KERSON & BLAKE

[2018] FamCAFC 215

FAMILY COURT OF AUSTRALIA

KERSON & BLAKE [2018] FamCAFC 215

FAMILY LAW – APPEAL – PARENTING – INTERNATIONAL RELOCATION – Where the mother sought to return to the United States of America with the children – Application for relocation opposed by the father  – Where the primary judge gave determinative weight to a finding made which failed to consider all of the evidence – Orders not supported by the evidence – Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE –– Where consideration of further evidence not necessary as matter remitted for rehearing – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal succeeds on an error of law – No reason as to why the provisions of s 117(1) of the Family Law Act 1975 (Cth) that each party bear his or her costs should not apply – No orders as to costs.

Family Law Act 1975 (Cth) s 117(1)

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

APPELLANT: Ms Kerson

RESPONDENT: Mr Blake

FILE NUMBER: CAC 1154 of 2017

APPEAL NUMBER: EA 75 of 2018

DATE DELIVERED: 12 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Alstergren DCJ, Ainslie-Wallace & Austin JJ

HEARING DATE: 11 September 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 4 May 2018

LOWER COURT MNC: [2018] FamCA 294

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Gillies SC

SOLICITOR FOR THE APPELLANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Mr Tockar

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

Orders

1. The application to adduce further evidence filed on 27 August 2018 is dismissed.

2. The appeal against the orders of Gill J made on 4 May 2018 is allowed and those orders are set aside.

3. The matter be remitted to be heard by a judge other than Gill J.

4. There be no orders as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kerson & Blake has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:  EA 75 of 2018
File Number:  CAC 1154 of 2017

Ms Kerson

Appellant

And

Mr Blake

Respondent

REASONS FOR JUDGMENT

1. By Further Amended Notice of Appeal filed on 28 August 2018 Ms Kerson (“the mother”) appeals final parenting orders made by Gill J on 4 May 2018 in proceedings between her and Mr Blake (“the father”).  The orders concern the parties’ children, B (born in 2006) and C (born in 2012) (“the children”).

2. The parties and the children are American citizens.  The family moved from City D to Australia in July 2012 and they have resided in Canberra since that time.

3. The parties separated in June 2015 following which they successfully cooperated in a shared care arrangement for the children.  In July 2017 the mother applied for orders which, inter alia, would permit her to relocate the children to live in City D.  The mother’s position was that she would move to live in City D whether or not the children moved with her.  The father opposed those orders and contended that the children should remain living in Canberra. 

4. On 4 May 2018 the primary judge ordered the parties have equal shared parental responsibility and, in the event that the mother moved away from Canberra, ordered that the children live with the father.  His Honour’s orders provided for a regime by which the children would spend time with the mother both in Australia and in the United States of America (“the USA”).

5. Although the mother’s appeal raises six challenges to his Honour’s orders, as will appear, it will succeed on the challenge raised in Ground 6.  The result is that his Honour’s orders will be set aside and the matter remitted to be heard by a judge other than the primary judge.  The balance of the appeal grounds involve considerations of the evidence, its weight and assessment and as these, and other issues, will fall to be determined in the rehearing, we are of the view that it would not be appropriate to consider those grounds.

Ground Six

1. Ground 6 contends that the primary judge erred in finding that the father would better support and facilitate the children’s relationship with the mother than she would with their relationship with him.

2. To give context to our consideration of the ground, it is helpful to set out some background and some of his Honour’s conclusions.

3. His Honour observed at [23] that central to the case was the capacity of each of the parties to parent the children and how that capacity would be affected by the mother’s proposed move to City D.

4. The parties and the children had been interviewed for the preparation of a Family Report and the writer considered that the children have positive relationships with each of the parents and said that they rely on their parents for emotional security and comfort.  His Honour noted and apparently accepted her opinion that the parties were “loving and committed care givers and, individually, they appear to be motivated and well intentioned in regards to the responsibilities of parenthood” (at [23]).

5. As to the capacity of the parties and their ability to each support the other’s relationship with the children, his Honour found that up to the time of the trial the parties had cooperated in an equal shared care arrangement for the children in which the children spent equal time with the parents (at [57]). His Honour concluded that the parents each had been “generally supportive of each other’s relationship with the children although this has taken place in the context of severe conflict between them”.

6. The relationship between the parties deteriorated after separation to the point where their communication is conducted in writing.  The primary judge found that the father accepted that his behaviour degenerated into shouting and that he accepted that he “may have sworn at or denigrated the mother” (at [59]).  His Honour said:

   60. Despite the restriction in their communication to writing only, the Mother says that she still feels as though she is being bombarded by the Father. As against that the Father says he tries to limit his communication with the Mother to matters that specifically involve her. He accepts that his communication may be flawed but also says that he experiences the Mother’s communication with him as critical.

7. In considering the father’s approach to facilitating the children’s relationship with the mother, his Honour found, and the father conceded in evidence, that he had involved the children in his conflicts with the mother.  His Honour noted that the father “tries not to do this because he realises that it is not good for the children.  He had only limited positive things to say about the Mother when asked” (at [62]).

8. His Honour continued and concluded at [70] that there were “consistent and deep difficulties” in the parties’ communication with each other but accepted the parties’ agreement that there should be an order for equal shared parental responsibility (at [71]).

9. Thus it is plain that whatever may have been the communication difficulties asserted by each of them as against the other, the parties and his Honour, accepted that they could communicate to the extent necessary to equally share in the parental responsibility for the children.

10. It is in his Honour’s assessment of the mother’s approach to fostering the children’s relationship with the father and her attitude to co-parenting that it is contended he fell into error.

11. His Honour noted at [63] and [64] two general complaints by the father, namely that the mother “made it difficult for him to talk to [the children]” and that when the mother travels in the USA she “fails to send information about when the children will be available for that contact.”

12. His Honour’s reasons refer to an episode in July/August 2017 when the children travelled to the USA with the mother for approximately 18 days.  During that time there was a dispute between the father and mother about when the children would be available to speak to him.

13. His Honour noted that during this period the children and the father spoke for a total of five times (at [65]) and said:

    65. …When the Father asked for a schedule to make communication happen the Mother’s response was “Yes, I will force [C] to talk to you.”

    66. The Mother then involved B in the dispute by emailing him as contained at Annexure F of the Father’s 13 December 2017 affidavit.  In this email the Mother brought B into the dispute regarding when the Father would have telephone time with the boys.  The Mother is critical of the Father to B.  The Mother placed B in a position where B was required to resolve the issue.  If this was a regular occurrence then the Family Reporter thought that it calls into question the extent to which the Mother would foster the relationship between the Father and the children.

14. His Honour did not find, nor was it suggested, that this was a “regular occurrence” and his Honour’s reasons at [62] make it clear that the father too had acted in a similar way in involving the children in the conflict between the parties.

15. His Honour said after referring to this particular trip:

    67. It is against this background that it is said that the Mother will support the boys’ relationships with the Father should the boys live with her in City D. In the short period of travel in the USA in July-August 2017 this was not what she did. Her response to communication was undermining rather than supportive of the relationship with the Father.

16. His Honour then concluded that each parent has a strong capacity to care for the children’s needs and to contribute different qualities to the children’s upbringing, noting at [73] that it was a “choice between two good parents”.  He further noted that the Family Report writer had not advanced a recommendation as to the outcome and his Honour said that “[t]his was the product of the qualities brought by each of the parties being finely balanced” (at [74]).

17. His Honour found:

    79. On either proposal, the children will maintain meaningful relationship with both of their parents.  However, the benefits that they will obtain from that meaningful relationship with one of their parents will not be what they enjoy now, as their time with that parent will be significantly diminished.  This places some priority on how each parent will support the relationship with the other parent, including each of the parent’s attitudes to the responsibilities of parenthood.  Both parents experience and cause difficulties in the communication with the other parent.  The experience of the time that the children were travelling in the USA with the Mother, where the Mother was hostile toward the Father exercising telephone time with C, and where the Mother involved B in her hostility toward the Father, calls into question her commitment to fostering the long distance relationship. …

18. His Honour assessed the relative strengths and weakness of the parties as parents and said:

    87. It may be observed that the different considerations pull in different directions.  The subtle difference in emotional engagement and the way in which the Mother is attuned to the boys, which favours her case, must be considered in the context of the uncertainty that flows from the Mother’s psychological fragility.  That fragile and subtle difference is here outweighed by the issue of support and facilitation of relationship, which favours the Father, as it connects to the primary consideration of providing the boys with the benefits that flow from meaningful relationship with each of their parents.  Even accepting that they will have a meaningful relationship with both parents with either outcome, the greater support likely to come from the Father enhances their prospects of greater benefit of meaningful relationship with both of their parents. 

19. It is instructive to consider, as senior counsel for the mother did in her argument, the evidence before his Honour on the issue of the mother’s facilitation of the children’s relationship with the father.

20. In her affidavit filed 1 February 2018, the mother said:

    162. I am committed to maintaining the relationship between the children and their father and I have repeatedly demonstrated this through accommodating nearly every request [the father] has ever made towards his connection with the children.

    163. From the time [the father] and I separated I have made sure that the children have uninhibited access to [the father] nearly every day no matter where we are or what we are doing. They are always welcome and encouraged to call him, text him, “chat” him or Skype him. They are also welcome to see him during “my” time whenever possible. B will occasionally take a walk over to [the father]’s house to say hi or pick up something he left there. While we were in the States in December 2016 to January 2017 (and during all travel), I encouraged the children to talk to [the father] on Skype.

    164. Both [the father] and I have organised Father’s Day, Mothers’ Day, birthday and Christmas presents for the boys to give to each of their parents each year. Typically, I will buy several presents and let the children choose which one they’d like to give [the father] and then encourage the children to make personal cards. I make sure that the children have contact with [the father] and his family for all holidays if there is not already a planned visit.

    …

    169. The children love their father and will miss spending regular time with him if I am permitted to relocate their residence to the USA and [the father] does not relocate back home as well.

    170. I am fully aware of the responsibility I have of ensuring the children continue to have a meaningful relationship with their father if we were allowed to relocate and it will be of my highest priorities in helping the children adjust to their new circumstances.

    171. I have and will always do anything I can to keep B and C tightly connected with [the father]. Nonetheless, I have no question that the children and I belong in the USA at this time and the undoubted improvement in our overall well-being will contribute to a very long-term outcome for their father/son relations albeit after painful short-term challenge to the connection.

21. The mother was cross-examined about the number of times that the children ought speak to their father each week.  The mother agreed that three times per week was not unreasonable but said “…three times a week is often challenging when – both of us are in transit, and I don’t believe that would be the situation if we were both in homes”.[1]

    [1] Transcript of 20.03.2018, page 47 line 44-45.

22. The mother said that she believed in open access between the children and the father but contended that to be bound to three times a week while she and the father were “in transit”[2] added to the challenges in their communication. 

    [2] Transcript of 20.03.2018, page 48 line 8.

23. The mother’s evidence in cross-examination was:[3]

    [COUNSEL FOR THE FATHER]:  So if you’re not in steady, solid housing, what, the children should speak to the other parent less?

    [THE MOTHER]: ---Being held to a court order while travelling is quite challenging and leads to more contention, so, in order to ease the tension, I believe open access should always be the goal. But to be forced in a court order to say, “We will be available to you three times a week while we’re both in transit, and I will get rebuked or chastised if I have not made the children available to you,” adds to the challenges in our communication.

    [COUNSEL FOR THE FATHER]: Do you see it as unreasonable that my client ask you to nominate when communication happens between the children and my client when they are in your care?

    [THE MOTHER]: ---I see it as unreasonable when I’m travelling with the children, for example, when we’re both visiting home from Australia.

    [3] Transcript of 20.03.2018, page 48 lines 4–15.

24. Nevertheless the mother consistently confirmed that she would honour a commitment that the children call the father three times each week when she and the father were not travelling.  It was not suggested to her that she would not honour such a commitment or that her past conduct was such that her commitment was unlikely to be honoured.

25. The following exchange took place during the trial between counsel for the father and the mother:[4]

    [COUNSEL FOR THE FATHER]: You’re not going to promote these children’s relationship with my client from the US, are you?

    [THE MOTHER]: ---I have – I have promoted every single aspect of [the father]’s life and his relationship with these children every day of my life for 17 years. I have never not facilitated what [the father] has requested from me, ever. Am I kind always with my language? No. I answer – we are separated three years. I answer texts or emails every single day of my life regarding Tupperware and socks and shoes and school photo. There’s nothing in my history that could ever remotely imply that I would not facilitate communication between them. They love him. They deserve him. And of course I would facilitate that, and I always have.

    [4] Transcript of 20.03.2018, page 50 lines 18–26.

26. As to the mother’s involvement of B in her dispute with the father over communication during the holiday, the mother said:[5]

    [COUNSEL FOR THE FATHER]: And your approach to the problem was to make it B’s problem?

    [THE MOTHER]: ---Well, I very much regret that and I – and that was an error in judgment, certainly, which is very atypical of me; however, I had received something in the line of 17 texts or emails rebuking me and chastising me for not being available when [the father] wanted me to be available and we were on the New Jersey turnpike with both children vomiting in the back of the car, trying to get to see my mother in a hospital. So I was quite frustrated and I reacted in an inappropriate way.

    [5] Transcript of 20.03.2018, page 49 lines 40–46.

27. Returning then to the ground of appeal, it was senior counsel for the mother argued that his Honour’s ultimate conclusion that the father was likely to better support the children’s relationship with the mother was based solely on what occurred in the July/August 2017 trip to the USA.  We agree that conclusion is irresistibly drawn from his Honour’s reasons.

28. It was next argued that in coming to the conclusion that the mother’s response to the father on that occasion showed that she was “hostile” to the father speaking to C, and further that she visited that “hostility” on B in showing him the father’s email ignored overwhelming evidence to the contrary, much of that evidence being uncontradicted.  It was further argued that from that finding his Honour proceeded to conclude that this showed the mother’s commitment to fostering the father’s relationship with the children was “open to question” and, it was submitted, these two flawed conclusions formed the lynchpin for his Honour’s ultimate decision that the father, in preference to the mother, was more likely to foster the children’s relationship with the other parent. 

29. In particular, senior counsel for the mother submitted that in coming to that conclusion, the primary judge failed to have regard to relevant evidence including the unchallenged evidence of the mother of her facilitating the children’s communication with the father on previous overseas trips in 2015 and 2016 about which the father made no complaint.

1. Further, it was submitted that his Honour’s conclusion, based on the incident that occurred in the July/August 2017 holiday, that the mother’s conversation with the father showed she was “hostile” to the father speaking to C was against the weight of the evidence, and in fact was a finding not open on the evidence.

2. As to the first part of this submission, that it was a conclusion against the weight of the evidence, it was submitted that the mother’s unchallenged evidence[6] was that she had experienced family difficulties which in part contributed to difficulties in the children contacting the father.  Further, it was undisputed that the parties agreed that the father would speak to the children three times a week and in that particular period away, some 18 days, the children spoke to the father on five occasions.  It is relevant to an understanding of this incident that during the July/August 2017 period, the father too was in the USA albeit not with the mother and children.  The mother agreed that the times on which the children spoke to the father were fewer than that agreed but said she had been unable to comply because she was travelling.[7] 

   [6] Transcript of 20.03.2018, page 49 lines 44–46.

   [7] Transcript of 20.03.2018, page 49 lines 36–38.

3. Senior counsel for the mother, in illustrating the point, referred to an instance in which the mother experienced difficulties in communicating with the children when they were travelling with the father and in particular on an occasion when one of the children was distressed and had spoken of self-harm and tried to call the mother.  That communication was not facilitated by the father who contended that since his mother was there helping to care for the children, there was no need for the mother to be notified or concerned. Senior counsel for the mother submitted that his Honour failed to take this evidence into account in determining the question of which parent would better promote the communication between the children and the other parent. 

4. Challenges to the weight or importance placed on evidence and the conclusions that can be drawn from that evidence face a significant hurdle to appellate intervention.  However, in this case we are of the view that the challenge to the exercise of his Honour’s discretion should succeed because his determination was against the weight of the evidence, failed to take into account relevant evidence and is thus, plainly wrong.

5. We cannot accept the contention that the conclusion that the mother was “hostile” to the father speaking to C was unsupported by the evidence.  While the evidentiary support for that finding, namely that on the occasion to which the primary judge referred to at [65] in the mother’s conversation with the father, she was “hostile” to him speaking to C is thin, we cannot agree that there was no support for it and thus we do not accept this particular argument (see Edwards v Noble (1971) 125 CLR 296 at 304).

6. Nonetheless, we accept that his Honour placed determinative weight on the one occasion that the mother travelled with the children in the July/August 2017 holidays to support the finding that the mother was hostile to that communication and then, relying on this finding, the primary judge found at [79] that the mother’s commitment to fostering the relationship was called “into question” based, it seems, not on the whole of the mother’s evidence, which his Honour clearly accepted, but based solely on the father’s complaints about the telephone calls during the July/August 2017 travel to the USA.

7. His Honour’s errors permeate his reasons and formed the lynchpin of his determination of the issue before him. For that reason we conclude that his Honour’s finding cannot stand and the orders must be set aside and the matter remitted for rehearing.

Application to adduce further evidence

1. The mother sought, by an application in an appeal filed 27 August 2018, to adduce further evidence.  That evidence is to the effect that after the hearing she was informed by her husband’s father that all communication from her should be directed to him rather than to the father.  Leave was given to the father to respond to only that part of the proposed evidence. 

2. However, given our determination that the appeal will succeed and the matter be remitted for rehearing, it is not necessary to consider the further evidence sought to be adduced and that application will be dismissed.

Costs

1. Both parties sought the issue of a costs certificate in the event that the appeal succeeded on an error of law and the Court was of the view that it was not a case in which there should be a costs order inter parties. While the appeal has succeeded on an error of law, we are of the view that there is no reason why the provision of s 117(1) of the Family Law Act 1975 (Cth) should not apply and each party pay his or her own costs. Thus there will be no orders as to costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Ainslie‑Wallace & Austin JJ) delivered on 12 November 2018.

Associate: 

Date:  12 November 2018