ve proposed in that document for the time between the father and [the child]?‑‑‑Well, not if she – if we’re staying in here, in Perth. [our emphasis]
So if you are staying in Perth with [the child] ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ then I need to understand what proposals you are making in terms of the time between [the child] and the father?‑‑‑Well, starting from now, on – on Saturdays from four to – eight to – eight to four, and from two years of age from eight to ‑ ‑ ‑
Is that what’s in that document or is that something different? So have a look at that. See, at the bottom of the page, there’s a heading, on the page that was given to you?‑‑‑ (indistinct) in the documents, yes.
Right. So you’re proposing that if at the end of these proceedings, [the child] and you both stay in Perth ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ they’re the orders that you suggest are appropriate?‑‑‑That’s correct. Yes.
All right. Thank you. Could you hand it back, please. Yes, Mr Smith. Anything further?
SMITH, MR: No. Thank you, your Honour. So it is – just it is absolutely clear, Ms [Jurchenko], that in the event that [the child] is not allowed to relocate to [Town D] or his Honour determines it’s not in her best interests, you won’t go to [Town D] without her?‑‑‑Yes, that’s correct. I (indistinct)
And so, therefore, then your proposal is, as his Honour pointed out to, what your first amended orders, being that – pretty much the same as what’s happening now until she’s three, and then moving on?‑‑‑Well, basically, yes. But then, in the future, if – that’s what I’m saying – if – if maybe father will reconsider, and maybe he will accept for the fact that ‑ ‑ ‑
Okay. Now, why would the father reconsider, in your mind?‑‑‑Well, I don’t know.
(emphasis added) (Transcript, 4 October 2013, pp 14 –16)
Submissions in closing concerning the “third option”
The Acting Magistrate, very properly, sought submissions from counsel for the mother in the course of his closing address concerning what the mother had said in her cross-examination about remaining in Perth.
HIS HONOUR: One thing, Mr Cole. During the course of the trial there were discussions and submissions made about the number and range of options available to the court in terms of the orders to be made. Given the evidence, in particular of your client in cross-examination, do you – or does your client accept or concede that the options before me now include [the child] living with the mother in [Town D], [the child] living with the father in Perth, or potentially [the child] remaining in Perth with some sort of other arrangement given the evidence from your client ‑ ‑ ‑
COLE, MR: Well, I accept ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ and I will have to go over it again, but the evidence appeared to be along the lines that she would be prepared to stay in Perth.
COLE, MR: Well, I think that – I mean, it’s a difficult situation, your Honour, and I didn’t feel that I was going to assist by pursuing it in re-examination. It seems to me the mother’s position, and those are my instructions as per the further amended minute, I believe that the preferable way of looking at this is that the mother’s position essentially is to say, well look, she would re-consider the position if that is handed down. It’s certainly not the decision that she would be happy with.
So if it’s a situation that, effectively, the court forces her to remain here with the child – because, frankly, it’s not an option that’s open to your Honour for the child to live with the father. That’s zero prospect of that happening – so that in that situation my client will reluctantly (indistinct) acknowledge that potentially, at least for a short period of time, she may have to stay here while she contemplates what’s going to happen and, of course, as she said in her evidence, try and talk to [the father] to try and sort out something suitable in terms of that.
You know, obviously we have to await your Honour’s decision in relation to that and have a look at – you know, if that’s what your Honour rules, look at the reasons that are advanced in terms of it and see if there’s any avenues available from that.
But it is a difficult thing to put to somebody in terms of these things because they will look at the matter when the decision is handed down, what does that mean for them, what can they do about it, and I’m not particularly keen on this, sort of, notion that it’s almost a way in which, you know, just as we’re not to think adversely about the father in terms of this notion that he’s not prepared to do, we’re putting a mother in an untenable position to simply say, ‘Well look, are you going to abandon your child?’
That’s effectively what that type of questioning involves and I’m not sure that it’s entirely appropriate that she should be confronted with that situation. You know, that’s why we were trying to make the clear distinction. Just as the father does not put forward any proposals, it is not being put to the father, for example, ‘Does that therefore mean that if the child is permitted to relocate to [Town D] that you don’t want any orders to spend time with him,’ because it hasn’t been put to the father in terms of that.
I presume that’s not his position but, accordingly, in terms of his formal position before this court, that is his formal position. I guess the father would be outraged if we had a situation which your Honour handed down a decision and said, ‘Yes. She’s permitted to go, and you weren’t seeking any orders so you’re not going to get any orders.’ He would obviously want to be thinking about that at that stage I think, which is precisely essentially what my client would want to say to the court.
But it’s not obviously what she said and to that extent I haven’t pursued it further because I suspect we’re just going to keep going round and round in circles, and essentially my client – and you will understand that her English is not 100 per cent but I just thought that we weren’t going to be able to get the degree of refinement in terms of it and that’s why I’m simply accepting what she said. Thank you.
(Transcript, 4 October 2013, pp 120 – 121)
The Acting Magistrate then sought submissions from counsel for the father, who began by asserting that:
… [the mother’s] evidence was in my view quite clear and unequivocal, and that is that in the event that you are of the view that it wasn’t appropriate for [the child] to relocate to [Town D] she wouldn’t go. Now, that’s not an inappropriate position and it’s not an unusual position for mums or dads in this jurisdiction who are confronted with applications to relocate.
(Transcript, 4 October 2013, p 121 – 122)
Later in his submissions, counsel for the father said:
The mother’s evidence was clear that she won’t go and that was the point – and once we got to that point where she said that I didn’t need to cross-examine any further because I was going to go along the lines – somewhere along the lines of saying, ‘Well, the character assassination of [the father] by you in your affidavit material about him being severe mood swings, these nasty comments about women, he’s a women – woman hater, he’s a drug addict, he’s a – or he uses drugs, he uses alcohol to a great extent,’ and all these things that she goes through in her affidavit, if she said at any point, ‘I would go anyway,’ that puts into absolute stark contrast all of her evidence to say, but this is the man you described as a woman hater, a person who was violent towards you, a person this, but you would leave your two-year-old daughter in his care here in Perth.
…
But once you’ve got the third proposal saying, ‘Well, if I can’t go I’m staying here in Perth,’ it makes it a very simple answer to this dilemma, unless the mother gave evidence of, ‘By me staying here in Perth the effect that that would have upon me and my relationship with my husband is such that it would put too much strain on us or financially it would ruin us, or I would be taken away from my support networks and therefore I would be in all sorts of trouble, and therefore that would then have the flow on effect about my parenting capacity for [F] and [H],’ then that would be a different case and that’s not the case they ran.
…
Now that the mother has conceded in her evidence that she will stay in Perth, the best thing for [the child], quite clearly on the evidence which is presently before you, is the only way there can be a meaningful relationship as between mother and father is on that fallback position of the mother, that she remains here in Perth ...
(Transcript, 4 October 2013, p 122 – 124)
Again with respect, this approach demonstrates a flaw in the reasoning process. As we have earlier said, the Act does not require orders to be made to ensure a child has a meaningful relationship with both parents. Rather, it requires the court to consider the benefit to the child of having such a relationship. We recognise that his Honour, at [78], spoke of framing orders for the child to have a meaningful relationship with both parents “if that is in their best interests”. However, having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
His Honour correctly recited the relevant provisions of the Act; accurately explained the terminology; and posed the right issue in the heading to the relevant part of the discussion (“The benefit to the child of having a meaningful relationship with both parents”). The difficulty is he did not discuss, but rather assumed, there was benefit to the child in having such a relationship, without saying why, or what weight he placed on that factor. That this is an error can be seen from the following passage from the decision of the Full Court in Champness & Hanson (2009) FLC 93-407 at [103]:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (original emphasis)
The fact the mother’s Papers for the Judicial Officer said her proposals would ensure a “meaningful relationship” with the father did not relieve his Honour from making proper findings in relation to 60CC(2)(b). Our earlier discussion of the Acting Magistrate’s “preliminary view” suggests that his Honour approached the matter with a mindset in which it was assumed that the outcome needed to be one which would ensure a meaningful relationship with both parents – which according to his Honour could be achieved only if both parents lived in the same location. Having posed the question in this way, there then became only one available answer when the father’s refusal to consider moving to Town D was accepted as beyond criticism, and the mother was treated as having made a concession she would stay in Perth. It follows from what we have said that his Honour fell into error.
We observe that this is the same error as was identified in Mulvaney & Lane where the Federal Magistrate boldly posed the question, “[w]hat outcome will best ensure that [the child] has a meaningful relationship with his mother?” Although the Acting Magistrate here did not pose the question so starkly, his overwhelming focus on the maintenance of a “meaningful relationship” with both parents led to failure to carry out a proper evaluation of the competing proposals.
While we acknowledge that Gaudron J was in the minority as to the outcome in U v U, we nevertheless, with respect, adopt these observations as being not only a perceptive statement of the forensic realities but also an accurate statement of the required approach to cases where one parent wishes to “relocate”:
36.Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
37.It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.
…
41.The trial judge's failure to separately evaluate the three proposals and, hence, to properly determine what was in N's best interests was almost certainly the result of his Honour's erroneous understanding of the counsellor's statement that ‘[i]deally, [N's] best interests would be served by her having frequent and liberal contact with both parents’. Clearly, his Honour understood the statement to mean that such contact was more important than any other consideration. It may be that a finding that frequent contact with both parents was more important than any other matter could properly have been made by the trial judge but, if so, it could only be made by separately evaluating each of the proposals.
It follows that we find Ground 1 to be made out. This provides a second, significant, basis on which the appeal must be allowed. We therefore intend now to address the remaining grounds relatively briefly.
Grounds 2 and 4
By these Grounds it was asserted that:
2.The Magistrate erred in failing to have regard to the rights of:
(a)the child [H] (the child of the Mother and her second husband ... ) to have a meaningful relationship with the Mother’s second husband;
(b)the child [F] to spend time on a regular basis with the Mother’s second husband (being a person significant to her care, welfare and development) pursuant to s.60B(2)(b).
…
4.The Magistrate erred in failing to state which matters he attached greater significance to and how all the relevant matters were balanced out and in particular, the importance of maintaining the family unit of the Mother’s second marriage (namely the Mother, her husband …, their child [H] and the child the subject of these proceedings).
The only relevant references the Acting Magistrate made in his reasons to the mother’s new husband and their child were the following:
· At [4(c)], his Honour found that the additional work that the mother’s new husband wished to undertake in Town D would have a number of consequences, one of which was expressed as follows: “He may, in fact, spend less time with his family, as despite seeing them for short periods during his time on, he will work an extra week out of the four that he would normally spend at home.”
· At [37], his Honour, having noted that the mother’s new husband had given evidence that he had decided to accept the new position in Town D in February 2013, went on to observe that “[i]t is clear, however, that he could continue to do the fly-in/fly-out work if the mother was to stay in Perth”.
· At [84] he noted that the mother “now has the assistance of her [new] husband”.
· At [124] his Honour found: “I have considered the impact on the mother of staying in Perth. This might have some impact on her relationship with her husband. When they were married, however, he was on the same fly-in-fly-out roster. Their child will continue to see her father in large chunks of time when he is not at work.”
The finding at [4(c)] was the subject of criticism by counsel for the mother, who pointed out that while the mother’s new husband may work up to an additional week in the four weeks that he would normally have been rostered off, this was outweighed by the fact that he would see the family every day after work if the family was living in Town D. While this is true, it does not necessarily mean that the finding was not open to his Honour.
However, what the finding fails to acknowledge is that in order to ensure the father of the child F does not go without seeing his child for weeks on end, the father of H must go for weeks at a time not seeing both H, his own child, and F (his step-child). While the wording of the ground, which is expressed in terms of “rights”, is legally inaccurate, and therefore not helpful, the underlying reality is that this is a part of the mother’s case which received inadequate assessment and to that extent we accept there is merit in the ground.
As for the finding at [124], it was submitted by counsel for the mother that while it was correct that the mother’s new husband was working the same fly in/fly out roster as when they were married, this proposition ignored “the reasonable expectation…that [he] would progress his career by ceasing to work FIFO”. We were not taken to any evidence to demonstrate that this had been his expectation, but we accept that his Honour’s reasons do not demonstrate an adequate consideration of the effect on the mother’s new family unit of an apparently indefinite continuation of an arrangement where she is required to care for two very young children in the absence of her husband for 50 per cent of the time.
In particular, it was not sufficient for his Honour to dismiss the question of the potentially detrimental impact on the mother’s relationship with her husband (and father of her four-month old baby) by saying, as he did (at [124]), that the refusal of the relocation:
… might have some impact on her relationship with her husband. When they were married however, he was on the same fly-in-fly-out roster. Their child will continue to see her father in large chunks of time when he is not at work.
The potentially deleterious effect on a young mother of young children arising from some negative “impact” on her relationship with her husband required more than cursory consideration. It is true the mother’s husband was working “FIFO” when they married, but after they married they had a baby, and in the month after the baby’s birth the mother made her application to relocate.
For these reasons we find merit in Ground 2.
Ground 3 – Challenges as to weight
By this ground it was asserted that:
3.The Magistrate erred in failing to give any or sufficient weight to:
(a)the Mother was the primary caregiver of the child;
(b)the Father had no overnight contact with the child;
(c)the Father had failed to regularly exercise the ordered Wednesday contact;
(d)the Mother’s proposal to relocate to [Town D] was for genuine reasons;
(e)the Mother’s freedom of movement.
This ground complains only about the failure to give proper weight to the various matters stated. It is not asserted that his Honour made any erroneous findings of fact in relation to the matters which are the subject of this ground. An appellate court always approaches grounds directed to weight given to various factors with considerable caution for the reasons stated by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519.
Were it not for the fact we have found merit in other, more significant grounds, we would have engaged with this ground. In the circumstances we consider it unnecessary. We accept, however, that these are all matters on which a judicial officer re-determining the matter would be entitled to place significant weight, noting they are all common ground.
Ground 6 – Failure to have regard to temporary arrangement
By this ground it was asserted:
6.The Magistrate erred in failing to have any or any sufficient regard to the relocation not being permanent but being for a period of a minimum of five years for the purposes of the second husband’s employment.
In support of the ground it was submitted that: “[d]espite the evidence the relocation was to be for a minimum of five years…[h]is Honour omitted to make any reference to it, and accordingly fell into error.”
Had the mother’s case been that she was going to Town D for a “maximum” of five years there might have been some point in the complaint. However, as her case was that she was going for at least five years, we fail to see why his Honour could be criticised for not making reference to the possible duration of the arrangement.
Ground 7 – absence of actual foundation for findings
Notwithstanding parts of it were abandoned, this ground remained a lengthy one and we do not propose to set it out in full. It largely constitutes a nit-picking analysis of various findings with a view to asserting there was not a sufficient evidential foundation for them. Given the view we have reached in relation to earlier grounds, it is unnecessary to discuss this complaint, save to make one observation.
Ground 7(k) complains about the following paragraph of his Honour’s reasons:
35.Despite the very significant issue at play in these proceedings, that is whether the mother and [the child] would move to [Town D], her evidence was that she had not had any detailed discussions with her husband … as to what might happen if [the child] was not permitted to go to [Town D]. This is either incredibly naïve on the mother's behalf or not genuine. I cannot understand why the mother would not have had significant discussions with her husband about what might happen if the Court said that [the child] could not move to [Town D]. In my view, this displays a lack of concern about the potential outcome of these proceedings.
The observation we wish to make about this part of his Honour’s reasons is that we would defer to the view of Gaudron J who said in U v U:
32.It should be emphasised that the proposal that N live with her mother in Australia was the father’s alternative proposal and not, as the trial judge stated, the mother’s. That being so, it hardly seems appropriate that the mother should have been criticised by the trial judge, as she was, for not having given thought to the arrangements she would make for N’s care in the result that a parenting order was made in her favour on terms that she and N live in Australia.
Grounds 8 and 9 – bias
Ground 8 asserted that
8.Generally in so commenting as aforesaid and with the use of over emotive language the Magistrate has failed to consider the evidence in a balanced, fair and non-biased manner.
Ground 9 is another lengthy ground which we do not propose reciting. It refers to various matters where it was said that the Magistrate had made adverse findings about the father without treating them as examples of his lack of credibility, in contrast with adverse findings about the mother which his Honour did treat as reflecting adversely on her credibility. The assertion again was that his Honour “failed to consider the Father’s evidence in a balanced, fair and non biased manner”.
In response to these grounds, counsel for the father simply asserted that they were “totally without merit” and claimed that the mother had failed “in any significant way to particularise the ground so as to enable any meaningful response”.
We do not consider that the complaints lack particularity. On the contrary, our view of them is that they are so particularised as to again amount to “nit-picking”. However, as we said at the outset of these reasons, the ever-present danger in a judicial officer giving an early view of the outcome, no matter how carefully couched, is that the losing party will be likely to suspect that he or she has consciously or unconsciously made such findings as are necessary to sustain their initial view. There is, however, no firm basis on which we could find this has occurred in the present matter, and we do not consider these grounds require further discussion.
Ground 10
This ground also asserts that the learned Magistrate failed to “take a fair and balanced approach as to the parties’ evidence”. Three items were particularised, but once again the first two are no more than nit-picking and do not warrant repetition. The third related to the view his Honour took of the grounds on which the mother had sought a violence restraining order. Given the success of earlier grounds we do not propose to engage with the ground save to say that we saw some merit in at least some of the submissions made by counsel for the mother in support of it.
Ground 11
By this ground it was asserted that:
11.The Magistrate erred in concluding if the child relocated to [Town D] her relationship with the Father would deteriorate, for which there was no evidence.
No written submissions were addressed to this ground of appeal, however counsel for the mother was critical of his Honour’s failure to provide reasons for various of his conclusions, including that identified in Ground 11.
In particular it was submitted there was no evidence to justify the finding that:
a) the proposed relocation would damage the developing relationship between father and child;
b) large gaps in visits would damage that developing relationship;
c) if the child moved to Town D her relationship with the father would deteriorate;
d) phone calls or Skype are not proper substitutes for physical contact with a child of this age.
The child was not independently represented, nor was an expert appointed to give evidence about, inter alia, the impact on such a young child’s relationship of seeing a parent only every seven or eight weeks, as the mother’s amended proposal involved.
In McCall & Clark the Full Court said:
124. We have already highlighted the difficulties faced by the Federal Magistrate in determining the competing applications. The only witnesses were the mother and the father. Significantly, the Federal Magistrate did not have any expert evidence to assist him to determine the frequency and regularity which would be necessary for a child of this age, who has been in the exclusive care of his mother by reason of her actions since he was six months old, to establish a significant bond with his father. In particular, the Federal Magistrate had no expert evidence about stages of child development and attachment theory and some of the advantages to a child's development of a meaningful relationship with both parents, and the disadvantages of such a relationship not being possible.
…
126. There is no suggestion in this case that the Federal Magistrate was referred to any matter which would fall within the purview of s 69ZX(3) to inform himself of matters relevant to establishing a meaningful relationship for a three year old child with a parent, where the child has experienced a significant period of time with little interaction with that parent. Neither party tendered to the Federal Magistrate any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material. Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act.
The provisions of the Evidence Act 1995 (Cth) do not apply in proceedings in the Magistrates Court of Western Australia, nevertheless all of the other remarks made in the passages recited from McCall & Clark could be applied to the present matter. It might equally be said, however, that no expert evidence was presented by the mother to establish that a “meaningful” or even an “appropriate” relationship could be maintained between the child and the father in the event the child was to see the father as regularly as the mother proposed.
Although the topic was not the subject of full submissions, we do not necessarily consider that McCall & Clark should be seen as a binding proposition of law that expert evidence must always be produced before a judicial officer can make a finding about the likely effect of certain types of parenting regimes. Given that the child was only two years of age at the time of trial and given that her relationship with the father was still developing, and in the absence of any evidence being produced by the mother about the likely effect of the proposed removal, we do not consider his Honour can necessarily be fairly criticised for making do with what evidence he had and concluding as he did.
We prefer therefore not to base our decision on any merit there might be in this ground.
Outcome and costs
We have not discussed Ground 5 as it was abandoned during argument. We have, however, found merit in other significant parts of the complaints and we propose to allow the appeal.
The question now becomes whether we can re-determine the matter ourselves or whether it must be remitted for further hearing. We were informed that, in the event the appeal was allowed, both parties would seek to provide further evidence as they are entitled to do. Regrettably, neither provided an affidavit containing that evidence. Furthermore, as we understand the position, there is regrettably more than a possibility that the job opportunity of the mother’s husband has now been lost as a result of the passage of time.
In the circumstances, we regret we see no alternative other than to remit the matter to the Magistrates Court of Western Australia for hearing by a magistrate other than Acting Magistrate Kaeser. We observe that the remitter does not prevent the assigned magistrate from determining that the matter should be transferred for hearing by a Judge of the Family Court of Western Australia.
Pending the re-determination of the matter, we consider the orders made by Acting Magistrate Kaeser should remain in place.
The appeal having succeeded on an error of law, as requested by both parties we propose to grant costs certificates both for the appeal and the rehearing.
I certify that the preceding one-hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 18 July 2014.
Associate:
Date: 18 July 2014
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